Baird v. Gotbaum

• Decision Date: 28 August 2012
• Docket Number: Civil Action No. 09–1091 (ESH).
• Citation: 888 F.Supp.2d 63
• Parties: Rhonda N. BAIRD, pro se, Plaintiff, v. Joshua GOTBAUM, Director, Pension Benefit Guarantee Corporation, Defendant.
• Court: U.S. District Court — District of Columbia

888 F.Supp.2d 63

Rhonda N. BAIRD, pro se, Plaintiff,

v.Joshua GOTBAUM, Director, Pension Benefit Guarantee Corporation, Defendant.

Civil Action No. 09–1091 (ESH).

United States District Court, District of Columbia.

Aug. 28, 2012.

Rhonda N. Baird, Silver Spring, MD, pro se.

Michelle Lo, U.S. Attorney's Office, Scott Edward Schwartz, Pension Benefit Guaranty Corporation, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff Rhonda Baird sued her employer, the Pension Benefit Guaranty Corporation (“PBGC” or “the Agency”), claiming discrimination on the basis of her race and sex, retaliation for engaging in protected activity, and a retaliatory hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. On October 13, 2010, this Court granted defendant's motion to dismiss all counts. On December 13, 2011, the Court of Appeals affirmed in part and vacated in part that ruling and remanded a single claim—retaliatory hostile work environment—for further consideration. Defendant has moved to dismiss this one remaining claim and, for the reasons set forth below, its motion will be granted.

BACKGROUND

I. FACTUAL AND PROCEDURAL HISTORY

The factual background of plaintiff's claims is detailed in this Court's Memorandum Opinion, Baird v. Snowbarger, 744 F.Supp.2d 279, 283–85 (D.D.C.2010), and in the Circuit's Opinion, Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C.Cir.2011), so it need not be repeated here in detail. However, an abbreviated discussion of the claims relevant to this motion will be provided.

In its prior opinion, the Court held that claims based on five of plaintiff's EEO complaints—Nos. 08–03,¹ 09–02, 09–06,² and 06–09/07–01 ³ (consolidated)—were time-barred and dismissed those claims. It then addressed the four remaining claims—set forth in EEO complaints No. 05–12, No. 07–06, and No. FC–001–201–which had been properly exhausted and timely appealed and were based on four discrete episodes:

(1) In a [spring 2005] dispute within the PBGC over the agency's scan of its email system, some fellow workers [including union official Dwayne Jeffers] circulated emails calling Baird “psychotic.”

(2) [In June 2005, t]he Human Resources Department [“HRD”] singled out Baird in securing her signature acknowledging receipt of an office memorandumrelating to the use of office email.

(3) [In January 2007,] PBGC litigation counsel Raymond Forster sent an email to several employees advising “the 11th floor OGC [Office of General Counsel] staff in the area of conference room 11 E to use caution about what they say in halls or open offices,” for “[c]ertain people who will be in 11E have a way of twisting and publicizing their litigation induced hallucinations.”

(4) [In August 2009, o]ne Ruben Moreno had shouted and pounded the table at Baird while she deposed him during a proceeding involving Equal Employment Opportunity complaints.

Baird, 662 F.3d at 1248 (some alternations in original).

Plaintiff also claimed that, in retaliation for her prior protected activity, the PBGC “fail[ed] to take appropriate correction action” in response to the complaints that she regularly brought about these incidents. (Am. Compl. ¶ 68.) This Court dismissed her discrimination and retaliation claims based on the discrete episodes because none of the acts, or the failure to remedy them, was sufficient to establish an adverse action. Baird, 744 F.Supp.2d at 291–94. When considering Baird's retaliatory hostile work environment claim, this Court analyzed the Agency's multiple “failure[s] to take appropriate corrective action,” id. at 289, in response to the four discrete episodes and found them insufficient because none of the acts alleged, “whether considered alone or cumulatively, meets ‘the demanding standards' for a hostile work environment claim.” Id. at 295 (quoting Sewell v. Chao, 532 F.Supp.2d 126, 141–42 (D.D.C.2008)). Plaintiff appealed on multiple grounds.

The Court of Appeals initially observed that Baird's claims were “relatively unusual in that she d[id] not assert that discriminatory intention brought about the underlying acts,” but instead she claimed “that such discriminatory and retaliatory intent caused the PBGC's failure to respond to her complaints about them and to take corrective action against the employees who, as she sees it, had traduced or abused her.” Id. at 1249. It then went on to affirm the dismissal of plaintiff's claims of discrimination, agreeing that the four discrete episodes and the defendant's alleged failure to investigate and/or remediate them were workplace “slights,” and “even if unlawfully motivated, ... [they] would not rise to the level of adverse employment actions” because “each of the four discrete episodes seems (at worst) akin to the sort of public humiliation or loss of reputation that we have consistently classified as falling below the requirements for an adverse employment action.” Id. (internal quotation marks omitted).

It also affirmed the dismissal of Baird's retaliation claims based on the discrete episodes, as well as defendant's failure to investigate or to remediate, explaining that “[w]e do not believe that the PBGC's failure to remedy the various critiques and epithets to which Baird's fellow employees subjected her would have persuaded a reasonable employee to refrain from making or supporting charges of discrimination.” Id. at 1250.

However, it vacated the dismissal of her retaliatory hostile work environment claim and remanded for two reasons. First, the Circuit concluded that it was error under National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 120–21, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), to categorically exclude allegations from time-barred EEO complaints, without evaluating whether they “exhibit[ed] the relationship necessary to be considered part of the same actionable hostile environment claim.” Id. at 1251–52 (internal quotation marks omitted). Second, it was error to exclude the underlying acts that she claims PBGC failed to investigate or appropriately remediate from her retaliatory hostile work environment claim. Id. at 1252.

The Court must therefore first determine if the acts previously thought to be time-barred, are sufficiently “ ‘ similar in nature, frequency, and severity ... [to] be considered part and parcel of the hostile work environment’ ” such that they should be included in plaintiff's claim. Id. at 1251 (quoting Wilkie v. Dep't of Health & Human Servs., 638 F.3d 944, 951 (8th Cir.2011) (omission in original)). Second, it must determine whether that conduct, together with the acts alleged in the timely-filed claims, is sufficient to support a hostile work environment claim. Id.

II. PRESENT POSTUREA. Timely Claims

As noted, plaintiff's timely claims are based on four discrete episodes which occurred over the course of four years. Briefly, and taking plaintiff's allegations as true, these acts are as follows:

In spring 2005, Jeffers and Perry wrote insulting emails because they were angry that she told coworkers that they had prompted an agency-wide scan of employee emails. ( Id. ¶¶ 23–26.) Baird filed several complaints about this with the HRD beginning in April 2005. ( Id. ¶ 27.)

Soon afterwards, in June 2005, the Agency sent out a memorandum to all PBGC employees regarding the “[i]nappropriate use of PBGC Resources.” ( Id. ¶ 28 (alteration in original).) Plaintiff and two other employees were singled out by a subordinate of HRD official Richard Lattimer to sign an acknowledgement that they had received the memorandum. ( Id. ¶ 29.) When she refused to sign it, an HRD employee arranged a meeting with her supervisor and alleged that she had put up inflammatory flyers in the office. ( Id.)

In November 2005, the Agency hired a law firm (Littler Mendelson) to investigate complaints of inappropriate information in the office, including complaints made by Baird against Jeffers and Perry and complaints made by Jeffers and Perry against Baird. ( Id. ¶ 31.) The investigation concluded that there was no violation of the workplace rules because the emails sent by Perry and Jeffers related to protected union activity. ( Id. ¶ 33.)

Two years later, in January 2007, Forster (opposing counsel representing the agency in plaintiff's union grievance) sent an email to several coworkers stating that plaintiff experienced “litigation induced hallucinations.” ( Id. ¶ 36.)

Two and a half years after that, in August 2009, Ruben Moreno, an HRD labor management official, yelled at plaintiff and pounded on the table during a deposition that plaintiff was taking in an EEO arbitration proceeding. ( Id. ¶ 55.)

Following each of these acts, plaintiff complained to the Agency and, each time, according to plaintiff, the Agency “failed to take appropriate corrective action” in response to her concerns. ( Id. ¶¶ 27, 30, 37, 55.)

B. Untimely Claims

The Amended Complaint also asserts claims based on the following acts, which are time-barred except for their potential role in her retaliatory hostile environment claim if they meet the Morgan standard.⁴

After the law firm commenced its investigation of the inappropriate office emails, the Agency restricted Baird's emails to Jeffers and Perry in January 2006. ( Id. ¶ 32.) Through her participation in the law firm's investigation, Baird found out that, at some point prior to November 2006, Jeffers had sent her arbitration file to his private EEO attorney in response to a subpoena. ( Id. ¶ 35.) Her medical records, which were part of her arbitration file, were sent without her knowledge or consent. ( Id.)

While plaintiff was president of the union at PBGC, the Agency took an unfavorable position in union grievances and arbitrations. ( Id. ¶¶ 38–47.) From June 2008 through August 2008, arbitration proceedings in which she was involved became contentious and Scott Schwartz, counsel for PBGC, suggested that another employee should...