Khoury v. Meserve, CIV.A.DKC 2002-3511.

• Decision Date: 23 June 2003
• Docket Number: No. CIV.A.DKC 2002-3511.,CIV.A.DKC 2002-3511.
• Parties: Susan KHOURY v. Richard A. MESERVE
• Court: U.S. District Court — District of Maryland

268 F.Supp.2d 600

Susan KHOURY v. Richard A. MESERVE

No. CIV.A.DKC 2002-3511.

United States District Court, D. Maryland.

June 23, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Sol Zalel Rosen, Law Offices of Sol Zalel Rosen, Washington, DC, for Plaintiff.

Ariana Wright Arnold, Office of the United States Attorney, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

CHASANOW, District Judge.

Presently pending and ready for resolution in this employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by Plaintiff Susan Khoury, are: (1) the Motion of Defendant Richard A. Meserve, Chairman of the Nuclear Regulatory Commission (NRC), to Dismiss or for Summary Judgment and (2) Plaintiffs Motion for Leave to File Surreply. The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, the court will: (1) deny Plaintiffs motion for leave to file surreply; (2) grant Defendant's motion to dismiss Plaintiffs discriminatory denial of promotion, denial of rights, and gender- and national origin-based discriminatory discharge claims; (3) deny Plaintiffs request for a stay in consideration of summary judgment; and (4) grant Defendant's motion for summary judgment on Plaintiffs hostile work environment and retaliation claims.

I. Background

A. Discrimination in the Workplace

The following are facts alleged by Plaintiff. Plaintiff was employed by the Office of the Inspector General (OIG) at the Nuclear Regulatory Commission (NRC) in Rockville, Maryland. She began her employment with the NRC in January 1997 as a GS-1811-11 criminal investigator. Plaintiff alleges that she began to experience discriminatory treatment soon after beginning her employment with the NRC. Plaintiff claims that her supervisor, Mr. Stryker (Stryker), lacked communication skills in dealing with female employees and treated male members of his staff more favorably. Plaintiff was unfairly disciplined and criticized, did not receive awards while her male counterparts did, and her promotion to the GS-12 level was delayed because of her national origin and gender. Plaintiff alleges that even after a new supervisor took over, the same mistreatment continued.

In October 2000, Plaintiff was given a performance appraisal that was deliberately worded in a manner that effectively precluded her from successfully competing for a GS-14 vacancy she was applying for. Plaintiff was not selected for the position. Plaintiff alleges that the selection for the two openings was designed to favor and pre-select two Caucasian males and that the positions were in fact awarded to two Caucasians.

B. Discrimination Complaint

The following facts concerning Plaintiffs filing of a discrimination complaint with the EEO are uncontroverted. Plaintiff contacted an EEO Counselor on March 13, 2001. This informal EEO counseling was completed on June 13, 2001 and the counselor issued a report shortly thereafter. On or about July 9, 2001, Plaintiff filed a formal complaint of discrimination with the NRC's Office of Small Business and Civil Rights (SBCR).¹ In April 2002, by its Partial Acceptance and Dismissal of Claims in Discrimination Complaint Letter (SBCR Letter), Paper 7, Ex. 3, the SBCR dismissed some of Plaintiffs claims as untimely but referred the remainder of her claims for investigation. An investigation then followed, yielding an EEO Report of Investigation in October 2002. Plaintiff then filed a complaint in this court, pursuant to 29 C.F.R. 1614.407(b), on October 25, 2002 and on December 2, 2002, the EEO investigation WEIS dismissed pursuant to 29 C.F.R. 1614.107(3) because Plaintiffs claims had become the basis of pending litigation.

C. Termination

Plaintiff alleges that in December 2000, she filed a grievance regarding her FY 2000 performance rating. Plaintiff alleges that her rights were denied in the processing of that grievance. In an attempt to review files she had worked on in order to substantiate the allegations contained in her grievance complaint and to dispute the denial, Plaintiff accessed closed investigation cases from storage.² She was placed on administrative leave in May 2001; her NRC identification card, weapon, badge, and keys were confiscated and she was prohibited from going to work. Plaintiff alleges that this was disparate treatment based on Plaintiffs gender and ethnicity (i.e., national origin), and an act of retaliation. On November 16, 2001, the NRC issued a Notice of Proposed Removal requesting that Plaintiff be removed from her position for making false statements, failing to follow supervisory instructions, and improperly accessing sensitive information. Plaintiff was ultimately removed in February 2002. Plaintiff maintains that the reasons the Agency gave for her termination were spurious.

D. Procedural Background of the Current Action

On February 20, 2002, Plaintiff appealed her termination to the Merit Systems Protection Board (MSPB). On August 28, 2002, the MSPB sustained the NRC's sanction and the MSPB decision became final on October 2, 2002. On October 25, 2002, Plaintiff filed the present action in this court to seek review of both the MSPB and EEO administrative outcomes.

In the current action, Plaintiff claims that she was denied terms and conditions of employment by her supervisors and that she was subjected to illegal employment conditions based on her gender, national origin, and as a result of retaliation. Plaintiff also alleges that the NRC unreasonably delayed processing the EEO investigation, causing additional injuries to Plaintiff and ultimately leading to her termination.

Defendant filed his motion to dismiss or for summary judgment on February 3, 2003. Plaintiff filed her opposition on March 10, 2003 and argued, inter alia, that it is premature to consider Defendant's motion for summary judgment because more discovery is needed. Plaintiff filed an affidavit in support of the request for discovery as required by Fed.R.Civ.P. 56(f). Defendant replied on March 28, 2003 and argued against Plaintiffs request for discovery. Plaintiff then filed a motion for leave to file a surreply on April 7, 2003. Defendant opposed this motion on April 25, 2003.

II. Motion for Leave to File Surreply

Unless otherwise ordered by the court, surreply memoranda are not permitted to be filed. Local Rule 105.2(a). Surreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply. Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 2001).

Plaintiff argues that she is justified in filing a surreply because Defendant has raised two new issues in his reply memorandum, i.e., (1) the sufficiency of Plaintiffs Rule 56(f) affidavit seeking time for discovery before the court considers Defendant's summary judgment motion and (2) allegations pertaining to Plaintiffs alleged failure to exhaust administrative remedies. Plaintiff also seeks to correct what she perceives to be Defendant's misrepresentations regarding the state of the administrative record and the scope of requirements involved in reviewing the decisions of Administrative Judges.

Plaintiff filed her Rule 56(f) affidavit along with her opposition to Defendant's motion to dismiss or for summary judgment. Defendant's challenge to the sufficiency of Plaintiffs affidavit and request for discovery is therefore a response to a matter first introduced by Plaintiff. Plaintiff had the opportunity to support her affidavit with arguments and facts in her opposition brief; a surreply would not provide Plaintiff with her first chance to address the issue. Likewise, the matter of Plaintiffs exhaustion of administrative remedies was raised by Defendant in his original motion to dismiss or for summary judgment; Plaintiff has already had ample opportunity to contest Defendant's challenge. Finally, Plaintiff contends that her surreply corrects Defendant's misrepresentation of the record of Plaintiffs administrative proceeding and standard of review of the decisions of Administrative Judges. Nevertheless, this contention also does not address a new matter. See Lewis, 154 F.Supp.2d at 61. The court will therefore deny Plaintiffs motion for leave to file surreply.

III. Motion to Dismiss or for Summary Judgment

A. Standards of Review

1. Dismissal: Exhaustion under Rule 12(b)(1)

Motions to dismiss for failure to exhaust administrative remedies are governed by Fed.R.Civ.F. 12(b)(1) for lack of subject matter jurisdiction. See Onuoha v. Grafton School, 182 F.Supp.2d 473, 481 (D.Md.2002). In a Rule 12(b)(1) motion, the court may look beyond the pleadings and "the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (citations omitted); see Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). It is the plaintiffs burden to prove that jurisdiction in this court is proper. See DeBauche v. Virginia Commonwealth Univ., 7 F.Supp.2d 718, 721 (E.D.Va.1998). The court must presume that all factual allegations in the complaint are true and make all reasonable inferences in the plaintiffs favor. Id.

2. Summary Judgment: Rule 56

It is well established that a court may grant a motion for summary judgment only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950); Morrison v. Nissan Motor Co., 601 F.2d 139,...