Dreiband v. Nielsen
Dreiband v. Nielsen
Opinion of the Court
Plaintiff Mahla Dreiband is an Information Technology Specialist with the Department *317of Homeland Security. In this pro se Title VII suit, she alleges that her employer discriminated against her on the basis of her national origin and disability, retaliated against her for filing a complaint with the Equal Employment Opportunity office, and subjected her to a hostile work environment. She also seeks to recover damages under the Equal Pay Act, alleging that she was the victim of wage discrimination. Defendant now moves for summary judgment, contending that Plaintiff has offered no material facts to demonstrate that she suffered any adverse employment actions, that she was subjected to discrimination or a hostile work environment, or that she was the target of retaliation. Instead, DHS asserts that the five-day suspension of which she complains had a legitimate, non-discriminatory basis - a physical altercation with another Department employee. Agreeing, and also finding no jurisdiction for her pay claim, the Court will grant the Motion.
I. Background
A. Factual History
As it must at this stage, the Court sets out the facts here in the light most favorable to Plaintiff. Dreiband, whose national origin is Iranian and who suffers from a disability of "pre-arthritis," see ECF No. 14 (Amended Complaint), ¶¶ 11-12, was hired as an IT specialist for DHS in 1989. Id., ¶ 15. Since 2003, she has worked for U.S. Immigration and Customs Enforcement, which is a component of DHS. Id., ¶ 16. At the time at issue in the Complaint, Plaintiff worked at level GS-2210-12 in ICE's Office of the Chief Information Officer. See Def. Exh. B-1 (Report of Investigation) at 22.
Between 1998 and 1999, Dreiband worked on the same team as Nancy Luc, another IT specialist with DHS and the woman who, over a decade later, Plaintiff would allege assaulted her in a gym locker room. See Compl., ¶¶ 18-20. In 1998, Dreiband filed an EEO Complaint against Luc citing her "harassment towards Plaintiff." Id., ¶¶ 13, 18. After requesting reassignment, Dreiband was moved from Luc's team in or around 1999. Id. Although they were no longer co-workers, Plaintiff and Luc continued to work in the same office building. Id., ¶ 19. On February 7, 2014, the two women found themselves in the locker room of Vida Gym, a facility at which ICE employees have membership. Id., ¶ 27. While the specific facts of what happened in the gym are in dispute, both sides agree that Dreiband and Luc were involved in a physical altercation that resulted in the former being bitten by the latter. Id., ¶¶ 28-29; ECF No. 20-1 (DSMF), ¶ 3. The police were called to the scene, and both women were subsequently arrested. Id., ¶ 5.
Following this incident, Defendant opened an administrative inquiry, which ultimately led to the suspension of both women. See Def. Exh. G-3 at 168. On July 18, 2014, Plaintiff was issued a notice of a proposed, five-day suspension without pay for engaging in conduct unbecoming a federal employee. See Def. Exh. G-4 at 171. Dreiband responded to the proposed suspension via her attorney on August 7, 2014, stating that the penalty should not be sustained because "Ms. Dreiband was the innocent victim of a malicious attack by Ms. Luc." ECF No. 20-9 (Response to Proposed Suspension). That October, the Acting Chief Information Officer, Steven Smith, issued a decision sustaining the charges and the penalty, finding that the "alleged misconduct [was] supported by a preponderance of the evidence." Def. Exh. G-6 at 189. Plaintiff served her five-day suspension from October 9 to October 13, and Luc served hers from November 7 to November 11. See DSMF, ¶¶ 11-12. Dreiband *318alleges that "[f]ollowing the attack," Luc "told numerous coworkers and supervisors" that Plaintiff had initiated the fight at the gym. See Compl., ¶ 36. Although Dreiband states that she complained to management about such statements, she asserts that her supervisors did not intervene. Id., ¶ 37.
The next relevant incident occurred on May 2, 2014, when an ICE manager sent Plaintiff, as the property custodian for her office, an email identifying missing government property. See Def. Exh. G-12 at 242. Dreiband responded that she had located the assets, id. at 244, but Leonard Pulley, the Chief of the Network and Infrastructure Services Branch, replied that the inventory had in fact been located by two other individuals and that two items remained missing. Id. at 242-43. Plaintiff in turn responded that she was confused about Pulley's characterization, but he did not reply to that email. Id. at 242.
The same day, Plaintiff received her Fiscal Year 2014 mid-year performance evaluation. Dreiband's supervisor gave her a rating of "fully satisfactory" for the elements of technical proficiency, customer service, project management, and information-systems security. See Def. Exh. G-10 at 215-25. For the element of teamwork, cooperation, and collaboration, however, Plaintiff's evaluation stated that she "ha[d] much room for improvement," noting that she was "involved in an altercation in early FY14 with another ICE ... employee" and that she had been counseled on two separate occasions regarding management policy and guidance. Id. at 222-23.
B. Procedural History
On October 20, 2014, Plaintiff contacted an EEO Counselor regarding her suspension and treatment after the gym altercation. See Def. Exh. B-1 at 22. Three months later, ICE notified Dreiband that her counseling had concluded and informed her of her right to file a formal complaint, a step she took on January 28, 2015. See Def. Exh. A-1 at 17-19. Plaintiff's complaint was filed with ICE's Office of Diversity and Civil Rights (ODCR) and presented the following claim: ICE discriminated against her and subjected her to a hostile work environment based on national origin, religion, age, disability, and reprisal when (1) a co-worker physically attacked Plaintiff; (2) during an internal investigation of the incident, the co-worker made false statements about Dreiband's work performance and told the investigator that Plaintiff was moved to a different office fifteen years prior; (3) management issued Dreiband an unfavorable mid-year review and accused her of inappropriate accounting for government property; and (4) Plaintiff was suspended for five days. See Def. Exhs. C-2 at 97, C-3 at 102.
In August 2015, ODCR provided Dreiband with a Report of Investigation (ROI) and ultimately the final agency decision. See Def. Exhs. D (Notice Letter), E (FAD Request). She responded by filing suit in this Court on May 12, 2017. Dreiband's Amended Complaint, which was filed in March 2018, alleged three grounds for relief under Title VII - national-origin discrimination, hostile work environment, and retaliation - and three others under the Rehabilitation Act - disability discrimination, retaliation, and hostile-work environment. See Compl., ¶ 1. Plaintiff also alleged, although she did not include any relevant count, that her action sought to "recover damages" under the Equal Pay Act. Id., ¶ 2. DHS now moves to dismiss or, in the alternative, for summary judgment. See ECF No. 17.
II. Legal Standard
As the Court considers the Motion under the summary-judgment standard, it *319sets out that one alone. Summary judgment may be granted if "the movant shows 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.,
When a motion for summary judgment is under consideration, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby,
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e) ; Celotex Corp. v. Catrett,
III. Analysis
Because the standards articulated in employment-discrimination cases apply to claims brought pursuant to the Rehabilitation Act, the Court will address Plaintiff's discrimination counts under the framework of Title VII. See Walker v. D.C.,
A. Discrimination
Title VII prohibits an employer from discriminating against an employee because of her national origin or other protected characteristic. See 42 U.S.C. § 2000e-2(a). To prevail on such a claim, a plaintiff must follow the three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
Here, many of the bases for Plaintiff's discrimination claims get stuck at the starting block. Even under the streamlined Brady inquiry, the employee must have "suffered an adverse employment action,"
This leaves standing only Plaintiff's five-day suspension as the underlying adverse action. See Jones v. Castro,
Plaintiff here has not produced any direct evidence of discriminatory intent behind her suspension, nor has she proffered any other evidence that discredits the Department's stated rationale. Her Complaint may allege that "management has never disciplined an employee who was not Iranian [and] did not have disabilities ... for being physically attacked by a co-worker," Compl., ¶ 35, but she presents no record support for this claim nor any other facts supporting an inference that her national origin or disability gave rise to the suspension. The Letter of Suspension, moreover, makes clear that Dreiband's penalty was for "conduct unbecoming an agency employee" - namely, being "involved in a physical altercation." ECF No. 20-10, (Def. Exh. G-6) at 189. The Court notes, moreover, that Luc was also given a five-day suspension after the gym incident, and that she is not Iranian. See Def. Exh. F-3 (Witness Affidavit of Nancy Luc), at 133-34. In sum, given the dearth of record evidence in support of Plaintiff's claim that the suspension was the result of discriminatory animus, rather than her conduct at the gym, the Court concludes that no reasonable jury could find that Dreiband was discriminated against in violation of Title VII or the Rehabilitation Act.
B. Retaliation
In addition to alleging discrimination, Plaintiff also claims that she was retaliated against in violation of Title VII and the Rehabilitation Act. To prove retaliation under both statutes, a plaintiff generally must establish that she suffered (i) a materially adverse action (ii) because she had engaged in protected activity. See 42 U.S.C. § 2000e-3(a) ;
This Circuit has distinguished between the meaning of a "materially adverse action" in the context of a retaliation claim and such actions necessary to support an allegation of discrimination. Although the former encompass a "broader sweep of actions" than the latter, see Baloch,
Turning to the suspension, the Court finds that Plaintiff is unable to demonstrate any causal connection between her prior EEO complaint in 1998 - the only action she identifies as protected activity - and her five-day penalty sixteen years later. See Leipzig v. Astrue,
C. Hostile Work Environment
Next up are Plaintiff's hostile-work-environment claims. To prevail on such allegations, she must show that her employer subjected her to "discriminatory intimidation, ridicule, and insult" that was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc.,
Here, Dreiband falls far short of this bar. Her allegations regarding the work environment at ICE consist solely of conclusory and vague statements that she was "harassed, stressed, [and] overworked," ECF No. 21 (Obj. to DSMF), ¶ 3, and that she "has been subjected to defamation of character[ ] and workplace harassment ... by Nancy Luc." ECF No. 23 (Opposition) at 2. Such general assertions of "harassment" do not suffice to make out a hostile-work-environment claim. There is no indication in the record that any of the alleged acts interfered with Dreiband's work performance, nor that they were based in any way on her membership in a protected class or on her protected activity. See Baloch,
D. Equal Pay Act
Finally, the Court briefly addresses Plaintiff's reference to the Equal Pay Act. It first notes that although she mentions the statute in the opening paragraphs of her Complaint, she includes no specific count alleging a violation. Construing the Complaint liberally as Dreiband is pro se , however, the Court concludes that any claim she intended to raise under the Act cannot be brought here. Defendant correctly notes that, pursuant to the "Little Tucker Act," jurisdiction over Plaintiff's Equal Pay Act allegation lies solely in the United States Court of Federal Claims, as it seeks more than $10,000 from the federal government. See, e.g., Schrader v. Tomlinson,
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant's Motion for Summary Judgment. A contemporaneous Order so stating will issue this day.
Reference
- Full Case Name
- Mahla DREIBAND v. Kirstjen NIELSEN, Secretary, U.S. Department of Homeland Security
- Cited By
- 5 cases
- Status
- Published