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Bacchus v. Price

United States District Court, D. Maryland

July 25, 2018

THOMAS E. PRICE, Defendant.[1]



         Plaintiff Joycelyn Bacchus brings this action against Defendant Alex Azar, Secretary of the U.S. Department of Health and Human Services (“HHS”), alleging that her supervisors discriminated against her, created a hostile work environment, and retaliated against her in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., (“Title VII”). ECF No. 1. Now pending before the Court is Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. ECF No. 15. A Motion Hearing was held on June 6, 2018. For the following reasons, Defendant's Motion, construed as a Motion to Dismiss, is granted, in part, and denied, in part.

         I. BACKGROUND[2]

         Plaintiff Joycelyn Bacchus, who is originally from Guyana, began working at the HHS National Institute of Health (“NIH”) in 1986 as a level GS-3 clerk. ECF No. 1 ¶ 6. Over the next thirty years, Plaintiff was promoted up through the ranks of NIH, most recently to a level GS-13 Senior Contracting Officer in the Office of Logistics and Acquisitions Operations (“OLAO”) in July 2010. Id. ¶ 5.

         A. Discriminatory Non-Selection

         In February 2014, Plaintiff applied for a level GS-14 Supervisory Contract Specialist Position (“GS-14 Position”). Id. ¶ 12. Brian Goodger, Plaintiff's third-line supervisor and Associate Director of OLAO, was the selecting official for this position. Id. ¶ 13. As part of the application process, Plaintiff was initially interviewed by Carol Marcotte and Greg Holliday. Id. ¶ 14. In March 2014, Plaintiff was called to an interview with Goodger without advanced notice, which Plaintiff alleges was done to catch her “off guard” so she could not prepare for the interview. Id. ¶ 15. Plaintiff alleges that during the interview, Goodger did not discuss the position or Plaintiff's experiences and qualifications; rather, Goodger made “inappropriate and discriminatory remarks” about Plaintiffs country of origin. Id. ¶ 16-17. Specifically, Plaintiff alleges that Goodger asked Plaintiff to identify her country of origin and stated that she had a “language barrier.” Id. ¶¶ 17-18. According to Plaintiff, this was not the first time that Goodger stated that she had a “language barrier”-Goodger had previously made a similar comment during a one-on-one meeting when he had difficulty grasping Plaintiff's explanation of a contracting concept. Id. ¶ 19. Plaintiff asserts that she does not have any issues with her communication skills as she is a native English speaker (the national language of Guyana is English). Id. ¶ 20. Other than Goodger, Plaintiff alleges that nobody has ever complained about her language, accent, or communication issues.

         On April 29, 2014, Plaintiff learned that Goodger had selected Suzanne Cortes-Shrank for the GS-14 Position. Id. ¶ 23. Plaintiff alleges that she was more qualified than Cortes-Shrank but was never given a legitimate opportunity to compete for the position because Plaintiff's non- selection was motivated by her race and national origin. On June 13, 2014, Plaintiff contacted an NIH EEO counselor regarding the purported discriminatory non-selection. Id. ¶ 28.

         B. Initial Retaliation - Working Conditions and Transfers

         Following this initial contact, Plaintiff alleges that both Goodger and Carolyn Keeseman, Plaintiff's then first-line supervisor, retaliated against her. In late June 2014, Plaintiff met with Goodger to request a transfer to a different branch so that she could provide training to Contract Specialist Keith Savage. Id. ¶ 29. Goodger denied the request and, knowing that Plaintiff had just contacted the EEO, stated that Savage would not get the training “because he [separately] went to the EEO” and that Goodger did not like EEO cases or people who went to the EEO. Id. ¶ 30.

         Thereafter, Plaintiff alleges that Goodger directed Keeseman and other subordinates to take “hostile and aggressive actions” against her in retaliation for her EEO claim. Id. ¶ 31. Specifically, Plaintiff alleges that Goodger, along with Holliday, approached Savage and encouraged him to make negative comments about Plaintiff's performance in August 2014. Id. ¶ 38. Regarding Keeseman's conduct, Plaintiff alleges that Keeseman improperly questioned and complained about the quality of Plaintiff's work, id. ¶ 32; unjustifiably insinuated that she was not aware of what Plaintiff had been working on during the preceding months, id. ¶¶ 33-34; created a “false documentation file” containing purported examples of Plaintiff's poor work, id. ¶ 36; on June 16, 2014, and contrary to OLAO practice, denied Plaintiff's ad-hoc telework request while she was recuperating from surgery from June 23 to July 8, 2014, requiring Plaintiff to take sick leave for all but three days, id. ¶¶ 43, 45; denied Plaintiff's requested “flexi-tour” alternative work schedule that was otherwise allowed pursuant to agency policy, id. ¶ 47; on July 11, 2014, terminated Plaintiff's normal telework privileges that had been in place since February 2011, id. ¶ 49; and in June 2014, caused the lock to be changed on Plaintiff's office and, over the ensuing months, frequently entered the office when Plaintiff was out to take files without properly returning them or securing the office, id. ¶¶ 52-54.

         In November 2014, Plaintiff was transferred to a new supervisor, Danielle Sweeney, who was cold and abrasive towards Plaintiff and told Plaintiff that, according to Keeseman, Plaintiff was a “disgruntled” employee and, according to Goodger, Plaintiff was transferred because she “aired her dirty laundry.” Id. ¶ 58. Over the ensuing months and years, Plaintiff alleges that she was rotated to new managers and forced to change office locations on extremely short notice for no valid reason. Id. ¶ 60. Notably, Plaintiff alleges that she was forced to work in offices that exposed her to mold or was left without working telephones or computers for weeks at a time. Id. ¶ 61. Furthermore, in June 2016, Goodger removed several of Plaintiff's assigned contracts and rescinded her ability to sign contracts, which constituted a significant blow to Plaintiffs ability to advance within the agency. Id. ¶ 81.

         C. Subsequent Retaliation - Alleged Assault

         In August 2016, Goodger assigned Plaintiff to another supervisor, Zedekiah Worsham. Id. ¶ 63. On August 24, 2016, Plaintiff and Worsham got into a confrontation. Plaintiff alleges that Worsham came into her office, unjustifiably criticized its appearance, and “was so negative and hostile towards [Plaintiff] that she did not feel safe” and asked Worsham to leave. Id. ¶ 69. When Plaintiff went to report Worsham's conduct to Holliday, her second-line supervisor, she found Worsham standing outside Holliday's office. Id. ¶ 70. As Plaintiff attempted to enter, Worsham allegedly moved to block the doorway and “came into contact with [Plaintiff], including touching her breast.” Id. ¶ 71. While Plaintiff maintains that Worsham assaulted her, Plaintiff alleges that Worsham and other employees falsely reported that Plaintiff had in fact assaulted Worsham. Id. at ¶ 74. Two Montgomery County Police officers then appeared at Plaintiff's office but left after finding no basis for Worsham's allegations. Id.

         Thereafter, Goodger placed Plaintiff on a full-time telework schedule and prohibited her from returning to the office while the agency investigated the altercation. Id. ¶ 76. On January 14, 2017, Holliday proposed that Plaintiff receive a 14-day suspension without pay as a result of her involvement in the altercation, yet Plaintiff alleges that Defendant failed to conduct an appropriate investigation in accordance with agency policy and federal regulations. Id. ¶ 79.[3]Plaintiff was formally notified of the 14-day suspension on March 28, 2017, which began on April 2, 2017.

         D. EEO Filings[4]

         On July 17, 2014, Plaintiff filed a formal EEO complaint against HHS, alleging discriminatory non-selection and retaliation based on Keeseman's conduct through September 2014. ECF No. 15-2 (Report of Investigation, Case No. HHS-OD-075-14). Separately, on September 30, 2016, Plaintiff filed another formal complaint of discrimination and retaliation based on her treatment from November 2014 through August 2016. ECF No. 15-3 (Report of Investigation, Case No. HHS-NIH-OD-150-16). On June 2, 2017, Plaintiff commenced the subject action herein, bringing the following claims under Title VII: Discrimination (Count I); Hostile Work Environment (Count II); and Retaliatory Hostile Work Environment (Count III). ECF No. 1.[5]


         Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint for failure to state a claim upon which relief can be granted. To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible when “the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         In evaluating the sufficiency of Plaintiff's claims, the Court “must accept as true all of the factual allegations contained in the complaint” and “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations and internal quotation marks omitted). However, the complaint must contain more than “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement.” Nemet Chevrolet, Ltd v., Inc., 591 F.3d 250, 255 (4th Cir. 2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “Naked assertion, devoid of further factual enhancement” is also insufficient to survive a motion to dismiss. Id.

         Defendant's motion is styled as a motion to dismiss, or in the alternative, for summary judgment. A court considers only the pleadings when deciding a Rule 12(b)(6) motion. Where the parties present matters outside of the pleadings, and the Court considers those matters, the court will treat the motion as one for summary judgment. See Gadsby v. Grasmick, 109 F.3d 940, 949 (4th Cir. 1997); Mansfield v. Kerry, No. DKC-15-3693, 2016 WL 7383873, at *2 (D. Md. Dec. 21, 2016). All parties must be given some indication by the Court that it is treating a motion to dismiss as one for summary judgment, “with the consequent right in the opposing party to file counter affidavits or pursue reasonable discovery.” Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985).

         When the moving party styles its motion as a “Motion to Dismiss or, in the Alternative, for Summary Judgment, ” as in the case here, and attaches additional materials to its Motion, the non-moving party is, of course, aware that materials outside the pleadings are before the Court, and the Court can treat the motion as one for summary judgment. See Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “This standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Thus, “[t]he party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (quoting Fed.R.Civ.P. 56(e)) (alteration in original).

         While the Court may rule on a motion for summary judgment prior to commencement of discovery, see, e.g., Demery v. Extebank Deferred Compensation Plan (B), 216 F.3d 283, 286 (2d Cir. 2000), Federal Rule of Civil Procedure 56(d) “mandates that summary judgment be denied when the nonmovant has not had the opportunity to discover information that is essential to his opposition.” Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014) (internal citation and quotation marks omitted). “To obtain Rule 56(d) relief, the non-moving party bears the burden of showing how discovery could possibly create a genuine issue of material ...

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