Battle v. Burwell
| Decision Date | 19 September 2016 |
| Docket Number | Case No.: PWG-14-2250 |
| Parties | JEFFERY BATTLE, Plaintiff, v. SYLVIA MATTHEWS BURWELL, DEPARTMENT OF HEALTH & HUMAN SERVICES, NATIONAL INSTITUTES OF HEALTH, Defendant. |
| Court | U.S. District Court — District of Maryland |
Following years of perceived discrimination by his employer and retaliation for his complaints about that discrimination, culminating in the termination of his employment, Jeffery Battle, an African American male, filed suit in this Court against his employer, the U.S. Department of Health and Human Service's National Institutes of Health (the "Agency"). ECF No. 1. He filed his prolix original Complaint without counsel, identifying a litany of instances of mistreatment and claiming gender and race discrimination, retaliation, hostile work environment, and "[d]iscrimination based on disability." Id. Battle then retained counsel and amended his complaint, ECF No. 17, which the Agency believed was subject to dismissal or summary judgment in its favor, ECF No. 24. I permitted Battle to amend again to address the deficiencies the Agency identified, ECF No. 26, and he filed his Second Amended Complaint, ECF No. 32.
Now pending is the Agency's Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 42, in which the Agency contends that the claims in Battle's Second Amended Complaint, like his previous claims, are either unexhausted or comprised of only "bald assertions," or alternatively, that the Agency is entitled to summary judgment based on the evidence in the administrative record.1 I must dismiss those claims for which Battle failed to exhaust his administrative remedies. Additionally, Battle fails to state a claim for race or gender discrimination based on the remaining allegations. Nor does he state a claim for hostile work environment or "[d]iscrimination based on disability." But, because Battle has shown that it is premature to consider the Agency's summary judgment motion as to his retaliation claims, this case will proceed to discovery with regard to them.
Battle worked for the Agency from August 2009 until it terminated his employment in July 2014.2 Second Am. Compl. ¶ 6. He was a Lead Team Specialist and also served as an Acting Supervisor of Contracting. Id. He received "only . . . positive evaluations up until 2010," when former Acting Supervisory Contract Specialist Pat Rice "became his acting supervisor." Id. ¶¶ 8-9.
According to Plaintiff, Rice "required that Mr. Battle participate in procurement activities that ran counter to mandatory federal procurement regulations, policies and laws" and Plaintiff "began getting negative performance evaluations," such as his "final 2010 performance evaluation," in which "Mr. Rice gave him a minimally successful rating." Id. ¶ 9. Plaintiff alleges that in May 2011, he "attempted to gain a promotion to the position of Supervisor[y] Contract Specialist GS-1102-14[,] the Facilities Support Services Contracting Brach's (FSSCB)Branch Chief," which appears to be the position he was filling as "Acting Supervisor of Contracting GS-1102-14," but Rice hired a white female who "was not qualified" instead. Id. ¶ 11. Yet, he concedes in his Opposition that he did not apply for the position, insisting that his failure to apply was "due to Defendant's shenanigans." Pl.'s Opp'n 14 n.8.3
Then, "[i]n August 2011, Mr. Daniel Wheeland retaliated against the Plaintiff when he did not hire Mr. Battle as Supervisor of Contracting GS-1102-15 even though his qualifications were superior to the selected applicant Ms. Sharon Bruce." Id. ¶ 13. Again in Fall 2011, Battle was "required [to] participate in procurement activities that ran counter to mandatory federal procurement regulations, policies and laws." Id. ¶ 14. When he refused, his supervisor "began screaming and yelling at him, and swung a large and dense contract file, about 4" thick with the constancy [sic] of a large brick, in Mr. Battle's face" and almost hit him. Id. He "reported this conduct to the NIH police" and management. Id. ¶¶ 14-15.
On June 13, 2011, Battle had "sought EEO [Equal Employment Opportunity] counseling which was reported to upper management," and he filed a formal complaint with the Agency's EEO office on August 10, 2011. Id. ¶¶ 12, 27. He amended his EEO complaint in September and October 2011, ultimately "charg[ing] discrimination and a hostile work environment based on race [and] sex[,] and retaliation," based on the above allegations. Id. ¶ 27.
In January 2012, his supervisor revoked his telecommuting schedule and his "official duties as a Lead Team Specialist." Id. ¶ 21. In December 2012, his supervisor mischaracterized his leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 - 2654, "andthen placed him in LWOP [leave without pay] status."4 Id. ¶ 16. However, Plaintiff concedes that "the leave discrepancy was discovered and corrected." Pl.'s Opp'n 10 n.5. One month later, his supervisor failed to "report[] the results of his ergonomic study to the NIH Office of Medical Services and Employee Relations, . . . resulting in his medical condition worsening." Second Am. Compl. ¶ 17. Also in January 2013, his supervisor refused to acknowledge a project he completed, "which resulted in a lowered 2012 performance rating." Id. ¶ 18.
Battle sought EEO counseling again on February 3, 2013, and filed another formal complaint on March 3, 2013 "based on retaliation, discrimination based on race, sex and physical disability, hostile work environment, harassment, and time and attendance violations." Id. ¶ 28. He received a notice of right to sue for both complaints. Id. ¶ 29.
In March 2013, he received a Letter of Reprimand and was "charged AWOL for 2 hours with no valid explanation." Id. ¶ 19. The next month, "Plaintiff's supervisor developed a false and deceptive report that was forwarded to the Office of Medical Services regarding his request for a reasonable medical accommodation." Id. ¶ 20. Also in April 2013, his "supervisor down rated his final 2012 Performance Evaluation to unsatisfactory, and placed him on a performance improvement plan (PIP)." Id. ¶ 21. He was denied a pay increase in 2013. Id. ¶ 26.
He received a "hostile and threatening" email (the content of which nowhere appears in the record) from the Director of Contracting in July 2013, id. ¶ 22, and his female supervisor "would say shocking and demeaning things" in his PIP meetings, including "'Blow me!'" Id.¶ 23. He was placed on administrative leave in August 2013. Id. ¶ 24. He amended his second EEO complaint to encompass all of these allegations. Def.'s Mem. 8-9.
The Agency terminated Battle's employment in July 2014. Id. ¶ 6. He initiated this suit without an attorney on July 15, 2014. Pl.'s Opp'n 3. He then sought EEO counseling on July 24, 2014 and filed a third EEO complaint on August 28, 2014, alleging discrimination and retaliation based on the termination of his employment. Id. He participated in a settlement conference but did not reach an agreement. Id. at 4. Purportedly on the advice of an administrative law judge, Battle withdrew his third EEO complaint and filed an appeal of his termination with the Merit Systems Protection Board ("MSPB"). Id. He then withdrew his MSPB appeal. Id. He tried to renew his third EEO complaint, but "was informed that he could not continue with his NIH EEO complaint . . . once the claim had been cancelled." Id.
"[F]ederal courts lack subject matter jurisdiction over Title VII claims for which a plaintiff has failed to exhaust administrative remedies." Murphy v. Adams, No. DKC-12-1975, 2014 WL 3845804, at *7 (D. Md. Aug. 4, 2014) (quoting Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013)). Because the Agency argues, with regard to some of the alleged discriminatory acts, "'that [the] complaint simply fails to allege facts upon which subject matter jurisdiction can be based,' . . . 'the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.'" Fontell v. MCGEO UFCW Local 1994, No. AW-09-2526, 2010 WL 3086498, at *3 (D. Md. Aug. 6, 2010) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)), aff'd, 410 F. App'x 645 (4th Cir. 2011); see also Ford v. Master Sec. Co., LLC, No. PWG-15-2220, 2016 WL 1752897, at *2 (D. Md. May 3, 2016).
A complaint is subject to dismissal if it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and must state "a plausible claim for relief," Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Rule 12(b)(6)'s purpose "'is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'" Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).
In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Ultimately, a complaint must "'permit[] the court to infer more than the mere possibility of misconduct' based upon 'its judicial...
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