Ryan v. McAleenan

CHRISTINA RYAN Plaintiff, v. KEVIN K. MCALEENAN Defendant

Civil Action No. ELH-19-1968

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

April 3, 2020

MEMORANDUM OPINION

In this employment discrimination case, Christina Ryan has filed suit against Kevin McAleenan, then the Acting Secretary of the Department of Homeland Security ("DHS"). ECF 1 (the "Complaint").¹ She is employed by the Transportation Security Administration ("TSA"), a component of DHS, as a Master Behavior Detection Officer ("MDBO") at the Baltimore Washington International Thurgood Marshall Airport ("BWI"). ECF 1, ¶¶ 15-17.

Plaintiff, a Caucasian woman, was born in 1960 and was 60 years of age when suit was filed. Id. ¶ 16. She alleges, inter alia, that she was not selected for two promotions because of her race and her age, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. ("ADEA").

The Complaint contains four counts. In Count I, plaintiff asserts a claim of "RACIAL DISCRIMINATION (Disparate Treatment)" under Title VII. In Count II, she asserts an ADEAclaim of age discrimination based on disparate treatment. Count III alleges a Title VII claim of "RETALIATION (Adverse Actions and Protected Activity Deterrents)." And, Count IV asserts retaliation under the ADEA, on the same grounds asserted as to Count III. Plaintiff seeks $300,000 in compensatory damages, prejudgment and postjudgment interest, and injunctive relief. ECF 1 at 16.

Defendant has moved to dismiss under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56. ECF 7. The motion is supported by a memorandum (ECF 7-1) (collectively, the "Motion") and five exhibits. ECF 7-2 to ECF 7-6. Plaintiff opposes the Motion (ECF 10-1, "Opposition"), and has submitted five exhibits. ECF 10-2 to ECF 10-6. Defendant has replied (ECF 13, "Reply") and submitted two additional exhibits. ECF 13-1 to ECF 13-2. Both parties submitted excerpts of the TSA's Report of Investigation ("ROI"), dated August 3, 2016. See ECF 703; ECF 10-2.²

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall construe the Motion (ECF 6) as one to dismiss, and I shall grant the Motion, without prejudice.

I. Background

A. Factual Background

As noted, Ms. Ryan is a Caucasian woman who was born in 1960. ECF 1, ¶¶ 15, 16; ECF 7-3 at 6; ECF 10-2 at 14. She has worked for TSA at BWI since 2004, and as a MBDO since 2014.ECF 1, ¶ 17; ECF 7-3 at 5; ECF 10-2 at 14. Between 2007 and 2012, plaintiff "filed a number of" Equal Employment Opportunity ("EEO") complaints against TSA. ECF 1, ¶ 6. She also filed an EEO complaint on June 13, 2015. Id. ¶ 10.

From May 2014 to October 2014, Erica Foster Gibbs, who is an African American female born in 1985, served as plaintiff's first-line supervisor. Id. ¶ 21; ECF 10-2 at 7, 10. Scott Wood, a Caucasian born in 1961, was Ms. Ryan's second-level supervisor. ECF 1, ¶ 23; ECF 10-2 at 20. John Chambers III, an African American, became plaintiff's first-line supervisor on or about October 30, 2014. ECF 1, ¶ 22; ECF 10-2 at 28-29.

Plaintiff claims that in May or June of 2014, she informed Ms. Gibbs that she had approximately ten online learning courses to complete. ECF 1, ¶ 24. In response, Ms. Gibbs allegedly "put her face within one (1) inch of Plaintiff's face with a hostile look" and prevented Ms. Ryan from exiting the room. Id. Following this interaction, Ms. Ryan asked Mr. Wood to assign her to a different supervisor. Id. ¶ 26. According to plaintiff, Mr. Wood denied Ms. Ryan's request in June 2014, telling her that if she wanted a transfer, she would need to get a court order. Id. ¶ 26. Plaintiff perceived that comment as a reference to a prior EEO complaint she had filed concerning sexual assault and harassment, which resulted in a court order. Id. Moreover, plaintiff alleges that Mr. Wood granted similar requests submitted in the summer of 2014 by MBDOs Chadea Grant and Brandy Durant, both of whom are African American. Id. ¶ 27.

The Complaint also alleges that Ms. Gibbs regularly mistreated plaintiff throughout July and August of 2014. Id. ¶¶ 28-32. Ms. Gibbs told plaintiff that she was the only "white Caucasian" MBDO on the morning shift. Id. ¶ 25. She also "scowled" at Ms. Ryan "[o]n several occasions" in June of 2014, when Ms. Ryan received a work call. Id. ¶ 28. In addition, Ms. Gibbs interrupted plaintiff on July 5, 2014, when she was on a business call with information technology personnel,and forced her to end the call. Id. ¶ 29. Further, "in a demeaning and condescending manner," Ms. Gibbs told plaintiff not to lean on a stanchion. Id. ¶ 30. In July 2014, after Ms. Ryan complained to Mr. Wood about Ms. Gibbs's "hostile behavior," Ms. Gibbs "chastised" Ms. Ryan "in an attempt to convince [her] to modify her written statement . . . ." Id. ¶ 31. Further, on or about August 31, 2014, Ms. Gibbs accused Ms. Ryan of exhibiting unsatisfactory work performance and demanded a counseling session. Id. ¶ 32. According to plaintiff, she was not permitted to have a witness at the meeting. Moreover, James Clapp, an African-American born in 1990, exhibited poor performance on the same date (August 31, 2014), yet he "was not counseled." Id.

Plaintiff alleges that on October 12, 2014, Mr. Wood and David Marzola Jr., an Assistant Federal Security Director at BWI, "falsely accused" her of spraying an African-American passenger with Lysol. Id. ¶ 33. Mr. Marzola is Caucasian and was born in 1961. Id. ¶ 32; ECF 10-2 at 26. Although Ms. Ryan complained to Mr. Marzola on November 14, 2014, about the falsity of the allegations, he failed to address Ms. Ryan's complaint. ECF 1, ¶ 33.

According to plaintiff, Mr. Marzola "made fun" of her in November of 2014, telling her that "'sometimes you can only see an elbow in the video.'" ECF 1, ¶ 34. She avers that this was a reference to plaintiff's 2007 sexual assault and harassment complaint. Id.

On January 29, 2015, Mr. Wood issued a "Letter of Reprimand" ("LOR") to Ms. Ryan. ECF 7-3 at 21-23; see ECF 1, ¶ 35. It states, in part, ECF 7-3 at 21-23:

On October 10, 2014, while performing Behavior Detection and Analysis (BDA), you communicated to Operational Test Team (OTT) Member Kelly Duppins, that the mat she was standing upon (yellow borders) were for the exclusive use of BDOs. You advised her that if she needed/wanted a mat she could purchase one at Walmart. OTT Duppins was asked to remove herself from the mat. On the same day, you approached Test Team Lead Don Bennett and asked for OTT Duppins name.

After this incident on or about October 13, 2014, you were overheard telling one of the OTT Duppins Management Team Members that a "sit down" job needed to be located for her so she didn't have to complain about standing on the floor and/or use mats that didn't belong to her.

The interactions were unsolicited and the comments were inappropriate and unprofessional. Furthermore, these interactions occurred in the public area and reflected negatively on you. You have been trained on workforce engagement and that display was not appropriate.

In the LOR, Mr. Wood cited provisions of the TSA Code of Conduct and Handbook that he claimed had been violated. Further, he explained that he had weighed the "nature and seriousness of the misconduct" against "mitigating factors," such as Ms. Ryan's employment at TSA since 2004 and her "otherwise satisfactory performance record." Id. at 22. Therefore, Mr. Wood determined that the issuance of the LOR was an "appropriate" penalty. Id.

Prior to the issuance of the LOR, Ms. Ryan had been afforded an opportunity to submit a written statement. ECF 7-6 at 6-8. In her statement, Ms. Ryan did not deny that she spoke with Ms. Duppins about using a fatigue mat. But, she denied that her comments were inappropriate. See id.

In February 2015, plaintiff applied for a vacant position of Supervisory Behavior Detection Officer ("SBDO"). ECF 1, ¶ 36. Mr. Marzola was the selection official, although he did not interview applicants. Id. ¶ 38; see ECF 7-3 at 14. Ms. Ryan interviewed for the SBDO position via telephone on March 25, 2015. ECF 1, ¶ 37; see ECF 7-3 at 14.

On April 20, 2015, Ms. Ryan was notified that she was not chosen for the position. ECF 1, ¶ 38. Instead, the following employees were selected to serve as SBDOs: Francesca Torrance (Caucasian, under 40); Signora Carmouche (African American, under 40); Detlev Hetzler (Caucasian, under 40); Morris Cobb (African American, born in 1975); and John Chambers III (African American, born in 1962). ECF 1, ¶ 38; ECF 10-2 at 34, 47. According to plaintiff, Ms.Carmouche "denied" her offer,³ at which point Brandy Durant (African American, over 40) was selected for a SBDO position. ECF 1, ¶ 38; see ECF 7-3 at 15 (Mr. Marzola stating that Torrance, Hetzler, Cobb, Chambers, and Durant were selected for the SBDO positions); ECF 10-2 at 34-35.

Mr. Marzola was asked during the EEO investigation to explain what made the selectees better qualified for the position than plaintiff. ECF 7-3 at 11. He explained, id. at 15: "Ms. Ryan had discipline on her record, which was one of the disqualifying factors that I took into account." In contrast, the selected applicants "all had clean disciplinary records." Id. Further, Mr. Marzola stated he "took into account the TOPS performance evaluations, resume, interview scores, disciplinary records of each candidate" and that "Ms. Ryan did not rate as high as the candidates that [he] chose." Id.

In August 2015, Ms. Ryan applied for a vacant position as an "Expert Transportation Security Officer - Lead Behavior Detection Officer ("LBDO"). ECF 1, ¶ 41. Again, Mr. Marzola was the selecting official. Id. ¶ 44. Ms. Ryan learned on October 19, 2015, that she was not selected for the position. Id. Rather, the LBDO positions were filled by the...