Toomer v. Esper, No. 11-cv-2216 (EGS)

464 F.Supp.3d 157

Mirlin S. TOOMER, Plaintiff,

v.Mark T. ESPER,¹ in his official capacity as Secretary of Defense, Defendant.

No. 11-cv-2216 (EGS)

United States District Court, District of Columbia.

Signed May 26, 2020

Donald M. Temple, Law Offices of Donald M. Temple, Washington, DC, for Plaintiff.

Jeremy S. Simon, William Mark Nebeker, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

Plaintiff Mirlin S. Toomer ("Ms. Toomer"), an African-American woman and a former employee of the United States Department of Defense's National Geospatial-Intelligence Agency ("NGA"), brought this action against the United States Secretary of Defense (the "Secretary") under Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e, et seq. , and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. On July 19, 2017, this Court issued a Memorandum Opinion and separate Order adopting Magistrate Judge G. Michael Harvey's Report and Recommendation ("R & R"), and granting summary judgment in favor of the Secretary. See Toomer v. Mattis ("Toomer II "), 266 F. Supp. 3d 184, 190 (D.D.C. 2017) ; see also Toomer v. Carter ("Toomer I "), No. 11-cv-2216, 2016 WL 9344023, at *1 (D.D.C. Mar. 24, 2016).

Pending before the Court is Ms. Toomer's Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b). Upon careful consideration of the motion, the response and reply thereto, the applicable law, and the entire record herein, the Court DENIES Ms. Toomer's Motion for Relief from Judgment.

I. Background

The Court assumes the parties’ familiarity with the background in this case, which is set forth in greater detail in the prior opinions. See Toomer II , 266 F. Supp. 3d at 191 (incorporating by reference Magistrate Judge Harvey's thorough recitation of the facts); see also Toomer I , 2016 WL 9344023, at *1-*11. The Court will briefly summarize the facts relevant to the instant motion, and then set forth the procedural background.

A. Factual Background

Ms. Toomer, an African-American female over the age of forty, worked as an Imagery Analyst at NGA. Toomer I , 2016 WL 9344023, at *4. In January 2010, Ms. Toomer sponsored Matthew Esteves ("Mr. Esteves"), a white male, who was a new NGA employee. Id. Diana Stiger ("Ms. Stiger"), a white female, supervised them in her role as NGA's branch chief. Id. Ms. Toomer referred to her mentee, Mr. Esteves, as "Pumpkin." Toomer II , 266 F. Supp. 3d at 202 (Ms. Toomer to Mr. Esteves: "If you continue to ignore me then I am going to come over there an[d] smooch you until you acknowledge me!").

As their friendly mentor-mentee relationship soured, Ms. Toomer began the process of filing a complaint with the Equal Employment Opportunity ("EEO") office in May 2010. Toomer I , 2016 WL 9344023, at *4. On May 14, 2010, Ms. Toomer lodged an informal discrimination claim with Ms. Stiger, alleging that Mr. Esteves called her names and threatened to cut her hair. Id. Ms. Stiger's investigation revealed that Mr. Esteves called Ms. Toomer a "dummy," and that Ms. Toomer engaged in the banter. Id. Later, Ms. Toomer voluntarily withdrew her claim. Id. And Ms. Stiger issued a letter of caution to Mr. Esteves, requiring him to attend respect-in-the-workplace training. Id. at *5. Mr. Esteves attended the training. Id. Based upon the human resources department's recommendation and Ms. Toomer's failure to professionally communicate with her colleagues, Ms. Stiger also required Ms. Toomer to attend a respect-in-the-workplace training course. Id. Ms. Toomer failed to do so. Id.

In May 2010, Ms. Toomer's mid-year performance review became available on NGA's human resources computer software. Id. at *4. Ms. Toomer's review, which was prepared by Ms. Stiger in early 2010, identified several performance deficiencies, and it stated that a Performance Improvement Plan ("PIP") was under development to address the deficiencies. Id. Before issuing the PIP, Ms. Stiger received complaints from Ms. Toomer's colleagues that Ms. Toomer was having a loud telephone conversation at her workstation on May 17, 2010. Id. at *5. Unbeknownst to Ms. Stiger at that time, Ms. Toomer had a loud telephone conversation with her EEO representative on May 17, 2010 regarding her complaint about Mr. Esteves. Id . On June 17, 2010, Ms. Stiger issued a letter of reprimand to Ms. Toomer for the telephone conversation because employees were prohibited from having loud, disruptive conversations. Id.

On June 3, 2010, Ms. Toomer took unscheduled leave without Ms. Stiger's approval. Id. While Ms. Toomer contacted another supervisor regarding her absence, Ms. Toomer failed to follow the agency's policy requiring her to contact Ms. Stiger or leaving her a voicemail message. Id. A record of Ms. Toomer's leave shows that it was approved, and that Ms. Stiger reiterated the sick-leave policy in the record. Id. In response, Ms. Toomer alleged that a white male employee was not disciplined for a similar violation. Id. When Ms. Stiger issued a letter of reprimand, dated June 17, 2010, to Ms. Toomer, Ms. Stiger reiterated that Ms. Toomer was required to attend the respect-in-the-workplace training course. Id. Because Ms. Toomer refused to attend the course, Ms. Toomer received a one-day suspension for insubordination. Id.

On June 8, 2010, Ms. Toomer approached Ms. Stiger to request the removal of an action figure, claiming that it was offensive. Id. at *6. Representing the mythical creature from the wild, the action figure was a "Bigfoot" doll. Id. at *5. "The action figure was brown in color, made of hard plastic, had reticulating arms and legs, had fur engraved in the plastic ..., and was approximately six to eight inches in length." Id. The doll was sold in a box bearing the name "Bigfoot" in large letters, and it entered NGA as part of a holiday gift exchange in either December 2008 or December 2009. Id. One NGA employee—a white male with a full beard whose nickname was "Bigfoot"—possessed the action figure until his departure from NGA. Id. But it remained on display in various positions within NGA, including on the top of a cubicle cabinet inside the box and later tangled in web-like strings on a cabinet above the desk of one of Ms. Toomer's colleagues. Id. at *6.

Between June 8, 2010 and June 23, 2010, the "Bigfoot" doll was tightly wrapped—as if mummified—by a thin white cord from its ankles to its chest, with additional strands wrapped around its neck and arms. Toomer II , 266 F. Supp. 3d at 194. And the doll hung in the air from a cardboard panel on a cabinet above the desk of Tom Ryan ("Mr. Ryan"), one of Ms. Toomer's colleagues. Toomer I , 2016 WL 9344023, at *6. The panel resembled a men's bathroom door, which "was created in silent protest of the perennially malfunctioning men's bathroom in the office." Id. In response to Ms. Toomer's request for removal of the "Bigfoot" doll, Ms. Stiger allegedly stated: "It is not offensive to me and it is not a monkey. It is an ape. You don't know the difference? Do you think of yourself as a monkey?" Id. But Ms. Stiger denied that conversation. Id.

On June 23, 2010, Ms. Toomer notified NGA's security team, and a security officer took photographs of the doll. Id. at *7. Ms. Toomer sent a letter, dated July 10, 2010, to an EEO counselor, raising the June 17, 2010 letter of reprimand and the issue of the "Bigfoot" doll. Id . By June 30, 2010, Ms. Stiger had completed Ms. Toomer's PIP. Id. at *8. Ms. Toomer was then reassigned to a different branch within NGA under the direction of a different supervisor. Id. In turn, the PIP completed by Ms. Stiger was no longer in effect because Ms. Toomer was no longer under Ms. Stiger's supervision. Id.

On September 9, 2010, Ms. Toomer inadvertently received an e-mail intended for NGA's senior-level management with an attached spreadsheet containing performance ratings for NGA employees. Id. The sender informed Ms. Toomer that the e-mail contained sensitive and confidential personal information, consisting of materials that were protected under the Privacy Act. Id. On the same day, the deputy director, Mark Dial ("Mr. Dial"), instructed Ms. Toomer to permanently delete the e-mail and destroy any hard copies. Id. Ms. Toomer, however, refused to do so. Id.

Mr. Dial then met with Ms. Toomer, reiterating that she must delete the e-mail. Id. Ms. Toomer claimed that Mr. Dial exhibited disrespectful behavior during the meeting, including: (1) yelling at her to shut the door and sit down; (2) threatening to terminate her employment; and (3) slamming his hands on the table. Toomer II , 266 F. Supp. 3d at 199. Instead of deleting the e-mail, Ms. Toomer forwarded to a colleague the e-mail that contained the Privacy Act materials, and the colleague printed two hard copies for Ms. Toomer. Toomer I , 2016 WL 9344023, at *8. Ms. Toomer took the hard copies from NGA to her home. Id.

From September 10, 2010, to September 21, 2010, Ms. Toomer did not report to work, and she did so without authorization. Id. at *8-*9. Mr. Dial sent a memorandum to Ms. Toomer's home address on September 14, 2010 with certain directives: (1) directing her to return to work with all hard copies of the Privacy Act materials; (2) informing her of the continuing Privacy Act violation; and (3) warning her that failure to comply with his directives could result in termination. Id. at *8. Ms. Toomer asserted claims in a letter, dated September 13, 2010, to an EEO counselor regarding the reprimand letter, doll, and the denial of training. Id. at *9. Meanwhile, after receiving Mr. Dial's September 14, 2010 memorandum, Ms. Toomer spoke with him over the phone rather than returning to work on September 17, 2010. Id. Eventually, Ms. Toomer returned to work. Id.

On September 22, 2010, Ms. Toomer briefly met with Mr. Dial and a human resources representative, Tom Guercio ("Mr. Guercio"), in Mr. Dial's office...