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Sellers v. Nielsen

United States District Court, District of Columbia

March 26, 2019

KIMBERLY SELLERS, Plaintiff,
v.
KIRSTJEN NIELSEN, Secretary, Department of Homeland Security, Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge

         Kimberly Sellers has worked for the Department of Homeland Security (“DHS”), Immigration and Custom Enforcement (“ICE”) for over 30 years. She alleges that DHS has subjected her to several types of discrimination and harassment on the basis of her gender and care-taker status beginning in October 2013 after she took leave in connection with the adoption of her daughter. Two broad categories of discriminatory actions are alleged in Ms. Sellers' complaint: (1) DHS's gradual removal of Ms. Seller's substantive responsibilities with the purpose of putting her in a marginal role; and (2) DHS's denial of several promotions and other career-advancement opportunities from 2014 to 2017. As a result of these, and several other alleged acts, Ms. Sellers brings this action against Kirstjen Nielsen, in her official capacity as Secretary of DHS (“Defendant or DHS”), alleging discrimination on the basis of her gender and caregiver status, retaliation, and hostile work environment, all in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2 et seq.

         Pending before the Court is defendant's motion for partial judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Upon consideration of the motion, the opposition and the reply thereto, the applicable law, the entire record, and for the reasons stated below, the Court will GRANT IN PART and DENY IN PART defendant's motion.

         I. Background

         The facts set forth in this Memorandum Opinion reflect the allegations in plaintiff's complaint, which the Court assumes are true for the purposes of this motion and liberally construes in the plaintiff's favor. See Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

         A. Factual Background

         1. Pre-EEO Investigation Discriminatory Acts

         Ms. Sellers is employed by Homeland Security Investigations (“HSI”), an office within ICE, which is a component of DHS. See Compl., ECF No. 1 at ¶¶ 1, 6.[1] Beginning in 2008, HSI assigned Ms. Sellers to the Department of State (“DOS”) as a Liaison to the Bureau of International Narcotics and Law Enforcement Affairs (“INL”). Id. ¶ 15. While serving as a Liaison in 2013, Ms. Sellers took leave under the Family and Medical Leave Act (“FMLA”) in connection with the adoption of her child. Id. ¶ 23. Although Ms. Sellers was on leave, she continued to receive emails and calls from her supervisors, requesting that she complete various tasks. Id. ¶¶ 24-25. She reminded her colleagues that she was on FMLA leave and caring for her adopted daughter, but nonetheless completed the tasks when others could not because she was expected to do so. Id. ¶ 25.

         At the conclusion of Ms. Sellers' leave on October 1, 2013, she was prepared to return to her full-time Liaison position. Id. ¶ 26. However, two weeks later, on October 15, 2013, she was told that she was being removed as Liaison and would be reassigned to HSI headquarters. Id. ¶ 27. This came as a shock to Ms. Sellers because prior to her leave, she had discussions with HSI regarding significant projects, both long and short-term, that she would work on as a Liaison. Id. ¶¶ 28-29.

         Ms. Sellers was also informed that her duties would be assumed by another employee, Mr. Charles Allen, an employee less qualified for the position. Id. ¶¶ 27, 30. She later discovered that Mr. Allen had assumed some of her responsibilities while she was away on leave. Id. ¶ 31. Ms. Sellers was officially instructed to return to HSI headquarters on December 13, 2013, and her Liaison position was given to Mr. Allen. Id. ¶¶ 27, 32. Although Ms. Sellers was no longer serving as a Liaison, she remained on the INL team and supported Mr. Allen on his projects. Id. ¶ 32.

         After Ms. Sellers lost her Liaison position, she suspected that she may have been discriminated against because she used FMLA leave. Id. ¶ 54. Accordingly, Ms. Sellers contacted the agency's Equal Employment Opportunity (“EEO”) office. Id. ¶ 54. She explained that she was demoted immediately after taking FMLA leave and the EEO office advised that, because DHS's actions were potentially a violation of the FMLA, Ms. Sellers needed to report her complaint to the leave office. Id. ¶ 55. Ms. Sellers took this advice and filed a complaint with the Office of Special Counsel for violation of her FMLA rights. Id.

         Over the following year, however, several actions by DHS led Ms. Sellers to realize it was her gender and caregiver status, rather than her choice to take FMLA leave, that motivated the agency's alleged discriminatory conduct as well as its hostile work environment. Id. ¶ 56. For example, Mr. Allen treated her in an “increasingly hostile and aggressive manner, which continues to this day.” Id. ¶ 33. Mr. Allen has menaced Ms. Sellers, telling her “how well he was doing in her job, ” loomed over her physically, passed needlessly close to her on numerous occasions, blocked her path, criticized her in public, took credit for her work, and otherwise attempted to intimidate her. Id. ¶ 35-38. Additionally, feeling the need to document that he had successfully been appointed to her position, Mr. Allen took photographs of Ms. Seller's personal possessions in boxes when he moved into her office, and emailed their supervisor, gloating about the fact he was taking over her office. Id. ¶ 34.

         Ms. Sellers reported Mr. Allen's hostility to her supervisor, Ted Lopez, and sought his intervention. Id. ¶ 39. Mr. Lopez took no action but rather, blamed Mr. Allen's hostility on Ms. Sellers. Id. ¶¶ 40-41. For example, in April 2015, when Ms. Sellers sought out Mr. Lopez's assistance with Mr. Allen's aggressive behavior, Mr. Lopez insisted that Ms. Sellers “drop it.” Id. ¶ 41. Concerned for her safety, Ms. Sellers asked if it would take Mr. Allen to actually physically assault her before DHS intervened to which Mr. Lopez responded, “that's correct.” Id. Ms. Sellers was also forced to do administrative and secretarial tasks for Mr. Allen. Id. ¶ 44. These duties were far below her grade-level and experience and were an attempt by Mr. Allen and Mr. Lopez to put her in her place as a subordinate to Mr. Allen. Id. ¶ 44.

         In June 2014, Mr. Lopez informed Ms. Sellers that she was to have no contact with INL whatsoever. Id. ¶ 45. Mr. Lopez did not provide a reason for the no-contact order. Id. Seeking a way out of her predicament, Ms. Sellers began applying to other positions. Id. ¶ 46. In August 2014, Ms. Sellers applied to two GS-14 positions, Liaison to Europol, and Assistant Attaché to Pretoria, and achieved scores of 99 and 90 respectively for the positions. Id. ¶ 47. She was the most qualified of all applicants, however, the positions were given to two male employees. Id.

         On September 10, 2014, Ms. Sellers was notified that she would be removed from the INL team entirely and her remaining administrative responsibilities would be assumed by Mr. Allen and Mr. Chris Nissen, another employee at HSI. Id. ¶ 49. Ms. Sellers often reported her concerns regarding the increased marginalization and lack of responsibilities and duties to Mr. Lopez, but to no avail. Id. ¶ 53. Despite Ms. Sellers' many pleas to Mr. Lopez, no changes were made to provide her with any meaningful duties and responsibilities. Id. Furthermore, she applied for a detail assignment to the National Security Council (“NSC”) in November 2014 but was not selected for that position. Id. ¶ 48.

         2. EEO Investigation and Discriminatory Acts

         Disturbed by the fact that her duties had gradually diminished, and her remaining duties were given to two men who were less qualified than she was, Ms. Sellers again contacted the EEO on October 23, 2014, alleging discrimination on the basis of her gender and status as caregiver to her recently adopted child. Id. ¶ 54. Ms. Seller's suspicions that the agency's conduct was motivated by her gender and status as a mother were confirmed soon after when Mr. Lopez told her that the reason her substantive duties were replaced was because she “was caring for her young daughter” and explicitly stated he had his “wife stay at home and take care of all that.” Id. ¶ 57.

         Based on her formal complaint, the agency accepted five claims, three of which are relevant to this action:

         Whether U.S. Department of Homeland Security discriminated against Complainant and subjected her to a hostile work environment on the bases of sex (female) pregnancy and reprisal (prior EEO activity) when the following events occurred:

1. On August 5, 2013, Complainant was asked to perform significant amounts of work while on leave under the Family Medical Leave Act (FMLA);
2. On October 15, 2013, Complainant was informed that she was going to be removed as Liaison and was being assigned back to Homeland Security Investigations (HSI) headquarters;
3. On December 13, 2013, Complainant was instructed to report to HSI, where she was stripped of her Liaison duties and consigned to performing administrative duties.[2]

         Statement of Accepted Claims. Def.'s Mot., Ex. B., ECF No. 10-2 at 2. The Statement of Accepted Claims instructed that:

If you believe that your client's claim has not been correctly identified, please provide to me written clarification within seven (7) calendar days after receipt of this letter, specifying why the claim has not been correctly identified. If a reply is not received within the specified time period, I will consider that you agree with the claim as defined above

Id. It is undisputed that Ms. Sellers submitted no clarification. However, in her formal administrative complaint she referenced, among other things, that she was “recently passed over for multiple positions for which she was qualified.” ECF No. 10-1 at 6. She expressly referenced the two non-selections for the positions she applied for in August of 2014, the Liaison to Europol and Assistant Attaché to Pretoria positions. Id.

         While Ms. Sellers' EEOC complaint was working its way through the administrative process, life became worse for her at the agency. Ms. Sellers alleges that throughout the administrative process Mr. Allen became increasingly aggressive towards her and threatened to file a formal complaint if she did not stop “spreading rumors” about him. Id. ¶ 59. Additionally, the agency blocked several different attempts by Ms. Sellers to obtain promotions. She applied for three positions while her investigation was being conducted: (1) in May 2015, she applied for an Assistant Attaché to London position, Id. ΒΆ 62; (2) in 2015, on an unspecified date, she applied for a Liaison to U.S. Customs and Border ...


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