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Sheila A. Bloom v. John Mchugh

December 6, 2011

SHEILA A. BLOOM, PLAINTIFF,
v.
JOHN MCHUGH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court for the District of Columbia

MEMORANDUM OPINION

Sheila A. Bloom, a former employee of the United States Army Corps of Engineers proceeding pro se,*fn1 brings this action against John McHugh, Secretary of the Army, and Robert L. Van Antwerp, Jr., Commander of the Army Corps of Engineers.*fn2 Bloom alleges harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Civil Service Reform Act, Pub. L. No. 95-454, 92 Stat. 1111 (1978) (codified in scattered sections of 5 U.S.C.); and the Whistleblower Protection Act, Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified in scattered sections of 5 U.S.C.). Before the Court is defendants' motion to dismiss her complaint in part and for summary judgment [Dkt. # 44].*fn3 Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that defendants' motion should be granted.*fn4

I. BACKGROUND

Bloom was hired by the Army Corps of Engineers as a civil engineer in 1986. Compl. ¶ 15. In June 1996, she began serving as a program manager in the Corps's Baltimore District office, working on, among other things, the "Spring Valley" project. Compl.¶ 17.*fn5 Bloom states that between 1996 and 1998 she raised with her supervisors concerns about environmental and public health dangers at the Spring Valley site.Compl.¶ 18. In retaliation, Bloom contends, the Corps replaced her as the program manager at the Spring Valley site. Compl.¶ 19. Bloom also alleges that the Corps initially attempted to interfere with her transfer to another position, which she was later permitted to accept. Compl.¶ 20.

In 2002, the U.S. Department of Justice allegedly began investigating the Spring Valley site and interviewed Bloom. Compl.¶ 21. Bloom contends that before her interview, she informed individuals in the Army Corps's Baltimore District office and its Office of the General Counsel about her concerns regarding the Spring Valley site, after which it allegedly "became known to the command structure" of the Corps that Bloom planned to move forward with raising her complaints externally. Compl.¶ 21. Bloom also contends that she spoke with the Corps Inspector General about the Spring Valley site in November 2002. Compl.¶ 23.

Earlier that year, Bloom had accepted a position within the Corps's Command Planning Group.Compl.¶¶ 22, 24.In this position, she worked under a team of three managers: Bruce Elliott, Sean Wachutka, and Toni Trombecky (collectively, the "management team"). Compl.¶ 26. Bloom contends that she experienced "significant retaliation" during this assignment as a result of her "protected disclosures" regarding the Spring Valley site. Compl. ¶ 22.

Bloom also alleges that the management team subjected her to a "pattern of discrimination" beginning in September 2002. Compl. ¶ 29. Specifically, Bloom says that Wachutka "continually presented" her with job announcements. Compl. ¶ 30. Trombecky allegedly accused Bloom of attempting to undermine her authority, belittled Bloom in front of her male colleagues, and refused to assign Bloom work in areas where she had experience. Compl. ¶ 31. The management team also purportedly refused to change Bloom's title from "facilitator" to the "more distinguished and prestigious" title of "strategic planner," which allegedly resulted in her being designated an "overhire" in the Corps's January 2004 reorganization. Compl. ¶¶ 34--36.

In July 2002, Bloom attended a Corps work party where, she says, Trombecky's husband "made inappropriate sexual advances" toward her. Compl.¶ 27.She contends that Trombecky's husband "grabbed . . . Bloom and pulled her towards him into a hug," saying "'take me away from them, they don't understand me.'" Compl.¶ 27.Bloom also alleges that, several days later, Trombecky "trapped" her in her cubicle and "berated her." Compl.¶ 28.

In November 2002, Trombecky allegedly told Bloom that her husband was going to "joke" with Bloom at the Corps's upcoming holiday party and said, "in a very sexual tone . . . '[o]h he really likes you.'" Compl. ¶ 32. At the party, Trombecky's husband allegedly "grabbed [Bloom] and tickled her arms near her breasts." Compl. ¶ 33. Bloom says that he then "stood against the wall and stared at [her] for a long time." Compl. ¶ 33.

In January 2003, Trombecky allegedly "subjected . . . Bloom to harassment" at a work conference, prompting Bloom to report Trombecky's harassment to Elliott. Compl. ¶¶ 37--38. After lodging this complaint, Bloom contends that she became "the subject of retaliation by her supervisors." Compl. ¶ 91. Specifically, on February 3, 2003, Trombecky allegedly informed Bloom that her Quality Step Increase would not take effect, even though Bloom had previously been told that the increase had been approved. Compl. ¶ 39. On February 4, 2003, Trombecky allegedly "verbally abused" Bloom, prompting Bloom to request that Elliott remove her from the "hostile work environment." Compl. ¶¶ 40--41.

On February 11, 2003, Trombecky purportedly had security staff escort Bloom through the building and then issued her a letter of reprimand, after which Bloom initiated an informal administrative grievance. Compl. ¶¶ 43--45. Bloom contends that her efforts to seek redress through the Corps's chain of command were "continuously denied." Compl. ¶ 45. On March 13, 2003, Bloom purportedly received notification that she had been charged with being away without leave ("AWOL") for 3.75 hours, causing her to lose $157.50 in "pay and benefits." Compl. ¶¶ 51, 99.

In April 2003, Trombecky allegedly referred Bloom to a mandatory anger management program. Compl. ¶ 53. Trombecky also allegedly "targeted [Bloom], unlike her male counterparts," by requiring her to: (i) provide a fixed arrival and departure schedule; (ii) sign in and out on a timesheet for her time in, time out, and lunch hours; (iii) sign in and out any time she was away from her desk for more than thirty minutes; and (iv) alert Trombecky any time she attended a meeting that went longer than expected. Compl.¶¶ 53--54. In May 2003, Trombecky and Elliot purportedly denied Bloom's request to attend a conference. Compl.¶ 56. In June 2003, Trombecky allegedly wrote a derogatory e-mail about Bloom and requested information from Bloom's physician. Compl.¶¶ 59--60.

In August 2004, Bloom received a thirty-working-day suspension. Compl.¶ 70. The specific bases for the suspension were "communicating a threat, failure to follow instructions, and lack of candor." Def.'s Mem. in Supp. of Mot. to Dismiss in Part and for Summ. J. ("Defs.' Mem.") at 18. Bloom contends that, as a result, she lost $10,080 in wages and was denied other benefits, including matching contributions to her retirement account, health benefits, leave accrual, and insurance benefits. Compl. ¶ 139. Bloom says that she did not engage in the misconduct used as the basis of her suspension, or in the alternative, that any misconduct was "provoked." Compl.¶¶ 140--141.

Bloom contends that in August 2004, Wachutka refused to allow her to reapply for a security clearance because "he was not going to require a clearance for her position." Compl. ¶ 75. She alleges that the lack of a security clearance "limited [her] mobility for placement into available openings from the overhire position" and "impacted her ability to . . . obtain promotions or assignments to key projects." Compl.¶¶ 75--76.

In October 2004, Bloom received a "[f]ailing (5) performance appraisal." Compl.¶ 81. As a result, Bloom was placed on a performance improvement plan and "was ineligible for a cash award in both 2003 and 2004." Compl.¶¶ 106, 108. Bloom argues that the Corps's failure to issue her "legitimate performance appraisals" from November 2002 to October 2004 "denied her the opportunity to transfer into another position and be promoted." Compl.¶¶ 82, 107.

Bloom contends that throughout this period, she repeatedly complained about her working environment to her supervisors and requested to be transferred. See Compl. ¶¶ 29--86. Specifically, Bloom says that she complained of Trombecky's "harassment" to Elliott in January 2003 and asked Elliott to remove her "from the hostile work environment" in February 2003. Compl. ¶¶ 38, 41. Between February 2003 and April 2003, Bloom allegedly filed informal and formal administrative grievances, to no avail. Compl. ¶¶ 44--45, 49. In March 2003, Bloom's request for a transfer was allegedly denied. Compl. ¶ 48. In May 2003, Bloom avers that she reported to a different Corps division for a permanent transfer, but the transfer was subsequently reversed. Compl. ¶ 57. Bloom contends that she alerted Lieutenant General Robert Flowers in May 2003 that she was being discriminated and retaliated against as a result of "her whistleblower activity" regarding the Spring Valley site and "her prior EEO protected activities"; Flowers allegedly took no action. Compl. ¶ 58. In October 2003, Bloom's request to be removed from her position was again denied. Compl. ¶ 64.

Between May 2003 and February 2005, Bloom filed four complaints with the Army Equal Employment Opportunity Office. See Compl. ¶¶ 52, 68--69, 86. In September 2005, she commenced this action. From May 2008 through May 2009, this action was stayed pending the Court of Appeals' resolution of the dismissal of a related civil action, Bloom v. Geren, No. 07- 0979 (D.D.C. Jan. 18, 2008). The D.C. Circuit resolved that appeal by summary affirmance, see Bloom v. Geren, 2009 WL 1953632 (D.C. Cir. Feb. 3, 2009), and the defendants then brought this motion to dismiss and for summary judgment.

II. LEGAL STANDARDS

A. Judgment on the Pleadings Under Rule 12(c)

Defendants move to dismiss some of Bloom's claims under Federal Rule of Civil Procedure 12(b)(6), but such a motion is untimely because they have already filed an answer. See FED. R. CIV. P. 12(b) ("A motion asserting any [Rule 12(b)] defenses must be made before pleading if a responsive pleading is allowed."). Because, however, the standards for a Rule 12(b)(6) motion and a Rule 12(c) motion for judgment on the pleadings are identical, courts routinely construe motions to dismiss that are filed after a responsive pleading as motions for judgment on the pleadings, and this Court will do ...


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