Opinion
C/A 3:21-3708-TMC-SVH
07-13-2023
Michelle Denise Parker, Plaintiff, v. Honorable Christine E. Wormuth Secretary of the Department of the Army, in her official capacity, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
In this federal employment discrimination case, an employee sues her former employer, alleging she was discriminated and retaliated against based on her race, sex, and disability, and was eventually forced to resign from her position as an executive administrative assistant at Fort Jackson, South Carolina, with the Department of the Army (the “Army”).
Michelle Denise Parker (“Plaintiff”), proceeding pro se, originally filed this case on November 12, 2021. [ECF No. 1]. On February 21, 2023, Plaintiff filed an amended complaint against Christine E. Wormuth, Secretary of the Department of the Army, in her official capacity (“Defendant”), alleging race, sex, and disability discrimination, as well as retaliation and a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq. (“ADA”).
The undersigned construes Plaintiff's ADA claims to have been brought pursuant to the Rehabilitation Act, 29 U.S.C. § 701 et seq. (“Rehabilitation Act”), rather than the ADA, where the Rehabilitation Act is the statute upon which a federal employee can raise a disability discrimination claim. See, e.g., Hatcher v. Wilkie, C/A No. 3:17-2535-JMC-PJG, 2019 WL 2090810, at *5 (D.S.C. Feb. 27, 2019) (collecting cases).
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendant's motion to dismiss or in the alternative for summary judgment. [ECF No. 40]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the applicable procedures and the possible consequences if she failed to respond adequately to Defendant's motion. [ECF No. 42]. Defendant's motion having been fully briefed [see ECF Nos. 44, 47, 48], this matter is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion.
I. Factual and Procedural Background
Plaintiff alleges she worked for Defendant beginning February 2006 and eventually served as the administrative specialist in the adjutant general school, the largest school and directory within the soldier support institute. [See ECF No. 34-1 at 1].
Following his hire as Plaintiff's direct supervisor in October 2018, Ward Douglas Ward (“Ward”) determined Plaintiff's position description (“PD”) should be changed as follows:
When I was hired as the Deputy in Oct 2018, I reviewed Ms. Parker's PD, along with all other PDs in the AGS, and some (including her PD) were updated. I determined that Ms. Parker's position should require her to not only support the Commandant and Deputy Commandant; but, also the other two key AG School leaders that make up the Headquarters Section .... Specifically the PD change required her to assist with these two individual's scheduling and their travel and removed her duties as an AT AAPS (timecard) administrator. I worked closely with [others] to properly update and classify her PD. Mr. Dean worked with Ms. Brenda Browne (CPAC Classification POC) to get Ms. Parker's PD classified properly. Ms. Browne stated that the additional verbiage (duties) in the PD did not constitute a grade increase, rather it secured the GS 9 grade of the PD since it actually would have classified as a GS 7 PD without the additional verbiage (duties).[ECF No. 48-1 at 15-18]. Plaintiff was informed of her PD change on June 12, 2019. Id. at 2.
On June 20, 2019, Plaintiff made initial contact with the Army Equal Employment Opportunity (“EEO”) Office and an in-person interview was conducted. [ECF No. 40-1 at 3 (ARJACKSO 19JUN02522)]. Plaintiff filed her formal EEO complaint on October 2, 2019, alleging as follows:
Was Complainant discriminated against on the bases of race (Black), and sex (female) and subjected to harassment by Mr. Ward D. Ward and Colonel (COL) Michael T. McTigue [(“McTigue”)] when:
a. On May 8, 2019, and frequently thereafter, her work performance was continually under the scrutiny and watchful eye of the leadership of the Adjutant General School (AGS); and
b. On June 12, 2019, she was notified that her position description (PD) had changed to reflect additional duties that were not consistent or similar with the other 030 l series, Administrative Assistants, in the organization, Soldier Support Institute (SSI) ....[ECF No. 40-1 at 13, see also ECF No. 34-4 at 1].
Plaintiff also filed an inspector general (“IG”) complaint arguing that Ward and McTigue “failed to foster a healthy command or organizational climate.” [ECF No. 48-4 at 77, 112 (stating her initial visit regarding this complaint occurred in February 2019 and that she filed the complaint on March 27, 2019)]. Plaintiff's claims were found to be without merit. See id.
During the ensuing investigation, Plaintiff was interviewed as follows:
On 02 July 2019, I interviewed Ms. Parker, Michelle D. concerning her complaints of being discriminated against on the EEO bases of her race (Black), sex (Female) and subjected to harassment by her supervisors. Ms. Parker explained that her complaint was based on the constant roaming of her supervisor and cadre around her immediate work area. She cited incidents of the use of profanity and being embarrassed when requested for individual to cease. Also that her seating during staff meeting was changed due to the complaint. Ms. Parker stated that her position description had been changed without being counseled of the fact. She stated false rumors of . . . her pending retirement or relocating was being suggest in a negative fashion. She identified all alleged harassers as being Caucasian and that race was an issue when it came to duty assignments[.] [ECF No. 40-1 at 6].
On July 7, 2020, Plaintiff submitted a temporary request for reasonable accommodations during the COVID-19 pandemic concerning her work environment. [ECF No. 48-2 at 160]. Plaintiff was provided the following modified accommodations that continued to include accommodations that had already been provided (“modified accommodation”):
a. Ms. Parker will be authorized to alternate (daily) telework and work from her desk .... Modifications to this routine requires advance approval.
b. Following are accommodations already provided to Ms. Parker:
1) Purchased and installed modifications (frosted glass panels) to Ms. Parker's workstation to reduce the likelihood of direct transmission.
2) Placed tape on the carpet around her workstation to encourage foot traffic to remain approximately 6-feet from desk.
3) Placed a sign at the main entranceway to the AG School encouraging foot traffic to use alternative entrances to the main hallway where Ms. Parker sits to decrease (but not eliminate) casual contact.
4) Mr. Ward sent an email (twice) to all AG School staff encouraging them to reduce foot traffic down the main entranceway hallway.
5) Provided Ms. Parker cleaning supplies and masks.[ECF No. 48-2 at 161].
On November 5, 2020, Plaintiff contacted the Army EEO Office again and a telephonic interview was conducted. [ECF No. 40-2 at 3 (ARJACKSON 20NOV03391)]. Plaintiff filed her formal complaint on February 10, 2021, alleging as follows:
Was CP subjected to discrimination and harassment based on her disability (mental), race (African American), sex (female) and reprisal (ARJACKSO 19JUNE02522) by her supervisors, Mr. Ward and Colonel (COL) Marcus Motley [(“Motley”)], when CP's modified accommodation was not implemented as described by the Agency's response for her reasonable accommodation when:
1. On or about September 22, 2020, the Agency failed to adhere to the modified accommodation by not enforcing six feet of social distancing around her workstation and not limiting the personnel traffic through the main entry way to the AGS; and
2. On or about September 22, 2020, CP's request to modify her approved accommodation and telework schedule from three days to five days went unanswered by COL Motley . .[ECF No. 40-2 at 11-12, see also ECF No. 34-4 at 2].
During the investigation that followed, Plaintiff was interviewed as follows:
(11 Dec 20) Ms. Parker, Did the Agency adhere to your agreed upon request for Reasonable Accommodation (RA)?
No, the agency did not comply with my Reasonable Accommodation by not enforcing the 6ft social distancing around my workstation. They did not correct others as they entered my work area while not practicing social distancing around my desk. Also, they posted a sign at the front entrance directing personnel
to use other entrances, however, staff members and instructors ignored the sign and continued to use the main hallway entrance leading to my desk.
In what other way do you feel the agency has failed to respond your RA?
In addition to my agreed upon RA, I have requested through email to COL Motley to modify my work schedule from 3-days a week teleworking to 5-days a week teleworking. I never received an email back from COL Motley and yet to receive a formal and thorough answer to my request.[ECF No. 48-3 at 5].
Plaintiff repeatedly alleges in her amended complaint and argues in briefing, concerning the EEO investigations, that Ward and others provided false information to the investigators. [See, e.g., ECF No. 34-1 at 3, ECF No. 48 at 3-4]. Plaintiff has offered no evidence in support of these allegations.
Eventually, Plaintiff's request for teleworking five days a week was denied, and she was informed she must return to work. [See ECF No. 48-3 at 122]. Thereafter, the following occurred, a recounted by Ward:
Ms. Parker was teleworking on alternating work days as a reasonable accommodation (RA) related to COVID-19. The RA ended on 20210312 and she was required to return full time to inoffice work. Ms. Parker continued to telework on April 6, 8, and 12 without authorization. Ms. Parker was notified via email on three occasions, that if she continued to telework and not report to her office, she would be carried as AWOL. She was then AWOL on April 13-16 (four days). She was then on Sick Leave April 19- 23.
Ms. Parker is the only Administrative Specialist for the Adjutant General School (AGS). She sits within the entryway to the AGS and part of her job is to greet all visitors to the AGS and help them; especially if they are meeting with the Commandant, CSM,
CWO or Deputy. Most of the personnel traffic coming to the AGS is unscheduled and requires face-to-face interaction to be effective. There is also a continuous need for answering the phone. The AGS receives multiple calls every hour of the workday that require routing to the appropriate person or passing of messages. These calls must be screened so that senior leaders are not continually interrupted or a more senior leader is not ignored. Voice mail is ineffective as Ms. Parker needs to be available to check her messages. When VIP visitors are expected/present, their schedules frequently change; which creates a cascade of changes to multiple calendars within a short time; again necessitating that Ms. Parker be physically present. This is a one-deep position and her physical absence increases the workload on all other personnel-preventing them from performing their tasks. There is no one available to “sit her desk” when she is not working.Id. at 160.
On June 14, 2021, Ward issued Plaintiff a letter of reprimand for being absent from work without authorization and without having requested leave on April 13-16, 2021. Id. at 109-111. Plaintiff alleges she was “erroneously] charg[ed] . . . 30 hours AWOL” in conjunction with this letter of reprimand. [ECF No. 34-1 at 2].
The parties agree that during the investigation and resolution of Plaintiff's second EEO complaint, the office of personal management notified Plaintiff that her request for disability retirement had been granted and thereafter Plaintiff sought to add a constructive discharge claim to her second EEO complaint. [ECF No. 40 at 4, ECF No. 48-4 at 92, 93, 107].
Plaintiff has submitted medical documentation from her treating psychiatrist concerning her request for disability retirement, providing in part as follows:
PROGNOSIS: When individuals start to struggle with mental health disorders, many of these abilities can be a challenge. Normally, we would try to work with individuals to keep them in the job. Michelle Parker has spent 35 months amount of time. Unfortunately, this is not always possible. Given current command climate[,] workplace tension and discrimination/retaliation issues, strongly feel that remediation [is not] possible and that continuation of employment will continue to worsen Ms. Parkers health and is not in best interest of her or in the Army Civilian service Corps ....
RECOMMENDATION: Given such recommendation that Michelle Parker be considered for medical retirement as she cannot maintain a full-time position with risking worsening her mental health. Undersigned recommends that any remaining time with the DOD be at minimum out of the current SSI unit given the command climate is specifically contributing. It my professional recommendation that Michelle Parker be medically retired to allow for the betterment of her mental/physical health.[ECF No. 48-3 at 164-65].
Plaintiff filed her opposition to Defendant's instant motion on June 7, 2023. [ECF No. 44]. With her opposition, Plaintiff submitted over 1,000 pages of documents that were not separated, organized, labeled, or identified in her opposition. [ECF No. 45]. The court rejected this “document dump,” providing Plaintiff until June 22, 2023, to submit her documents in an accessible format. See id. Plaintiff refiled her opposition with attached documents on June 21, 2023. [ECF No. 48]. Although Plaintiff has again provided the court with 864 pages of documents, Plaintiff has attempted to provide the court with descriptions of the individual documents [see ECF No. 48-1 at 1, ECF No. 48-2 at 1, ECF No. 48-3 at 1, ECF No. 48-4 at 4, ECF No. 48-5 at 1] and has referenced some of these descriptions in her opposition brief. [See ECF No. 48]. As stated by the Fourth Circuit,
The Federal Rules of Civil Procedure require parties to cite all evidence in support of their positions at summary judgment, thus permitting a district court to limit its review to such cited materials. See Fed.R.Civ.P. 56(c)(1), (3) .... The responsibility to comb through the record in search of facts relevant to summary judgment falls on the parties-not the court.Carlson v. Bos. Sci. Corp., 856 F.3d 320, 324-25 (4th Cir. 2017); see also Arvon v. Liberty Mut. Fire Ins. Co., No. 20-1249, 2021 WL 3401258, at *3 (4th Cir. Aug. 4, 2021) (“Rule 56(c)(3) was added to the Federal Rules of Civil Procedure in 2010 to clarify that a ‘court may decide a motion for summary judgment without undertaking an independent search of the record.'”).
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dept of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller, 901 F.2d at 390-91.
C. Analysis
1. Title VII Discrimination Claims
Title VII prohibits employers from taking any personnel actions affecting employees “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Absent evidence of direct discrimination, a plaintiff can proceed under the McDonnell Douglas burden shifting framework. First, to establish a prima facie case, “a plaintiff must show that (1) she is a member of a protected class; (2) her employer took an adverse action against her; (3) she had been fulfilling her employer's legitimate expectations at the time of the adverse action; and (4) the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination . . . .” Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 649-50 (4th Cir. 2021) (citation omitted). Once a plaintiff makes out a prima facie case, the burden shifts to the employer to put forth a nondiscriminatory explanation for its actions. Id. (citation omitted). If the employer does so, the burden then shifts back to the plaintiff to show that the employer's explanation was actually a pretext for discrimination. Id. (citation omitted).
Here, Plaintiff has failed to establish a prima facie case in that the actions she complained of-that she was overly scrutinized and that she was given additional duties-do not indicate her employer took an adverse action against her. Specifically, relief for alleged discrimination under Title VII is available only for an “adverse employment action”-one that “adversely affect[s] the terms, conditions, or benefits of the plaintiff's employment” that causes “significant detrimental effect.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007); Swaso v. Onslow Cty. Bd. Of Educ., 698 Fed.Appx. 745, 748 (4th Cir. 2017). “[D]islike of or disagreement with an employer's decisions does not invariably make those decisions ones that adversely affected some aspect of employment.” Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015).
As stated by the Fourth Circuit:
The mere fact that a new job assignment is less appealing to the employee, however, does not constitute adverse employment action. A reassignment can only form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect. [A]bsent any decrease in compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a new position commensurate with one's salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position.James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004) (citations omitted).
Here, the parties agree that Plaintiff's PD enlargement did not impact her pay, grade, duty location, or supervisory status, and Plaintiff has failed to submit admissible evidence of adverse terms causing significant detrimental effects. See, e.g., Frazier v. Wal-Mart, C/A No. 6:10-2007-JMC-JDA, 2012 WL 554478, at *4 (D.S.C. Feb. 1, 2012) (“Plaintiff's allegations about working weekends and management not discussing claims updates with Plaintiff are not adverse employment actions because they do not constitute a significant change in employment status.”), report and recommendation adopted, C/A No. 6:10-02007-JMC, 2012 WL 554467 (D.S.C. Feb. 21, 2012). Nor does the record indicate that the increased scrutiny of Plaintiff's work caused a significant change in her employment status. See, e.g., Bradley v. U.S. Foods, Inc., C/A No. 4:14-1772-RBH, 2015 WL 5158731, at *4 (D.S.C. Sept. 2, 2015) (holding “heightened scrutiny” did not constitute an adverse employment action and collecting cases).
Additionally, there is no indication in the record that the actions complained of-that Plaintiff was overly scrutinized or given additional duties-occurred due to her race or sex. Plaintiff argues otherwise. First, Plaintiff alleges, without supporting evidence, as follows:
Defendant did not want to hire Plaintiff instead [wanted] a white female. The Plaintiff was the first black female who worked in this Position ....[ECF No. 34-1 at 4]. Plaintiff also offers the following from another executive assistant, Tonya Rogers (“Rogers”):
[Y]es, I believe [her treatment] was motivated by her race and sex because although there were other African-American females that worked there they didn't walk by their desks consistently or stare at them. I cannot explain their reasons, I only know that I witnessed them treat Complainant differently in a negative way . . . .Yes, she told me that she believed they increased her duties because of her race and sex. I agree based on the perception of how they treated her. I have been in the organization for 12 years and it is atypical to alter someone's PD unless they were given a promotion. I am not aware of anyone's PD changing within the same pay-grade.[ECF No. 48-1 at 37].
These unsupported allegations are insufficient and do not indicate that the decision to enlarge Plaintiff's PD, or any other decision that was made, was motivated by her race or sex. As stated by the Fourth Circuit, an allegation of different protected characteristics might be “consistent with discrimination,” but “it does not alone support a reasonable inference that the decisionmakers were motivated by bias.” McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 586 (4th Cir. 2015) (emphasis in original); see also Iqbal, 556 U.S. at 678 (rejecting allegations “that are ‘merely consistent with' a defendant's liability”). Additionally, the evidence from Rogers is undermined by her concession that she “cannot explain their reasons” and by Plaintiff's failure to offer any evidence beyond supposition from her and Rogers that any of Defendant's actions were taken because of Plaintiff's race or sex. See, e.g., Robinson v. Priority Auto. Huntersville, Inc., 70 F.4th 776 (4th Cir. 2023) (“plaintiffs need to present more than their own unsupported speculation and conclusory allegations to survive” summary judgment).
Plaintiff offers extensive argument, but without supporting evidence, comparing herself to other employees in support of her claims. As relevant here, Plaintiff first argues that her enlarged PD was inconsistent with the duties and responsibilities of others who held the same position as Plaintiff. [See, e.g., ECF No. 34-1 at 1, ECF No. 48 at 2]. Second, Plaintiff argues that “Defendant did not change two male civilian employees' PD instead added their duties to Plaintiff's PD,” presumably referencing Jeffrey Miller and Marcus Campbell, who Plaintiff describes as having “separate Position Description with separate duties, responsibilities, objectives, Senior Leaders . . . .” [ECF No. 34-1 at 1, 9, ECF No. 48 at 3]. Plaintiff also argues extensively and repeatedly that “Defendant erroneously handpicked, hired, promoted, ensure, and increased incomes of white male civilian employees and friends” and did not treat Plaintiff the same. [ECF No. 34-1 at 5,ECF No. 48 at 5-6].
“To establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (citations omitted). Although Plaintiff repeatedly compares herself to other employees, arguing generally that white males were treated better, Plaintiff fails to offer any allegation or evidence that these other employees are valid comparators. See also Carter v. Ball, 33 F.3d 450, 456 (4th Cir. 1994) (“The mere absence of minority employees in upper-level positions does not suffice to prove a prima facie case of discrimination without a comparison to the relevant labor pool.”).
Defendant has offered unrebutted evidence that the other executive assistants Plaintiff compares herself to are not valid comparators. [See ECF No. 48-1 at 113 (“Basically, no real comparison on either PD”)]. Additionally, Plaintiff's argument that other black female executive assistants were treated more favorably than her [see ECF No. 48 at 2, ECF No. 48-1 at 11, 40, 113], also does not support an inference that Defendant discriminated against Plaintiff based on her race or sex.
Finally, as to Plaintiff's enlarged PD, Defendant has offered a nondiscriminatory reason for its action: that Plaintiff's PD was enlarged to secure her GS 9 grade. [See, e.g., ECF No. 48-1 at 55 (“Duties are so watered down as to classify as a GS07 not a GS09”), ECF No. 48-1 at 18]. Plaintiff has offered no evidence or even argument that Defendant's provided reason is not the actual reason for the enlargement of her PD.
Accordingly, the undersigned recommends the district judge grant Defendant's motion as to Plaintiff's Title VII discrimination claims.
2. Rehabilitation Act Discrimination Claims
The Rehabilitation Act prohibits federal agencies from discriminating against its employees based on disability. See 29 U.S.C. § 794; Hannah P. v. Coats, 916 F.3d 327, 336 (4th Cir. 2019). As with Plaintiff's Title VII claims, absent evidence of direct discrimination, a plaintiff can proceed under the McDonnell Douglas burden shifting framework. To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must show (1) she is disabled; (2) she was otherwise qualified for the position; and (3) she suffered an adverse employment action solely based on her disability. Coats, 916 F.3d at 342 (citation omitted); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005)).
As stated by the Fourth Circuit, “[t]his court interprets the ADA and the [Rehabilitation Act] in lockstep.” Basta v. Novant Health Inc., 56 F.4th 307, 316 (4th Cir. 2022); see also Koon v. North Carolina, 50 F.4th 398, 403 n.2 (4th Cir. 2022) (“The Fourth Circuit treats claims under the Rehabilitation Act and the ADA as the same. They can be ‘combined for analytical purposes because the analysis is substantially the same.' Seremeth v. Bd. of Cnty. Comm'rs, 673 F.3d 333, 336 n.1 (4th Cir. 2001).”).
Plaintiff argues she suffered extensive disability discrimination, but has failed to identify an adverse employment action, or any action, that Defendant took based on her disability. Although Plaintiff argues, for example, that she was provided accommodations to encourage social distancing, and that these accommodations were not fully respected, she has failed to show certain people not fully respecting her social distancing accommodations adversely affected the terms, conditions, or benefits of her employment. See, e.g., Spriggs v. Pub. Serv. Comm'n of Maryland, 197 F.Supp.2d 388, 393 (D. Md. 2002) (“An action that merely causes an employee irritation or inconvenience, but does not affect a term, condition, or benefit of her employment, is not an adverse employment action.”) (citations omitted)).
For the same reason, Plaintiff's allegations, for example, that “Defendant decreased Plaintiff's income by erroneously charging her 30 hours AWOL, depleted her sick leave, and force her to travel to doctors' appointments to get daily notes/excuses for her Mental Illness” [ECF No. 48 at 8, see also ECF No. 34-1 at 2], also are not adverse employment actions sufficient to support a Rehabilitation Act discrimination claim. See, e.g., Byrd v. Vilsack, 931 F.Supp.2d 27, 41-42 (D.D.C. 2013) (finding no materially adverse employment action when employee who “was charged as ‘AWOL' and was docked 7.75 hours of pay for her absence” after a request for and denial of the ability to work from home for the day); Dailey v. Lew, C/A No. GLR-15-2527, 2016 WL 1558150, at *7 (D. Md. Apr. 18, 2016) (same where plaintiff was charged 80 hours AWOL), aff'd, 670 Fed.Appx. 142 (4th Cir. 2016); Terry v. Perdue, No. 202016, 2021 WL 3418124, at *2 (4th Cir. Aug. 5, 2021) (“[W]e have held that an employer does not commit an adverse employment action when it requires an employee to comply with its sick leave policy.”); Phillips v. Donahoe, No. 1:11CV279, 2013 WL 646816, at *12 (M.D. N.C. Feb. 21, 2013) (collecting cases and holding “[a] requirement of medical documentation to support ongoing leave requests, or an occasional denial of leave requests, would not constitute an adverse retaliatory action.”); see also, e.g., Wandji v. Wilkie, C/A No. 2:18-03036-RMG-MGB, 2020 WL 7647552, at *28 (D.S.C. Nov. 9, 2020) (discussing Title VII retaliation “materially adverse” standard as “broader” than Title VII discrimination “adverse employment action” standard), report and recommendation adopted, C/A No. 2:18-03036-RMG, 2020 WL 7237922 (D.S.C. Dec. 9, 2020), aff'd sub nom. Wandji v. McDonough, 850 Fed.Appx. 851 (4th Cir. 2021).
Additionally, Plaintiff has not addressed the applicable evidence offered by Ward during the relevant EEO investigation as follows:
Ms. Parker is the EA for the school. As such, the way the design of the facility is set up, the entrance of the AGS comes through a main door that leads to a hallway that goes by her desk. She sits as the gatekeeper for the school. The design of her position and desk is to greet people who enter the school. She made one specific request to limit the flow by her desk. She wanted the entry door closed. However, I could not, because we would have visitors who did not know the layout of the building. What we did was put out a sign that gave directions to people trying to get around. That cut down traffic to her area even though we lifted the reasonable accommodation. She wanted us to close the door but we compromised by putting up the sign. We also placed blue tape on the carpet floor so that the traffic pattern would stay six feet from her desk. Her desk was already an EA desk too so it already had a raised pedestal so that she was protected, but I also added a glass partition to help prevent vapor interchange. I also sent out an email to the AGS to describe what we did to cut down traffic in her area. We did not make it specifically about her. However, there were periods of time where people weren't in the office and she wasn't at that desk. So I believe people may have been complacent on going around her desk .... She did come to me at one point and said there was too much traffic. I sent out another email to AGS to limit traffic in her area. If I ever saw someone that looked like they were going down her area, I would correct them ....[ECF No. 48-3 at 40-41, see also id. at 18].
Plaintiff additionally argues that she was discriminated against by not being allowed to telework, but, again, fails to show this decision was an adverse employment action taken solely because of her disability.Generally, “denial of a telework arrangement on its own does not constitute an adverse employment action.” Redmon v. United States Capitol Police, 80 F.Supp.3d 79, 87 (D.D.C. 2015) (citing cases); see also Brockman v. Snow, 217 Fed.Appx. 201, 206 (4th Cir. 2007) (“A determination affecting [the plaintiff's] ability to work where she chooses is not the type of ultimate decision that this court has required for a prima facie case of discrimination.”).
As discussed above, Plaintiff repeatedly argues that she was not allowed to do what other male employees were allowed to do, including telework. [See ECF No. 48 at 8-9]. However, Plaintiff fails to offer any allegation or evidence that the other employees she compares herself to are valid comparators.
To the extent that Plaintiff is bringing a claim for failure to accommodate as to Defendant's denial of her telework request, “[t]o establish a prima facie claim of failure to accommodate under the Rehabilitation Act, a plaintiff must demonstrate that: (1) she has a disability; (2) her employer has notice of the disability; (3) with reasonable accommodations she was otherwise qualified to perform the essential functions of the position in question; and (4) the employer nonetheless refused to make the accommodation. Coats, 916 F.3d at 337 (citation omitted).
Here, the court need not address every element because, although Plaintiff argues otherwise, she has not shown that with the reasonable accommodation she requested, to be allowed to exclusively telework, she could still perform the essential functions of her position. Plaintiff addresses this issue in briefing as follows:
There were no guests to welcome to AG school because people worldwide were on mandated lockdown and teleworking .... The Plaintiff can perform all her essential functions, duties, responsibilities, objectives, and males' duties teleworking five days a week like she did when on mandated teleworking.[ECF No. 48 at 20-23, see also ECF No. 34-1 at 14]. However, Plaintiff has offered no evidence to support her argument above, and Defendant has offered undisputed evidence that an essential function of Plaintiff's position was to accomplish her work in person. As the Fourth Circuit has held, “except in the unusual case where an employee can effectively perform all work-related duties at home . . .,” attendance at the work site is presumed to be an essential function of a job. Tyndall v. Nat'l Educ. Ctrs. Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994).
Additionally, Plaintiff has offered a doctor's note that states “[p]lease allow the patient to telework through 7/13/20” [ECF No. 48-2 at 147], indicating a suggestion about, but not a prohibition of, in-person work based on Plaintiff's disability. See, e.g., Smith v. CSRA, 12 F.4th 396, 415 (4th Cir. 2021) (finding DEA not required to offer Plaintiff remote work accommodation and highlighting that doctor's note did not state that remote work was required).
Plaintiff additionally argues she was discriminated against by being constructively discharged in that her request for disability retirement was granted. An employee who voluntarily resigned from his job has not experienced an adverse employment action. Cooper v. Smithfield Packing Co., Inc., 724 Fed.Appx. 197, 202 (4th Cir. 2018). However, “[a]n employee is considered constructively discharged if an employer deliberately makes the working conditions intolerable in an effort to induce the employee to quit.” Freeman v. Dal-Tile Corp., 750 F.3d 413, 425 (4th Cir. 2014) (citations omitted)). As discussed more below in conjunction with her hostile work environment claims, Plaintiff has failed to allege or offer evidence of “working conditions . . . so intolerable that a reasonable person in [her] position would have felt compelled to resign.” Green v. Brennan, 578 U.S. 547, 555 (2016).
Accordingly, the undersigned recommends the district judge grant Defendant's motion as to Plaintiff's Retaliation Act discrimination claims.
3. Title VII and Rehabilitation Act Retaliation Claims
To succeed on her Title VII retaliation claim proceeding under the McDonnell Douglas framework, Plaintiff must show that “(1) he engaged in a protected activity; (2) the employer acted adversely against him; and (3) there was a causal connection between the protected activity and the asserted adverse action.” Strothers v. City of Laurel, 895 F.3d 317, 327 (4th Cir. 2018) (quoting Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008)); see also Hooven-Lewis v. Caldera, 249 F.3d 259, 271 (4th Cir. 2010) (same as to Rehabilitation Act)). “[U]nlike a substantive discrimination claim, the adverse action component of Title VII's antiretaliation provision is not limited to discriminatory actions that affect the terms and conditions of employment,” and “the adverse action component of Title VI''s antiretaliation provision can be satisfied by showing that the employer took materially adverse action in response to an employee engaging in a protected activity.” Williams v. Prince William Cty., 645 Fed.Appx. 243, 244-45 (4th Cir. 2016).
The court assumes Plaintiff engaged in protected activities when she filed complaints on or around March 2019, October 2019, and February 2021. Plaintiff appears to primarily argue that she was retaliated against following these protected activities when her PD was enlarged effective June 2019, when Defendant failed to enforce her modified accommodations or grant her telework privileges on and around September 22, 2020, and when she was issued a letter of reprimand regarding her AWOL status on June 14, 2021.
Although Plaintiff argues otherwise, her voluntary disability retirement is not a materially adverse action where, generally, “an employee's voluntary resignation does not, as a matter of law, constitute an adverse employment action.” Lee v. Olsten Staffing Servs. Corp., C/A No. 4:18-2520-SAL-KDW, 2020 WL 6218725, at *13 (D.S.C. Mar. 11, 2020), report and recommendation adopted, C/A No. 4:18-02520-SAL, 2020 WL 4726738 (D.S.C. Aug. 14, 2020). Additionally, as already discussed above, Plaintiff's allegations that she was wrongly charged AWOL hours, was forced to deplete her sick leave, and had to secure doctor's excuses are neither adverse employment actions for purposes of her discrimination claims nor materially adverse actions for purposes of her retaliation claims.
Plaintiff has failed to establish a prima facie case for some, if not all, of the complained-of materially adverse actions taken. Although temporal proximity may suffice to establish causation when the protected activity and adverse action are “very close” or less than, for example, three months apart, see, e.g., Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 173 (4th Cir. 2020), as amended (Oct. 16, 2020) (holding two weeks close enough, but three months “too tenuous to support a reasonable inference of causation”), here, generally, the complained-of adverse actions appear too remote in time from Plaintiff's protected activities. But see Thomas v. City of Annapolis, Maryland, 851 Fed.Appx. 341, 350 (4th Cir. 2021) (“We have previously held that four months between the protected activity and adverse employment action is sufficient to establish a causal connection at the prima facie stage.”) (citing Carter, 33 F.3d at 460)).
However, even if she had established a prima facie case, Plaintiff has failed to provide any allegation or evidence that Defendant's offered reasons for the actions taken are pretextual, as discussed above regarding her enlarged PD and her accommodations. As to the letter of reprimand, Defendant has offered, and Plaintiff does not dispute, that she did not come to work on the days in question after she was informed she was required to work in-person. There is no indication Defendant's reason offered for issuing the letter of reprimand is pretextual.
Accordingly, the undersigned recommends the district judge grant Defendant's motion as to Plaintiff's retaliation claims.
To the extent that Plaintiff argues she was discriminated or retaliated against when she received a “3” or “fully successful” rating as opposed to a “5” or “outstanding” rating [see ECF No. 48-2 at 18-52, see also ECF No. 48 at 10 (“Plaintiff did not receive counseling or daily expectations from male supervisors and received low rating of ‘3' on appraisal”), ECF No. 34-1 at 8], Plaintiff's claims fail where she has offered no evidence that this evaluation had any impact on the terms or conditions of her employment or was a materially adverse action. See, e.g., Evans v. Int'l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019) (holding employee's “results meets commitment” rating was not materially adverse action under Title VII anti-retaliation provision); McKinney v. G4S Gov't Sols., Inc., 711 Fed.Appx. 130, 137-38 (4th Cir. 2017) (holding “two counseling forms” did not constitute a tangible employment action where “they had no effect on the terms or conditions of [the plaintiff's] employment); Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 651-52 (4th Cir. 2002) (finding that neither “disciplinary discussion” prompted by employee's insubordination nor performance evaluation unaccompanied by tangible effects on employment were adverse employment actions for purposes of a retaliation claim under Title VII).
4. Title VII and Rehabilitation Act Hostile Work Environment Claims
To state a claim for a Title VII or Rehabilitation Act hostile work environment, Plaintiff must allege conduct was (1) unwelcome; (2) based on her gender, race, or disability; (3) sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive work environment; and (4) imputable to her employer. Pryor v. United Air Lines, Inc., 791 F.3d 488, 495-96 (4th Cir. 2015); Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001) (noting for an ADA hostile work environment claim, the plaintiff must also show she is a qualified individual with a disability). In other words, as the Supreme Court has made clear, a hostile work environment exists when an employee's “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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted).
Plaintiff has failed to allege or provide evidence that the treatment she complains of is either sufficiently severe or pervasive or was based on her gender, race, or disability. Plaintiff disagrees, arguing that she endured a hostile work environment based on conduct already discussed above, including that her PD was enlarged, she received a “fully successful” appraisal, she was required to perform certain work activities and was excluded from certain other work activities, and was forced to return to the office in person along with the attendant effects including being charged 30 hours as AWOL. Plaintiff also provides the following overview as to the conditions she alleged occurred:
harassed and humiliate via cellphone, text messages, teleconferences, in front of her workstation, group of people/ audience, mimic, purposely coughed very loud close to her workstation, purposely close to her workstation Defendant yelling and running down hallway (see picture), talking very loud to each other, purposely talking very loud on speaker phone in office with door purposely open and purposely turning volume up high/max on cellphone and work phone, purposely and rudely interrupt Plaintiff's conversation with people at her workstation, purposely speaking loud and taking pictures of Plaintiff and her computer monitor, purposely, loudly, and hardly snatching AGS CR door open (see picture), purposely making bully, intimidating, and angry comments to Plaintiff, purposely using profanity (F-word) within the Plaintiff's hearing .... purposely walking very close to Plaintiff's workstation looking at her cellphone and documents on desk, purposely walking so close to workstation boot kick workstation, purposely escorted wife by Plaintiff's workstation to stare at Plaintiff, required Plaintiff to remain in office longer than male employees for departure of mandated home lockdown/telework for COVID19 Pandemic, required Plaintiff to allow male instructor disrespect her. See email .... muted teleconferences knowing Plaintiff was on conference, harassed Plaintiff via teleconference for filing Complaints and requesting to disapprove Plaintiff's many days of sick leave .... sent Plaintiff harassing and bullying emails and text messages, purposely charged Plaintiff leave for an EEO Appt, purposely removed Plaintiff's computer from workstation while she was on sick leave for mental health, provided an untrue supervisor's statement for Plaintiff's Forced Involuntary Disability Retirement/Constructive Dismissal, refused to stop or assist Plaintiff with the indescribable treatment after her continuously plea instead encourage, supported, and participated .... Defendant purposely removed Plaintiff's seat and name plate from table she sat in for 12-13 years . . . .[ECF No. 48 at 18-19, 25, see also ECF No. 34-1].
Plaintiff has not submitted admissible evidence to support most of the allegations she has made above concerning her hostile work environment claims. However, even if Plaintiff had fully supported her allegations, she still has not shown sufficiently severe or pervasive treatment that was based on her gender, race, or disability. As stated by the Fourth Circuit as to racebased claims for a hostile work environment, “[i]t not enough for a plaintiff to demonstrate that (1) there was racism in the workplace and (2) the workplace was also hostile. Instead, to present an actionable hostile work environment claim, the work environment must be racially hostile.” Irani v. Palmetto Health, 767 Fed.Appx. 399, 417 (4th Cir. 2019) (emphasis in original). Here, none of the complained-of actions appear related to Plaintiff's gender, race, or disability.
As stated by the Fourth Circuit, responding to a somewhat factually-similar situation:
Buchhagen alleges that that Dr. Beebe, her supervisor, created a hostile environment over the course of nine months by, inter alia, “mockingly” yelling at Buchhagen in one meeting; yelling and pounding her hands on her desk during another meeting; “repeatedly harp[ing]” on a mistake made by Buchhagen in October 2009; making “snide comments” to Buchhagen; playing favorites with employees and pitting employees against each other; and unfairly scrutinizing and criticizing Buchhagen's use of leave and compliance with Beebe's directives. Many of these allegations are conclusory and lack sufficient factual support to make them plausible. In any event, the conduct alleged falls far short of being severe or pervasive enough to establish an abusive environment, and the district court therefore properly dismissed Buchhagen's hostile environment.Buchhagen v. ICF In' Inc., 545 Fed.Appx. 217, 219-20 (4th Cir. 2013) (citations omitted).
Accordingly, the undersigned recommends the district judge grant Defendant's motion as to Plaintiff's hostile work environment claims.
5. Failure to Exhaust Administrative Remedies
Prior to filing a lawsuit alleging violations of Title VII and the Rehabilitation Act (or the ADA), a plaintiff must first exhaust her administrative remedies. See, e.g., Winey v. Mattis, 712 Fed.Appx. 284 (4th Cir. 2018) (citing Pueschel v. United States, 369 F.3d 345, 352-53 (4th Cir. 2004)); Stewart v. Iancu, 912 F.3d 693, 698 (4th Cir. 2019) (“Rehabilitation Act claims must comply with the same administrative procedures that govern federal employee Title VII claims.”) (citations omitted)). A federal employee “must initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the date of the action.” 29 C.F.R. § 1614.105(a)(1). “Only those discrimination claims stated in the administrative charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent [discrimination] lawsuit.” Taylor v. Va. Union Univ., 193 F.3d 219, 239 (4th Cir. 1999) (citing Evans, 80 F.3d at 963)).
The Supreme Court has held Title VII's administrative exhaustion requirements are not jurisdictional. Fort Bend Cty. v. Davis, 139 S.Ct. 1843, 1846 (2019). Therefore, a plaintiff's failure to exhaust his administrative remedies before filing suit does not itself prevent the court from hearing the case. However, exhaustion is a “claim-processing rule,” and it is “‘mandatory' in the sense that a court must enforce the rule if a party ‘properly raises it.'” Id. (quoting Eberhart v. United States, 546 U.S. 12, 19 (2005)).
Defendant argues that Plaintiff administratively exhausted only the following claims and that all other claims and allegations should be dismissed for failure to exhaust:
(1) harassment based on race (Black) and sex (Female) when her work performance was scrutinized in alleged violation of Title VII; (2) discrimination based on race (Black) and sex (Female) when her position description was revised in alleged violation of Title VII; (3) disability (mental) discrimination and retaliation (based on protected EEO activity) when her modified accommodation regarding telework was not implemented in alleged violation of the Rehabilitation Act and Title VII; (4) disability (mental) discrimination and retaliation (based on prior protected EEO activity) when she was allegedly forced to work in a hostile and unsafe COVID 19 environment in alleged violation of Title VII; (5) disability discrimination, retaliation, and constructive discharge when her disability retirement that she sought was approved in alleged violation of Title VII and the Rehabilitation Act; and (6) hostile work environment claims related to the preceding five claims.[ECF No. 40 at 2, see also id. at 18-20)]. Defendant additionally argues that any claims arising more than 45 days before Plaintiff's initial contact with the EEO should also be dismissed and that Plaintiff's unexhausted claims cannot be revived as part of a hostile work environment claim. Id. at 20-21.
Plaintiff disagrees, arguing generally that she experienced “discrimination based on gender, race/color, disability; disparate treatment; from February 2006 to June 2021 (15 years and four months)” and that all allegations and claims should be considered by the court. [ECF No. 48 at 1, 24-31; see also ECF No. 34-1 at 1 (“Plaintiff did not receive promotion/salary increase or Quality Step Increases (QSI) Within-Grade Increase (WGI) for the 15 years like male employees were awarded.”)]. However, Plaintiff fails to specifically address any of Defendant's arguments on the issue of exhaustion or specifically cite to the record in support of the allegations she asserts. See id.
Although Plaintiff argues otherwise, a review of her two EEO complaints indicate she complained of four specific events that occurred in May 2019, June 2019, and September 2020 and focus on alleged unfair scrutiny of her work, her duties being enlarged, and Defendant failing to provide promised accommodations, as well as not addressing requests for other accommodations.
The Fourth Circuit has explained that the exhaustion requirement:
ensures that the employer is put on notice of the alleged violations .... thereby giving it a chance to address the alleged
discrimination prior to litigation .... The goals of providing notice and an opportunity for an agency response would be undermined, however, if a plaintiff could raise claims in litigation that did not appear in his EEOC charge .... We have therefore not found exhaustion where a charge alleges only racial discrimination but the complaint includes sex discrimination or where a charge alleges only retaliation but the complaint alleges racial discrimination as well. At the same time, however, the exhaustion requirement should not become a tripwire for hapless plaintiffs .... We have therefore found exhaustion where both the administrative complaint and formal litigation concerned discriminat[ion] in promotions but involved different aspects of the promotional system, and where both the EEOC charge and the complaint included claims of retaliation by the same actor, but involved different retaliatory conduct. In doing so, we have sought to strike a balance between providing notice to employers and the EEOC on the one hand and ensuring plaintiffs are not tripped up over technicalities on the other.Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 593-94 (4th Cir. 2012) (citations omitted).
Plaintiff's EEO complaints do not provide any notice that she, for example, was asserting a failure to promote claim, and any such claim that Plaintiff now asserts has not been exhausted.
The parties additionally dispute whether the court can consider any allegations made by Plaintiff occurring more than 45 days prior to her initial contact with the EEO, where she alleged in her first EEO complaint that she had been subjected to discriminatory and heightened scrutiny and harassment concerning her work. The continuing violation doctrine permits “consideration of incidents that occurred outside [a] time bar when those incidents are part of a single, ongoing pattern of discrimination.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007).
The court need not resolve this issue. Even if the court considers Plaintiff's allegations as to alleged related events that occurred more than 45 days prior to her initial contact with the EEO, as discussed above, she has failed to make a prima facie case of discrimination regarding any heightened scrutiny, nor has she shown sufficiently severe or pervasive treatment that was based on her gender, race, or disability to support any hostile work environment claim.
Because many of Plaintiff's allegations, particularly in support of her hostile work environment claims, are not made in connection with a particular time, in an abundance of caution the court has considered these allegations in its primary analysis of her claims above.
Accordingly, the undersigned recommends the district judge grant Defendant's motion as to any unexhausted claims Plaintiff asserts.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion to dismiss or in the alterative for summary judgment. [ECF No. 40]. Where Plaintiff was given an opportunity to amend her complaint and filed an amended complaint that still contained the deficiencies discussed above, the undersigned further recommends the district judge dismiss Plaintiffs claims with prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).