CHASANOW, District Judge.
Presently pending and ready for resolution in this employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by Plaintiff Susan Khoury, are: (1) the Motion of Defendant Richard A. Meserve, Chairman of the Nuclear Regulatory Commission (NRC), to Dismiss or for Summary Judgment and (2) Plaintiffs Motion for Leave to File Surreply. The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons
A. Discrimination in the Workplace
The following are facts alleged by Plaintiff. Plaintiff was employed by the Office of the Inspector General (OIG) at the Nuclear Regulatory Commission (NRC) in Rockville, Maryland. She began her employment with the NRC in January 1997 as a GS-1811-11 criminal investigator. Plaintiff alleges that she began to experience discriminatory treatment soon after beginning her employment with the NRC. Plaintiff claims that her supervisor, Mr. Stryker (Stryker), lacked communication skills in dealing with female employees and treated male members of his staff more favorably. Plaintiff was unfairly disciplined and criticized, did not receive awards while her male counterparts did, and her promotion to the GS-12 level was delayed because of her national origin and gender. Plaintiff alleges that even after a new supervisor took over, the same mistreatment continued.
In October 2000, Plaintiff was given a performance appraisal that was deliberately worded in a manner that effectively precluded her from successfully competing for a GS-14 vacancy she was applying for. Plaintiff was not selected for the position. Plaintiff alleges that the selection for the two openings was designed to favor and pre-select two Caucasian males and that the positions were in fact awarded to two Caucasians.
B. Discrimination Complaint
The following facts concerning Plaintiffs filing of a discrimination complaint with the EEO are uncontroverted. Plaintiff contacted an EEO Counselor on March 13, 2001. This informal EEO counseling was completed on June 13, 2001 and the counselor issued a report shortly thereafter. On or about July 9, 2001, Plaintiff filed a formal complaint of discrimination with the NRC's Office of Small Business and Civil Rights (SBCR).
Plaintiff alleges that in December 2000, she filed a grievance regarding her FY 2000 performance rating. Plaintiff alleges that her rights were denied in the processing of that grievance. In an attempt to review files she had worked on in order to substantiate the allegations contained in
D. Procedural Background of the Current Action
On February 20, 2002, Plaintiff appealed her termination to the Merit Systems Protection Board (MSPB). On August 28, 2002, the MSPB sustained the NRC's sanction and the MSPB decision became final on October 2, 2002. On October 25, 2002, Plaintiff filed the present action in this court to seek review of both the MSPB and EEO administrative outcomes.
In the current action, Plaintiff claims that she was denied terms and conditions of employment by her supervisors and that she was subjected to illegal employment conditions based on her gender, national origin, and as a result of retaliation. Plaintiff also alleges that the NRC unreasonably delayed processing the EEO investigation, causing additional injuries to Plaintiff and ultimately leading to her termination.
Defendant filed his motion to dismiss or for summary judgment on February 3, 2003. Plaintiff filed her opposition on March 10, 2003 and argued, inter alia, that it is premature to consider Defendant's motion for summary judgment because more discovery is needed. Plaintiff filed an affidavit in support of the request for discovery as required by Fed.R.Civ.P. 56(f). Defendant replied on March 28, 2003 and argued against Plaintiffs request for discovery. Plaintiff then filed a motion for leave to file a surreply on April 7, 2003. Defendant opposed this motion on April 25, 2003.
II. Motion for Leave to File Surreply
Unless otherwise ordered by the court, surreply memoranda are not permitted to be filed. Local Rule 105.2(a). Surreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply. Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 2001).
Plaintiff argues that she is justified in filing a surreply because Defendant has raised two new issues in his reply memorandum, i.e., (1) the sufficiency of Plaintiffs Rule 56(f) affidavit seeking time for
Plaintiff filed her Rule 56(f) affidavit along with her opposition to Defendant's motion to dismiss or for summary judgment. Defendant's challenge to the sufficiency of Plaintiffs affidavit and request for discovery is therefore a response to a matter first introduced by Plaintiff. Plaintiff had the opportunity to support her affidavit with arguments and facts in her opposition brief; a surreply would not provide Plaintiff with her first chance to address the issue. Likewise, the matter of Plaintiffs exhaustion of administrative remedies was raised by Defendant in his original motion to dismiss or for summary judgment; Plaintiff has already had ample opportunity to contest Defendant's challenge. Finally, Plaintiff contends that her surreply corrects Defendant's misrepresentation of the record of Plaintiffs administrative proceeding and standard of review of the decisions of Administrative Judges. Nevertheless, this contention also does not address a new matter. See Lewis, 154 F.Supp.2d at 61. The court will therefore deny Plaintiffs motion for leave to file surreply.
III. Motion to Dismiss or for Summary Judgment
A. Standards of Review
1. Dismissal: Exhaustion under Rule 12(b)(1)
Motions to dismiss for failure to exhaust administrative remedies are governed by Fed.R.Civ.F. 12(b)(1) for lack of subject matter jurisdiction. See Onuoha v. Grafton School, 182 F.Supp.2d 473, 481 (D.Md.2002). In a Rule 12(b)(1) motion, the court may look beyond the pleadings and "the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) (citations omitted); see Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). It is the plaintiffs burden to prove that jurisdiction in this court is proper. See DeBauche v. Virginia Commonwealth Univ., 7 F.Supp.2d 718, 721 (E.D.Va.1998). The court must presume that all factual allegations in the complaint are true and make all reasonable inferences in the plaintiffs favor. Id.
2. Summary Judgment: Rule 56
It is well established that a court may grant a motion for summary judgment only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir.1979). A material fact is one that constitutes an element that is essential to a party's case. Celotex v. Catrett, 411 U.S. at 322-23, 106 S.Ct. 2548. As the Supreme Court stated in Anderson, "... the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." 477 U.S. at 248, 106 S.Ct. 2505.
B. Dismissal: Failure to Exhaust
1. Discriminatory Denial of Promotion Claim
Defendant challenges Plaintiffs allegation that she was discriminatorily denied a promotion when she failed to be selected for the GS-14 criminal investigator positions that were announced in October 2000. Defendant notes that although Plaintiff claims she filed a timely EEO complaint with regard to this allegation, Plaintiff did not raise her claim of discriminatory failure to promote in her administrative complaint, her request for EEO counseling, her formal complaint, or in the letter of partial acceptance and dismissal. As the Fourth Circuit has stated,
Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 132 (4th Cir.2002). Defendant therefore urges that Plaintiffs claim for discriminatory denial of promotion be dismissed for failure to exhaust administrative remedies.
A review of Plaintiffs EEO Counselor's Report shows that Plaintiff did raise the issue of her failure to make the best-qualified list for the GS-14 job positions due to the language in her FY 2000 Appraisal and the selection of two Caucasian males for the position instead. Paper 7, Ex. 1, at 3. The Formal Discrimination Complaint that Plaintiff filed with the NRC cites Scenna's FY 2000 evaluation of Plaintiff and his repeated attempts to force Plaintiff to sign the evaluation as an attempt "to prevent Ms. Khoury from successfully applying for a promotion to the GS-14 level in December
Nevertheless, the SBCR Letter defines Plaintiffs claims, based on her formal Complaint with the NRC, as: (1) delay of promotion to GS-12 level; (2) a claim of discrimination based on gender and national origin when, on December 1, 2000, she received her FY 2000 performance appraisal which included comments she found unacceptable and gave her a summary rating of "excellent" instead of "outstanding," Paper 7, Ex. 3, at 2; and (3) a claim of hostile work environment harassment comprised of acts that included Scenna's attempt to prevent Plaintiff from successfully competing for a promotion when he tried to pressure her into signing her FY 2000 appraisal. Id. at 3. The SBCR Letter does not define Plaintiffs claims explicitly to include one for discriminatory denial of promotion. Based on the SBCR Letter, therefore, it appears that Scenna's FY 2000 appraisal of Plaintiff and his attempts to force Plaintiff to sign the appraisal have been characterized as being part of a discriminatory performance appraisal grievance (which was dismissed by the SBCR for failure to seek counseling within 45 days, id., at 4-5) and as part of a hostile work environment claim, but not as an independent unfair denial of promotion claim.
According to the SBCR Letter, Plaintiff had the right to disagree with the issues as defined in the SBCR Letter by submitting a written statement within ten calendar days of receipt of the SBCR Letter, id. at 4, and to amend her complaint any time prior to the completion of the investigation to include new issues or claims that were like or related to the claims in her complaint. Plaintiff has not provided any evidence to show that she either submitted a written statement to the NRC disagreeing with its definition of her claims or amended her complaint to include a specific claim of unfair denial of promotion, nor has she opposed Defendant's motion to dismiss the unfair denial of promotion claim. Plaintiff has therefore failed to exhaust administrative remedies with respect to this claim. See Sloop v. Memorial Mission Hospital, Inc., 198 F.3d 147, 149 (4th Cir.1999) (holding that plaintiff who took no official action to amend her administrative charge of discrimination had not exhausted administrative remedies with respect to claim not included in the original charge). Defendant's motion to dismiss the denial of promotion claim will be granted.
2. Denial of Rights Under Grievance Procedures
Defendant argues that Plaintiffs claim that she was denied her rights under the NRC's grievance procedures must be dismissed for failure to exhaust administrative remedies because Plaintiff never included this claim in her administrative complaint. Plaintiff counters that she has sought the appropriate remedy allowed to her by statute for the NRC's violations in placing her on administrative leave by bringing this case in federal court. According to her Complaint in the case at bar, Plaintiffs entire action against Defendant has been brought pursuant to Title VII. As noted above, Title VII requires a plaintiff to file a charge with the EEOC first and the EEOC charge defines the scope of the civil suit that a plaintiff may institute. A review of the relevant documents reveals that the claim that Plaintiff was denied her rights when the NRC allegedly violated its procedures in placing Plaintiff on leave is absent from Plaintiffs EEO Counselor's Report, Formal NRC Complaint, and the SBCR Letter. Furthermore,
3. Hostile Work Environment Claim
Defendant argues that Plaintiffs hostile work environment claim must be dismissed because it was not timely brought. In her complaint, Plaintiff alleges that she was subjected to a hostile work environment because of her opposition to her supervisors' discriminatory treatment of her based on her gender and national origin. Plaintiff points to the delay in her promotion to GS-12, repeated criticism by her supervisors, and delay in her EEO investigation as examples of this hostile, discriminatory treatment.
A federal civilian employee has 45 days to initiate contact with an EEO Counselor after the occurrence of an employment action or matter that she believes to be discriminatory. 29 C.F.R. 1614.105(a)(1). As the Supreme Court has noted,
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (internal citations omitted). The Court concluded that "[a] charge alleging a hostile work environment claim [ ] will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Id., at 122, 122 S.Ct. 2061.
Plaintiff first contacted an EEO Counselor on March 13, 2001. In order for her claim to be timely, therefore, at least one act constituting her hostile work environment claim must fall between January 27, 2001 and March 13, 2001. Defendant argues that the last act that Plaintiff alleges in her hostile work environment claim is the "putative plot to pressure her into signing her performance appraisal" which, according to Plaintiff, occurred in December 2000. Alternatively, Defendant argues that the acts that Plaintiff alleges as the basis of her hostile work environment claim are actually discrete acts that are not capable of being linked together as part of a "continuing violation" subject to the hostile work environment holding in National Railroad.
A review of the administrative complaint and records which define the scope of Plaintiffs Title VII claim reveals that
4. Termination Claims Based on Gender and National Origin
Defendant argues that because Plaintiff withdrew her discriminatory discharge claims based on sex and national origin at the end of her MSPB hearing, she failed to exhaust administrative remedies with respect to those claims and therefore cannot assert them here. Plaintiff explains in her opposition that,
Paper 13, at 8.
The MSPB is an independent, quasijudicial federal administrative agency established to review civil service decisions. See 5 U.S.C. § 7701. In certain situations, federal employees may assert Title VII claims in connection with an appeal to the MSPB as a "mixed case" governed by the procedures set forth in 5 U.S.C. § 7702. Plaintiff appealed the: NRC's removal action to the MSPB in February 2002. According to the Initial Decision issued by the MSPB Administrative Judge on August 28, 2002, Plaintiff withdrew her claims of discrimination based on sex and national origin at the end of the MSPB hearing while continuing to pursue her retaliation claim before the MSPB. See Paper 7, Ex. 10, at 2.
It is well-established that a complainant who withdraws an appeal before the MSPB fails to exhaust administrative remedies and is barred from filing a civil
Plaintiff also counters Defendant's motion to dismiss by arguing that, when she withdrew her termination claims based on gender and national origin from the MSPB appeal, those claims were still viable in her complaint filed with the NRC's EEO office. While it is true that a federal employee may either file a mixed case complaint with the employer agency's EEO office or file a mixed case appeal with the MSPB, that employee may not elect both avenues simultaneously. See 29 C.F.R. 1604.302(a)-(b) (19%); Briggs v. Dalton, 984 F.Supp. 353, 354-55 (D.Md.1997) (citing McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir.1995)); see also Economou, 2000 WL 1844773 at *16. In the present case, Plaintiff pursued her termination claims in a mixed case appeal before the MSPB. Because she withdrew the claims based on gender and national origin from the MSPB appeal, those claims must be dismissed for failure to exhaust administrative remedies.
C. Summary Judgment
1. Rule 56(f) Affidavit and Request for Time for Discovery
Plaintiff filed an affidavit pursuant to Fed.R.Civ.P. 56(f) stating that discovery has not yet been undertaken in this case and that summary judgment therefore would be premature at this time. Rule 56(f) states that:
The Fourth Circuit has held that the party opposing summary judgment is required to "focus our attention on an affidavit ... that particularly specifies legitimate needs for further discovery." Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir.1995); Fairclough v. Board of County Commissioners of St. Mary's County, Maryland, 2A4 F.Supp.2d 581, 586 (D.Md.2003); Morrow v. Farrell, 187 F.Supp.2d 548, 551 (D.Md.2002). In identifying her specific needs in the instant case, Plaintiff explains that she
Paper 13, Rule 56(f) Declaration. These reasons are insufficient to justify a stay in the court's consideration of summary judgment. The MSPB record includes affidavits of the relevant agency officials and witnesses, many of whom also testified under oath at the MSPB hearing. Furthermore, a full and detailed factual record was created through an adversarial process before the MSPB. Plaintiff cannot claim that there has not been time or opportunity to develop the facts of this case. Plaintiff has not demonstrated a need for time for discovery in this case, therefore consideration of summary judgment, where appropriate, is not premature.
2. Hostile Work Environment Claim
In the alternative to his motion to dismiss this claim, Defendant moves for summary judgment on the ground that Plaintiff has failed to establish a prima facie hostile work environment case. In order to establish a prima facie case of hostile work environment harassment, Plaintiff must show: (1) that she was subjected to unwelcome conduct; (2) the unwelcome conduct was based on sex, race, color, national origin, or religion; (3) it was sufficiently pervasive or severe to alter the conditions of employment and to create a hostile work environment; and (4) some basis exists for imputing liability to the employer. See Smith, 202 F.3d at 241. Defendant argues that Plaintiff cannot establish that the harassment she claims she suffered was because of gender or that the harassment was sufficiently pervasive or severe to create a hostile work environment.
In response to Defendant's first challenge, Plaintiff states only that "[t]he evidence of plaintiff clearly shows that she was harassed because of the factors cited in her complaint, such as gender and national origin." Paper 13, at 7. In order to establish that the harassment she suffered was based on her gender or national origin,
Furthermore, Plaintiff fails to establish that the harassment she claims she suffered was sufficiently pervasive or severe to create a hostile work environment. According to Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the determination of the sufficiency of an environment's hostility or abusiveness should be made by considering the totality of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id., at 23, 114 S.Ct. 367. In response to Defendant's argument, Plaintiff states that "[t]his treatment was severe in that she was placed illegally on administrative leave and ultimately terminated.... The totality of the scenario of the mistreatment that she suffered at the hands of the supervisors of the agency clearly shows that the discriminatory conduct was pervasive and severe." Paper 13, at 7. Again, Plaintiffs opposition fails to identify specific facts or evidence in support of this claim. Even referring to the series of events and complaints that the SBCR Letter defines as comprising Plaintiffs hostile work environment claim and the lengthy narrative contained in Plaintiffs affidavit,
3. Retaliation Claim
Defendant acknowledges that Plaintiff did properly exhaust her administrative remedies with respect to her retaliation claim. Defendant moves for summary judgment on Plaintiffs retaliation claim, however, arguing that the NRC had "indisputable legitimate non-discriminatory reasons for its actions, which have not been challenged." In order to survive summary judgment, Plaintiff must establish a prima facie case of retaliatory discharge. Plaintiff must offer evidence from which a reasonable jury could find that (1) she engaged in protected activity; (2) her employer took adverse employment action against her; and (3) a causal connection existed between the protected activity and the adverse action. See Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745, 754 (4th Cir.), cert, denied 519 U.S. 818, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996). Once Plaintiff establishes her prima facie case of retaliation, the burden shifts to Defendant to offer evidence of a legitimate, nondiscriminatory reason for the adverse employment action, see Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir.1989),
Defendant argues that, even if Plaintiff has established a prima facie case of retaliatory discharge, Defendant has identified and produced evidence that the NRC had legitimate, non-discriminatory reasons for terminating Plaintiff—i.e., Plaintiff was terminated for making false statements, failing to follow supervisory instructions, and improperly accessing sensitive information. The MSPB found in favor of Defendant on these counts. Paper 7, Ex. 10.
Plaintiff proffers no evidence to contradict the record's demonstration that Defendant's non-discriminatory reasons for terminating Plaintiff were legitimate.
For the foregoing reasons, Plaintiffs motion for leave to file surreply will be denied. Defendant's motion to dismiss will be granted with respect to Plaintiffs discriminatory denial of promotion claim, denial of rights claim, and discriminatory discharge claim based on gender and national origin. Plaintiffs request to defer consideration of summary judgment will be denied. The court will grant Defendant's motion for summary judgment with respect to Plaintiffs hostile work environment claim and retaliation claim. A separate order will follow.
For the reasons stated in the foregoing memorandum opinion, it is this 23rd day of June, 2003, by the United States District Court for the District of Maryland, ORDERED that:
1. Plaintiffs motion for leave to file surreply BE, and the same hereby IS, DENIED;
2. Plaintiff's request for deferral of consideration of summary judgment BE, and the same hereby IS, DENIED;
3. Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) BE, and the same hereby IS, GRANTED with respect to Plaintiffs discriminatory denial of promotion, denial of rights under grievance
4. Plaintiffs claims for discriminatory denial of promotion, denial of rights, and discriminatory discharge based on gender and national origin BE, and the same hereby ARE, DISMISSED;
5. Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 BE, and the same hereby IS, GRANTED with respect to Plaintiffs hostile work environment and retaliation claims;
6. JUDGMENT BE, and the same hereby IS, ENTERED in favor of Defendant Richard A. Meserve, Chairman of the Nuclear Regulatory Agency, and against Plaintiff Susan Khoury with respect to Plaintiffs hostile work environment and retaliatory discharge claims; and
7. The Clerk will transmit copies of the Memorandum Opinion and this Order to counsel for the parties and CLOSE this case.