Baird v. Snowbarger

• Decision Date: 13 October 2010
• Docket Number: Civil Action No. 09–1091 (ESH).
• Citation: 744 F.Supp.2d 279
• Parties: Rhonda N. BAIRD, Plaintiff,v.Vincent SNOWBARGER, Acting Director, Pension Benefit Guaranty Corporation, Defendant.
• Court: U.S. District Court — District of Columbia

744 F.Supp.2d 279

Rhonda N. BAIRD, Plaintiff,

v.Vincent SNOWBARGER, Acting Director, Pension Benefit Guaranty Corporation, Defendant.

Civil Action No. 09–1091 (ESH).

United States District Court, District of Columbia.

Oct. 13, 2010.

Rhonda N. Baird, Pension Benefit Guaranty Corporation, Office of the Chief Counsel, Washington, DC, pro se.Diane M. Sullivan, United States Attorney's Office, Raymond Morgan Forster, Pension Benefit Guaranty Corporation, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff Rhonda N. Baird has sued her employer, claiming discrimination on the basis of her race and sex, retaliation for engaging in protected activity, and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Before the Court is defendant's motion to dismiss, or in the alternative, for summary judgment. For the reasons set forth below, defendant's motion will be granted.

BACKGROUND

I. FACTUAL HISTORYA. Background

Plaintiff is an African–American female and is currently employed as an ERISA/bankruptcy attorney in the Office of the Chief Counsel, Pension Benefit Guaranty Corporation (“PBGC”). (First Amended Complaint [“Compl.”] ¶¶ 4, 7.) Although appearing pro se, plaintiff is an experienced litigant, having represented herself in numerous EEO complaints and civil actions, see, e.g., Anderson v. International Federation of Professional & Technical Engineers, No. 10–0895 (D.D.C. filed May 28, 2010); Baird v. Holway, No. 10–0572 (D.D.C. filed April 9, 2010); Baird v. Holway, 539 F.Supp.2d 79 (D.D.C.2008); Baird v. Chao, No. 03–1759 (D.D.C. filed August 19, 2003), and having served as a representative for PBGC employees with respect to their EEO complaints. ( See Compl. ¶ 7.) Plaintiff was also an active member of the union at PBGC, NAGE Local R3–77, and she served as union president from April 2007 until its dissolution in early 2009. ( Id. ¶¶ 38, 51.)

On October 2, 2002, plaintiff filed a formal EEO complaint against PBGC to redress workplace concerns in her department. ( Id. ¶ 9.) Thereafter, on November 13, 2002, plaintiff claims that she was accosted by a supervisor in her department. ( Id.) She filed a grievance with her department, the Office of General Counsel (“OGC”), regarding the incident, accusing PBGC of failing to investigate and to take action to correct the behavior. ( Id. ¶ 11.) The dispute went to arbitration under the collective bargaining agreement, and the arbitrator ruled in her favor in 2005. ( Id. ¶¶ 11, 18–20.) PBGC appealed the arbitrator's decision in 2008 ( id. ¶ 22), which was upheld by the Federal Labor Relations Authority on April 28, 2010. (Dkt. # 20.) While the subject of this arbitration is not before the Court, plaintiff claims this incident constitutes relevant evidence, as well as protected activity for purposes of plaintiff's retaliation claims.

B. 2005 EEO Complaint (Agency No. 05–12)

In spring 2005, two of plaintiff's co-workers at PBGC, Robert Perry and Dwayne Jeffers, concluded that plaintiff had disseminated flyers throughout the workplace that accused them of triggering a PBGC scan of its email system, which led to the firing and disciplining of several employees. ( Id. ¶¶ 25–26.) In response, Mr. Jeffers began sending emails to other PBGC employees calling plaintiff “psychotic.” ( Id. ¶ 26.) On April 8, 2005, plaintiff filed several complaints with PBGC's Human Resources Department (“HRD”) regarding these emails. ( Id. ¶ 27.) On June 16, 2005, PBGC sent an email to all employees regarding “Inappropriate use of PBGC Resources.” ( Id. ¶ 28.) HRD official Richard Lattimer sent a subordinate to obtain plaintiff's signature acknowledging that she had received this email. ( Id.) Mr. Lattimer requested this signature only from plaintiff and two other employees. ( Id.) Plaintiff refused to sign the acknowledgment, believing it to be retaliatory. ( Id.) The plaintiff's supervisor was contacted, and a meeting was held for the purpose of obtaining plaintiff's acknowledgment of receipt of the email. ( Id. ¶ 29.) At the meeting, an HRD official alleged that plaintiff had disseminated the flyers mentioned above. ( Id.) Plaintiff reported this incident to PBGC, but according to her, PBGC failed to respond. ( Id. ¶ 30.) In August 2005, plaintiff filed formal EEO complaint No. 05–12 challenging PBGC's failure to investigate her complaints. ( Id. ¶¶ 27, 30.) Thereafter, in November 2005, PBGC hired the law firm of Littler Mendelson to conduct an investigation into, among other things, plaintiff's complaints relating to the dissemination of inappropriate information in the workplace. ( Id. ¶ 31.) Plaintiff cooperated with this investigation and was informed in February 2006 that Litter Mendelson had found no violation of PBGC workplace rules because the conduct complained of constituted protected union activity. ( Id. ¶¶ 31, 33.)

C. 2006 EEO Complaints (Agency Nos. 06–09 and 07–01)

On April 10, 2006, plaintiff filed formal EEO complaint No. 06–09 alleging discrimination on the basis of race, sex and reprisal on the grounds that the agency had failed to promptly respond to her complaints, allowed medical and personal information to be disseminated by her union representative, blocked her email messages to her union representative and a witness in the arbitration, and sought to sanction her. Baird v. Snowbarger, EEOC Appeal No. 0120072177, Agency Nos. 06–09 and 07–01, 2009 WL 2135165 (July 10, 2009). On October 16, 2006, plaintiff filed formal EEO complaint 07–01 alleging that PBGC's EEO office improperly recommended dismissal of her 2005 EEO complaint. Id. PBGC consolidated these two complaints and dismissed them, and the EEOC affirmed the agency's dismissal on July 10, 2009. Id.

D. 2007 EEO Complaint (Agency No. 07–06)

On January 11, 2007, Raymond Forster, the primary OGC attorney who represented PBGC in plaintiff's union arbitration, sent an email to several PBGC employees advising the “11th floor OGC staff in the area of conference room 11E 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.” (Defendant's Motion to Dismiss or, Alternatively, for Summary Judgment [“Def.'s Mot.”] Ex. 3; Compl. ¶ 36.) Plaintiff reported the email to HRD, but according to plaintiff, defendant did not investigate the matter and did not take disciplinary action against Forster. ( Id. ¶ 37.) Plaintiff filed formal EEO complaint No. 07–06 in connection with this matter on February 12, 2007. (Def.'s Mot. Ex. 3.) PBGC's EEO office accepted the complaint for investigation on June 15, 2007, and the investigation was completed on April 1, 2008. ( Id.) Plaintiff requested a hearing before the EEOC on May 9, 2008, but filed this action prior to a final EEOC decision. ( Id. Exs. 31–32.)

E. EEO Complaints Nos. 09–02 and 09–06

On October 9, 2008, plaintiff filed yet another EEO complaint, No. 09–02, in which she alleged that she was subjected to race discrimination, reprisal, and a hostile work environment for “winning a liability decision finding unlawful retaliation by labor management staff of PBGC in 2005 & 2008 ... filing EEO complaints and civil action against PBGC, and representing employees in EEO matters from 2002–2008.” ( Id. Ex. 21.) Plaintiff filed formal EEO complaint No. 09–06 on similar grounds on February 23, 2009. ( Id. Ex. 22.) In these complaints, plaintiff alleged, inter alia, that PBGC “attacked her law license” and assigned her non-EEO work so that she would not have sufficient time to work on EEO matters. ( Id. Exs. 21– 22.) Final administrative action in these complaints occurred on April 28, 2009. ( Id. Ex. 23.)

F. EEO Complaint No. 08–03

Plaintiff filed EEO complaint No. 08–03 on November 29, 2007, alleging discrimination, retaliation, and hostile work environment when, in her capacity as union president, she engaged in several union activities, prompting adverse responses by agency management. Baird v. Millard, EEOC Appeal No. 0120083045, Agency No. 0803, 2008 WL 4922022 (Nov. 7, 2008). The agency dismissed the complaint on May 20, 2008, and the EEOC affirmed this dismissal on November 5, 2008. Id.

G. EEO Complaint No. FC–001–2010

In August 2009, plaintiff, in her capacity as counsel for fellow employee Richard Anderson, was deposing Ruben Moreno, an HRD labor management official, in Mr. Anderson's EEO action. (Compl. ¶ 55.) PBGC attorney Scott Schwartz was also present. ( Id.) During a break in the deposition, Mr. Moreno began angrily yelling at plaintiff and pounding the table. ( Id.) Plaintiff reported this incident to PBGC officials, who did not, in her view, take corrective action. ( Id.) As a result, plaintiff filed formal EEO complaint No. FC–001–2010 on October 27, 2009, which was dismissed by PBGC's EEO office on December 29, 2009. (Def.'s Mot. Exs. 24–25.)

* * *

Plaintiff filed her initial complaint on June 15, 2009, and an amended complaint on February 19, 2010. Defendant responded by moving to dismiss all counts on the grounds of failure to exhaust or for failure to state a claim, or in the alternative, for summary judgment. Plaintiff has opposed this motion, or in the alternative, has sought discovery under Federal Rule of Civil Procedure 56(f).

ANALYSIS

I. LEGAL STANDARD: MOTION TO DISMISS

Despite some confusion in this jurisdiction regarding “whether a failure to exhaust administrative remedies is properly brought in a Rule 12(b)(1) motion, as a jurisdictional defect, or in a Rule 12(b)(6) motion for failure to state a claim,” recent cases “favor treating failure to exhaust as a failure to state a claim.” Hansen v. Billington, 644 F.Supp.2d 97, 102 (D.D.C.2009) (listing cases); see also Kilby–Robb v. Spellings, 309 Fed.Appx. 422, 423 n. 1 (D.C.Cir.2009) (“[T]he mandatory exhaustion requirement is not jurisdictional.”).

As the Supreme Court...