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Hinds v. Mulvaney

United States District Court, District of Columbia

February 20, 2018

JANICE HINDS, Plaintiff,
v.
JOHN MICHAEL MULVANEY, Acting Director, Consumer Fraud Protection Bureau Defendant.

          MEMORANDUM OPINION

          TREVOR N. McFADDEC UNITED STATES DISTRICT JUDGE

         Plaintiff Janice Hinds, who is proceeding pro se, alleges that her employer, the Consumer Financial Protection Bureau, [1] discriminated against her on the basis of race and sex on seven occasions and retaliated against her for opposing Title VII violations on 14 occasions. Her complaint seeks $20 million in punitive damages, $300, 000 in compensatory damages, $300, 000 in interest, a pay raise, and any reasonable attorneys' fees and costs. Her case comes before me on the Defendant's motion to dismiss in part and for summary judgment. Because there is no genuine dispute of material fact and the Defendant is entitled to summary judgment, the Defendant's motion will be granted.

         I. BACKGROUND

         According to the complaint, Ms. Hinds an African-American woman who was initially hired by the Federal Government on June 19, 1992 at the GS-7 level. Compl. ¶ 10. Ms. Hinds alleges that, in the 21 years between that time and the time that she began her current job as an examiner for the CFPB, she worked at a number of federal agencies, where she received numerous promotions and was never reprimanded. Id. ¶¶ 10-11. During her time at the CFPB, Ms. Hinds alleges, she has been denied promotion, reprimanded, and otherwise subjected to race and sex discrimination in violation of Title VII. Id. ¶¶ 17-25. Ms. Hinds also alleges that she has been repeatedly subjected to retaliation for opposing Title VII violations. Id. ¶¶ 26-40. Each allegation will be discussed below, in connection with its merits.

         However, one allegation may be worth mentioning at the outset, given that Ms. Hinds has emphasized it in at least nine subsequent filings and because it provides some context for the allegations that follow. Ms. Hinds claims that her then-manager, Marsha Vaughn, “inappropriately distributed a violent image to the Plaintiff and other employees who reported to her.” Compl. ¶ 36. Ms. Hinds' filings repeatedly refer to this “[e]mail containing a horrifically violent image depicting the overkill [of] a snowman that was slaughtered by five machetes that the Plaintiff's former manager, Marsha Vaughn, sent to her and all of the employees who report to her.”[2] According to the complaint, the fact that Ms. Vaughn sent this email supports Ms. Hinds' view that the CFPB was retaliating against her by assigning her to work under Ms. Vaughn. Id. The record reflects that, on February 3, 2015, someone sent an email titled “winter” to several people, including Ms. Hinds and Ms. Vaughn. Id. The email asks, “Joe-is this your thoughts?” and contains the following image:

         (Image Omitted)

Id.[3] Ms. Vaughn's reply to the group states, “I love this!!” Id. Although the interpretation of Ms. Vaughn's reply email could perhaps be subjective, Ms. Hinds appears to see the specter of the slaughtered snowman as a particularly pointed and chilling example of her mistreatment.

         Ms. Hinds initially contacted the CFPB's Equal Employment Opportunity (“EEO”) Office in September 2013, but she did not have sufficient evidence to lodge a formal complaint at that time. Id. ¶ 14. On March 28, 2014, Ms. Hinds again contacted the EEO Office, and on May 15, 2014, she filed her formal EEO complaint. Id. Ex. A at 1. The CFPB's Office of Civil Rights investigated Ms. Hinds' complaint, which it permitted her to amend four times during the course of the investigation. Id. On November 9, 2016, an initial adjudicator issued a decision granting the Defendant's motion for summary judgment on several grounds, including that there was no evidence of discriminatory or retaliatory intent, that there was no evidence linking the alleged harassment to Ms. Hinds' race or sex, and that the preponderance of the evidence did not show that the Defendant's legitimate, non-discriminatory reasons for the allegedly retaliatory actions were pretextual. Id. at 4-5. The decision noted that “most of Ms. Hinds' claims were petty disputes about agency policy or objection[s] to minor and rote activities taken by the agency” and that Ms. Hinds appeared to have read a report related to the CFPB's diversity and to have “conclude[d] that she was a victim of discrimination before she reported to work on her first day.” Id.[4] The CFPB adopted the decision's findings and analysis in a final agency order on November 18, 2016. Id. at 6.

         After receiving the CFPB's final order, Ms. Hinds filed a timely complaint in this court. The Defendant filed a motion to dismiss in part and for summary judgment on April 4, 2017. The motion is now ripe, and I conclude that it should be granted for the reasons explained below.

         II. LEGAL STANDARD

         To prevail on a motion for summary judgment, a movant must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is material if it could alter the outcome of the suit under the substantive governing law. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. Once this showing has been made, the non-moving party bears the burden of setting forth “specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250. Although the Court applies “less stringent standards” to pro se filings than to filings drafted by lawyers, a pro se plaintiff's opposition to a motion for summary judgment “must consist of more than mere unsupported allegations and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial.” Prunte v. Universal Music Grp., Inc., 699 F.Supp.2d 15, 21-22 (D.D.C. 2010).

         III. ANALYSIS

         A. The Defendant Is Entitled to Summary Judgment on Each of Ms. Hinds' Unexhausted Discrimination and Retaliation Claims

         A federal employee may only assert a Title VII claim in federal court after presenting a timely complaint to the agency involved and exhausting available administrative remedies. Nurriddin v. Goldin, 382 F.Supp.2d 79, 92 (D.D.C. 2005) (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 832 (1976)); see also 42 U.S.C. § 2000e-16(c). To present a timely claim to an agency, a Title VII claimant generally must “initiate contact with a[n EEO] Counselor within 45 days” of the conduct of which she complains and, if counseling does not resolve her concerns, file a formal administrative complaint within 15 days after the counseling period ends. 29 C.F.R. § 1614.105(a)(1), (d).[5] Only if she has followed these steps without obtaining satisfactory relief may a federal employee bring a Title VII claim in federal court. Bowie v. Ashcroft, 283 F.Supp.2d 25, 33 (D.D.C. 2003). If a federal employee alleges multiple Title VII violations, each claim must be administratively exhausted, including claims that arise after the filing of an initial administrative complaint, with a possible exception for retaliation claims that “are related to the claims in the initial administrative complaint and were specified in that complaint to be of an ongoing and continuous nature.” See Thomas v. Vilsack, 718 F.Supp.2d 106, 121 (D.D.C. 2010) (applying this exception while noting that the D.C. Circuit has not addressed the issue and some D.C. District Court opinions have not recognized an exception).

         Ms. Hinds initiated contact with an EEO Counselor on March 28, 2014. Compl. Ex. A at 1.[6] Accordingly, her Title VII claims were not timely presented to the agency with respect to conduct prior to February 11, 2014. See 29 C.F.R. § 1614.105(a)(1). Much of the conduct that Ms. Hinds complains about in her first, second, and third discrimination claims took place before this date. Compl. at ¶ 18-20. The Defendant is entitled to summary judgment on these claims to the extent that they involve concerns not timely presented to the CFPB. See Rosier, 833 F.Supp.2d at 5. Ms. Hinds' tenth, eleventh, and twelfth retaliation claims concern conduct that took place after her initial administrative complaint and more than 45 days before she sought to amend her complaint to include her new concerns. See EEOC Decision on Agency Motion for Summary Judgment at 4; Def.'s Memo. ISO Mot. Summary Judgment at 30-32; id. Ex. II at 306-308. The Defendant is entitled to summary judgment on these claims as well.

         Although Ms. Hinds has not expressly opposed summary judgment for failure to exhaust, she has opposed dismissal for failure to exhaust based on 29 C.F.R. § 1614.105(a)(2), which allows an extension of the 45-day limit for initiating counseling if “despite due diligence [the aggrieved person] was prevented by circumstances beyond his or her control from contacting the counselor within the time limits.” Pl.'s Opp. to Def.'s Mot. Dismiss at ¶¶ 39, 46, 47. According to Ms. Hinds, she initiated contact with the EEO office “as soon as she was aware of the alleged actions, ” and the CFPB's Office of Civil Rights accepted her explanation for failing to initiate counseling within the ordinary 45-day period. Id. at ¶ 39. However, the actions in question are ones of which she must have been aware soon enough to satisfy the 45-day limit with the exercise of due diligence.[7] Ms. Hinds' allegation to the contrary is unsupported by the record and does not satisfy her burden of setting forth “specific facts showing that there is a genuine issue for trial.” See Anderson, 477 U.S. at 250. Accordingly, the Defendant is entitled to summary judgment on Ms. Hinds' unexhausted discrimination and retaliation claims.[8] Even if Ms. Hinds had satisfied Title VII's exhaustion requirements, however, her claims would fail on the merits for the reasons explained below.

         B. The Defendant Is Entitled to Summary Judgment on Each of Ms. Hinds' Discrimination Claims

         Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” or “to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee” on the basis of that individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Title VII discrimination claims are subject to the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The plaintiff bears the initial burden of establishing a prima facie case of discrimination by establishing that: “(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.” Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002). “[N]ot everything that makes an employee unhappy is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). Rather, “an employee suffers an adverse employment action if he experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002).

         If the plaintiff states a prima facie case of discrimination, the employer then bears the burden of identifying “the legitimate, non-discriminatory . . . reason on which it relied in taking the complained-of action.” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015). If the employer provides such an explanation of its conduct, the central question on a motion for summary judgment is whether “the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee” on a protected basis. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).[9]

         Ms. Hinds' seven discrimination claims fail because the conduct of which she complains has non-discriminatory justifications and she has not raised a triable issue of fact as to whether these justifications are pretextual. Many of her claims fail for the additional reason that the conduct of which she complains does not qualify as adverse employment action.

         Ms. Hinds' first discrimination claim fails for both these reasons.[10] It alleges that Ms. Hinds' former HR manager, Milton Pepin, verbally warned her about violating the CFPB's travel policy and gave her a letter of counseling. Compl. ¶ 18. Ms. Hinds alleges that, during the time she worked for him, Mr. Pepin did not give other employees letters of counseling, but she does not allege that any other employees engaged in conduct similar to her own. Id. Ms. Hinds also alleges that she later discovered that a CFPB management official drafted a five-day suspension letter but did not serve it to her. Id. These allegations do not concern an adverse employment action. See Turner v. Shinseki, 824 F.Supp.2d 99, 116 (D.D.C. 2011) (holding that verbal and written criticisms are not adverse employment actions “unless they are tied to the employee's bonus, or result in some other material employment action”); Baloch, 550 F.3d at 1201 (“[C]ourts have been unwilling to find adverse actions where the suspension is not actually served.”). Moreover, the Defendant has explained the challenged conduct on non-discriminatory grounds that Ms. Hinds has not disputed: Ms. Hinds was reprimanded because she traveled from her home in Connecticut to New York City for her background-investigation interview without required authorization after being specifically instructed not to travel to New York for the interview and after confirming with Mr. Pepin that the interview would be conducted locally. Def.'s Memo. ISO Mot. Summary Judgment at 11-13. Thus, the Defendant is entitled to summary judgment as to this claim.

         Ms. Hinds' second discrimination claim fails for similar reasons.[11] Ms. Hinds alleges that Mr. Pepin micromanaged her and, specifically, that he questioned why she chose a specific workstation when she was working on an assignment in New York, even though other examiners selected their workstations without being questioned by their managers. Compl. ¶ 19. This allegation does not state a prima facie case of discrimination because it does not concern “materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio, 306 F.3d at 1131. Even if Ms. Hinds had stated a prima facie case, the Defendant has satisfied the burden of providing a non-discriminatory explanation of the only conduct specifically alleged in this portion of the complaint: Mr. Pepin asked Ms. Hinds why she picked the workstation she did because he had heard there were interpersonal issues that made her not want to sit with the other examiners even though her assignment to the ...


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