Opinion
No. 7:20-CV-00020-D
01-25-2021
Marianela Velez, Plaintiff, v. John E. Whitley, Acting Secretary of the Army, Defendant.
Memorandum & Recommendation
Plaintiff Marianela Velez sues Acting Secretary of the Army John Whitley under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. These laws prohibit employment discrimination on the basis of sex, national origin, race, and age. They also forbid an employer from retaliating against someone who makes a discrimination claim.
Velez claims the Army discriminated against her when it selected another person for the position of Secretary of Automation. And she claims that the Army retaliated against her and created a hostile work environment after she complained to the EEOC.
Whitley now asks the court to dismiss the Amended Complaint because it allegedly fails to state a claim for relief. D.E. 20. Except for her sex-based discrimination claim, she has not alleged enough facts to withstand the motion to dismiss. Thus, the undersigned recommends the district court grant Whitley's motion in part and denies it in part.
I. Background
Velez alleges that the United States Army discriminated against her based on her sex, national origin, race, and age when it did not promote her to the position of Secretary of Automation. D.E. 13 at 59. During the relevant period, Velez was a 55-year-old Hispanic woman with a master's degree and eight years of direct experience working as an assistant to the Director of Emergency Management Service. Id. at 15-16, 59, Velez, a civilian, worked for the Army as a Security Assistant in the Directorate of Emergency Services. Am. Compl. at 2. She continues to work for the Army. Compl. at 3.
The Army identified 10 candidates as "best qualified" for the position of Secretary of Automation. Am. Compl. at 2. Spero Pekatos, the selecting official, interviewed Velez and the other candidates. Id. at 3. But Pekatos did not schedule Velez's interview in advance. Id. Instead, he asked if she was available for an "impromptu" interview. Id. She agreed. Id. Velez contends that Pekatos has offered conflicting statements about whether he conducted similar unscheduled interviews with other internal candidates and whether Pekatos personally scheduled their interviews. Id. Velez says Pekatos asked during her interview whether she would cry if men upset her while she was working. Id. at 9. Pekatos noted that the interview played the largest role in his selection for the Secretary of Automation position. D.E. 1-1 at 7.
Pekatos eventually selected Damon Barr for the position. Am. Compl. at 9. He cited Barr's superior recommendations, high level of professionalism, and ability to work independently as evidenced in his previous work assignments. D.E. 1-1 at 6. Pekatos claimed he found Velez to be "too informal during her interview and only moderately responsive," which played a role in his decision to select someone else. Am. Compl. at 12.
Velez says that Pekatos's selection process violated several internal procedures for selecting candidates at this job level. An internal handbook lays out that for a civilian job at this level, the hiring officer should develop merit-based ranking criteria, evaluate and rank candidates accordingly, and then conduct interviews. Id. at 3-5. Velez says Pekatos did not follow these guidelines. Id. at 6. Further, she says that Pekatos did not preserve adequate records as required by the handbook or provide an adequate nondiscriminatory basis for his selection of Barr. Id. at 5. She also claims that Pekatos asked her if she would cry if the men she worked with were mean to her. Id. at 9.
On top of her discrimination claims, Velez says that she experienced a hostile work environment in retaliation for filing a complaint with the Equal Employment Opportunity Commission. Id. at 59. Velez filed a Formal Charge of Discrimination with the EEOC in July 2016. Id. Her charges of a hostile work environment center on three incidents. Id.
First, Velez alleges that the Army's decision to assign Captain Jacob McDaniel as her direct supervisor in September 2016 was an act of retaliation for filing her EEOC complaint several months earlier. Id. Before 2016, Velez was confused about who served as her first- and second-level supervisors. See Am. Compl. at 6-7. While Captain McDaniel was officially her first-level supervisor, she functionally reported to Ronald Waidlich, who both oversaw her day-to-day tasks and signed her 2015 performance appraisal. Id. Captain McDaniel stated during the EEOC investigation into Velez's complaints that Waidlich asked him to assume his first-level supervisory responsibilities over Velez. D.E. 1-1 at 7. As a result, Velez moved to an office closer to Captain McDaniel and he assumed direct supervision over her. Id.
This shift led to Velez's next two retaliation complaints. In October 2016, Captain McDaniel criticized Velez for interrupting a meeting to take a personal telephone call and gave her verbal counseling that she needed to communicate "professionally and respectfully" with her colleagues. Id. at 7. Witnesses to this counseling described Captain McDaniel's tone as "demeaning and belittling." Am. Compl. at 8.
One month later, Velez received a written letter of counseling after Captain McDaniel alleged that she hung up the phone during a conversation with him. Id. at 60. Captain McDaniel called Velez to ask for clarification about a day of leave request, and Velez told him that he "could have asked his boss, Mr. Waidlich" about the request. Am. Compl. at 8. When Captain McDaniel paused, Velez "considered that the end of the conversation and hung up the phone." Id. Captain McDaniel issued Velez a written counseling statement as a result, warning her that her phone etiquette was "rude and disrespectful." Id. Velez denies that her behavior was incorrect and considers Captain McDaniel's written counseling an act of retaliation. Id.
Acting Secretary Whitley now asks the court to dismiss this action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). D.E. 20.
The court allowed Whitley to file a second Motion to Dismiss (D.E. 20) after Velez filed her Amended Complaint.
II. Discussion
Velez asserts employment discrimination by four means. First, she says her supervisors discriminated against her because of her age in violation of the Age Discrimination in Employment Act. Second, she says the Army discriminated against her because she is a Hispanic woman. Third, Velez alleges that the Army retaliated against her after she filed a complaint with the EEOC. And fourth, Velez claims that the Army subjected her to a hostile work environment after she complained about this conduct.
A. Standard of Review
Whitley argues that Velez's complaint should be dismissed because it fails to state a claim upon which relief may be granted. The Supreme Court has explained that to withstand a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court explained that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Thus, while a court must accept all the factual allegations in a complaint as true, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part test. First, the court must identify the allegations in the complaint that are not entitled to the assumption of truth because they are conclusory or mere formulaic recitations of the elements of a claim. Id. at 679. Then, taking the remaining factual allegations as true, the court must determine whether the complaint "plausibly give[s] rise to an entitlement to relief." Id. If, after conducting this two-part analysis, "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not show[n]—that the pleader is entitled to relief." Id. (internal citation and quotations omitted). If a party fails to show that they are entitled to relief, the court must dismiss the deficient claims.
Under Rule 12(b)(6), the court may consider "documents explicitly incorporated into the complaint by reference, documents attached as exhibits, and documents submitted by a movant that were not attached to or expressly incorporated into a complaint" but that are "integral" to it. Sullivan v. City of Frederick, 738 F. App'x 198, 199 (4th Cir. 2018).
B. ADEA Claim
To establish a successful ADEA claim, the plaintiff must make several showings. First, the plaintiff must show she was a member of a protected class, "i.e., age 40 or older[.]" Sullivan v. Perdue Farms, Inc., 133 F. Supp. 3d 828, 837 (E.D. Va. 2015). Second, she must have suffered an adverse employment action. Id. Next, she must show that she "was meeting [her] employer's expectations at the time of the adverse action[.]" Id. And finally, the plaintiff must show that she "was replaced by or treated less favorably than someone outside the protected class or someone 'substantially younger.'" Id. The plaintiff must also show by a preponderance of the evidence that her age was the "but-for" cause of the disparate treatment she received. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176-77 (2009). She may do this through direct or circumstantial evidence. Id. at 177-78.
Barr's date of birth makes him 33 years old when the Army selected him for the position. Am. Compl. at 5. Velez, age 55, was passed over for a promotion, which is an adverse employment action. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). And she maintains she had a history of excellent performance reviews. Am. Compl. at 16. But Velez alleges no facts to support her claim that age discrimination was the "but-for" cause that prevented her hiring. In support of her claim, she questions the impromptu scheduling of her interview, Pekatos's question about whether she might cry at work, and the internal protocol used to select Barr for the position. She does not identify a connection between these issues and her age. Velez raises no other concerns about the hiring process related to her age. So she has failed to state a claim upon which relief may be granted for an ADEA claim.
C. Title VII Claims
Recently, in Bing v. Brivo Systems, LLC, 959 F.3d 605, 616 (4th Cir. 2020), petition for cert. filed, No. 20-759 (Dec. 2, 2020), the Fourth Circuit clarified that in a Title VII case, "'an employment discrimination plaintiff need not plead a prima facie case of discrimination' to survive a motion to dismiss." (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)). After Bing, all that the law requires of a Title VII plaintiff that their complaint "allege facts to satisfy the elements of a cause of action created by that statute." Id. (quoting McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015)).
So Velez need only plausibly allege four things for her Title VII claims to survive the Acting Secretary's Motion to Dismiss. First she must show that she is a member of a protected class. Williams v. Giant Food, Inc., 370 F.3d 423, 430 (4th Cir. 2004). Then she must show that she applied for the position at issue. Id. Next she must show that she was qualified for the position. Id. And finally, she must show that she was not selected for her position under circumstances giving rise to an inference of unlawful discrimination. Id.
It appears that only the last factor is at issue here. So the court will consider whether the allegations of the complaint plausibly establish that was not selected for her position under circumstances giving rise to an inference of unlawful discrimination.
Having reviewed the entirety of Velez's Amended Complaint, the only claim that survives the motion to dismiss is her sex-based discrimination claim. The Amended Complaint describes several procedural irregularities and a question (whether she would cry if a man was mean to her) during her interview that focused on her gender. Considering the liberal reading provided to pro se complaints, this allegation is enough to plausibly allege an inference of unlawful sex-based discrimination.
D. Retaliation
Velez next alleges retaliation. To establish a prima facie case for retaliation under Title VII, a plaintiff must prove three elements. First, she must show that she "engaged in a protected activity." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 271 (4th Cir. 2015) (quotation omitted). Second, she must show that "her employer took an adverse employment action against her." Id. And third, she must prove "that there was a causal link between the two events." Id.
Velez engaged in a protected activity when she filed her EEOC complaint. King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003). Whitley does not dispute this. Mem. in Supp. Second Mot. to Dismiss at 13. But Whitley asserts that Velez suffered no adverse employment action as a result of this complaint. The court agrees.
An adverse employment action is "one that 'constitutes 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.'" Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting Ellerth, 524 U.S. at 761). It is an action that would "dissuade[ ] a reasonable worker from making or supporting a charge of discrimination." See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal citations and quotations omitted). The plaintiff must also show that the employer's desire to retaliate was the but-for cause of the adverse employment action. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant "to proffer evidence of a legitimate, non-discriminatory reason" for the adverse employment action. Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 271 (4th Cir. 2001).
Velez identifies three incidents and argues they constitute adverse employment actions. First, that she had to move to a new office and report directly to Captain McDaniel. Second, that she received verbal counseling from Captain McDaniel in a "demeaning and belittling" tone. And finally, that she received written counseling from Captain McDaniel for an incident which she disagreed merited such a response.
Velez offers no allegations to suggest that receiving counseling on workplace conduct or being made to move offices and report to the person who, on paper, was her first-level supervisor, would dissuade a reasonable worker from filing a discrimination complaint. None of these events led to discipline or otherwise significantly changed Velez's job responsibilities. This cannot constitute adverse employment action for a Title VII retaliation claim. See, e.g., Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 429 (4th Cir. 2015) ("[N]either the written nor the verbal reprimands qualify as adverse employment actions, because they did not lead to further discipline."); Thorn v. Sebelius, 766 F. Supp. 2d 585, 598 (D. Md. 2011) (finding counseling letters, written or oral reprimands, and reassignment and shifting of job duties did not constitute adverse employment actions under Title VII).
And there is no causal connection between the actions Velez complains of and filing her complaint. Velez offers no evidence that her complaint led to Captain McDaniel's unfriendly tone or demeanor. She does not assert that his attitude toward her changed after she filed her EEOC complaint or suggest that he treated others better. Both counseling incidents occurred after interactions between Velez and Captain McDaniel that, even in Velez's recollection, may have warranted supervisory intervention. Velez offers no evidence that her office move, reporting to Captain McDaniel, or the counseling she received were adverse actions for a Title VII retaliation complaint. And these events are not causally connected to her EEOC complaint, since they happened before she filed her complaint.
Thus, Velez has failed to state a claim on which relief may be granted.
E. Hostile Work Environment
Velez's final claim is that the above incidents created a hostile work environment. A Title VII hostile work environment claim requires a plaintiff to make four showings. First, she must show that the alleged conduct was "unwelcome." Pueschel v. Peters, 577 F.3d 558, 565 (4th Cir. 2009). Next, it must be because of protected activity or her membership in a protected class. Id. Third, the conduct must be "sufficiently severe or pervasive to alter the conditions of her employment[.]" Id. (internal quotations omitted). And finally, the conduct must be attributable to her employer. Id. "Pleading a hostile work environment requires both an objective and subjective showing, specifically an environment that 'a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so.'" Reed v. Airtran Airways, 531 F. Supp. 2d 660, 669 (D. Md. 2008) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
A reasonable person would not find the incidents Velez points to—having to move her office, newly reporting to Captain McDaniel, and the verbal and written counseling she received from him—to be hostile or abusive. They are not so "severe or pervasive" to change the conditions of her employment. In fact, Velez does not point to any facts that show that these events disrupted her working conditions. She is still employed with the Army in the same capacity. Thus, Velez has failed to state a hostile work environment claim under Title VII.
III. Conclusion
The undersigned recommends that the district court grant Whitley's motion to dismiss for failure to state a claim (D.E. 20) as to all claims other than the sex-based discrimination claim.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: January 25, 2021
/s/_________
Robert T. Numbers, II
United States Magistrate Judge