Short v. Berryhill
| Decision Date | 24 September 2019 |
| Docket Number | Civil Action No. ELH-18-2714 |
| Parties | VERONICA GALES SHORT Plaintiff, v. NANCY A. BERRYHILL Defendant |
| Court | U.S. District Court — District of Maryland |
In this employment discrimination case, Veronica Gales Short, a former employee of the Social Security Administration ("SSA"), filed suit against Nancy A. Berryhill, the Acting Commissioner of SSA, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). ECF 1 ("Complaint"). Plaintiff appended multiple exhibits to the Complaint. ECF 1-2 to ECF 1-10.1
Short, an African-American female, alleges that she was discriminated against on the basis of race (Claim 1); subjected to a hostile work environment (Claim 2); retaliated against for filing an Equal Employment Opportunity ("EEO") complaint concerning discrimination and harassment (Claim 3); and was constructively discharged (Claim 4).2
Defendant has moved to dismiss under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56(a). ECF 6. The motion is supported by a memorandum (ECF 6-1) (collectively, the "Motion") and one exhibit, consisting of two lengthydocuments. ECF 6-2.3 Plaintiff opposes the Motion. ECF 7 ("Opposition"). Defendant has replied. ECF 9.
No hearing is necessary to resolve this matter. See Local Rule 105.6. For the reasons that follow, I shall construe the Motion (ECF 6) as one to dismiss under Fed. R. Civ. P. 12(b)(6). And, I shall grant the Motion.
Short joined SSA's Office of Disability Policy ("ODP") on September 28, 2014. ECF 1, ¶ 11; see also ECF 6-2 at 5. In July of 2015, she was transferred to the Office of Medical Policy ("OMP"), where she worked as a GS-12 Social Insurance Specialist. ECF 6-2 at 5-6.4 In that role, Short's job encompassed updating and revising the Program Operations Manual System ("POMS") for disability appeals. Id. at 7. The POMS instructs SSA employees and state agencies with respect to processing claims for Social Security benefits. Id. In addition, Short also wrote model responses to claim inquiries from across the country. Id.
As noted, Short is an African-American female. ECF 1, ¶ 10. On or about March 21, 2016, Joseph Kevin Parmer, a Caucasian male, became Short's first-line supervisor. Id. ¶ 13. He joined SSA in 2001, and has served in a supervisory capacity since 2008. ECF 6-2 at 123. At the time he managed Short, Parmer was a GS-14 Supervisory Social Insurance Specialist. Id.
Parmer managed eight employees; all are female and five are African-American. Id. at 124. Parmer's supervisor was Cheryl A. Williams, the Director of the OMP, who is an African-American female. Id. at 38.
Plaintiff received an appraisal of "Successful Contribution" on her 2016 performance review. ECF 1, ¶ 15. Yet, in or about April 2017, Parmer began to "frequently" criticize her work. Id. ¶ 14. On April 28, 2017, Parmer placed Short on a Performance Assistance ("PA") plan, "without explaining to her how and when her performance became deficient[.]" Id. ¶ 15; see ECF 6-2 at 39.
Short's PA plan was outlined in a seven-page document. ECF 6-2 179-86. It described the job expectations for Short's position and detailed specific issues with her performance. Id. at 179-82. In addition, the document contained a list of trainings that plaintiff could attend in the form of Video on Demand ("VOD") training and supplemental reference material. Id. at 183-84. Short's PA plan was originally scheduled to end on May 25, 2017. ECF 1, ¶ 16. However, Parmer extended the plan another thirty days, through June 8, 2017. Id.
In both May and June 2017, Short sought permission from Parmer to attend a one-week course needed to maintain her certification as a Level 1 Contract Technical Representative ("COTR"). Id. ¶ 17; ECF 6-2 at 104. Parmer denied her requests. ECF 1, ¶ 17. Short asked to attend a one-day telephonic COTR training in August 2017. Id. ¶ 18. Again, Parmer rejected her request, instructing her to focus instead on her assignments. Id. According to Parmer, the COTR courses were not related to Short's job duties at OMP. ECF 6-2 at 130.
On September 15, 2017, Short received an email from Parmer setting a meeting for September 19, 2017, to discuss her job performance. Id. at 39. Parmer told Short that she could have a union representative present at the meeting. Id. As planned, Parmer met with Short andCarole Brown, Short's union representative. ECF 1, ¶ 21. During the meeting, plaintiff alleges that Brown told Parmer that the PA was improper "as there was no level of assessment as required by union contract." Id.
Short was put on the second and final tier of the employee performance plan, known as an Opportunity to Perform Successfully ("OPS") plan. ECF 1, ¶ 20; ECF 6-2 at 187. In the OPS document, Parmer referenced the PA plan and said: "I made a senior analyst and myself available to provide counseling, instruction, and advice[.]" ECF 6-2 at 187. Further, he said: "We met several times during the PA where I reviewed [plaintiff's] work products and provided specific instructions and guidance." Id. However, Parmer noted that Short "continue[d] to need extensive feedback with [her] work products regarding accuracy, analysis, and formatting." Id. Parmer also observed that since the conclusion of the PA plan, Short's "performance has not improved[.]" Id. at 188.
As with the PA, the OPS document identified specific instances where Short had not met expectations. Id. at 188-91. It also provided that Short would meet bi-weekly with her mentor and monthly with Parmer. Id. at 191. The OPS plan was effective for 120 days, after which Short could be reassigned, demoted, or removed if her performance did not improve. Id. at 187; see ECF 1, ¶ 20.
On September 20, 2017, Parmer completed a performance evaluation for Short. ECF 1, ¶ 23; ECF 1-4. He assigned her an overall rating of "Not Successful," giving her a score of three out of five in the areas of "Interpersonal Skills" and "Participation" and a score of one in the areas of "Demonstrates Job Knowledge" and "Achieves Business Results." ECF 1-4.
According to plaintiff, Parmer's "negativity towards her escalated" after she was placed on the OPS plan. ECF 1, ¶ 22. In her view, Parmer "continually found excessive or unnecessary faultwith [her] work, marking up her assignments and requiring extensive edits to her work." Id. ¶ 24. Parmer's "non-substantive" feedback "required her to completely change her writing to fit his stylistic preferences." Id. Parmer also failed to give Short regular reports on her progress while she was on the OPS plan. Id. ¶ 25.
Short requested EEO counseling on September 18, 2017. ECF 6-2 at 2, 53, 97. Short met with an EEO counselor on September 26, 2017. Id. at 53. SSA informed Parmer of Short's EEO activity on October 4, 2017. Id. at 60. Short filed an EEO complaint on October 30, 2017, lodging claims of racial discrimination, hostile work environment, and retaliation against Parmer. Id. at 49-51.
Short received an email from Parmer on November 8, 2017, which "indicated to Ms. Short that the only way [Parmer] would address questions she had about assignments would be if she submitted questions to him in writing prior to scheduled meetings, rather than asking questions as they arose." ECF 1, ¶ 26. The email stated, ECF 1-2 at 31:
On or about November 16, 2017, Parmer assigned Short to work on a project revising a disability form. ECF 1, ¶ 27; ECF 6-2 at 42. Mary Quatroche, a Senior Policy Analyst at ODP, was also involved in the project. Short did not want to work with Quatroche, whom she claims "had previously made unfounded accusations" against her. ECF 1, ¶ 27. Short also believed that the project was outside the scope of her OPS plan. Id. ¶ 28. Short expressed these concerns to Parmer, but he insisted that she take on the new assignment. Id. ¶¶ 28, 29.
On November 30, 2017, Parmer sent Short an email to schedule a one-hour check-in for December 5, 2017. Id. ¶ 30; ECF 6-2 at 203. Short responded: "I have a meeting during the time frame you have proposed." ECF 6-2 at 202. In reply, Parmer wrote: "I will reschedule for the same day from 2:00-3:00." Id. Short answered, stating that she also had a meeting during that time as well. Id. at 205. Parmer then asked, "What times are you available Tuesday?" Id. at 207. Short responded: "After 3:30 PM should work for me." Id. at 209. Four minutes later, Parmer wrote: Id. at 211. Short responded, "Yes." Id. at 213. Parmer then asked, "Is that yes to both?" Id. at 215. Short answered: "My response is affirmative (yes) to all of the question[s]." Id. at 218.
The same day, November 30, 2017,...
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