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Nichols v. Vilsack

United States District Court, District of Columbia

December 30, 2015



RANDOLPH D. MOSS United States District Judge

Plaintiff Barbara Nichols, proceeding pro se, is an African-American woman who worked as an investigator at the Animal and Plant Health Inspection Service (“APHIS”) of the United States Department of Agriculture (“USDA”). See Dkt. 1 at 1 (Compl. ¶ 2). At the time she began work at APHIS, Plaintiff was approximately 53 years old. See id. She alleges that, in the course of her employment, the USDA discriminated against her on the basis of her race, sex, and age. Id. at 2 (Compl. ¶ 4). Her complaint includes claims of disparate treatment, a hostile work environment, and retaliation. Id. at 2-4 (Compl. ¶¶ 7-18).

The USDA has moved to dismiss on multiple grounds. See Dkt. 12. It contends that several of Plaintiff’s claims should be dismissed on the basis of her failure timely to exhaust her administrative remedies; that Plaintiff did not suffer any “adverse personnel action” within the meaning of the antidiscrimination laws; that Plaintiff has failed to alleged facts that, even if taken as true, would rise to the level of severity or pervasiveness required to establish the existence of a hostile work environment; that Plaintiff’s challenges to the manner in which USDA processed her administrative complaint do not state a claim; and that 42 U.S.C. § 1981 does not provide a cause of action for claims against federal agencies for employment discrimination.

For the reasons explained below, the Court concludes that USDA has not carried its burden of demonstrating that Plaintiff failed timely to exhaust her claims. The Court further concludes, however, that the complaint fails to allege facts sufficient to establish that Plaintiff suffered a cognizable adverse employment action or that she was subjected to a hostile work environment. Finally, the Court concludes that the alleged deficiencies in the administrative Equal Employment Opportunity process are not actionable and that Section 1981 does not apply to claims of employment discrimination in the federal workforce.

The Court, accordingly, GRANTS USDA’s motion (Dkt. 12) and dismisses the complaint without prejudice.


A. Factual Background

As an initial matter, the Court must decide which factual allegations are properly before the Court. Plaintiff’s five-count complaint is a mere six pages long, and it contains few non-conclusory factual allegations. Dkt. 1 at 1-6. It is accompanied, however, by over 40 pages of exhibits, including email and other correspondence, a newspaper article, and, more helpfully, Plaintiff’s May 1, 2009 administrative complaint and the Equal Employment Opportunity Commission’s (“EEOC”) final decision regarding that complaint. Id. at 8-55.

In adjudicating a motion to dismiss for failure to state a claim, a court may consider, along with the facts alleged in the complaint, “any documents either attached to or incorporated in the complaint and matters” subject to “judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Moreover, pro se pleadings should be “liberally construed” and “pro se litigants are held to a lesser pleading standard than other parties.” Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 402 (2008). At the same time, however, “[e]ven pro se litigants . . . must comply with the Federal Rules of Civil Procedure, ” Butler v. Cal. State Disbursement Unit, 990 F.Supp.2d 8, 8-9 (D.D.C. 2013), and courts are not responsible for hunting through the record in search of material potentially helpful to a party’s case, United States ex rel. El-Amin v. George Washington Univ., 533 F.Supp.2d 12, 20 (D.D.C. 2008). Indeed, where undifferentiated documents are submitted along with a complaint that is itself lacking in detail, asking the Court to comb through the attachments to discern the substance of the plaintiff’s claims risks placing it more in the role of advocate than judge and risks denying the defendant fair notice and an opportunity to respond to identifiable allegations of wrongdoing.

When Plaintiff’s complaint in this action is read in combination with her administrative complaints, [1] the Court is able to discern the following factual allegations on which she premises her claims. Importantly, USDA has identified these same factual allegations in its motion to dismiss, see Dkt. 12-1 at 1-2, and does not dispute that these allegations should be taken as true for purposes of the pending motion, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Relying on these materials, moreover, does not require the Court to pick through emails and other documents in search of a claim. The relevant allegations are as follows.

Plaintiff began employment at APHIS in October 2007, where she worked as an investigator for the Investigative and Enforcement Services (“IES”) division. Dkt. 12-2 at 1. She is an African-American female who was approximately 53 years old when she started work at APHIS. Dkt. 1 at 1 (Compl. ¶ 2). Problems began almost immediately upon her arrival. At that time, she was given a large caseload, including the “backlog of more than 100 delinquent/neglected cases” that previously had been assigned to a younger, Caucasian employee. Dkt. 1 at 3 (Compl. ¶ 8); Dkt. 12-2 at 3, 8. To make matters worse, according to Plaintiff, she was not provided any training or guidance regarding how to process the cases. Dkt. 1 at 3 (Compl. ¶ 8). When she sought guidance, Plaintiff-unlike other employees-was told “not to ask work-related questions” of other employees and “not to send e-mail messages” with questions. Id. at 4 (Compl. ¶ 13). Instead, she was relegated to posing her questions by writing them on pieces of paper and bringing them to her supervisor’s “desk for responses.” Id.

Plaintiff further alleges that USDA adopted a “no tolerance” policy with respect to her work and her ability to process her caseload within “stringent guidelines.” Id. at 2-3 (Compl. ¶¶ 7-8). Others, including the younger, Caucasian employee from whom Plaintiff inherited the large backlog of unprocessed cases, were not held to this stringent standard. Id. at 3 (Compl. ¶ 8). Indeed, that employee received “multiple, favorable career opportunities, ” despite the fact that she “complained and failed to process her . . . workload in compliance with office policies.” Id. (Compl. ¶ 9). When Plaintiff “expressed any workplace concerns, USDA harassed” her, including by “taking the liberty to search for personal data about [P]laintiff’s eligible date to retire” and using “that date as part of its resolution to intimidate [Plaintiff] to retire” before “her anticipate[d] date.” Id.

More generally, the complaint alleges that USDA applied a “double standard[]” to Plaintiff relative to “two . . . Caucasian female[]” employees and a “Caucasian male” employee. Id. at 2 (Compl. ¶ 7). USDA, for example, “failed to timely resolve recurring complaints of inappropriate behavior and sexual harassment” involving the Caucasian male employee, while “quickly redressing any issue” regarding Plaintiff. Id. at 3 (Compl. ¶ 11). According to Plaintiff, this differential treatment, including the requirement that she meet productivity standards that were not applied to others, USDA’s failure to provide training, and the special rules that applied to her alone for asking questions were motivated by her race, sex, and age. Id. at 2 (Compl. ¶ 4).

B. Administrative Proceedings

On March 10, 2009, Plaintiff faxed an Equal Employment Opportunity (“EEO”) complaint detailing her claims of workplace discrimination to a USDA EEO counselor. Dkt. 1 at 13; Dkt. 12-2. In that document, Plaintiff states that she “consulted with the USDA-EEO Counselor” on February 6, 2009, and that she subsequently filed an EEO complaint on February 10, 2009. Dkt 12-2 at 1. The February 10 EEO complaint does not appear in the record. On May 1, 2009, Plaintiff lodged another EEO complaint with USDA, which does appear in the record. See Dkt. 1 at 13-14.

On June 30, 2009, Lauren Hill, an Employment Complaints Manager in the Civil Rights Enforcement and Compliance Office of APHIS, sent Plaintiff a proposal for resolution of her EEO complaint, offering that the Plaintiff take her annual leave, paid in advance, until she became eligible for retirement on August 15, 2009. Id. at 11. Hill also apparently communicated with Plaintiff’s “personal representative” in March and April 2010 regarding a proposed resolution. Id. at 24.

From March 2010 to August 2013, Plaintiff and her personal representative transmitted letters and emails to various USDA officials describing her dissatisfaction with the administrative process. See Dkt. 1 at 16, 23, 35, 39, 41, 43, 55. In the letters, Plaintiff asserted that there were multiple players in the process whose roles she did not understand, id. at 16; that the EEO adjudicators had identified and pursued claims that did not relate to her complaints and had excluded other allegations for which she had obtained counseling, id. at 16, 25, 36; that she felt bullied by an investigator, id. at 16; that the investigators did not speak with or obtain affidavits or declarations from any of her witnesses, id. at 17, 24-25, 43, 55; and that she was not offered Alternative Dispute Resolution, id. at 35. On May 20, 2010, Plaintiff’s personal representative received the agency’s Report of Investigation, id. at 24, although that report does not appear in the record. In an email to a USDA official dated November 4, 2010, Plaintiff explained that she had decided to retire from USDA because of “unresolved issues” regarding “the hostile work conditions and harassment” and the EEO administrative process. Id. at 17.

USDA issued a Final Agency Decision with “no finding of discrimination” on February 7, 2011. Id. at 37. On appeal, the EEOC ruled in favor of USDA on December 27, 2012. Id. Neither of these decisions appear in the record. At least twice in 2012, and possibly as many as five times, Plaintiff petitioned the EEOC to remand her case back to USDA, alleging that the agency had failed properly to process her administrative complaints. Id. at 27, 32. The EEOC denied a request for reconsideration on July 16, 2013. Id. at 53. Finally, on September 16, 2013, the Director of USDA’s Office of Adjudication responded to a letter from Plaintiff’s personal representative about Plaintiff’s concerns regarding the administrative process, stating that “[a]s all administrative appeals have been exhausted in [Plaintiff’s] complaint, we can offer no further remedy.” Id. at 37.

C. The Present Lawsuit

Plaintiff filed this case on September 30, 2013, Dkt. 1, within the 90-day period authorized following the EEOC’s final decision denying reconsideration, id. ...

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