Opinion
Civil Action No. 1:21-cv-1377 (AJT/WEF)
2022-10-19
Lisa BARNHILL, Plaintiff, v. Merrick GARLAND, U.S. Attorney General, Defendant.
Mary E. Kuntz, Richard Randolph Renner, Pro Hac Vice, Stephen Barkai Pershing, Kalijarvi, Chuzi & Newman & Fitch, P.C., Washington, DC, for Plaintiff. Yuri Fuchs, Rebecca S. Levenson, U.S. Attorney's Office, Alexandria, VA, for Defendant.
Mary E. Kuntz, Richard Randolph Renner, Pro Hac Vice, Stephen Barkai Pershing, Kalijarvi, Chuzi & Newman & Fitch, P.C., Washington, DC, for Plaintiff. Yuri Fuchs, Rebecca S. Levenson, U.S. Attorney's Office, Alexandria, VA, for Defendant. ORDER Anthony J. Trenga, Senior United States District Judge
In her one-count Complaint, Plaintiff Lisa Barnhill ("Plaintiff"), a former Group Supervisor for the Drug Enforcement Administration, sues Merrick Garland ("Defendant"), in his official capacity as U.S. Attorney General, under Title VII of the Civil Rights Act of 1964 for sex and race discrimination, retaliation, and hostile work environment arising out of her employment with the DEA. The Defendant moves to dismiss the Complaint in its entirety. [Doc. No. 12] (the "Motion"). For the reasons stated below, the Motion is GRANTED as to Plaintiff's sex and race discrimination claims and GRANTED in part and DENIED in part as to her retaliation and hostile work environment claims.
In her opposition, Plaintiff alleges that the Defendant improperly submitted the EEOC Administrative Judge's decision. [Doc. No. 18], at 12-13. Ordinarily, a court may not consider documents outside the four corners of the complaint unless the external documents are "integral to and explicitly relied on in the complaint" and neither party disputes the authenticity of the external documents. See Zak v. Chelsea Therapeutics Int'l, Ltd., 780 F.3d 597, 606-07 (4th Cir. 2015). Regardless of the propriety of attaching the document, see Mustafa v. Iancu, 313 F. Supp. 3d 684, 687 (E.D. Va. 2018) (permitting defendant to attach EEOC complaint and report to the motion to dismiss because those documents were integral to the plaintiff's claims), the Court does not rely on the EEOC decision in reaching its decision.
I. BACKGROUND
Plaintiff worked for the Department of Justice's Drug Enforcement Administration ("DEA" or "Agency") for over 33 years, from July 17, 1988, through October 23, 2021. [Compl. ¶ 6.] She is a Caucasian female. [Id.] In April 2010, she became the Agency's Group Supervisor ("GS") for the Diversion Group in Little Rock, Arkansas. [Id. ¶ 13.] In that role, she supervised Diversion Investigators ("DI") in a program that investigates the diversion of pharmaceutical controlled substances into the illicit market. [Id.] DEA calls this office the Little Rock District Office, or LRDO. [Id.]
While working in Little Rock, Plaintiff's immediate supervisor was Joseph Shepherd, the Assistant Special Agent in Charge ("ASAC") based in New Orleans. [Id. ¶ 14.] Shepherd is an African American male. [Id.] Shepherd's supervisor was Keith Brown, the Special Agent in Charge ("SAC") of the New Orleans Field Division ("NOFD") of DEA, which includes Louisiana, Arkansas, Mississippi, and Alabama. [Id.] Each Agency District office has its own ASAC, but the Diversion Program GS reports to the Diversion Program Manager or ASAC in the Division office and not to the ASAC in the District Office. [Id. ¶ 15.] David Downing served as the LRDO ASAC from 2014 to 2016. [Id. ¶ 16.] Downing is an African American male. [Id.]
In January 2013, ASAC Shepherd was temporarily assigned to be the Acting SAC (A/SAC). [Id. ¶ 22.] Shepherd appointed Plaintiff to be the Acting Group Supervisor (A/GS) over the Jackson, Mississippi, District Office (JDO) in addition to maintaining her regular duties as GS for LRDO. [Id.] On January 9, 2014, Plaintiff received notice that she had been relieved of her duties as A/GS of JDO. [Id. ¶ 26.] Plaintiff did not receive this notice from her supervisor, but rather from a male subordinate employee, DI Sean Baudier. [Id.] When Plaintiff asked Shepherd to confirm that he had told her male subordinate to tell her that her supervision of JDO was ending, Shepherd recognized that he deviated from normal practice by telling her, "Yeah, my bad. It shouldn't have gone down that way." [Id.]
In November 2013, probationary DI Pamela Lee, an African American, reported to Plaintiff's diversion group in LRDO. [Id. ¶ 24.] Plaintiff quickly discovered that DI Lee was struggling with her job. [Id. ¶ 25.] Plaintiff provided her with individual training, "go-by" templates for reports, and in-person supervision in the field. [Id.] Yet, DI Lee continued to have difficulty writing reports correctly and performing other required duties. [Id.]
Plaintiff reported DI Lee's performance problems to Shepherd. [Id. ¶ 27.] In June 2014, Shepherd said that he was placing DI Lee on a preliminary performance improvement plan ("Pre-PIP"), and he denied DI Lee's promotion until her performance improved. [Id.] In September 2014, Shepherd told Plaintiff he was taking DI Lee off the Pre-PIP, though she still had difficulties performing her duties. [Id. ¶ 28.] Shepherd told Plaintiff that "these people need their jobs"; Plaintiff understood the reference to "these people need their jobs" to reflect Shepherd's favoring of African American employees. [Id. ¶ 29.]
Shepherd, at some point, told Plaintiff that because she was not a mother, she did not have the "tools" in her "toolbox" to handle her subordinates. [Id. ¶ 32.] He told Plaintiff that if she acted too much as "the hammer," she could become "the nail." [Id.] Plaintiff understood this statement to mean that Shepherd did not want Plaintiff to object or complain about anything Shepherd said or did. [Id.]
In June 2015, ASAC Shepherd ordered Plaintiff-without explanation-to cease having any contact with ASAC Downing, the other African American ASAC. [Id. ¶ 33.] Plaintiff asked Shepherd and Downing for a meeting to resolve any differences, but Downing refused. [Id.] Also without explanation, Shepherd told Plaintiff (herself a Group Supervisor) that she would no longer attend Downing's weekly Group Supervisors meetings. [Id.] Plaintiff has never been given a reason for her exclusion from these meetings, which materially impeded her work and ostracized her from the other managers in the office. [Id.] All the other managers in the office were male. [Id.]
Shepherd had no difficulty with Plaintiff's reports of her White subordinates' performance problems, but he refused to listen to her reports of her Black subordinate DI Lee's performance problems. [Id. ¶¶ 34-35.] By June 2015, Plaintiff made clear to Shepherd that she would not give DI Lee preferential treatment because of Lee's race. [Id. ¶ 36.] Plaintiff would require Lee to provide acceptable performance and be honest about Lee's performance in supervisory meetings and performance ratings. [Id.]
On June 29, 2015, Shepherd notified Plaintiff that he was going to subject Plaintiff to a "Management Review" to determine if she maintained a coercive and hostile work environment. [Id. ¶ 37.] The Agency's normal practice for Management Reviews requires approval by an SAC. [Id. ¶ 38.] Once approval is received, reviewers are appointed, and the review is conducted shortly thereafter. [Id.] Shepherd did not follow this process, deciding to subject Plaintiff to a Management Review without approval from the SAC. [Id. ¶ 39.] However, sometime between July and September 2015, ASAC Shepherd abandoned his plan for a Management Review of Plaintiff. [Id. ¶ 40.]
On or about September 22, 2015, Plaintiff commenced the process to raise her claims of unlawful discrimination by contacting the Agency's EEO office to request informal counseling for her concerns. [Id. ¶ 41.] On September 25, 2015, Plaintiff agreed to participate in the Agency's Alternative Dispute Resolution (ADR) program. [Id. ¶ 42.] The ADR process includes participation from Agency officials to attempt a resolution of the informal complaint before it becomes a formal investigation. [Id.]
It is the Agency's normal policy and practice to conduct annual performance ratings of its employees. [Id. ¶ 43.] If a supervisor notices that an employee's performance is unacceptable, that supervisor is to meet with the employee during the performance year to explain the deficiencies and give the employee an opportunity to improve before the end of the performance year. [Id.] On or about October 27, 2015, Shepherd downgraded Plaintiff's performance rating to an overall "successful," rating her as "unacceptable" on 3 of 7 elements. [Id. ¶ 44.] However, because Shepherd failed to document any work or meetings with Plaintiff to support his claim of deficient performance, his supervisor required him to upgrade the elements he had rated "unacceptable" to "successful." [Id.] Plaintiff alleges that her actual performance for fiscal year 2015 was outstanding, including achieving numerous legislative accomplishments. [Id. ¶ 45.]
For that same performance year (2015), Plaintiff rated DI Lee's performance as "successful," which Plaintiff considered a fair rating for Lee's work that year. [Id. ¶ 46.] Shepherd, however, unilaterally changed DI Lee's performance rating to "excellent" without discussing either the change or Lee's performance with Plaintiff. [Id.] SAC Brown thereafter directed ASAC Shepherd to discuss the change with Plaintiff. [Id.] Shepherd initially could not identify any reasons for this change, but eventually cited one report that was well-prepared; Plaintiff replied that this particular report was written by Plaintiff, not Lee. [Id.] Shepherd nevertheless refused to revisit his upgraded evaluation of DI Lee's performance. [Id.] This was the second year in a row that Shepherd intervened to upgrade DI Lee's evaluation, an action he never undertook with any of Plaintiff's White subordinates. [Id.]
On November 6, 2015, SAC Brown received written notice that Plaintiff had commenced her EEO proceeding. [Id. ¶ 47.] Less than two weeks later, on November 17, 2015, SAC Brown commenced a Management Review of Plaintiff and her group, assigning two Agency officials to conduct the review. [Id. ¶ 48.] Those officials conducted interviews between November 17, 2015 and December 1, 2015, but did not honor Plaintiff's request to interview several employees. [Id.]
On and around November 20, 2015, SAC Brown relieved Plaintiff of her supervisory responsibilities and issued her a "Temporary Duty Reassignment" to the New Orleans Division Office. [Id. ¶ 49.] This "temporary reassignment" required Plaintiff to drive from Little Rock to New Orleans each Monday, stay overnight all week in New Orleans, and travel back to Little Rock on Friday, over 800 miles roundtrip every week. [Id.] Due to holidays and scheduling issues, some of these trips consisted of one day of travel to New Orleans, one day in the NOFD, and then another day driving back to Little Rock. [Id.] Brown, in the form of a memorandum, informed Plaintiff of the reasons for reassignment. [Id.] The memorandum stated in part that, "[t]his assignment will allow the time for completion of the recent management review, and allow me the time to determine what, if any, actions I will be taking as a result of the review." [Id.]
Brown referred to this temporary reassignment as "highway therapy," which would give Plaintiff time to think about what she had done. [Id. ¶ 50.] "Highway therapy" is a sarcastic colloquial term in the law enforcement community, referencing its punitive nature. [Id.] In connection with the highway therapy, Brown directed Plaintiff not to communicate with employees in LRDO. [Id. ¶ 51.] Shepherd told Supervisory Investigator Louis Lejarza that highway therapy "is what [Plaintiff] gets for being a hard head." [Id. ¶ 52.] It is a violation of the Agency's policies to use travel as a punishment. [Id. ¶ 53.] The highway therapy continued for three months, during which time Plaintiff was separated from her family and friends throughout each typical workweek. [Id. ¶ 54.]
On December 16, 2015, while Plaintiff was in New Orleans on "highway therapy," SAC Brown went to the LRDO and asked Pamela Lee, John Conner, and Marcy Hawthorne to file an EEO complaint against Plaintiff. [Id. ¶ 55.] Only Lee complied and filed such a complaint. [Id.]
In or around December 2015, Plaintiff applied for numerous available positions at the Agency—in St. Louis (Missouri), London (Kentucky), Albuquerque (New Mexico), Arlington (Virginia), and Kansas City (Missouri)—that offered opportunities for her to be promoted or improve her working conditions. [Id. ¶ 56.] Shepherd or Brown filled out the assessment questions on the applications, [id.], and they used these assessments to retaliate against Plaintiff for her protected activities, [id. ¶ 57]. Shepherd's and Brown's ratings and comments detracted from Plaintiff's applications and prevented her from being selected. [Id.] The Agency did not select Plaintiff for any of the vacancies for which she applied. [Id. ¶ 58.]
On January 12, 2016, the Agency officials assigned to conduct the Management Review of Plaintiff finished their report. [Id. ¶ 59.] The Management Review Report concluded that Plaintiff "engaged in vindictive, intimidating, and/or unprofessional conduct." [Id. ¶ 61.] It alleged that Plaintiff colluded with a subordinate to get another subordinate fired, held up promotions, prevented DI Lee from gaining work-related experience, targeted subordinates, had unprofessional nicknames for her subordinates, and was a poor supervisor for inexperienced personnel. [Id.] Plaintiff denies all those claims. [Id.] No Agency official discussed the results of this investigation or the proposed remedies for the LRDO with Plaintiff. [Id. ¶ 61.] The Management Review report also found that ASAC Shepherd contributed to issues by his poor supervision and ineffective attempts to address issues and called for a "clear chain of command." [Id. ¶ 63.]
Despite receiving the Management Review report on January 12, 2016, Brown did not end Plaintiff's highway therapy. [Id. ¶ 64.] In February 2016, the Agency summarily relieved Brown of his supervisory duties and reassigned him to headquarters with duties that were far less significant than those of a SAC. [Id. ¶ 65.]
Upon Brown's removal as SAC, Stephen Azzam began serving as SAC in NOFD. [Id. ¶ 66.] While he promptly ended Plaintiff's highway therapy, SAC Azzam still did not allow Plaintiff back in the LRDO office for an additional six months, and instead assigned her to work at a state agency's office. [Id.] This exclusion from the LRDO exacerbated Plaintiff's humiliation. [Id.]
In February 2016, Plaintiff applied to be the Agency's Diversion Program Manager (DPM) in Seattle, Washington. [Id. ¶ 68.] Plaintiff alleges that the Agency did not select her on account of her gender, race, and prior protected activity. [Id.] Instead, the Agency selected Ric Quintero even though he did not meet the requirements for tenure as a Group Supervisor or time in headquarters. [Id.]
In 2016 and again in 2019, Plaintiff applied to be the DPM in Denver. [Id. ¶ 69.] In 2019, the Agency selected an applicant who had not served the required amount of time in HQ. [Id. ¶ 77.]
The Agency investigated DI Lee's discrimination complaint but failed to honor Plaintiff's request to interview certain employees. [Id. ¶ 70.] Lee declined an evidentiary hearing on her complaint before the EEOC, and instead asked the Agency to issue its own Final Agency Decision (FAD). [Id. ¶ 71.] Before issuing its FAD, the Agency did not invite Plaintiff either to review the report of investigation or to rebut the allegations. [Id. ¶ 72.] The Agency issued its FAD, finding merit in Lee's allegation that Plaintiff had discriminated against her, imposed a five-day suspension on Plaintiff for engaging in that discrimination, and required her to take supplemental training on discrimination. [Id. ¶ 73.] Plaintiff alleges that she did not discriminate against Lee. [Id. ¶ 74.] The Agency also barred Plaintiff from promotion for a period of years. [Id. ¶ 76.]
The Complaint alleges that the Agency used numerous false reasons to justify its adverse treatment of Plaintiff, including that (1) Plaintiff asked to fire DI Pamela Lee; (2) highway therapy was not punishment; (3) highway therapy was necessary to protect the integrity of the Management Review; (4) Plaintiff discriminated against Lee; (5) Plaintiff's performance in 2015 was less than outstanding; (6) Plaintiff was vindictive, intimidating and unprofessional; (7) Plaintiff invented unprofessional nicknames for her subordinates; and (8) the applicants selected over Plaintiff were qualified under the Agency's requirements for promotion to GS-15. [Id. ¶ 80.] Plaintiff alleges that she suffered humiliation, emotional distress, and loss of professional reputation as a direct and proximate result of the adverse actions alleged in the Complaint. [Id. ¶ 81.]
II. LEGAL STANDARD
A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) should be granted unless the complaint "state[s] a claim to relief that is plausible on its face." United States v. Triple Canopy, 775 F.3d 628, 634 (4th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This "requires a plaintiff to demonstrate more than 'a sheer possibility that a defendant has acted unlawfully.' " Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). In considering a Rule 12(b)(6) motion, the Court must construe the complaint, read as a whole, in the light most favorable to the plaintiff and take the facts asserted therein as true. LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261, 264 (4th Cir. 2012).
The general pleading standard requires that the complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . [and that] give[s] the defendant fair notice of what the claim is and the grounds upon which it rests." Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (internal quotations omitted); see also Fed. R. Civ. P. 8(a)(2). Twombly established that the "plain statement" must "possess enough heft"—that is, "factual matter"—to set forth grounds for the plaintiff's entitlement to relief "that is plausible on its face." 550 U.S. at 557, 570, 127 S.Ct. 1955. The complaint must contain sufficient factual allegations that, taken as true, "raise a right to relief above the speculative level" and "across the line from conceivable to plausible." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (internal citations and quotations omitted). Put another way, the facial plausibility standard requires pleading of "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Robertson v. Sea Pines Real Estate Co., 679 F.3d 278, 287 (4th Cir. 2012) (internal quotations omitted). "A pleading that offers labels and conclusions[,] a formulaic recitation of the elements of a cause of action . . . [or] naked assertions devoid of further factual enhancement" will not suffice. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
Thus, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Walker v. Prince George's Cty., Md., 575 F.3d 426, 431 (4th Cir. 2009) (citations omitted); see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). Accordingly, in order to survive a Rule 12(b)(6) motion to dismiss, the complaint must present sufficient non-conclusory factual allegations to support reasonable inferences of the plaintiff's entitlement to relief and the defendant's liability for the unlawful act or omission alleged. Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011) (citations omitted).
III. ANALYSIS
Plaintiff alleges race and sex discrimination, retaliation, and hostile work environment based on her supervisors' criticism of her management of her subordinates, her exclusion from her office's Group Supervisors' meetings, a management review and temporary assignment away from her office during that review, a finding by the DEA's EEO office that Plaintiff had discriminated against a subordinate, the agency's decision to temporarily suspend Plaintiff from the agency, and decisions by geographically diverse offices of DEA not to select Plaintiff for a promotion. [Compl. ¶¶ 84, 87, 89.] Defendant moves to dismiss the Complaint, arguing that Plaintiff fails to put forth any nonconclusory factual allegations raising a reasonable inference that DEA officials took these actions out of discriminatory or retaliatory animus or that she suffered a hostile work environment because of these actions. [Doc. No. 13], at 1.
In order to survive a motion to dismiss, the plaintiff's factual allegations are not required to constitute a prima face case, however, they must be "enough to raise a right to relief above the speculative level." McCleary-Evans v. Md. Dep't of Transp., 780 F.3d 582, 585 (4th Cir. 2015) (finding district court erred by requiring plaintiff to plead facts establishing a prima facie case of discrimination to survive a motion to dismiss); see also Holloway v. Maryland, 32 F.4th 293, 298 (4th Cir. 2022) (same). Although a plaintiff "need not plead facts that constitute a prima facie case," the "framework may nonetheless be used to inform a court's evaluation of a plaintiff's allegations." Shomo v. Apple, Inc., 2015 WL 777620, at *4 (W.D. Va. Feb. 24, 2015) (citing Coleman v. Md. Ct. App, 626 F.3d 187, 190 (4th Cir. 2010); Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003)).
A. Discrete Act Discrimination Claims
Plaintiff contends that the Complaint alleges "numerous detailed facts that point to unlawful discrimination as motivating factors of her adverse treatment," for five different alleged discrete acts of discrimination. [Doc. No. 18], at 14. These acts include (i) restriction on plaintiff's access to office and staff, (ii) management review and temporary reassignment, (iii) performance evaluation, (iv) suspension, and (v) failure to promote. [Compl. ¶ 87.] Title VII of the Civil Rights Act provides that "personnel actions affecting [federal] employees . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). Defendant contends that Plaintiff's discrete act sex and race discrimination claims must be dismissed for failure to state a plausible claim because the Complaint is devoid of non-conclusory allegations supporting her claims that DEA officials were motivated by her sex and/or race, and instead seeks to rely solely on the allegation that, in some instances, the officials who made the decisions were of a different sex or a different race. [Doc. No. 13], at 2.
The Fourth Circuit has defined personnel actions and their private sector equivalent—adverse employment actions—as actions that constitute "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Abdelhamid v. Sec'y of the Navy, 525 F. Supp. 3d 671, 684 (E.D. Va. 2021) (quoting Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011)). Thus, for Plaintiff's discrete act discrimination claims to be actionable they must relate to personnel decisions that affect Plaintiff, and not just any action taken by Plaintiff's coworkers that occurs at the workplace. Id. For the reasons stated below, Plaintiff pleads no more than conclusory allegations and not facts that make plausible that the alleged discrete acts of discrimination were adverse employment actions imposed as a result of her sex or race.
1. Restrictions on Plaintiff's access to Office and Staff
Plaintiff's Complaint states that in June 2015, ASAC Shepherd ordered Plaintiff to stop attending ASAC's Downing's weekly Group Supervisor meetings, and further contends that such exclusion "materially impeded" her work and "ostracized her from the other managers in the office." [Compl. ¶ 33.]
The Complaint's allegations fail to support an inference that ASAC Shepherd chose to exclude Plaintiff from the meetings due to Plaintiff's race or gender. [Compl. ¶ 33.] The Complaint merely alleges that "Shepherd told Barnhill that she was not to attend ASAC Downing's weekly Group Supervisor meetings" and that Shepherd nor any other DEA official provided Plaintiff with a reason for "excluding her from these meetings." [Id.] Neither statement imputes any discriminatory motive on ASAC Shepherd. Additionally, the fact that Plaintiff was the sole female manager in the office does not, on its own, allow for a plausible inference that she was excluded from the meetings because of her gender. See McCleary-Evans 780 F.3d at 586. Similarly, Plaintiff's allegations regarding Shepherd's racial favoritism—namely (1) taking Plaintiff's African American subordinate off the Pre-PIP despite continuing performance issues; (2) refusing to listen to Plaintiff's concerns regarding that same subordinate; and (3) telling Plaintiff that "these people [African-Americans] need their jobs," [Compl. ¶¶ 28-29, 34-35]—do not support her claim that she was excluded from these meetings because of her race. Rather, those facts reflect that Sheppard's alleged conduct was the result of his perceived treatment of other employees.
Although Plaintiff alleges that, at some undefined point in time, ASAC Shepard told Plaintiff that "because she was not a mother, she did not have the 'tools' in her 'toolbox' to handle her subordinates," [Compl. ¶ 32], that alone does not allow for the reasonable inference that ASAC Shepard excluded Plaintiff because of her gender, especially where ASAC Sheppard is not alleged to have made that comment in connection with his decision to exclude Plaintiff from the meetings. Additionally, Plaintiff's allegation that she was relieved from her supervisory duties over the Jackson, Mississippi office through a male subordinate does not raise a plausible inference that Shepherd discriminated against Plaintiff due to her gender. [Compl. ¶ 26.]
In her opposition, Plaintiff argues that a jury "could infer" that Shepherd was "affected by stereotypes" that led him to discriminate against her. However, "mere possibility" is not the standard. In order to "survive a motion to dismiss, the complaint must 'state[ ] a plausible claim for relief' that 'permit[s] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.' " Coleman, 626 F.3d at 190 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). Plaintiff fails to allege facts that would allow the Court to draw a plausible inference that Shepherd excluded Plaintiff because of her race or gender.
Plaintiff also fails to plausibly allege that her exclusion from the meetings constituted a personnel action. See, e.g., James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004) (concluding that plaintiff's claim that "he was excluded from 'important meetings' " did not constitute an adverse action where the claim "lack[ed] specificity" and plaintiff "fail[ed] to further substantiate how the alleged exclusions, whatever they might have been, adversely affected him").
2. Management Review and Temporary Reassignment
From November 2015 to February 2016, SAC Brown conducted a Management Review of Plaintiff that included a "Temporary Duty Reassignment" to the New Orleans Division Office. [Compl. ¶¶ 48-49.] Since this temporary transfer required Plaintiff to complete substantial 800-mile roundtrips from Little Rock to New Orleans each week, the transfer plausibly constitutes a personnel action. See, e.g., Supinger v. Virginia, 167 F. Supp. 3d 795, 807-08 (W.D. Va. 2016) (holding that a transfer that required the plaintiff to complete a three-hour roundtrip daily commute, as opposed to the plaintiff's original 30-minute commute, constituted an adverse employment action). However, aside from the fact that SAC Brown is a male, the Complaint lacks any additional allegations that would allow for a plausible inference that SAC Brown ordered the transfer because of a discriminatory intent or motive. [Compl. ¶ 48]; McCleary-Evans 780 F.3d at 586. Without more, Plaintiff's allegation here is rendered implausible in light of an obvious alternative explanation: SAC Brown instituted the temporary duty assignment so as to allow for the "completion of the recent management review" into whether Plaintiff maintained a "coercive and hostile work environment" and to "allow [SAC Brown] time to determine what, if any, actions," he would take as a result of the review. [Compl. ¶ 49.] Accordingly, the Complaint fails to plausibly allege that Plaintiff was subjected to a Management Review and Temporary Reassignment on account of her race and/or gender.
3. Performance Evaluation
Plaintiff's Complaint also alleges discrete act discrimination on the part of ASAC Shepherd for his 2015 performance year review of Plaintiff. [Compl. ¶ 87.] The Complaint alleges that ASAC Shepherd downgraded Plaintiff's 2015 performance rating to an overall "successful," despite the fact that Plaintiff's actual performance for the 2015 was "outstanding." [Id. ¶ 44.] A downgraded performance evaluation on its own is not an adverse personnel action; but a downgraded performance evaluation could be an adverse personnel action in instances where the downgraded performance evaluation effects the "terms, conditions, and benefits of employment." James, 368 F.3d at 377; see also Abdelhamid, 525 F. Supp. 3d at 684. The Complaint does not link the downgraded performance evaluation to any material change in Plaintiff's employment; and, therefore, does not constitute an adverse personnel action actionable under Title VII. [Compl. ¶¶ 55-65]; James, 368 F.3d at 377. And, again, Plaintiff fails to plausibly allege that the Shepherd downgraded Plaintiff's performance rating because of a discriminatory animus.
Plaintiff, relying on Burlington Northern & Santa Fe R.R. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), argues that her performance rating claim is actionable even though it was subsequently changed. [Doc. No. 18], at 23. In White, the Plaintiff suffered discrimination that resulted in "a significant change in employment status," mainly a "37-day suspension without pay." White, 548 U.S. at 71, 126 S.Ct. 2405. Here, Plaintiff's initial poor performance rating is not alleged to have caused Plaintiff to lose pay or job responsibilities, or cause any other significant change in employment status, and, therefore, does not allege a personnel action. See, e.g., Altman v. McHugh, 2012 WL 1190271, at *17 (W.D. Va. April 9, 2012) ("In the Fourth Circuit, a negative performance evaluation alone, without any accompanying injury or change in the terms or conditions of employment, is insufficient to constitute a materially adverse employment action.").
4. Suspension
Although a suspension from pay and employment certainly amounts to a personnel action, since employment and compensation are integral to the terms, conditions, and benefits of employment, see, e.g., Spriggs v. Diamond Auto Glass, 242 F.3d 179, 190 (4th Cir. 2001), Plaintiff's suspension following DI Pamela Lee's allegation fails to plausibly allege facts that allow a reasonable inference of discrimination. For example, the Complaint does not allege who exactly decided to suspend Plaintiff but instead simply refers to "the Agency" as deciding to suspend plaintiff and that Plaintiff's suspension was "on account of her gender, race and protected activities." [Compl. ¶ 73.] These "naked assertion[s]" devoid of "further factual enhancement" is insufficient at the pleading stage. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Finally, her allegation is further rendered implausible by the Complaint's own admission that her suspension came only after the Agency issued a Final Agency Decision, which found "merit in [DI Lee's] allegation that [Plaintiff] discriminated against her." [Compl. ¶ 72.] Therefore, it is impossible to infer that a particular DEA official(s) acted with a discriminatory intent when deciding to suspend Plaintiff.
Moreover, Plaintiff fails to plausibly plead facts that would support a "cat's paw theory of liability." Chang Lim v. Azar, 310 F. Supp. 3d 588, 602 (D. Md. 2018).
5. Failure to Promote
Finally, Plaintiff alleges that various DEA decision makers failed to promote her to the three Diversion Program Manager ("DPM") positions that she applied for—one in Seattle in 2016, one in Denver in 2016, and another one in Denver in 2019. [Compl. ¶¶ 68-69.] The Complaint does not allege the races of the selected individuals and fails to identify the relevant decisionmakers, including their race and gender, thereby leaving the Court to speculate if and how the decisionmakers were biased. See McCleary-Evans, 780 F.3d at 583-84, 586 (dismissing discrimination claim even where plaintiff identified the decisionmakers and the selected applicants, including their race and gender, because "[o]nly speculation can fill the gaps in [plaintiff's] complaint"). Moreover, Plaintiff's own allegations undermine her claim. For instance, Plaintiff alleges that two of the three candidates selected over her for the DPM position lacked the prerequisite experience for the position. [Doc. No. 18], at 17. However, one of those two candidates, Kerry Hamilton, is a woman. [Compl. ¶ 77 ("The Agency hired Kerry Hamilton even though she had not served the required amount of time in HQ." (emphasis added)).] Plaintiff's allegation, therefore, that a female—a member of Plaintiff's protected class—was selected despite being underqualified renders implausible any claim that the Agency refused to promote Plaintiff because of her gender. There are other allegations included in the Complaint that further undermine the plausibility of Plaintiff's claim. In particular, the Complaint alleges that the Agency "barred [Plaintiff] from promotion for a period of years" following the conclusion of the investigation into DI Lee's EEOC discrimination complaint. [Doc. No. ¶ 76.] As such, the Court cannot find Plaintiff's discrimination claim based on failure to promote to be plausible.
Accordingly, Plaintiff's Title VII discrimination claims shall be dismissed for failure to state a claim.
B. Retaliation Claim
Title VII prohibits employers from "discriminat[ing] against any of [their] employees . . . because [the employees] ha[ve] opposed any practice made an unlawful employment practice by [Title VII], or because [the employees] ha[ve] . . . participated in any manner in an investigation." 42 U.S.C. § 2000e-3(a). The elements of a prima facie retaliation claim are: (1) engagement in a protected activity, (2) adverse employment action, and (3) a causal link between the protected activity and the employment action. See Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004). "In the context of element one of a retaliation claim, an employee is protected when she opposes 'not only . . . employment actions actually unlawful under Title VII but also employment actions [she] reasonably believes to be unlawful.' The Title VII violation may be complete, or it may be in progress." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (en banc) (alterations in original) (quoting E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005)).
Title VII does not specifically provide an express cause of action for retaliation for federal employees. The Fourth Circuit, however, has "little doubt that Congress 'incorporated the protections against retaliation' afforded to private employees by 2000e-3(a)" into the provision regarding discrimination against federal employees. Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011).
Plaintiff argues that her protected activities began the third week of June 2015 when she told ASAC Shepherd that she would refuse to give DI Lee preferential treatment because of Lee's race. [Compl.] ¶ 36; [Doc. No. 18], at 19. "During or about" the third week of June 2015, Plaintiff asked ASAC Shepherd to hear her report about DI Pamela Lee. [Compl. ¶ 35.] In response, ASAC Shepherd stated "No, we are not going to go there." [Id.] The Complaint then states that "by this third week of June 2015, Barnhill had made clear to ASAC Shepherd that she would refuse to give DI Pamela Lee preferential treatment because of her race." [Id. ¶ 36.] Plaintiff contends that such refusal to engage in discrimination is protected activity. [Doc. No. 18], at 19. Further, Plaintiff contends that by starting and participating in an EEO proceeding later in the year, she was engaging in protected conduct. [Id.] In response, Defendant argues that since the Complaint lacks any assertion that ASAC Shepherd asked Plaintiff to engage in employment discrimination in June 2015, the Plaintiff was not engaging in protected activity. [Doc. No. 19], at 11-12. For Plaintiff's EEO proceedings, the Defendant acknowledges that such activity is protected activity but challenges the casual link. [Doc. No. 13], at 14-16.
Opposing discriminatory actions, such as refusing to discriminate on the basis of race, can certainly qualify as protected activity. DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015) (observing that "opposition activity" includes "utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities" as well as making complaints to management (citations omitted)). The Complaint alleges that (1) in September 2014, Shepherd took DI Lee off of Pre-PIP despite Lee's continued performance issues, telling Plaintiff that "these people need their jobs"; (2) Shepherd did not previously have problems discussing performance issues regarding Plaintiff's white subordinates; and (3) in late-June 2015 Shepherd refused to discuss Plaintiff's complaint about DI Lee, stating "No, we are not going to go there." [Compl. ¶¶ 28-29, 34-36.] Taken together, these allegations do not allow for the reasonable inference that Plaintiff "reasonably believe[d]" she was opposing an unlawful practice when she informed Shepherd of her refusal to give DI Lee preferential treatment on the basis of race. Boyer-Liberto, 786 F.3d at 282. The Complaint fails to include any allegations that Shepherd asked Plaintiff to engage in any discriminatory practices or that he himself was unlawfully discriminating. Vague allegations such as these, largely unrelated to specific discriminatory practices, does not support the inference that Plaintiff was engaging in protected activity. See Fisher v. Winston-Salem Police Dep't, 28 F. Supp. 3d 526, 532 (M.D.N.C. 2014) ("An activity is protected when the plaintiff has 'an objectively reasonable belief that she was complaining about' discriminatory conduct." (citation omitted)). Therefore, Plaintiff only plausibly alleges that she engaged in protected activity on one occasion: September 2015 (commencing EEO proceedings); and even if the Court credited Plaintiff's allegations regarding June 2015 protected activity, Plaintiff's claim would fail for lack of causation.
"[E]stablishing a 'causal relationship' at the prima facie stage isn't an onerous burden." Thomas v. City of Annapolis, 851 F. App'x 341, 350 (4th Cir. 2021). "An employee may satisfy his burden simply by showing that (1) the employer either understood or should have understood the employee to be engaged in protected activity and (2) the employer took adverse action against the employee soon after becoming aware of such activity." Strothers v. City of Laurel, 895 F.3d 317, 335-36 (4th Cir. 2018) (emphasis added). Here, Plaintiff's comments to ASAC Shepherd did not lead to any adverse actions. Though he threatened to subject Plaintiff to a Management Review, he later abandoned those plans. [Compl. ¶¶ 39-40.] The Complaint also alleges Shepherd downgraded Plaintiff's performance rating in October 2015, but, as discussed previously, those downgrades were subsequently reversed and do not constitute an adverse employment action. [Id. ¶ 44.] Similarly, for the reasons stated above, Plaintiff's exclusion from the weekly Group Supervisor meetings is not an adverse employment action. And, even if it was, the Complaint does not casually link that exclusion to Plaintiff's June 2015 comments to Shepherd. Finally, the Complaint does not allege that ASAC Shepherd reported Plaintiff's comments to other DEA officials or even made others aware of Plaintiff's protected activity. Therefore, the Complaint lacks any factual allegations that would allow for the plausible inference that Plaintiff suffered an adverse action because of, or due to, her June 2015 protected activity.
The EEO proceedings, however, present a closer question. On September 22, 2015, Plaintiff commenced EEO proceedings by contacting the DEA's EEO office to request informal counseling for her concerns. [Id.¶ 41.] On September 25, 2015, Plaintiff agreed to participate in the DEA's alternative dispute resolution program. [Id. ¶ 42.] On November 6, 2015, SAC Brown received official notification of Plaintiff's commencement of her EEO proceeding. [Id. ¶ 47.] Brown commenced a management review of Plaintiff and her group on November 17, 2021, and placed Plaintiff on temporary duty reassignment, or "Highway Therapy," three days later on November 20, 2015. [Id. ¶¶ 48-49.] Despite the clear temporal proximity between SAC Brown purportedly first learning of Plaintiff's EEO proceeding and decision to commence a management and place her on "Highway Therapy," Defendant argues that the causality prong is not satisfied here because "where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engage in any protected activity, an inference of retaliation does not arise." Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006). Although that may be true, that principle is not applicable where the gradual adverse actions have little or no connection to the adverse action(s) occurring post protected activity. Id. at 309 ("The actions that led to Francis' probation and termination began before her protected activity, belying the conclusion that a reasonable factfinder might find that BAH's activity was motivated by Francis' USERRA complaints." (second emphasis in original)). The adverse actions referenced by Defendant, [Doc. No. 19], at 12, do not have a sufficient nexus to Plaintiff's management review and placement on "highway therapy" such that, at the motion to dismiss stage, they belie the reasonable inference that Brown retaliated against Plaintiff for protected activity. Plaintiff's allegations do not provide an explanation for those prior, gradual adverse actions, other than potential discrimination. Brown also kept Plaintiff on Highway Therapy despite receiving the Management review report on January 12, 2016. Therefore, at this stage, Plaintiff's allegations that (i) she commenced her EEO proceeding in September 2015 and was subjected to adverse actions two months later, in November 2015, mere weeks after her supervisor received official, written notice of the EEO action and (ii) continued to suffer adverse actions well into February 2016 are enough to survive a 12(b)(6) motion. See Widmer v. Austin, 2022 WL 2959710, at *6 (E.D. Va. July 26, 2022) ("Here, Plaintiff claims she filed her EEOC case in December of 2017 and alleges multiple instances of retaliatory conduct by her employer between December of 2017 and June of 2018. Thus, Plaintiff has sufficiently alleged a pattern of 'continuing retaliatory conduct and animus' throughout the relevant period to survive a 12(b)(6) motion." (citation omitted)).
As the Court noted previously, see supra Part III.A.2, there is likely an "obvious alternative explanation" for the Plaintiff's "Highway Therapy" placement. However, given the low causal burden for a prima facie claim of retaliation, Thomas, 851 F. App'x at 350, the Court must construe all allegations in the complaint as true and in the light most favorable to Plaintiff. The Court, however, agrees with Defendant's position that Plaintiff cannot rely on her September 2015 protected activity to seek recovery based on an alleged failure to promote, which took place in 2019, as she alleges no intervening retaliatory conduct past February 2016. See Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007). The Court likewise rejects Plaintiff's argument that her continued participation in the EEO proceedings provides the necessary causal connection for her failure to promote complaints. She fails to allege any facts supporting the plausible inference that the agency officials who made the decision not to hire Plaintiff for the DPM positions, whoever they may be, knew of Plaintiff's protected activity.
C. Hostile Work Environment Claim
To establish a hostile work environment claim, a plaintiff must allege that conduct was: (1) unwelcome, (2) based on plaintiff's gender, disability, or prior protected activity, (3) sufficiently severe or pervasive to alter conditions of employment, and (4) imputable to her employer. See e.g., Pueschel v. Peters, 577 F.3d 558, 564-65 (4th Cir. 2009). As discussed above, Plaintiff plausible alleged retaliation of the basis of protected activity. Accordingly, the issue is whether such adverse actions were severe or pervasive. In the protected activity context, "questions of 'severity' should be considered in light of the Supreme Court's standard for retaliation: that a 'reasonable employee would have found the challenged action materially adverse' such that a reasonable employee would be dissuaded from engaging in protected activity." Hinton v. Virginia Union Univ., 185 F. Supp. 3d 807, 840 (E.D. Va. 2016) (quoting Burlington, 548 U.S. at 68, 126 S.Ct. 2405).
Here, at this stage, Plaintiff has alleged facts that, when viewed most favorably to her, particularly Plaintiff's allegations of highway therapy and denial of transfer requests, plausibly alleged that she was subjected to a hostile work environment as a result of her September 2015 EEO proceeding. Accordingly, the Motion will be denied as to the hostile work environment claims based on the alleged harassment following that protected activity.
IV. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Defendant's Motion to Dismiss [Doc. No. 12] be, and the same hereby is, GRANTED in part and DENIED in part. It is DENIED as to Plaintiff's retaliation claim and hostile work environment claim based upon her commencement of an EEO proceeding in September 2015; and GRANTED as to her sex and race discrimination claims and any remaining retaliation and hostile work environment claims.
Plaintiff asks the Court for leave to file an amended complaint as an alternative to dismissal. [Doc. No. 18], at 28. The Court will not grant that request in the absence of a proposed amended complaint for its consideration; and that request is denied without prejudice to Plaintiff's filing a motion to file an amended complaint, with a proposed Amended Complaint attached for the Court's consideration.