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Lee v. Mattis

United States District Court, D. Maryland

July 17, 2018

NANCY LEE, Plaintiff,
v.
JAMES N. MATTIS, et al., Defendants.

          MEMORANDUM OPINION

          PAULA XINIS UNITED STATES DISTRICT JUDGE

         Pending in this employment discrimination case is a motion for partial dismissal of the complaint filed by Defendant The Geneva Foundation at WRNMMC (“Geneva”), ECF No. 24, a motion to dismiss the complaint filed by Defendant The Henry M. Jackson Foundation for the Advancement of Military Medicine[1] (“HJF”), ECF No. 18, and a motion to dismiss the complaint, or in the alternative, for summary judgment filed by Defendant James N. Mattis (“the Department of Defense” or “DOD”), ECF No. 37. The issues have been fully briefed, and the Court now rules because no hearing is necessary. For the reasons stated below, Geneva's motion to dismiss is GRANTED in part and DENIED in part, HJF's motion to dismiss is GRANTED in part and DENIED in part, and DOD's motion to dismiss or for summary judgment is GRANTED.

         I. BACKGROUND

         Plaintiff Nancy Lee (“Lee”) was hired as a Research Coordinator for The Geneva Foundation at WRNMMC (“Geneva”) on or about March 5, 2013. ECF No. 1 at ¶ 8. On January 15, 2014, Lee was promoted to the position of Research Associate, a position she held through her termination on January 28, 2016. ECF No. 1. at ¶¶ 8, 10. Lee is an Asian female. ECF No. 1 at ¶¶ 6-7.

         Lee alleges that all Defendants maintain a joint employment relationship with respect to her position. ECF No. 1. at ¶ 9. Defendant James A. Mattis (“the Department of Defense” or “DOD”)[2] operates Walter Reed National Military Medical Center (“WRNMMC”), and Defendants Geneva and The Henry Jackson Foundation (“HJF”) contract with DOD to conduct research at WRNMMC. Lee asserts that Defendants jointly controlled the essential terms and conditions of Lee's employment, including her duties, priorities, and performance. ECF No. 1 at ¶ 9. For example, at the time of her termination, Lee identifies her immediate supervisors as Xochitl Ceniceros (“Ceniceros”), the Project Manager for Geneva, Christian Walker (“Walker”), Project Manager for HJF, and Dr. Leon Nesti (“Nesti”), the Principal Investigator for the U.S. Army. ECF No. 1 at ¶ 10. Ceniceros, Walker, and Nesti are Caucasian. ECF No. 1 at ¶ 10.

         On or about September 30, 2015, Walker became Lee's immediate supervisor. ECF No. 15. Lee asserts that shortly thereafter, Walker began “harassing” Lee with numerous phone calls, emails, and text messages and “an unreasonable workload and deadlines.” ECF No. 1 at ¶ 15. Walker also forbade Lee from taking any time off work, including paid time off, and required Lee to work “an excessive amount of overtime.” ECF No. 1 at ¶ 17. Lee further alleges that similarly situated employees, including her counterpart at HJF, Carlos Morales, [3] were “not held to the same terms and conditions of employment;” nor did they receive “abnormally frequent” communications from Walker. ECF No. 1 at ¶ 15.

         On December 4 and 17, 2015, Lee complained via email to Linzie Wagner, a Caucasion female working for Geneva, about Walker's abusive treatment. ECF No.1 at ¶ 18. Lee explained to Wagner that Walker was treating others, such as Morales, more favorably. ECF No. 1 at ¶ 19. Lee was advised to speak directly with Walker about her concerns. ECF No. 1 at ¶ 21. Shortly thereafter, Walker was removed as Lee's supervisor, and Lee was thereafter supervised by Ceniceros, a Caucasian female. ECF No. 1 at ¶¶ 10, 22-23. Lee alleges that despite the apparent change in supervision, Lee actually still had to report to Walker and that Walker's harassing behavior continued. ECF No. 1 at ¶¶ 23-27.

         Lee reported Walker's continued mistreatment to Geneva employees Wagner, Ceniceros, and Melissa Hajjar (“Hajjar”). ECF No. 1 at ¶ 28. Although several conference calls were scheduled to address Lee's concerns, all were ultimately cancelled. ECF No. 1 at ¶ 28.

         At or around January 11, 2016, Walker stripped Lee of certain job duties, impeding her work performance. Specifically, Walker replaced Lee with Sara Salkind - a Caucasian, female contract employee for Geneva - to handle all communications between Geneva and the Internal Review Board (“IRB”). ECF No. 1 at ¶¶ 29-30.

         On January 14, 2016, Lee complained to Robert Anderson, a DOD Non-Commissioned Officer in Charge, about Walker's discriminatory conduct. ECF No. 1 at ¶ 32. Anderson directed Lee to DOD's EEO office, among other persons designated to receive EEO complaints. ECF No. 1 at ¶ 32. On January 15 and 19, Lee forwarded Walker's communications to a number of employees, including Wagner, Hajjar, and Ceniceros (Geneva employees) and Tigiste Girma and Lisa Weiner (employer not identified in the Complaint). ECF No. 1 at ¶ ¶ 33-34. Lee also complained to Wagner, once again, on January 21, 2016, about Walker's discriminatory treatment. Seven days later, Lee was terminated for “performance issues.” ECF No. 1 at ¶ 36. Prior to her termination, Lee had not received notice of her purported poor performance. ECF No. 1 at ¶ 36. A Caucasian woman, Kelly Hummer, replaced Lee. ECF No. 1 at ¶ 37.

         After her termination, Lee received a letter from the Office of the Assistant Secretary of Defense Health Affairs dated February 26, 2016, noting deadlines for filing a formal EEOC complaint. ECF No. 1 at ¶ 38. While the letter was addressed to Lee, its contents made plain that the letter was not meant for her. The letter mischaracterized aspects of Lee's complaints and termination, as well as included clear errors in milestone dates. The letter incorrectly stated that Lee first contacted the EEO on July 22, 2015, and participated in “a final counseling interview [on August 9, 2015] . . . in connection with the claims [she] presented during the pre-complaint intake interview to [Dennis Redic].” ECF No. 1 at ¶ 38. In fact, Lee had not contacted anyone at EEO in July or August of 2015. ECF No. 1 at ¶ 38. Lee took no further action on her EEO complaint against DOD prior to retaining counsel, and the complaint was dismissed as a result. ECF No. 1 at ¶ 38.

         On October 18, 2016, the EEO granted Lee permission to reopen the matter; however, DOD reserved its right to raise the timeliness of Lee's formal complaint as a defense to the claims. Lee timely filed a new complaint. ECF No. 1 at ¶ 39. On August 9, 2017, the EEOC issued a decision notifying Lee of her right to sue. ECF No. 1 at ¶ 40.

         Lee also submitted formal complaints against Geneva and HJF with appropriate equivalent state and local commissions. Specifically, Lee filed a preliminary questionnaire with the Maryland Commission on Civil Rights (“MCCR”) against Geneva on July 22, 2016. ECF No. 32-2. She then filed a Formal Charge of Discrimination on October 7, 2016, which was forwarded to the EEOC on December 15, 2016. ECF No. 32-3. Lee also filed a Charge of Discrimination against HJF with the Montgomery County, Maryland, Office of Human Rights (“MCMOHR”) on April 5, 2017, which was forwarded to the EEOC on May 5, 2017. ECF No. 18-2. Lee thereafter filed this case against Defendants, alleging race and gender discrimination claims for disparate treatment, hostile work environment, retaliation, and wrongful termination. See generally ECF No. 1.

         II. ANALYSIS

         a. The DOD Motion

         DOD asserts that all claims against it must be dismissed because Lee failed to exhaust administrative remedies. The Court agrees. Federal employees complaining of discrimination are required to initiate contact with an EEO counselor within 45 days of the alleged discriminatory act, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). To “initiate contact” under 29 C.F.R. § 1614.105(a)(1), an employee must contact an agency official logically connected with the EEO process, exhibit an intent to begin the EEO process, and allege that an incident in question involves discrimination. Pueschel v. Veneman, 185 F.Supp.2d 566, 569-70 (D. Md. 2002). The regulations further require that upon completion of the informal complaint process, the employee must file a formal complaint within fifteen calendar days of receiving a Notice of Right to File a Formal Complaint of Discrimination. 29 C.F.R. § 1614.106(b).

         Although a plaintiff's failure to make contact with the EEO within these time periods is “tantamount to failure to timely exhaust all administrative remedies, ” this Court has held that it is not a “jurisdictional requirement and may be subject to the doctrine of equitable estoppel.” See Blount v. Thompson, 400 F.Supp.2d 838, 841 (D. Md. 2004), aff'd sub nom. 122 Fed.Appx. 64 (4th Cir. 2005) (citing Zorgafov v. Va. Med. Ctr., 779 F.2d 967, 969 (4th Cir. 1985). “However, the Government will only be estopped from asserting the time limit as a defense if plaintiff provides proof of affirmative misconduct on the part of the agency which prevented an employee from timely filing a complaint.” Id. (citing Zografov, 779 F.2d at 969).

         DOD now seeks dismissal because Lee failed to contact the EEO within the forty-five and fifteen day windows following her termination. ECF No. 37-1 at 10-12. Lee does not dispute that she was terminated on January 28, 2016, and that she did not make “initial contact” with DOD's EEO office until November 2, 2016, and filed her Formal Complaint on December 19, 2016, well beyond the regulations' deadlines. See ECF No. 1 at ¶ 5. Instead, Lee contends that her January 28, 2016 communication with an EEO counselor suffices to demonstrate that she intended to initiate formal EEO action. Alternatively, Lee argues that equitable estoppel bars dismissal. See ECF Nos. 1 at ¶ 38; 41-1 at 4, 9; 41-3; 41-4.

         At the outset, the Court recognizes that the parties rely extensively on evidence that goes beyond the four corners of the Complaint on this point. See ECF No. 37-1 & 41. The Court retains “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.” Kelly v. Lease, No. RDB-16-3294, 2017 WL 2377795, at *1 (D. Md. May 31, 2017) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2004, 2011 Supp.)); accord Sager v. Hous. Comm'n of Anne Arundel Cty., 855 F.Supp.2d 524, 542 (D. Md. 2012). This discretion “should be exercised with great caution and attention to the parties' procedural rights.” Id.

         Lee also urges the Court, by way of an affidavit submitted under Rule 56(d) of the Federal Rules of Civil Procedure, to allow further discovery prior to resolving DOD's motion. A Rule 56(d) affidavit affords the non-movant an opportunity to demonstrate “ ‘that, for specified reasons, [she] cannot present facts essential to justify [her] opposition.' ” Carter-El v. Oakley, No. JFM-14-2545, 2015 WL 7012708, at *6 (D. Md. Nov. 10, 2015) (quoting Fed.R.Civ.P. 56(d)). A “non-movant must provide a ‘reasonable basis to suggest that [the requested] discovery would reveal triable issues of fact,' ” Agelli v. Sebelius, No. DKC-13-497, 2014 WL 347630, at *9-*11 (D. Md. Jan. 30, 2014) (quoting McWay v. LaHood, 269 F.R.D. 35, 38 (D.D.C. 2010). Rule 56(d) is not a vehicle to “authorize ‘fishing expeditions.' ” Morrow v. Fareell, 187 F.Supp.2d 548, 551 (D. Md. 2002), aff'd 50 Fed.Appx. 179 (4th Cir. 2002). Consequently, a court may properly deny a Rule 56(d) request “ ‘where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.' ” Polastre-Jackson v. Colvin, No. ELH-17-228, 2017 WL 6501800, at *5 (D. Md. Dec. 15, 2017) (quoting Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995)).

         Lee's Rule 56(d) submissions are at best conclusory and do not provide sufficient factual basis necessary to convince this Court that discovery would materially affect the outcome of DOD's motion. Lee proffers only that discovery would show she “made contact in a timely manner” and “took reasonable steps to exhaust her administrative remedies . . . [and] follow through with her administrative claim.” ECF No. 41-4 at ¶¶ 6-7. As to timely contact, Lee does not proffer what additional facts would demonstrate that she made contact with the EEOC after her January 28, 2016 communication. See ECF No. 41-1, 41-3, 41-4. Rather, based on the EEOC documents provided thus far, Lee initially communicated to the EEOC that she wished to “make a complaint of discrimination” and “request[] counseling in an attempt to resolve her issue.” See Lee Affidavit, ECF Nos. 41-3 at ¶¶ 12-13 & 37-2 at 6. EEOC Counselor, Dennis Redic, then contacted Lee, to which Lee responded by email that she wished to “discuss things further, ” and then failed to make any contact with the EEOC. Redic repeatedly tried to reach Lee to initiate the EEOC process. ECF Nos. 41-3 at ¶ 13; 37-1, Exs. 2, 5; 37-2. Redic also informed Lee that absent further action on her part, the EEO would formally close her case on March 1, 2016. ECF No. 37-1, Ex. 4. Lee made no contact thereafter.

         Likewise, Lee has proffered no facts obtainable in discovery that would show she “took reasonable steps” to exhaust her claim. Against the documentary evidence thus far submitted, it appears that Lee took no steps to exhaust her claim. Lee, as the claimant, would be in the best position to affirm in her affidavit what other steps she took. That her ...


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