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Magowan v. Lowery

United States District Court, District of Columbia

February 29, 2016

BRIGID D. LOWERY, Defendant.



The plaintiff, Maria De La Cruz Magowan, proceeding pro se, initiated this action on June 3, 2015, in the Superior Court for the District of Columbia (“D.C. Superior Court”) against the defendant Brigid D. Lowery, who is the plaintiff’s current federal workplace supervisor at the United States Environmental Protection Agency (“EPA”), alleging that the defendant has verbally and physically harassed and abused her for over five years, see Compl., Superior Court Record (“SCR”) at 29, ECF No. 6-1, and requesting an order prohibiting the defendant from having “any kind of contact” with her, as well as $300, 000 in damages, Mot. for PI (“Pl.’s Sup. Ct. PI Mot.”) (emphasis in original), SCR at 25; Mot. for TRO (“Pl.’s Sup. Ct. TRO Mot.”) (emphasis in original), SCR at 27; see also Compl. Pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), [1] upon certification by the United States Attorney’s Office for the District of Columbia that the defendant was acting within the scope of her employment as a United States employee at the time of the incidents alleged in the complaint, the case was removed to this Court and the United States was substituted as the defendant. Notice of Removal of a Civil Action (“Not. of Removal”), ECF No. 1; id., Ex. 2 (“Certification”), ECF No. 1-2. On July 27, 2015, the plaintiff’s requests to remand the case to Superior Court and for “immediate protection from Brigid D. Lowery” were denied. Order (“July 27, 2015 Order”), ECF No. 10. Pending before the Court is the defendant’s Motion to Dismiss Plaintiff’s Complaint Against Brigid Lowery and the United States and Opposition to Plaintiff’s Motion for Temporary Restraining Order (“Def.’s Mot.”), ECF No. 4. For the reasons set forth below, the motion is granted.


At the outset, the Court notes that the record on this motion to dismiss is fairly extensive. The plaintiff has submitted numerous documents with her various filings, including 173-pages of exhibits attached to her motion for remand and renewed request for “immediate protection, ” see Pl.’s Mot. Remand Case Sup. Ct. D.C. Civil Division and/or Req. Ct. Order U.S. EPA Provide Immediate Protection Pl. From Def. Brigid D. Lowery & Pay Pl. Damages (“Pl.’s Opp’n”), Exs. A-X, ECF No. 8-1; an additional ten pages of exhibits attached to her response to an order of the Court, see Pl.’s Notification That Her Previous Resp., Filing ECF No. 8 Was Not Sufficient & Pl.’s Intent File Further Arguments Resp. Def.’s Mot. Dismiss Case, ECF No. 4, & Other Opp’ns Ordered by Ct. (“Pl.’s Suppl. Opp’n”), Exs. A-C, ECF No. 11; and an additional thirty pages of exhibits attached to a supplemental reply, see Pl.’s Reply Def.’s Suppl. Reply Supp. Mot. Dismiss Pl.’s Compl. Against Brigid Lowery & Opp’n Pl.’s Mot. TRO (“Pl.’s Reply”), Exs. A- B, ECF No. 13. While generally motions to dismiss for failure to state a claim are resolved based on consideration only of “the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which we may take judicial notice, ” Mpoy v. Rhee, 758 F.3d 285, 291 n.1 (D.C. Cir. 2014) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)), when, as here, the plaintiff is proceeding pro se, any additional exhibits, “including those in . . . opposition to . . . [a defendant’s] motion to dismiss, ” must be considered in construing the sufficiency of the plaintiff’s claims, Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015); see also Id. (reversing dismissal order where district court did not consider “the facts alleged in all of [the plaintiff’s] pleadings” (emphasis in original)). The relevant facts distilled from this record are summarized below before turning to the procedural history of this case.

A. Factual Background

The plaintiff “is a 61 year old Hispanic Economist, with 40 years of professional experience in her field.” Pl.’s Opp’n at 3, ECF No. 8. A native of Bolivia, the plaintiff became a United States citizen in August 1986 and began working for the EPA in 1990. Id.; id., Ex. A (“Pl.’s Resume”) at 1-2. In 1999, she began working in the EPA’s Office of Solid Waste and Emergency Response (“OSWER”), where she continues to work as a federal employee. Pl.’s Opp’n at 3; Pl.’s Resume at 1.

The plaintiff avers that she is a “whistleblower, who made a Disclosure to the Office of the Inspector General ([“]OIG[”]) around April 2003.” Pl.’s Opp’n at 3. Specifically, the plaintiff claims that, in April 2003, she disclosed irregularities in contracts of OWSER’s Office of Underground Storage Tanks (“OUST”) to the OIG, which issued a report a year later confirming the plaintiff’s assertions. Id. at 4; see also id., Ex. B. at 1-2 (March 31, 2004 OIG report citing receipt of a “hotline complaint” regarding OUST’s “financial management” prompting “a review to determine the validity of the allegations” which “found OUST had inappropriately used and inefficiently managed contract funds”). As a result, the plaintiff alleges that she “suffer[ed] immediate retaliation in OSWER that continued for four” years until, in April 2007, she reached a settlement agreement with the EPA. Id. at 4. Shortly after the settlement, however, in July 2007, the plaintiff asserts that the agency began a sexual harassment investigation related to her previous whistleblowing. Id.; see also id., Ex. C (related attorney correspondence). The plaintiff alleges that, “[a]t that point, the retaliation re-started and continues to this day.” Id. at 5 (emphasis omitted).

In December 2007, the plaintiff accepted “a detail that later became permanent to do economic analysis” in OWSER’s Office of the Center of Program Analysis (“OCPA”), headed by Director Edward Chu. Id. When Chu left his position a year later, in December 2008, the defendant Brigid D. Lowery replaced him and became the plaintiff’s supervisor. Id. The defendant currently remains the plaintiff’s supervisor. See Compl.

The plaintiff alleges that “since 2010, ” the defendant “has been bullying [her] in all sorts of manners, including physical, ” Compl., and claims that she “fears for her safety and her life, ” Pl.’s Opp’n at 3; see also Compl. The plaintiff alleges three main incidents with her supervisor underlying her claims of retaliatory and discriminatory conduct. These incidents are described below.

1. June or July 2010 Telephone-Throwing Incident

The earliest incident allegedly occurred in June or July 2010, at a morning meeting in the defendant’s office, when the defendant “violently threw” a telephone at the plaintiff, yelled at the plaintiff and called her “so stupid.” Pl.’s Opp’n at 5; see also Compl. A few days later, the plaintiff met with a union representative, Theresa Fleming-Blue, about the alleged incident. Pl.’s Opp’n at 6; id., Ex. D, Decl. of Theresa Fleming-Blue (July 9, 2015) (“Fleming-Blue Decl.”) ¶ 2. Fleming-Blue states that she then met with the defendant, who “denied that she had committed these acts.” Fleming-Blue Decl. ¶ 6.

The plaintiff claims that the defendant retaliated against her in three ways for reporting the phone-throwing incident to the union. First, the plaintiff alleges that the defendant prevented the plaintiff from obtaining a promotion by rewriting the plaintiff’s job classification to eliminate the plaintiff’s GS-15 promotion potential. Pl.’s Opp’n at 7; see also id., Ex. O at 16 (“Notification of Personnel Action” indicating that, on May 13, 2007 a “Human Resources Specialist” changed the plaintiff’s “Position Title” from “Lead Program Analyst” to “Program Analyst” “at the full performance level”). The plaintiff also alleges that the defendant spoke ill of the plaintiff, thereby preventing the plaintiff from obtaining a GS-15 level position in the EPA “or any other place in the Government, ” even though the plaintiff was “certified as ‘Best Qualified’ and . . . interviewed” for many positions. Id. at 7; see also id., Ex. H (sixteen “thank you” emails sent by the plaintiff to various interviewers on various dates between February 13, 2006 and November 30, 2010). According to the plaintiff, even though “[p]otential employers . . . seemed very enthusiastic with [her] qualifications after interviewing and talking to [her], ” the employers then “retracted their decisions” upon speaking with the defendant. Id. at 7.

Relatedly, the plaintiff makes a blanket assertion that the EPA has prevented her from “hold[ing] a GS-15 grade” and becoming a supervisor, and, by extension, denying her “any right to work in a safe environment, ” because “according to OWSER’s own statistics, Plaintiff does not have the one ‘skill’ needed to become a GS-15: Being White.” Id. at 12 (emphasis omitted). To support this assertion, the plaintiff provides what appears to be an EPA booklet or presentation titled, “OWSER DEMOGRAPHICS Fiscal Year 2013, ” which contains demographic data about employee promotions and indicates that only white employees received grade 15 promotions between 2010 and 2013. See id., Ex. U at 1, 10. The plaintiff further explains that “[i]n OWSER the very few minorities holding a GS-15 level came already with that level or earned that level before or around a decade ago.” Id. at 12; see also Id. (“In Plaintiff’s work place (OWSER) a Supervisor must hold a GS-15 grade, but unfortunately, according to statistics provided by OSWER only white employees have been allowed to be promoted to the GS-15 level at least since FY 2010.”).

Second, the plaintiff alleges that the defendant unreasonably and wrongfully denied her sick leave. In support of this allegation, the plaintiff asserts that, in September 2010, the defendant denied her request for “two day annual leave” to go to New York to see her brother, whom she had not seen in six years. Id. at 7-8. The defendant allegedly “denied the leave” because “there was too much work to do, in spite of the fact that the work was almost done” and the fact that the plaintiff had obtained back-up coverage from a colleague. Id. As a result, the plaintiff alleges that she became ill and had to take some time off from work. Id.; see also id., Ex. I (doctor’s note indicating that the plaintiff “was seen” on September 2 and 29, 2010). The plaintiff alleges that, despite giving the plaintiff permission to leave work “verbally and by email” on September 30, 2010, id. at 8; see also id., Ex. J (September 30, 2010 email from the defendant to the plaintiff “approv[ing] your request for 6 hours leave from 10 - 4” and stating “I hope you feel better”), and knowing that a specialist was not available to see the plaintiff about her illness until November 9, 2010, see Id. at 8; see also id., Ex. K (Johns Hopkins Medicine appointment reminder letter for November 9, 2010 doctor’s appointment), the defendant asked the plaintiff to submit a certain kind of doctor’s note for her absences, which the plaintiff alleges was “an impossibility” and against EPA policy, id. at 8-9; see also id., Ex. O at 14-15 (provision of April 1, 2007 collective bargaining agreement between EPA and American Federation of Government Employees (“AFGE” or “union”) indicating that employees are not required to submit doctor’s notes for sick leave periods of three consecutive days or less).

Additionally, the plaintiff alleges that she requested sick leave from the defendant for a necessary medical procedure scheduled for December 2, 2010, id. at 8; see also id., Ex. L (Johns Hopkins Medicine letter confirming November 19, 2010 pre-operative examination and December 2, 2010 surgery appointments), and that the defendant “refused and threatened Plaintiff with AWOL had she dared to take Sick Leave, ” and told the plaintiff that she, the defendant, “would request a waiver from the Agency to prevent Plaintiff from taking any leave in 2010, ” id. at 8-9. As a result, the plaintiff alleges that she did not have the medical procedure, that her doctor asked her “to look for another doctor due to her refusal to follow recommended treatment, ” and that she “is still suffering from those symptoms.” Id. at 8.

Moreover, the plaintiff alleges that, at the end of January 2011, “hours before” the defendant took “a 20-day vacation overseas, ” the defendant changed fifteen hours of the plaintiff’s sick leave from September 30, 2010 and October 1, 2010, “into AWOL, ” forcing the plaintiff “to pay . . . money back to the U.S. Treasury, ” id. at 9; see also id., Ex. M at 4-5 (January 29, 2011 letter from a federal debt processing agency to the plaintiff about “[a]n overpayment . . . on your pay account for pay period ending October 9, 2010” in the amount of $559.53); id., Ex. O at 12 (February 2, 2011 email from union representative to Barry Breen, the defendant’s supervisor, “concern[ing] the unilateral time and attendance change Ms. Brigid Lowery recently made, without giving notice to Ms. MaGowan prompting DFAS to request immediate payment of $559.53 from Ms. MaGowan”), and causing the plaintiff to, for the first time, receive “a negative mark in her career of over 25 years in [the] EPA, ” id. at 9.

Fleming-Blue, the union representative, without any explanation of how she acquired personal knowledge, echoes the plaintiff’s assertions, attesting that in the months following the phone-throwing incident, “Ms. Lowery retaliated against Ms. MaGowan for seeking assistance from the union, ” by (1) rewriting the plaintiff’s job classification to deny her promotion potential and (2) instructing the plaintiff to take sick leave but then denying the sick leave and changing the plaintiff’s records to “reflect [the plaintiff] being AWOL for that period of time, ” thereby causing the plaintiff to “pa[y] back the Federal Government” approximately $1000. Fleming-Blue Decl. ¶ 7.

The plaintiff apparently filed a complaint with the Merit Systems Protection Board (“MSPB”) for the defendant’s wrongful denial of sick leave, see Pl.’s Opp’n at 8-9, but alleges that “to date, the Agency still has not done anything to resolve this issue, ” id. at 9.

Lastly, the plaintiff makes a cursory allegation that, “after one of the confrontational events coming from Brigid Lowery in 2010, ” “the windshield of [the plaintiff’s] car (parked outside her condominium) [was] intentionally cracked while she was sleeping.” Id. at 12; see also id., Ex. V (customer receipt with illegible date stamp from “Safelite AutoGlass” for payment of $250). Since “Brigid Lowery knows where Plaintiff lives and knows Plaintiff’s car, ” the plaintiff suggests that the defendant committed or caused the vandalism. Id. at 13.

2.November 21, 2014 Physical Fight-Attempt Incident

The plaintiff alleges that on Friday, November 21, 2014, the defendant, who “looked very upset, ” “ordered Plaintiff to go with her to [the defendant’s] office immediately.” Id. at 6. Once the two were in the defendant’s office, the defendant allegedly “started yelling” at the plaintiff, “invading [the plaintiff’s] personal space, ” and “waving her hands very close to Plaintiff’s face.” Id. After the plaintiff asked the defendant “to move back and told her that she was frightening [the plaintiff, ]” the defendant allegedly asked the plaintiff “if [the plaintiff] preferred to deal with it outside [the defendant’s] office.” Id. The defendant then allegedly walked by the plaintiff to stand outside the office, “roll[ed] up her sleeves and extended her arms toward Plaintiff in a ‘fighting position, ’” “bent her knees in a ‘crunching’ way and signaled [to the] Plaintiff to go ahead and fight her physically.” Id. The plaintiff claims that, in response, she told the defendant “that she was afraid of her, turned around as fast as she could and left” the area. Id. The plaintiff alleges that two co-workers working in the area at the time, Nick Hilosky and Marc Thomas, witnessed the incident. Id.

The afternoon after the incident, the plaintiff sent an email to the defendant, copying the defendant’s supervisor, Barry Breen, OSWER’s Deputy Assistant Administrator. See id., Ex. E at 1-2; id., Ex. F at 1. In the email, the plaintiff accuses the defendant of committing, aside from the “physical bullying, ” a laundry list of work-related wrongful conduct, including: giving the plaintiff an increasingly heavy workload; “stopping by my cubicle 1 to 5 minutes before [her] time to leave with ‘emergencies’ that do not exist and ‘must’ . . . be finished[;]” “[f]alsely accusing me of ‘errors’ not actually made or even worse created by you[;]” “[d]isregarding satisfactory or even creative, analytical work despite evidence[;]” “[a]busing your position of power every single day[;]” “[m]aking continu[ous] verbal-put downs[;]” “[m]aking undoable demands related to workloads, deadlines, [and] duties[;]” “[e]nsuring that my projects will fail by sabotaging my communication with others, changing the data, diminishing me in front of others, and saying awful things behind my back[;]” [c]hanging 15 hours of [the plaintiff’s] sick leave into AWOL” after telling the plaintiff to go home; “[a]ccusing me of being a liar about being sick[;]” and “accusing” the plaintiff of “being unprofessional if I stand up to you.” Id., Ex. E at 1-2. Additionally, the following Monday morning, the plaintiff went to the OIG’s office to speak to someone. Id. at 6.

Email correspondence submitted by the plaintiff in opposition to the pending motion indicates that, on November 24, 2014, the plaintiff “reported [her] concerns regarding [her] supervisor’s behavior to the OIG who contacted” Barbara Viney, an EPA Conflict Management Specialist and Violence Prevention Coordinator. Id., Ex. T at 1-2. Beginning on December 1, 2014, the OIG and Viney “conducted a joint inquiry into the allegations and conducted a Threat Assessment with that information on [December 2, 2014].” Id., Ex. T at 1-2. As part of the inquiry, Hilosky and Thomas were both interviewed, id., Ex. T at 1, and the plaintiff’s “allegations were not corroborated by [any] witnesses, ” id., Ex. T at 1-2. On December 19, 2014, Viney met with the plaintiff “and notified [her] of th[e] outcome and the completion of [their] inquiry into the allegations.” Id., Ex. T at 1-2. Because both Hilosky and Thomas allegedly “work for” Breen, the defendant’s supervisor, and other people interviewed allegedly “work for” the defendant, the plaintiff alleges that the investigation was “biased.” Id., Ex. T at 1.

3. June 3, 2015 Envelope-Throwing Incident

The plaintiff alleges that, on June 3, 2015, at around 9:00 a.m., the defendant came to the “door” of her cubicle and “almost immediately . . . threw a manila envelope toward [the] [p]laintiff’s face, and left.” Id. at 6; see also Compl. The envelope, which contained a memorandum to the plaintiff with “an informal warning” from the defendant, fell on the floor and did not hit the plaintiff’s face, but the plaintiff was “paralyzed with fear for a few minutes.” Pl.’s Opp’n at 6; see also id., Ex. F (“Mem. Warning”) at 2; Compl.

The memorandum, which the plaintiff submitted as an exhibit to her opposition to the defendant’s pending motion, is dated June 2, 2015, and was provided to the plaintiff “to warn you about your inappropriate language and tone in workplace correspondence.” Mem. Warning at 1. It includes a list of examples of “personally insulting and unprofessional . . . . language” from a May 13, 2015 email sent by the plaintiff to the defendant and the defendant’s supervisor about the plaintiff’s mid-year performance review. Id.; see also Id. at 3-4 (May 13, 2015 email correspondence). The memorandum further provides: “Your email was disparaging and had an overall hostile tone. I will not tolerate this misconduct and am warning you not to repeat it. If you do so, you may be subject to disciplinary action.” Id. at 1.

Approximately one hour after the envelope-throwing incident, at around 10:00 a.m., the plaintiff allegedly “received two threatening anonymous phone calls” from a man “repeating the word: ‘Die . . . die . . . die.’” Pl.’s Opp’n at 6; see also Compl.; Pl.’s Opp’n, Ex. Q (June 3, 2015 email correspondence with EPA OIG representative about “two anonymous calls to my office phone with a male voice wispering [sic] “die . . . die . . .”). The phone calls prompted the plaintiff, the same day, to (1) file the instant suit, Pl.’s Opp’n at 6; see also Compl., (2) call “Federal Protective Services, ” from which call an officer reported to the plaintiff’s cubicle at around 3:30 p.m. that day, Pl.’s Opp’n at 7, and (3) report by email the incident to the defendant’s supervisor, Barry Breen, id.

As a result of the plaintiff’s email to Breen, the plaintiff received a call from a human resources employee who prepared a declaration for the plaintiff, which she signed, about the incident. Id.; see id., Ex. G, Decl. of Maricruz MaGowan (June 5, 2015) (“Pl.’s Decl.”). In the declaration, with respect to the envelope-throwing incident, the plaintiff attests, “my boss flung an envelope dismissively near my face and it slid off my desk and fell on the floor. It did not touch me, but I ...

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