United States District Court, D. Maryland
DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this employment discrimination action is the motion to dismiss, or in the alternative for summary judgment, filed by Defendant Jeh Johnson. (ECF No. 10). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion will be granted.
A. Factual Background
Plaintiff Geneva Coleman worked as a Human Services Specialist in the Applicant Services Department at the Federal Emergency Management Agency ("FEMA"), an agency of the United States Department of Homeland Security. Plaintiff worked at the Maryland National Processing Service Center ("MNPSC") located in Hyattsville, Maryland. In March 2006, Plaintiff filed an informal EEO complaint of discrimination after her supervisor listed her as "Absent without Official Leave" ("AWOL") when Plaintiff called in sick on a day she was scheduled to work. The issue was resolved when Plaintiff produced a doctor's note to verify her illness. The AWOL was then removed from her record, and Plaintiff subsequently withdrew her complaint in April 2006.
Several months later, on August 1, 2006, Plaintiff's supervisor gave her one "Less Than Expected" ("LTE") rating on her end-of-quarter performance evaluation due to her low productivity during the third quarter. The threshold for receiving a LTE rating due to low performance was performing at less than 50% production for more than 40 hours of casework time. Plaintiff's production rate was 41% for the third quarter. Plaintiff received ratings of "On Target" for the remaining nine performance criteria.
Less than a week later, on August 7, 2006,  Plaintiff began attending what was supposed to be a week-long training workshop. On the first or second day of the training session, Plaintiff stated loudly that she could not hear the training facilitator, Alice Sheen. In response, the training facilitator asked Plaintiff to move to the other side of the room where she would be able to hear better. Plaintiff refused to move and responded, "What am I supposed to do, sit on top of someone?" (ECF No. 10-3, at 57). Because Plaintiff continued to interrupt the training, Ms. Sheen asked if she could speak with Plaintiff in the hallway. After a brief conversation, Plaintiff volunteered to leave the training and return to work in order to diffuse the situation. Ms. Sheen informed Plaintiff's supervisor why she had been removed and recommended that Plaintiff not be permitted to attend the remainder of the training sessions that week. Plaintiff's supervisors affirmed this decision.
On October 4, 2006, Plaintiff was involved in a physical altercation with another FEMA employee, Saucha Wormley. While at work, Ms. Wormley approached Plaintiff inquiring about repayment for a two dollar loan she had given Plaintiff. Plaintiff became upset, insisting that she had already repaid the loan. The two women moved to a stairwell near their workstations and continued to engage in a verbal argument. Other coworkers overheard Plaintiff and Ms. Wormley yelling at one another and using profanity. Another coworker observed Plaintiff cursing at Ms. Wormley as Ms. Wormley backed away from Plaintiff, and then saw Plaintiff kick Ms. Wormley. Plaintiff admitted to kicking Ms. Wormley but stated that she did it in self-defense because Ms. Wormley attempted to punch her. Plaintiff and Ms. Wormley were sent home after the incident and FEMA began an investigation. FEMA's investigation did not reveal any evidence supporting Plaintiff's statement that she was physically attacked and acted in self-defense when she kicked Ms. Wormley. FEMA terminated Plaintiff On October 11, 2006. Plaintiff's termination letter states that she was terminated for "Conduct Unbecoming of a Federal Employee" as a result of her physical altercation with Ms. Wormley. (ECF No. 10-3, at 190-91). On October 17, Ms. Wormley was suspended from work for three days without pay due to her involvement in the altercation. (ECF No. 10-3, at 214-16).
B. Procedural Background
On October 6, 2006, two days after Plaintiff was involved in the altercation with Ms. Wormley, she filed a formal EEO complaint of discrimination challenging her LTE rating on her third quarter performance evaluation and her removal from the training workshop. In her EEO complaint, Plaintiff alleged that she was discriminated against based on her race, sex, and age, and retaliated against based on her prior protected activity of filing an EEO complaint in April 2006. (ECF No. 10-3, at 25-28). After Plaintiff was terminated, she amended her October 6 EEO complaint to include allegations of wrongful termination and retaliation. ( Id. at 29-32).
After FEMA conducted an investigation, Plaintiff timely requested a hearing before an EEOC Administrative Judge. The EEOC Administrative Judge issued a written decision finding that Plaintiff could not establish a prima facie case of discrimination, and could not show that the Agency's legitimate, nondiscriminatory reasons for its treatment of Plaintiff were a pretext for discrimination. (ECF No. 10-4). The Administrative Judge dismissed Plaintiff's case on September 4, 2009, and the Agency issued a Final Agency Decision adopting the Administrative Judge's findings. (ECF No. 10-2, at 2). Plaintiff timely appealed to EEOC's Office of Federal Operations, which reviewed the record and determined that it supported the Administrative Judge's decision. ( Id. at 3-4). Plaintiff requested a reconsideration of this determination, which was denied on September 4, 2013. (ECF No. 10-5).
Plaintiff, proceeding pro se, commenced this suit on December 3, 2013 against Defendant. (ECF No. 1). The same day Plaintiff also filed a motion to proceed in forma pauperis, which was granted on December 5, 2013 (ECF No. 4), and a motion for appointment of counsel, which was denied without prejudice (ECF No. 4). Plaintiff, a forty-seven year old African American female, alleges that she was discriminated against by FEMA based on her race, gender, and age, and was retaliated against due to "prior protected EEO" activity. (ECF No. 1, at 1). Plaintiff points to three incidents during which she alleges she was discriminated or retaliated against: (1) on August 1, 2006, she received an LTE rating for her third quarter performance evaluation; (2) on August 7, 2006, she was removed from a training class; and (3) on October 11, 2006, she was terminated.
On March 20, 2014, Defendant filed a motion to dismiss or, in the alternative, for summary judgment. (ECF No. 10). Plaintiff was mailed a Roseboro notice the same day, which advised her of the pendency of the motion and her entitlement to respond within seventeen days from the date of the letter. Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (holding that pro se plaintiffs should be advised of their right to file responsive material to a motion for summary judgment). In response, Plaintiff again moved for the appointment of legal counsel, a request which was again denied, however, ...