Ramseur v. Harris , 962 F. Supp. 2d 21 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
LINDA RAMSEUR, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-0169 (ESH)
)
THOMAS E. PEREZ, Secretary, )
U.S. Department of Labor, )
)
Defendant. )
___________________________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Linda Ramseur brings this action against Thomas E. Perez, in his official
capacity as the Secretary of the Department of Labor.1 She asserts claims for discrimination on
account of race and sex and retaliation in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. 2000e-16. Before the Court is defendant’s motion for judgment on the
pleadings, plaintiff’s opposition thereto, and defendant’s reply. For the reasons stated herein,
defendant’s motion is granted in part and denied in part.
BACKGROUND
When the events giving rise to this case occurred, plaintiff was employed by the
Department of Labor (“DOL”) as a Staff Assistant, GS-09, assigned to the Office of the Director
in DOL’s Civil Rights Center (“CRC”). (Compl. ¶ 6, Feb. 6, 2013.) On May 18, 2009,
defendant posted a vacancy announcement for a “GS-11 Staff Assistant” in the CRC. (Id. ¶¶ 1,
6.) The position description included a requirement that a successful applicant must have
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Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Thomas Perez, the current
Secretary of Labor, has been substituted for the former Acting Secretary, Seth D. Harris.
“specialized experience in planning, implementing, or evaluating compliance and technical
assistance activities related to recipients of federal financial assistance; conducting EEO and EO
investigations and non-discrimination statutes under Title VI and VII of the Civil Rights Act and
Related Statutes.” (Id. ¶ 1.) Shortly after the advertisement was posted, plaintiff applied for the
position. (Id.)
On October 26, 2009, plaintiff received notice that she had been deemed “unqualified”
for the position because of her lack of specialized experience. (Compl. ¶ 34.) Plaintiff alleges
that this specialized experience is “unrelated and unnecessary” to the position advertised. (Id. ¶
20; see also id. ¶¶ 1, 2, 11-14, 21, 22, 24, 31, 47.) She alleges that the GS-11 Staff Assistant
position “contained the same administrative duties that were already being performed by [her].”
(Id. ¶ 6.) Further, she alleges that the specialized experience requirement had been added to the
job qualifications by her supervisor, Patricia Lamond, specifically to prevent her from qualifying
for the position and that she had never been given the opportunity to gain such experience. (See,
e.g., id. ¶¶ 43, 46.)
On November 5, 2009, plaintiff received a performance rating of “effective” and no
bonus award. (Id. ¶¶ 18, 49.) She claims that, unlike all other CRC employees, she was the only
support staff who did not receive a bonus in 2009, and that she had not been given the
opportunity to participate in a mid-year appraisal that could have informed her that she needed to
improve her performance. (Id. ¶ 49.) Plaintiff also alleges that Eliva Mata forwarded her
performance appraisal to the Human Resource Center without allowing her to add her comments.
(Id.) On both November 17 and 18, 2009, plaintiff asserts that Lamond yelled at her for failing
to copy a document and properly deal with office correspondence. (Id.)
On December 9, 2009, plaintiff submitted an “Informal Complaint Information Form” to
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the CRC (Def.’s Mot. for Judgment on the Pleadings (“Def. Mot.”), Ex. 1, May 15, 2013), and
on February 4, 2010, she filed a formal administrative complaint. (Id., Ex. 2 (“EEO Formal
Compl.”).) On April 18, 2012, an EEOC administrative judge dismissed plaintiff’s claims.
On February 6, 2013, plaintiff filed an employment discrimination complaint under Title
VII, claiming that (1) defendant engaged in an unlawful employment practice by including a
requirement in the staff assistant job posting that disproportionately disqualifies minority and/or
women applicants and has no relationship to the tasks expected to be performed (Compl. ¶¶ 52-
56 (Count I)); (2) defendant retaliated against her by giving her a lower performance review and
denying her a performance award, delaying the progress of her administrative claim, and
subjecting her to a hostile work environment (id. ¶¶ 57-61 (Count II)); (3) defendant subjected
her to a retaliatory hostile work environment for “speaking out against the denial of a promotion
opportunity,” by subjecting her to constant yelling and by instructing her to leave post-it notes in
her cubicle when she was not at her desk (id. at 25-28 (Count III)); and (4) she is a victim of
“workplace bullying” because her supervisor constantly yelled at her. (Id. at 28-29 (Count IV).)
Defendant filed an answer (Answer, Apr. 8, 2013), and plaintiff filed a response thereto. (Pl.
Resp. to Answer, Apr. 19, 2013.) The Court held an initial scheduling conference on May 1,
2013, and discovery commenced.
Defendant has now filed a motion for judgment on the pleadings on the ground that
plaintiff failed to exhaust administrative remedies and that the complaint failed to state a claim
upon which relief can be granted.
ANALYSIS
Under Rule 12(c) of the Federal Rules of Civil Procedure, “[a]fter the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the pleadings.”
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Fed. R. Civ. P. 12(c). A Rule 12(c) motion shall be granted “if the moving party demonstrates
that no material fact is in dispute and that it is entitled to judgment as a matter of law.” Schuler
v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C. Cir. 2008) (internal quotations
omitted). When evaluating a motion for judgment on the pleadings, courts employ the same
standard that governs a motion to dismiss under Rule 12(b)(6). See Rollins v. Wackenhut Servs.,
Inc., 703 F.3d 122, 129 (D.C. Cir. 2012). Thus, the “complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A court “should take all of the factual allegations in the complaint as true,” but is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Id. at 678 (internal quotations
omitted).
I. COUNT I: DISCRIMINATION
Plaintiff claims that defendant engaged in an unlawful employment practice by including
a requirement in the staff assistant job posting that disproportionately disqualifies minority
and/or women applicants and has no relationship to the tasks expected to be performed. (Compl.
¶¶ 1, 52-56.) Defendant argues that plaintiff’s disparate impact claim fails to state a claim upon
which relief can be granted, or, alternatively, that plaintiff has failed to exhaust her
administrative remedies as to her disparate impact theory. (Def. Mot. at 11-16.) The Court
disagrees, for the allegations in plaintiff’s complaint are sufficient to survive a motion to dismiss
and plaintiff has exhausted her administrative remedies. In addition, defendant overlooks the
fact that Count I alleges both a claim for disparate impact and disparate treatment.
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A. Failure to State a Claim
“[A] plaintiff establishes a prima facie disparate-impact claim by showing that the
employer ‘uses a particular employment practice that causes a disparate impact’ on one of the
prohibited bases.” Lewis v. City of Chicago, 560 U.S. 205, 130 S. Ct. 2191, 2197-98 (2010)
(quoting Ricci v. DeStefano, 557 U.S. 557, 577-78 (2009)). “Once the employment practice at
issue has been identified, causation must be proved; that is, the plaintiff must offer statistical
evidence of a kind and degree sufficient to show that the practice in question has caused the
exclusion of applicants for jobs or promotions because of their membership in a protected
group.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). “An employer may
defend against liability by demonstrating that the practice is ‘job related for the position in
question and consistent with business necessity.’” Ricci, 557 U.S. at 578 (quoting 42 U.S.C. §
2000e-2(k)(1)(A)(i)). “Even if the employer meets that burden, however, a plaintiff may still
succeed by showing that the employer refuses to adopt an available alternative employment
practice that has less disparate impact and serves the employer’s legitimate needs.” Id. (citing §§
2000e–2(k)(1)(A)(ii) and (C)).
However, to survive a motion to dismiss, a plaintiff need not “make out a prima facie
case of discrimination.” Ali v. District of Columbia, 697 F. Supp. 2d 88, 92 (D.D.C. 2010).
Although “[c]ommon sense and fairness . . . dictate that plaintiff must, at a minimum, allege
some statistical disparity, however elementary, in order for the defense to have any sense of the
nature and scope of the allegation,” Brady v. Livingood, 360 F. Supp. 2d 94, 100 (D.D.C. 2004),
plaintiff’s allegations satisfy this standard, especially considering that she was proceeding pro se
at the time she filed her complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se
pleading held to “less stringent standards than formal pleadings drafted by lawyers”). For
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example, the complaint includes allegations that defendant “took the duties for Equal
Opportunity Specialists and made it the criteria for the women applicants applying for the [GS-
11 Staff Assistant] vacancy, who are experienced at performing administrative duties,” and as a
result, “each African-American and/or women’s application for the [GS-11] who was an
experienced administrative applicant was impacted.” (Compl. ¶ 19.) In addition, the complaint
alleges that “Defendant’s unrelated and unnecessary criteria for the staff assistant vacancy had a
discriminatory and d[i]sperate impact on eight women and African-American applicants” (id. ¶
20), and that the Staff Assistant position “is traditionally held by women and/or African-
American women, who are experienced in performing administrative duties.” (Id. ¶ 24.) The
gist of these allegations is that the impact of the specialized experienced qualification was to
disproportionately disqualify female and African-American applicants. While it may be that
plaintiff’s disparate impact claim will not ultimately survive, she has alleged at least an
“elementary” statistical disparity that is sufficient to allow the claim to proceed. See, e.g., Munro
v. LaHood, 839 F. Supp. 2d 354, 363 (D.D.C. 2012) (motion to dismiss denied despite “doubts as
to whether plaintiff will ultimately be able to prove” discrimination claim).
B. Exhaustion
“[T]imely exhaustion of administrative remedies is a prerequisite to a Title VII action
against the federal government.” Steele v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008).
Defendant argues that plaintiff failed to exhaust her disparate impact claim because that claim is
not “like or reasonably related to” her underlying administrative claim. (Def. Mot. at 8 (citing
Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)).
The purpose of the exhaustion requirement is “to give federal agencies an opportunity to
handle matters internally whenever possible and to ensure that the federal courts are burdened
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only when reasonably necessary,” not to create a “procedural roadblock to access to the courts.”
Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) (internal quotations and citations omitted).
Thus, “an administrative charge is not a blueprint for the litigation to follow . . . [and] the exact
wording of the charge of discrimination need not presage with literary exactitude the judicial
pleadings which may follow.” Howard v. Gutierrez, 571 F. Supp. 2d 145, 157 (D.D.C. 2008);
Williams v. Dodaro, 576 F. Supp. 2d 72, 82-83 (D.D.C. 2008) (“the fact that [plaintiff]
describe[s] her allegations with greater specificity in [the civil] proceedings does not establish
that she failed adequately to present them at the administrative level”). Thus, although an
employee may only file claims that are “like or reasonably related to the allegations of the [EEO]
charge and grow[ ] out of such allegations),” Park , 71 F.3d at 907, “the critical question is
whether the claims set forth in the civil complaint come within the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of discrimination.”
Howard, 571 F. Supp. 2d at 157; see Park , 71 F.3d at 907 (“At a minimum, the Title VII claims
must arise from the administrative investigation that can reasonably be expected to follow the
charge of discrimination.” (internal quotations omitted)). In addition, “[d]ocuments filed by an
employee with the EEOC should be construed, to the extent consistent with permissible rules of
interpretation, to protect the employee’s rights and statutory remedies.” Fed. Express Corp. v.
Holowecki, 552 U.S. 389, 406 (2008).
Here, plaintiff’s disparate impact claim satisfies the “like or reasonably related” test. See
Park, 71 F.3d at 907. In her formal administrative complaint, plaintiff alleged discrimination
based on race, sex, and color based on her belief that “specialized experience has no relevance to
the GS-11 Staff Assistant vacancy announced,” that this qualifying criteria had never been
required previously for this level or type of position, and that the only reason she did not get the
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job was because of the specialized experience qualification. (EEO Formal Compl. at 1). Thus,
plaintiff’s administrative complaint identified a facially neutral employment policy and alleged
that it was responsible for her not getting the job she applied for. That is sufficient to put the
defendant on notice to investigate the policy. See, e.g., Watkins v. City of Chicago, 992 F. Supp.
971, 973 (N.D. Ill. 1998) (disparate impact claim was reasonably related to disparate treatment
claim where plaintiff alleged that she was denied promotion due to the city’s policy of
disqualifying individuals arrested for felonies because plaintiff’s charge would have led to an
investigation into whether such a policy existed); DiPompo v. W. Point Military Acad., 708 F.
Supp. 540, 547-48 (S.D.N.Y. 1989) (plaintiff exhausted disparate impact claim when he alleged
in his EEO complaint that a reading test operated to discriminate against him because of his
handicap of dyslexia even though EEO officer “never considered” whether plaintiff might have a
disparate impact claim); cf. Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir. 2006) (“[A] disparate
impact investigation could not reasonably have been expected to grow out of [plaintiff’s]
administrative charge because of the following matters taken together: (1) it facially alleged
disparate treatment; (2) it identified no neutral employment policy; and (3) it complained of past
incidents of disparate treatment only.”)
C. Disparate Treatment
In challenging plaintiff’s disparate impact claim, defendant overlooks plaintiff’s claim for
disparate treatment, which is reflected by her formal administrative complaint (EEO Formal
Compl. at 1), her civil complaint (Compl. ¶¶ 18, 49), and in her response to defendant’s motion
for judgment on the pleadings. (Pl.’s Opp’n to Def. Mot. at 13, June 28, 2013.) “Although
disparate treatment and disparate impact allegations are substantiated using different types of
evidence, they are both methods of proving Title VII discrimination and may be plead in a single
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claim.” See Watkins, 992 F. Supp. at 973.
Accordingly, plaintiff may proceed with her discrimination claim under Count I as both a
disparate treatment and disparate impact claim.
II. COUNT II: RETALIATION
Under Title VII, an employer may not discriminate against an employee because the
employee “has opposed any practice made an unlawful practice by [Title VII], or because [the
employee] has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). The policy
rationale behind barring retaliation is to provide protection to an employee seeking to enforce
Title VII’s basic guarantees. Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006).
To state a claim for retaliation under Title VII, a plaintiff must show that: (1) she engaged
in protected activity; (2) she suffered a materially adverse action; and (3) a causal connection
exists between the protected activity and the adverse action. Holcomb v. Powell, 433 F.3d 889,
901-02 (D.C. Cir. 2006). Regarding the element of causation, the Supreme Court has recently
held that Title VII retaliation claims “require proof that the desire to retaliate was the but-for
cause of the challenged employment action,” a stricter test than the “motivating factor” test
applicable to status-based discrimination. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2528 (2013).
Plaintiff’s first retaliation claim is that defendant retaliated against her by giving her a
low performance rating; forwarding that rating to the Human Resources Center without allowing
plaintiff an opportunity to add her comments to the review, as allegedly promised; not giving her
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a bonus; and subjecting her to a hostile work environment.2 (Compl. ¶¶ 57-61.) Defendant
argues that this claim fails as a matter of law because these actions predated any protected
activity. (Def. Mot. at 16-18.) As plaintiff has failed to respond to this argument, the Court will
treat this claim as conceded. See, e.g., McMillan v. Wash. Metro. Area Transit Auth., 898 F.
Supp. 2d 64, 69 (D.D.C. 2012) (“It is well understood in this Circuit that when a plaintiff files an
opposition to a motion . . . addressing only certain arguments raised by the defendant, a court
may treat those arguments that the plaintiff failed to address as conceded.”) But even if the
Court were to reach the merits, it is clear from the face of her complaint that plaintiff could not
allege a causal connection between these events and her protected activity. As defendant points
out, plaintiff’s first protected activity occurred on December 9, 2009 (Def. Mot. at 16-18), but
the acts that she is complaining about all occurred in November 2009. (EEO Formal Compl. at
1.) Thus, it is factually impossible for plaintiff to prove causation as to this retaliation claim.
Plaintiff’s second retaliation claim is that defendant retaliated against her by failing to
comply with EEOC procedures and twice delaying the investigative process. (Compl. ¶¶ 57-61.)
Defendant argues that this retaliation claim also fails as a matter of law because there is no cause
of action under Title VII for delay or interference in the administrative process. (Def.’s Mot. at
18-19.) Defendant is correct. “‘There is no cause of action’ for federal employees to bring
retaliation or discrimination claims based on ‘complaints of delay or interference in the
investigative process.’” Diggs v. Potter, 700 F. Supp. 2d 20, 46 (D.D.C. 2010) (quoting Keeley
v. Small, 391 F. Supp. 2d 30, 45 (D.D.C. 2005)); see also Trout v. Lehman, No. 82-2507, 1983
WL 578, at *1 (D.D.C. July 7, 1983) (retaliation claim regarding interference with an EEOC
investigation is not about a condition of employment and “therefore not cognizable as a separate
2
Plaintiff’s claim that defendant retaliated against her by subjecting her to a hostile work
environment is addressed in Section III, infra.
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cause of action in a judicial proceeding brought under Title VII”).
As neither of plaintiff’s retaliation claims are viable, Count II will be dismissed.3
III. COUNT III: HOSTILE WORK ENVIRONMENT
Plaintiff claims that defendant subjected her to a hostile working environment in
retaliation for speaking out against the “denial of a promotion opportunity.” (Compl. at 25-28.)
Specifically, plaintiff alleges that Lamond subjected her to constant yelling and instructed her to
leave post-it notes in her cubicle when she was not at her desk. (Id.)
To prevail on a retaliatory hostile work environment claim, “a plaintiff must show that
h[er] employer subjected h[er] to ‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); accord Hussain v. Nicholson, 435
F.3d 359, 366 (D.C. Cir. 2006). “To determine whether a hostile work environment exists, the
court looks to the totality of the circumstances, including the frequency of the discriminatory
conduct, its severity, its offensiveness, and whether it interferes with an employee’s work
performance.” Baloch, 550 F.3d at 1201. The “conduct must be extreme to amount to a change
in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998). This standard is “sufficiently demanding to ensure that Title VII does not become a
general civility code.” Id. (internal quotations omitted)
Defendant argues that plaintiff has not stated a claim for a retaliatory hostile work
environment because the alleged conduct is not “extreme” enough “to amount to a change in the
3
Since defendant’s motion to dismiss plaintiff’s retaliation claim has been granted on the merits,
the Court does not need to address defendant’s alternate argument that plaintiff failed to exhaust
her administrative remedies as to this claim. (Def. Mot. at 11-13.)
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terms and conditions of employment.” (Def. Mot. at 20-21 (quoting Faragher, 524 U.S. at
788).) At this stage in the proceedings, the Court is unable to conclude that the allegations in the
complaint are deficient as a matter of law and, therefore, Count III will not be dismissed.
IV. COUNT IV: WORK PLACE BULLYING
Plaintiff claims that she was a victim of workplace bullying because of “constant yelling”
by Lamond and her having “humiliated” her by “sabotaging” the vacancy announcement to
portray plaintiff as “unqualified.” (Compl. at 29.) Defendant correctly states that workplace
bullying is not an independently cognizable claim under Title VII, but that if the bullying is
sufficiently “severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment,” plaintiff may be able to recover under a hostile work
environment claim. See Baloch, 550 F.3d at 1201; accord Hussain, 435 F.3d at 366. Nor does
the Indiana Supreme Court case plaintiff refers to in her complaint suggest that there is an
independently cognizable common law claim for “workplace bullying.” See Raess v. Doescher,
883 N.E.2d 790, 799 (Ind. 2008). Thus the Court will dismiss Count IV and treat its allegations
as part of Court III, plaintiff’s hostile work environment claim.
CONCLUSION
For the reasons stated above, it is hereby ORDERED that defendant’s motion for
judgment on the pleadings is GRANTED IN PART AND DENIED IN PART; it is further
ORDERED that the motion is GRANTED as to Counts II and IV and those counts are
DISMISSED; and it is further ORDERED that the motion is DENIED as to Counts I and III.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
DATE: August 23, 2013
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