United States District Court, D. Maryland, Southern Division
DONNA M. WARD, Plaintiff,
U.S. DEPARTMENT OF COMMERCE, et al., Defendants.
J. HAZEL United States District Judge
Donna M. Ward, proceeding pro se. initiated this action
against Defendants, the United States Department of Commerce
(the "Department"): Stephen Taylor and Claudette
Bennett, in their official and personal capacities: and
William Savino. in his official capacity (the
"Individual Defendants"), pursuant to the Civil
Service Reform Act ("CSRA"). 5 U.S.C. § 1201
et seq., the Rehabilitation Act. 29 U.S.C. §
701 et seq., and "Maryland common law."
See ECF No. 20 ¶¶ 47-67. Plaintiff
challenges her removal from federal service after having
exhausted certain claims through the Merit Systems Protection
Board ("MSPB"). See ECF No. 20. Following
the Department's Motion to Dismiss. ECF No. 17. Plaintiff
tiled a First Amended Complaint, ECF No. 20. Defendants now
move to dismiss Plaintiffs First Amended Complaint. or, in
the alternative, seek summary judgment in their favor. ECF
Nos. 25 & 44.
discussed in further detail in the Department's Motion to
Dismiss, or. in the Alternative, for Summary Judgment. ECF
No. 25 at 16-17. Plaintiffs non-discrimination claims are
reviewed under an "'arbitrary and capricious"
standard. See Rupert v. Geren, 605 F.Supp.2d 705.
713 (D. Md. 2009); see also 5 U.S.C. § 7703(c)
(requiring that the court set aside any agency action that is
found to be "(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence"). The Administrative Record in
this case indicates that Plaintiff was repeatedly paid for
working full eight-hour shifts, despite badge-swipe data from
the building in which she worked showing that Plaintiff
arrived late or left early on numerous occasions, without
having sought leave. See Admin. R. ("AR")
000418-551. 000677-691. Thus. Plaintiff has failed to satisfy
her burden of demonstrating that the MSPB's decision
sustaining her removal was arbitrary or capricious.
procedurally improper, or lacked substantial evidence.
See Twymart v. Berry, 447 F.App'x 482. 484 (4th
Cir. 2011) (citing Harris v. Dep't of vet. Aff.,
142 F.3d 1463, 1467 (Fed.Cir. 1998)) (noting that plaintiffs
"bear the burden . . . of establishing error" in
respect to Plaintiffs claims of discrimination under the
Rehabilitation Act. the Court must review those claims de
novo. See Rupert. 605 F.Supp.2d at 713
(citing 5 U.S.C. § 7703(c)); see also Hooven-Lewis
v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001). Although
Plaintiff alleges that she was retaliated against for
engaging in protected activity under the Rehabilitation Act.
see ECF No. 20 ¶¶ 53-53, Plaintiff has
failed to establish a genuine issue of material tact with
respect to this claim. Even assuming Plaintiff could
demonstrate a prima facie case of
retaliation-despite the fact that she received a notice of
proposed removal one week before she complained of
discrimination, see AR000678: ECF No. 20 ¶
6-she has not pointed to any evidence that would create a
genuine dispute with respect to whether the stated reasons
for her termination were mere pretext for retaliation.
See Bryant v. Aiken Reg'l Med. Centers Inc., 333
F.3d 536, 543 (4th Cir. 2003) (citation and internal
quotation marks omitted) (noting that a prima facie
case of retaliation requires proof that "(1) [the
plaintiff] engaged in protected activity, (2) [s]he suffered
an adverse employment action at the hands of [her employer]:
and (3) [the employer] took the adverse action because of the
protected activity"); Hoyle v. Freightliner,
LLC, 650 F.3d 321, 337 (4th Cir. 2011) (citation and internal
quotation marks omitted) ("[T]he plaintiff bears the
burden of establishing that the employer's proffered
explanation [for the adverse action] is pretext."). To
the extent Plaintiff seeks to raise discrimination claims in
addition to her claim of retaliation, such claims are subject
to dismissal because Plaintiff failed to exhaust her
administrative remedies by withdrawing those claims before
the MSPB. See AR000053: Khoury v. Meserve,
268 F.Supp.2d 600. 611 (D. Md. 2003). aff'd 85
F.App'x 960 (4th Cir. 2004) ("[A] complainant who
withdraws certain claims in an appeal to the MSPB before a
final decision on the merits . . . fails to exhaust
administrative remedies with respect to those particular
common law tort claims also must be dismissed because they
are precluded by the CSRA, which provides the exclusive
remedy for federal employees seeking to challenge adverse
employment actions taken against them. See Nguyen v. U.S.
Dep't of Def., 39 F.3d 1178 (4th Cir. 1994)
(citing Petrini v. Howard, 918 F.2d 1482. 1485 (10th
Cir. 1990): Rollins v. Marsh, 937 F.2d 134. 139 (5th
Cir.1991)) (internal quotation marks omitted) ("The
[CSRA] provides the exclusive procedure Tor challenging
federal personnel decisions. A plaintiff may not avoid the
CSRA by cloaking his lawsuit in the guise of [a Federal Tort
Claims ActJ action.).
Plaintiffs Motion for Entry of Default against the Individual
Defendants. ECF No. 37. must be denied. The docket reflects
that at least some of the Individual Defendants were served
on February 2, 2016, see ECF Nos. 32 & 33. but
Plaintiff tiled her Motion for Entry of Default on March 7.
2016. mistakenly believing that the Individual Defendants
were required to respond to Plaintiffs Complaint within 21
days. Pursuant to Rules 12(a)(2) & (3) of the Federal
Rules of Civil Procedure, however, employees of a United
States agency-when sued in their official capacities, or when
sued in their individual capacities for actions taken in
connection with duties performed on behalf of the United
States-have 60 days to respond to a complaint. The Individual
Defendants timely responded to Plaintiffs Complaint,
see ECF Nos. 42 & 44, and. accordingly, entry of
default would be inappropriate.
although Plaintiff filed a Motion for Leave to file a Second
Amended Complaint. ECF No. 51, and a Motion for Leave to File
a Substitute Second Amended Complaint. ECF No. 53, leave to
amend a pleading should be denied where amendment would be
futile. See Rubino v. New Acton Mobile Indus.. LLC.
44 F.Supp.3d 616. 622 (D. Md. 2014). The allegations added in
Plaintiffs Proposed Second Amended Complaint do not
substantively differ from those previously alleged, and.
accordingly, would not save Plaintiffs claims from dismissal.
See Black & Decker, Inc. v. Greenfield Indus.,
Inc., No. CIV. A. HAR 90-3272, 1991 WL 239121. at *1 (D.
Md. Nov. 4. 1991) ("An amendment is considered futile if
it could not survive a motion to dismiss or a motion for
Plaintiffs Motions. ECF Nos. 37. 51 & 53. are DENIED.
Defendants' Motions. ECF Nos. 25 & 44, are GRANTED,
and this action is DISMISSED with prejudice. A separate Order
 Pin cites to documents tiled on the
Court's electronic filing system (CM/ECF) refer to the
page numbers generated by that system.
 In her Complaint. Plaintiff also cites
to the Americans with Disabilities Act of 1990. 42 U.S.C.
§ 12112 et seq., in support of her claim of disability
discrimination, see ECF No. 20 ¶ 49. but the
Rehabilitation Act '"provides the exclusive judicial
remedy for claims based upon a federal employee's
disability." Frazier v. Damihae, No.
PWG-14-3974. 2016 WL 1045853. at *5 (D. Md. Mar. 15, 2016)
(citations and internal quotation marks omitted).
Plaintiffs claims against the
Individual Defendants are subject to dismissal for the
additional reason that the only proper party in a case
arising under the CSRA is "the agency responsible for
taking (he personnel action." 5 U.S.C. §
7703(a)(2), and. with respect to her claims arising under the
Rehabilitation Act. "the head of the agency is the only
appropriate .defendant." Lcve v. Potter, No.
CIV.""l:03CV00746. 2006 WL 519684. at *3 ...