Weng v. Perez
| Decision Date | 28 March 2023 |
| Docket Number | 15-cv-504-ZMF |
| Parties | KARIN WENG, Plaintiff, v. THOMAS E. PEREZ,, Defendant. |
| Court | U.S. District Court — District of Columbia |
On March 9, 2012, the U.S. Department of Labor (“DOL” or “Defendant”) terminated Plaintiff Karin Weng (“Ms. Weng” or “Plaintiff”) for deficient performance. After an administrative proceeding before the Merit Systems Protection Board (“MSPB”), Ms. Weng sued the DOL[1]for violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging discrimination on the basis of race, national origin, and sex, as well as retaliation for protected Equal Employment Opportunity (“EEO”) activity.
Pending before the Court are Plaintiff's Motion for Ruling on Outstanding Issues in Defendant's Motion for Summary Judgment, ECF No. 93, and Defendant's Motion for Summary Judgment, ECF No. 72, which require the resolution of two issues: (1) whether Plaintiff exhausted the administrative remedies for her Title VII claims and (2) whether “[D]efendant had a legitimate, non-discriminatory reason for [her] removal.” For the reasons stated herein, the Court DENIES AS MOOT Plaintiff's Motion and GRANTS Defendant judgment as a matter of law.
1. Alleged Discrimination, EEO Activity, and First Litigation
Ms. Weng is a Taiwanese-American woman who, from 1995 to 2012, worked for DOL's Employee Benefits Security Administration as an Employee Benefits Law Specialist, GS-13,[2] in the Office of Exemption Determinations (“OED”). See Weng v. Walsh, 30 F.4th 1132, 1133-34 (D.C. Cir. 2022); Compl. ¶ 3, ECF No. 1. Plaintiff alleges that, throughout her employment, members of DOL management subjected her to “offensive racial, ethnic, and/or sexually charged slurs, comments, and jokes[.]” Id. at 1134. Yet, Ms. Weng “never received a negative performance evaluation, nor any formal counseling or discipline, from 1995 to 2005.” Id. (cleaned up).
In 2004, Eric Raps (a white man) became Ms. Weng's first-line supervisor, while Lyssa Hall (a Black woman) served as Ms. Weng's second-line supervisor. See Order Den. Pl.'s Mot. Leave to File Third Am. Compl. & Granting Def.'s Mot. Summ. J. (“2020 Summ. J. Order”) 3, ECF No. 83; Second Am. Compl. ¶¶ 16-17, ECF No. 38. In the three years following Mr. Raps' transfer, three female employees-including Ms. Weng-filed EEO complaints against him alleging discrimination and retaliation. See Second Am. Compl. ¶ 19. Ms. Weng also served as a witness in her colleagues' employment discrimination proceedings, after which, she alleges, “the harassment against her escalated[.]” See Weng, 30 F.4th at 1134. Specifically, Ms. Weng alleges that DOL management subjected her to “unjustified criticism of her work product, unreasonable operating procedures, false charges of misconduct, and false accusations of failing to make sufficient progress[.]” Second Am. Compl. ¶ 41. In 2006, Ms. Weng began filing EEO complaints regarding her working conditions. See Weng, 30 F.4th at 1134. “This harassment and retaliation, Plaintiff claims, caused great stress leading to a diagnosis of post-traumatic stress disorder, depression, and anxiety, for which Plaintiff also alleges DOL failed to accommodate.” 2020 Summ. J. Order at 2.
Between February 2006 and April 2009, Ms. Weng filed seven EEO complaints regarding her workplace treatment. See Order Granting Part & Den. Part Def.'s Mot. J. Pleadings & Den. Pl.'s Cross-Mot. Partial J. Pleadings (“2019 Order”) 6-7, ECF No. 60. These complaints formed the basis of her first federal case, Weng v. Solis (Weng I), 960 F.Supp.2d 239 (D.D.C. 2013). There, Ms. Weng pointed to Mr. Raps' and Ms. Hall's conduct to allege discrimination on the bases of race, national origin, and sex, as well as retaliation. See id. That suit was settled in 2013. See Stipulation Settlement & Dismissal 1, Weng I, No. 10-cv-2051 (D.D.C. Nov. 28, 2013), ECF No. 45.
Ms. Weng alleges that, while Weng I was pending, her treatment at work worsened. See 2019 Order at 7. She claims that her supervisor subjected her to “micromanag[ement],” “heightened scrutiny,” and “unjustifiabl[e] critici[sm].” Id. Ms. Weng continued to file complaints regarding the purportedly harassing conduct: in 2011, she filed sixteen such complaints against Mr. Raps. See Second Am. Compl. ¶ 78. Around this time, Ms. Weng's performance reviews deteriorated. On April 15, 2011, Mr. Raps conducted Ms. Weng's mid-year review for FY 2011 and informed her that “her performance was at an unacceptable level for four critical elements of her position.” 2020 Summ. J. Order at 3.
On July 15, 2011, Mr. Raps placed Ms. Weng on a Performance Improvement Plan (“PIP”), set to run from July 18 to October 17, 2011. See Def.'s Mot. Summ. J., Ex. 1, Mem. Re: Performance Improvement Plan (“PIP Mem.”) 1, ECF No. 72-2. The PIP described Ms. Weng's “Unsatisfactory” performance in four critical elements of her role, and stated that her performance “must be at a ‘Minimally Satisfactory' (Need to improve) level to maintain [her] current position,” and that “a rating of ‘Unsatisfactory' (Fail to meet) in one or more of the critical elements at the conclusion of the PIP may result in reassignment, reduction-in-grade or removal[.]” Id.
“According to her supervisors, Plaintiff failed to sufficiently improve during the PIP timeframe.” 2020 Summ. J. Order at 4. On January 6, 2012, Mr. Raps issued a Notice of Proposed Removal, which outlined Ms. Weng's “unacceptable performance pertaining to four of the [five] elements” by which she was evaluated. Def.'s Mot. Summ. J., Ex. 2, Mem. Re: Proposal to Remove for Unacceptable Performance (“Notice of Proposed Removal”) 2, ECF No. 72-3. According to Defendant, Ms. Weng failed to improve her performance despite weekly meetings with Mr. Raps during which he provided “continuous feedback.” Id. at 3. On March 7, 2012, Ms. Hall approved Mr. Raps' proposed removal. See Def.'s Mot. Summ. J., Ex. 6, Mem. Re: Decision on Proposed Removal (“Decision on Proposed Removal”) 2, ECF No. 72-7. Ms. Hall's decision was “based on [Ms. Weng's] inability to perform at the minimum level of performance in one or more of the critical elements” of her role. Id. On March 9, 2012, Ms. Weng resigned on the advice of union counsel but did not waive her appeal rights. See Def.'s Mot. Summ. J., Ex. 8, Email Re: Resignation 2, ECF No. 72-9.
On March 13, 2012, Ms. Weng invoked the negotiated procedure set forth by her union's collective bargaining agreement and filed a grievance regarding her termination. See 2019 Order at 8; Def.'s Mot. Summ. J., Ex. 9, Agreement Between Local 12, AFGE, AFL-CIO and U.S. Dep't of Labor 3-4, ECF No. 72-10. On March 4, 2013, an arbitrator ruled that he did not have jurisdiction because Ms. Weng had resigned voluntarily, rather than being fired. See 2019 Order at 8; Second Am. Compl. ¶ 8. Ms. Weng appealed to the MSPB. See 2019 Order at 8. On August 28, 2014, an administrative judge dismissed her grievance for the same reason. See Def.'s Mot. Summ. J. or Alternatively, Mot. J. on Pleadings, Ex 2, MSPB Decision 1, ECF No. 41-2. On April 7, 2015, Ms. Weng filed the instant action, alleging Title VII claims of discrimination and retaliation. See Compl.
On May 15, 2020, Defendant moved for summary judgment. See Def.'s Mot. Summ. J. On July 8, 2020, Judge Rothstein granted Defendant's motion, holding that Ms. Weng's settlement agreement from Weng I barred her termination claims. See Weng v. Scalia, No. 15-cv-504, 2020 WL 3832950, at *7 (D.D.C. July 8, 2020). On August 24, 2020, Ms. Weng appealed to the U.S. Court of Appeals for the D.C. Circuit. See Notice of Appeal, ECF No. 85. On April 8, 2022, the D.C. Circuit ruled that Ms. Weng's settlement agreement did not bar her Title VII claims. See Weng, 30 F.4th at 1137-38. The D.C. Circuit remanded to this Court to consider whether Ms. Weng's grievance “preserved the [Title VII] claims [that Plaintiff] advances in this litigation.” Id. at 1133. On June 2, 2022, the parties consented to proceed before a magistrate judge for all purposes. See Notice, Consent, & Reference of Civil Action to Magistrate Judge, ECF No. 92.
Ms. Weng is currently appearing pro se. See Letter Re: Weng v. Secretary of Labor, Civil Action No. 15-504, ECF No. 98. However, she has at times had the assistance of counsel. The union's contract attorney Charles B. Taylor represented Ms. Weng during the initial administrative proceedings. See Pl.'s Opp'n to Def.'s Mot. Summ. J. (“Pl.'s Opp'n”) 8, ECF No. 76. Mr. Taylor “had substantial input into her removal grievance,” the specificity of which is central to Ms. Weng's exhaustion arguments. Id. And Ms. Weng is by no means an unsophisticated plaintiff, holding degrees from Yale College and the Georgetown University Law Center and previously working in a law-adjacent role as an Employee Benefits Law Specialist. See Pl.'s Opp'n at 2, 3.
To succeed on a motion for summary judgment, the moving party must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under the governing law,' and a dispute . . . is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party bears the initial burden of demonstrating that there is no genuine dispute of material fact. See Celotex Corp. v. Catrett, ...
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