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Harris v. Esper

United States District Court, D. Maryland

October 23, 2019

MARK T. ESPER, Secretary, U.S. Department of the Army Defendant


          James K. Bredar Chief Judge

         Plaintiff Napoleon Harris sued his former employer, Mark T. Esper, Secretary of the U.S. Department of the Army ("Army"), alleging multiple violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. Specifically, Harris brings claims for discrimination, hostile work environment, and unlawful retaliation. The Army moved to dismiss, or, alternatively, for summary judgment, and the matter is fully briefed. No. hearing is required. See Local Rule 105.6 (D. Md. 2018). For the reasons set forth below, the Army's motion to dismiss will be granted with respect to Harris's claims of discrimination and hostile work environment and denied with respect to Harris's claim of retaliation.

         I. Factual and Procedural Background [1]

         Plaintiff, an African-American male, was hired by the Army as a civilian Intelligence Specialist at Fort Meade, Maryland in March 2012. (Compl.¶¶6-7, ECF No. 1.) Once individuals are hired by the Army, the Army works with the National Security Agency ("NSA") to evaluate new employees and place them into appropriate roles at the NSA. (Id. ¶ 13.) Over the next few months, Harris took a variety of training courses and interviewed with different companies within the NSA for placement in a permanent position. (Id. ¶¶ 13-19.)

         Starting in June, Harris also began discussing the possibility of transferring to Fort Gordon, Georgia. (Id. ¶¶ 34-47.) Several Army employees tried to help Harris in this process by telling him they would look into positions for him, forward along his resume, and try to find him a placement. (Id. ¶¶ 35, 37, 39, 41.) One supervisor, Lieutenant Trotter, told Harris there were no positions available for him at Fort Gordon after she "allegedly looked into transferring" Harris. (Id. ¶ 39.) Another employee told Harris that it would be three to five years before a position at his level would be available at Fort Gordon. (Id. ¶ 38.) Harris alleges these statements were false, and that there were Intelligence Specialist openings at Fort Gordon during this time. (Id. ¶ 40.) In December 2012, Harris asked another employee, Colonel Buckner, for a transfer, but she told him that she did not have authority to approve such a transfer-a statement Harris challenges because she sought to recruit military employees to transfer to Fort Gordon during this time. (Id. ¶¶ 45-46.)

         Throughout this time, Harris still did not have a permanent employment placement. In fall of 2012, Captain Rhoades, a white male, became Harris's supervisor. (Id. ¶ 12.) Captain Rhoades told Harris that he needed to take the Remote Operations Control ("ROC") test, which covered different operating systems than Harris was used to working with. (Id. ¶¶ 28-29.) Harris alleges that Captain Rhoades told him the test score "did not matter" and would simply be used to help determine his career path and whether he needed any additional training. (Id. ¶ 30.) Harris took the test around November 16, 2012, and Captain Rhoades told Harris he failed the test about a week later. (Id. ¶ 31.) Captain Rhoades subsequently denied Harris's requests to review his test results. (Id.32.)

         On November 28, Harris received an employment evaluation which rated his performance as "Successful" from March 12, 2012 to September 30, 2012. (Id. ¶ 55.) The evaluation stated that Harris's objectives going forward would be to attend two training courses, which Harris had already completed. (Id. ¶ 56.)

         On December 19, Lieutenant Trotter met with Harris to tell him that Captain Rhoades said Harris had "failed to meet the minimum qualification standards associated with the interactive on-net operator work role," and that Harris needed to resign or he would be terminated. (Id. ¶¶ 48-51.) Captain Rhoades's grounds for this recommended termination were that Harris was "argumentative," "not interested in learning and/or doing new things," and had knowledge gaps which had required additional training.[2] (Id. ¶ 53.) Lieutenant Trotter also said that Harris was being terminated because he had rejected a job placement offer at an NSA work center-a fact Harris denies. (Id. ¶¶ 57-58.)

         Following Harris's meeting with Lieutenant Trotter, Harris emailed Colonel Buckner, Lieutenant Trotter, and Captain Rhoades to report a complaint about discrimination and request contact information so he could file a formal complaint with the Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 62.) Harris alleges multiple individuals testified that his brigade was "plagued by issues of discrimination." (Id. ¶ 59.) He says that African-Americans complained about receiving less favorable treatment, being "terminated or released at higher rates," and being "unfairly described as 'unskilled' or 'untrained.'" (Id.) The week of December 20, Harris met with Colonel Buckner and others to "detail[] the disparate treatment he experienced after being --hired and the denial of his repeated requests to be transferred to Georgia." (Id. ¶ 63.) Colonel Buckner told Harris that the Intelligence Specialist position was not available anymore, but she placed him in a permanent position in the same brigade as a network administrator. (Id. ¶ 64.) Harris was then detailed to this role for a 90-day evaluation period. (Id. ¶ 72.)

         In January 2013, Harris and another employee met with someone to discuss racial discrimination.[3] (Id. ¶61.) Harris believed he had been treated differently because of his race and worse "than his skill set deserved." (Id. ¶ 61.) A few months later, in April 2013, Corey McGriff, a contractor, emailed Harris with links to a federal employment attorney and the Inspector General's website "based on his observations that the Army was discriminating against" Harris. (Id. ¶ 87.)

         On April 12, 2013, Mr. Young, a white male who served as Harris's new supervisor, stated in Harris's 90-day assessment that Harris had failed to satisfactorily complete his three assignments. (Id. ¶ 89.) By June 2013, Young said Harris was "performing adequately from a technical point of view." (Id. ¶ 90.) Young said that he did not discuss the assignments identified as unsatisfactory from the April review. (Id. ¶ 91.) Though he later said Harris "lack[ed] initiative and leadership," this was not brought up with Harris at this time. (Id. ¶ 92.)

         After a few months as a network administrator, Harris began having conflicts with Young regarding his attendance. (Id. ¶¶ 77-83.) In May 2013, Young agreed that Harris could have a flexible work schedule that would allow him to work an extra hour each day for nine days in return for having the tenth day off, resulting in long weekends every other week. (Id. ¶ 78.) Despite the fact that Harris said he always sought prior permission for late arrivals or absences, a dispute arose among Young and Harris regarding leave taken over the July 4th holiday. (Id. ¶ 77.)

         On July 3, 2013, Harris "emailed Mr. Young as a courtesy reminder" that he would be getting in around 10:00-11:00 a.m. on Tuesday, July 9 after traveling from Atlanta. (Id. ¶ 79.) On July 5, Young responded via email that he could not approve this leave because Harris could have returned earlier and not missed an additional day of work. (Id. ¶ 80.) Harris says he did not see this email until July 9, when his train back was running over three hours late. (Id. ¶ 81.) When Harris returned to work, Young told him to code his leave as "AWOL," or absent without leave. (Id. ¶ 82.) Harris alleges Young had previously approved Harris's leave request and that Young revoked Harris's approved leave on July 5-when Young knew Harris was already out of the office-because Young wanted a reason to fire Harris.[4] (Id. ¶ 83.)

         On July 15, 2013 Harris told Young and another employee that he had "reported the time card issue to both CPO and the EEO office."[5] (Id. ¶ 84.) Harris also told Major Ross, his second-line supervisor, "that he had reported Mr. Young's harassment and discrimination to EEO[C]" and Major Ross was "very hostile towards him" in response. (Id. ¶ 85.) Harris states that at this point "his conditions of employment had changed, resources were withdrawn," and Major Ross began addressing him more formally as Mr. Harris, as opposed to using his first name as she previously did. (Id. ¶86.)

         On July 23, 2013, Young asked Harris to open and close the Deer Park facility, which was under construction to become a Sensitive Compartmented Information Facility ("SCIF"), and to escort workers and technicians at the site. (Id. ¶ 98.) Because it was under construction, Harris says that it was not an official SCIF yet. (Id. ¶ 99.) The Army's Site Security Officer ("SSO") for Deer Park asked Harris and several other employees to keep their cell phones with them since there was no other way to contact individuals at the facility while work was being completed. (Id. ¶ 105.) Harris alleges that the SSO gave the technicians and vendors Harris's cell phone number so they could reach him because no telephone lines were set up yet at the site. (Id. ¶¶ 103-104.) Harris received a call on his cell phone from an Army network technician who knew he was at the Deer Park facility, and the other Army employees who were present at the site also used their phones during this time. (Id. ¶¶ 106-08.)

         The following week, McGriff emailed Harris "Code Red," and stated that Major Ross had contacted him "repeatedly" regarding Harris's EEO complaint. (Id. ¶ 118.) That same week, Harris was assigned an EEO counselor who interviewed Young and Platt, another management official, and told them about Harris's allegations. (Id. ¶ 114.) On August 6, Harris learned that the Army wanted to mediate his complaint. (Id. ¶ 115.)

         Before this could happen, on August, 7, 2013, Harris was officially terminated. (Id. ¶ 93.) The Army stated Harris was terminated because (1) he was late seven times between April and July; (2) he violated security regulations by bringing his cell phone to the Deer Park SCIF facility and leaving technicians and vendors unattended; and (3) he "fail[ed] to demonstrate any initiative and . . . required close supervision." (Id. ¶ 93.) It is unclear who drafted this termination letter. Major Ross stated that Young wrote it and she signed it, but Young says he never saw the termination letter. Regardless, Harris asserts that the Army's stated reasons for his termination are false. (Id. ¶ 96, 108-12.) Harris claims that for every date the Army says he was late, he either had approved leave or completed a full nine hours of work. (Id. ΒΆ 96.) He also argues that the Deer Park facility was not a SCIF, that he was told by the SSO to bring his cell phone to the site, and that other ...

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