United States District Court, D. Maryland
Xinis, United States District Judge.
in this employment discrimination case is Defendant Steven
Mnuchin, Secretary of the Treasury, (“the
Treasury” or “Treasury”)'s motion to
dismiss, or in the alternative, for summary judgment. ECF No.
13. The motion has been fully briefed and no hearing is
necessary. See Loc. R. 105.6. For the following
reasons, the Court grants in part and denies in part the
Treasury's motion for summary judgment.
The Amended Complaint
Amended Complaint, Plaintiff Thuy-Ai Nguyen avers that she
suffered race, national origin, gender, and disability
discrimination. Nguyen, a woman of Vietnamese descent born in
1965, worked for the Internal Revenue Service as an
Information Technology (“IT”) Specialist since
2006. ECF No. 9 ¶¶ 8, 14. Although not her
full-time assignment, Nguyen sometimes worked on the database
for Tax Exempt/Government Entities Rulings & Agreement
Control (“TRAC”). Id. ¶ 27. The
TRAC system permits users to track specific projects, but the
system has been in “crisis” due to its design and
user problems. Id. ¶¶ 26, 30. Nguyen had
some experience with TRAC, but not enough to become
proficient in the system. Id. ¶ 33, In May
2013, Linda Whiting, an African American woman, became
Nguyen's supervisor and assigned Nguyen to work on the
TRAC project full time. Id. ¶¶ 34-35.
Nguyen asserts, without any specific examples, that other,
unnamed “non-Vietnamese, non-Asian, male and/or younger
employees” were better suited to work on TRAC than
herself. Id. ¶ 45. Nguyen gives no details to
support this claim.
believes her assignment to TRAC constituted an adverse
employment action because the transfer was a set-up for
Nguyen's failure. Id. ¶ 55. Nguyen received
an introductory training course in TRAC, but otherwise
asserts that she lacked the skills, experience and training
to perform this assignment adequately. Id.
¶¶ 40, 60. Whiting, as the manager, was the only
employee to receive any training on TRAC. Id. ¶
62. Nguyen also avers that Whiting imposed unreasonable work
deadlines on her, which, in combination with the lack of
training, contributed to Nguyen's poor job performance.
Id. ¶ 67. Nguyen, in the end, believes that she
was blamed for all TRAC failures. Id. ¶¶
also contends that Whiting created a hostile work environment
by “yelling, ” “making negative comments,
” and “threatening . . . workplace
evaluations.” Id. ¶ 68. Although Nguyen
emphasizes that performance evaluations are considered for
raises, promotions, and the elevation of GS levels, Nguyen
does not seem to have missed any of those opportunities.
Id. ¶ 69. On November 5, 2014, however, Whiting
did give Nguyen “failing marks in every category on her
mid-year performance review” in 2014. Id.
¶ 108. Whiting also required Nguyen to undergo monthly
performance evaluations, unlike Nguyen's coworkers.
Id. ¶¶ 109-10.
also asserts that Whiting was “constantly”
hostile to her and treated her “differently” than
her non-Vietnamese, non-Asian, male, younger co-workers.
Id. ¶ 70. Although Nguyen characterizes Whiting
as angrily “berat[ing]” her in front of other
coworkers, Nguyen gives precious little context for these
supposed displays of hostility. Id. ¶¶
70-76. Nguyen also claims that Whiting “disparaged Mrs.
Nguyen's English on multiple occasions” and Cindy
McGregor, her white coworker and project lead,
“purposefully ‘dumbed down' her language when
communicating with Mrs. Nguyen.” Id.
¶¶ 78-79. Again, the Amended Complaint
provides very few particulars about this disparaging conduct
that Nguyen endured.
also recites an array of occasions in which Whiting treated
others less poorly than Nguyen. Whiting would
“patiently listen and acknowledge” McGregor
and her work, while treating Nguyen with disdain and refusing
to credit Nguyen for her work. Id. ¶¶
85-86. Whiting also praised William Chester, an African
American male, for his work but did not acknowledge Nguyen
for her contributions. Id. ¶ 87. Nguyen also
summarily asserts that Nguyen's second level supervisor,
Norman Keith, “also discriminated against [her] and
contributed to the hostile work environment.”
Id. ¶ 101. Keith did not assist Nguyen with
“the way Linda Whiting treated her” and during
one meeting on July 2, 2014, “physically threatened
[Nguyen] by pounding on his desk.” Id.
¶¶ 103, 105.
a time not altogether clear from the Amended Complaint,
Whiting also disregarded Nguyen's therapist's
explanation that Nguyen should be on a temporary part time
status. Id. ¶ 98. Whiting instead demanded that
Nguyen returned to full time work immediately. Id.
point, again not clear from the Amended Complaint, Nguyen
engaged in what she characterizes as “protected EEO
activity in an effort to rectify the harassment and
discrimination that she faced.” This included attending
an informal mediation session on August 25, 2014.
Id. ¶¶ 114-15. The next day, Keith
proposed that Nguyen be suspended without pay for one day,
which took effect on November 7, 2014, while Nguyen was on
sick leave undergoing treatment for her depression.
Id. ¶¶ 116-17. Nguyen contends that she
suffers from “severe depression, severe anxiety, and
mental anguish, ” which has substantially limited her
work functioning, all as a result of enduring Whiting's
abuse. Id. ¶ 121. Nguyen asked to take leave
under FMLA, which Whiting refused. Id. ¶ 130.
Nguyen also sought transfer to another department, as
recommended by Nguyen's doctors, to accommodate her
mental health challenges. Id. ¶ 137. Nguyen
provided medical documentation to support the need for such
accommodation but, to date, she claims that Treasury has not
addressed adequately her disability. Id.
The Administrative Record
to filing this action, Nguyen pursued two separate
discrimination complaints with the Treasury. ECF Nos. 19-1,
20. Formal investigations on both produced nearly 3, 600
pages of record evidence, select portions of which the
Treasury included in its motion. The Court thereafter ordered
production of the entire record. The pertinent parts are
summarized as follows.
Treasury began the TRAC program without providing any IT
employees with the training of which Nguyen claims she alone
was deprived. No. funding was available for TRAC training
beyond a single introductory course that Nguyen attended. ECF
No. 13-2 at 46, 81, 91. Treasury informed any employee who
requested training that none would be forthcoming for
budgetary reasons. ECF No. 13-2 at 90 (declaration questions
of Nguyen's former manager) (“I put in several
requests for a class on Oracle Forms and Reports but was told
there was no funding.”); ECF No. 13-2 at 80 (McGregor)
(“[W]e all asked for training and were all
refused.”); ECF No. 12-3 at 95 (Karen Rondini Taylor)
(“We were told there was no money in the budget to send
me to any formal training, . . . so Cindy researched
textbooks on amazon.com, one of which I purchased with my own
money for about $5 total.”). Instead, employees were
expected to teach themselves the necessary skills to
implement their programs or learn through informal training,
both of which were available to Nguyen. ECF No. 13-2 at 82,
being told repeatedly that no such training was available,
Nguyen persisted in maintaining that, unlike her coworkers,
she could not do the work without formal training. ECF No.
19-6 at 12, 31. During two meetings held on July 2, 2014,
Nguyen's singular focus on the issue of training derailed
the meeting agendas. ECF No. 13-2 at 47, 72. According to
coworkers, Nguyen interrupted Whiting numerous times while
ignoring questions that Whiting had asked her. ECF No. 19-1
at 59. Coworkers also described Nguyen's behavior-on
numerous occasions-as “rude.” ECF Nos. 19-1 at
29; 19-2 at 428; 19-4 at 632. Whiting often became frustrated
while meeting with Nguyen (ECF No. 19-5 at 81) and
interrupted Nguyen in an effort to get Nguyen to stop
speaking. ECF No. 19-4 at 352. On at least two occasions,
Whiting and Nguyen's conversation reached a fevered pitch
with Whiting yelling at Nguyen. See ECF No. 19-4 at
367 (describing a shouting match between Whiting and Nguyen);
ECF No. 19-5 at 253 (observing that Whiting yelled
unspecified comments at Nguyen).
Nguyen's performance evaluations, the record reflects
that Nguyen's 2014 midyear review had failing marks in
eleven categories, meets standards in two categories, and
skills not exhibited in two categories. ECF No. 13-2 at
54-57. Four of the five other employees who Whiting later
evaluated monthly were non-Vietnamese. ECF No. 19-3 at 137.
Whiting and McGregor making disparaging comments about
Nguyen's command of English, the record reflects two
particular relevant instances. In the first, Whiting asked
Nguyen whether she had contacted a coworker for assistance.
ECF No. 19-2 at 179-80. Nguyen responded, “Yes, I share
the information” with the coworker. Id.
Whiting responded to Nguyen that “[s]haring and asking
for help are two different things.” Id.
Second, in reviewing Nguyen's summary of a meeting that
had taken place with Whiting, Nguyen wrote that “the
meeting had to be terminated and ended at 9:10 AM because
Linda [Whiting] had another meeting at 9:15 AM on the same
day.” ECF No. 19-2 at 203. Whiting responded,
“The meeting was scheduled from 8:30 - 9:15. Therefore
it was not terminated, it ended.” Id. Whiting
also corrected other coworkers' word choice, including
that of one white American male and one African American
male. ECF Nos. 19-1 at 42; 19-5 at 284.
Keith's involvement with Nguyen, he recommended Nguyen
for disciplinary action because of her constant and unending
inquiries about TRAC training. On July 2, 2014, Keith and
Whiting spent ninety minutes arguing with Nguyen over the
need for formal training, despite Nguyen having been told
repeatedly that no such formal training exists for anyone in
the department. ECF No. 13-2 at 48, 72-73, 86. That same day,
Whiting sent Keith an email asking if she should take
disciplinary action against Nguyen, to which Keith replied,
“Start immediately.” ECF No. 13-2 at 61. On July
9, Whiting and Keith decided to pursue a one-day suspension
after human resources suggested that a reprimand was
insufficient. ECF No. 19-4 at 46, 60. Treasury Guidelines
provide a range of discipline for first-time offenses,
dependent on the nature of the infraction. The suggested
discipline for the relevant infractions includes admonishment
or written reprimand through suspension and in certain
circumstances, removal. ECF No. 19-5 at 485, 487-88.
11, 2014, the Treasury informed Nguyen of its intention to
suspend her for one day for “failure to follow
managerial directives (including directives regarding
assigned work), insubordination and continuing behavior which
disrupts planned meetings.” ECF No. 13-2 at 21. Five
days later, Nguyen contacted the EEO for her initial
interview. Id. at 17.
August 22, 2014, the Treasury sent a notice of proposed
disciplinary suspension, which was implemented by
Nguyen's third-level supervisor, Linda Gilpin, on
November 7, 2014. Id. at 34, 38-40. The notice stated
that the suspension was being imposed to address Nguyen's
failure to follow management's instruction that she, like
all employees, must learn how to perform her work without
formal training, as well as the disruption she had caused at
the July 2nd meetings. Id. at 34, 38.
regard to Nguyen's mental health, Nguyen's doctor
documented not only that Nguyen suffered from depression and
anxiety, but that workplace stresses “significantly
worsened” her condition. ECF No. 20 at 143.
Nguyen's doctor further noted that Nguyen's mental
health challenges affect her concentration, short term
memory, and ability to drive safely on busy streets.
Id. at 108; ECF No. 20-1 at 27, 31. The doctor
recommended that Nguyen be transferred to a different project
under different supervisors, as well as be given a part-time
“flexi-place” work schedule and training. ECF No.
20 at 89, 121, 143.
response, the Treasury offered the following accommodations:
placement of Nguyen in a new position with different first-
and second-line supervisors, additional training and a
part-time schedule for the first six months. ECF No. 13-6 at
7. Nguyen rejected that position because she would have the