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Hagerman v. Johnson

United States District Court, D. Maine

January 23, 2017

JEH JOHNSON, Defendant


          John C. Nivison U.S. Magistrate Judge

         In this action, Plaintiff Stacey Hagerman alleges several claims regarding her employment with the Transportation Security Administration of the United States Department of Homeland Security (TSA), which employment Defendant terminated in October 2012.

         The matter is before the Court on Defendant's Motion to Dismiss and Change Track Assignment (ECF No. 9), through which motion Defendant asserts Plaintiff's Title VII claims are precluded by the doctrine of res judicata and that Plaintiff's remaining claim under the Civil Service Reform Act should proceed exclusively on the administrative track. As part of her response to the motion to dismiss, Plaintiff filed a motion to amend her complaint (ECF No. 18), which motion is also before the Court.

         Following a review of the parties' submissions and after consideration of the parties' arguments, I grant the motion to amend and recommend the Court deny without prejudice Defendant's motion to dismiss and change track assignment.

         I. Background Facts and Procedure

         Plaintiff alleges adverse employment actions against her following her complaints that her supervisor - through reprimands and insults, letters of counseling, letters of discussion, and one or more short-term suspensions - was subjecting her to a hostile work environment based on her gender and in retaliation for her engagement in a protected Equal Employment Opportunity (EEO) activity. On July 20, 2012, Plaintiff complained of sex discrimination and retaliation to the TSA's EEO office, which opened an investigation. (Am. Compl. ¶ 57.)

         On September 13, 2012, Plaintiff's supervisor, Assistant Federal Security Director Kelly, proposed that Plaintiff be removed from her position. (Am. Compl. ¶ 58.) Assistant Director Kelly's supervisor, Federal Security Director Dyer, considered the proposal and, on October 9, 2012, issued a decision that terminated Plaintiff's employment. (Id. ¶ 59.)

         Administrative Proceedings

         According to Plaintiff, on September 27, 2012, in the brief period between the removal proposal and her actual removal, Plaintiff filed a formal complaint with the TSA's EEO office. (See Complaint in Hagerman v. Johnson, No. 2:13-cv-00446-JAW (“Hagerman I”), ¶ 5.) According to the Office for Civil Rights and Civil Liberties, U.S. Department of Homeland Security (the “Department”), which issued a final agency decision adverse to Plaintiff's contentions on September 9, 2013, Plaintiff filed her formal complaint on October 10, 2012, the day after her removal. (Final Agency Decision, ECF No. 9-1 (this docket).) In its Final Agency Decision, the Department noted that TSA, not Plaintiff, requested the final agency decision, which request TSA made on July 1, 2013. (ECF No. 9-1, PageID # 61.) Among the arguments the Department considered was Plaintiff's contention that certain discrete acts were part of the TSA's “‘mounting plan' to terminate her employment.” (Id., PageID # 65.) In its decision, the Department limited its review to the discrete acts imposed in advance of Plaintiff's removal and to the issue of whether the combined pre-removal record supported Plaintiff's claim of a hostile work environment.

         According to her pleadings in this case, Plaintiff also filed a “mixed case” appeal and complaint of discrimination with the Merit System Protection Board (MSPB) in October 2012. Although the mixed case evidently arose out of the same facts and circumstances as the EEO matter, the mixed case concerned Plaintiff's removal from employment. (See Complaint, ECF No. 1, ¶ 7; Amended Complaint, ECF No. 18-1, ¶ 7.) The MSPB exercised jurisdiction over the mixed case, and Plaintiff received an initial adverse decision from the MSPB administrative judge on June 2, 2014. On appeal, the MSPB affirmed the decision of the administrative judge. Plaintiff then elected to pursue an administrative appeal with the Equal Employment Opportunity Commission's Office of Federal Operations, which on January 14, 2016, denied Plaintiff's appeal. (OFO Decision, ECF No. 9-2.)

         Hagerman I

         On December 3, 2013, following her receipt of the Department's final agency decision on her first administrative complaint, and while her mixed case was pending before the MSPB administrative law judge, Plaintiff, proceeding pro se, filed a civil action in this Court against Defendant. In her complaint, Plaintiff alleged sex discrimination in the terms, conditions, and privileges of employment, including the creation of a hostile work environment based on sex. Plaintiff also alleged retaliation based on her complaint of discrimination and the filing of her July 2012 administrative complaint with the EEO office. Plaintiff asserted all of her claims under Title VII of the Civil Rights Act of 1964. (Complaint in Hagerman I, ¶¶ 53, 62, 70, 76.)

         Plaintiff did not describe her removal from employment in her complaint. Plaintiff, however, complained of “adverse employment actions, ” and she included among her losses the future loss of income and benefits. (Id. ¶¶ 70, 72.) In support of her hostile work environment claim, Plaintiff similarly complained of adverse employment actions, “loss of her employment for a period of time, ” and loss of future income and benefits. (Id. ¶¶ 76, 78, 79.)

         On August 15, 2014, Plaintiff filed a motion to stay proceedings in Hagerman I. (ECF No. 14.) In the motion to stay, Plaintiff explained that the administrative judge had recently issued a decision on her administrative claim before the MSPB arising from her removal from employment, and that she was pursuing an appeal of the administrative judge's decision with the MSPB. In her motion to stay, Plaintiff asserted that a final decision was anticipated and that she intended to join her claim regarding her termination with her other claims in Hagerman I. (Id. ¶¶ 5, 9.) Plaintiff represented that the MSPB appeal involved “the same factual occurrences and legal questions” as those raised in Hagerman I, and that the issue of her termination should be joined “[i]n view of the near complete identity of the factual and legal questions at issue in the two claims.” (Id. ¶¶ 10, 12.)

         In response to the motion for stay, Defendant acknowledged that the two matters involved significant overlap, but disagreed “that the appeal currently pending before MSPB involve[d] the same factual occurrences and legal questions that [were] at issue” in Hagerman I. (ECF No. 15 at 2, ¶ 4.) Defendant consented to the motion to stay and indicated that, if the Court granted the motion and consolidated Plaintiff's existing and anticipated lawsuits, it would want Plaintiff to forego discovery concerning the then-pending claims because Plaintiff had not sought discovery in the pending action and requested the stay approximately one week before the close of the discovery period. (Id. at 4, ¶ 8(d).)

         The Court stayed the matter until November 20, 2014, in anticipation of the MSPB's final decision. (ECF No. 16.) Following a November conference, the Court extended the stay until March 2, 2015. (ECF No. 20.) At a March 5, 2015, conference, Plaintiff informed the Court that she received an unfavorable final decision from the MSPB and that she had filed a further administrative appeal.[1] Plaintiff sought a brief continuance of the stay to consult with counsel, which request the Court granted. (ECF No. 24.) On March 13, 2015, counsel entered an appearance on behalf of Plaintiff and filed a stipulation of dismissal with prejudice, signed by both parties, with respect to the complaint in Hagerman I. (ECF No. 26.)

         This Case

         Plaintiff filed this action pro se on February 16, 2016. In her complaint, Plaintiff asserts the following claims regarding her employment with Defendant: a Title VII claim of retaliation (Count I), a Title VII claim of disparate treatment based on sex (Count II), and a claim under the Civil Service Reform Act requesting judicial review of the final decision of the MSPB. (ECF No. 1 at 1.)

         Plaintiff describes her case as a “mixed-case” appeal and complaint of discrimination arising out of her October 9, 2012, termination from employment. (Id. at 2, ¶ 7a.) Plaintiff asserts that after receiving the final decision of the MSPB, she appealed from that decision to the Equal Employment Opportunity Commission's Office of Federal Operations (OFO), and that on January 14, 2016, the OFO issued her a notice of right to file a civil action. (Id. at 2 - 3, ¶ 7b.)

         In her complaint, Plaintiff describes the same employment history from which her claims in Hagerman I arose, which history involves the alleged adverse treatment by Assistant Federal Security Director Kelly. (Id. ¶¶ 10 - 59.) Plaintiff also references the October 9, 2012, notice of termination issued by Federal Security Director Dyer. (Id. ¶ 60.)

         Defendant informed Plaintiff that her employment was terminated due to a lack of candor in connection with Plaintiff's report regarding a subordinate's Facebook posting of an image of an item in a passenger's bag. (Id. ¶ 62.) Plaintiff apparently did not disclose in her report that the subordinate had shown the image to Plaintiff. (Id. ¶ 67.) Plaintiff contends Defendant's stated reasons for termination were pretextual and were designed to conceal the retaliatory animus toward Plaintiff based on her protected EEO activity. (Id. ¶ 64.)

         In response to Plaintiff's complaint, Defendant filed the pending motion to dismiss, in which motion Defendant argues Plaintiff's Title VII claims are barred by the doctrine of res judicata, although Defendant concedes Plaintiff's request for judicial review of the administrative decision can proceed. (Motion to Dismiss, ECF No. 9.) In response to Defendant's motion to dismiss, Plaintiff filed a motion for leave to amend her complaint. In her proposed amended complaint (ECF No. 18-1), Plaintiff deleted former paragraph 9 (which related to her pro se status), and revised former paragraph 92 (now paragraph 91) “to clarify that only the plaintiff's October 9, 2012 removal action is at issue in her claim of disparate treatment sex discrimination.” (Motion to amend at 2.) Plaintiff's proposed amended complaint thus can be read to assert Title VII claims limited to the issue of her termination.[2]

         II. Plaintiff's Motion to Amend

         Rule 15(a)(1) of the Federal Rules of Civil Procedure permits a litigant to amend a pleading “once as a matter of course, ” subject to certain time constraints. However, when a party seeks to amend a complaint more than 21 days after the filing of a responsive pleading, the other party's consent or leave of court is required in order to amend the complaint. Fed.R.Civ.P. 15(a)(2). In such a case, the court is to grant leave to amend “freely” when “justice so requires.” Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962).

         In this case, Plaintiff filed the motion relatively early in the proceedings, and the proposed substantive modifications to the original complaint are not substantial. The proposed amendments simply confirm that Plaintiff's claim is based on the termination of her employment. Based on Defendant's motion to dismiss, Defendant was aware of the nature of the claim before the amendment. Plaintiff thus is entitled to amend her complaint as requested.

         III. Defendant's Motion to Dismiss

         As part of the assessment of Defendant's motion to dismiss, a review of the relevant administrative processes is instructive.

         A. Federal Employees' Administrative Remedies for Discrimination under the Civil Service Reform Act

         The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. §§ 1101 et seq., “establishes a comprehensive framework for evaluating employment actions taken against federal employees.” Rodgers v. Perez, 139 F.Supp.3d 67, 71 (D.D.C. 2015). Where discrimination in employment is concerned, the CSRA framework is designed to accommodate proceedings both through the federal equal employment opportunity (EEO) system overseen by the Equal Employment Opportunity Commission (EEOC) and through the federal merit protection system overseen by the Merit System Protection Board (MSPB). Id.

         1. The EEO administrative process

         Discrimination in federal employment is prohibited under Chapter 21, subchapter VI of the Civil Rights Act, 42 U.S.C. § 2000e-16 (Title VII). Enforcement of § 2000e-16 is delegated to the Equal Employment Opportunity Commission, which has authority to issue rules and regulations necessary to satisfy its responsibilities. Id. § 2000e-16(b).[3] The EEOC's jurisdiction extends to all complaints of discrimination and retaliation prohibited by Title VII. 29 C.F.R. § 1614.103(a). Agencies subject to EEOC oversight are required to adopt the procedures for processing such complaints. Id. § 1614.104(a).

         The EEO procedures require, inter alia, the employee to file a complaint directly with the employing agency, following an initial counseling session. Id. §§ 1614.105, 1614.106. The complaint must set forth “the action(s) or practice(s) that form the basis of the complaint, ” and the complaint may be amended “at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint.” Id. § 1614.106(c), (d). Thereafter, the employee may also file a motion to amend the complaint with the administrative judge assigned to the matter. Id. § 1614.106(d). Upon the filing of a complaint or amended complaint, the EEOC process begins with an investigation by the employing agency. Id. § 1614.108. The employee can then request a hearing before an administrative judge. Id. § 1614.109. Following a decision by the administrative judge, the agency must take “final action.” Id. § 1614.110. The employee may then file a civil action in federal district court or pursue a further administrative appeal before the EEOC.[4] Id. §§ 1614.110, 1614.407. Upon notice of final action by the EEOC, the employee again has the right to file a civil action against the head of the agency. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407. Any civil action is subject to the provisions of 42 U.S.C. § 2000e-5(f) through (k), which govern private sector Title VII claims. 42 U.S.C. § 2000e-16(d).

         2. The MSPB administrative process

         Significant adverse actions such as discharge or demotion are also subject to protection under the federal merit system.[5] Kloeckner v. Solis, 133 S.Ct. 596, 600 (2012) (“If (but only if) the action is particularly serious-involving, for example, a removal from employment or a reduction in grade or pay-the affected employee has a right to appeal the agency's decision to the MSPB, an independent adjudicator of federal employment disputes.”).[6] In particular, the merit system prohibits discrimination based on sex and retaliation. 5 U.S.C. § 2302(b)(1), (8), (9). An employee or former employee who maintains that “any personnel action taken, or proposed to be taken” against her is the “result of a prohibited personnel practice described in section 2302(b)(8)” may “seek corrective action from the Merit System Protection Board.” 5 U.S.C. § 1221(a). If the employee or former employee is “adversely affected or aggrieved by a final order or decision of the Board, ” she “may obtain judicial review of the order or decision.” Id. § 1221(h)(1).

         The appellate procedure before the MSPB and the judicial review process following a decision of the MSPB are set forth at 5 U.S.C. §§ 7701 - 7703. “Such an appeal may merely allege that the agency had insufficient cause for taking the action under the CSRA; but the appeal may also or instead charge the agency with discrimination prohibited by another federal statute, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. …” Kloeckner, 133 S.Ct. at 600.

When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a “mixed case.” See 29 CFR § 1614.302 (2012). The CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special procedures to govern such a case-different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as ...

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