United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
employment discrimination case, self-represented plaintiff
Sally Boarman, an employee of the Social Security
Administration (“SSA”), filed suit against
defendant Nancy A. Berryhill, the Acting Commissioner of SSA.
ECF 1. Plaintiff alleges that SSA retaliated
against her for filing a complaint in 1980 with the Equal
Employment Opportunity Commission (“EEOC”), by
way of excluding her from subsequent projects, training, and
promotions. Id. at 2.
has filed a prediscovery motion to dismiss under Fed.R.Civ.P.
12(b)(1) and 12(b)(6) or, in the alternative, for summary
judgment under Rule 56. ECF 10. It is supported by a
memorandum (ECF 10-1) (collectively, the
“Motion”) and multiple exhibits. The SSA argues,
inter alia, that most of plaintiff's claims are
barred by res judicata, and that summary judgment is
appropriate as to the one remaining claim, which concerns the
failure of SSA to select plaintiff for the position of a
Social Insurance Specialist. Id. Plaintiff opposes
the Motion (ECF 14; ECF 15) (collectively,
“Opposition”), and she submitted several
exhibits. Defendant replied. ECF 16. (“Reply”).
Plaintiff then filed a “Motion for Leave to File
Additional Exhibit” (ECF 17), which was granted.
See ECF 19 (Order); ECF 20 (exhibit).
hearing is necessary to resolve the Motion. See
Local Rule 105(6). For the reasons that follow, I shall
construe the Motion as one for summary judgment and grant it.
Factual and Procedural Background
1975, plaintiff has worked at SSA, in the office now known as
the Office of Quality Review. ECF 10-4 at 3. She alleges
that, over thirty years ago, she filed a charge with the EEOC
regarding harassment in the workplace. ECF 1 at 2. The EEOC
determined that plaintiff's supervisor had engaged in
harassing conduct, but also found that plaintiff had not been
the subject of discrimination and did not award her any
plaintiff's long tenure at the SSA, she was not selected
for various promotions. Id. However, in July 2015,
plaintiff received a promotion to GS-13, after many years as
a GS-12. ECF 14 at 3.
interim, on April 23, 2014, plaintiff applied for the
position of Social Security Specialist (the
“Position”), a GS-13 position. ECF 10-4 at 1, 5.
The selection official was Gary Greene, the Division
Director, who screened the candidates with Victoria Wolf, the
Program Manager. ECF 10-4 at 7. Out of more than 100
applicants, Greene and Wolf eventually selected five
finalists from their own staff, including plaintiff, along
with four “external” finalists who were also SSA
and Wolf did not interview the candidates from their own
staff. However, for the external finalists, they telephoned
references and conducted several interviews. Id.
Greene stated that they assessed a variety of criteria, and
that if candidates “had direct experience in one of
[SSA's] field offices, that was also a point in their
favor.” Id.; see also ECF 10-4 at
115-119 (Greene Affidavit). Wolf corroborated that assertion.
ECF 10-4 at 9; see also ECF 10-4 at 121-125 (Wolf
and Wolf ranked plaintiff fourth of the nine finalists.
Id. They believed plaintiff to have good potential
to perform well, and gave her a “bonus point because
she worked for them and knew the lay of the land.” ECF
10-4 at 8. However, she lacked field experience, which is
“a definite plus.” Id. Wolf stated:
“Being able to hire someone from a field site is
ideal.” Id. at 9.
Greene and Wolf offered the Position to one of the external
candidates, Cyndi Ikenaga, an employee of the Los Angeles
satellite branch of the San Francisco field site. ECF 10-4 at
7. Ikenaga had good references, “the ability to do the
job . . . on day one, ” and she was a “subject
expert/program expert” who also had managerial
experience. Id. at 8.
emailed plaintiff on August 28, 2014, to inform her that she
had not been selected for the Position. ECF 10-4 at 51.
Plaintiff contacted the EEOC office on September 15, 2014, to
initiate a pre-complaint. ECF 10-4 at 23. She alleged that
she had been discriminated against based on her race (white),
age (70), and sex (female), and had been retaliated against
for her prior EEOC activity. Id. After mediation
failed, plaintiff filed a formal EEOC charge on December 31,
2014. ECF 10-4 at 13-14. SSA issued a Final Agency Decision
on January 27, 2017, finding that SSA did not discriminate
against plaintiff based on race, sex, or age and did not
retaliate for her prior complaints. ECF 10-5.
December 29, 2014, about a month before the Final Agency
Decision was issued, plaintiff filed a lawsuit in this Court,
alleging that she had been subjected to retaliation for over
thirty years as a result of her EEOC complaint in 1980.
See Boarman v. Colvin, GLR-14-4028 (“Lawsuit
I”), ECF 1. On October 28, 2015, United States
District Judge George L. Russell, III granted SSA's
motion to dismiss Lawsuit I, with prejudice, stating:
“Because Boarman alleges the EEOC ruled on her charge
over thirty years ago, Boarman did not file the instant
retaliation claim within the ninety-day limitations
period.” Lawsuit I, ECF 14 at 2. Plaintiff filed a
motion for reconsideration (id., ECF 16), but that
motion was denied. Id., ECF 17. It does not appear
that plaintiff appealed the dismissal of Lawsuit
the evidence plaintiff submits to this Court confirms her
contention that she was a good, well-respected employee whose
ideas have been valuable to her office over the course of her
long career. ECF 14-3; ECF 14-5; ECF 17. SSA does not dispute
this view, and seems to agree that plaintiff was a very good
candidate for the Position, although she was not ultimately
selected. ECF 10-4 at 8.
from this procedural posture that plaintiff filed the pending
action in this Court on April 28, 2017. See ECF 1.
In the instant action, both in her Complaint and in her
Opposition to the Motion, plaintiff focuses exclusively on
her retaliation claim. ECF 1, ECF 14. Even construing her
Complaint liberally, it is clear that plaintiff has not
asserted claims of race, age, or sex discrimination in this
has moved to dismiss or, in the alternative, for summary
judgment on two grounds: (1) most of plaintiff's claims
are barred by res judicata because they were decided by Judge
Russell in Lawsuit I; and (2) plaintiff's claim regarding
her non-selection for the position of Social Security
Insurance Specialist in 2014 lacks merit. ECF 10-1. I agree
with both contentions.
noted, defendant has moved to dismiss or, in the alternative,
for summary judgment. ECF 10. 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.
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 has discretion to 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. In
general, courts are guided by whether consideration of
extraneous material “is likely to facilitate the
disposition of the action, ” and “whether
discovery prior to the utilization of the summary judgment
procedure” is necessary. Id.
judgment ordinarily is inappropriate “where the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448-49 (4th Cir. 2011); see
Putney v. Likin, 656 Fed.Appx. 632, 638-640 (4th Cir.
2016) (per curiam); McCray v. Maryland Dep't of
Transp., 741 F.3d 480, 483 (4th Cir. 2014). However,
“the party opposing summary judgment ‘cannot
complain that summary judgment was granted without discovery
unless that party has made an attempt to oppose the motion on
the grounds that more time was needed for
discovery.'” Harrods Ltd. v. Sixty Internet
Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting
Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)); see also Dave &
Buster's, Inc. v. White Flint Mall, LLP, 616
Fed.Appx. 552, 561 (4th Cir. 2015).
raise adequately the issue that discovery is needed, the
nonmovant typically must file an affidavit or declaration
pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why,
“for specified reasons, it cannot present facts
essential to justify its opposition, ” without needed
discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d
at 244-45 (discussing the affidavit requirement of former
Rule 56(f)). If a nonmoving party believes that further
discovery is necessary before consideration of summary
judgment, the party who fails to file a Rule 56(d) affidavit
does so at her peril, because “‘the failure to
file an affidavit ... is itself sufficient grounds to reject
a claim that the opportunity for discovery was
inadequate.'” Harrods, 302 F.3d at 244
(quoting Evans, 80 F.3d at 961); see ...