United States District Court, D. Maryland
Lipton Hollander, United States District Judge.
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); 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.
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").
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
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.
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.
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.
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.
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
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.
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.
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, ¶
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.
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,
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.
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.
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.
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.
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.
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.
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.
facts are included in the Discussion.
Standard of Review
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).
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 ...