Horsey v. Harris

• Citation: 953 F.Supp.2d 203
• Decision Date: 16 July 2013
• Docket Number: Civil No. 12–1457 (JDB).
• Parties: Mae HORSEY, Plaintiff, v. Seth D. HARRIS, Acting Secretary, Department of Labor, Defendant.
• Court: U.S. District Court — District of Columbia

953 F.Supp.2d 203

Mae HORSEY, Plaintiff,

v.Seth D. HARRIS, Acting Secretary, Department of Labor, Defendant.

Civil No. 12–1457 (JDB).

United States District Court,

District of Columbia.

July 16, 2013.

Mae R. Horsey, Stafford, VA, pro se.

Peter C. Pfaffenroth, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiff Mae Horsey, proceeding pro se, brings this action against defendant Seth D. Harris in his capacity as Acting Secretary of the U.S. Department of Labor (“Department”).¹ The events giving rise to this case stem from Horsey's employment at the Department. Her complaint, liberally construed, alleges discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq.; violations of the merit system principles and prohibited personnel practices, 5 U.S.C. §§ 2301 and 2302; and other allegedly unlawful actions by the Department.

Before the Court is the Department's motion to dismiss for failure to state a claim and, in the alternative, for a more definite statement. For the reasons set forth below, the Court will grant the Department's motion to dismiss.

BACKGROUND

I. Factual Background

Horsey is an African–American woman who was employed by the Department in the Office of Executive Resources and Personnel Security. See Ex. B to Def.'s Mot. to Dismiss [Docket Entry 6–2] at 4 (Jan. 4, 2013).² In April 2006, Andrea Burckman became Horsey's immediate supervisor. See id. Most of Horsey's complaints in this matter derive from her experience working under Burckman. Horsey's troubles with Burckman began when Burckman gave Horsey a performance evaluation rating of “Effective” for Fiscal Year 2006, rather than the “Exemplary” rating which Horsey thought she deserved. See Ex. 1 to Compl. [Docket Entry 1–1] at 1, 9 (Aug. 31, 2012). Horsey unsuccessfully attempted to challenge her rating with other Department management. See Compl. [Docket Entry 1] at 3 (Aug. 31, 2012).

Burckman began implementing new office policies that caused further friction between her and Horsey. For example, in September 2006, Burckman started requiring one staff member to provide office coverage until 5:00 p.m. each night. See Ex. B to Def.'s Mot. to Dismiss at 4–5. Staff were assigned this responsibility on a rotating basis and were advised to manage their schedules so that they did not accumulatecredit hours in connection with performing office coverage. See id.³ Horsey asked to be exempted from the 5:00 p.m. office coverage obligation because she paid to commute home in a vanpool which left at 4:15 p.m., and Burckman denied the request. See Ex. D to Def.'s Mot. to Dismiss at 2.

Burckman also made organizational changes. Based on the needs of the office, Team Leader positions were abolished. See Ex. 2 to Compl. [Docket Entry 1–2] at 2 (Aug. 31, 2012). As a result of this decision, Horsey's position was reassigned from Lead Human Resources Specialist to Human Resources Specialist in November 2006, though her grade level (GS–14) remained the same. See Ex. 3 to Compl. [Docket Entry 1–3] at 8 (Aug. 31, 2012). Burckman additionally reorganized the work distribution of the office in an effort to improve consistency and accountability. See Ex. B to Def.'s Mot. to Dismiss at 6–7.

After discovering that staff members were accumulating credit hours that she did not believe their workloads necessitated, Burckman informed staff in January 2007 that they needed prior approval from her in order to properly earn credit hours. See id. at 7; Ex. D to Def.'s Mot. to Dismiss at 2. Burckman further advised staff that failure to comply with this guidance could result in disciplinary action. See Ex. D to Def.'s Mot. to Dismiss at 2–3. Horsey generally alleges that her workload was excessive, which, combined with the policies on 5:00 p.m. office coverage and pre-approval of credit hours, resulted in her working numerous hours uncompensated. See Compl. at 4–5.

In one pay period in January 2007, Horsey recorded 3.25 credit hours without seeking prior approval from Burckman. See Ex. B to Def.'s Mot. to Dismiss at 7. Burckman altered Horsey's timesheet, but Horsey's credit hours were ultimately restored. See id. at 7–8. However, Burckman warned Horsey that she would be disciplined if she earned any unapproved credit hours again. See id. at 8.

Horsey nevertheless earned an additional two hours of credit time in March 2007, which she recorded as compensatory time. See id.; Ex. 5 to Compl. [Docket Entry 1–5] at 2 (Aug. 31, 2012). Consistent with her prior warnings, Burckman issued Horsey an official letter of reprimand on March 12, 2007. See Ex. 5 to Compl. at 3–4. The letter reprimanded Horsey for obtaining credit hours without prior approval and for unacceptable behavior in the office. See id.

Burckman gave Horsey a performance rating of “Minimally Satisfactory” for Fiscal Year 2007. See Ex. 2 to Compl. at 1; Ex. H to Def.'s Mot. to Dismiss [Docket Entry 6–8] at 3 (Jan. 4, 2013). Horsey again tried to protest the rating to other Department management but did not succeed. See Compl. at 6; Ex. F to Def.'s Mot. to Dismiss [Docket Entry 6–6] at 5–6 (Jan. 4, 2013).

On September 19, 2007, Burckman proposed placing Horsey on a five-day suspension for failure to follow instructions and for inappropriate behavior. See Ex. 6 to Compl. [Docket Entry 1–6] at 1 (Aug. 31, 2012). Burckman noted that Horsey often failed to perform the 5:00 p.m. office coverage and cited six specific examples of when Horsey was assigned to provide coverage but refused and left early. See Ex. F to Def.'s Mot. to Dismiss at 8. Burckman also noted specific incidents of Horsey's unprofessional and disrespectful conduct towards her. See Ex. 6 to Compl. at 1–2. Horsey was ultimately given a two-day suspension. See Ex. F to Def.'s Mot. to Dismiss at 6.

In a related incident, Horsey recorded on her timesheet that she served five hours a day when she was on suspension. See Compl. at 12; Ex. F to Def.'s Mot. to Dismiss at 9. Burckman and Jerry Lelchook (Horsey's second level supervisor) directed her to change the hours served to eight based on Office of Personnel Management and Department of Labor rules that required suspensions to be served on an eight-hour per day basis. See Ex. F to Def.'s Mot. to Dismiss at 5, 9.

On December 27, 2007, Burckman and Lelchook informed Horsey that, due to a conflict of interest, they declined to recognize the Local 12 Vice President as Horsey's representative in discussions about her performance appraisal. See id. at 6. Horsey claims that she said that her representative “was not working on behalf of the Union” and that she was also denied a representative of her choice in the Equal Employment Opportunity (“EEO”) process, which is discussed below. See Compl. at 11.

II. Procedural Background

Horsey initially contacted the EEO office regarding her workplace troubles on January 18, 2007. See Ex. B to Def.'s Mot. to Dismiss at 9. She filed a formal EEO complaint against the Department on April 24, 2007. See Def.'s Mot. to Dismiss [Docket Entry 6] at 3 n. 1 (Jan. 4, 2013). The following claims were accepted for investigation: whether the Department discriminated against Horsey on the basis of race (African–American), age (over forty), gender (female), disability (physical leg injury), and in reprisal for prior protected EEO activity when: (1) she was given a performance rating of “Effective” for Fiscal Year 2006; (2) she was allegedly assigned twice the workload as the other GS–14 Human Resource Specialist in the office; (3) she was allegedly required to work an additional two hours every two-week pay period without compensation for related out-of-pocket expenses; (4) her timesheet was changed to remove reportedly earned credit hours and Burckman threatened to reprimand her if she worked more than eighty hours during a pay period in the future; (5) her request for a reasonable accommodation was allegedly denied; (6) her request for leave under the Family Medical Leave Act was allegedly denied; and (7) she was given an official letter of reprimand on March 12, 2007. See id.; Ex. A to Def.'s Mot. to Dismiss [Docket Entry 6–1] at 1 (Jan. 4, 2013). The Equal Employment Opportunity Commission (“EEOC”) administrative judge granted summary judgment to the Department. See Ex. B to Def.'s Mot. to Dismiss at 14. Horsey's third claim was dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact, see id. at 12–13; her fourth claim was dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) and (5) for failure to state a claim, see id. at 13; and the administrative judge found no discrimination or retaliation on the remaining claims, see id. at 12–14.

The Department adopted the administrative judge's decision as a final order. See Ex. C to Def.'s Mot. to Dismiss [Docket Entry 6–3] (Jan. 4.2013). Horsey appealed, and the EEOC affirmed the final order. See Ex. D to Def.'s Mot. to Dismiss at 1, 10. The EEOC mailed its decision affirming summary judgment to Horsey on March 16, 2012. The EEOC's letter explicitly advised her that she had the right to sue in federal court within ninety days from the date she received the decision. See id. at 11–12.

Horsey filed another formal EEO complaint against the Department on November 28, 2007. See Def.'s Mot. to Dismiss at 3 n. 2. The following claims were accepted for investigation: whether the Department discriminated against Horsey on the basis of race (African–American), age (over forty), gender (female), and in reprisal for prior protected EEO activity when: (1) she was given a performance rating of “Minimally Satisfactory” for Fiscal Year 2007; (2) she was notified that she would be suspended from service for two days; (3) she was informed that she would not be entitled to a representative of her choice on December 27, 2007 an...