Jones v. Wormuth

A. David Copperthite United States Magistrate Judge

MEMORANDUM OPINION

A. David Copperthite United States Magistrate Judge

Defendant Christine E. Wormuth (“Defendant”), as Secretary of the Army, moves this Court to dismiss, or in the alternative, for a grant of summary judgment. Plaintiff Eric Jones (“Plaintiff'), a federal employee, filed a Complaint alleging employment discrimination and hostile work environment on the basis of age and disability in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), codified in 29 U.S.C. § 621 et seq. (Count I); the Rehabilitation Act of 1973 (“Rehabilitation Act”), codified in 29 U.S.C. § 701 et seq. (Count II); and Title VII of the Civil Rights Act of 1964 (“Title VII”), codified in 42 U.S.C. § 2000e et seq, (Count III). ECF No. 1. Defendant now files a Motion to Dismiss the Complaint or in the Alternative for Summary Judgment (ECF No. 13). After considering the Motion and responses thereto (ECF Nos. 16, 17) the Court finds that no hearing is necessary. Loc.R. 105.6 (D.Md. 2021). For the reasons stated herein the Defendant's motion is GRANTED in part with regard to Counts II and III and DENIED in part with regard to Count I.

Factual Background

Plaintiff, bom 1952, is a U.S. Army civilian employee employed at the U.S. Army Aberdeen Proving Ground (“APG”) military base. ECF No. 1 ¶¶ 1, 3; ECF No. 13-1 at 1. Plaintiff was working at Fort Monmouth in New Jersey when he received a Permanent Change of Station (“PCS”) order to report to APG on March 27, 2011. ECF No. 1 ¶ 7. Plaintiff's PCS order included reimbursement for moving expenses. Id. However, Plaintiff received no payments due pursuant to his PCS order until on or around February 2014. Id. ¶ 18. Plaintiffs supervisor at the time was Mr. Carl Barrett. Barrett was Plaintiffs supervisor from October 2011 to January 2014. Id. ¶ 6. Plaintiff reported the delay in payment to Barrett repeatedly from March 31, 2011 to January 1, 2014, but the PCS had internal errors committed by Defendant's employees that required amendments to correct. Id. ¶¶ 11, 12. As a result of the delays, Plaintiff faced economic hardship from moving expenses. Id. ¶ 14. Plaintiff alleges this was just one way in which Defendant sought to create a hostile work environment and that Barrett encouraged the PCS payment delays in order to pressure Plaintiff into early retirement. Id. ¶¶ 13, 14. Plaintiff states that in 2011 senior officials at APG informed employers and managers, including Barrett, that a reduction in force would occur if enough older employees did not retire. Id. ¶ 9.

While under the supervision of Barrett, Plaintiff requested a desk audit (a request for position reclassification) because Plaintiff was performing above the requirements of his position without compensation. Id. ¶ 22. Barrett denied Plaintiffs desk audit, claiming that there was a hiring freeze. Id. ¶ 23. However, another employee under the age of 40 was promoted during that time. Id. Plaintiff states that throughout Barrett's supervision, he subjected him to constant harassment about retirement. Id. ¶ 60.

Plaintiff alleges additional efforts to create a hostile work environment by his supervisor after Barrett, Ms. Evette Jones-Hatton. Jones-Hatton became Plaintiff's supervisor on or around Februaiy 2014. Id. ¶ 26. At a meeting with Plaintiff, Jones-Hatton asked him: “are you one of those individuals who refused to retire from Fort Monmouth.” Id. ¶ 28. Plaintiff asserts that Jones-Hatton did not ask any other team members about retirement. Id. Plaintiff again requested a desk audit from Jones-Hatton, which was denied. Id. ¶ 34. Plaintiff repeatedly let Jones-Hatton know that he was seeking promotion to a GS-11 position, however Jones-Hatton failed to notify him when such a position became available, despite informing other team members. Id. ¶¶ 36-39. Further, when Plaintiff asked Jones-Hatton about the position, she misinformed him about the closing date for the position, citing a later date. Id. ¶¶ 40-42. Plaintiff alleges additional harassment while supervised by Jones-Hatton, including Plaintiff being excluded from team efforts, meetings, and chain of command for younger workers, Jones-Hatton showing favoritism to younger workers, Plaintiff being denied information necessary to perform his job, co-workers commenting that Plaintiff was slow in reference to his age, and Jones-Hatton and peers bullying Plaintiff on a daily basis about his job performance and age. Id. ¶¶ 43-45, 47, 55.

On June 22, 2016, Plaintiff emailed his concerns to the team, and, on June 28, 2016, Jones-Hatton held a team meeting to discuss the email. Id. ¶¶ 49, 50. Plaintiff asserts that Jones-Hatton reprimanded him at this meeting. Id. ¶ 51. Further, Plaintiff contends that Jones-Hatton did nothing when another team member, Ms. Tineka Charles, called Plaintiff a “jerk, ” stated that Plaintiff took all day to draft emails due to his age, and told Plaintiff that she laughed at him in meetings because his input was “silly.” Id. ¶¶ 53, 54. As with Barrett, Plaintiff states that that Jones-Hatton also . subjected him to constant harassment about retirement. Id. ¶ 61.

Plaintiff met with an Army Equal Employment Opportunity (“EEO”) Counselor on August 16, 2016 and filed a formal U.S. Equal Employment Opportunity Commission (“EEOC”) complaint for age discrimination on September 26, 2016. Id. at 11, ¶ 71; ECF No. 1-1 at 1. Plaintiff s EEOC complaint specified age discrimination and cited five specific examples: the June 28, 2016 meeting; the promotion of a coworker to a GS-12 position; the misinformation about the GS-11 position closing date; the PCS payment delays; and errors in filling out Plaintiff s job series and duties by his branch chief. ECF No. 13-2 at 4-5. Plaintiffs initial EEOC complaint was dismissed but then remanded on appeal to the EEOC Office of Federal Operations (EEOC-OFO). Id. at 11. Plaintiffs complaints for discrimination under Barrett were originally dismissed as untimely, but EEOC-OFO concluded that such incidents were timely as “part of the alleged pattern of harassment, ” because an event occurred within the 45-day period preceding Plaintiffs contact with the EEO Counselor on August 16, 2016. Id. at 16. The EEOC then accepted fou-v-bell-atlantic-maryland-inc#p133" class="raw-ref">288 F.3d 124, 133 (4th Cir. 2002).

Here, Plaintiff contends that he has exhausted his administrative remedies for all claims because his claims are related to his original charge to the EEOC. ECF No. 16-1 at 19. The Court is not convinced. Plaintiffs EEOC Complaint alleges age discrimination, and his narrative details incidents in which he experienced “(p]ersistent and ongoing age discrimination.” ECF No. 13-2 at 4. The claims accepted by the EEOC for investigation make no reference to disability discrimination or any alleged retaliation for speaking with an EEO counselor. It is thus clear on its face that Plaintiff did not allege any retaliation or disability discrimination in his EEOC Charge form. See id. Plaintiff s claims for disability discrimination and rehabilitation are thus similar to the circumstances in Ebaugh and Bryant'. Plaintiff cannot allege a different source of discrimination in this Court because his claims do not flow from the EEOC investigated claims. See Ebaugh, 2021 WL 2580118, at *9; Bryant, 288 F.3d at 133.

Plaintiff is not necessarily barred from bringing an action for disability discrimination and retaliation solely because he only checked the “age” discrimination box in filing his charge. However, his claims are barred because he has failed to show the alleged disability discrimination and retaliation were reasonably related or expected to arise from his investigation, as they are nowhere in his charge. See Chacko v. Patuxent Inst., 429 F.3d at 506. Plaintiffs EEOC complaint does not allege-even indirectly-that Defendant retaliated against him for engaging in a protected activity in violation of Title VII. Plaintiffs discussion of his impaired health in his EEOC interview was not related to allegations of disability discrimination or retaliation, but instead to the impacts of the alleged age discrimination, which is not in dispute. See ECF No. 16-1 at 19.

The Court, however, is not persuaded by Defendant's argument that Plaintiff's PCS claims were similarly not exhausted. Unlike his other claims, Plaintiff's PCS claims were identified in the narrative of his complaint, accepted by the EEOC for investigation, and investigated by the EEOC. ECF No. 13-2 at 11. Plaintiff alleges a hostile work environment claim, and while his claim alleges different supervisors, he alleges ongoing acts of age discrimination over the course of years from 2011 to 2016. The EEOC treated Plaintiffs allegations as a “persistent and ongoing pattern of harassment that encompasse[d] some matters which fell within the forty-five day period preceding his initial EEO Counselor contact.” Id. at 15 (citations omitted). Therefore, his PCS delay allegations were part of a timely-filed continuing violation investigated by the EEOC.

I find that Plaintiffs claim of age discrimination related to the PCS delays was timely exhausted as part of Plaintiffs alleged hostile work environment claim. However, Plaintiffs claims for disability discrimination in violation of the Rehabilitation Act and retaliation in violation of Title VII fail because he did not exhaust his administrative remedies. Plaintiff did not allege such claims in, nor did such claims relate to, his EEOC complaint. As such, the Court will grant Defendant's motion in part with regard to Counts II and III for violations of the Rehabilitation Act and Title VII respectively.

2. Hostile Work Environment Claim under the ADEA

Defendant further argues that Plaintiff s remaining claim for age discrimination in violation of the ADEA should be dismissed because he failed to state a claim for hostile work environment based on his age. To assert a claim for hostile environment under the ADEA, Plaintiff needs to show: “(1) that [he] is at least 40 years old; (2) that [he] was harassed based on [his] age; (3) that the harassment had the effect of unreasonably interfering with [his] work, creating an environment that was both objectively and subjectively hostile or offensive; and (4) that [he] has some basis for imputing liability to [his] employer.” Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294 (4th Cir. 1999) (citations omitted). “The ADE A does not expressly prohibit the creation of a hostile work environment, ” and this circuit has permitted such claims, relying in part on Title VII hostile work environment standards for ADEA claims. Kearns v. Northrop Grumman Sys. Corp., No. CIV.A. ELH-11-1736, 2014 WL 2170781, at *16 (D.Md. May 23, 2014).

Because Plaintiff is over 40 (bom 1952), see ECF No. 1 ¶ 1, and is alleging discrimination by his employer, at issue here are the second and third elements of the hostile environment framework. The second element requires that “but for his age, [Plaintiff] would not have been the victim of discrimination.” Kearns, 2014 WL 2170781, at *17 (citations omitted) (explaining that, to survive a motion for summary judgment, Plaintiff had to show that the harassment did not stem from “personal animosity, workplace competition, or general boorishness, but rather from agebased animus”). “An employee is harassed ‘based on' his age if, but for his age, he would not have been the victim of the discrimination.” Royster v. Gahler, 154 F.Supp.3d 206, 236 (D.Md. 2015), abrogated on other grounds by Pense v. Md. Dep't of Pub. Safety & Corr. Servs., 926 F.3d 97 (4th Cir. 2019).

This Court in Kearns explained that two occasions in which the plaintiff's supervisor asked “innocuous questions” about a plaintiff's plans to retire “standing alone, cannot establish that the workplace was permeated with age-based animus, ” because employers have a legitimate interest in their employee's plans for the future. Kearns, 2014 WL 2170781, at *17. Further, plaintiff did not allege any age-based derogatory language or “uncouth comments.” Id. Similarly, allegations of numerous derogatory comments, as well as being yelled at and physically threatened, were “wholly insufficient to state a claim for hostile work environment based on age” because no factual allegations related to the plaintiff's age. Royster, 154 F.Supp.3d at 236. The only age-based fact alleged-that similarly situated employees not of the plaintiffs age did not have the same experiences-were insufficient to show that the plaintiff was harassed because of her age. Id.

To satisfy the third element, the alleged harassment “must be severe or pervasive enough to create a subjectively and objectively hostile or abusive work environment.” Wells v. Gates, 336 Fed.Appx. 378, 388 (4th Cir. 2009) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)).This standard is not a “general civility code” meant to target “the ordinarily tribulations of the workplace, such as sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citations omitted). The Court should weigh a number of factors to determine whether action was objectively hostile, including: the frequency or severity of the conduct, physically threatening or humiliating conduct, conduct that is more than a “mere offensive utterance, ” and unreasonable interference with an employee's performance. Harris, 510 U.S. at 23. See Wells, 336 Fed.Appx. at 388. Because this element includes both a subjective and objective standard, Plaintiff must show both that he “did perceive, and [that] a reasonable person would perceive, the environment to be abusive or hostile.” E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009) (citing Harris, 510 U.S. at 21-23). See Kearns, 2014 WL 2170781, at *16.

This Court recently explained that “the mere utterance of an ... epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII, ” or by extension, the ADE A. See Angelini v. Baltimore Police Dep't, 464 F.Supp.3d 756, 790 (D.Md. 2020) (quoting Boyer-Liberto v. Fountainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (alterations omitted)). “A hostile environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Boyer-Liberto, 786 F.3d at 277 (alterations and citations omitted). An objectively hostile work environment does not exist when the Court is asked to solely “weigh[] the prudence of employment decisions made by employers charged with employment discrimination.” Wells, 336 Fed.Appx. at 388 (alterations and citations omitted).

This Court concludes that Plaintiff's Complaint has provided sufficient facts to allege a plausible claim for hostile work environment based on age under the ADEA. While this Court in Kearns explained that two innocuous questions about retirement were not enough to sustain the claim, Plaintiff here has plead greater facts to support his claim for age discrimination. Plaintiff states that he received “constant harassment about retirement” from his two supervisors over the course of five years and alleges that the three-year PCS payment delay was done to encourage his retirement. ECF No. 1 ¶¶ 14, 15, 20, 28, 60, 61. Plaintiff supports his belief that the PCS delay was due to his age by alleging that a similarly-situated younger employee was paid quickly. Id. ¶ 19. Further, Plaintiff has plead additional facts beyond harassment about retirement and PCS delay to indicate a broader scope of hostile environment based on his age, namely: “daily bullying from his manager and from peers” related to his age; repeated denials of desk audits despite another younger coworker receiving a promotion; differential treatment from younger coworkers by a supervisor, favoritism to younger coworkers in assignments and interactions; misinformation about an open position; comments by coworkers about his age and slowness; and the June 28, 2016 meeting in which Plaintiff was reprimanded, called a jerk, and told he was laughed at and took all day to write emails. Id. ¶¶ 47, 23, 34, 33, 44, 38-42 45, 53. Plaintiffs factual allegations thus show that he has provided more than the bare assertions of asking about retirement or differential treatment to younger employees in Kearns and Royster. Therefore, the Court finds that Plaintiff has pled sufficient facts to satisfy the second element, that but for his age, Plaintiff would not have experienced the discrimination.

Turning then to the third element, the Court will accept as true at this stage that Plaintiff's work environment was subjectively hostile or offensive, considering especially the onset of his diabetes which he attributes to the hostile environment. The closer question then is whether the alleged facts support that the environment was objectively hostile or offensive. Given the decisions in Angelini and Wells, allegations that a coworker once called him a “jerk” or “slow” and that he did not receive promotions alone would likely be insufficient to allege an objectively hostile or offensive work environment. However, the factors in Wells and Harris provide guidance. First, Plaintiff alleges frequent conduct, citing “constant harassment” spanning years, and ongoing incidents through those years. Second, Plaintiff alleged conduct that was humiliating in nature. He described being mocked as slow by his coworkers; received daily bullying from his coworkers; and called a jerk, slow, and silly by at least one coworker in a team meeting, without intervention from his supervisor. ECF No. 1 ¶¶ 45, 47, 53. These allegations also support the third factor that Plaintiff experienced more than a mere offensive utterance. And finally, Plaintiff alleges significant interference with his performance, including being excluded from team efforts and meetings, denied promotions and information necessary to do his job, disregarded from the chain of command, and misinformed about opportunities for advancement. Id. ¶¶ 22-23, 34, 38-45. While the severity of such conduct is not clear on the facts, Plaintiff does allege he had significant health and financial impacts of the hostile work environment. Id. ¶¶ 14, 46. And further still, Plaintiff is not required to prove elements at this stage. See Walters, 684 F.3d at 439.

Defendant argues that Plaintiffs allegations “fall woefully short of the type of conduct that supports a plausible claim for a hostile work environment, ” citing cases. ECF No. 17 at 6-7; ECF No. 13-1 at 20-21. However, the Court disagrees. The Fourth. Circuit in Perkins v. Int'l Paper Co. did uphold a grant of summary judgment, a notably different stage of the litigation, because the plaintiff failed to describe conduct that was “frequent, physically threatening[, ] or humiliating.” 936 F.3d 196, 209 (4th Cir. 2019). However, unlike the cases cited by Defendant, Plaintiff has alleged a hostile environment that spanned years and included allegations of humiliating name calling, criticism in front of team members, and harmful personnel decisions. While each of those factors alone may not be enough to sustain a claim for hostile work environment. Plaintiff has alleged all of them in an ongoing pattern. Accepting as true all factual allegations in the Complaint, the Court finds that Plaintiff has plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). At this stage Plaintiff is not required to prove the elements of his claim, but rather just demonstrate that his claim is plausible. Walters, 684 F.3d at 439. As such, the Court will deny Defendant's motion in part with regard to Count I.

Conclusion

For the reasons set forth in this Memorandum Opinion, the Court finds that Plaintiff has pled sufficient facts to state a claim to allege a hostile work environment in violation of the ADEA. However, Plaintiff has failed to state a claim for violation of the Rehabilitation Act and Title VII, because he failed to exhaust his administrative remedies. Therefore, Defendant's Motion (ECF No. 13) is GRANTED in part with regard to Counts II and III and DENIED in part with regard to Count I. A separate order will follow.