United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE
Se plaintiff Beverly Diggs brings suit against John
Kelly, Secretary of the U.S. Department of Homeland Security,
alleging violations of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e, et
seq. (“Title VII”); the Rehabilitation Act
of 1973, 29 U.S.C. §§ 701 et seq.
(“RA”); and the Family and Medical Leave Act, 29
U.S.C. §§ 2601 et seq.
(“FMLA”); in connection with her employment at
the Federal Emergency Management Agency (“FEMA”),
a division of the U.S. Department of Homeland Security. Diggs
alleges that she was discriminated against in various ways in
her employment as a result of her race (African-American),
sex (female), and disability (ankle injury), and that she
suffered harassment (non-sexual), and was retaliated against
as a result of having complained of discrimination.
Kelly has filed a Motion to Dismiss, or in the Alternative,
for Summary Judgment. ECF No 12. For the reasons that follow,
Kelly's Motion to Dismiss, will be GRANTED with respect
to Diggs' claims of race discrimination, sex
discrimination and harassment under Title VII, her claims
under the FMLA, and her claims under the RA. Kelly's
Motion for Summary Judgment, will be GRANTED with respect to
Diggs' retaliation claims under Title
FACTUAL AND PROCEDURAL HISTORY
began work as a Duplicate Mail Operator at FEMA's
National Processing Services Center (“NPSC”) in
Hyattsville, Maryland in October 1999. ECF No. 12-2 at 85. In
April 2006, she suffered an injury at work when she tripped
in the mail room and injured her ankle. ECF No. 12-2 at 76.
According to Diggs, her request for leave to obtain surgery
was denied, as was her request for leave under the FMLA. ECF
No. 1 at 3. She also filed a claim for workers compensation
with the U.S. Department of Labor as a result of the
accident. ECF No. 12-4 at 24.
2008, FEMA began the process of transferring its mail room
operations to a private sector company and offered its
employees the option of transferring to a Human Services
Specialist position, resigning, or being terminated. ECF No.
12-5 at 242-43. In May 2008, Diggs, along with three others,
transferred. ECF No. 12-2 at 91. Her pay and work hours
remained the same after the transfer. ECF No. 12-4 at 130.
14, 2008, Diggs filed a complaint with the EEOC
(“Complaint 1”) citing five incidents between
March and May 2008 that purportedly took place
before her transfer. See ECF No. 12-2 at
23. She alleged that (1) her first-line supervisor denied her
training that would have allowed her to track the flow of
mail on a spreadsheet, a function then allegedly performed by
two of Diggs' colleagues, (2) her first-line supervisor
added comments to her leave slips, (3) her first and
third-line supervisors transferred her, (4) her first line
supervisor impersonated her and called the Office of
Workers' Compensation Programs at the U.S. Department of
Labor to inquire about her disability, and (5) someone
misappropriated her identity in order to attend a training
event. ECF No. 1-2 at 2-3.
August 2008, Diggs met with a representative of the Equal
Employment Opportunity office at FEMA about further
occurrences that purportedly took place after her
transfer. ECF No. 12-3 at 47. On March 18, 2009, she filed a
second complaint (“Complaint 2”), which she
subsequently amended in June 2009 and October 2009, alleging
ten additional instances of discrimination, harassment, or
reprisal. Id. at 67-70. These pertained to (1)
remedial actions related to her attendance at work, including
instances where her managers supposedly inappropriately
charged her with being Absent Without Leave
(“AWOL”), extended a leave restriction and issued
verbal and written warnings about her tardiness; (2)
suspended her for inappropriate conduct in August 2008; and
(3) ultimately, on June 2, 2009, terminated her employment
for failure to follow directions. ECF No. 1-2 at 3-4. Diggs
also alleged generalized harassment and retaliation beginning
in or around February 2009. Id. at 4.
Notice of Termination, Josephine Elliott, Diggs'
supervisor, charged Diggs with failure to follow
instructions, citing four incidents when she refused to meet
with managers, left meetings early, or raised her voice at
managers or colleagues. ECF No. 12-3 at 656-57. The Notice
also cited previous warnings to Diggs and previous
reprimands, finding Diggs' behavior to be in violation of
the Standards of Conduct for Federal Employees as well the
NPSC Employee Handbook. Id. at 657.
Equal Employment Opportunity office at FEMA investigated
Diggs' Complaints 1 and 2 separately and sent reports of
its investigations to Diggs. Diggs timely requested a hearing
before an Equal Employment Opportunity Commission
(“EEOC”) Administrative Law Judge
(“ALJ”), who consolidated and heard the two
cases, ECF No 1-2 at 5, and eventually found that Diggs had
failed to prove that Kelly (i.e. his subordinates) had, in
any way, subjected her to illegal discrimination, ECF No. 1-2
at 5. On May 7, 2015, the EEOC issued a final order adopting
the ALJ's findings. Id.
filed the present suit on August 11, 2015.
MOTION TO DISMISS
argues first that Diggs' lawsuit should be dismissed
because (a) Diggs failed to exhaust her administrative
remedies, (b) the suit was not timely filed, (c) the claims
under the FMLA are time-barred, and (d) Diggs has failed to
state a claim with respect to her claims of race
discrimination, sex discrimination and hostile work
environment under Title VII or disability discrimination
under the RA.
Failure to Exhaust Administrative Remedies
claiming discrimination in employment is required to have
exhausted her administrative remedies pursuant to Title VII
in order for the court to have subject matter jurisdiction
over the claims on appeal from the EEOC. 42 U.S.C. §
2000e-16(c). See Labor v. Harvey, 438 F.3d 404, 415
(4th Cir. 2006). On appeal, the party may advance claims that
are “broader than the language of the EEOC charge
[only] [i]f a plaintiff's claims in her judicial
complaint are reasonably related to her EEOC charge and can
be expected to follow from a reasonable administrative
investigation.” Smith v. First Union Nat'l
Bank, 202 F.3d 234, 247 (4th Cir. 2000).
the Court, Diggs brings several new claims that were not
presented to the EEOC, including claims that (1) she was
promised a promotion to an GS-7 position when she was
transferred, but never received it, (2) management ridiculed
her speech during a training event, and (3) she was unable to
cooperate with the EEO investigator with respect to Complaint
1 because she had recently had a mild heart attack. ECF No. 1
Court finds these claims to be insufficiently related to the
claims that were before the EEOC and will therefore
DISMISS them for lack of subject matter
Timeliness of Title VII Claims
complainant has ninety days to file suit in Federal court
after receiving notice of her right to sue from the EEOC. 42
U.S.C. § 2000e-5(f)(1). The Fourth Circuit has adopted a
“flexible rule” allowing courts to determine that
equitable tolling is appropriate if there was “not
sufficient time within which” the plaintiff could file
a lawsuit in Federal court before the ninety day limit
expired. Harvey v. City of New Bern Police
Dep't., 813 F.2d 652, 654 (4th Cir. 1987).
case, the EEOC's decision was dated May 7, 2015, and the
certificate of service indicates that it was mailed that same
day. ECF No. 1-2 at 7, 8. The certificate of service also
contains the following notation: “For timeliness
purposes, the Commission will presume that this decision was
received within five (5) calendar days after it was
mailed.” ECF No. 1-2 at 8. The ninety day period for
Diggs to file her federal lawsuit, then, would presumably
have begun on May 12, 2015 and ended on August 10, 2015.
filed her appeal on August 11, 2015, 91 days after she was to
have received her decision from the EEOC. ECF No. 1.
Court will assume, without deciding, that equitable tolling
is appropriate in this case and that Diggs' filing in
this Court was timely.
Timeliness of FMLA Claims
argues that Diggs' claim for relief under the FMLA is
plainly untimely. The statute of limitations for a violation
of the FMLA is two years “after the date of the last
event constituting the alleged violation for which the action
is brought, ” unless the violation was willful, ...