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Wongus v. McDonald

United States District Court, D. Maryland

November 23, 2016

ELAINE Q. WONGUS, Plaintiff,
v.
Robert McDonald, Secretary, Department of Veterans Affairs, Defendant.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         Elaine 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.

         Plaintiff 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”);[1] 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;[2] 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).

         In her 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.[3] 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.

         Defendant 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 “Reply”).

         In 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.

         The 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.

         I. Factual and Procedural History

         The 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.

         A.

         On 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.”[4] 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.

         On 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.

         According 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.

         Upon 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.

         On 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.” Id.

         B.

         On 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.[5] The Memorandum stated, id. at 2:

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 instructions.
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).[6]

         The 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 “Director.” Id.[7]

         On 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.

         On March 13, 2014, the Union filed a “Step 3 Grievance” (the “Grievance”) on plaintiff's behalf, challenging her suspension. ECF 16-7.[8] The Grievance disputed both charges cited by the Director in issuing the suspension. Id. at 5-7.

         As to 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.

         Through 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 century.
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).

         The 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.

         On 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. Id.

         The 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).

         The 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.

         As 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.

         In her 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).

         According 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 1-3.

         As 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.

         II. Motion for Surreply

         In her 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.

         Plaintiff's 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.

         Given 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 3-4).

         There 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.

         The 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.

         Plaintiff's 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 ...


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