Anderson v. Garland

1

ANNA ANDERSON, Plaintiff, v. MERRICK GARLAND, Defendant.

No. 1:23-cv-02674 (TNM)

United States District Court, District of Columbia

July 22, 2024

MEMORANDUM ORDER

TREVOR N. McFADDEN, U.S.D.J.

Anna Anderson was fired from her job at the U.S. Department of Justice in 2020. In the lead up to her termination, Anderson received negative performance reviews and was denied telework privileges-all because, Anderson alleges, she refused to withdraw a 2016 EEO complaint against her previous boss. Anderson now sues Attorney General Merrick Garland claiming retaliation in violation of Title VII. The Attorney General moves to dismiss. Because Anderson failed to exhaust several of her claims, they will be dismissed. For the claims she did exhaust, Anderson plausibly alleges retaliation. So the Court will deny the Attorney General's motion as to those claims.

I.

Anderson joined DOJ in 2008. From 2010 until her termination in April 2020, Anderson worked as a Program Operations Specialist in the Office of Justice Programs (OJP) in Washington, D.C Compl. ¶¶ 6, 16. Her responsibilities included reviewing contractor work performance, responding to Freedom of Information Act requests, processing requests for equipment and supplies, and tracking government purchase card use. Id. ¶ 17.

Anderson's claims relate to her first and second-line supervisors at OJP-Barry Bratburd and Jennifer Scherer. Id. ¶ 19. In 2016, Anderson filed an EEO complaint against Bratburd alleging discrimination. Id. ¶ 20. Two years later, in September 2018, Scherer asked Anderson to withdraw the EEO complaint. Id. ¶ 23. Scherer suggested the complaint could jeopardize Bratburd's promotion to a GS-15 position. Id. But Anderson refused. Id. ¶ 24.

Anderson attributes several instances of mistreatment by Scherer-spanning from February 2019 to her dismissal in April 2020-to this refusal. The first allegedly retaliatory act occurred in February 2019, five months after Anderson was asked to withdraw the complaint. Id. ¶ 25. Anderson alleges that Scherer denied her proposed telework schedule without reason. Id. And when Anderson's union representative pressed Scherer about this decision Scherer told Anderson she could no longer have her own cubicle because she teleworked part time. Id. ¶ 26.

In June 2019, following another months-long gap with no retaliatory incidents, Scherer rated Anderson “unacceptable” on her 2019 performance appraisal record and placed her on a 45-day Performance Improvement Plan (PIP). Id. ¶ 28. The PIP stated that Anderson had ongoing issues with “completing tasks.” Id. ¶ 29. But Scherer never raised any performance concerns with Anderson before. Id. Then the next month, Scherer allegedly reassigned work duties to Anderson, saddling her with a “disproportionately heavy workload.” Id. ¶ 31. Following this, Anderson started the EEO complaint process by submitting an EEO PreComplaint intake form charging Scherer with retaliation. Id. ¶ 32.

Two months later, Scherer instructed Anderson to review her purchase card records. Id. ¶ 33. Anderson interprets this request as an implicit accusation by Scherer of violating DOJ's purchase card regulations. Id. According to Anderson, no other employees under Scherer's supervision had to perform such review. Id. And Anderson's union president independently reviewed her purchase card transactions and found no errors. Id. ¶ 34.

The alleged retaliatory actions became more severe in the fall of 2019. In September, Scherer placed Anderson on a second 45-day PIP. Id. ¶ 35. And in October, Scherer issued Anderson a letter of reprimand for “continuously disregard[ing] the standards of courtesy and respect consistent with [DOJ's] rules[.]” Id. ¶ 36. That same month, DOJ's EEO Director provided Anderson with a Notice of Right to File a Discrimination Complaint. Id. ¶ 37. Anderson then filed an EEO complaint against Scherer alleging unlawful retaliation. Id. ¶ 42.

At this point, Anderson was being treated for “stress-related physical ailments, anxiety, and depression” allegedly stemming from Scherer's hostility. Id. ¶ 38. Anderson provided Scherer a note from her physician expressly excusing her from work for the entire month of November. Id. ¶ 39. But Sherer did not respond to Anderson for several days. Id. Then, on November 12, Scherer entered an “Absent Without Leave” notation in Anderson's attendance record. Id. ¶ 40. The next day, Scherer denied Anderson's request to be excused from work. Id. ¶ 39. Scherer also issued a letter to Anderson accusing her of not successfully completing her PIP. Id. ¶ 43.

In mid-November, Anderson submitted a request to take annual leave. Id. ¶ 44. But Scherer denied the request, even though she had granted similar ones before. Id. ¶ 45. Then, in early December, Scherer denied Anderson's request to take sick leave, despite Anderson providing a doctor's note. Id. ¶ 46.

Finally, in mid-December, Scherer issued a proposal to remove Anderson. Id. ¶ 47. For the next several months, Scherer “persistently identified alleged errors” in Anderson's work and “fabricated” errors to make Anderson appear incompetent. Id. ¶ 48. Then on May 1, 2020, DOJ fired Anderson. Id. ¶ 49.

Anderson began the EEO complaint process in July 2019 by submitting an EEO PreComplaint intake form describing Scherer's alleged retaliatory actions. Id. ¶ 32. Three months later, in October 2019, DOJ's EEO Director provided Anderson with a Notice of Right to File a Discrimination Complaint. Id. ¶ 37. Anderson then filed an EEO complaint against Scherer alleging unlawful retaliation. Id. ¶ 42.

Following her removal in May 2020, Anderson, through her union representative, filed a “Step 1 Grievance” under her collective bargaining agreement. See Decl. of Jennifer McCarthy (McCarthy Decl.) ¶ 3, ECF No. 9-4. DOJ denied this Step 1 Grievance. Id. ¶ 4. Anderson's union representative then filed a “Step 2 Grievance” for Anderson, id. ¶ 5, which DOJ also denied, id., Ex. 5 at 30. The next step-Step 3-permitted Anderson's union to refer the matter to arbitration. See id., Ex. 6 at 35. But Anderson's union representative did not do so. Id. ¶ 5. Several months later, Anderson filed an appeal with the Merit Systems Protections Board (MSPB) challenging her removal, which was dismissed for lack of jurisdiction. Id. ¶ 9.

In September 2023, Anderson filed this suit. The Attorney General moved to dismiss. This motion is now ripe.

II.

A defendant may move to dismiss a complaint if it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive dismissal, the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “In determining whether a complaint fails to state a claim, [a court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [a court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). This is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

The Attorney General also moves for summary judgment in the alternative, but only as long as the Court does not consider documentary evidence attached to its motion as properly incorporated by reference. See Mot. to Dismiss, or Summary Judgment (MTD) at 5, ECF No. 9. Since the Attorney General's documentary evidence is central to Anderson's claim, and Anderson does not object to its inclusion, the Court will consider this evidence incorporated by reference. See Slovinec v. Georgetown Univ., 268 F.Supp.3d 55, 59 (D.D.C. 2017). So it need not “convert[] the motion to one for summary judgment.” Id.

III.

Anderson's Complaint raises one count of retaliation and one count of retaliatory hostile work environment. Compl. ¶¶ 53-65. The Court will address each in turn.

A.

Section 717 of the Civil Rights Act of 1964 prohibits federal employers from retaliating against employees who have complained of discrimination. 42 U.S.C. § 2000e-16; see Webster v. Del Toro, 49 F.4th 562, 564 (D.C. Cir. 2022). To prove retaliation, a plaintiff must establish that “she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008) (citing 42 U.S.C. § 2000e-3(a)).

The Attorney General argues that most of Anderson's retaliation claims should be dismissed as unexhausted. And on the exhausted claims, the Attorney General argues that Anderson neither showed the alleged retaliatory conduct was materially adverse nor pled facts establishing an inference that the conduct was caused by her protected EEO activity. The Court agrees with the Attorney General on exhaustion-a point Anderson largely concedes. As to the remaining claims, Anderson plausibly alleges retaliation.

1.

Start with exhaustion. Before an aggrieved employee can sue for retaliation in federal court, she “must run a gauntlet of agency procedures and deadlines to administratively exhaust his or her claims.” Crawford v. Duke 867 F.3d 103, 105 (D.C. Cir. 2017); Hill v. Kempthorne, 577 F.Supp.2d 58, 64 (D.D.C. 2008) (“A federal employee alleging retaliation in violation of Title VII must timely exhaust his or her administrative remedies.”). And the first step in the “gauntlet” is contacting an EEO...