Weng v. Pizzella, CASE NO. 1:15-cv-00504-BJR

CourtUnited States District Courts. United States District Court (Columbia)
PartiesKARIN WENG, Plaintiff, v. PATRICK PIZZELLA, Acting Secretary, U.S. Department Of Labor Defendant.
Docket NumberCASE NO. 1:15-cv-00504-BJR
Decision Date31 October 2019

KARIN WENG, Plaintiff,
PATRICK PIZZELLA, Acting Secretary, U.S. Department Of Labor Defendant.

CASE NO. 1:15-cv-00504-BJR


October 31, 2019



Pro se Plaintiff Karen Weng brings the current action alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII") and the Rehabilitation Act of 1973, 29 U.S.C. § 749(a) ("Rehabilitation Act") based on her termination from the Department of Labor ("DOL"). This is the second federal court case stemming from her time at DOL, the previous, Weng v. Solis, 10-cv-2051 (D.D.C. closed Dec. 4, 2013), ended with the parties stipulating to a settlement. Weng, 10-cv-2051, Dkt. No. 45.

This action, however, is based solely on claims arising from her termination. Defendant

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Patrick Pizzella, Acting Secretary of DOL,1 moved for judgment on the pleadings or, alternatively, summary judgment. Dkt. No. 41. In response, Plaintiff cross-moved for partial judgment on the pleadings or, alternatively, summary judgment. Dkt. No. 48.2 Having reviewed the motions, the oppositions thereto, the record of the case, and the relevant legal authorities, the Court will grant in part and deny in part Defendant's motion and deny Plaintiff's cross-motion. The reasoning for the Court's decision follows.


A. Statutory Framework

1. Procedure of Raising an Employment Dispute

Before a federal employee can bring a lawsuit in federal court under Title VII or the Rehabilitation Act, she must exhaust the administrative remedies available at the agency in which she is employed. See Koch v. Walter, 934 F. Supp. 2d 261, 267-68 (D.D.C. 2013) (citing 42 U.S.C. § 2000e-16(c) ("requiring exhaustion under Title VII procedures"); 29 U.S.C. § 794a(a)(1) ("applying the remedies, procedures, and rights associated with Title VII claims to Rehabilitation Act claims")). Exhausting the administrative remedies at the agency involves numerous regulatory procedures and steps including, for example, contacting an Equal Employment Opportunity ("EEO") Counselor before filing a formal complaint with the agency. 29 C.F.R. § 1614.105. This

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route is referred to as the "statutory procedure," see, e.g., 5 U.S.C. § 7121(d), or "statutory and regulatory path," see, e.g., Koch, 934 F. Supp. 2d at 268.

Under the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 1101 et seq., however, a federal employee may opt instead to bring a complaint of employment discrimination through a process negotiated by the agency and the employee's union in a collective bargaining agreement. See 5 U.S.C. § 7121(d). As distinguished from the "statutory procedure," this route is referred to as the "negotiated procedure," see, e.g., 5 U.S.C. § 7121(d), or "negotiated grievance procedure," Koch, 934 F. Supp. 2d at 268. In the matter currently before the Court, Plaintiff is a member of the American Federation of Government Employees, Local No. 12, AFL-CIO ("Local 12"), under whose 2005 collective bargaining agreement (the "CBA") she brought the grievance currently at issue. Dkt. No. 38 at ¶ 8.

Aggrieved employees may bring their allegations "under a statutory procedure or the negotiated procedure, but not both." 5 U.S.C. § 7121(d).3 The employee makes her selection between paths when she files either with the agency or the union. Id. If the employee chooses the negotiated procedure, she may appeal an unfavorable decision to either the Equal Employment Opportunity Commission ("EEOC") or the Merit Systems Protection Board ("MSPB"). Id.

In this case addressing Plaintiff's claims around her termination, Plaintiff chose the negotiated grievance route and filed with the MSPB after losing in arbitration. Dkt. No. 38 at ¶ 8.

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2. The MSPB and the Substance of Claims

The MSPB is an independent federal adjudicator of federal employment disputes. See 5 U.S.C. §§ 1204, 7512, 7701. Its jurisdiction is reserved for particularly severe personnel actions, including removal, suspension for more than 14 days, reduction in grade or pay, and furlough of 30 days or less. 5 U.S.C. § 7512. For the purpose of MSPB jurisdiction, a "coerced" or "involuntary" resignation is treated as a removal. Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1329-30 (Fed. Cir. 2006). Thus, generally speaking, The MSPB does not have jurisdiction of an employee's removal where that employee voluntarily resigned but does have jurisdiction if that "seemingly voluntary action[]" was, in fact, "'involuntary and thus tantamount to forced removal.'" Id. at 1328 (quoting Shoaf v. Dep't of Agric., 260 F.3d 1336, 1340-41 (Fed. Cir. 2001)).

A plaintiff may generally advance two types of claims in front of the MSPB. First, she may argue that her agency had insufficient reasons for engaging in an employment action under the MSPB's jurisdiction. See 5 U.S.C § 7513(a) ("an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service"); id. at § 7513(d) ("[a]n employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board"). Second, she may also claim the agency acted for discriminatory purposes, in violation of Title VII or the Rehabilitation Act. See 5 U.S.C. § 7702(a)(1). When an aggrieved employee complains that an agency acted for both insufficient reasons (i.e., nondiscriminatory reasons) and discriminatory reasons, she is said to bring a "mixed claim." See Kloeckner v. Solis, 568 U.S. 41, 44 (2012) (emphasis in original) ("[w]hen an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a

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'mixed case'"); see also 29 C.F.R. § 1614.302 (defining a "mixed case appeal" as "an appeal filed with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, disability, age, or genetic information"); 5 U.S.C. § 7702(a)(1) (emphasis added) ("in the case of any employee or applicant for employment who-- (A) has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and (B) alleges that a basis for the action was discrimination . . . ."); Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 198 (2017).

If the MSPB upholds the personnel action, "the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review." Kloeckner, 568 U.S. at 45 (citing 5 U.S.C. §§ 7702(a)(3), (b); 5 C.F.R. § 1201.161; 29 C.F.R. § 1614.303); see also Perry, 137 S. Ct. at 1981. The general rule for ajudicial appeal from the MSPB is that the proper venue is the United States Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703(b)(1)(A). The exception to this rule, however, is the "mixed case," which, under 5 U.S.C. § 7703(b)(2), "shall be filed" under the applicable discrimination statutes being alleged, which "all authorize suit in federal district court." Perry, 137 S. Ct. at 1981 (quoting Kloeckner, 568 U.S. at 46). During the course of reviewing a claim appealed from the MSPB in a mixed case, the federal district court treats "the claims as a single unit, but appl[ies] different standards of review." White v. Tapella, 876 F. Supp. 2d 58, 64 (D.D.C. 2012); see also Grant v. Mnuchin, 373 F. Supp. 3d 286, 294 (D.D.C. 2019). "On the discrimination claim, the complainant 'shall have the right to have the facts subject to trial de novo by the reviewing court'" while the "nondiscrimination claims" are reviewed "on the administrative record" and are granted APA-like deferential review. Butler v. West, 164 F.3d 634, 639 n.10 (D.C. Cir. 1999) (quoting 5 U.S.C. §

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7703(c)); see also Hayes v. U.S. Gov't Printing Office, 684 F.2d 137, 138-39 (D.C. Cir. 1982).

B. Factual Background

Plaintiff is an Asian female who was born in Taiwan and graduated from Yale College and Georgetown University Law Center. Dkt. No. 38 at ¶ 10.4 She began working at DOL as an Employee Benefits Law Specialist in 1995. Id. at ¶¶ 10-11. Plaintiff alleges that from the beginning of her employment she, along with other minority employees, were subjected to "offensive racial, ethnic, and/or sexually charged slurs, comments, and jokes by [DOL] management officials." Id. at ¶ 34. Despite the alleged harassment, during the earliest period of her employment Plaintiff contends that she "was considered qualified for her position, received 'highly effective' or better performance evaluations, and was selected for a promotion to GS-13 in 2000." Dkt. No. 47 at 20; see also Dkt. No. 38 at ¶ 38.

Circumstances worsened, however, around 2004 when two of Plaintiff's female co-workers began filing EEO complaints. Dkt. No. 38 at ¶ 19. Plaintiff herself became involved in 2006 when she served as a witness in her co-workers' cases. Id. Plaintiff claims management's harassment escalated based on her involvement in these actions, and she began filing her own EEO complaints in April 2006. Id. at ¶ 39-40, 42. She also claims that she was diagnosed with post-traumatic stress disorder, depression, and anxiety as a result of her treatment, but was denied reasonable accommodations to cope with her conditions. Id. at ¶¶ 43-44, 46-48.

In total, Plaintiff filed seven EEO complaints based on working conditions primarily

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between February 2006 to April 2009. Weng v. Solis, 842 F. Supp. 2d 147, 150 (D.D.C. 2012). These seven complaints served as the basis for her first federal case, which, as mentioned earlier, ended with the parties stipulating...

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