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Rhonda N. Baird, Pro Se v. Joshua Gotbaum

August 28, 2012

RHONDA N. BAIRD, PRO SE PLAINTIFF,
v.
JOSHUA GOTBAUM, DIRECTOR, PENSION BENEFIT GUARANTEE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Rhonda Baird sued her employer, the Pension Benefit Guaranty Corporation ("PBGC" or "the Agency"), claiming discrimination on the basis of her race and sex, retaliation for engaging in protected activity, and a retaliatory hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. On October 13, 2010, this Court granted defendant's motion to dismiss all counts. On December 13, 2011, the Court of Appeals affirmed in part and vacated in part that ruling and remanded a single claim-retaliatory hostile work environment-for further consideration. Defendant has moved to dismiss this one remaining claim and, for the reasons set forth below, its motion will be granted.

BACKGROUND

I. FACTUAL AND PROCEDURAL HISTORY

The factual background of plaintiff's claims is detailed in this Court's Memorandum Opinion, Baird v. Snowbarger, 744 F. Supp. 2d 279, 283-85 (D.D.C. 2010), and in the Circuit's Opinion, Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C. Cir. 2011), so it need not be repeated here in detail. However, an abbreviated discussion of the claims relevant to this motion will be provided.

In its prior opinion, the Court held that claims based on five of plaintiff's EEO complaints- Nos. 08-03,*fn1 09-02, 09-06,*fn2 and 06-09/07-01*fn3 (consolidated)-were time-barred and dismissed those claims. It then addressed the four remaining claims- set forth in EEO complaints No. 05-12, No. 07-06, and No. FC-001-201-which had been properly exhausted and timely appealed and were based on four discrete episodes:

(1) In a [spring 2005] dispute within the PBGC over the agency's scan of its email system, some fellow workers [including union official Dwayne Jeffers] circulated emails calling Baird "psychotic."

(2) [In June 2005, t]he Human Resources Department ["HRD"] singled out Baird in securing her signature acknowledging receipt of an office memorandum relating to the use of office email.

(3) [In January 2007,] PBGC litigation counsel Raymond Forster sent an email to several employees advising "the 11th floor OGC [Office of General Counsel] staff in the area of conference room 11E to use caution about what they say in halls or open offices," for "[c]ertain people who will be in 11E have a way of twisting and publicizing their litigation induced hallucinations."

(4) [In August 2009, o]ne Ruben Moreno had shouted and pounded the table at Baird while she deposed him during a proceeding involving Equal Employment Opportunity complaints.

Baird, 662 F.3d at 1248 (some alternations in original).

Plaintiff also claimed that, in retaliation for her prior protected activity, the PBGC "fail[ed] to take appropriate correction action" in response to the complaints that she regularly brought about these incidents. (Am. Compl. ¶ 68.) This Court dismissed her discrimination and retaliation claims based on the discrete episodes because none of the acts, or the failure to remedy them, was sufficient to establish an adverse action. Baird, 744 F. Supp. 2d at 291-94 . When considering Baird's retaliatory hostile work environment claim, this Court analyzed the Agency's multiple "failure[s] to take appropriate corrective action," id. at 289, in response to the four discrete episodes and found them insufficient because none of the acts alleged, "whether considered alone or cumulatively, meets 'the demanding standards' for a hostile work environment claim." Id. at 295 (quoting Sewell v. Chao, 532 F. Supp. 2d 126, 141-42 (D.D.C. 2008)). Plaintiff appealed on multiple grounds.

The Court of Appeals initially observed that Baird's claims were "relatively unusual in that she d[id] not assert that discriminatory intention brought about the underlying acts," but instead she claimed "that such discriminatory and retaliatory intent caused the PBGC's failure to respond to her complaints about them and to take corrective action against the employees who, as she sees it, had traduced or abused her." Id. at 1249. It then went on to affirm the dismissal of plaintiff's claims of discrimination, agreeing that the four discrete episodes and the defendant's alleged failure to investigate and/or remediate them were workplace "slights," and "even if unlawfully motivated, . . . [they] would not rise to the level of adverse employment actions" because "each of the four discrete episodes seems (at worst) akin to the sort of public humiliation or loss of reputation that we have consistently classified as falling below the requirements for an adverse employment action." Id. (internal quotation marks omitted).

It also affirmed the dismissal of Baird's retaliation claims based on the discrete episodes, as well as defendant's failure to investigate or to remediate, explaining that "[w]e do not believe that the PBGC's failure to remedy the various critiques and epithets to which Baird's fellow employees subjected her would have persuaded a reasonable employee to refrain from making or supporting charges of discrimination." Id. at 1250.

However, it vacated the dismissal of her retaliatory hostile work environment claim and remanded for two reasons. First, the Circuit concluded that it was error under National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 120-21 (2002), to categorically exclude allegations from time-barred EEO complaints, without evaluating whether they "exhibit[ed] the relationship necessary to be considered part of the same actionable hostile environment claim." Id. at 1251-52 (internal quotation marks omitted). Second, it was error to exclude the underlying acts that she claims PBGC failed to investigate or appropriately remediate from her retaliatory hostile work environment claim. Id. at 1252.

The Court must therefore first determine if the acts previously thought to be time-barred, are sufficiently "'similar in nature, frequency, and severity . . . [to] be considered part and parcel of the hostile work environment'" such that they should be included in plaintiff's claim. Id. at 1251 (quoting Wilkie v. Dep't of Health & Human Servs., 638 F.3d 944, 951 (8th Cir. 2011) (omission in original)). Second, it must determine whether that conduct, together with the acts alleged in the timely-filed claims, is sufficient to support a hostile work environment claim. Id.

II. PRESENT POSTURE

A. Timely Claims

As noted, plaintiff's timely claims are based on four discrete episodes which occurred over the course of four years. Briefly, and taking plaintiff's allegations as true, these acts are as follows:

In spring 2005, Jeffers and Perry wrote insulting emails because they were angry that she told co-workers that they had prompted an agency-wide scan of employee emails. (Id. ¶¶ 23-26.) Baird filed several complaints about this with the HRD beginning in April 2005. (Id. ¶ 27.)

Soon afterwards, in June 2005, the Agency sent out a memorandum to all PBGC employees regarding the "[i]nappropriate use of PBGC Resources." (Id. ¶ 28 (alteration in original).) Plaintiff and two other employees were singled out by a subordinate of HRD official Richard Lattimer to sign an acknowledgement that they had received the memorandum. (Id. ¶ 29.) When she refused to sign it, an HRD employee ...


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