Wongus v. McDonald
| Decision Date | 23 November 2016 |
| Docket Number | Civil Action No. ELH-15-2950 |
| Parties | ELAINE Q. WONGUS, Plaintiff, v. ROBERT McDONALD, SECRETARY, Department of Veterans Affairs, Defendant. |
| Court | U.S. District Court — District of Maryland |
Elaine Q Wongus, the self-represented plaintiff, initiated this employment discrimination case against Robert McDonald, Secretary of the United States Department of Veterans Affairs ("VA" or "Department"), defendant, alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e, et seq., and the Age Discrimination in Employment Act ("ADEA"), as amended, 29 U.S.C. §§ 621, et seq. ECF 1. She has twice amended her suit. See ECF 5 (First Amended Complaint); ECF 13 (Second Amended Complaint). Plaintiff also submitted exhibits with the original Complaint and the Second Amended Complaint. See, e.g., ECF 13-1 to ECF 13-8.
Plaintiff is an African American woman who is over the age of forty. See ECF 13 at 1. According to an appeal form that plaintiff submitted to the Merit Systems Protection Board ("MSPB"), plaintiff began working for the VA in December 2006 (see ECF 16-8 at 2), where she remains employed. ECF 18 at 1. At all relevant times, Wongus worked as a Health System Specialist for the Department at its medical center in Perry Point, Maryland. See ECF 16-2 at 2 ("Complaint of Employment Discrimination");1 ECF 18-2 at 2 (EEOC Hearing Request Form). Wongus contends that, on an unspecified date, she was not hired "with the Anesthesia Department as Management Analyst"; that she was not promoted on August 10, 2010;2 and that she suffered "defamation of character, reprisal, retaliation, bullying, hostile working environment, prohibit [sic] personnel practice, harassment, and, intimidation." ECF 13 at 2 (emphasis omitted).
In her suit, Wongus states that on February 13, 2012, she filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"); the MSPB; and her Union. Id. ¶ 9.3 She also claimed that she received a right to sue letter on August 29, 2015. Id. ¶ 10. Plaintiff also attached to her suit a copy of the "Decision" from the EEOC's Office of Federal Operations ("OFO"), dated August 13, 2015. ECF 1-1.
Defendant has moved to dismiss the Second Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). ECF 16. The motion is accompanied by a memorandum of law (ECF 16-1) (collectively, the "Motion"), and various exhibits. ECF 16-2through ECF 16-11. Defendant argues that Wongus failed to exhaust her claims through the administrative process, as required by the applicable statutes. ECF 16-1 at 10-12. Further, the Department claims that the suit was untimely filed. Id. at 13-14. And, defendant contends that, even if Wongus properly exhausted her administrative remedies, she has failed to state a claim. Id. at 14-16. Wongus opposes the Motion (ECF 18, the "Opposition"), supported by exhibits. ECF 18-1 through ECF 18-5. Defendant has replied. ECF 19 (the "Reply").
In addition, plaintiff has filed a motion for leave to file a surreply. ECF 22 (the "Motion for Surreply"). Defendant opposes the Motion for Surreply (ECF 23, the "Response") and plaintiff has replied. ECF 24.
The Motion and the Motion for Surreply have been fully briefed, and no hearing is necessary to resolve them. See Local Rule 105.6. The Court is mindful of its obligation to construe liberally the pleadings of a pro se litigant, which are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nevertheless, for the reasons that follow, I shall grant, in part, and deny, in part, the Motion for Surreply, and I shall grant the Motion to Dismiss.
The claims in Ms. Wongus's Second Amended Complaint appear to arise from two discrete matters. One relates to plaintiff's "Complaint of Employment Discrimination" ("EEO Complaint"), filed May 23, 2012, with the Department's Office of Resolution Management ("Office"). ECF 16-2 at 2. The other concerns plaintiff's suspension and subsequent grievance proceeding. See, e.g., ECF 16-7.
On February 13, 2012, plaintiff initiated contact with an equal employment opportunity ("EEO") counselor. See ECF 16-2 at 4. Counseling concluded on May 13, 2012. Id. Plaintiff was mailed a "Notice of Right to File a Discrimination Complaint," which she received on May 17, 2012. Id. Thereafter, on May 23, 2012, plaintiff filed the EEO Complaint with the Department. ECF 16-2 at 2. She listed claims as to three incidents. As to the first occurrence, on March 5, 2012, plaintiff stated: "Code Orange against manager."4 Id. Plaintiff also referred to events of May 16, 2012, and said: "[T]hreaten, Hostile environment, retaliation (going to write me up (PIP) intimidation[)]." Id. Third, plaintiff asserted a claim as to an occurrence on May 17, 2012: "[T]hreaten, Harass, Hostile environment, Retaliation (I told her that I was sick,) Intimidation (Kathy said, I could not go home)." Id.
On August 14, 2012, the Office issued a "Notice of Partial Acceptance" as to plaintiff's EEO Complaint. ECF 16-2 at 4-6. The notice outlined twelve allegations, presumably distilled from plaintiff's EEO Complaint. See ECF 16-2 at 2.
According to the notice, plaintiff asserted that she was "subjected to a hostile work environment based on her race (Black) . . . ." ECF 16-2 at 4. The notice recounted numerous events reported by plaintiff to support her claim. Id. at 4-5. Plaintiff claimed, inter alia, that in February 2012, her supervisor, Compliance Officer Kathy McCardell, "yelled at her and said [plaintiff] was not in the union." ECF 16-2 at 5. On February 13, 2012, McCardell sent plaintiff an email in which McCardell "accused [plaintiff] of being insubordinate." Id. McCardell sent an additional email to plaintiff on February 16, 2012, accusing plaintiff of "unacceptable conduct." Id. Plaintiff also alleged that in March 2012, McCardell "ignored the [plaintiff's]complaint about a horrible smell in . . . her office." Id. And, on March 2, 2012, McCardell "accused the [plaintiff] of not finishing her audits." Id. McCardell "shouted and banged on the [plaintiff's] office door" on March 5, 2012. Id. In April 2012, McCardell "spoke to [plaintiff] in a condescending manner . . . ." Id. Thereafter, on May 16, 2012, McCardell "threatened to place [plaintiff] on a Performance Improvement Plan" (PIP). Id.
Upon review of the allegations, the Office "ACCEPTED for investigation" the claims of harassment, for the reasons it set forth in ECF 16-2 at 5-6 (emphasis in original). However, two claims were not accepted for investigation by the Office, as they were deemed untimely. ECF 16-2 at 4. In particular, plaintiff had stated that, from September 13, 2010 to October 15, 2011, she was "detailed as the Acting Compliance Officer, a higher graded position," but was not compensated at the higher level or promoted to that position. Id. Plaintiff also claimed that on February 13, 2012, she was told that her request for "temporary promotion would not be processed . . . ." Id.
On January 29, 2014, the VA and plaintiff, through counsel, filed with the EEOC a document titled "Joint Motion to Dismiss with Prejudice." ECF 16-3. It stated: "The parties, by and through their respective below-signed counsel, hereby jointly move for the dismissal of this EEO complaint in its entirety, with prejudice." Id.
On October 2, 2013, McCardell, plaintiff's supervisor, issued a Memorandum to Wongus, proposing a five-day suspension, without pay, based on three charges. ECF 16-4.5 The Memorandum stated, id. at 2:
The Memorandum also outlined Wongus's rights in connection with the charges, including her right to contest the charges and to obtain counsel, and she was also provided information about the procedure. Id. at 2-3. In addition, Wongus was informed that the final decision would be made by the "Director." Id.7
On February 21, 2014, Dennis Smith, the Director of the VA Maryland Health Care System, issued to Wongus a "Notice of Decision to Suspend," suspending her for three days, from March 17, 2014 to March 19, 2014. ECF 16-5 at 3-4. In particular, Smith sustained two ofthe three charges: "Failure to Follow Instructions" (Charge 1) and "Unprofessional Conduct" (Charge 2). Id. The Director stated that, based on plaintiff's oral reply, he "decided to remove the charge of Absent Without Leave," and to reduce the suspension from five days to three days. Id. at 3.
On March 13, 2014, the Union filed a "Step 3 Grievance" (the "Grievance") on plaintiff's behalf,...
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