Short v. Berryhill

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         In this 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.^[1]

         Short, 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 (Claim 4).^[2]

         Defendant 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.^[3] Plaintiff opposes the Motion. ECF 7 (“Opposition”). Defendant has replied. ECF 9.

         No 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.

         I. Factual Background

         Short 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.^[4] 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. Id.

         As 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.

         Parmer 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.

         Plaintiff 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.

         Short’s 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.

         In both 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.

         On 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.

         Short 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.

         As with 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.

         On 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.

         According 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.

         Short 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 49-51.

         Short 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:

Veronica,

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.

         On or 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.

         On 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.

         The 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).

         In 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 OPS.

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.

         On 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.

         Parmer 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.

         An 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.

         This lawsuit followed on September 30, 2018. ECF 1.

         II.

         Standard of Review

         As 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).

         Ordinarily, 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).^[5]

         A 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 ...