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Polastre-Jackson v. Colvin

United States District Court, D. Maryland

December 15, 2017



          Ellen Lipton Hollander, United States District Judge.

         In this employment discrimination case, plaintiff Anie Polastre-Jackson filed suit against Carolyn W. Colvin, the Acting Commissioner of the Social Security Administration ("SSA"), alleging race discrimination, in violation of Title VII of the Civil Rights Act of 1964, codified, as amended, at 42 U.S.C. §§ 2000e, et seq. ("Title VII") (Count I); sex discrimination, in violation of Title VII (Count II)[1]; retaliation, in violation of Title VII (Count III); and age discrimination, in violation of the Age Discrimination in Employment Act of 1967, codified, as amended, at 29 U.S.C. §§621, et seq. (Count IV). ECF 1.

         Defendant has filed a pre-discovery motion to dismiss or, alternatively, for summary judgment. ECF 8. It is supported by a memorandum (ECF 8-2) (collectively, the "Motion") and multiple exhibits. ECF 8-4 through ECF 8-22; ECF 9-1. Plaintiff opposes the Motion (ECF 16), and has filed a supporting memorandum (ECF 16-1) (collectively, the "Opposition"). In the Opposition, plaintiff "voluntarily dismisses" her sex discrimination claim (Count II) and her age discrimination claim (Count IV). ECF 16-1 at 20. Therefore, only the race discrimination claim (Count I) and the retaliation claim (Count III) remain. Defendant has replied, ECF 21 ("Reply").

         Notably, plaintiff has not filed a Rule 56(d) affidavit opposing pre-discovery summary judgment. Rather, plaintiff argues that she has established "a prima facie case of retaliation and discrimination based upon race" and that "there are genuine disputes as to many material facts." ECF 16-1 at 5. Moreover, she relies on evidence submitted by defendant. See, e.g., ECF 16-1 at 3 (citing ECF 8-7 and ECF 8-12).

         The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105(6). For the reasons that follow, I shall construe defendant's Motion as one for summary judgment and I shall grant the Motion.

         I. Factual Summary

         Polastre-Jackson, an "Hispanic female", worked in SSA's Office of Telephone Services ("OTS") during the relevant time. ECF 1, ¶¶ 1, 6; ECF 8-2 at 4. From October 2012 to December 2013, and from February to September 2015, Mark Zarcone, the Supervisory Program Analyst-Center Director, served as plaintiffs direct supervisor. ECF 8-9 (Zarcone Affidavit), ¶¶ 1-2. During the relevant period, Cynthia Bennett was the Acting Associate Commissioner and plaintiffs "second-line supervisor." ECF 8-12 (Bennett Affidavit), ¶ 2. Zarcone and Bennett were aware that plaintiff is Hispanic because they had access to her personnel files and because plaintiff told them. ECF 16-1 at 2; ECF 8-7 (Plaintiffs EEO Investigative Affidavit) at 4.

         Prior to July 2015, plaintiff worked in OTS as a Branch Chief Supervisory Program Analyst, at a grade and salary of GS-14. ECF 1, ¶ 10; ECF 8-2 at 4; ECF 8-9, ¶ 2; ECF 8-12 ¶¶ 15-17. She was responsible, inter alia, for "analyzing and developing management information requirements and data for telephone service delivery"; providing "technical advice and guidance" and other "advisory services to various levels of Agency personnel"; developing plans in response to "proposed changes in policies"; and "assign[ing] work to subordinates based on priorities . . . ." See ECF 8-14 (Position Description for Branch Chief Supervisory Program Analyst) at 2-3.

         Beginning in July 2015, plaintiff worked a four-month detail in the Office of Earnings and International Operations ("OEIO"); where she was a Program Analyst. ECF 8-12, ¶¶ 12-13. Although she was a Program Analyst, rather than a Branch Chief Supervisory Program Analyst, her GS-14 grade remained unchanged. Id.

         On October 27, 2015, plaintiff and Bennett spoke about plaintiffs anticipated position following the OEIO detail. ECF 8-12, ¶ 17. Bennett told plaintiff she would be assigned to the office of the new Associate Commissioner and would report to Yvette Farmer, the Acting Deputy Associate Commissioner. Id. Plaintiffs title was to be that of Program Analyst, and she was to have the responsibilities of assisting Farmer "in preparing and coordinating confidential reports j and briefing materials, and to lead a variety of high-level projects." Id. As Program Analyst, plaintiff would also "assist the Senior Customer Contact Officer, Jay Garret, on high-level projects." Id. These projects included, Id. ¶ 20:

• Tele-Service Center Space Actions
• IRS/SSA Collaboration Activities
• Customer Service Representative Allocation Strategies
• Average Wait Time (ASA) Research Paper
• Deaf and Hard of Hearing Video Service Pilot

         Bennett believed plaintiffs reassignment was consistent with the SSA Personnel Policy Manual (the "Manual"). Id. ¶¶ 22-23. Specifically, Section 4.1 of the Manual explains that a "detailed employee is expected to return to his/her regular duties and/or duty station at the end of the detail." ECF 8-18 at 2. According to Bennett, plaintiff "was returned to her duty station (OTS) at the end of the detail." ECF 8-12, ¶ 22. Additionally, Bennett claims that she followed Section 5.6.1 of the Manual (id. ¶ 23), which states: "Management may direct the reassignment of employees to vacant continuing positions for which the employees qualify . . . ." ECF 8-19 (Personnel Policy Manual) at 3.

         Moreover, Bennett maintains that she followed Section 5.6.2 of the Manual (ECF 8-12, ¶ 23), which requires that a "decision to direct a reassignment must be bona fide and based upon legitimate management considerations that promote efficiency of the service. Reassignments may not be made to coerce employees into resigning or retiring." ECF 8-19 at 3. Specifically, Bennett avers that she reassigned plaintiff based on "work load priorities, available resources, and [plaintiffs] analytical skills and experience." ECF 8-12, ¶ 20. Further, Bennett based plaintiffs reassignment on the "immediate need for her strong analytical skills and abilities" in the office of the Deputy Associate Commissioner. Id.

         On both October 27, 2015, and November 3, 2015, plaintiff asked Bennett to reconsider the reassignment. Id. ¶ 21. According to Bennett, Polastre-Jackson claimed that the proposed reassignment was an act of retaliation and she threatened to obtain a lawyer if she was, in fact, reassigned. Id. Nonetheless, on November 8, 2015, plaintiff was reassigned as a Program Analyst in the office of the Acting Deputy Associate Commissioner. Her GS-14 grade and salary remained unchanged. ECF 8-13 (Notification of Personnel Action), ¶¶ 7, 15. Plaintiff states that her former Branch Chief Supervisory Program Analyst position was filled by an African American employee. ECF 8-7, ¶ 22.

         Approximately four months later, on March 21, 2016, plaintiff was again reassigned, but this time to the position of Acting Branch Chief for the OTS Planning Team ("Acting Branch Chief). ECF 8-7, ¶¶ 3, 36; ECF 8-12, ¶ 11. Again, plaintiff remained at the GS-14 level. ECF 8-12, ¶ 11. However, despite the title of Acting Branch Chief, plaintiff complains that her work space was a cubicle instead of an office. EOF 8-7, ¶ 36. And, plaintiff maintains that "all other Branch Chiefs and/or Acting Branch Chiefs" have offices. Id. Further, she contends that all "current Branch Chiefs/Acting Branch Chiefs are African-American." Id. Moreover, plaintiff suggests that the Acting Branch Chief position is not permanent. Id. at ¶ 37.

         Plaintiff alleges in her suit that she filed an Equal Employment Opportunity ("EEO") complaint in 2014. ECF 1, ¶ 15. The basis of that complaint, plaintiff asserts, was false and negative information contained in her Performance Assessment and Communications System j review ("PACS") for 2014. Id. The 2014 EEO complaint was resolved to plaintiffs satisfaction. ECF 8-12, ¶ 9.

         On October 29, 2015, plaintiff had a 75-minute meeting with Zarcone about the contents of her 2015 PACS. ECF 8-9, ¶¶ 10, 12. Zarcone was plaintiffs PACS "rating official." Id. ¶ 11. On November 16, 2015, eight days after plaintiffs reassignment to Program Analyst in the Office of the Acting Deputy Associate Commissioner, plaintiff received a copy of her 2015 PACS. ECF 8-22 (2015 PACS) at 4; ECF 8-9, ¶ 10. Plaintiff did not dispute its contents. ECF 8-9, ¶¶ 10-13, 19.

         According to Zarcone, the purpose of a PACS is to "highlight what the employee did well, and where they can improve." Id. ¶ 13. In addition to an employee's overall performance rating, a PACS includes an area for supervisors to write about an employee's "observed behaviors." Id. This portion of a PACS is designed to help employees improve their . performance to achieve a higher PACS rating in the next performance period. Id.

         In her 2015 PACS, plaintiff received an overall rating of 4 out of 5, which earned her a "summary appraisal" of "successful contribution." ECF 8-22 at 1; ECF 8-9, ¶ 13. There were six professional categories in which plaintiff was rated on a scale of 1 through 5, with 5 being the best. ECF 8-22 at 1. Plaintiff received a score of 5 in the categories of participation, achieving business results, and managing performance. Id. at 2-3. However, she received a score of 3 in interpersonal skills, demonstrating job knowledge, and demonstrating leadership. Id.

         In the portion of plaintiffs 2015 PACS for "observed behavior" relating to her "interpersonal skills, " Zarcone wrote, inter alia, that "it has been difficult to present a point of view or suggestion to [Polastre-Jackson] because [she] become[s] defensive when receiving feedback from peers and or management." Id. at 1. Further, Zarcone told plaintiff that "it is important to work through differences with others in an objective and constructive manner in order to achieve results." Id. He. noted that Polastre-Jackson is "enthusiastic and articulate" but that these qualities are "sometimes lost" when she does not "practice good listening skills or when [she] communicate[s] aggressively at a rapid pace, without thinking through [her] comments or response." Id. at 2; see also ECF 8-9, ¶¶ 12, 13. Zarcone "encourage[d] Polastre-Jackson to continue [her] growth and success ... by seeking out appropriate courses to help develop interpersonal skills . ..." ECF 8-22 at 2; see also ECF 8-9, ¶¶ 12, 13.

         Before Zarcone completed plaintiffs 2015 PACS, Zarcone had "multiple prior conversations with Ms. Polastre-Jackson regarding what we say and how we say it." ECF 8-9, ¶ 14. For example, during a mid-year review on April 30, 2015, he and plaintiff discussed ways to improve her interpersonal skills. Id. Additionally, they discussed critical feedback provided by other OTS Directors about Polastre-Jackson's interpersonal and team-work skills. Id. Further, they discussed plaintiffs tendency to "try to over talk the other person" when a difference of opinion arose, and how plaintiff often "continue[d] to argue her point for days." Id. ¶ 15.

         Moreover, Zarcone had previously instructed plaintiff not to spread rumors that one of her subordinates, Tiffany Thompson, had been fired from a former position. Id. In relation to a separate incident, Zarcone met with Thompson on or around May 4, 2015, to discuss a report Thompson had made against plaintiff about a confrontational meeting in which plaintiff criticized Thompson's office communications with Zarcone. Id. And, Bennett states that she and plaintiff discussed how plaintiffs subordinates expressed concern about plaintiffs management style and how plaintiff "tried to turn them against" Zarcone, who also supervised them. ECF8-12, ¶¶ 17, 20, 22.

         On April 6, 2016, plaintiff submitted an "EEO Investigative Affidavit" (ECF 8-7), claiming that she "truly believes that [her] prior EEO activity was a contributing factor to the negative and false remarks on . . . [her 2015] PACS, " which plaintiff believes were used by Zarcone and Bennett to "justify" removing her from the Branch Chief Supervisory Program Analyst position. Id. ¶ 25. Further, plaintiff alleged that Zarcone told her that he was "plotting against" several employees who complained about Zarcone to Bennett. Id. Plaintiff asserts that this "made [her] know that Mark Zarcone would retaliate against [her] for [her] prior EEO case against him." Id.

         Additional facts are included in the Discussion.

         II. Standard of Review

         As noted, defendant has moved to dismiss or, in the alternative, for summary judgment. ECF 8. A motion styled in the alternative, to dismiss or for summary judgment, implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept, Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court "is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, "the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). But when, as here, the movant expressly captions its motion "in the alternative, " as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court "does not have an obligation to notify parties of the obvious." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).

         A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C Alan Wright & Arthur Miller, et al., Federal Practice & Procedure § 1366 (3d ed.). This discretion "should be exercised with great caution and attention to the parties' procedural rights." Id. at 149. In general, courts are guided by whether consideration of extraneous material "is likely to facilitate the disposition of ...

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