Aldrich v. Burwell

197 F.Supp.3d 124

Marion ALDRICH, Plaintiff,

v.Sylvia M. BURWELL, Secretary, United States Department of Health and Human Services, Defendant.

Civil Action No. 15-1662 (JEB)

United States District Court, District of Columbia.

Signed July 18, 2016

James R. Klimaski, Klimaski & Associates, P.C., Washington, DC, for Plaintiff.

Johnny Hillary Walker, III, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Plaintiff Marion Aldrich works as a policy analyst in the U.S. Department of Health and Human Services' Office of the Assistant Secretary for Preparedness and Response. She is 57 years old and has long been diagnosed with and treated for Attention Deficit Disorder (ADD). Her otherwise uneventful 20-year stint in government service was upended in February 2012 when she began reporting to a new, younger supervisor, Serina Vandegrift. Plaintiff claims that Vandegrift, motivated by discriminatory animus given Aldrich's age and disability, created a hostile work environment, and discriminated and retaliated against her through a series of workplace incidents. After pursuing some administrative redress, Plaintiff brought suit here. The government has now filed a Partial Motion to Dismiss, contending that all of Aldrich's harms, taken together, do not constitute a hostile work environment, and that one of the specific incidents she complains of — a so-called "Leave Restriction" — is not severe enough to count as a discrete act of discrimination or retaliation. The Court agrees with Defendant's assessment and will grant the Motion.

I. Background

The Court, as it must at this stage, draws the facts from the Complaint. Aldrich, a 57-year-old Cuban émigré with a master's degree in public health, began working as a public-health advisor for the Centers for Disease Control and Prevention in 1992. See Compl., ¶¶ 7-9. For the next 20 years, she had a relatively uncontroversial civil-service career. Id., ¶ 12. In February 2012, while Plaintiff was working as a policy analyst in the Executive Secretariat for the Office of the Assistant Secretary for Preparedness and Response (ASPR), Vandegrift became that office's Director and, consequently, Aldrich's boss. Id., ¶¶ 9-11.

Vandegrift was "much younger [and] less experienced" than Plaintiff, id., ¶ 9, which apparently generated some resentment towards Aldrich, given the latter's "greater age and experience." Id., ¶ 25. "[W]ithin months of working under Vandegrift," Plaintiff began to experience "abusive and discriminatory conduct." Id., ¶ 12. She does not elaborate what conduct that was, but notes that in July 2012, she filed an informal complaint with the Department's Equal Employment Opportunity (EEO) office, describing "a pattern of rude and demeaning treatment [by Vandegrift] ... motivated by unlawful considerations including age." Id. Aldrich eventually dropped the complaint in the hopes that "[Vandegrift's] experience of being called out for abusive and discriminatory conduct might have a chastening effect on [her] going forward." Id., ¶ 20. She does not state whether Vandegrift was ever made aware of this complaint.

About a month after filing her EEO complaint, Plaintiff in August 2012 requested a "quiet work space" as an accommodation for her ADD. Id., ¶ 13. She received that accommodation without much intervention from her employer, as a co-worker who had a quiet office agreed to swap spaces with her. Id., ¶¶ 14, 19. Almost a year later, however, the whole office, in June 2013, had to "move to another building," at which point Vandegrift "assigned Aldrich to a noisy cubicle directly across from Vandegrift's own office, where she could closely monitor Aldrich and her movements." Id., ¶ 19. (Aldrich does not allege that she ever formally voiced her objection to the new cubicle or otherwise told her employer that it no longer accommodated her disability.)

Plaintiff notes that from roughly late 2012 through 2013, "Vandegrift's more abusive conduct did abate for a time." Id., ¶ 21. "The daily criticism lessened," and Plaintiff received what were, in her mind, fair performance appraisals for both 2012 and 2013. Id., ¶¶ 21, 25. About three months after Aldrich's successful performance review for 2013, however, the armistice began to crack. Id. at ¶ 25.

In May 2014, Vandegrift reprimanded Plaintiff for "unacceptable work performance, failure to follow instructions and failure to submit leave that accurately reflects time away from the office." Id., ¶ 26. In addition, Vandegrift claimed that she had "consistently counseled [Aldrich] on these issues since May 2012, throughout 2013 until the present day." Id.¶ 27. Plaintiff disputes the legitimacy of the "unacceptable work performance" claim, since Vandegrift "had rated Ms. Aldrich's actual job performance as fully successful" for at least the 2012-2013 time period. Id., ¶¶ 26-27. But Plaintiff does not allege that the other infractions — i.e. , "failure to follow instructions and failure to submit leave ... accurately" — were untrue. Id., ¶ 26. Similarly, she does not allege that Vandegrift was incorrect in claiming that she routinely counseled Plaintiff. Instead, Plaintiff explains, "If Vandegrift was demanding to meet with Aldrich on a weekly basis, it was not for any legitimate purpose, but to harass and demean her, to undermine her faith in herself and in her work, and ultimately to drive her from government service." Id., ¶ 28.

Following that reprimand, Plaintiff filed a complaint with her union alleging that Vandegrift's criticisms were motivated solely by "Aldrich's age and disability, and by her persistent efforts to obtain ... reasonable accommodation[s]." Id., ¶ 30. That complaint met a swift demise, id., ¶ 31, and Plaintiff did not follow up with an EEO complaint. Id., ¶ 32.

In October 2014, Vandegrift then suspended Plaintiff for five days for "bogus performance and behavioral ‘reasons.’ " Id., ¶ 33. This time, Plaintiff took the matter to the agency's EEO office, filing an informal complaint in which she "challenge[d] the suspension as part of a pattern of [discrimination] ... based upon age and disability, repeated requests for reasonable accommodation," and retaliation for Aldrige's "exercis[ing] of [her] rights protected by law." Id., ¶ 34. On October 30, 2014, the EEO sent Vandegrift a notice regarding Plaintiff's informal complaint, and she acknowledged receipt the following day (a Friday). Id., ¶¶ 35-36.

The next Monday, November 3, 2014, Vandegrift handed Aldrich a memorandum titled "Leave Restriction" in which she made clear that Plaintiff would face closer scrutiny of her whereabouts during the workday. Id., ¶ 37. "[F]or the next six-month period[,] Aldrich was to announce [to Vandegrift] any arrival, as well as each and every departure during the day, that might take 15 minutes or more." Id., ¶ 39. Despite the title of the memorandum, however, Plaintiff does not allege that the "Leave Restriction" in any way hampered her ability to take sick or vacation leave to which she was entitled. Nevertheless, the requirement that Plaintiff inform Vandegrift of her comings and goings caused her a great deal of stress, sleep deprivation, and fatigue. Id., ¶ 40. On February 5, 2015 — about three months into the leave restriction — Aldrich converted her October 2014 informal EEO complaint regarding the five-day suspension into a formal one. Id., ¶ 41.

The final major action Aldrich complains of is an April 2015 reprimand by Vandegrift in which she recommended that Aldrich again be suspended for fourteen days, "this time for allegedly failing to adhere to prescribed leave policy on [the] day a blizzard was underway in Washington, D.C." Id., ¶ 45. Vandegrift's supervisors approved the suspension in June 2015 but reduced the duration to ten days. Id., ¶ 46. As she did with the October 2014 suspension, Plaintiff brought this matter to the EEO as another illustration of her supervisor's discrimination. Id., ¶ 47. She has yet to receive a final decision from the EEO on the matter. See Opp. at 11-12 n.3.

Before wrapping up, there are a few odds and ends that bear mention. First, one of Aldrich's co-workers, Susie Nunez, allegedly offered a "sworn statement to the Department" — perhaps during the EEO process, although the Complaint does not say — attesting to various things Vandegrift told Nunez that illustrated her animus towards Plaintiff. See Compl., ¶¶ 15-18 (alleging that Vandegrift told Nunez, inter alia , that Aldrich was "unstable and crazy," that she was disappointed that Nunez had agreed to switch offices with Aldrich, and that she had contemplated "hanging several large bullhorns — which she kept in her office — ‘right above the door so [they] can swing and hit people like Ms. Aldrich’ "). Although Aldrich was clearly made aware of these statements before she filed this suit, she never says when, over the nearly four-year period preceding such date, she learned of them.

Second, Aldrich offers a few other isolated anecdotes from 2015 that she claims reveal Vandegrift's "pattern of abusive conduct." Id., ¶ 42. First was an incident in March or April 2015 in which Vandegrift came to her cubicle and "scream[ed] at her and berat[ed] her." Id., ¶ 43. Another was Vandegrift's directing Aldrich to pull articles from the National Institutes of Health's archives on the Ebola virus going back to 1950. See id., ¶ 42; Opp., Exh. 2 (July 9, 2015, Email Chain) ("Please provide me a list of resources that speak to the issue, and if possible, print or order the articles. I would do a search as far back as 1950."). This task, in Aldrich's eyes, was patently abusive because "Vandegrift must have been aware that Ebola was only [first] identified in 1977." Compl., ¶ 42. A third was Vandegrift's mistakenly accusing Aldrich of being late for work when Aldrich "was actually 30 minutes early." Id.; see Opp., Exh. 1 (July 15, 2015, Email Chain) ("I just realized you are early and not late —...