The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Susan Morris is a former employee at the Environmental Protection Agency ("EPA"). She complains of discrimination based on her sex (female) and race (Caucasian), relating to a seven-day suspension and later removal from her job. She also claims that she was subjected to a hostile work environment. Defendant moves (1) to dismiss the suspension and removal claims for failure to exhaust administrative remedies and (2) for summary judgment on the hostile work environment allegation for failure to state a claim. As explained below, the motion will be granted with one exception - the suspension claim was, in fact, exhausted and will not be dismissed.
Ms. Morris is a career federal employee who spent the last ten years with EPA in a GS-15 level position. She joined EPA's Office of Civil Rights in 2001 as a Team Leader for the agency's Workforce Diversity and Employment Program. She then became an Assistant Director with the title "Equal Employment Manager." Ms. Morris alleges that she received outstanding ratings from her supervisors as well as various awards, including a Bronze Medal in 2004 and an Award for Superior Accomplishment in 2006.
In 2005, a contractor produced Management Directive 715, which was critical of EPA's personnel policies, procedures and practices. Ms. Morris certified the report and submitted it to EPA's Director of Civil Rights at the time, Karen Higginbotham. Ms. Morris alleges that "because this report raised issues that Ms. Higginbotham believed cast doubt on her leadership of EPA's Office of Civil Rights, and that of management as a whole . . . she began a campaign to harass plaintiff and drive her from the agency and from federal employment." Compl. ¶ 9.
Ms. Morris further contends that Ms. Higginbotham and Ray Spears, Deputy Chief of Staff at EPA, both of whom are African American, harassed her because she is White. Id. ¶ 10. She claims that they created a hostile work environment as follows:
Beginning in 2005 and continuing into 2010, Ms. Higginbotham . . . [and Mr. Spears] engaged in a concerted effort to harass and discredit plaintiff by, among other things: (a) undercutting -- indeed, usurping - her authority with subordinates though (sic) prevarication, deceit, threats, and racist remarks; (b) initiating and/or hyping knowingly false and scurrilous allegations of misconduct and ethics violations and substance abuse by plaintiff, and subjecting her to a year-long Inspector General's investigation (2006-2007), in which she was ultimately exonerated; (c) inciting employee groups to attack plaintiff on false claims of bias and misconduct; (d) falsely charging plaintiff with insubordination when she merely responded to false allegations made against her and mistreatment she was made to endure as a result of Ms. Higginbotham's and Mr. Spears's actions; (e) withholding acclaim, visibility, and recognition from plaintiff; (f) denying her opportunities to exercise authority to the same degree as her peers; (g) unduly monitoring plaintiff's time and attendance; and (h) refusing to submit MD-715 reports to EEOC [the Equal Employment Opportunity Commission] which plaintiff has prepared and certified after 2005.
On April 29, 2008, Ms. Morris was suspended without pay for seven days, from May 5-11, 2008. She asserts that the suspension was due to a bogus charge that she engaged in insubordination.
Ms. Morris filed formal complaints of discrimination with the Department of Energy Office of Civil Rights, acting as EEO designee for EPA, on May 19, 2008 and January 8, 2009, and she amended them on April 21, 2009. Def.'s Mot. to Dismiss [Dkt. # 6], Ex. 1 (Notice of Acceptance/Dismissal of Formal Complaint of Discrimination). On June 19, 2009, the investigating agency issued a notice of acceptance for investigation of claims. The accepted claims included, among other things, whether Ms. Morris was discriminated against due to her gender and race based on (1) harassment and a hostile work environment from January 24, 2007 to May of 2008 and (2) a seven day suspension, from May 5-11, 2008. Id.
On March 23, 2010, Ms. Higginbotham issued a notice of proposed removal from federal service to Ms. Morris, charging insubordination, wrongful disclosure of confidential personal information of another employee, misuse of supervisory authority, and inappropriate statements made in work product. Id., Ex. 6 (Notice of Proposed Removal). The next day, Ms. Morris filed a whistleblower complaint with the Office of Special Counsel. Id., Ex. 7 (OSC Complaint).
On September 8, 2010, Ms. Morris filed with the Merit Service Protection Board ("MSPB") a "mixed case" appeal of the decision to remove her from federal service.*fn1 MSPB stayed the removal to allow the Office of Special Counsel to complete its investigation of the whistleblower complaint. See id., Ex. 9 (MSPB Decision) at 1. Finding that the Office of Special Counsel might resolve the issue between the parties, MSPB dismissed the appeal without prejudice, but indicated that the appeal would be automatically refiled after the stay was lifted. Id. at 3.
Ms. Morris returned to her job while the stay was in place. When the stay expired, EPA again removed Ms. Morris from her position, effective January 22, 2011. On January 24, 2011, the mixed case appeal was refiled with MSPB and a hearing was scheduled. On April 8, 2011, Ms. Morris filed this lawsuit and withdrew her appeal before the MSPB. Id., Ex. 13 (Notice of Withdraw of Appeal). As a result, MSPB dismissed the appeal with prejudice. Id., Ex. 14 (MSPB Apr. 21, 2011 Decision). On May 9, 2011, the EEOC also dismissed Ms. Morris' administrative complaint because this suit had been filed and it advances the same claims. Id., Ex. 15 (EEOC Order of Dismissal).
The Complaint alleges that EPA subjected Ms. Morris to a seven-day suspension, a hostile work environment, and removal from her job based on gender and race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e.*fn2 EPA moves to dismiss the claims relating to the seven-day suspension and termination due to failure to exhaust ...