Altman v. McHugh

• Decision Date: 09 April 2012
• Docket Number: Civil Action No. 5:11cv00061
• Parties: BRENDA C. ALTMAN Plaintiff, v. JOHN MCHUGH, SECRETARY OF THE ARMY, Defendant.
• Court: U.S. District Court — Western District of Virginia

BRENDA C. ALTMAN Plaintiff,

v.JOHN MCHUGH, SECRETARY OF THE ARMY, Defendant.

Civil Action No. 5:11cv00061

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION

Entered: April 9, 2012

By: Michael F. Urbanski

United States District Judge

MEMORANDUM OPINION

Before the court is defendant John McHugh, Secretary of the Army's, ("the Army") Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Dkt. # 18). The Army has also filed a Motion to Compel Discovery and for Sanctions (Dkt. # 36), and pro se plaintiff Brenda Altman ("Altman") has filed several motions that are currently pending before the court. These motions are as follows: (1) Motion for Change of Court Date for Expert Witness to Appear (Dkt. # 34); (2) Motion for Continuance and Response to [QJuash Motions to Dismiss or, in the Alternative, [QJuash Motions for Summary Judgment (Dkt. #41); (3) Motion for Default Judgment and Opposition to Defendant's Summary Judgment Request and Answer to Motion for Compelling Discovery and Answer to Court's Order to Answer Defendant's Pleadings (Dkt. # 46); (4) Motion for Order Compelling Discovery and/or for Sanctions and Motion for Order to Answer Plaintiff's Interrogatories (Dkt. # 47), and (5) Motion for an Order to Show Cause (Dkt. # 57). In total there are seven pending motions currently before the court. All of these matters have been fully briefed, and the court heard oral argument on January 23, 2012. Because Altman's complaint fails to state plausible claims for relief, the Army's motion to dismiss must be granted. Accordingly, the other six motions filed by the parties are denied as moot.

I

Altman is suing the Army for age and sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act of 1967 ("ADEA"). Her complaint in this court also alleges discrimination in violation of the Americans with Disabilities Act of 1990 ("ADA") and the Rehabilitation Act of 1973 ("Rehabilitation Act"). This case has a very complicated procedural history. Altman was employed as a GS-7 Audit Assistant¹ with the U.S. Army Corps of Engineers, Transatlantic Programs Center, in Winchester, Virginia ("the facility"), from November 1991 until 1999. On March 13, 1995, she contacted an Equal Employment Opportunity ("EEO") counselor at the facility with four complaints: (1) she was not promoted to the position of auditor; (2) she was not provided the proper training to receive promotion; (3) she had wrongfully received a rating of "fair" instead of "successful" on her 1994 performance evaluation; and (4) she had been harassed by Carroll Correll, her supervisor and chief of the Audit Office. On June 6, 1995, Altman included these four allegations in two formal complaints filed with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination in violation of Title VII and the ADEA. These EEOC cases are 100-96-7706X and 100-96-7707X.

After an administrative hearing, Administrative Law Judge Rebecca Dickinson ("Judge Dickinson") issued a decision on July 30, 1999, in which she made the following findings. First, regarding Altman's allegations of non-promotion and improper training for promotion, Judge Dickinson held that the claims were untimely because Altman did not timely submit her complaints to the EEO counselor as required by 29 C.F.R. § 1614.105(a)(1).² These twocomplaints are based on what Altman claims to be the illegal promotion of her co-worker Paul Rosensteel, which occurred in 1992 and 1993, but Altman did not contact the EEO counselor at the facility until 1995, which is well beyond the regulatory forty-five-day mandatory time frame. Second, regarding Altman's allegation of harassment by Carroll Correll, Judge Dickinson determined that the relevant time period for this alleged misconduct was from 1994 through the filing of Altman's EEOC complaints in 1995, but Judge Dickinson then held that "[t]here is no probative evidence connecting Correll's conduct to [Altman's] age or sex." EEOC Findings and Conclusions, Dkt. #1, Ex. 33, at 8. Judge Dickinson held that Altman had not met her burden of proof regarding her allegations of discriminatory conduct by Carroll Correll. Finally, regarding Altman's allegation that she wrongfully received a "fair" rating on her 1994 performance evaluation, Judge Dickinson found that this claim had merit and held that Altman's 1994 performance rating was lowered in retaliation for her EEO activity and that the Army was therefore liable for discrimination under Title VII. Accordingly, Judge Dickinson ordered (1) that the Army raise Altman's performance evaluation rating from "fair" to "successful"; (2) that the Army pay Altman's reasonable attorney's fees and costs insofar as they are attributable to the portion of the case on which she prevailed;³ (3) that the Army post a specific "Notice to Employees" at the facility; and (4) that the Army promptly require Carroll Correll to undergo thorough training in the nondiscrimination and nonretaliation principles of Title VII and the ADEA. Judge Dickinson then scheduled a separate evidentiary hearing to consider Altman's request for compensatory damages.

The evidentiary hearing on compensatory damages was held on August 26, 1999. On September 7, 1999, Judge Dickinson ordered that Altman should receive (1) an award of $3,000 for nonpecuniary damages based on Altman and her son's testimony regarding her emotional distress due to the discriminatory performance evaluation;⁴ (2) reimbursement for forty hours of sick leave that Altman used immediately after receiving the discriminatory performance evaluation; and (3) reimbursement for her attorney's fees incurred in representing her at the compensatory damages hearing.⁵ After this ruling by Judge Dickinson, the Army issued a Final Agency Decision ("FAD") on November 8, 1999, in which it adopted Judge Dickinson's findings on the merits and on compensatory damages, as well as the recommended remedies. This FAD provided Altman with instructions for requesting reimbursement for attorney's fees, as ordered by Judge Dickinson, and for appealing the Army's FAD.

Altman timely appealed the Army's FAD to the EEOC's Office of Federal Operations ("OFO") on December 15, 1999. While the OFO was considering the appeal, the Army issued a second FAD on September 27, 2000, awarding Altman $20,511.59 in attorney's fees and costs, in accordance with Judge Dickinson's order, for pursuing her claim for discriminatory retaliation based on the 1994 performance evaluation. Altman appealed this decision to the OFO as well, which consolidated the two appeals and issued its final decision on June 20, 2002. The OFO's final decision affirmed the Army's FADs on all grounds and upheld Judge Dickinson's ruling on the merits, found that the compensatory damages award was consistent with EEOC precedent,and held that the attorney's fee award was reasonable and proper. Before this final decision was issued, however, Altman filed a complaint in the United States District Court for the District of Columbia ("D.C. district court") on February 7, 2001, thus beginning the current litigation.

While the administrative proceedings described above were pending with the EEOC, the Army removed Altman from her Program Analyst position on June 10, 1999, for unacceptable performance. Altman appealed this removal decision to the Merit Systems Protection Board ("MSPB"), and she entered into a settlement agreement with the Army on August 18, 1999.⁶ The settlement agreement stated that the Army would pay Altman $59,000, and in return Altman agreed to withdraw two of her many pending EEO complaints. Those EEO complaints are FO9904J0010 and FO9906J0020.⁷ EEO complaint FO9904J0010 involves allegations of reprisal and illegal conduct by the Army throughout what Altman refers to as (1) her "upward mobility" year, during which she was trained for her new Program Analyst position (from which she was later removed), and (2) her "performance improvement plan" period. EEO complaint FO9906J0020 involves allegations of (1) retaliation based on Altman's 1998 appraisal, which is dated April 5, 1999, and (2) reprisal and illegal conduct by the Army during Altman's upward mobility year and performance improvement plan period. In both EEO complaints, Altman essentially alleges that she was improperly removed from the Program Analyst position because she was not given the proper training for the position and was then unfairly evaluated on the knowledge of the position. The MSPB judge accepted the settlement agreement and dismissed Altman's MSPB appeal on August 19, 1999. The Army issued a settlement check in the amount of $59,000 on September 20, 1999, and mailed the check to Altman with a letter datedSeptember 29, 1999. More than ten years later, Altman denies receipt of the settlement proceeds.⁸

Altman subsequently complained to the MSPB that the Army had violated the nondisclosure terms of the settlement agreement, but the MSPB, in a decision issued on October 18, 2000, found that the Army had not breached the agreement. Altman then appealed this ruling to the United States Court of Appeals for the Federal Circuit. The Federal Circuit, in an opinion dated June 7, 2001, noted its exclusive jurisdiction over Altman's appeal of the MSPB's final decision and then affirmed the MSPB's ruling that the settlement agreement between the Army and Altman was valid and that the Army had not violated the terms of that agreement.⁹

This brings us to Altman's pending litigation in this court, which stems from her complaint,filed in the D.C. district court on February 7, 2001. On December 15, 2003, that courtordered that venue be transferred to the United States District Court for the Western District of Virginia, but the record was not transferred until July 5, 2011, about seven and a half years later. It appears that the record was not timely transferred to...