United States District Court, D. Maryland
SYDNEY S. HART, Plaintiff,
JACOB J. LEW, Secretary, U.S. Department of the Treasury, Defendant.
ELLEN LIPTON HOLLANDER, District Judge.
Sydney S. Hart, a male-to-female transsexual, filed suit, pro se, against the Department of the Treasury ("Treasury"),  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"). While working for the IRS, Hart transitioned from male to female. Hart was removed from employment effective May 20, 2011.
Plaintiff's Complaint has already survived defendant's motion to dismiss (ECF 22), in part. On September 23, 2013, I dismissed all of Hart's allegations, other than the allegation that she was fired because of defendant's discriminatory or retaliatory animus. ECF 28 (Memorandum); ECF 29 (Order). In my Memorandum Opinion, I stated: "[T]he allegations that are not related to Hart's termination cannot form the basis of her Title VII claim. As to those allegations, plaintiff either never filed an administrative complaint, withdrew her complaint, settled her complaint, and/or contractually agreed not to litigate on the subject of the complaint." ECF 28 at 27. Accordingly, the only issues that remain are: 1) whether defendant terminated Hart because of her sex; and 2) whether defendant terminated Hart in retaliation for protected Title VII enforcement activities.
Now pending is defendant's Motion for Summary Judgment. ECF 44 ("Motion"). Defendant has supported the Motion with a memorandum of law (ECF 44-1, "Memo"), the complete transcript of a deposition of Hart conducted on February 25, 2014 (ECF 44-3, "Hart Depo."), and a selection of emails. See ECF 44-2 (exhibit list). Hart opposes the Motion (ECF 48, "Opposition"), and has submitted 143 exhibits that have been filed with the Court only in paper copy. See ECF 48. The exhibits include emails, Equal Employment Opportunity ("EEO") complaints filed by Hart, personnel records, and materials from Treasury's investigations of Hart's EEO complaints, including declarations from key individuals. Defendant has replied. ECF 49 ("Reply").
The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. The evidence shows that Hart repeatedly, expressly asked to be fired, and she finally got her "wish" when she vowed never to return to her workplace. For the reasons that follow, I will grant defendant's Motion (ECF 44).
A. Hart's Experience at the Fairfax, Virginia IRS Office
Hart began her employment with the IRS in April 2006 as a Revenue Agent, located at a "duty station" in Fairfax, Virginia. Pl. Ex. 1 (Notification of Personnel Action); ECF 44-3, Hart Depo. at 20:23-21:2. Throughout this period, Hart was still presenting as a male, with the first name of Stuart. Accordingly, in relevant documents, Hart is consistently referred to as a male. To avoid confusion, I will do the same.
According to Hart: "The function of an IRS revenue agent is to conduct field office and correspondence examinations of individual and business tax returns." Hart Depo. 21:5-7. It appears that Hart went to work each day at the Fairfax office for the first year of his employment and then, in April 2007, enrolled in the IRS's work-from-home program, known as "Flexiplace." Pl. Ex. 128 at 1 (Hart email requesting enrollment); Pl. Ex. 128 at 4-5 (Flexiplace agreement, signed April 20, 2007).
During the year that Hart worked at the Fairfax office, he filed four EEO complaints with the "Treasury Complaint Center." Pl. Ex. 3, 6, 9, 13. And, as a union member, see, e.g., Hart Depo. 74:1-6, he filed one grievance under an applicable collective bargaining agreement. Pl. Ex. 14.
Hart's first EEO complaint, filed in July 2006, alleged discrimination on the basis of race and sexual orientation. Pl. Ex. 3. (EEO Counseling Report-Individual Complaint). It stated, id. :
The aggrieved party stated that on 6/09/06, his on the job supervisor (OJI), who is a white male, approached him stating that his attire of jeans and shirt was not appropriate for the office and was unprofessional. The aggrieved has a thin posture. The aggrieved stated that the OJI continued to discuss his attire with him as well as others in the office and eventually to his new manager, a black female. The aggrieved stated that the OJI also reminded him that he was still a probationary employee, and should watch the way he conducted himself and his attire or risk being terminated at any time. He further stated that he subsequently met with his new manager on 6/23/06, to receive his critical job elements and during the discussion, she complimented his intelligence, but discussed the need for improvement in his interactions with others as well as his inappropriate attire on 06/09/06. The aggrieved believes that the behavior of his OJI is based on his perception of the aggrieved's sexual orientation, and that his manager's comments are discriminatory based on his race (white). The aggrieved currently has an Equal Employment (EEO) investigation in his former agency based on race (white).
Hart withdrew this complaint, Pl. Ex. 4, but filed his second EEO complaint the next month, in August 2006. Pl. Ex. 6 (counseling report). He re-alleged the above, but added "retaliation" as an additional basis for discrimination. Id. Hart alleged that he was "being targeted for poor work performance in retaliation for his claims" because he received "negative case review evaluations from his now former OJI [ i.e. "on the job supervisor"], which [Hart] believes was retaliatory in nature." Id. Hart and the IRS reached a "Resolution Agreement" on September 15, 2006, settling the claims in his second complaint. Pl. Ex. 8. Among other things, Hart's supervisor agreed to meet with Hart at the beginning of each month, for six months, to "address any issues or concerns the Aggrieved or Management may have, " to maintain an "open door policy, " and to revise the "written reviews of his two training cases." Id. at 1. Neither party admitted to any "wrongdoing, " however. Id.
On November 8, 2006, Hart filed his third EEO complaint, alleging that "he was discriminated against on the basis of race (White) when... his former OJI, who was the subject of the aggrieved's previous complaint, had been reassigned to his [work] group." Pl. Ex. 9. It is unclear what became of this complaint.
Hart's "Group Manager, " Mary E. Jones, issued a Memo to Hart on November 21, 2006, memorializing a "discussion on October 18, 2006, regarding a coworker's concern with [Hart's] actions when [Hart] see[s] [the coworker] in the hallway." Pl. Ex. 10 (Memo). Jones stated: "You have acknowledged that you have been making an obvious display of walking the other way to avoid him. You are reminded that as an employee of the Service, you are expected to act in a professional manner while conducting the business needs of the office. Demonstrative efforts on your part to avoid occasional interactions with others is not acting in a professional nor courteous manner." Id. 
On February 12, 2007, Jones issued another Memo to Hart, memorializing a "discussion on January 18, 2007, regarding a concern with [Hart's] actions in a November 17, 2006 training workshop, that were disruptive to the presentation." Pl. Ex. 12 (Memo). Jones stated: "You asked questions and then argued with the instructor with whatever answer you were given.... Disrupting the flow of the training session because you disagree with an answer is not acting in a professional nor courteous manner." Id. 
Hart filed his fourth EEO complaint on February 22, 2007, alleging "discrimination based on Retaliation/Reprisal for his prior participation in the EEO process..., when on February 12, 2007, management issued a 2nd Counseling Memorandum alleging Poor Workplace Interaction." Pl. Ex. 13 (counseling report). The IRS conducted an investigation of Hart's allegations in the fourth complaint. See Pl. Ex. 20 at 1-82 (Investigative File for TD Case #EEODFS-07-0336, including five declarations from parties involved). Hart was represented by an attorney, Robert P. Waldeck, Esq., for at least part of the process. See, e.g., Pl. Ex. 19 (letter from Treasury to Waldeck). In February 2008, Hart's attorney sent a letter formally withdrawing Hart's fourth complaint. Pl. Ex. 22 at 3 (letter); Pl. Ex. 22 at 4 (letter from Treasury confirming withdrawal).
On April 17, 2007, Hart filed a grievance under the collective bargaining agreement, in relation to a "furniture renovation project in the Fairfax office." Pl. Ex. 14 (grievance and emails between Hart, Jones, and union representatives). The grievance alleged that IRS management assigned Hart the wrong seniority date in the new seating selection process. Id. Management agreed to revise the seating process with Hart's corrected seniority date. Id.
Hart entered into a work-from-home, "Flexiplace" agreement soon after. The Flexiplace agreement established a work schedule of 8 a.m. to 4:30 p.m., Monday through Friday, and set a number of conditions as to the agreement. Pl. Ex. 128 at 4 (agreement). The conditions included, inter alia, that the "employee and the supervisor must certify the time and attendance worked, " id.; that the employee "agrees to follow established procedures for requesting and obtaining approval of leave"; the employee would only work "credit or compensatory hours when pre-approved by supervisor"; the employee would "perform only official duties during authorized work hours"; and the employee would "establish/maintain communications (or links) that ensure availability to interface with his/her supervisor or official duty station." Id. at 5.
Apparently, Hart began working from home in late April or early May of 2007. Thereafter, Hart did not file any formal EEO complaints for about three years, although he continued to file grievances under the collective bargaining agreement.
In June 2007, Hart submitted a grievance to Jones, stating that he had "not received proper consideration for his annual appraisal...." Pl. Ex. 16 at 1 (grievance). The IRS determined that the performance evaluation "accurately appraises his performance during the rating period..., " and instructed Jones to issue Hart a written narrative appraisal, id. at 7 (response), in addition to the standard-form appraisal sheet that Jones had already issued. See Pl. Ex. 13 (evaluation).
In May 2008, Hart filed a grievance charging a manager with "[o]bstructive influence or recommendations injuring his opportunities with regard to personnel actions and due considerations of promotion." Pl. Ex. 23 at 2 (grievance). The IRS denied the grievance, finding that Hart "presented no evidence" that the manager "made disparaging statements... which violated the grievant's right to confidentiality and which caused the grievant to be nonselected for the positions for which he interviewed." Pl. Ex. 23 at 5 (response).
In early 2009, Hart "started Hormone Replacement Therapy ("HRT") to begin" his "male-to-female gender transition." ECF 1 ¶ 43. In March 2009, Hart legally changed his first name from Stuart to Sydney. Id. ¶ 44; Pl. Ex. 25 (Notification of Personnel Action). Hart alleges that sometime that month, he "informed [his supervisor] Jones that HRT may cause Plaintiff to experience hot flashes, mood swings, and emotional lability." ECF 1 ¶ 45. He "requested a copy of the women's bathroom key to ensure" his "safety while using restroom facilities at the Fairfax" office. Id. According to Hart, Jones and Peter Hendricks, his "second-line" supervisor in Fairfax, Hart Depo. 28:23-25, denied his request for access. ECF 1 ¶ 45.
On April 1, 2009, Hart began to report to the Fairfax office dressed as a female. Id. ¶ 46. Therefore, the documents begin to refer to Hart as a female. I shall do the same.
From an email chain submitted by Hart, it appears that on April 2, 2009, Hart met to discuss the restroom issue with Sarah H. Wilson, an "EEO and Diversity Complaints Territory Manager" for "Territory 13" (which includes ten states and the District of Columbia). Pl. Ex. 25 at 5. On April 15, 2009, Hart emailed Wilson to say that she had given her men's restroom key to Jones, and that Wilson would not "need to come back on April 24, 2009." Id. at 4. Wilson responded that she would provide Hart with "a response" as soon as she got one from General Legal Services ("GLS"). Id. On April 16, 2009, Hart emailed Wilson again to ask for a response. Hart stated, id. : "I proposed a reasonable solution to this matter, and I fail to see why I am getting resistance. Rumors among female employees that a male' is using the ladies restroom and other sexual stereotypes do not cut it, legally or otherwise. I am always willing to be reasonable. It is up to the agency to respond in kind."
Wilson responded, id. :
I clearly understand your frustration regarding this issue. When we discussed this matter, I gave you an estimate of when I expected General Legal Services (GLS) to give me a response. Based on the attorney's research the initial response is the same as the EAP Counselor; i.e., you are required to use the restroom based on your genitalia. The attorney wanted to conduct additional research. I concurred with him because it is very important that the agency makes the most informed decision. This decision will not only impact you but other employees in the Post of Duty.
Based on our discussions you work flexihours and generally come into the office after hours. Since you are not currently working in the office I would recommend that you are patient and let the attorneys provide a final decision. I will follow-up with GLS today. I will reiterate that you will be in the office on Friday, April 24 for a staff meeting and you will need to know what restroom to use at that time.
On July 1, 2009, while the restroom key issue remained outstanding, Hart was given a "Letter of Admonishment" ("LOA"), a form of discipline, from Hendricks, for unprofessional conduct. See Pl. Ex. 26 at 1-3 (emails arranging meeting); id. at 4 (LOA). The LOA said, in part, id. at 4:
This is a letter of admonishment for your discourteous and unprofessional behavior toward a fellow employee. Specifically, on June 12, 2009, you sent an email to a fellow employee in which you stated "By the way, since you are leaving, I find you to be a thoroughly repulsive person. Good luck!" The employee to whom you sent this email found it to be offensive and in fact a reasonable person would consider your remarks to be rude and abusive. You also sent several other emails to your Group Manager and your fellow employees on that day that were disrespectful and unprofessional in tone.
If you engage in any future misconduct, consideration will be given to this action, if it is a matter of record. Future discipline could be severe.
Hart submitted a grievance to Hendricks on July 6, 2009, stating that she (Hart) had "erroneously received an admonishment for allegedly disrespectful and unprofessional behavior on a memorandum dated July 1, 2009." Pl. Ex. 26 at 6 (grievance). As discussed, infra, Hart and the IRS did not resolve the grievance until February 2010. See Pl. Ex. 26 at 8 (letter denying grievance).
Meanwhile, it appears that sometime before July 10, 2009, Hart applied for a promotion: In her Complaint, Hart alleged that "[o]n or about July 10, 2009, " she "learned that she had been promoted to a Grade 12/13 Offshore Agent at the Baltimore, MD [office]." ECF 1 ¶ 51. On July 15, 2009, Hart emailed Jones to ask when she would hear about her start date. Pl. Ex. 27 at 3. In response, Jones said she would relay Hart's start date as soon as she knew it. Id. at 2. Jones also stated that she would provide Hart with a key to the women's restroom. Id. A "Notification of Personnel Action, " approved on July 21, 2009, indicates that Hart's promotion was effective July 19, 2009. Pl. Ex. 29. In an email to a union representative, Hart said that restroom keys would not be an issue in Baltimore because all the bathrooms "are fully accessible and keys are not required." Pl. Ex. 27 at 2.
Jones completed a performance evaluation for Hart upon Hart's departure. Pl. Ex. 28 (evaluation). The evaluation consisted of a standard form listing five "Critical Job Elements" ("CJE's") and fifteen "Performance Aspects" related to the CJE's, an "overall rating, " and a narrative summary. Id. The "overall rating" provided six options: "Outstanding, " "Exceeds Fully Successful, " "Fully Successful, " "Minimally Successful, " "Unacceptable, " and "Not Ratable." Id. Hart was rated "Exceeds Fully Successful." Id.
B. Hart's Experience at the Baltimore, Maryland IRS Office
Hart began working from the Baltimore duty station on August 3, 2009. E.g., ECF 1 ¶ 53. Steve Hansen, also stationed in Baltimore, became Hart's new "first-line" supervisor. Hart Depo. 21:21-25-22:1-4; ECF 1 ¶ 53. Barbara Tobias, who was stationed "at the Jacksonville, FL POD office, " ECF 1 ¶ 53, became Hart's "second-line" supervisor. Id., see also Hart Depo. 21:21-25-22:1-4.
Also on August 3, 2009, Hart completed a new Flexiplace agreement, signed by Hart and Hansen, with the same schedule and conditions as in the first agreement. Pl. Ex. 30 (agreement). It appears that, at all relevant times, Hart continued to live in Alexandria, Virginia. See, e.g., Pl. Ex. 143 at 45 (Hart email dated Dec. 5, 2010).
In her Complaint, Hart states that she worked from home from August 4, 2009, until August 24, 2009, and that from August 24 until August 28, she attended a training class in Denver with "half of her workgroup, including Hansen." ECF 1 ¶¶ 56-57. From September 1, 2009 through September 3, 2009, Hart's entire workgroup, including Hansen attended a workshop in Washington, D.C. Id. ¶¶ 57-58. In an email to a union representative on September 8, 2009, Hart alleged that she had been "ridiculed" on an "almost daily basis" during the meetings. She stated, Pl. Ex. 33 at 2:
During the past two weeks, I attended a training class and workshop with my new group. During the past two weeks, on an almost daily basis, members of my group ridiculed me, grimaced and laughed at my appearance, balked at my use of the ladies restroom, and made me feel uncomfortable and out of place.
Hart listed the members of her group, a total of thirteen names, all but two of whom were identified as posted outside of Baltimore. Id. One of the names is Kim Donnelly, "in Fairfax, VA." Id. Donnelly had reported to Mary Jones, Hart's supervisor in Fairfax, that Hart was disrupting staff meetings, Pl. Ex. 12 at 2 (communication from Donnelly to Jones), which Jones memorialized in a memo to Hart in 2006. Pl. Ex. 12 at 1 (memo). Hart requested the union's help in arranging "sensitivity training." Pl. Ex. 33 at 2.
The union representative responded to Hart's email the same day, indicating that "Traci Lillard... of EEO, " presumably an IRS employee, "stated that a Diversity Specialist could prepare a presentation for the group." Pl. Ex. 33 at 1. Hart responded with an additional allegation against Hansen, and a note that she would file a grievance if Hansen "declines the EEO presentation." Id. Hart stated, id. :
[W]ith regard to the events that I have described, Mr. Hansen was part of the problem, which was why I did not see him first. For example, on Tuesday, September 1, 2009, at 500 N. Capitol Street, Washington, DC, Mr. Harrington [another group member] and I were standing together in the 2nd floor hallway. As we were waiting to get into the conference room, Mr. Hansen, came along and said Good Morning' to Mr. Harrington and ignored me entirely. During the August 24-28, 2009 training class in Denver and the September 1-3, 2009 Washington, DC workshop, Mr. Hansen set a tone for the rest of the group that triggered my request for sensitivity training. On September 1, 2009, another manager, Mr. Eugene Buchs, advised Mr. Hansen "Don't even go near there" with respect to my appearance and dress.
On September 28, 2009, Hart sent an email to Nicole Oke, who presumably handles EEO complaints within the IRS, relating the incidents Hart described in her email to the union, and adding an incident that occurred on September 9, 2009. Pl. Ex. 33 at 7. Hart stated, id. :
9. On Wednesday, September 9, 2009, I stopped off at the Baltimore office.... At approximately noon, Mr. Hansen and I were in his office. Nobody else was present, but his door was open. Mr Hansen made these statements (including but not limited) to me:
a. "I am the one who should receive sensitivity training."
b. "My skirts are too short."
c. He is angry that "I am going around his back to the union before seeing him first."
d. He learned through Ms. Kim Donnelly that I filed "too many EEO complaints at Fairfax to the point that the EEO office no longer takes me seriously."
e. He resented the fact that I may file an EEO complaint if he leers or stares at me the wrong way.
10. On [that day], Mr. Hansen's tone was hostile and disrespectful to me, even though he was aware that I was scheduled for surgery on September 10, 2009. Mr. Hansen did not deny snubbing me on September 1, 2009 in Washington DC, by saying that "if he ignored me."
Hart alleged that there was a "spillover effect from Fairfax" and that she was being subjected to "disparate treatment based on retaliation and gender." Id. Oke responded that she would have "a counselor" contact Hart. Id. at 6.
The Court is unaware of any other evidence in the record concerning the ridicule Hart allegedly suffered during these September 2009 meetings.
On October 20, 2009, Hansen sent Hart an email asking if she was available to attend trainings in Philadelphia in early December. Pl. Ex. 35 at 2-3. Hansen added that he recalled that Hart "plan[ned] to be on medical leave, " and said, "if that is the case, " Hart needed to provide a doctor's note indicating the dates she would be out of work and whether there would be any "restrictions on [Hart's] job related duties" upon return, "such as driving, overnight travel, etc." Id. This resulted in an email exchange over two days' time, in which Hart asserted that she was not required to submit any medical information to Hansen under the applicable collective bargaining agreement, indicated that Hansen's request was "inappropriate, " and "remind[ed]" Hansen to "treat [Hart] in a ladylike and professional manner at all times." Id. at 2. She also pointed out that Hansen did not request documentation for eleven consecutive days of sick leave Hart took in September 2009. Id. Hansen refuted Hart's contract-based arguments, noted that his earlier failure to request a medical certification was "an oversight, " and agreed that Hart could instead submit the information to a "medical professional" at "Federal Occupational Health...." Id. at 1-2.
The next day, October 21, 2009, Hart created an "updated" version of the "statement" she had sent to Oke on September 28, and emailed this version to Keisha Clark-Proctor, an "EEO Specialist, " who is presumably the "counselor" to whom Oke referred Hart. Pl. Ex. 38 (emails). Hart added a summary of her dispute with Hansen about Hart's leave documentation. Id. at 4. In response, Clark-Proctor stated that, under the collective bargaining agreement, "management has the right to require that [Hart] provide medical documentation for any absence of 3 days or more, " and that Clark-Proctor did not know "if this is something they do with everyone or not." Id. at 1. She also told Hart that "management in [her] organization" had agreed to receive a "presentation" from "EEO, " presumably the sensitivity training. Id. As discussed, infra, the presentation did not take place until October 2010.
On December 17, 2009, Hansen emailed Hart about a number of work-related matters. Pl. Ex. 39 at 1-2. Of relevance here, he told Hart that, pursuant to the collective bargaining agreement, her Flexiplace agreement required her to "report to... her assigned POD at least 2 days each pay period, " and he stated that Federal Occupational Health "had not received any information" on Hart's sick leave. Id. at 2. Hart responded that she would "start showing up after the holidays, when [she would be] in better physical shape." Id. at 2. She also stated that her doctor had sent the information "on or about October 27, 2009, " id., and forwarded a "copy of the letter that [her] doctor sent the IRS Doctor." Id. at 4. The letter, addressed to Federal Occupational Health and dated October 27, 2009, stated: "[Hart] is scheduled for surgery on November 3, 2009 and will not be able to return to work for at ...