Weng v. Scalia

KARIN WENG, Plaintiff, v. EUGENE SCALIA, Secretary, U.S. Department of Labor, Defendant.

CASE NO. 1:15-cv-00504-BJR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 8, 2020

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMLAINT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Before the Court is Defendant Eugene Scalia's Motion for Summary Judgment, submitted in his capacity as Secretary of the U.S. Department of Labor ("DOL").¹ Dkt. No. 72. The Court previously issued an order granting in part and denying in part a motion by Defendant for judgment on the pleadings and denying Plaintiff's cross-motion for partial judgment on the pleadings. Dkt. No. 60. Defendant now seeks summary judgment on Plaintiff's claims that survived the previous Order. Along with her response to the motion, Plaintiff submitted a Motion for Leave to File a Third Amended Complaint. Dkt. No. 78; see also Dkt. No. 78-1 (proposed Third Amended Complaint). Having reviewed the motions, the oppositions thereto, the record of the case, and therelevant legal authorities, the Court will deny the Motion for Leave to File Third Amended Complaint and grant the Motion for Summary Judgment. The reasoning for the Court's decision follows.

II. BACKGROUND

A. Factual Background

Plaintiff is female and of Asian ancestry having been born in Taiwan. Dkt. No. 72-1 at ¶ 1 (Defendant's Statement of Undisputed Material Facts); see also Dkt. No. 60 at 6-9 (Court's previous Order providing facts of the case). Throughout the course of this matter, she has appeared before the Court pro se. She is a graduate of Yale College and Georgetown University Law School. Dkt. No. 72-1 at ¶ 2. From 1995 to March of 2012, she was employed by DOL's Employee Benefits Security Administration in the Office of Exemption Determinations as an Employee Benefits Law Specialist. Id.

The dispute at the heart of this matter addresses Plaintiff's dismissal from the DOL. Even before the process that lead to her termination, however, Plaintiff claims she was subject to harassment and discrimination based on her race, gender, and national origin. See Dkt. No. 38 at ¶¶ 34-37, 148, 152-53, 156-58 (Second Amended Complaint). She also claims she was subject to retaliation based on her involvement as a witness for two female coworkers when they filed Equal Employment Opportunity ("EEO") complaints. Id. at ¶¶ 40-41. This harassment and retaliation, Plaintiff claims, caused great stress leading to a diagnosis of post-traumatic stress disorder, depression, and anxiety, for which Plaintiff also alleges DOL failed to accommodate. Id. at ¶¶ 43-44, 46-47.

Based on these hardships, Plaintiff initiated numerous dispute resolution procedures,including through both an EEO statutory procedure and a negotiated procedure established by the collective bargaining agreement between her union, the American Federation of Government Employees, Local No. 12, AFL-CIO, and DOL. Dkt. No. 72-1 at ¶ 5. As the Court explained in its previous Order, federal employees who feel they have been subject to discrimination can address their accusations in either a statutory procedure initiated by filing an EEO complaint with their agency or by filing a grievance through a negotiated union procedure.² See Dkt. No. 60 at 2-3. Plaintiff, for example, filed at least seven EEO complaints based on working conditions primarily between February 2006 and April 2009. Based on these complaints, Plaintiff filed suit in this Court. See Weng v. Solis, 10-cv-2051 (D.D.C. closed Dec. 4, 2013). The parties settled the suit in November 2013. See id. at Dkt. No. 45 (Stipulation of Settlement and Dismissal). This earlier case is separate from the case at hand, the distinction being important as Defendant claims that many of the acts Plaintiff here complains were resolved by the previous settlement.

While litigating her previous EEO complaints and prior to the settlement, Plaintiff claims the harassment at her workplace continued. See Dkt. No. 38 at ¶ 45. At this time, Eric Raps was her first-line supervisor and Lyssa Hall was her second-line supervisor. Dkt. No. 72-1 at ¶ 4. On April 15, 2011, Mr. Raps conducted Plaintiff's mid-year review for Fiscal Year 2011. Id. at ¶ 9. During this meeting, Mr. Raps informed Plaintiff that her performance was at an unacceptable level for four critical elements of her position. Id.³

Based on this negative review, DOL placed Plaintiff on a Performance Improvement Plan ("PIP"). Dkt. No. 72 at 4. Plaintiff was given an opportunity to provide comments on a draft PIP before it was finalized. See id. at 5; Dkt. No. 72-1 at ¶ 11. On July 15, 2011, Mr. Raps issued a formal PIP and accompanying memorandum. Dkt. No. 72-1 at ¶ 12; see also Dkt. No. 72-2 (Performance Improvement Plan Memorandum). The PIP was to be effective for 90 days, or from July 18, 2011 to October 17, 2011, but was extended through October 31, 2011. Dkt. No. 72-1 at ¶ 12. Plaintiff filed grievances challenging both the propriety of the PIP and its extension but the parties agree that these grievances are not part of the present suit, although Plaintiff claims she may refer to them as "background in support" of her current claims. Id. at ¶ 16; Dkt. No. 76-2 at ¶ 16.

According to her supervisors, Plaintiff failed to sufficiently improve during the PIP timeframe. On January 6, 2012, Mr. Raps issued a Notice of Proposed Removal, which documented the areas in which Mr. Raps felt Plaintiff failed to demonstrate an acceptable level of job performance. Dkt. No. 72-1 at ¶ 18; Dkt. No. 72-3 (Proposal to Remove for Unacceptable Performance Memorandum). The Notice also provided Plaintiff an opportunity to respond to its conclusions, which she did both orally and in writing. Dkt. No. 72-1 at ¶¶ 36-38; Dkt. No. 72-6 (Oral and Written Reply of Karin Weng, February 10, 2012). As part of her replies, Plaintiff claimed that her previously diagnosed stress-related medical conditions qualified her for disability retirement and that she was entitled to submit medical documentation of the condition. Dkt. No. 72-1 at ¶¶ 39-40; Dkt. No. 72-6 at 18-19; id. at 55. She claims that DOL did not consider the former and did not provide her an opportunity to submit the latter. Dkt. No. 38 at ¶¶ 135, 138.

On March 7, 2012, Ms. Hall issued a Decision on Proposed Removal, affirming Mr. Raps'proposal to remove Plaintiff. Dkt. No. 72-1 at ¶¶ 41, 50; Dkt. No. 72-7 (Decision on Proposed Removal). The Decision stated that Plaintiff's removal would be effective March 9, 2012. Dkt. No. 72-7 at 5. On March 9, Plaintiff sent an email purporting to resign in lieu of removal. Dkt. No. 72-1 at ¶ 51; Dkt. No. 72-9 (Resignation in Lieu of Removal Email). Defendant has long claimed this email negated Plaintiff's termination, but this Court has already established that Plaintiff was effectively terminated prior to the sending of this email. See Dkt. No. 60 at 20-21.⁴

On March 13, 2012, Plaintiff submitted a grievance based on her termination and the events leading up to it. Dkt. No. 72-1 at ¶ 51; Dkt. No. 72-11 (Grievance). The matter proceeded to arbitration, with the arbiter ruling that he did not have jurisdiction over the dispute because, in essence, Plaintiff had quit and not been terminated based on her March 9 email. Dkt. No. 38 at ¶ 8. Plaintiff filed an appeal with the Merit Systems Protection Board ("MSPB"), which was docketed as No. CB 7121-13-0180-V-1. Id.

As mentioned supra, Plaintiff at this time was in the course of litigating her former complaints against the DOL in the previous case before this Court. In November of 2013, the parties came to a settlement in that case, which carved out Plaintiff's appeal to the MSPB pursuant to her Grievance. Dkt. No. 72-1 at ¶¶ 57-58; Weng, 10-cv-2051, Dkt. No. 45 at 6 (Stipulation ofSettlement and Dismissal stating that "nothing in this Stipulation shall affect Plaintiff's ability to pursue any claims that she has currently pending that are the subject of any of the following:" and then lists "(iii) ARBL-L12-12-29, on appeal to the [MSPB] as Request for Review, CB 7121-13-0180-v-1 (arbitrability of 3/9/2012 performance-based discharge)"). On August 28, 2014, the MSPB administrative judge issued a recommendation that the MSPB dismiss Plaintiff's appeal for lack of jurisdiction based on voluntary resignation. Dkt. No. 72-12 (MSPB Initial Decision). On March 12, 2015, the MSPB adopted this decision in a final order. Dkt. No. 72-12 (MSPB Final Order).

B. Procedural History

On April 7, 2015, Plaintiff filed the present lawsuit. Dkt. No. 1. Her Second Amended Complaint advances four causes of action: Count I for Retaliation 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 Rehabilitation Act of 1973, 29 U.S.C. § 749(a) ("Rehabilitation Act"), and Counts II, III, and IV for discrimination based on race, national origin, and sex, respectively, in violation of Title VII. Dkt. No. 38 at ¶¶ 163, 168, 173. In April of 2019, Defendant moved for summary judgment or, alternatively, for judgment on the pleadings to dismiss all of the claims in the Second Amended Complaint. Dkt. No. 41. Plaintiff responded and included a cross-motion for partial judgment on the pleadings or, alternatively, summary judgment. Dkt. No. 47.

On October 31, 2019, the Court issued an order granting in part and denying in part Defendant's motion and denying Plaintiff's cross-motion. Dkt. No. 60. Several elements of this order are worth recapping as relevant to the current motion. First, the Court determined that it was appropriate to analyze the motion under Federal Rule of Civil Procedure ("FRCP") 12(c),judgment on the pleadings, leaving room for the current motion under FRCP 56 for summary judgment. Id. at 9. Second, the Court ruled that Plaintiff had exhausted her administrative remedies by bringing her Grievance through to a final order by the MSPB. Id. at 11-13. Defenda...