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Battle v. Burwell

United States District Court, D. Maryland, Southern Division

September 19, 2016



          Paul W. Grimm, United States District Judge.

         Following years of perceived discrimination by his employer and retaliation for his complaints about that discrimination, culminating in the termination of his employment, Jeffery Battle, an African American male, filed suit in this Court against his employer, the U.S. Department of Health and Human Service's National Institutes of Health (the “Agency”). ECF No. 1. He filed his prolix original Complaint without counsel, identifying a litany of instances of mistreatment and claiming gender and race discrimination, retaliation, hostile work environment, and “[d]iscrimination based on disability.” Id. Battle then retained counsel and amended his complaint, ECF No. 17, which the Agency believed was subject to dismissal or summary judgment in its favor, ECF No. 24. I permitted Battle to amend again to address the deficiencies the Agency identified, ECF No. 26, and he filed his Second Amended Complaint, ECF No. 32.

         Now pending is the Agency's Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 42, in which the Agency contends that the claims in Battle's Second Amended Complaint, like his previous claims, are either unexhausted or comprised of only “bald assertions, ” or alternatively, that the Agency is entitled to summary judgment based on the evidence in the administrative record.[1] I must dismiss those claims for which Battle failed to exhaust his administrative remedies. Additionally, Battle fails to state a claim for race or gender discrimination based on the remaining allegations. Nor does he state a claim for hostile work environment or “[d]iscrimination based on disability.” But, because Battle has shown that it is premature to consider the Agency's summary judgment motion as to his retaliation claims, this case will proceed to discovery with regard to them.


         Battle worked for the Agency from August 2009 until it terminated his employment in July 2014.[2] Second Am. Compl. ¶ 6. He was a Lead Team Specialist and also served as an Acting Supervisor of Contracting. Id. He received “only . . . positive evaluations up until 2010, ” when former Acting Supervisory Contract Specialist Pat Rice “became his acting supervisor.” Id. ¶¶ 8-9.

         According to Plaintiff, Rice “required that Mr. Battle participate in procurement activities that ran counter to mandatory federal procurement regulations, policies and laws” and Plaintiff “began getting negative performance evaluations, ” such as his “final 2010 performance evaluation, ” in which “Mr. Rice gave him a minimally successful rating.” Id. ¶ 9. Plaintiff alleges that in May 2011, he “attempted to gain a promotion to the position of Supervisor[y] Contract Specialist GS-1102-14[, ] the Facilities Support Services Contracting Brach's (FSSCB) Branch Chief, ” which appears to be the position he was filling as “Acting Supervisor of Contracting GS-1102-14, ” but Rice hired a white female who “was not qualified” instead. Id. ¶ 11. Yet, he concedes in his Opposition that he did not apply for the position, insisting that his failure to apply was “due to Defendant's shenanigans.” Pl.'s Opp'n 14 n.8.[3]

         Then, “[i]n August 2011, Mr. Daniel Wheeland retaliated against the Plaintiff when he did not hire Mr. Battle as Supervisor of Contracting GS-1102-15 even though his qualifications were superior to the selected applicant Ms. Sharon Bruce.” Id. ¶ 13. Again in Fall 2011, Battle was “required [to] participate in procurement activities that ran counter to mandatory federal procurement regulations, policies and laws.” Id. ¶ 14. When he refused, his supervisor “began screaming and yelling at him, and swung a large and dense contract file, about 4” thick with the constancy [sic] of a large brick, in Mr. Battle's face” and almost hit him. Id. He “reported this conduct to the NIH police” and management. Id. ¶¶ 14-15.

         On June 13, 2011, Battle had “sought EEO [Equal Employment Opportunity] counseling which was reported to upper management, ” and he filed a formal complaint with the Agency's EEO office on August 10, 2011. Id. ¶¶ 12, 27. He amended his EEO complaint in September and October 2011, ultimately “charg[ing] discrimination and a hostile work environment based on race [and] sex[, ] and retaliation, ” based on the above allegations. Id. ¶ 27.

         In January 2012, his supervisor revoked his telecommuting schedule and his “official duties as a Lead Team Specialist.” Id. ¶ 21. In December 2012, his supervisor mischaracterized his leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 - 2654, “and then placed him in LWOP [leave without pay] status.”[4] Id. ¶ 16. However, Plaintiff concedes that “the leave discrepancy was discovered and corrected.” Pl.'s Opp'n 10 n.5. One month later, his supervisor failed to “report[] the results of his ergonomic study to the NIH Office of Medical Services and Employee Relations, . . . resulting in his medical condition worsening.” Second Am. Compl. ¶ 17. Also in January 2013, his supervisor refused to acknowledge a project he completed, “which resulted in a lowered 2012 performance rating.” Id. ¶ 18.

         Battle sought EEO counseling again on February 3, 2013, and filed another formal complaint on March 3, 2013 “based on retaliation, discrimination based on race, sex and physical disability, hostile work environment, harassment, and time and attendance violations.” Id. ¶ 28. He received a notice of right to sue for both complaints. Id. ¶ 29.

         In March 2013, he received a Letter of Reprimand and was “charged AWOL for 2 hours with no valid explanation.” Id. ¶ 19. The next month, “Plaintiff's supervisor developed a false and deceptive report that was forwarded to the Office of Medical Services regarding his request for a reasonable medical accommodation.” Id. ¶ 20. Also in April 2013, his “supervisor down rated his final 2012 Performance Evaluation to unsatisfactory, and placed him on a performance improvement plan (PIP).” Id. ¶ 21. He was denied a pay increase in 2013. Id. ¶ 26.

         He received a “hostile and threatening” email (the content of which nowhere appears in the record) from the Director of Contracting in July 2013, id. ¶ 22, and his female supervisor “would say shocking and demeaning things” in his PIP meetings, including “‘Blow me!'” Id. ¶ 23. He was placed on administrative leave in August 2013. Id. ¶ 24. He amended his second EEO complaint to encompass all of these allegations. Def.'s Mem. 8-9.

         The Agency terminated Battle's employment in July 2014. Id. ¶ 6. He initiated this suit without an attorney on July 15, 2014. Pl.'s Opp'n 3. He then sought EEO counseling on July 24, 2014 and filed a third EEO complaint on August 28, 2014, alleging discrimination and retaliation based on the termination of his employment. Id. He participated in a settlement conference but did not reach an agreement. Id. at 4. Purportedly on the advice of an administrative law judge, Battle withdrew his third EEO complaint and filed an appeal of his termination with the Merit Systems Protection Board (“MSPB”). Id. He then withdrew his MSPB appeal. Id. He tried to renew his third EEO complaint, but “was informed that he could not continue with his NIH EEO complaint . . . once the claim had been cancelled.” Id.

         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)). Because the Agency argues, with regard to some of the alleged discriminatory acts, “‘that [the] complaint simply fails to allege facts upon which subject matter jurisdiction can be based, ' . . . ‘the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.'” Fontell v. MCGEO UFCW Local 1994, No. AW-09-2526, 2010 WL 3086498, at *3 (D. Md. Aug. 6, 2010) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)), aff'd, 410 F.App'x 645 (4th Cir. 2011); see also Ford v. Master Sec. Co., LLC, No. PWG-15-2220, 2016 WL 1752897, at *2 (D. Md. May 3, 2016).

         A complaint is subject to dismissal if it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief, ” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Rule 12(b)(6)'s purpose “‘is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).

In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Ultimately, a complaint must “‘permit[] the court to infer more than the mere possibility of misconduct' based upon ‘its judicial experience and common sense.'” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Iqbal, 556 U.S. at 679). To this end, “while a plaintiff [in an employment discrimination case] is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, [f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002); Twombly, 550 U.S. at 555); see also McCleary-Evans v. Md. Dept. of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015).

Nam v. 2012 Inc., No. DKC-15-1931, 2016 WL 107198, at *3 (D. Md. Jan. 11, 2016) (alterations in Nam).

         Failure to Exhaust Administrative Remedies

         The Agency argues that Plaintiff failed to exhaust his administrative remedies with regard to his discrimination claims based on race and gender, insofar as he alleges that the Agency discriminated by “giving him a minimally successful rating in his 2010 employment performance evaluation” and “revoking his telecommute schedule, ” because he did not consult an EEO counselor with regard to either claim and he did not include the telecommuting claim in his second EEO complaint. Def.'s Mem. 20, 21. The Agency also contends that Plaintiff failed to exhaust his administrative remedies with regard to his claims based on the termination of his employment because he raised these claims in a third EEO complaint and an MSPB appeal, both of which he filed and then withdrew. Id. at 13-14. Although the Agency presents this argument within its discussion of Battle's discrimination claims, it insists that “Plaintiff failed to administratively exhaust any claims pertaining to his removal.” Id. at 13 (emphasis added). Thus, the scope of the Agency's argument is unclear, but because exhaustion is jurisdictional, see Balas, 711 F.3d at 406; Murphy, 2014 WL 3845804, at *7, I will address consider whether Battle exhausted any of his claims based on the termination of his employment.

         One “requirement for exhausting administrative remedies is that the aggrieved individual ‘must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.'” Mallik v. Sebelius, 964 F.Supp.2d 531, 540 (D. Md. 2013) (quoting 29 C.F.R. § 1614.105(a)); see also Upshaw v. Tenenbaum, No. PWG-12-3130, 2013 WL 3967942, at *5 (D. Md. July 31, 2013) (“A prospective plaintiff's failure to contact an EEO Counselor within the 45 days prescribed ‘is tantamount to failure to timely exhaust all administrative remedies . . . .'”).

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, ” [29 C.F.R.] § 1614.105(a)(1), unless the individual has a reasonable explanation for his delay, in which case the EEOC [Equal Employment Opportunity Commission] will extend the deadline, id. § 1604.105(a)(2).

Mallik, 964 F.Supp.2d at 540. Generally, “if the plaintiff fails to seek EEOC counseling within the prescribed time period, ” the federal court “must dismiss an employment discrimination claim.” Van Durr v. Geithner, No. AW-12-2137, 2013 WL 4087136, at *4 (D. Md. Aug. 12, 2013) (quoting Emmert v. Runyon, No. 98-2027, 1999 WL 253632, at *2 (4th Cir. Apr. 29, 1999) (per curiam)); see Tartal v. Henderson, No. 99-2007, 2000 WL 384037, at *1 (4th Cir. Apr. 17, 2000) (per curiam) (affirming dismissal of hostile work environment claim where employee “did not contact an [EEO] counselor within forty-five days of the alleged discriminatory events that created the hostile work environment”); Dorr v. Brown, No. 98-2703, 1999 WL 498709, at *1 (4th Cir. July 15, 1999) (per curiam) (affirming the dismissal of a hostile work environment claim where the employee “did not contact an [EEO] counselor within 45 days of the alleged discriminatory events” and “the only event that occurred within the 45-day period prior to meeting with the EEO counselor [was] insufficient to establish a continuing violation”).

         The other requirement for exhausting administrative remedies is that the employee must have filed a timely charge with the EEOC or the Agency's EEO office. Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000); Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Alternatively, in a “mixed case[]” such as Battle's third EEO claim, “in which the plaintiff alleges claims of discrimination and claims of prohibited personnel practices, not based on discrimination, ” the employee may file an MSPB appeal instead.[5] Briggs v. Dalton, 984 F.Supp. 353, 354-55 (D. Md.), aff'd, 129 F.3d 1258 (4th Cir. 1997); see also 29 C.F.R. § 1614.302(a)-(b). Significantly, the employee may file “a complaint with the agency's EEO department or . . . an appeal to the MSPB, but not both.” Briggs, 984 F.Supp. at 354-55 (citation omitted); see Khoury v. Meserve, 268 F.Supp.2d 600, 611 (D. Md. 2003) (noting that “th[e] employee may not elect both avenues simultaneously” (citing 29 C.F.R. 1604.302(a)-(b))), aff'd, 85 F.App'x 960 (4th Cir. 2004). If “an employee attempts to pursue both avenues, ‘[w]hichever is filed first is then considered the employee's election [see 29 C.F.R. § 1614.302(b)], and once chosen, the employee must exhaust [her] remedies in that forum.'” Hunter v. Vilsack, No. DKC-07-2655, 2010 WL 1257997, at *9 (D. Md. Mar. 26, 2010) (quoting Devaughn v. U.S. Postal Serv., 293 F.App'x 276, 280 (5th Cir. 2008) (unpublished)); see Checketts v. Merit Sys. Prot. Bd., 50 F.App'x 979, 981 (Fed. Cir. 2002) (“Once [an] employee elects to file a discrimination complaint directly with the employing agency, . . . the statute [5 U.S.C. § 7702] grants further jurisdiction to the [MSPB] to hear the complaint only after the employee has exhausted the EEO complaint process.”).

         “[T]he scope of a Title VII lawsuit may extend to any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission.” Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992)[6] (quoting Hill v. W. Elec. Co., 672 F.2d 381, 390 n.6 (4th Cir. 1982) (citation and quotation marks omitted)); cf. Riley v. Tech. & Mgmt. Servs. Corp., 872 F.Supp. 1454, 1459 (D. Md. 1995) (rejecting claims of hostile work environment and sexual harassment presented for the first time in plaintiffs' opposition because the EEO charges only alleged discrimination, and “[c]ourts may only exercise jurisdiction over claims encompassed within the EEO charge and claims ‘like or related to allegations contained in the charge, or which grow out of such allegations'” (quoting Nealon, 958 F.2d at 590)), aff'd, 79 F.3d 1141 (4th Cir. 1996). Similarly, “retaliatory acts that follow the filing of a formal EEOC complaint are reasonably related to the complaint and thus may be raised for the first time in district court, ” Hunter, 2010 WL 1257997, at *8; see also 958 F.2d at 590. However, this “rule does not apply . . . where a plaintiff's claims of retaliation could have been raised in her EEOC charge, but were not.” Hunter, 2010 WL 1257997, at *8 (citing Jones v. Calvert Grp., Ltd., 551 F.3d 297, 303 (4th Cir. 2009); Cherry v. Bealefeld, No. CCB-08-1228, 2010 WL 917421, at *6-7 (D. Md. March 9, 2010).

         This Court observed:

One of the primary reasons for allowing plaintiffs to allege retaliation for the first time in court is that plaintiffs who face retaliation after filing one EEOC charge will likely be reluctant to file additional charges for fear of further reprisal. See Jones, 551 F.3d at 302. Yet if a plaintiff faces retaliation and then chooses to file an EEOC complaint, there is little reason not to require her to exhaust her retaliation claim by including it in her EEOC charge. Therefore, the normal rules of exhaustion must apply to claims of retaliation that predate the filing of an EEOC charge.

Hunter, 2010 WL 1257997, at *8 (quoting Cherry, 2010 WL 917421, at *7 (emphasis in original)). Moreover, “if an employee files a formal complaint or appeal, but withdraws or settles it before a final decision is issued, the employee has not exhausted her remedies and thus may not file suit.” Hart v. Lew, 973 F.Supp.2d 561, 576 (D. Md. 2013); see also Khoury, 268 F.Supp.2d at 610-11 (“It is well-established that a complainant who withdraws an appeal before the MSPB fails to exhaust administrative remedies and is barred from filing a civil action in federal court.”); Ward v. U.S. Dep't of Commerce, No. GJH-15-817, 2016 WL 4099071, at *1 (D. Md. Aug. 2, 2016) (“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.”).

         2010 Performance Evaluation

         The Agency contends that Battle “failed to timely contact an EEO Counselor” regarding the alleged discrimination in his 2010 performance evaluation and therefore did not exhaust his administrative remedies. Def.'s Mem. 20. Plaintiff does not state when he received his “final 2010 performance evaluation, ” see Second Am. Compl. ¶ 9; nor does he dispute the Agency's assertion that he received it on February 8, 2011, see Def.'s Mem. 20. In the section of his Complaint titled “Exhaustion of Administrative Remedies, ” he claims that he “sought EEO counseling on or about June 13, 2011, ” and again on February 3, 2013. Second Am. Compl. ¶¶ 27-28. He does not address the timeliness of his contact with an EEO counselor in his Opposition. Consequently, on the record before me, it is undisputed that Plaintiff did not contact an EEO counselor within forty-five days after receiving his 2010 evaluation in February 2011. Moreover, Plaintiff does not argue that his deadline for contacting an EEO counselor after this alleged incident should have been extended. See 29 C.F.R. § 1604.105(a)(2).

         Plaintiff argues instead that his allegation of race and gender discrimination based on his 2010 evaluation “was timely filed, and is part and parcel of Mr. Battle's first administrative complaint.” Pl.'s Opp'n 8. As best I can discern, he is invoking the continuing violation theory. The Fourth Circuit previously held that this theory applied to discriminatory and hostile work environment claims alike, such that “[i]ncidents outside of the statutory window” were not time-barred if they “related to a timely incident as a ‘series of separate but related acts' amounting to a continuing violation.” Beall v. Abbott Labs., 130 F.3d 614, 620 (4th Cir. 1997) (quoting Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980) (per curiam)).

         But, the Supreme Court differentiated hostile environment claims from claims of “discrete acts” of discrimination in National Railroad Passenger Corp. v. Morgan, holding that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges, ” because “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.” 536 U.S. 101, 113 (2002); see also Green v. Brennan, 136 S.Ct. 1769, 1781 n.7 (2016) (noting that Morgan held that, “unlike a hostile-work-environment claim that may comprise many discriminatory acts, discrete claims of discrimination based on independent discriminatory acts cannot be aggregated to extend the limitations period”); Smith v. Vilsack, 832 F.Supp.2d 573, 581 (D. Md. 2011) (“[T]he ‘continuing violation' theory, which ‘allows for consideration of incidents that occurred outside the time bar when those incidents are part of a single, ongoing pattern of discrimination, ' . . . only applies . . . when an employee asserts a hostile work environment claim.” (quoting Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007))); Mallik, 964 F.Supp.2d at 541 (same). Thus, it is clear that Battle failed to exhaust his race and gender discrimination claims based on the alleged downgrading of his 2010 performance ...

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