Brown v. McDonough
| Docket Number | Civil Action 14-1457 (JMC) |
| Decision Date | 25 May 2023 |
| Parties | GAYLE D. BROWN, Plaintiff, v. DENIS R. MCDONOUGH, in his official capacity as Secretary of Veterans Affairs, Defendant. |
| Court | U.S. District Court — District of Columbia |
Gayle Brown, an employee of the Department of Veterans Affairs (VA), has made multiple claims of discrimination against her employer under Title VII, the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Age Discrimination in Employment Act (ADEA),[2]and the Notification of Federal Employees Antidiscrimination and Retaliation Act (No Fear Act). Defendant filed a Motion to Dismiss most of Ms. Brown's claims, ECF 21,[3]and later filed a Motion for Judgment on the Pleadings as to the rest, ECF 57. The Court grants Defendant's motions to dismiss all Ms. Brown's claims except for one-that Defendant intentionally discriminated against Ms. Brown on the basis of age and sex when it allegedly reassigned her fleet management duties to a younger, male analyst in May 2014.
Ms. Brown, who is an African-American woman and who was more than forty years old during the events that are relevant to this case, filed four Equal Employment Opportunity (EEO) complaints between 2009 and 2014 alleging discrimination. Those complaints, which form the basis for this action, are incorporated into her Amended Complaint by reference. See generally ECF 15. The Court will begin by summarizing the allegations in each of Ms. Brown's EEO complaints, along with their procedural histories.
Ms. Brown, a long-time employee at the VA, filed her first EEO complaint in August 2009. ECF 21-1 at 7 (EEO Complaint). In that complaint, she alleged that she was discriminated against on the basis of race, gender, and age when she was not selected for the position of Supervisory Program Analyst, for which she interviewed in March 2009. Id. at 7, 9, 11. Ms. Brown alleged that her management experience far outweighed that of the white male employee who was selected, id. at 9-10, and that the stated rationale for the decision to hire that candidate (that he “had a vision”) was transparently pretextual, id. at 11. Ms. Brown's claim was denied by the VA, and she petitioned the EEOC for a hearing. Id. at 12 (EEOC Decision).
An EEOC administrative judge ruled that, though Ms. Brown was qualified for the position, she had failed to “establish that she was subjected to discrimination on the bases of race, sex or age.” Id. at 12. On October 19, 2011, the EEOC issued an order informing Ms. Brown that she had the right to file a civil action “within ninety (90) calendar days from the date that you receive this decision.” Id. at 14. On January 18, 2012, Ms. Brown attempted to file a complaint in this Court concerning her nonselection, ECF 1 at 25, together with a letter requesting to proceed in forma pauperis, id. at 24. Defendant appears to concede that a complaint filed on that day could have been found timely, given that there is no record of when Ms. Brown received notice of the EEOC decision. See ECF 58 at 25. However, Ms. Brown's draft complaint was returned to her unfiled, along with instructions on how to correctly apply to proceed in forma pauperis. ECF 1 at 23. Ms. Brown did not file a new complaint concerning the 2009 nonselection until more than two years later, in August 2014. ECF 1.
Ms. Brown filed a second EEO complaint in December 2009, claiming discrimination and hostile work environment based on race, sex, age, disability,[4] and reprisal. ECF 21-1 at 15 (EEO Complaint). Ms. Brown alleged the following discrete acts of discrimination, which occurred between May and November 2009: she was denied a reasonable accommodation when three requests for advance sick leave were denied; she was given unreasonable work assignments and deadlines; she was treated unprofessionally in front of her colleagues and was required to affirmatively account for her productivity in ways her coworkers were not; she was twice denied overtime and compensatory time; and she was wrongly denied an extension of time to complete a training task. See id. at 17, 23. Ms. Brown's second EEO complaint, like her first, was denied by the VA, and she petitioned the EEOC for a hearing. See id. at 21 (Final Agency Decision). That request for a hearing was denied by an administrative judge as untimely. See id.
On February 28, 2012-more than a month after Ms. Brown's would-be complaint based on her first EEO complaint was returned to her unfiled, see ECF 1 at 23-the VA issued a Final Agency Decision as to her second EEO complaint, concluding that “[t]he weight of the evidence shows that the complainant was not discriminated against as alleged.” ECF 21-1 at 39. That decision instructed Ms. Brown that she had “the right to file a civil action in an appropriate United States District Court . . . within 90 days of receipt of this final decision.” Id. at 44. Ms. Brown did not file a civil complaint concerning the allegations in her second EEO complaint until August 2014. ECF 1.
Ms. Brown's third EEO complaint was filed in December 2010. ECF 21-1 at 46 (EEO Complaint). In that complaint, Ms. Brown once again made claims of discrimination and hostile work environment based on race, sex, age, disability, and reprisal. Id. at 48. The complaint included a new nonselection claim, as Ms. Brown had once again applied for the position of Supervisory Program Analyst, only to be passed over in favor of a Black male candidate who Ms. Brown alleges was less qualified than her. Id. at 69 (Final Agency Decision). Ms. Brown also claimed discrimination based on a lower-than-deserved performance rating she had received in 2010, id. at 58 (no. 11), and a series of incidents involving a single supervisor from August through October of 2010, compare id. at 57-58 (nos. 1, 5-10, 12, 13), with ECF 15 ¶¶ 39, 41-46, 48, 49, 52-54. Those incidents included Ms. Brown being admonished in front of her colleagues, denied medical leave on multiple occasions, interrupted during a telephone conversation to be given a work-related task, and charged with several hours' time of AWOL for her disability related absences. ECF 21-1 at 57-58. The VA issued a Final Agency Decision denying her claims. ECF 21-1 at 73 n.1. Ms. Brown's appeal of that decision was denied on May 22, 2014. Id. at 73, 76.
That denial instructed Ms. Brown that she had ninety days to file a civil action. Id. at 75. Ms. Brown filed this case eighty-nine days later, on August 25, 2014. ECF 1.
On the same day as she filed her appeal of the VA's adverse decision, Ms. Brown also filed a petition for Chapter 13 bankruptcy. See ECF 21-1 at 73; Bankr. Petition 12-bk-221 (D.D.C.), ECF 1.[5]Ms. Brown's bankruptcy case is relevant here because at no point during that proceeding did she disclose her third EEO complaint or the discrimination claims underlying that complaint. See generally Bankr. Petition. Ms. Brown did not list her administrative claims as a contingent or unliquidated asset in her bankruptcy petition. See Bankr. Petition, ECF 1 at 10. Nor did she list the claims in her Statement of Financial Affairs, which required her to “[l]ist all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case.” See id. at 28. Ms. Brown also failed to disclose her discrimination claims later in the bankruptcy proceedings, when she amended her petition to list a pending workman's compensation claim as a contingent asset, Bankr. Petition, ECF 27 at 5-a step she took after the Trustee moved to dismiss her case for failure to disclose that claim, Bankr. Petition, ECF 22. Ms. Brown's bankruptcy plan was confirmed on June 22, 2012, Bankr. Petition, ECF 36, and her debt was discharged on November 24, 2015, Bankr. Petition, ECF 112.
On June 27, 2014, Ms. Brown initiated contact with an EEO officer regarding the allegations underlying her fourth and final EEO complaint. ECF 58-2 at 7 (Final Agency Decision). She subsequently filed a formal EEO complaint alleging discrimination and hostile work environment based on sex, age, and reprisal. Id. at 7-8. In her fourth complaint, Ms. Brown alleged two (timely) discrete acts of discrimination.[6] The first was her employer's decision to reassign her fleet management duties and responsibilities to a younger, male analyst, whose position was subsequently upgraded from GS-11 to GS-13. Id. at 7, 12. The second was a one-day suspension Ms. Brown received in April 2015 due to alleged disruptive conduct and failure to carry out an order from her supervisor. Id. at 8. In the administrative proceedings adjudicating her claims, Ms. Brown's second-line supervisor stated that her suspension was based on the results of a “fact-finding inquiry” conducted after Ms. Brown had been involved in two altercations with a male co-worker. Id. at 13, 14.
Ms Brown's hostile work environment claim referenced eleven incidents dating back to 2011. Id. at 8. Those incidents included: “complaints regarding her performance ratings, a delay in issuing new performance standards, re-assigning of her mail management duties, being given a short turnaround time on work assignments, being told that any employee would be charged with AWOL if they were away from their workstations for 15 minutes or more (including going to the restroom) and being charged with AWOL.” Id. at 15. As for evidence that those incidents were discriminatory, Ms. Brown maintained that “all her supervisors are male and that they hire males and generally treat males better than females,” and that “her department has a...
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