United States District Court, D. Maryland
Lipton Hollander United States District Judge
employment discrimination case, Veronica Gales Short, a
former employee of the Social Security Administration
(“SSA”), filed suit against Nancy A. Berryhill,
the Acting Commissioner of SSA, under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq. (“Title VII”). ECF 1
(“Complaint”). Plaintiff appended multiple
exhibits to the Complaint. ECF 1-2 to ECF 1-10.
an African-American female, alleges that she was
discriminated against on the basis of race (Claim 1);
subjected to a hostile work environment (Claim 2); retaliated
against for filing an Equal Employment Opportunity
(“EEO”) complaint concerning discrimination and
harassment (Claim 3); and was constructively discharged
has moved to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the
alternative, for summary judgment under Fed.R.Civ.P. 56(a).
ECF 6. The motion is supported by a memorandum (ECF 6-1)
(collectively, the “Motion”) and one exhibit,
consisting of two lengthy documents. ECF 6-2. Plaintiff opposes
the Motion. ECF 7 (“Opposition”). Defendant has
replied. ECF 9.
hearing is necessary to resolve this matter. See
Local Rule 105.6. For the reasons that follow, I shall
construe the Motion (ECF 6) as one to dismiss under
Fed.R.Civ.P. 12(b)(6). And, I shall grant the Motion.
joined SSA’s Office of Disability Policy
(“ODP”) on September 28, 2014. ECF 1, ¶ 11;
see also ECF 6-2 at 5. In July of 2015, she was
transferred to the Office of Medical Policy
(“OMP”), where she worked as a GS-12 Social
Insurance Specialist. ECF 6-2 at 5-6. In that role, Short’s
job encompassed updating and revising the Program Operations
Manual System (“POMS”) for disability appeals.
Id. at 7. The POMS instructs SSA employees and state
agencies with respect to processing claims for Social
Security benefits. Id. In addition, Short also wrote
model responses to claim inquiries from across the country.
noted, Short is an African-American female. ECF 1, ¶ 10.
On or about March 21, 2016, Joseph Kevin Parmer, a Caucasian
male, became Short’s first-line supervisor.
Id. ¶ 13. He joined SSA in 2001, and has served
in a supervisory capacity since 2008. ECF 6-2 at 123. At the
time he managed Short, Parmer was a GS-14 Supervisory Social
Insurance Specialist. Id.
managed eight employees; all are female and five are
African-American. Id. at 124. Parmer’s
supervisor was Cheryl A. Williams, the Director of the OMP,
who is an African-American female. Id. at 38.
received an appraisal of “Successful
Contribution” on her 2016 performance review. ECF 1,
¶ 15. Yet, in or about April 2017, Parmer began to
“frequently” criticize her work. Id.
¶ 14. On April 28, 2017, Parmer placed Short on a
Performance Assistance (“PA”) plan,
“without explaining to her how and when her performance
became deficient[.]” Id. ¶ 15;
see ECF 6-2 at 39.
PA plan was outlined in a seven-page document. ECF 6-2
179-86. It described the job expectations for Short’s
position and detailed specific issues with her performance.
Id. at 179-82. In addition, the document contained a
list of trainings that plaintiff could attend in the form of
Video on Demand (“VOD”) training and supplemental
reference material. Id. at 183-84. Short’s PA
plan was originally scheduled to end on May 25, 2017. ECF 1,
¶ 16. However, Parmer extended the plan another thirty
days, through June 8, 2017. Id.
May and June 2017, Short sought permission from Parmer to
attend a one-week course needed to maintain her certification
as a Level 1 Contract Technical Representative
(“COTR”). Id. ¶ 17; ECF 6-2 at 104.
Parmer denied her requests. ECF 1, ¶ 17. Short asked to
attend a one-day telephonic COTR training in August 2017.
Id. ¶ 18. Again, Parmer rejected her request,
instructing her to focus instead on her assignments.
Id. According to Parmer, the COTR courses were not
related to Short’s job duties at OMP. ECF 6-2 at 130.
September 15, 2017, Short received an email from Parmer
setting a meeting for September 19, 2017, to discuss her job
performance. Id. at 39. Parmer told Short that she
could have a union representative present at the meeting.
Id. As planned, Parmer met with Short and Carole
Brown, Short’s union representative. ECF 1, ¶ 21.
During the meeting, plaintiff alleges that Brown told Parmer
that the PA was improper “as there was no level of
assessment as required by union contract.” Id.
was put on the second and final tier of the employee
performance plan, known as an Opportunity to Perform
Successfully (“OPS”) plan. ECF 1, ¶ 20; ECF
6-2 at 187. In the OPS document, Parmer referenced the PA
plan and said: “I made a senior analyst and myself
available to provide counseling, instruction, and
advice[.]” ECF 6-2 at 187. Further, he said:
“We met several times during the PA where I reviewed
[plaintiff’s] work products and provided specific
instructions and guidance.” Id. However,
Parmer noted that Short “continue[d] to need extensive
feedback with [her] work products regarding accuracy,
analysis, and formatting.” Id. Parmer also
observed that since the conclusion of the PA plan,
Short’s “performance has not improved[.]”
Id. at 188.
the PA, the OPS document identified specific instances where
Short had not met expectations. Id. at 188-91. It
also provided that Short would meet bi-weekly with her mentor
and monthly with Parmer. Id. at 191. The OPS plan
was effective for 120 days, after which Short could be
reassigned, demoted, or removed if her performance did not
improve. Id. at 187; see ECF 1, ¶ 20.
September 20, 2017, Parmer completed a performance evaluation
for Short. ECF 1, ¶ 23; ECF 1-4. He assigned her an
overall rating of “Not Successful, ” giving her a
score of three out of five in the areas of
“Interpersonal Skills” and
“Participation” and a score of one in the areas
of “Demonstrates Job Knowledge” and
“Achieves Business Results.” ECF 1-4.
to plaintiff, Parmer’s “negativity towards her
escalated” after she was placed on the OPS plan. ECF 1,
¶ 22. In her view, Parmer “continually found
excessive or unnecessary fault with [her] work, marking up
her assignments and requiring extensive edits to her
work.” Id. ¶ 24. Parmer’s
“non-substantive” feedback “required her to
completely change her writing to fit his stylistic
preferences.” Id. Parmer also failed to give
Short regular reports on her progress while she was on the
OPS plan. Id. ¶ 25.
requested EEO counseling on September 18, 2017. ECF 6-2 at 2,
53, 97. Short met with an EEO counselor on September 26,
2017. Id. at 53. SSA informed Parmer of
Short’s EEO activity on October 4, 2017. Id.
at 60. Short filed an EEO complaint on October 30, 2017,
lodging claims of racial discrimination, hostile work
environment, and retaliation against Parmer. Id. at
received an email from Parmer on November 8, 2017, which
“indicated to Ms. Short that the only way [Parmer]
would address questions she had about assignments would be if
she submitted questions to him in writing prior to scheduled
meetings, rather than asking questions as they arose.”
ECF 1, ¶ 26. The email stated, ECF 1-2 at 31:
During our meeting today, we discussed my comments 1-13 of
70, on your draft of POMS DI 12095, and the possible
resolutions. We also discussed the need for clarity within
the instructions, as well as organization so the users will
have the necessary information at the appropriate time to
carry out subsequent steps (i.e., our discussion about the
order of instructions for individuals that need an
interpreter). We also discussed the context of your
instructions and that actions need to be clear so there is no
ambiguity on what steps or policy applies (i.e., our
discussion regarding the signature of the SSA-773). Please be
mindful of the audience for these instructions and how they
will be used by the field offices.
As an analyst, you should first attempt to provide a
resolution to the comment, and bring that for discussion
rather than asking what the proper resolution should be as we
review the comment. As discussed, please address and make the
appropriate revisions to comments 1-13 from our meeting, as
well as the remaining comments in the document. I have
scheduled a meeting on 11/13 from 1:30-2:30 to discuss your
resolutions and revisions.
about November 16, 2017, Parmer assigned Short to work on a
project revising a disability form. ECF 1, ¶ 27; ECF 6-2
at 42. Mary Quatroche, a Senior Policy Analyst at ODP, was
also involved in the project. Short did not want to work with
Quatroche, whom she claims “had previously made
unfounded accusations” against her. ECF 1, ¶ 27.
Short also believed that the project was outside the scope of
her OPS plan. Id. ¶ 28. Short expressed these
concerns to Parmer, but he insisted that she take on the new
assignment. Id. ¶¶ 28, 29.
November 30, 2017, Parmer sent Short an email to schedule a
one-hour check-in for December 5, 2017. Id. ¶
30; ECF 6-2 at 203. Short responded: “I have a meeting
during the time frame you have proposed.” ECF 6-2 at
202. In reply, Parmer wrote: “I will reschedule for the
same day from 2:00-3:00.” Id. Short answered,
stating that she also had a meeting during that time as well.
Id. at 205. Parmer then asked, “What times are
you available Tuesday?” Id. at 207. Short
responded: “After 3:30 PM should work for me.”
Id. at 209. Four minutes later, Parmer wrote:
“Are you in meetings from 11:00-12:00 or 1:00-2:00? Are
you planning to attend the meeting with Michele from
9:30-10:00?” Id. at 211. Short responded,
“Yes.” Id. at 213. Parmer then asked,
“Is that yes to both?” Id. at 215. Short
answered: “My response is affirmative (yes) to all of
the question[s].” Id. at 218.
same day, November 30, 2017, Parmer sent the following email
to Short, id. at 221:
As previously stated, this is not a replacement of the forum
by which you receive the necessary guidance, but rather an
organized approach to targeting the questions you have, and
then expand on them during our conversation. You will receive
feedback through multiple forums, such as written comments,
by telephone, through email, or in person discussions. All
the feedback that you receive is intended to produce a
document that will benefit the users.
Earlier I was trying to set up a meeting so we can discuss
your questions and current document, but you stated you were
not available for the day. Is the conflicting meeting the HMD
call from 10:00- 3:30?
Short responded, id. at 222:
We have exhausted your question regarding my availability on
December 5, 2017. From 10:44 AM through 11:32 AM and again at
3:05 PM, I have answered and addressed your numerous emails.
The email response (11:32 AM) indicated that I answered in
the affirmative to your continued questions directed that
appeared to be simple in form. I responded to you that I am
available after 3:30PM on December 5, 2017. However, you did
not establish/issue a meeting invitation, but you requested
that I submit questions regarding the discussion for which
you did not extend an invitation or meeting request. The
numerous aforementioned emails, appear to indicate an urgent
need to re-schedule the discussion meeting from November 28,
2017. To that end, I have responded in kind to you and I
consider your numerous emails on the same subject as
harassment and retaliation for my pursuant of the EEO filed.
Thank you for your attention this matter.
On December 4, 2017, Parmer sent the following email to
Short, id. at 221:
Provide me with information as to what meeting you are
attending on December 5, 2017, from 10:00 until 3:30. I will
decide if it is a priority for you to attend that meeting or
if you should forego that meeting and attend that one I
schedule. Send this to me by noon today.
(Emphasis in original).
response, Short directed Parmer to her email of November 30,
2017, and reiterated that she perceived his frequent emails
to constitute retaliation. Id. The same day, Parmer
wrote back, id. at 224:
There were multiple inquires because it was never made clear
to me why you were unavailable for 5 ½ hours of the
workday on 12/5. Each subsequent meeting inquiry was declined
without providing any details as to the reason for the
conflict or the meeting that was to be attended. As a
supervisor, I need to know the availability of staff members.
My goal was to designate a mutual time for us to meet and
discuss your ongoing work on DI 12095 and also answer any
questions you had. I am establishing these meetings to help
assist you complete your assignments, move your workload
along, and help you perform successfully as outlined in the
As we have previously discussed, work related to contract
officer (or COTR) duties are not part of your priority
workload. I believe a better use of time would be to focus on
your priority workloads so you can perform successfully,
rather than listening in to the HMD meeting. I am offering my
assistance to review your document and answer your questions
tomorrow from 2:00-3:00.
December 7, 2017, Short notified Williams of her intent to
resign from SSA. ECF 6-2 at 231. She stated that she was
leaving “under duress.” ECF 1-1 at 35. Short
formally resigned on December 14, 2017. ECF 1, ¶ 33.
When Short resigned on December 14, 2017, she amended her EEO
complaint to include a claim for constructive discharge.
Id. ¶ 33; see ECF 6-2 at 3.
prepared a final evaluation of Short, dated December 14,
2017. ECF 1, ¶ 34. Parmer gave Short an overall rating
of “Successful Contribution, ” despite her not
having completed the OPS plan. ECF 1-5.
investigation followed Short’s resignation, culminating
in a Final Agency Decision (“FAD” or
“Decision”), issued on August 2, 2018. ECF 6-2 at
2. It was accompanied by a Report of Investigation
(“ROI”), dated May 17, 2018, which is over 250
pages in length. Id. at 28-284. The FAD concluded
that Short could not establish a prima facie case for
retaliation because her PA and OPS plans occurred before she
filed her EEO complaint and before Parmer learned of her EEO
activity. Id. at 21. The Decision also rejected
Short’s hostile work environment claim on the ground
that “there is no direct evidence of discriminatory
harassment[.]” Id. at 22. It likewise
dismissed her disparate treatment claim, finding no evidence
of discriminatory animus and that SSA had a legitimate,
non-discriminatory reason for its actions, i.e.,
plaintiff’s poor job performance. Id. at
23-24. And, the Decision rejected Short’s claim for
constructive discharge, concluding that management made no
effort to force her to resign. Id. at 25.
lawsuit followed on September 30, 2018. ECF 1.
noted, defendant’s Motion is styled as a “Motion
to Dismiss Or, In the Alternative, For Summary
Judgment.” ECF 6. A motion styled in the alternative
implicates the court’s discretion under Rule 12(d) of
the Federal Rules of Civil Procedure. See Kensington Vol.
Fire Dep’t, Inc. v. Montgomery Cty., 788 F.Supp.2d
431, 436-37 (D. Md. 2011).
a court “is not to consider matters outside the
pleadings or resolve factual disputes when ruling on a motion
to dismiss.” Bosiger v. U.S. Airways, 510 F.3d
442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a
court, in its discretion, may consider matters outside of the
pleadings, pursuant to Rule 12(d). If the court does so,
“the motion must be treated as one for summary judgment
under Rule 56, ” and “[a]ll parties must be given
a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed.R.Civ.P. 12(d). But, when
the movant expressly captions its motion “in the
alternative” as one for summary judgment, and submits
matters outside the pleadings for the court’s
consideration, the parties are deemed to be on notice that
conversion under Rule 12(d) may occur; the court “does
not have an obligation to notify parties of the
obvious.” Laughlin v. Metro. Wash. Airports
Auth., 149 F.3d 253, 261 (4th Cir. 1998).
district judge has “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.” 5 C
Wright & Miller, Federal Practice & Procedure §
1366 (3d ed. 2018). This discretion “should be
exercised with great caution and attention to the
parties’ procedural rights.” Id. In
general, courts are guided by whether consideration of
extraneous material “is likely to ...