McClintick v. Leavitt (Maryland U.S.D.C.) (Not approved for publication)

Signed March 26, 2007. Opinion and Order by Judge Richard D. Bennett.

Memorandum and Opinion granting summary judgment in part.

Held: 1) A federal employee can seek relief for employment discrimination only by asserting causes of action under Title VII.

2) Not being nominated for a discretionary merit-based award may constitute an adverse employment action actionable under Title VII if the plaintiff can show that such a determination represents a decision on permanent pay status.

Facts: Plaintiff, white male, worked for U.S. Dept. Health and Human Services. His direct supervisor was an African-American female. In 2004, the Plaintiff was not nominated for a so-called Quality Step Increase ("QSI"). QSI's are awards given for sustained performance of high quality that significantly exceeds an acceptable level of competence. The Plaintiff had been nominated to receive a QSI for 2003, and had received other merit-based awards, when he was previously supervised by a different supervisor, who was Caucasian.

The Plaintiff sued, alleging that he did not receive a QSI for 2004 because of racial discrimination and retaliation for filing an earlier discrimination charge. The Plaintiff alleged four causes of action: Count I - race discrimination (Title VII), Count II - race discrimination (§1981); Count III - retaliation for participating in protected activity (Title VII); Count IV - retaliation in violation of §1981.

The Defendant moved to dismiss for failure to state a claim or, in the alternative, for summary judgment. The Court dismissed Counts II and IV because they were based upon §1981, a cause of action not available to Plaintiff, a federal employee. The Court denied the motion as to Counts I and III, finding that the Plaintiff had alleged sufficient facts to state a cause of action.

A full copy of the opinion is available in PDF format.

Tarquini v. Superior Products, Inc. (U.S.D.C.)(Not Approved for Publication)

Filed March 12, 2007 – Memorandum Opinion by Judge James K. Bredar

Plaintiff Tarquini, a former sales representative for Defendant Superior Products, brought this suit for wrongful discharge and violation of federal, Maryland and Virginia equal pay acts, violation of the Maryland Wage Payment Collection Act, breach of contract, and violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

In response to Superior’s Motion for Summary Judgment, the Court found that Tarquini’s claims based on Title VII and the Equal Pay Act alleging gender-based wage discrimination were not time-barred to the extent that a jury could find the violations willful (which extends the limitations period to three years). Tarquini’s sexually hostile environment claim also was not time-barred because, under the “continuing violation” doctrine, a letter terminating Ms. Tarquini within the statutory time period could serve as an act contributing to the alleged hostile environment, thereby allowing acts outside the limitation period to be brought in to support the claim.

The Court also denied summary judgment for Superior as to Tarquini’s retaliatory discharge claim. Although the Judge considered it undisputed that Tarquini was an at-will employee, other terms of her employment could permit Tarquini's claims based on breach of contract and violation of the Maryland Wage Payment Collection Act, so summary judgment on those issues also was dened.

The Court granted summary judgment as to Tarquini’s ADA claims after finding that she had not sufficiently demonstrated that she had a disability under the ADA. Finally, the Court granted summary judgment as to abusive discharge, since it is a judicial exception to create a remedy where none exists by statute and, in this case, Tarquini had statutory remedies available.

The full opinion is available in PDF as is the Order.

Henderson v. Gilbert (Maryland U.S.D.C.) (Not Approved for Publication)

Filed February 20, 2007--Opinion by Judge J. Frederick Motz. (Not approved for publication.)

Henderson brought this pro se employment discrimination action against Defendants Anne Arundel County Board of Education ("the Board"); John Gilbert, the foreman of operations for Anne Arundel County Schools; Walter George, the supervisor of operations for the Anne Arundel County Schools; and Sue Torr, who served as principal of Solley Elementary School ("Solley"). Other claims in the case had previously been dismissed. Here, the Court granted the Defendants' Motion for Summary Judgment as to the remaining three claims: Aalleged violation of Article 24 of the Maryland Declaration of Rights by all defendants; alleged violations of Title VII by the Board; and alleged federal constitutional violations by the individual defendants asserted under 42 U.S.C. 1983 and 1985(3).

The instant action arises from the denial of the promotion and from suspensions imposed on Henderson while he was employed as the Chief Custodian at Solley on three separate occasions. He alleged discrimination based upon his race and he also claimed that he was retaliated against after he filed his EEOC complaint.

The Title VII Claims Against the Board. Held: Henderson has not been able to establish a prima facie case for race discrimination because he has not been able to identify any employee of Solley--or the Board more broadly--who had similar work performance issues but received less severe discipline.

The Maryland Constitutional Claim Against All Defendants. Held: This claim fails for the same reasons as does Henderson's Title VII claims. Furthermore, the individual defendants are protected by a qualified privilege since the "facts establish that the individual defendants did not act with malice or gross negligence." Here, the term "malice" was defined as the "[intentional performance of] an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff."

The Federal Constitutional Claims Against Individual Defendants. Held: This claim fails for the same reasons as does Henderson's Title VII claims. Furthermore, the Court held that the individual defendants did not play a role in the decision-making process leading to Henderson's failure to be promoted.

A copy of the opinion and order is available in PDF.

Rodriguez v. Gutierrez (Maryland U.S.D.C.)(not approved for publication)

Decided December 29, 2006--Opinion by Judge Catherine C. Blake (not approved for publication)

Pro se complaint against Secretary of the U.S. Department of Commerce alleging discrimination based on race and national origin in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§2000e, et seq.

The Plaintiff alleged a hostile work environment claim under Title VII. To prevail on a hostile work environment claim, a plaintiff must show that: 1) the conduct in question was unwelcome, 2) the harassment was based on race, 3) the harassment was sufficiently pervasive or severe to create an abusive working environment, and 4) that some basis exists for imputing liability to the employer. The Court dismissed this claim because the Plaintiff did not allege that her harassment was based on race, and because her alleged harassment was not sufficiently pervasive or severe to create an abusive working environment.

The Plaintiff did allege that her supervisor made alleged statements that she did not like Mexicans and did not want the Plaintiff to speak Spanish. However, these incidents occurred in 1998 or 1999. The Plaintiff did not contact an EEO counselor about the events until six or seven years later. She was required to contact an EEO counselor within 45 days of an alleged discriminatory act. Thus, her claim was time-barred.

While a claim alleging a hostile work environment claim will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice, the supervisor's statements are not properly linked to the other, timely acts of discrimination and harassment alleged by the Plaintiff for several reasons:

[The supervisor] allegedly told [the Plaintiff] that she didn't like Mexicans in 1998-1999, and [the Plaintiff] did not begin to suffer the alleged harassment from co-workers until 2003. In the time period between 1999 and 2003, [the Plaintiff] alleges no harassment occurred. Second, [the supervisor's] harassment occurred while she was supervising [the Plaintiff] in CTMS, while [the Plaintiff's] co-workers allegedly harassed her while she was working in SASB. Although [the Plaintiff] directly worked with [the supervisor] in CTMS, [the supervisor] was not [the Plaintiff's] direct supervisor while [she] worked in SASB, and [the Plaintiff] does not allege that she worked on a regular basis with [the supervisor] in SASB. Third, there is no allegation that [the supervisor's] statements are related in any way to [the Plaintiff's] co-workers' harassment. . . .Thus, [the supervisor's] 1998-1999 statements are not part of the same "unlawful employment practice" alleged against [the] co-workers, and are time-barred.

The claim was dismissed without leave to amend.

The full opinion is available in PDF. The order is available here.

Jimenez v. Barnhart (Maryland U.S.D.C.)(not approved for publication)

Decided December 20, 2006--Opinion by Judge J. Frederick Motz (not approved for publication)

Pro se action for employment discrimination by an employee of the Social Security Administration. Defendants' Motion to dismiss or, in the alternative, for summary judgment, granted.

Held:

1. Director of the Office of Personnel Management has only discretionary authority to seek review of a decision of the Merit Systems Protection Board (the "MSPB"), which discretion may only be exercised if the Director concludes that "the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive."


2. A challenge to a decision of the MSPB can only be brought in the United States Court of Appeals for the Federal Circuit and a United States District Court has no jurisdiction over such claims.


3. An adverse finding of the MSPB with respect to discrimination claims are required to be filed in a United States District Court within 30 days after the MSPB’s decision became final. She did not do so. If a review of an MSPB decision as to other claims is sought, that appeal must be filed in the United States Court of Appeals for the Federal Circuit within 60 days after the MSPB's decision became final. The United States District Court cannot review a decision of the United States Court of Appeals for the Federal Circuit.


4. Certain claims are barred if an employee does not appeal an adverse decision of the Social Security Administration to the MSPB.
   


5. Any claim with regard to the issuance of a Performance Assessment Plan to an employee fails because the issuance of the Plan is not a "ultimate employment decision" of the type necessary to give rise to a discrimination claim.

The full opinion is available in PDF.