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Fletcher v. Ross

United States District Court, D. Maryland

November 16, 2018

WILBUR L. ROSS, Defendant.



         Plaintiff Sonya Fletcher has filed a civil action alleging race and color discrimination and unlawful retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2012), during her employment in the Office of the General Counsel of the National Oceanic and Atmospheric Administration ("NOAA"), a federal agency within the United States Department of Commerce. Presently pending before the Court is a Partial Motion to Dismiss filed by Defendant Wilbur L. Ross, the Secretary of Commerce ("Commerce"). Upon review of the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Motion is GRANTED IN PART and DENIED IN PART.


         I. Employment History

         In June 2001, Fletcher, an African American with a dark complexion, began work as a secretary in NOAA's Office of the General Counsel for Fisheries/Financial Programs. Fletcher, whose position was at the GS-6 level, shared duties with another secretary, Evangeline Davis, a light-skinned African American who was at the GS-8 level. In 2004, Leila Afzal, who is white, became Deputy Assistant General Counsel for Fisheries and Fletcher's first-level supervisor. Afzal treated Davis more favorably than Fletcher and helped Davis pursue her career goals at Fletcher's expense. When Fletcher sought to discuss career advancement, Afzal falsely told her that she had no promotion potential to GS-7, emphasizing that Fletcher's duties were clerical and did not require thought, even though Fletcher's duties including managing the budget, training, and procurement. Although Afzal refused to assist Fletcher in obtaining a promotion, she helped Davis secure a promotion to GS-9 by falsely stating that Davis performed duties actually conducted by Fletcher. Fletcher initiated Equal Employment Opportunity ("EEO") activity with the agency's EEO Office but resolved the matter in 2004 through mediation and thus did not file a formal complaint.

         In 2006, Afzal reassigned duties from Fletcher to Davis, including work relating to the budget, training, and procurement, and transferred other duties from Davis to Fletcher, including those relating to the file room and the law library. She continued to tell Fletcher that she lacked promotion potential because she performed only clerical tasks, despite Fletcher's responsibility over many functions. In her October 2009 performance evaluation, Fletcher discussed promotion with Afzal and her second-level supervisor, Assistant General Counsel Adam Issenberg, who stated that they would be willing to create a plan for her promotion within a year. At the end of 2009, however, Fletcher was the only employee supervised by Afzal who was denied a year-end performance award. Although Fletcher reached out to Issenberg and Afzal about a promotion on additional occasions, Afzal refused to assist Fletcher. Rather, during the same time period, she helped Davis achieve a promotion to GS-11/12 through an accretion of duties.

         In November 2009, Afzal started detailing problems with Fletcher's performance in the law library and file room to create a "paper trail" that would justify Fletcher's termination. Compl. ¶ 16, ECF No. 1. When Fletcher requested assistance and training with these tasks, Afzal provided none. Instead, on April 26, 2010, Afzal issued a Letter of Counseling to Fletcher regarding an interpersonal dispute between Fletcher and Davis about vacation time. Then, on April 29, 2010, Afzal placed Fletcher on a Pre-Performance Improvement Plan (Pre-PIP) relating to Fletcher's performance in organizing the library and file room. Fletcher responded to both the Letter of Counseling and the Pre-PIP on May 3, 2010, asserting that she could not fulfill the requirements of the Pre-PIP given the volume of work involved, she needed training to complete the tasks, and she was subject to discrimination and retaliation. On June 4, 2010, Afzal instructed Fletcher to complete daily work logs. On August 10, 2010, Afzal informed Fletcher that her performance under the Pre-PIP was not satisfactory and placed her on a 60-day Performance Improvement Plan ("PIP") with specific requirements relating to the library and file room. According to Fletcher, she fulfilled all of the requirements of the PIP.

         On October 20, 2010, Afzal issued a memorandum of reprimand to Fletcher for allegedly failing to complete an assignment that Fletcher maintains she completed. Afzal then denied Fletcher a within-grade pay increase on October 25, 2010. Three days later, on October 28, 2010, Afzal informed Fletcher that she had failed to complete the requirements of the PIP. Fletcher responded in writing through counsel on November 29, 2010. Fletcher received a notice of proposed removal on December 1, 2010 and was terminated on March 26, 2011.

         II. Filing of the EEO Complaint

         On December 8, 2009, Fletcher contacted the EEO Office to complain of harassment by Afzar, disparate treatment based on her allegation that Afzal and Issenberg had favored Davis and refused to assist Fletcher in obtaining a promotion, and retaliation for prior EEO activity. On February 16, 2010, the EEO Office issued to Fletcher a Notice of Right to File a formal complaint of discrimination. She filed a formal complaint on March 2, 2010 in which she alleged that she had been subjected to a hostile work environment because of her race and color and in retaliation for her EEO activity. Fletcher later amended her EEO complaint to include the events surrounding the Letter of Counseling, the Pre-PIP, the work logs, and the PIP.

         III. MSPB Proceedings

         After her termination, Fletcher filed an appeal to the Merit Systems Protection Board ("MSPB") on April 6, 2011. On July 27, 2011, Fletcher withdrew her request for a hearing in her pending EEO complaint in order to pursue her MSPB appeal and requested leave to re-file the EEO complaint at the termination of the MSPB proceedings. In the MSPB appeal, in addition to asserting that her termination was procedurally and substantively improper, Fletcher also argued that her termination was "based on her race ... and color ... and in retaliation for her prior EEO activity." Appellant's Prehearing Submissions at 2, Fletcher v. U.S. Dep't of Commerce, No. DC-0432-11-9593-I-l(M.S.P.B. Aug. 24, 2011), Def.'s Mot. Dismiss Ex. C, ECF No. 12-3. On October 17, 2011, an MSPB administrative judge issued an Initial Decision affirming the termination and finding no discrimination or retaliation against Fletcher.

         On November 16, 2011, Fletcher filed a Petition for Review of the Initial Decision to the full MSPB, including on the issues of whether her termination was based on race or color or was in retaliation for her EEO activity. On July 13, 2012, the MSPB denied her Petition and adopted the Initial Decision as to the race and color discrimination and retaliation claims. On August 13, 2012, Fletcher appealed the MSPB's Final Order to the United States Equal Employment Opportunity Commission ("EEOC"), Office of Federal Operations ("OFO"), which on July 26, 2014 concurred with the MSPB's finding that there had been no race or color discrimination or retaliation in the removal. In the OFO Decision, Fletcher received notice that she had the right to file a civil action based on the MSPB decision in a United States District Court within 30 days. Instead, on September 12, 2012, Fletcher appealed the MSPB decision to the United States Court of Appeals for the Federal Circuit. On August 1, 2013, her appeal was dismissed for failure to prosecute after she did not file a brief in accordance with the applicable rules.

         IV. Resolution of ...

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