United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm, United States District Judge.
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.
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. 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
worked for the Agency from August 2009 until it terminated
his employment in July 2014. 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.
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.
“[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.
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.
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.” 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.
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.
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.
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.
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
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).
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).
to Exhaust Administrative Remedies
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.
“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
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. 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.”).
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) (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).
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
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.”).
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).
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)).
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 ...