Smith v. Austin

BURENA SMITH, Plaintiff, v. LLOYD J. AUSTIN III, Defendant.

Civil Action No. ELH-19-2572

United States District Court, D. Maryland

August 5, 2021

MEMORANDUM OPINION

Ellen Lipton Hollander United States District Judge

Burena Smith, the self-represented plaintiff and a civilian employee of the Department of Defense (“DOD”), commenced this employment discrimination action on September 5, 2019. ECF 1 (the “Complaint”). Ms. Smith sued Mark Esper, then the Secretary of Defense, ^[1] in his official capacity, alleging unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (“Title VII”). In particular, plaintiff claims “Racial, Sex, And Color Discrimination” (Count One); hostile work environment (Count Two); and retaliation (Count Three). ECF 1 at 7-8. I shall refer to the defendant variously as the Department of Defense (“DOD”), the “Army, ” and the “government.”

The alleged events that gave rise to the suit occurred primarily in 2013. Ms. Smith lodged a claim with the United States Equal Employment Opportunity. Her pursuit of administrative remedies yielded three decisions, all of which were adverse to plaintiff. This suit followed.

On June 23, 2020, I dismissed the suit, without prejudice, for failure to effect service of process. ECF 15. Thereafter plaintiff moved to reopen the suit, citing challenges posed by the COVID-19 pandemic and her status as a pro se litigant. ECF 16. Accordingly, I promptly reopened the case. ECF 17.

Ms Smith twice requested the appointment of counsel. ECF 2; ECF 33. In my rulings denying both requests (ECF 11; ECF 34), I explained that there are no exceptional circumstances that warranted appointment of counsel under 8 U.S.C. § 1915(e)(1). See Manship v. Trodden, 273 Fed.Appx 247, 248 (4th Cir. 2008) (per curiam). In particular, I noted that plaintiff does not appear to be indigent and she demonstrated the wherewithal to articulate the basis for her claims. See ECF 34 at 2.

The DOD has filed a motion to dismiss or, in the alternative, for summary judgment. ECF 29. The motion is supported by a memorandum (ECF 29-1) (collectively, the “Motion”), and several exhibits.^[2] According to the defendant, plaintiff failed to file her suit within 90 days of receiving notification of the denial of her administrative claim, as required by 42 U.S.C. § 2000e-5(f). Alternatively, defendant contends that plaintiff has not stated claims for hostile work environment or retaliation nor has she stated a claim for disparate treatment.

Plaintiff requested two extensions of time to respond to the Motion, both of which I granted, at least in part. ECF 32; ECF 34. Plaintiff filed her opposition (ECF 35) two and a half months after the filing of the Motion, along with several exhibits. The government replied. ECF 38.

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion.

I. Background^[3]

A. Factual Background

Ms. Smith, a “Black, African-American” woman, has worked for DOD for fourteen years. ECF 1, ¶¶ 9, 10. At the relevant times, she worked as an “Information Technology . . . Specialist” in the “Research, Development, and Engineering Command (RDECOM), ” located at the Aberdeen Proving Ground. Id. ¶¶ 1, 10. In particular, it appears that she worked for the Department of the Army (“Army”), which is part of DOD. ECF 29-1 at 3; ECF 29-2.^[4]

The Complaint's “Statement of Facts” is divided into three sections that address different “claims” or events. Id. at 3-7. The factual allegations pertain mostly to events that took place in 2013, after Paul Brozovic became the “acting director” of RDECOM, id. ¶ 20, and plaintiff's “second level supervisor.” Id. ¶ 12. However, the facts are not set forth chronologically. I shall recite the facts in a manner generally consistent with the Complaint.

The Complaint “incorporates any and all information already alleged in [plaintiff's] EEO investigative file.” Id. ¶ 63; see id. ¶¶ 69, 73. Presumably, “EEO” refers to equal employment opportunity. However, plaintiff did not explain the nature of her EEO investigative file, nor did she append any EEO exhibits to the Complaint. In addition, the Complaint contains only one vague allegation pertaining to retaliation. Specifically, plaintiff alleges that her “protected activities include[], but [are] not limited to, all of the instances so noted in Plaintiff's investigative EEO investigative file such as filing EEO complaints, and alleging discrimination, retaliation, and disparate treatment.” Id. ¶ 75.

I also note that in the government's reply, filed May 20, 2021, the government mentioned, for the first time, in a footnote, that plaintiff has filed a “separate federal case” with similar allegations. See ECF 38 at 4 n.1. But, the government did not provide the case name or case number. As a result, the Court searched for the case, and determined that it is assigned to Judge Deborah Boardman. See Smith v. Esper, DLB-18-3844 (“Smith I”).^[5] That suit was filed in December 2018, about six months before suit was filed in this case. Id., ECF 1. I discuss the import of Smith I, infra.^[6]

1.

First, the Complaint addresses “Claim A. Work Station Movement.” Id.at 3.

The Complaint implies that in January 2013, after Mr. Brozovic became acting director of RDECOM, he moved into an office adjacent to the one occupied by plaintiff. See id. ¶¶ 19-21. In February 2013, Mr. Brozovic “notified the union that he intended to direct [plaintiff] to move because of confidentiality concerns, ” noting that sound traveled freely between his office and plaintiff's. Id. ¶ 21.

On March 18, 2013, Mr. Brozovic directed plaintiff “to move” her “desk” to a different office by March 29, 2013. Id. ¶ 23. Mr. Brozovic “stated that the purpose of the move was supervisor confidentiality and being overheard.” Id. ¶ 25. However, “Marlene Herget, a white female, ” also occupied an office “adjacent to the one occupied by supervisors.” Id. ¶ 26. Plaintiff seems to imply that Ms. Herget was not moved.

Further, plaintiff takes issue with the office to which she was moved, “Room 216B.” Id. ¶ 23. For one, “[t]hree other offices with available space, all occupied by white males, were bypassed and [plaintiff] was placed in an office that seemed to segregate minorities from white occupants.” Id. ¶ 24. In addition, the “move placed [her] in an open area with non-IA personnel.” Id. In the Complaint, “IA” refers to “Information Assurance.” Id. ¶ 18. The Complaint implies that plaintiff was a member of the IA team. See id. According to plaintiff, a change in office presented “serious Privacy Act, sensitivity, and operational security concerns.” Id. ¶ 27.

Over the following weeks, Ms. Smith “sent correspondence to [her] chain of command . . . strenuously objecting to the move ....” Id. She wrote to Mr. Brozovic's apparent superiors, including Colonel Kenneth Tarcza, “RDECOM Chief of Staff.” Id. ¶ 14; see id. ¶¶ 27, 31. Mr. Brozovic twice admonished plaintiff for doing so and threatened to discipline her. Id. ¶¶ 29, 31.

The section of the Complaint concerning the work station move ends with the following line: “[Were there any tangible impacts of having moved?]” Id. ¶ 32.

2.

The second section of the Complaint's narrative is titled “Claim B: Denial of Temporary Promotion to IT Specialist GS-2210-13.” Id. at 4.

As of the “Fall of 2012, ” Ms. Smith was the “sole [remaining] member of the Information Assurance team.” Id. ¶ 33. She was “placed on orders as Acting IAM by Dr. Nathaniel Buchheit, ” whose position is not specified. Id. ¶ 34. “IAM” refers to “Information Assurance Manager.” Id. ¶ 36.

In January of 2013, plaintiff submitted a request to Colonel Tarcza for a “temporary promotion to GS-2210 13 and consideration for permanent promotion to GS-2210-13 as the . . . [IAM] . . . or management reassignment to the 13/14 IAPM position.” Id. The Colonel promptly responded, requested “supporting information, ” and indicated that the request would be handled by “the workforce management office.” Id. ¶ 37. In late March 2013, plaintiff provided Colonel Tarcza with the requested documentation. Id. ¶ 39. However, Colonel Tarcza redirected plaintiff to Mr. Brozovic, “mildly implying [that plaintiff] had erroneously by passed [sic] the chain of command.” Id. ¶ 40. In late April 2013, Mr. Brozovic told plaintiff “to make an appointment with a Human Resources point of contact regarding her promotion.” Id. ¶ 42.

During the ensuing “few months, ” plaintiff received “varying, contradictory instructions regarding the . . . overall process.” Id. ¶ 43. She asserts: “I provided all items for the desk audit but the Privacy Officer documents despite being swamped as the sole individual in a four-person office.” Id. ¶ 44 [sic].

3.

Last, plaintiff alleges facts pertaining to “Claims C and D. Work Schedule Change Denial and Leave Restriction.” Id. at 6.

In August 2011, Ms. Smith was involved in “a serious car accident” that resulted in “significant injuries.” Id. ¶ 45. In the fall of 2011, she arranged with her supervisor at the time for a flexible work schedule, under which she was permitted to arrive at work up to one hour after the “official start time” of 8:30 a.m. Id. ¶ 46. But, plaintiff was also required to take sick leave for any time missed after 8:30 a.m. Id. She abided by this agreement. Id. ¶ 47.

However in early February 2013, plaintiff “requested . . . to . . . get onto a regular work schedule [to] refrain from using [her] sick leave.” Id. ¶ 49. It seems that plaintiff desired formal approval of a flexible or alternative work schedule. See id. ¶¶ 49, 54. She alleges that “others were allowed” such schedules, including an “Asian female.” Id. ¶ 54. Fu...