McCallum v. Mayorkas
| Docket Number | Civil Action 21-1911 (ABJ) |
| Decision Date | 02 May 2023 |
| Parties | DORETHA MCCALLUM, Plaintiff, v. ALEJANDRO MAYORKAS, Secretary of the U.S. Department of Homeland Security, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Doretha McCallum is a Management and Program Analyst (“MPA”) at the Department of Homeland Security (“DHS”), and she works in the Office of Partnership and Engagement (“OPE”) within Immigration and Customs Enforcement (“ICE”). Compl. [Dkt. # 1] ¶¶ 1-2, 16. She alleges that the agency discriminated against her in violation of Title VII, 42 U.S.C. § 2000e et seq., on the basis of her race and gender, retaliated against her, and subjected her to a hostile work environment. Compl. ¶¶ 5, 140, 148 158, 162-63. On February 1, 2022, defendant moved to dismiss her complaint under Federal Rule of Civil Procedure 12(b)(6). See Def.'s Mot. to Dismiss [Dkt. # 13] (“Def.'s Mot.”). Plaintiff opposed the motion, and the matter is now fully briefed. See Pl.'s Opp. to Def.'s Mot. [Dkt. # 15] (“Pl.'s Opp.”); Reply Mem. in Supp. of Def.'s Mot. [Dkt. # 17] (“Def.'s Reply”).
For the reasons set forth below, the Court will GRANT defendant's motion to dismiss as to plaintiff's hostile work environment claim. Defendant's motion to dismiss will be DENIED with respect to plaintiff's discrimination and retaliation claims related to the reassignment of her duties, as well as her retaliation claim based on defendant's failure to provide the necessary amount of time for her to meet with her EEO attorney. The Court will otherwise GRANT defendant's motion to dismiss plaintiff's remaining discrimination and retaliation claims.
Plaintiff has been employed with DHS in the Washington, D.C. office since January 2010. Compl. ¶¶ 2-3, 16. Throughout this time, she has worked as a Management and Program Analyst (“MPA”) in the Office of Partnership and Engagement within ICE. Compl. ¶¶ 1-2, 16. Plaintiff alleges the agency discriminated against her on the basis of her race (African-American) and her gender (female) retaliated against her for engaging in EEO activity, and subjected her to a hostile work environment.[1]Compl ¶¶ 5, 140, 148, 158, 162-63. Plaintiff's allegations are primarily based on the conduct of two of her supervisors: Deputy Assistant Director (“DAD”) Barbara Gonzalez, who was plaintiff's first line supervisor from 2017 to October 2019, and acting DAD Richard Rocha, who was supervising plaintiff by July 2019. See Compl. ¶¶ 18-19, 24(f), 49, 61; see Ex. 2 to Compl. [Dkt. # 1-2] (“Organization Charts”) at 5.
Plaintiff complains of actions beginning in February 2017, when Gonzalez and Rocha proposed organizational charts that “attempt[ed] to restructure and assign the plaintiff a lower grade” while simultaneously “work[ing] hard to ensure that Rocha would be employed in a high grade high-authority position.” Compl. ¶ 24. Plaintiff alleges that Gonzalez and Rocha, both of whom are Hispanic, were “clearly close friends” and had developed a close relationship while working together at the Office of Public Affairs since January 2009. Compl. ¶¶ 18-22. From February 2017 to July 2019, Gonzalez and Rocha allegedly reconfigured a series of proposed organizational charts in a manner that gradually “weaken[ed] McCallum's [proposed] position as Chief of Staff” at a GS-15 pay scale until plaintiff occupied a “lower GS-14 position.” Compl. ¶ 24.
In 2017, the original organizational chart for the OPE listed the proposed Chief of Staff position at a “GS-15” pay scale. Compl. ¶ 24(a); Organization Charts at 1. Plaintiff had been serving as an Acting Chief of Staff, and this chart “mark[ed] the beginning of an attempt to create a permanent structure for the office.” Compl. ¶ 24(a), (b). Plaintiff “openly desired a GS-15 position for Chief of Staff to be placed on the organizational chart,” and at some point spoke with Cory Mayberry, an employee in the Office of the Chief Financial Officer, about this position. Compl. ¶¶ 29-30. Plaintiff alleges that Mayberry told her that “Chiefs of Staff at ICE were GS-15,” and that “she was the only non GS-15 Chief of Staff.” Compl. ¶ 30. Plaintiff states she “expressed to DAD Gonzalez that . . . it was important that a GS-15 Chief of Staff position be created for her in the org chart,” which Gonzalez allegedly disapproved. Compl. ¶ 31. According to plaintiff, in January 2018 Gonzalez stated that “she was ‘looking out for [Rocha] and her[self] and that [plaintiff] should apply for other positions with upward mobility because she had so much ‘education and experience.'” Compl. ¶¶ 31-32.[2]
Plaintiff alleges that Gonzalez subsequently “demoted plaintiff's [proposed] position while working through 3 org chart iterations to create a DAD position for Rocha.” Compl. ¶ 33. On February 27, 2018, Gonzalez proposed a chart designating Rocha as a DAD and listing what was formerly a GS-15 Chief of Staff position as a “GS-15 or GS-14” position that would be subordinate to Rocha. Compl. ¶ 24(e)(i); Organization Charts at 3. In March 2018, Gonzalez proposed a new chart removing the “Chief of Staff” title and labeling plaintiff's position as a “MPA/COTR” at the GS-14 level. Compl. ¶ 24(e)(ii); Organization Charts at 4-5.
In October 2018, plaintiff contacted the Office of the Acting Deputy Director of ICE, Matt Albence, to schedule a meeting to discuss her concerns with the proposed chart's elimination of the Chief of Staff position, and a meeting was scheduled for October 12, 2018. Compl. ¶ 25. Albence's Special Assistant, Laura Hernandez-Winklemann, a Hispanic woman who plaintiff alleges was friends with Gonzalez, called plaintiff to ask “what the nature of the meeting was.” Compl. ¶ 26. When plaintiff stated that “it was a personal matter,” Hernandez-Winklemann allegedly informed plaintiff she should have first contacted Gonzalez, who could “make or break” plaintiff. Compl. ¶ 26. Plaintiff states Hernandez-Winklemann then removed the meeting from the calendar. Compl. ¶ 27. Gonzalez subsequently raised the chain of command issue in plaintiff's 2018 performance review, stating that “any meetings with agency leadership . . . must be cleared and approved by the acting assistant director.” Compl. ¶ 28.
Plaintiff alleges that Albence approved the proposed March 2018 organizational chart while plaintiff was serving on detail to the United States Citizenship and Immigration Services (“USCIS”) from May to August 2019. Compl. ¶¶ 60, 73-74. In July 2019, Gonzalez's March 2018 organization chart was codified, designating Rocha as a GS-15 DAD, and plaintiff as a GS-14. Compl. ¶ 24(f); Organization Charts at 5. On October 23, 2019, Gonzalez emailed plaintiff “a revised office organizational chart that omitted the [ ] Chief of Staff position.” Compl. ¶ 71.
Plaintiff also complains that “a wide range of [ ] duties [were] removed from her position.” Compl. ¶ 51. First, she alleges that Gonzalez “silo[ed]” her away from Community Resource Officers (“CROs”) with whom she had previously worked with as a Contracting Officer Representative (“COR”). Compl. ¶¶ 38-41, 53. As of July 2018, if she mentioned any conversations that she had with CROs to Gonzalez, Gonzalez would ask why they were calling plaintiff and instruct her that “[t]his [was] not in [her] lane.” Compl. ¶ 40. Gonzalez also informed plaintiff she would be an unofficial rather than official supervisor for a newly created Mission Support Specialist position, and plaintiff posits that this occurred because “placing plaintiff in an officially supervisory position would appear to be a challenge to” the careers of her supervisors, including Gonzalez. Compl. ¶¶ 89-90. Plaintiff further alleges that after the elimination of the proposed Chief of Staff position, a number of her duties were reassigned to Rocha and his successor, including: representing the OPE at the weekly Chief of Staff meetings in the Director's Office, attending periodic meetings, executing the furlough process, managing onboarding processes, and “be[ing] available in the office for questions concerning staff, Human Resources, and resource allocation.” Compl. ¶ 78.
In addition to the claims involving eliminating the desired GS-15 Chief of Staff position and diminishing plaintiff's responsibilities and duties, plaintiff alleges that her supervisors took a number of other adverse actions against her:
• On October 16, 2019, Gonzalez requested that plaintiff leave a conference call with a vendor “because it was not ‘administrative' in nature.” Compl. ¶ 52.
• In late October 2019, plaintiff was not invited to assist with the “DHS Day” conference in Washington D.C., and Gonzalez allegedly chose a lesser experienced, white employee to attend the event. Compl. ¶¶ 84, 86-88.
• In late October 2019, plaintiff served on a hiring panel with Rocha and another coworker. Compl. ¶ 91. Plaintiff's top choice, an African American woman named Tabatha Burley, was not selected, and Rocha “said something to the effect of wanting to hire anyone but Burley.” Compl. ¶ 91(d).
• On October 29, 2019, plaintiff was not invited to attend a congressional briefing concerning the budget and mission of the OPE with Gonzalez, acting DAD Elizabeth Nicholson, and the same contractor who attended the “DHS Day” conference. Compl. ¶¶ 59, 96. Plaintiff alleges that Gonzalez and Nicholson offered conflicting testimony as to why she was not included. Compl. ¶¶ 98-99.
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