United States District Court, D. Maryland
J. HAZEL UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
Initial Retaliation - Working Conditions and
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.
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.
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.
Subsequent Retaliation - Alleged Assault
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.
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.Plaintiff was formally notified of the
14-day suspension on March 28, 2017, which began on April 2,
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.
STANDARD OF REVIEW
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.”
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. Consumeraffairs.com, 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.
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).
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).
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 ...