Taylor v. Burwell
| Decision Date | 16 July 2014 |
| Docket Number | Case No.: PWG-13-1998 |
| Court | U.S. District Court — District of Maryland |
| Parties | KENNETH TAYLOR, Plaintiff's, v. SYLVIA MATHEWS BURWELL,1 Secretary, U.S. Dep't of Health & Human Services, Defendant. |
Plaintiff Kenneth Taylor brings this case under the Age Discrimination in Employment Act ("ADEA") alleging discrimination, hostile work environment, and retaliation against his employer, the Food and Drug Administration. Defendant Secretary of Health and Human Services has moved to dismiss for failure to state a claim, arguing that Plaintiff has not shown any age bias or adverse employment action, and suffered nothing more than the irritation and inconveniences typical of many workplaces. Plaintiff has opposed the motion and also has sought leave to amend his complaint. Because I agree with Defendant with respect to Plaintiff's claims for discrimination and hostile work environment, the motion to dismiss will be grantedwith respect to those claims and Plaintiff's proposed amendment will be denied as futile. However, because Plaintiff has alleged a plausible claim for retaliation, and has sought to add additional relevant allegations in his amendment, Plaintiff's retaliation claim will be allowed to proceed and the complaint amended with respect to that count.
For the purposes of considering Defendant's motion, this Court accepts the facts that Plaintiff has alleged in his Complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).3 Plaintiff Kenneth Taylor is a chemist who was born on October 15, 1964. Compl. ¶¶ 11, 13, ECF No. 1. He has worked for the Food and Drug Administration (the "FDA"), an agency within the U.S. Department of Health and Human Services, since 2001, id. ¶ 12, and at the time he filed his Complaint, had held the position of GS-14 Chemist for approximately twelve years, id. ¶ 13. While at the FDA, Taylor worked in various units, including the Dietary Supplement Regulations Implementation Team ("DSRIT"); Dietary Supplement Programs ("DDSP"); Office of Nutrition, Labeling, and Dietary Supplements ("ONLDS"); and the Center for Food Safety and Applied Nutrition ("CFSAN").
On March 14, 2011, Taylor's "second line supervisor," Daniel Fabricant, made two remarks that Taylor perceived as "derogatory comments . . . regarding his age." Id. ¶¶ 22-25. Specifically, Fabricant told Taylor, "'You have a problem with age,'" and said that "'someone who has been around as long as you have should have ideas.'" Id. ¶¶ 24-25.
On July 18, 2011, Fabricant took over as Taylor's "first line supervisor." Two days later, on July 20, 2011, Fabricant scheduled a one-on-one meeting with Taylor on Taylor's usual telecommuting day and "ignored Taylor's request to reschedule the meeting." Id. ¶¶ 26-27. "From July 20, 2011 to October 31, 2011, Taylor was forced to alter his work hours and telecommuting schedule to accommodate meetings set by Fabricant." Id. ¶ 28. This included a meeting on October 27, 2011, that began fifteen minutes before Taylor's usual, 9:15 a.m. arrival time and, on October 31, 2011, scheduling a weekly team meeting for Mondays even though that was Taylor's usual telework day. Id. ¶¶ 29-32.
In August 2011, Taylor applied for a position designated "'Unclassified Duties,' Advertisement Tracking Number (ATM): CDER-11-150-OCTEC." Id. ¶ 38. To apply for the position, Taylor required a supervisory concurrence from Fabricant, his supervisor. Id. ¶ 41. Although Taylor sought Fabricant's concurrence, Fabricant refused to provide it and, as a result, Taylor's application was not referred to the selecting official for the position. Id. ¶ 41-44.
Also during this time, Taylor alleges that he was assigned clerical work inconsistent with his pay grade. From August 2011 to October 2011, Taylor "was assigned duties that included receipt dating, assigning invoice numbers, entering requests into the database, preparing copies, printing addressing envelopes and mailings," which were duties usually assigned to "a clerical employee of a grade 9/11" and not to an employee of GS-14 like Taylor. Id. ¶¶ 35-37. Taylor does not allege that his pay or title was changed in connection with these responsibilities.
On October 31, 2011, Taylor filed a discrimination complaint "with the agency's EEO and Civil Rights office" id. ¶ 18, claiming that he was being discriminated against on the basis of his age, id. ¶ 19. On December 12, 2011, Taylor filed a formal discrimination complaint, also alleging age discrimination, against the FDA. Id. ¶¶ 20-21.
Thereafter, on January 24, 2012, Fabricant "intentionally sent an[] email to the entire Dietary Supplement Regulations Implementation Team showing them an alleged mistake Taylor made," without first informing Taylor. Id. ¶¶ 45-46. The information in the email was false and was sent with the intent publicly to embarrass Taylor and to "disparage [his] professional reputation." Id. ¶¶ 47-49. On January 27, 2012, Fabricant refused to allow Taylor to bring a witness to a one-on-one meeting even though a counselor from the FDA's Employee Assistance Program had advised him to bring a witness and Taylor had requested one. Id. ¶¶ 50-55.
Around that same time, Taylor had applied for an Acting Team Leader detail but, in January 2012, Fabricant selected another employee, Ramadevi Gudi, instead of Taylor. Id. ¶ 55. At that time, Taylor had eleven years of "FDA regulatory policy experience in dietary supplement work" and Gudi had only eighteen months of similar experience. Id. ¶ 56.4
"Between February 24 and February 29, 2012, Fabricant assigned Taylor to data mine electronic files of documents, sort them electronically, and email approximately 250 data files, which were assignments outside of [Taylor's] responsible duties." Id. ¶ 59. During that same period, on February 27, 2012, "Fabricant allowed Corey Hilmas, an employee in his thirties to yell at Taylor unjustifiably during at team meeting in front of Taylor's colleagues." Id. ¶ 57. Fabricant also favored Hilmas more generally in making assignments. Id. ¶ 58.
On March 13, 2012, Taylor amended his charge of age discrimination that he had filed in December 2011. Id. ¶ 63. On January 23, 2013, Taylor withdrew the hearing request submitted with his formal complaint and informed the EEOC that he wished to proceed in federal district court. Id. ¶ 65. On April 19, 2013, Taylor received the final decision from the Secretary ofHealth and Human Services, dismissing Taylor's charge and informing him of his right to sue. Id. ¶ 67.
Taylor commenced this case by filing his three-count Complaint in this Court on July 10, 2013, alleging (I) age discrimination under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; (II) retaliation under the ADEA; and (III) hostile work environment under the ADEA.
Defendant, the Secretary of Health and Human Services, filed a Motion to Dismiss, or in the Alternative, for Summary Judgment ("Def.'s Mot. to Dismiss"), ECF No. 8, along with a supporting Memorandum ("Def.'s Dismiss Mem."), ECF No. 8-1, on November 13, 2013. Taylor has opposed the motion ("Pl.'s Dismiss Opp'n"), ECF No. 16, and the next day filed an Errata to Plaintiff's Memorandum of Points and Authorities in Support of Plaintiff's Opposition to Defendant's Motion to Dismiss, ECF No. 17, attaching what appears to be a corrected Opposition ("Pl.'s Corr. Dismiss Opp'n"), ECF No. 17-1 and Defendant has replied ("Def.'s Dismiss Reply"), ECF No. 18.
Simultaneous with his opposition, Taylor also filed a Motion for Leave to File an Amended Complaint ("Pl.'s Mot. to Am."), ECF No. 15,5 seeking to add certain factual allegations including, most significantly, an allegation that Fabricant refused to allow Taylor to take a speaking opportunity that he was offered and a desirable work assignment and, instead, assigned both to Hilmas, Redlined Am. Compl., Pl.'s Mot. to Am. Ex., ECF No. 15-2.Defendant has opposed the Motion to Amend ("Def.'s Am. Opp'n"), ECF No. 19. Taylor has not replied and the time to do so has passed. Loc. R. 105.2(a).
Both motions are ripe and now are before me. Having reviewed the filings, I find a hearing is not necessary. Loc. R. 105.6.
Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose "'is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'" Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed. R. Civ. P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and must state "a plausible claim for relief," as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal, 556 U.S. at 678-79. See Velencia, 2012 WL 6562764, at *4 (). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663.
Where a defendant files a motion styled as one to dismiss or, in the alternative, for summary judgment, it "implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure." See Sager v. Hous. Comm'n, 855 F. Supp. 2d 524, 542 (D. Md. 2012).Pursuant to Rule 12(d), where "matters outside the pleadings...
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