Faulkenberry v. U.S. Dep't of Def.

670 F.Supp.3d 234

Stacy FAULKENBERRY, Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, Defendant.

Civil Case No: 1:22-cv-01150-JMC

United States District Court, D. Maryland

Signed April 25, 2023

Khour Lauren A. Khouri, Subhashini Bollini, Correia & Puth, PLLC, Washington, DC, for Plaintiff.

Alicia Leigh Shelton, DOJ-USAO, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

J. Mark Coulson, United States Magistrate Judge

Plaintiff Stacy Faulkenberry filed suit against Defendant U.S. Department of Defense on May 12, 2022. (ECF No. 1). On December 15, 2022, Plaintiff filed an Amended Complaint and asserted three counts: (1) Hostile Work Environment Based on Sex and Gender Identity in Violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, as amended ("Title VII"), (2) Retaliation in Violation of Title VII, and (3) Violation of Confidentiality Provisions of the Rehabilitation Act of 1973, 29 U.S.C. § 701, as amended. (ECF No. 24 at pp. 18-20).¹ Currently before the Court are two motions: (1) Defendant's Motion to Dismiss Amended Complaint or, in the Alternative, for Summary Judgment (ECF No. 25) and (2) Plaintiff's Motion for Discovery Pursuant to Rule 56(d) (ECF No. 28). Regarding Defendant's Motion, the Court also has reviewed Plaintiff's Opposition (ECF No. 29) and Defendant's Reply (ECF No. 31). Furthermore, regarding Plaintiff's Motion, the Court also has reviewed Defendant's Opposition (ECF No. 30) and Plaintiff's Reply (ECF No. 32). The Court finds that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the reasons explained below, Defendant's Motion, treated as a motion to dismiss, is granted as to Counts I and II, which are hereby dismissed without prejudice. As to Count III, Defendant's Motion is denied without prejudice as to Defendant's ability to again move for summary judgment following the close of discovery. Furthermore, Plaintiff's Motion is granted to the extent Plaintiff seeks discovery as to Count III.

I. BACKGROUND

A. Facts Pertinent to Defendant's Motion to Dismiss

"At the motion to dismiss stage, the Court takes the allegations of the complaint as true, . . . and [it] construes any disputed allegations in the light most favorable to the plaintiff . . . ." Krell v. Queen Anne's Cnty., No. JKB-18-637, 2018 WL 6523883, at *2 (D. Md. Dec. 12, 2018) (other citations omitted).

Plaintiff is a transgender woman who presents as a female, and she has legally changed her name to reflect that she is a female. (ECF No. 24 at p. 4, ¶ 11). Plaintiff is a decorated Army Special Forces combat veteran. Id. at p. 1, ¶ 1. Plaintiff is a Bronze Star recipient who served twenty-five years of active duty in the U.S. Army, of which fifteen of those years were spent in the Army Special Operations community. Id. at p. 4, ¶ 12. Plaintiff received her Bronze Star for her meritorious conduct in the face of an armed enemy in Iraq. Id. Following an honorable discharge, Plaintiff began working as a civilian employee for the U.S. European Command—which is part of the Department of Defense ("DOD")—in Stuttgart, Germany. Id. at p. 4, ¶¶ 14-15. In June 2016, the DOD directed Plaintiff to transfer to the Defense Information Systems Agency ("DISA") located at Fort Meade, Maryland. Id. at p. 4, ¶ 17. The DOD assigned Plaintiff to the role of Tasker Workflow Manager, which is a position responsible for (1) managing the Tasker system that DISA utilized to exchange information with the Office of the Secretary of Defense and the Joint Chiefs of Staff, and (2) briefing DISA's senior leadership on workflow issues. Id. at p. 5, ¶ 20.

Prior to relocating for her position with DISA, Plaintiff spoke by phone with her supervisor-to-be, Executive Officer of the Office of Chief of Staff, Sharon Ontiveros. Id. at p. 5, ¶ 21. At the time of this transfer, Plaintiff presented as a female but possessed the vocal range more typically associated with a male. Id. at p. 5, ¶ 18. Although Ms. Ontiveros at first exhibited a warm and welcoming tone for a portion of the phone call, Ms. Ontiveros' tone shifted and became cold after Plaintiff disclosed that Plaintiff is a transgender woman. Id. at p. 5, ¶ 21. After Plaintiff's disclosure, Ms. Ontiveros provided curt responses to Plaintiff's questions for the remainder of the call. Id. Despite Plaintiff's request for a moving allowance and a period of ninety days to report for Plaintiff's new position, Ms. Ontiveros directed Plaintiff to report within thirty days. Id. at p. 5, ¶ 22. On July 21, 2016, Plaintiff reported to DISA and had her first in-person meeting with Ms. Ontiveros. Id. at p. 6, ¶ 23. During that meeting, Plaintiff requested Temporary Quarters Subsistence Expenses ("TQSE"), which is an allowance authorized by regulation to reimburse employees for certain expenses when employees occupy temporary quarters at a new duty station. Id. at p. 6, ¶ 24. In a sharp tone of voice, Ms. Ontiveros denied Plaintiff's request and informed Plaintiff that DISA did not want Plaintiff. Id. at p. 6, ¶ 25. Plaintiff escalated her TQSE request to two other DISA employees: (1) Chief of Staff, Col. Mark Rosenstein, and (2) Deputy Chief of Staff, Andres Lopez. Id. at p. 6, ¶ 26. However, her request was again denied. Id.

Plaintiff began work as the Tasker Workflow Manager on or about July 24, 2016. Id. at p. 6, ¶ 27. On July 26, 2016, Ms. Ontiveros informed Plaintiff that Plaintiff was being reassigned to the position of Issuance Manager. Id. at p. 6, ¶ 28. In this different role, Plaintiff would manage DISA's publication program. Id. Unlike the position of Tasker Workflow Manager, the position of Issuance Manager did not include high-level communications work. Id. at p. 6, ¶ 29. The duties of Issuance Manager required less training, and were far less important, than those of the Tasker Workflow Manager. Id. DISA further revised Plaintiff's job duties to limit Plaintiff's interaction with senior leadership. Id. at p. 6, ¶ 30.

On July 29, 2016, Plaintiff again raised the issue of TQSE with Mr. Lopez. Id. at p. 7, ¶ 31. In addition to again denying Plaintiff's request, Mr. Lopez informed Plaintiff that DISA "would not be sad if [Plaintiff] found [herself] another job[.]" Id. On or about August 3, 2016, Plaintiff informed Deputy of Personnel, Doria Schauer, of the hostility exhibited towards Plaintiff by Mr. Lopez and Ms. Ontiveros. Id. at p. 7, ¶ 33. Plaintiff informed Ms. Schauer that Plaintiff had not observed DISA management treating other employees the way management treated Plaintiff. Id. at p. 7, ¶ 34. In mid-August 2016, DISA approved Plaintiff's request for TQSE. Id. at p. 7, ¶ 35.

Following her arrival at DISA, Plaintiff had to park in spaces that often required at least a fifteen-minute walk to the building in which she worked. Id. at p. 7, ¶ 36. However, in October 2016, Plaintiff learned that all the other members of the Chief of Staff's team were provided parking in a parking garage adjacent to the building in which Plaintiff worked. Id. at p. 7, ¶ 36. At least two other DISA employees were given a pass and access to the garage on the day they began working. Id. at pp. 7-8, ¶ 36. Ms. Ontiveros had authority to secure Plaintiff a parking pass and garage access, and Ms. Ontiveros was aware that Plaintiff was parking far from the building in which they worked. Id. at p. 8, ¶ 37. On October 26, 2016, Plaintiff informed a Chief of Staff employee, Tonya Mitchner, that Plaintiff did not have access to the parking garage, and Ms. Ontiveros was within earshot of this conversation. Id. at p. 8, ¶ 38. The following day, DISA programed Plaintiff's identification card to include access to the parking garage. Id. at p. 8, ¶ 39. After receiving parking access, Plaintiff asked Col. Rosenstein why Plaintiff had not been provided with a parking pass sooner. Id. at p. 8, ¶ 40. Col. Rosenstein responded, "It's not because you are transgender." Id.

Plaintiff observed that Ms. Ontiveros regularly went out to lunch with other women in the office. Id. at p. 9, ¶ 44. In November 2016, wanting to be a part of the team, Plaintiff asked Ms. Ontiveros if Plaintiff could be included in the group lunch outings. Id. Ms. Ontiveros stated that Plaintiff would not be invited and that Plaintiff would not want to attend because lunches are "a girls thing." Id. Ms. Ontiveros' response was given within an open office space and was overheard by at least one other DISA employee, Rebecca Clausen. Id. at p. 9, ¶ 45. Further regarding the social life in the workplace, Plaintiff's birthday was not celebrated for Plaintiff's first two years of employment despite the Office of the Chief of Staff routinely celebrating the birthdays of other employees. Id. at p. 9, ¶ 48. Furthermore, although Ms. Ontiveros met with employees in her office multiple times throughout the day, Ms. Ontiveros rarely spoke to Plaintiff in the workplace. Id. at p. 10, ¶ 50. On one occasion in March or April 2017, Ms. Ontiveros, while in the workplace, approached Ms. Clausen and asked what Ms. Clausen thought "it" was going to wear that day. Id. at p. 10, ¶ 54. When Ms. Clausen asked what Ms. Ontiveros meant by "it," Ms. Ontiveros clarified that she was referring to Plaintiff. Id.

In or around fall 2017, Mr. Lopez falsely accused Plaintiff of dressing inappropriately for work. Id. at p. 10, ¶ 51. However, Plaintiff dressed in professional attire that was consistent with the manner in which other female employees dressed in the workplace. Id. In or around March 2017, Plaintiff met with civilian DISA Executive Director, Anthony Montemerano. Id. at p. 10, ¶ 52. Plaintiff described to Mr. Montemerano in detail how management had treated Plaintiff since she began working at DISA, and Plaintiff described how the treatment she received made her feel isolated and humiliated. Id. During this conversation, Plaintiff requested a transfer to a different working unit to escape the hostility Ms. Ontiveros and other coworkers directed towards Plaintiff. Id. Mr. Montemerano...