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Diggs v. Kelly

United States District Court, D. Maryland

March 23, 2017

BEVERLY DIGGS, Pro Se Plaintiff
v.
JOHN KELLY, SECRETARY OF U.S. DEPARTMENT OF HOMELAND SECURITY Defendant

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

         Pro Se plaintiff Beverly Diggs brings suit against John Kelly, Secretary of the U.S. Department of Homeland Security, [1] 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”);[2] 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.

         Secretary 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 VII.

         I. FACTUAL AND PROCEDURAL HISTORY

         Diggs 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.

         In 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.

         On July 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.

         In 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.

         In her 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.

         The 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.

         Diggs filed the present suit on August 11, 2015.

         II. MOTION TO DISMISS

         Kelly 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.

         a. Failure to Exhaust Administrative Remedies

         A party 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).

         Before 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 at 5.

         The 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 jurisdiction.

         b. Timeliness of Title VII Claims

         A 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).

         In this 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.[3] 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.

         Diggs filed her appeal on August 11, 2015, 91 days after she was to have received her decision from the EEOC. ECF No. 1.

         The Court will assume, without deciding, that equitable tolling is appropriate in this case and that Diggs' filing in this Court was timely.

         c. Timeliness of FMLA Claims

         Kelly argues that Diggs' claim for relief under the FMLA is plainly untimely.[4] 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, ...


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