973 F.Supp.2d 561 (D.Md. 2013), C. A. ELH-12-03482, Hart v. Lew

Docket Nº:Civil Action ELH-12-03482
Citation:973 F.Supp.2d 561
Opinion Judge:Ellen L. Hollander, United States District Judge.
Party Name:SYDNEY S. HART, Plaintiff, v. JACOB J. LEW, Secretary, U.S. Department of the Treasury, Defendant
Attorney:Civil Action No. ELH-12-03482 Sydney S. Hart, Plaintiff, Pro se, Ronkonkoma, NY. For Department of Treasury, Jacob J. Lew, U.S. Department of the Treasury, Defendants: Alex S Gordon, LEAD ATTORNEY, Office of the United States Attorney, Greenbelt, MD.
Case Date:September 23, 2013
Court:United States District Courts, 4th Circuit, District of Maryland

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973 F.Supp.2d 561 (D.Md. 2013)

SYDNEY S. HART, Plaintiff,


JACOB J. LEW, Secretary, U.S. Department of the Treasury, Defendant

Civil Action No. ELH-12-03482

United States District Court, D. Maryland

September 23, 2013

Page 562

[Copyrighted Material Omitted]

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Sydney S. Hart, Plaintiff, Pro se, Ronkonkoma, NY.

For Department of Treasury, Jacob J. Lew, U.S. Department of the Treasury, Defendants: Alex S Gordon, LEAD ATTORNEY, Office of the United States Attorney, Greenbelt, MD.


Ellen L. Hollander, United States District Judge.

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Sydney Hart, a male-to-female transsexual, filed suit, pro se, against the Department of the Treasury (the " Department" ), 1 alleging sex discrimination in employment (Count I) and retaliation (Count II), in violation of Title VII of the Civil Rights Act of 1964, codified, as amended, at 42 U.S.C. § § 2000e et seq. See Complaint ¶ ¶ 122-136 (ECF 1). At the relevant time, Hart worked as a Revenue Agent for the Internal Revenue Service (" IRS" ) but was discharged from her position.

Now pending is defendant's " Motion to Dismiss, Or, in the Alternative, for Summary Judgment" (" Motion," ECF 22), supported by a memorandum of law (" Memo,"

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ECF 22-1) and an extensive record of prior administrative proceedings related to plaintiff's claims (ECF 22-2, 22-4). Along with her Opposition to the Motion (" Opp." or " Opposition," ECF 26), plaintiff has filed an affidavit under Fed.R.Civ.P. 56(d), challenging defendant's request for the pre-discovery conversion of the motion to dismiss to a motion for summary judgment. Defendant has replied (ECF 27).

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will construe defendant's Motion as a motion to dismiss, and I will grant it in part and deny it in part.

I. Factual Summary2

Hart was employed by the IRS, a sub-agency of the Department, from April 3, 2006 until May 20, 2011. Plaintiff underwent gender reassignment surgery on November 3, 2009. Compl. ¶ 1. Prior to the surgery, plaintiff was known as Stuart Hart. 3

From the inception of her employment, Hart filed numerous complaints regarding various actions taken by her supervisors and coworkers. Plaintiff's first complaint arose out of an incident that occurred on June 9, 2006, while plaintiff was still expressing as a male. 4 Plaintiff alleges that he appeared at work in " jeans and a shirt," and his on-the-job instructor, Larry Norris, told him that his attire was not appropriate for the office. Id. ¶ 6. Norris reminded plaintiff that he was still a probationary employee and advised him to " watch the way [he] conducted himself" so as to avoid termination. Id. Two weeks later, plaintiff met with Mary Jones, his first-line supervisor; they discussed the allegedly inappropriate attire plaintiff had worn on June 9 and Jones' perception that plaintiff needed to improve in his interactions with others. Id. ¶ ¶ 5, 7. One month later, on July 13, 2006, plaintiff filed an informal Equal Employment Opportunity (" EEO" ) complaint with the IRS about the series of incidents. id. ¶ 8. However, after another meeting with Jones, plaintiff voluntarily withdrew the complaint. Id. ¶ ¶ 8-9.

On August 16, 2006, Norris rated plaintiff negatively on two performance reviews, which allegedly led another of plaintiffs supervisors, Latosha Keown, to reduce plaintiffs caseload. Id. ¶ 10. In response, plaintiff filed an EEO complaint, alleging retaliation and discrimination based on sexual orientation and race. 5 id. ¶ 11. In addition, plaintiff met with Jones on September 1, 2006, to discuss the negative performance reviews. Jones acknowledged factual inaccuracies in the reviews and agreed to revise them but, according to plaintiff, she failed to do so. Id. ¶ 13. On September 15, 2006, plaintiff entered into an EEO Settlement Agreement (" Settlement Agreement #1" ) with

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the Department. 6 id. ¶ 17. The Agreement provided, among other things, that the Department would revise the disputed performance reviews. Id.

Plaintiff received citations for two instances of misconduct in late 2006 and early 2007. According to Hart, both were issued in retaliation for the prior EEO complaints. As to the first incident, Norris reported that plaintiff was " deliberately avoiding [him] in the hallways." Id. ¶ 18. The second citation arose out of allegations that plaintiff acted disruptively during a workshop on November 17, 2006. Id. ¶ 26.

Plaintiff discussed the first issue with Jones on two occasions. During the second discussion, on November 1, 2006, Jones stated that she would " officially document" the incident. Id. ¶ 19. Thereafter, on November 3, 2006, Hart filed an EEO complaint, alleging that he was being retaliated against for his prior EEO activity. Id. ¶ 20. Jones issued a memorandum to plaintiff on November 21, 2006, stating that he had acted unprofessionally by avoiding Norris in the hall. According to plaintiff, Jones stated that Territory Manager Peter Hendricks, plaintiff's " second-line supervisor," directed Jones to issue the memorandum. Compl. ¶ ¶ 5, 21. Id. ¶ 21. On December 1, 2006, fearing " further reprisal," plaintiff withdrew the EEO complaint he had filed on November 3, 2006. Id. ¶ 22.

With regard to the second citation, Jones notified plaintiff on January 18, 2007, that she would formally document the incident. Plaintiff voiced his suspicion that the threatened censure was " reprisal for Plaintiff's prior EEO activity." Id. ¶ 26. Jones formally documented the incident on February 12, 2007. Id. ¶ 27. On February 14, 2007, plaintiff " contacted the EEO office to lodge another complaint." Id. ¶ 28.

In the interim, on December 23, 2006, the IRS notified plaintiff that he had been " found suitable for his position as a Revenue Agent." Id. ¶ 24.

The National Treasury Employees Union (" NTEU" ) filed three grievances on plaintiff's behalf in 2007 and 2008. 7 The first grievance alleged that Hendricks, plaintiff's Territory Manager, refused to use plaintiff's proper entrance-on-duty date when assigning priority for selection of office space. Id. ¶ 30. Three days later, the matter was apparently resolved when Jones informed plaintiff that Hendricks would use the proper date. Id. ¶ 31. Jones also agreed to allow plaintiff to telecommute to the office ( i.e. to work from home). Id. The second grievance was filed on June 21, 2007, id. ¶ 33, and arose out of plaintiff's annual performance appraisal on June 7, 2007, pertaining to the period of April 6, 2006 to February 28, 2007. Id. ¶ 32. According to Hart, the appraisal was due by April 1, 2007. Id. Although Jones and Hendricks awarded plaintiff a rating of " Fully Successful" in all job performance categories, id., the

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grievance was filed because the review failed to include narrative descriptions of " critical job elements" (as allegedly required by an Agreement between the IRS and the NTEU). Id. ¶ 33. Hendricks denied that grievance on October 9, 2007. Id. ¶ 38. The NTEU filed a third grievance on May 19, 2008, alleging that management " obstructed Plaintiff's promotional opportunities." Id. ¶ 41. Hendricks denied the grievance on June 19, 2008. Id. ¶ 42.

In the meantime, in September 2007, the NTEU steward notified Hendricks that counseling memoranda issued to plaintiff on November 26, 2006, and February 12, 2007 regarding his " poor workplace interactions" were untimely, because they were issued more than 15 work days after the manager learned of the events. Id. ¶ 36. On December 6, 2007, Labor Relations Specialist Philip Wilcox advised that the two counseling memoranda were timely, and that they would not be removed from Hart's personnel file. Id. ¶ 39.

Plaintiff began Hormone Replacement Therapy in February 2009. Id. ¶ 43. Hart legally changed her first name from Stuart to Sydney on March 9, 2009. Id. ¶ 44. That month, plaintiff informed Jones that she had begun her transition from male to female and that because of her hormone therapy, she might " experience hot flashes, mood swings, and emotional lability." Id. ¶ 45. Plaintiff also requested a key to the women's restroom so that she could avoid using the men's restroom while dressed as a woman. Id. Jones and Hendricks denied her request. Id. On April 1, 2009, plaintiff appeared for the first time at the office dressed as a female. Id. ¶ 46. Hart surrendered her key to the men's bathroom on April 15, 2009. Id. ¶ 47. But, the next day, EEO Territory Manager Sarah Wilson denied plaintiff access to the women's restroom, because she " still had male genitalia." Id. ¶ 48.

On July 1, 2009, " while Plaintiff was attempting to secure access to the women's restroom facilities," Hendricks issued plaintiff a " letter of admonishment," claiming that plaintiff had sent several " unprofessional" emails. Id. ¶ 49. Five days later, the NTEU filed a grievance on plaintiff's behalf, objecting to the letter of admonishment. Id. ¶ 50. The grievance was denied on February 26, 2010. Id. ¶ 78.

On July 10, 2009, plaintiff learned that she was promoted to a new position, which required her to transfer from her post in Fairfax, Virginia to Baltimore, Maryland. Id. ¶ 51. The transfer was scheduled to take place on August 3, 2009. Id. ¶ 53. Hart's new supervisors would be manager Steve Hansen in Baltimore and Barbara Tobias, the " Second-line Manager," in Florida. Id. On July 16, 2009, Jones notified Hart that she could use the women's restroom facilities at the Fairfax Office. Id. ¶ 52. Hansen and plaintiff executed an agreement on August 3, 2009, allowing plaintiff to telecommute, i.e., to work from home. Id. ¶ 55.

In late August and early September 2009, plaintiff...

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