Bennett v. United States

• Decision Date: 30 July 2018
• Docket Number: No. 18-162C,18-162C
• Parties: DARLENE BENNETT, Plaintiff, v. UNITED STATES, Defendant.
• Court: Court of Federal Claims

DARLENE BENNETT, Plaintiff, v. UNITED STATES, Defendant.

No. 18-162C

United States Court of Federal Claims

July 30, 2018

ORIGINAL

Pro Se Plaintiff; Motion to Dismiss; Subject Matter Jurisdiction; In Forma Pauperis; Tort; Equitable Relief.

Darlene Bennett, pro se, Suitland, Maryland.

Steven C. Hough, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Tara K. Hogan, Assistant Director, Robert E. Kirshman, Jr., Director, and Chad A. Readler, Acting Assistant Attorney General. Of counsel was and Sandra Soderstrom, Attorney, Office of the General Counsel, United States Department of Commerce, Washington, D.C.

OPINION

HORN. J

FINDINGS OF FACTS

On January 31, 2018, plaintiff filed a complaint against the "United States, Dept. of Commerce," "on the grounds of Discrimination, Age, Retaliation, Harassment, Decretion/Acretion [sic] of duties, Hostile work environment, adverse action, and disparate treatment." Also on January 31, 2018, plaintiff filed an Application to Proceed In Forma Pauperis. Plaintiff states that she is "filing this complaint with the U.S. Court of Federal Claims for a judge to review and provide a ruling based on the accepted allegations, facts and evidence presented." According to plaintiff's January 31, 2018 complaint, plaintiff seeks "compensatory damages for emotional distress, harassment, embarrassment, and continued reprisal in the sum of $800,000." Additionally, plaintiff seeks a "[r]ewrite of performance reviews for FY15, FY16, & FY17 to remove negative comments that do not reflect the employee. Promotion to next grade level of pay band 3. For the Retaliation to stop and to work under new management. Remove current management."

On March 5, 2018, the court received a letter from plaintiff, which did not comply with the court's filing procedure, and which appeared perhaps to be an attempt to amend her complaint. On March 12, 2018, the court issued an Order that referred plaintiff to the Rules of the United States Court of Federal Claims (RCFC) and instructed plaintiff to refer to RCFC 10 (2018), titled "Form of Pleadings," and to respond to the court's Order on or before April 16, 2018. On March 27, 2018, the court received a filing from plaintiff, which did not include a certificate of service, and on March 28, 2018, the court issued an Order instructing plaintiff to refile her March 27, 2018 filing in accordance with RCFC 5.3 (2018).

On April 6, 2018, before the defendant filed a response to plaintiff's original complaint, plaintiff filed an amendment to her complaint titled "FIRST AMENDED COMPLAINT," in which plaintiff alleges additional claims and requests further relief.¹ (capitalization in original). In plaintiff's amendment to her complaint, plaintiff asserts "new accepted allegations by the Commerce Dept. for investigation," and indicates that since filing her complaint "she continues to experience retaliation/reprisal as a result of the filed complaint(s)." Plaintiff's amendment to her complaint also requests an increase in monetary relief, from $800,000.00 to $2,500,000.00, "because of the enlargement of the case with adding in the two previous cases as well as the continued distress due to the continued retaliation the Plaintiff endures daily." Plaintiff requests that "all legal fees be paid by the agency in the event an attorney is hired," as well as "all court fees" and "[a]ll fees for production of documents, photocopying and all certified mail." Finally, plaintiff asks for "all leave in which Plaintiff has used for stress days, case related Dr. Appts and leave used for complaint prep be reimbursed."

Plaintiff is currently employed as a "Program Support Specialist . . . with the Office of Sustainable Fisheries, National Marine Fisheries Service, National Oceanic and Atmospheric Administration [NOAA]." According to plaintiff's complaint, "due to her race (African American), color (African American), age (DOB: February 14, 1970), and in retaliation for her prior EEO[²] [Equal Employment Opportunity] activity, she has been subjected to acts of discrimination and harassment constituting a hostile work environment." Plaintiff asserts:

1. Jenni Wallace, her supervisor, questions her ability to do her work assignments and has accused her of not meeting deadlines and not completing her assignments with all of the information that is needed;

2. Wallace has harassed her about making errors on her assignments which are not her fault.

3. Wallace commented to her that "it is not [Complainant's] responsibility to judge [Complainant's] colleagues" and to just do what Wallace instructs her to do and to stop questioning everything.

4. Wallace has other staff members watch her and scrutinize everything she does.

5. When Wallace has questions about Complainant's work, Wallace involves a co-worker, Maria Utterhove [sic], to review it.

6. On October 26, 2016, Wallace denied her request to telework additional days.

7. On November 7, 2016, she received an unfavorable performance rating, with a score of 59, which was not an accurate reflection of her actual performance.

8. With respect to her work assignments and assigned duties:

a. She is being forced to take on new projects and she has been informed that she be mandated to take on new tasks regardless of whether she knows the tasks or not. Further, Wallace told her that she has one (1) to two (2) weeks to find new work or she will assign the new tasks.

b. When she sought out work from a co-worker that she was interested in, it was blocked.

c. Wallace performs all work related to Human Resources uploading of documents and attends Human Resources meetings.

d. Wallace attends all meetings but she is forced to self-teach herself the necessary skillsets for processing forms that she knows nothing about and also self-teach herself the Hiring freeze process.

e. Wallace communicates with the Acquisition Office on her contract duties then she is notified, instead of being contacted first.f. Her performance plan has been changed to add in new projects/tasks.

9. The comments made at her face-to-face midyear meeting differ from the comments placed in Sharepoint.

(alterations in original).

Plaintiff's complaint alleges that "[t]he Agency has fostered a culture of bigotry and there is no accountability." Plaintiff alleges that her current supervisor, Jenni Wallace, is retaliating against her "through performance reviews, mcromanaged [sic] tasks, increased surveillance, etc." Plaintiff's complaint also asserts that "[t]his case also involves many members of the General Counsel and others within the Dept. of interfering with the process of the investigation," but plaintiff does not indicate the names of the additional individuals or how the individuals have interfered with "the process of the investigation."

Plaintiff's complaint and subsequent amendment to the complaint indicate that she has filed at least four claims with the EEO claims.³ In her complaint, plaintiff states "[t]he case I bring before you is case number 54-2016-00327. This case was pulled from the EEOC because the agency had not assigned a judge to the case." Plaintiff alleges "case number 54-2016-00327 was not handled right from the beginning." According to plaintiff, "[t]he Agency failed to hire an investigator to investigate the case and when asked about why it took so long for an investigator to be assigned, the Agency responded that for reasons they did not fee! they needed to discuss with me." Attached to plaintiff's original complaint are emails, however, which indicate that Mr. George White was assigned as an investigator to "case number 54-2016-00327" on Friday, February 24, 2017. Plaintiff also claims that, "[o]nce the investigator was hired, we were suppose [sic] to meet but that never happened," and that plaintiff "requested several times to be granted a new investigator but the Agency denied the request. It was as if their [sic] was a personal incentive or gain for having that investigator."⁴ Plaintiff's complaint further alleges that"[t]he investigator then put together a Report of Investigation without any input from me the Complainant. The Report of Investigation was not mailed to me and when I asked about it I was told that it was sent back to them." Moreover, plaintiff indicates that she "then had to request for the Report of Investigation to be sent to me via email."

Additionally, plaintiff states, "I also have a 2 consolidated cases that is [sic] in the appeal process that is not apart [sic] of this case but should the decision not go in my favor, I would want to consolidate that case with this complaint for a judge to rule and provide a ruling." In plaintiff's amendment to her complaint, plaintiff indicates that even though case numbers "54-2015-00095 & 54-2016-00258" are still "In the appeal stage," she requests to add them to her current complaint before this court, stating, "[t]he 180 days is the stated timeframe for when a lawsuit can be filed and the complaints can be withdrawn if no decision has been granted." Finally, plaintiff's amendment to her complaint requests that the court "pls. allow all dismissed allegations to [sic] added into case." Plaintiff attached to her amendment to her complaint a dismissal document dated March 26, 2018, from the Office of Civil Rights at the United States Department of Commerce, which dismisses plaintiff's claims "in reference to Complaint Number 54-2018-00028."

Plaintiff's amendment to her complaint also includes an email dated April 4, 2018, between plaintiff and her supervisor, Jenni Wallace, in which Ms. Wallace explains, "[i]t has come to my attention that I am actually not able to give official time for time spent preparing EEO claims that are in federal court. If you have any questions about the regulations, please contact Sandra Soderstrom in the Office of the General Counsel. . . ." According to the Office of Civil Rights' March 27, 2018 dismissal, plai...