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Boarman v. Berryhill

United States District Court, D. Maryland

April 2, 2018

SALLY BOARMAN
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         In this 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.[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.

         Defendant 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.[2] 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).

         No 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.

         I. Factual and Procedural Background[3]

         Since 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 relief. Id.

         During 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.

         In the 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 employees. Id.

         Greene 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 Affidavit).

         Greene 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.

         Ultimately, 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.

         Greene 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.

         On 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.[4] 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 I.[5]

         Much of 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.

         It is 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 Court.

         Defendant 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.

         II. Legal Standards

         As 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. Md. 2011).

         Generally, 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).

         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. 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.

         Summary 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).

         To 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 ...


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