Hinds v. Mulvaney
Hinds v. Mulvaney
Opinion of the Court
Plaintiff Janice Hinds, who is proceeding pro se, alleges that her employer, the Consumer Financial Protection Bureau,
I. BACKGROUND
According to the complaint, Ms. Hinds an African-American woman who was initially hired by the Federal Government on June 19, 1992 at the GS-7 level. Compl. ¶ 10. Ms. Hinds alleges that, in the 21 years between that time and the time that she began her current job as an examiner for the CFPB, she worked at a number of federal agencies, where she received numerous promotions and was never reprimanded. Id. ¶¶ 10-11. During her time at the CFPB, Ms. Hinds alleges, she has been denied promotion, reprimanded, and otherwise subjected to race and sex discrimination in violation of Title VII. Id. ¶¶ 17-25. Ms. Hinds also alleges that she has been repeatedly subjected to retaliation for opposing Title VII violations. Id. ¶¶ 26-40. Each allegation will be discussed below, in connection with its merits.
However, one allegation may be worth mentioning at the outset, given that Ms. Hinds has emphasized it in at least nine subsequent filings and because it provides some context for the allegations that follow. Ms. Hinds claims that her then-manager, Marsha Vaughn, "inappropriately distributed a violent image to the Plaintiff and other employees who reported to her." Compl. ¶ 36. Ms. Hinds' filings repeatedly refer to this "[e]mail containing a horrifically violent image depicting the overkill [of] a snowman that was slaughtered by five machetes that the Plaintiff's former manager, Marsha Vaughn, sent to her and all of the employees who report to her."
Ms. Hinds initially contacted the CFPB's Equal Employment Opportunity ("EEO") Office in September 2013, but she did not have sufficient evidence to lodge a formal complaint at that time. Id. ¶ 14. On March 28, 2014, Ms. Hinds again contacted the EEO Office, and on May 15, 2014, she filed her formal EEO complaint. Id. Ex. A at 1. The CFPB's Office of Civil Rights investigated Ms. Hinds' complaint, which it permitted her to amend four times during the course of the investigation. Id. On November 9, 2016, an initial adjudicator issued a decision granting the Defendant's motion for summary judgment on several grounds, including that there was no evidence of discriminatory or retaliatory intent, that there was no evidence linking the alleged harassment to Ms. Hinds' race or sex, and that the preponderance of the evidence did not show that the Defendant's legitimate, non-discriminatory reasons for the allegedly retaliatory actions were pretextual. Id. at 4-5. The decision noted that "most of Ms. Hinds' claims were petty disputes about agency policy or objection[s] to minor and rote activities taken by the agency" and that Ms. Hinds appeared to have read a report related to the CFPB's diversity and to have "conclude[d] that she was a victim of discrimination before she reported to work on her first day." Id.
After receiving the CFPB's final order, Ms. Hinds filed a timely complaint in this court. The Defendant filed a motion to dismiss in part and for summary judgment on April 4, 2017. The motion is now ripe, and I conclude that it should be granted for the reasons explained below.
II. LEGAL STANDARD
To prevail on a motion for summary judgment, a movant must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. ,
III. ANALYSIS
A. The Defendant Is Entitled to Summary Judgment on Each of Ms. Hinds' Unexhausted Discrimination and Retaliation Claims
A federal employee may only assert a Title VII claim in federal court after presenting a timely complaint to the agency involved and exhausting available administrative remedies. Nurriddin v. Goldin ,
Ms. Hinds initiated contact with an EEO Counselor on March 28, 2014. Compl. Ex. A at 1.
*233See Rosier v. Holder ,
Although Ms. Hinds has not expressly opposed summary judgment for failure to exhaust, she has opposed dismissal for failure to exhaust based on
B. The Defendant Is Entitled to Summary Judgment on Each of Ms. Hinds' Discrimination Claims
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" or "to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" on the basis of that individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Title VII discrimination claims are subject to the burden-shifting framework established by McDonnell Douglas Corp. v. Green ,
If the plaintiff states a prima facie case of discrimination, the employer then bears the burden of identifying "the legitimate, non-discriminatory ... reason on which it relied in taking the complained-of action." Walker v. Johnson ,
Ms. Hinds' seven discrimination claims fail because the conduct of which she complains has non-discriminatory justifications and she has not raised a triable issue of fact as to whether these justifications are pretextual. Many of her claims fail for the additional reason that the conduct of which she complains does not qualify as adverse employment action.
Ms. Hinds' first discrimination claim fails for both these reasons.
Ms. Hinds' second discrimination claim fails for similar reasons.
Ms. Hinds' third discrimination claim fairs no better.
Ms. Hinds' fourth discrimination claim is that Mr. Pepin denied her requests for reimbursement requests of $631.45 in business travel expenses between March 28 and April 14 of 2014. Compl. ¶ 21. The Defendant has explained that Mr. Pepin's conduct was justified on the non-discriminatory ground that Ms. Hinds incurred a variety of travel expenses for unauthorized and unnecessarily expensive travel arrangements during this period, including expenses that she was warned in advance could not be reimbursed. Def.'s Memo. ISO Mot. Summary Judgment at 16. Because Ms. Hinds has not established a genuine dispute as to whether this justification is pretextual, the Defendant is entitled to summary judgment on this claim.
Ms. Hinds' fifth discrimination claim is that Mr. Pepin failed to promote Ms. Hinds on May 5, 2014 and, relatedly, that he did not conduct a promotion review within 30 days of that date, did not review the materials she sent him to demonstrate her eligibility for promotion, asked her to send him copies of her work product, and did not respond to one of Ms. Hinds' emails requesting promotion. Compl. ¶ 22. The Defendant has explained that promotion is not automatic or guaranteed and that an employee must demonstrate the ability to perform at the next-higher level in order to be considered ready for promotion. Def.'s Memo. ISO Mot. Summary Judgment at 17. The Defendant has further explained that Mr. Pepin was justified in concluding that Ms. Hinds had not demonstrated the ability to perform at the next higher level because, among other things, she refused to provide him copies of her work product so that he could evaluate her performance, she did not participate in the exam where Mr. Pepin had planned for her to demonstrate the ability to play a leadership role, and she had a repeated pattern of disregarding CFPB policies and direct instructions about travel, which is an integral part of her role. Id. at 18-19. Ms. Hinds has not established a genuine dispute as to pretext and cannot go forward with this claim.
Ms. Hinds' sixth discrimination claim is that Mr. Pepin subjected her to "berating email messages" that she views as "trivial, micro managing [sic] and unnecessary." Compl. ¶ 23. This allegation does not concern an adverse employment action. Moreover, the Defendant has alleged that Mr. Pepin's emails were motivated by the legitimate, non-discriminatory goal of supervising and assisting a new examiner, citing to several emails that articulate Mr. Pepin's desire to promote Ms. Hinds' professional development. Def.'s Memo. ISO Mot. Summary Judgment at 19. Ms. Hinds has not identified any specific email messages to which she objects or created a triable issue of fact as to whether Mr. Pepin had some discriminatory motive rather than the motive that the Defendant claims.
*237Ms. Hinds' seventh discrimination claim is that the CFPB discriminated against her in two respects when determining her starting salary. Compl. ¶ 24-25. First, Ms. Hinds alleges that the CFPB denied her pay-retention benefits to match her prior salary at a different federal agency, even though it granted pay retention benefits to a white male. Id. ¶ 25. Second, Ms. Hinds alleges that the CFPB gave the white male higher locality pay than she enjoyed, even though they both lived in the same geographical area. Id. ¶ 25. However, the Defendant responds that Ms. Hinds' pay was determined by a pay-setting tool based on her directly relevant work experience, so that any pay differential between her and other CFPB employees was authorized by the Equal Pay Act and based on non-discriminatory criteria. Def.'s Memo. ISO Mot. Summary Judgment at 20. The Defendant has provided documentation that the original salary offer to the white male in question did not match his salary at the federal agency where he previously worked, but that he negotiated a higher salary based on his directly relevant experience and training-experience and training that Ms. Hinds lacked. Id. at 20-21; id. Ex. XX. It has also provided documentation that the white male's higher locality pay was the result of an administrative error that was subsequently corrected. Id. at 21 n.2; id. Ex. YY. Ms. Hinds has not offered any evidence to create a genuine issue of fact as to whether these nondiscriminatory explanations of her pay rate are pretextual. Accordingly, Ms. Hinds' seventh discrimination claim fails, like her others.
C. The Defendant Is Entitled to Summary Judgment on Each of Ms. Hinds' Retaliation Claims
Title VII's retaliation provision makes it unlawful for an employer "to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge ... under this subchapter." 42 U.S.C. § 2000e-3(a). Like discrimination claims, Title VII retaliation claims are governed by the McDonnell Douglas framework. Walker ,
If the plaintiff states a prima facie case of retaliation, the employer then bears the burden of identifying "the legitimate ... non-retaliatory reason on which it relied in taking the complained-of action." Walker v. Johnson ,
*238Like her discrimination claims, Ms. Hinds' 14 retaliation claims fail because the Defendant has provided non-discriminatory justifications for the conduct of which she complains and Ms. Hinds has not adequately challenged these justifications as pretextual. Many of them also fail because the conduct of which she complains does not qualify as adverse employment action.
Ms. Hinds' first retaliation claim is that Mr. Pepin refused to authorize her to travel to an exam site on a flight scheduled to arrive after the start of the exam. Compl. ¶ 27. Ms. Hinds alleges that this refusal was unreasonable because: (1) Mr. Pepin did not contact the exam's portfolio manager or examiner in charge to determine whether Ms. Hinds' late arrival would disrupt the exam; (2) "Due to flight and other delays," there was no guarantee that Ms. Hinds would arrive on time even if she booked an earlier flight; (3) "Mr. Pepin could have instructed the Plaintiff to travel a day in advance if it was imperative that she arrived at a specific time"; and (4) Other examiners were not penalized for late arrivals that were due to travel delays.
Ms. Hinds' second retaliation claim is that Mr. Pepin sent her an email assigning her work while she was detailed to Washington, D.C. Compl. ¶ 28. According to Ms. Hinds, she was detailed to D.C. pending an internal investigation into complaints that she had lodged against Mr. Pepin, and it was inappropriate for Mr. Pepin to assign work to her because he did not know whether she would remain under his supervision after the investigation.
Ms. Hinds' third retaliation claim is that the CFPB denied her request to be reassigned outside the Northeast Region, in which Mr. Pepin worked, pending resolution of an investigation into her harassment complaints against Mr. Pepin. Compl. ¶ 29. Ms. Hinds alleges that CFPB policy allows an employee who files a *239harassment complaint to "request" reassignment, that the CFPB initially reassigned her to work in D.C., and that the CFPB declined her request to extend her D.C. assignment when it ended prior to the conclusion of the internal investigation.
Ms. Hinds' fourth retaliation claim is that, when she returned to the Northeast Region, she was temporarily assigned to a manager named Alla Vaynrub, who she believes had a close relationship with Mr. Pepin because she covered for him when he was away from work. Compl. ¶ 30. Even though this reassignment had the effect of granting her apparent desire not to be supervised by Mr. Pepin, Ms. Hinds was still dissatisfied. Ms. Hinds wishes that the CFPB had consulted her before reassigning her to a new manager and that it had taken unspecified steps to protect her from Title VII violations.
Ms. Hinds' fifth retaliation claim is that she was assigned to work on an exam where she would be required to report to yet another employee that she had mentioned in her EEO complaint. Compl. ¶ 31. Ms. Hinds again complains that the CFPB failed to take unspecified steps to protect her from Title VII violations and that she was not consulted prior to receiving exam assignments.
Ms. Hinds' sixth retaliation claim is that she was required to meet with Mr. Pepin to discuss her 2014 performance evaluation. Compl. ¶ 32. Although Ms. Hinds was no longer working for Mr. Pepin *240at the time, he was required to prepare her evaluation because he had supervised her during the fiscal year under review. Id. Ms. Hinds alleges that the meeting was unnecessary because Mr. Pepin was not her current manager and because he sent her a copy of her performance evaluation prior to the meeting. Id. The Defendant responds that requiring Ms. Hinds to meet with Mr. Pepin was not an adverse employment action and explains that all field managers, including Mr. Pepin, had been instructed to conduct in-person reviews "because such meetings are more effective and help foster communication." Def.'s Memo. ISO Mot. Summary Judgment at 26. There is no genuine dispute as to whether this non-retaliatory directive, which applied to all employees, was a pretext for retaliation against Ms. Hinds.
Ms. Hinds' seventh retaliation claim is that on November 14, 2014, Erin Berger, the portfolio manager for the exam on which she was working at the time, sent communications to Ms. Hinds berating her for not completing work on the day that she had to travel to meet with Mr. Peppin for her performance review. Compl. ¶ 33. The Defendant responds that the email in question, which it has produced, is not an adverse employment action. Def.'s Memo. ISO Mot. Summary Judgment at 28. The email is focused on resolving several concerns that Ms. Hinds raised to Ms. Berger, is professional rather than berating, and would not dissuade a reasonable worker from engaging in conduct protected by Title VII. See id. Ex. SS at 125-27. As the Defendant also suggests, Ms. Berger had legitimate reasons for asking that the employees under her supervision be responsive to email during work hours. Id. at 28. Particularly in light of the fact that Ms. Berger was not aware that Ms. Hinds had engaged in activities protected by Title VII, Ms. Hinds has not created a genuine dispute as to whether the email was motivated by retaliatory animus rather than be these legitimate managerial concerns. See id. at 27-28; id. Ex. OO at 2377.
Ms. Hinds' eighth retaliation claim is that Ms. Berger's email stated that Ms. Berger would not support Ms. Hinds' request for reassignment to another exam, even though Ms. Hinds had complained about another employee. Compl. ¶ 34. Ms. Hinds' complaint was that this employee was copying project managers on his emails to her, and Ms. Hinds expressly stated, "If this policy is extended to all examiners then that's fine." Def.'s Memo. ISO Mot. Summary Judgment Ex. SS at 126. Ms. Berger's email reminded Ms. Hinds that, as she had already been informed, the policy of copying project managers applied to all examiners. Id. The Defendant explains that, as Ms. Berger's email states, Ms. Berger did not support reassignment because Ms. Hinds was a necessary part of the exam team and because removing anyone from the team would disrupt the examination substantially. Id. at 29; id. Ex. SS at 125. Ms. Hinds has not created a genuine dispute as to whether this justification of Ms. Berger's email is pretextual, and any allegation that Ms. Berger's real motive was retaliatory is undermined by the fact that Ms. Berger was not aware of Ms. Hinds' Title VII activities at the time she wrote her email. See id. at 28; id. Ex. OO at 2377.
Ms. Hinds' ninth retaliation claim is that Mr. Pepin denied her request for a promotion on December 16, 2014. Compl. ¶ 35. The Defendant explains that Mr. Pepin did not support her request for promotion-a decision that ultimately lay with more senior management-because of Ms. Hinds' refusal to provide the work-product documentation he needed to evaluate her eligibility and because of her other problems, *241such as failure to comply with CFPB travel policies and failure to meet assignment deadlines. Def.'s Memo. ISO Mot. Summary Judgment at 29-30; id. Ex. SS at 29-30. Ms. Hinds has not raised a question of fact as to whether these legitimate reasons for Mr. Pepin's decision were pretextual.
Despite her earlier complaints about being supervised by Ms. Vaynrub-not to mention her complaints about being supervised by Mr. Pepin before that-Ms. Hinds' tenth retaliation claim is that she was reassigned from her temporary manager, Ms. Vaynrub, to a permanent manager, Marsha Vaughn.
Ms. Hinds' eleventh retaliation claim is that Ms. Vaughn planned a "surprise *242trip" to Ms. Hinds' examination site in New York during her first week working in the Northeast Region.
Ms. Hinds' twelfth retaliation claim is that Ms. Vaughn asked her to attend a group meeting during the week of January 19, 2015, despite having approved Ms. Hinds to use official time to work on her EEO complaint that week.
Ms. Hinds' thirteenth retaliation claim is that Ms. Vaughn attempted to micromanage her work by: (1) Asking Ms. Hinds whether she intended to be in New York on May 5, 2015; (2) Communicating *243with the portfolio manager and examiner in charge for an exam on which Ms. Hinds was working in order to monitor Ms. Hinds' work; and (3) Requiring Ms. Hinds to prepare a travel voucher while she was on bereavement leave so that she could obtain authorization to travel to an exam when she returned to work. Compl. ¶ 39. This allegation does not concern an adverse employment action. Moreover, Ms. Hinds has not created a genuine fact issue as to whether Ms. Vaughn's actions were justified by her legitimate interest in managing an employee under her supervision. See ¶ 33. The record reflects that Ms. Hinds emailed Ms. Vaughn at the end of a period of bereavement leave to let her know that she would be taking a sick day on May 3, 2015, taking a leave day on May 4, 2015, and returning to work on May 5, 2015. Id. Ex. AAA at 1118. The next day, which was May 4, 2015, Ms. Vaughn emailed Ms. Hinds, stating, "I hope you feel better. I'm assuming you will be at the job site in the morning. I haven't seen a travel authorization yet." Id. Ms. Hinds replied by saying that she would not be working on site at the exam because she could not travel to the site without preparing a travel authorization and because she could not prepare the travel authorization until her first day back at work. Id. at 1117. Ms. Vaughn offered no objection, but asked Ms. Hinds what she would be working on off-site. Id. Rather than answering the question, Ms. Hinds replied, "When I am assigned to exam, I am under the supervision of the Portfolio FM and the EIC. I believe that they are both responsible enough to make certain that my workload is appropriate." Id. Whatever insights this exchange may give into Ms. Hinds' amenability to supervision, this incident is not actionable under Title VII.
Ms. Hinds' fourteenth retaliation claim is that Ms. Vaughn retaliated against her by failing to conduct a promotion review within 30 days of May 5, 2015. Compl. ¶ 40. Ms. Hinds alleges that such review was required by CFPB policies and procedures. Id. However, the Defendant has explained that the CFPB's promotion policy, as quoted in the complaint itself, required a promotion review within 30 days of May 5, 2014. Def.'s Memo. ISO Mot. Summary Judgment at 33.
Unlike in her administrative proceeding, at no point in the case before me has Ms. Hinds alleged a hostile work environment claim. Had she do so, though, on the evidence before me I would find that the Defendant was entitled to summary judgment on that count, too. Taken as a whole, Ms. Hinds' serial petty complaints against a succession of supervisors at the CFPB leads to the conclusion that she is difficult to supervise, not that she was subjected to an "abusive working environment." See Baird v. Gotbaum ,
D. Ms. Hinds Is Not Entitled to Additional Discovery Before Summary Judgment
A party opposing a motion for summary judgment may seek additional discovery based on an affidavit or declaration specifying the reasons that she cannot yet present the facts necessary to justify her opposition. Fed. R. Civ. P. 56(d). To adequately specify the reasons for further discovery, a party opposing summary judgment must "indicate what facts she intend[s] to discover that would create a triable issue and why she could not produce them in opposition to the motion." Carpenter v. Fed. Nat'l Mortg. Ass'n ,
Ms. Hinds argues that she is entitled to further discovery before summary judgment. Pl.'s Opp. to Def.'s Mot. Summary Judgment at 8-9, 26-29; Pl.'s Sur-Reply to Def.'s Mot. Summary Judgment. However, her request for further discovery is not supported by an affidavit or declaration as required by the Federal Rules. See Hicks v. Gotbaum ,
IV. CONCLUSION
Ms. Hinds paints a picture of racist behavior run amok at the CFPB: that over a two-year period, numerous CFPB supervisors participated in 21 acts of racial discrimination and unlawful retaliation against her. Even drawing all reasonable inferences in her favor, the Court is left with a very different conclusion: that Ms. Hinds has ascribed unlawful motives to run-of-the-mill workplace annoyances and well-meaning efforts by her colleagues to supervise and train a difficult employee. Racial discrimination is a persistent and invidious threat to our society's welfare, but like pulling a fire alarm for kicks in a nursing home, false allegations of discrimination impose high costs on us, too. For the reasons explained above, summary judgment will be granted in favor of the Defendant. A separate order will issue.
Ms. Hinds' complaint named Richard Cordray as the Defendant, in his official capacity as Director of the Consumer Financial Protection Bureau ("CFPB"). Mr. Cordray's successor, John Michael Mulvaney, has been automatically substituted as the Defendant by operation of Federal Rule of Civil Procedure 25(d).
See, e.g. , Pl.'s Mot. Determine Whether Certain Witnesses Provided False and Misleading Statements Under Penalties of Perjury Ex. A (emphasis in original); Pl.'s Mot. Declare that the ROI Violates 29 CFR 1614 108(b) and Initiate a DOJ Referral Ex. A (same); Pl.'s Motion to Address False Information and Potential Evidence Tampering Ex. A (same); Pl.'s Reply ISO Mot. Notify Court of Significant Evidence Ex. C (same); Pl.'s Reply ISO Mots. Ex. D (without emphasis); see also Correction to Pl.'s Opp. to Def.'s Mot. Summary Judgment Ex. A ("Horrifically violent email that the Plaintiff's manager sent to her and all of the employees who report to her."); Reply ISO Pl.'s Mot. Obtain Procedures for the Submission of Documents Secured Under a Protective Order Ex. A (same); Pl.'s Mot. Reconsideration for a Court-Appointed Attorney Ex. C ("Ture [sic] copy of a horrifically violent email that the Plaintiff's manager resent to all of the employees who reported to her. The Plaintiff submitted this true copy of the email to the EEO Investigator as evidence to substantiate that Ms. Vaughn subjected her to actions that were in violation of Title VII."); Pl.'s Reply ISO Mot. Reconsideration for a Court-Appointed Attorney Ex. D ("True copy of an email that the Plaintiff submitted to the EEO Investigator. The email contained a horrifically violent image depicting a snowman being slaughtered by vive [sic] machetes that the Plaintiff's manager sent to all of the employees who reported to her. The email was initiated by a White employee and Ms. Vaughn glorified it by stating in the email 'I love this!!'.").
Although I would not typically include pictures in the staid pages of the Federal Supplement, Ms. Hinds previously accused an EEO investigator of malfeasance for failing to include this image in her report on Ms. Hinds' complaints. See, e.g. , Pl.'s Opp. to Def.'s Mot. Summary Judgment at 7-8 (alleging that investigator's omission of the slaughtered snowman's image demonstrated bias and was "an obvious attempt to help the CFPB fight against the Plaintiff's claims"). I do not wish to be accused of a similar omission.
In addition to citing this report, Ms. Hinds seeks to bolster her claims of discrimination and retaliation by noting that the Financial Services Committee of the United States House of Representatives has conducted hearings to investigate allegations of Title VII violations by the CFPB. Pl.'s Opp. to Def.'s Mot. Summary Judgment at 29. She also cites an affidavit by a male CFPB employee who, at the time of the affidavit, had filed a grievance against one of Ms. Hinds' former managers and was planning to leave the CFPB mainly because of his frustrations with that manager. Id. at 28; id. Ex. J at 2449. This employee complained about the manager's general management style, lack of qualifications, and political maneuverings. Id. at 2449-50. He also stated that he had not personally observed the manager's treatment of Ms. Hinds. Id. at 2450. However, when he was directly asked whether he had reason to believe Ms. Hinds' former manager had subjected her to discrimination, he stated that the manager "has a problem with women generally." Id. at 2451. The same employee had previously noted that he was aware of two men and two women who had experienced problems with Ms. Hinds' former manager. Id. at 2449.
The counseling period is generally 30 days, but may be extended an additional 60 days under certain circumstances. See
Ms. Hind's earlier contact, in September 2013, is not relevant to the timeliness of her claims because it did not lead to the filing of a formal administrative complaint, which would have been a necessary prerequisite to asserting her claim in federal court. See Bowie ,
See Compl. at ¶ 18 (alleging that a manager gave Ms. Hinds a verbal warning about violating agency policy more than 45 days before Ms. Hinds initiated contact with an EEO counselor); id. at ¶ 19 (alleging that a manager asked Ms. Hinds about why she chose a certain workstation more than 45 days before Ms. Hinds initiated contact with an EEO counselor); id. at ¶ 20 (alleging that a manager called Ms. Hinds and threatened to give her a substandard rating for her 2013 annual performance more than 45 days before Ms. Hinds initiated contact with an EEO counselor); id. at ¶ 36 (alleging that a manager notified Ms. Hinds that she was Ms. Hinds' new manager more than 45 days before she sought to amend her complaint); id. ¶ 37 (alleging that a manager planned a visit to an exam on which Ms. Hinds was working more than 45 days before she sought to amend her complaint); id. at ¶ 38 (alleging that a manager asked Ms. Hinds to attend a team meeting more than 45 days before she sought to amend her complaint).
This conclusion makes it unnecessary for me to reach the Defendant's alternative argument that Ms. Hinds' unexhausted discrimination claims should be dismissed.
One other rule bears passing reference. To state a hostile work environment claim, "a plaintiff must show that his employer subjected him to 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." Baloch v. Kempthorne ,
Alternatively, as explained above, this claim also fails because Ms. Hinds did not raise it in a timely manner.
As discussed above, Ms. Hinds did not timely raise her concerns about Mr. Pepin's question regarding her choice of workstations, and the Defendant is entitled to summary judgment on these grounds as well.
Indeed, even before reaching the merits, Ms. Hinds' claim regarding her 2013 annual performance review could be disposed of on the alternative ground that Ms. Hinds failed to exhaust her claim, as discussed above.
As discussed above, Ms. Hinds failed to administratively exhaust this claim. This provides an independently adequate basis for summary judgment in addition to the grounds discussed here.
The complaint alleges that the CFPB violated Title VII by reassigning Ms. Hinds, and cites the email as evidence to support this claim. However, subsequent filings suggest that Ms. Hinds also believes that Ms. Vaughn violated Title VII by sending her email, which states in whole, "I love this!!" Correction to Pl.'s Opp. to Def.'s Mot. Summary Judgment Ex. A. Although Ms. Hinds has alleged that "Ms. Vaughn inappropriately distributed a violent image to the Plaintiff," Compl. ¶ 36, the image in question was distributed to a group of people including Ms. Hinds in an earlier email, to which Ms. Vaughn replied. Correction to Pl.'s Opp. to Def.'s Mot. Summary Judgment Ex. A. Ms. Hinds has not created a genuine issue of fact as to whether Ms. Vaughn's email would dissuade a reasonable worker from engaging in protected conduct or as to whether Ms. Vaughn's message was motivated by retaliatory intent.
This defense of the assignment to work under Ms. Vaughn does not rely in any way on what Ms. Hinds alleges is a false insinuation by the Defendant that she filed an EEO complaint against an individual named "Mr. Chicorikas." See Compl. ¶ 36. According to Ms. Hinds, this insinuation was made in "Defendant's summary Judgment" (presumably a document or decision related to the administrative proceedings that preceded this case), which stated as follows:
Complainant's argument that no one from the Southeast Region should supervise her is even more farfetched, and it is contradicted by the Complainant's simultaneous assertion that she should have been assigned to Mr. Chicorikas-a supervisor [in] the Northeast Region, which also has EEO activity, including Complainant's own complaints.
Ms. Hinds also failed to exhaust this claim, which provides an alternative basis for summary judgment as discussed above.
This is the last of Ms. Hinds' unexhausted claims. The Defendant is entitled to summary judgment on this claim due to Ms. Hinds' failure to exhaust as well as for the reasons explained here.
Ms. Hinds also alleges in this paragraph of her complaint that the Defendant responded to her EEO complaint in part by stating (presumably in a filing), "Complainant's allegation that this request was somehow retaliatory defies common sense ...."
Ms. Hinds' complaint about not being promoted at that date is discussed above.
Ms. Hinds makes five discovery requests. First, she seeks production of all emails from seven CFPB employees between September 2013 and July 2015, although she previously agreed to narrow this discovery request. Pl.'s Opp. to Def.'s Mot. Summary Judgment at 8;
Ms. Hinds challenges the adequacy of the record developed in the administrative proceedings, in large part because the investigator submitted a copy of the slaughtered snowman email that has a missing-image placeholder. See, e.g. , Pl.'s Opp. to Def.'s Mot. Summary Judgment at 7-8 (alleging that the omission of the slaughtered snowman's image was "an obvious attempt to help the CFPB fight against the Plaintiff's claims"); id. Ex. J at 1501; Pl.'s Mot. Determine Whether Certain Witnesses Provided False and Misleading Statements Under Penalties of Perjury at 2-3 (alleging that the investigator deliberately omitted the slaughtered snowman's image to help the CFPB); id. Ex. B (same); Pl.'s Mot. Declare that the ROI Violates 29 CFR 1614 108(b) and Initiate a DOJ Referral at 3, 5-6 (same); id. at Ex. B (same); Pl.'s Motion to Address False Information and Potential Evidence Tampering at 3 (same); id. Ex. B (same); Pl.'s Reply ISO Mots. at 3, 8 (same); id. Ex. E (same); Pl.'s Mot. Reconsideration for a Court-Appointed Attorney at 3-4, 6-7 (same); id. Ex. D; see also Pl.'s Sur-Reply to Def.'s Mot. Summary Judgment at 6 (asserting that the CFPB should have produced calendar entries that referenced her, along with any notes from the meetings described by those calendar entries); id. at 7 (complaining that the EEOC instructed her not to file a motion to compel the production of evidence that had already been produced, complaining that, after she agreed to narrow her request, the CFPB did not produce all the emails she originally requested, and complaining that she believes some witnesses provided false statements). The slaughtered snowman's many posthumous appearances in the record graphically illustrate that Ms. Hinds knows how to identify specific missing facts that she considers material to her claims. See supra note 2. She has not specified the missing facts that she intends to establish through further discovery, although this is what she needed to do in order to satisfy the Federal Rules. See Carpenter ,
Reference
- Full Case Name
- Janice HINDS v. John Michael MULVANEY, Acting Director, Consumer Fraud Protection Bureau
- Cited By
- 12 cases
- Status
- Published