United States District Court, D. Maryland
ELAINE Q. WONGUS, Plaintiff,
Robert McDonald, Secretary, Department of Veterans Affairs, Defendant.
Lipton Hollander United States District Judge
Q Wongus, the self-represented plaintiff, initiated this
employment discrimination case against Robert McDonald,
Secretary of the United States Department of Veterans Affairs
("VA" or "Department"), defendant,
alleging violations of Title VII of the Civil Rights Act of
1964 ("Title VII"), as amended, 42 U.S.C.
§§ 2000e, et seq., and the Age
Discrimination in Employment Act ("ADEA"), as
amended, 29 U.S.C. §§ 621, et seq. ECF 1.
She has twice amended her suit. See ECF 5 (First
Amended Complaint); ECF 13 (Second Amended Complaint).
Plaintiff also submitted exhibits with the original Complaint
and the Second Amended Complaint. See, e.g., ECF
13-1 to ECF 13-8.
is an African American woman who is over the age of forty.
See ECF 13 at 1. According to an appeal form that
plaintiff submitted to the Merit Systems Protection Board
("MSPB"), plaintiff began working for the VA in
December 2006 (see ECF 16-8 at 2), where she remains
employed. ECF 18 at 1. At all relevant times, Wongus worked
as a Health System Specialist for the Department at its
medical center in Perry Point, Maryland. See ECF
16-2 at 2 (“Complaint of Employment
Discrimination”); ECF 18-2 at 2 (EEOC Hearing Request
Form). Wongus contends that, on an unspecified date, she was
not hired “with the Anesthesia Department as Management
Analyst”; that she was not promoted on August 10,
2010; and that she suffered
“defamation of character, reprisal, retaliation,
bullying, hostile working environment, prohibit [sic]
personnel practice, harassment, and, intimidation.” ECF
13 at 2 (emphasis omitted).
suit, Wongus states that on February 13, 2012, she filed
charges of discrimination with the Equal Employment
Opportunity Commission (“EEOC”); the MSPB; and
her Union. Id. ¶ 9. She also claimed that she
received a right to sue letter on August 29, 2015.
Id. ¶ 10. Plaintiff also attached to her suit a
copy of the “Decision” from the EEOC's Office
of Federal Operations (“OFO”), dated August 13,
2015. ECF 1-1.
has moved to dismiss the Second Amended Complaint, pursuant
to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). ECF 16.
The motion is accompanied by a memorandum of law (ECF 16-1)
(collectively, the “Motion”), and various
exhibits. ECF 16-2 through ECF 16-11. Defendant argues that
Wongus failed to exhaust her claims through the
administrative process, as required by the applicable
statutes. ECF 16-1 at 10-12. Further, the Department claims
that the suit was untimely filed. Id. at 13-14. And,
defendant contends that, even if Wongus properly exhausted
her administrative remedies, she has failed to state a claim.
Id. at 14-16. Wongus opposes the Motion (ECF 18, the
“Opposition”), supported by exhibits. ECF 18-1
through ECF 18-5. Defendant has replied. ECF 19 (the
addition, plaintiff has filed a motion for leave to file a
surreply. ECF 22 (the “Motion for Surreply”).
Defendant opposes the Motion for Surreply (ECF 23, the
“Response”) and plaintiff has replied. ECF 24.
Motion and the Motion for Surreply have been fully briefed,
and no hearing is necessary to resolve them. See
Local Rule 105.6. The Court is mindful of its obligation to
construe liberally the pleadings of a pro se litigant, which
are “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007); see also White v.
White, 886 F.2d 721, 722-23 (4th Cir. 1989).
Nevertheless, for the reasons that follow, I shall grant, in
part, and deny, in part, the Motion for Surreply, and I shall
grant the Motion to Dismiss.
Factual and Procedural History
claims in Ms. Wongus's Second Amended Complaint appear to
arise from two discrete matters. One relates to
plaintiff's “Complaint of Employment
Discrimination” (“EEO Complaint”), filed
May 23, 2012, with the Department's Office of Resolution
Management (“Office”). ECF 16-2 at 2. The other
concerns plaintiff's suspension and subsequent grievance
proceeding. See, e.g., ECF 16-7.
February 13, 2012, plaintiff initiated contact with an equal
employment opportunity (“EEO”) counselor.
See ECF 16-2 at 4. Counseling concluded on May 13,
2012. Id. Plaintiff was mailed a “Notice of
Right to File a Discrimination Complaint, ” which she
received on May 17, 2012. Id. Thereafter, on May 23,
2012, plaintiff filed the EEO Complaint with the Department.
ECF 16-2 at 2. She listed claims as to three incidents. As to
the first occurrence, on March 5, 2012, plaintiff stated:
“Code Orange against manager.” Id.
Plaintiff also referred to events of May 16, 2012, and said:
“[T]hreaten, Hostile environment, retaliation (going to
write me up (PIP) intimidation[)].” Id. Third,
plaintiff asserted a claim as to an occurrence on May 17,
2012: “[T]hreaten, Harass, Hostile environment,
Retaliation (I told her that I was sick, ) Intimidation
(Kathy said, I could not go home).” Id.
August 14, 2012, the Office issued a “Notice of Partial
Acceptance” as to plaintiff's EEO Complaint. ECF
16-2 at 4-6. The notice outlined twelve allegations,
presumably distilled from plaintiff's EEO Complaint.
See ECF 16-2 at 2.
to the notice, plaintiff asserted that she was
“subjected to a hostile work environment based on her
race (Black) . . . .” ECF 16-2 at 4. The notice
recounted numerous events reported by plaintiff to support
her claim. Id. at 4-5. Plaintiff claimed, inter
alia, that in February 2012, her supervisor, Compliance
Officer Kathy McCardell, “yelled at her and said
[plaintiff] was not in the union.” ECF 16-2 at 5. On
February 13, 2012, McCardell sent plaintiff an email in which
McCardell “accused [plaintiff] of being
insubordinate.” Id. McCardell sent an
additional email to plaintiff on February 16, 2012, accusing
plaintiff of “unacceptable conduct.” Id.
Plaintiff also alleged that in March 2012, McCardell
“ignored the [plaintiff's] complaint about a
horrible smell in . . . her office.” Id. And,
on March 2, 2012, McCardell “accused the [plaintiff] of
not finishing her audits.” Id. McCardell
“shouted and banged on the [plaintiff's] office
door” on March 5, 2012. Id. In April 2012,
McCardell “spoke to [plaintiff] in a condescending
manner . . . .” Id. Thereafter, on May 16,
2012, McCardell “threatened to place [plaintiff] on a
Performance Improvement Plan” (PIP). Id.
review of the allegations, the Office
“ACCEPTED for investigation” the claims
of harassment, for the reasons it set forth in ECF 16-2 at
5-6 (emphasis in original). However, two claims were not
accepted for investigation by the Office, as they were deemed
untimely. ECF 16-2 at 4. In particular, plaintiff had stated
that, from September 13, 2010 to October 15, 2011, she was
“detailed as the Acting Compliance Officer, a higher
graded position, ” but was not compensated at the
higher level or promoted to that position. Id.
Plaintiff also claimed that on February 13, 2012, she was
told that her request for “temporary promotion would
not be processed . . . .” Id.
January 29, 2014, the VA and plaintiff, through counsel,
filed with the EEOC a document titled “Joint Motion to
Dismiss with Prejudice.” ECF 16-3. It stated:
“The parties, by and through their respective
below-signed counsel, hereby jointly move for the dismissal
of this EEO complaint in its entirety, with prejudice.”
October 2, 2013, McCardell, plaintiff's supervisor,
issued a Memorandum to Wongus, proposing a five-day
suspension, without pay, based on three charges. ECF
16-4. The Memorandum stated, id. at
CHARGE 1: Failure to Follow Instructions Specification: On
July 3, 2013, you were instructed by your supervisor, Kathy
McCardell to correct an excel spreadsheet, which contained
errors. You did not make the correction to the excel
spreadsheet. You are charged with failure to follow
CHARGE 2: Unprofessional Conduct Specification: On August 2,
2013, your supervisor made an attempt to show you the errors
you made on an excel spreadsheet. You became defensive and
disrespectful. Your supervisor made an offer for you to
attend the Employee Assistance Program. You stated that your
supervisor was the one who was going to need the assistance.
You are charged with unprofessional conduct.
CHARGE 3: Absent Without Leave (AWOL)
Specification 1: On August 12, 2013, you were scheduled to
work from 7:30 a.m. until 4:30 p.m. You were absent without
authorization from your required duty station; you were
required to be at your duty station during that period. You
are charged absent without leave (AWOL).
Specification 2: On August 13, 2012 [sic], you were
scheduled to work from 7:30 a.m. until 4:00 p.m. You were
absent without authorization from your required duty station;
you were required to be at your duty station during that
period. You are charged absent without leave (AWOL).
Memorandum also outlined Wongus's rights in connection
with the charges, including her right to contest the charges
and to obtain counsel, and she was also provided information
about the procedure. Id. at 2-3. In addition, Wongus
was informed that the final decision would be made by the
February 21, 2014, Dennis Smith, the Director of the VA
Maryland Health Care System, issued to Wongus a “Notice
of Decision to Suspend, ” suspending her for three
days, from March 17, 2014 to March 19, 2014. ECF 16-5 at 3-4.
In particular, Smith sustained two of the three charges:
“Failure to Follow Instructions” (Charge 1) and
“Unprofessional Conduct” (Charge 2). Id.
The Director stated that, based on plaintiff's oral
reply, he “decided to remove the charge of Absent
Without Leave, ” and to reduce the suspension from five
days to three days. Id. at 3.
March 13, 2014, the Union filed a “Step 3
Grievance” (the “Grievance”) on
plaintiff's behalf, challenging her suspension. ECF
16-7. The Grievance disputed both charges
cited by the Director in issuing the suspension. Id.
Charge 1, for failure to follow instructions, the Grievance
claimed, inter alia, that “the employee was
trying to follow what [McCardell] requested in her
instructions, but [plaintiff] was unclear as to what
[McCardell] was attempting to get her to understand.”
Id. at 5. The Grievance also stated that the
Department refused to provide Ms. Wongus with training that
she requested. Id. at 6. As to the first charge, the
Grievance concluded, id.: “While Ms. Wongus
does not have unfettered right to disregard an order merely
because there is substantial reason to believe that the order
is not proper, at no time did Ms. Wongus refuse to comply
with an order.” With respect to the second charge, the
Grievance argued, inter alia, that McCardell's
assertions were “self-serving.” Id. at
7. The Grievance also stated that McCardell was
“totally disrespectful” to Wongus and that
McCardell “yelled at a high voice during the entire
meeting” in question. Id. According to the
Grievance, id.: “Ms. Wongus did not act
improperly and was simply having a vigorous exchange with her
supervisor asking for clarity of instructions.” On May
30, 2014, Director Smith sent a letter to the president of
plaintiff's Union (AFGE, Local 331) as to the Grievance.
ECF 16-7 at 11-12. It recounts that on April 9, 2014, the
Union and management held a meeting and “mutually
agreed to enter into a settlement agreement, ” thereby
resolving the grievance. Id. at 12. Although the
Union and the Department had agreed to a one-day suspension
for Wongus, plaintiff refused to sign the settlement
agreement. ECF 16-7 at 13. As a result, the three-day
suspension became the final agency decision. Id. at
13, 14. On June 23, 2014, plaintiff was notified by email
that the Union's executive board voted not to take the
case to arbitration. ECF 16-7 at 15, 16.
counsel, on July 2, 2014, Ms. Wongus appealed the
Department's decision to the MSPB. ECF 16-8. Plaintiff
attached a statement to her appeal, dated June 19, 2014.
Id. at 6-7. She wrote, in part, id. at 6-7
(emphasis in original):
. . . I am so afraid for my life that someone will shoot me
when I come to work or walk down the hallways without any
body armor to protect myself from my supervisor Kathy
McCardell and all employees (including Mr. Smith) . . . .
I continue to feel intimidated and my professional career at
the Veterans Affairs is coming to an end because of this
unbelievable statement by Mr. Dennis H. Smith, Director. Mr.
Dennis H. Smith, Director quoted, “It is the employee
responsibility to get alone [sic] with the supervisor and not
the supervisor responsibility to get alone [sic] with the
employee.” I thought slavery was over but Mr. Dennis H.
Smith, Director rekindle that term in the 21st
Mr. Dennis H. Smith said I would reduce the suspension to one
day. Mr. Wayne Marion [the Union representative] asked Mr.
Dennis H. Smith to place me in another job.
Mr. Dennis H. Smith said she has a choice. Mrs. Wongus can
take the one day suspension or Mrs. Wongus can be placed in
another job and keeps the three day suspension. Mr. Smith
quoted, “Good luck in getting someone to hire
her.” Then, Mr. Smith quoted, “If you find
someone will hire her, let me know and I will lift the freeze
on that position.”
I want to be moved to another GS position of my choice like
Mr. Cord promised me that Mr. Dennis H. Smith and him did not
uphold, remove all negative information including the
suspension from my records, and reimbursement me for my
3-days. Mr. Dennis H. Smith has different policies for
minority and non-minority employees. (For example,
(non-minority) two employees were just recently removed from
their positions Chief of Staff Executive Assistant, and
Assistant to the Executive Assistant). One was given the
Neurology Business Management GS-13 position; and the other
one was given Quality Performance Management GS-13 position).
(Emphasis in original).
MSPB issued its “Initial Decision” on October 27,
2014 (ECF 16-9), dismissing the appeal for lack of
jurisdiction. Id. at 3-4. The Board explained that
it “does not have jurisdiction over suspensions of
fourteen days or less.” Id. at 4. The Initial
Decision noted that, generally, it would become final on
December 1, 2014, unless plaintiff filed a petition for
review by that date. Id. at 5. It also informed
plaintiff how to file such a petition. Id. at 5-8.
In addition, it outlined review by the EEOC and the process
for suit in federal court. Id. at 8-9.
December 30, 2014, plaintiff, through counsel, asked the EEOC
to review the MSPB decision. ECF 16-10 at 2-4. She asserted:
“Hostile Work Environment (Non-Sexual) based on Race
(African American/Black).” Id. at 2. Plaintiff
restated many of the allegations that she had previously
asserted regarding McCardell's abuse and mistreatment of
plaintiff and the hostile work environment. Id. at
2-3. Plaintiff also alleged that Director Smith stated:
“‘I do not care if Kathy McCardell is right or
wrong, I am going to stand in her corner.'”
Id. at 3. Further, she alleged, inter alia,
that on several occasions McCardell sent plaintiff to
Baltimore “at the last minute, ” knowing that
plaintiff had “assignments due that day.”
Id. She also alleged their use of racial epithets.
EEOC issued its Decision on August 13, 2015 (ECF 16-11),
denying plaintiff's petition. Id. It reasoned
that “it has no jurisdiction to review Petitioner's
petition.” Id. at 3. The Decision also stated,
id. at 4: “You have the right to file a civil
action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection
Board, within thirty (30) calendar days of the date that
you receive this decision.” (Emphasis added).
Certificate of Mailing attached to the Decision is
date-stamped August 13, 2015. Id. at 5. The
Certificate of Mailing states, id.: “[T]he
Commission will presume that this decision was received
within five (5) calendar days after it was mailed.”
However, Wongus claims that she did not receive her right to
sue letter from the EEOC until August 29, 2015. ECF 13 at 3.
Plaintiff filed suit in this Court on September 29, 2015,
thirty one days after she claims to have received the
Decision. ECF 1.
noted, plaintiff has twice amended her Complaint. First, she
filed an amended complaint on October 20, 2015. ECF 5.
Second, with permission of the Court, she again amended on
January 29, 2016. ECF 12; ECF 13. The Second Amended
Complaint sets forth two causes of action, one under Title
VII and the other under the ADEA. Id. at 1.
suit, plaintiff alleges that, on an unspecified date, the
Department refused to hire her “[w]ith the Anesthesia
Department as Management Analyst, GRECC as Grant Management,
National Compliance as Analyst.” ECF 13 at 2.
Furthermore, Wongus claims that the Department failed to
promote her on August 10, 2010, after she had worked in the
position for a year and yet “was not interviewed for
the job.” Id. Wongus also brings the lawsuit
for “defamation of character, reprisal, retaliation,
bullying, hostile working environment, prohibit personnel
practice, harassment, and intimidation.” Id.
(emphasis in original).
to Wongus, all of these actions were based on race and age.
See id. Moreover, she alleges “discriminatory
work practices” and states that “the Director
does not want to change Kathy McCardell behavior by enforcing
the policies (see attachments); and harassment and reprisal
because I filed a claim against Kathy.” ECF 13 at 2
(emphasis in original). The Second Amended Complaint seeks
back pay, reinstatement, monetary damages in the amount of
$200, 000, costs, attorneys' fees, injunctive relief, and
other relief. Id. at 3-4; see ECF 13-1 at
noted, on March 17, 2016, defendant filed a motion to dismiss
(ECF 16) for lack of jurisdiction, pursuant to Rule 12(b)(1),
and for failure to state a claim, pursuant to Rule 12(b)(6).
According to defendant, the Court lacks subject matter
jurisdiction because plaintiff failed to exhaust
administrative remedies concerning her Title VII and ADEA
claims. ECF 16-1 at 8. Defendant further states that, even if
plaintiff exhausted her administrative remedies, the Court
cannot consider her claims because they are untimely.
Id. at 13. Alternatively, the VA maintains that
dismissal is required, pursuant to Rule 12(b)(6), because
plaintiff has failed to state plausible claims for relief
under Title VII and the ADEA. Id. at 14-16.
Motion for Surreply
Motion for Surreply, plaintiff does not explicitly indicate
why a surreply is necessary or appropriate. See ECF
22. In opposing the Motion for Surreply, defendant asserts,
ECF 23 at 2: “The only issue addressed in
defendant's reply memorandum that was not specifically
discussed in its moving papers was in response to
plaintiff's suggestion that she exhausted her ADEA claims
through the ADEA's alternative statutory route . . .
.” Local Rule 105.2(a) provides that a party is not
permitted to file a surreply without permission of the court.
“Allowing a party to file a sur-reply is within the
Court's discretion, see Local Rule 105.2(a), but
they are generally disfavored.” EEOC v.
Freeman, 961 F.Supp.2d 783, 801 (D. Md. 2013),
aff'd in part, 778 F.3d 463 (4th Cir. 2015);
see also, e.g., Chubb & Son v. C & C
Complete Servs., LLC, 919 F.Supp.2d 666, 679
(D. Md. 2013). A surreply may be permitted when the party
opposing the underlying motion “would be unable to
contest matters presented to the court for the first time in
the [movant's] reply.” Clear Channel Outdoor,
Inc. v. Mayor & City Council of Baltimore, 22
F.Supp.3d 519, 529 (D. Md. 2014) (quotations and citations
omitted). Conversely, a surreply is not permitted when the
reply merely responds to an issue raised in the opposition to
the underlying motion. See Khoury v. Meserve, 268
F.Supp.2d 600, 605-06 (D. Md. 2003). In that posture, the
party had the opportunity to support its arguments in the
opposition to the underlying motion. Id. at 606.
first argument in her proposed Surreply is that she followed
the proper procedures for exhausting her administrative
remedies under the ADEA and filed a timely action in the
district court. ECF 22 at 3. In defendant's Motion,
defendant argued that plaintiff had failed to exhaust her
administrative remedies with respect to her Title VII and
ADEA claims. ECF 16 at 11-12. In her Opposition, plaintiff
stated that she was not required to exhaust her
administrative remedies with respect to her ADEA claim. ECF
18 at 6. In Reply, defendant asserted, for the first time,
that plaintiff failed to comply with the notice procedure for
filing an ADEA claim in federal court, pursuant to 29 U.S.C.
§ 633a. ECF 19 at 2.
the complicated nature of the statutory requirements and
administrative procedures, it is reasonable to permit
plaintiff the opportunity to respond, by way of her Surreply,
to defendant's argument regarding the notice requirement
of the ADEA, which was discussed by defendant for the first
time in the Reply. See ECF 19 at 2; ECF 23 at 2.
Accordingly, I shall grant the Motion for Surreply as to
Section A of plaintiff's proposed Surreply (ECF 22 at
is no need for the Surreply, however, as to the remaining
content. In plaintiff's second argument, she asserts
that, as to the EEO Complaint, she “had no knowledge of
what action the lawyer was taken [sic].” ECF 22 at 4.
However, defendant raised the voluntary dismissal of the EEO
Complaint as a central issue in the Motion. See ECF
16-1 at 10-11. And, plaintiff previously responded to this
argument. See ECF 18 at 6-7. The language in
plaintiff's Opposition is nearly identical to the
language she uses in her proposed Surreply. See ECF
18 at 6; ECF 22 at 5.
same can be said for plaintiff's third argument in her
proposed Surreply. There, plaintiff argues that she exhausted
administrative remedies related to her three-day suspension,
and that her claims arising from the suspension were timely
filed. ECF 22 at 6-7. Again, defendant specifically raised
these issues in the Motion (ECF 16-1 at 11-14) and plaintiff
previously responded to them. ECF 18 at 7-10. As to this
issue, the text of the proposed Surreply is virtually the
same as the text of the Opposition. See ECF 18 at
10; ECF 22 at 6.
final argument in her Surreply is that she has satisfied the
pleading requirements to survive a Rule 12(b)(6) challenge.
ECF 22 at 7-9. Plaintiff previously ...