Wigfall v. Office of Compliance
Wigfall v. Office of Compliance
Opinion of the Court
Terry Wigfall brings this action against her employer, the Office of Compliance, under the Congressional Accountability *164Act.
I. BACKGROUND
Terry Wigfall began working for the Office of Compliance (OOC), a federal legislative agency, in 2007. Second Am. Compl. ¶ 18. Around 2010,
Wigfall was promoted to occupational safety and health (OSH) program manager in 2013. Id. ¶ 33. In that role, she completed three reports between August and October 2015 finding health and safety issues in cases filed by the Architect of the Capitol's Inspector General's Office employees. Id. ¶ 40. In October 2015, the general counsel (Uelmen's predecessor, a white woman named Amy Dunning) told Wigfall that she intended to remove the findings, and Wigfall "strongly objected." Id. ¶ 41. On October 28, 2015, Dunning gave Wigfall a negative performance evaluation. Id. ¶ 43. Wigfall alleges that "[b]ecause of [her] negative performance evaluation, she was denied a bonus in 2015," id. ¶ 44, though she admits in her opposition to OOC's motion to dismiss that she learned of the bonus decision in September, Pl.'s Opp'n, Dkt. 37 at 9. Wigfall met with OOC's executive director on October 30 and November 5, and at both meetings she "expressed concerns of racial discrimination in the office." Second Am. Compl. ¶¶ 45-46.
*165On December 7, after investigating a complaint from another OOC employee, Wigfall informed management about mold in one of OOC's file rooms. Id. ¶¶ 47-51. OOC's executive director "became visibly upset and stated that there should be no findings." Id. ¶ 51. Sometime in December, Uelmen stopped processing Wigfall's report on this issue and "changed the process of OSH safety reports" so that "attorneys completed a final review without input from the OSH team," often resulting in attorneys removing OSH findings. Id. ¶ 52. And on December 9, after Wigfall had submitted calendars with inspection dates for the OSH team, Uelmen "returned the calendar proposal with additional job duties" that included "increas[ing] the schedule from 3 days of inspections per week to 4 days per week, and added inspections pursuant to the Americans with Disabilities Act." Id. ¶ 55. Wigfall believes this added work was retaliation for her mold-in-the-file-room findings. Id. ¶ 56.
In "spring 2016," an OOC attorney-Hillary Benson-started wearing mosquito repellant because she was pregnant and did not want to contract the Zika virus. Id. ¶ 57. Wigfall "immediately began having significant negative, physically disabling reactions to the repellant, including difficulty breathing," and her reactions "materially impacted her ability to perform her job duties." Id. ¶ 58. She missed "numerous days of work" and had to work from an empty conference room when she did come in. Id. ¶ 61. Wigfall alleges she "asked for a reasonable accommodation"-she does not specify what-but that Uelmen dismissed her reactions as seasonal allergies. Id. ¶¶ 59-60. Wigfall alleges that she took two days of sick leave in April 2016 "to recover from bronchitis that she developed as a result of [Benson's] excessive use of insect repellant inside OOC offices." Id. ¶ 66. On April 18, Uelmen "acted aggressively" in a staff meeting, and Wigfall believes this behavior was retaliation for her accommodation request. Id. ¶ 67. On April 20, Uelmen sent Wigfall an expectations memo that was critical of Wigfall's job performance. Id. ¶ 68.
Wigfall filed her first counseling request with OOC on April 25, 2016, and she alleges in her complaint that she "discussed the issues contained above" in her first counseling request. Id. ¶ 69. She completed counseling and requested mediation on June 14; the mediation period ended on August 25. Id. ¶ 70.
At a May 2 staff meeting, Uelmen "did not permit [Wigfall] to speak" and "ignored her." Id. ¶ 71. At meetings on May 4 and May 18, Benson sat close to Wigfall, and Wigfall believes she did so intentionally despite knowing of Wigfall's bug spray sensitivity. Id. ¶¶ 72, 74. Uelmen ignored a May 11 email from Wigfall complaining about the repellant. Id. ¶ 73. On May 18, after Wigfall met with Architect of the Capitol staff to discuss cleaning the office to remove the bug spray smell, OOC's executive director "scolded" her. Id. ¶¶ 75-76. And while a cleaning did take place in late May 2016 that allowed Wigfall to work in her office, Wigfall "does not believe that the spring cleaning was related to her request for a reasonable accommodation" and alleges that OOC "wholly failed" to accommodate her or engage in an interactive process. Id. ¶¶ 77-80.
Wigfall alleges continuing "[r]acial and [g]ender [d]isparities" over the summer of 2016. In May and June, after Wigfall complained to Uelmen that one of her direct reports-a white woman-was habitually late and unresponsive to Wigfall's correction, Uelmen instructed Wigfall to write her up but then met with the employee and took her side. Id. ¶¶ 81-82. Wigfall further alleges that Uelmen "strongly encouraged *166[Wigfall] to discipline non-white employees against [her] judgment," but "refused to allow" her to discipline two white employees (including the tardy employee). Id. ¶ 84. Finally, at a July 18 meeting, Uelmen "ignored" Wigfall and instead directed questions to her subordinate, a white man. Id. ¶ 85.
On August 22, 2016, Wigfall filed a second request for counseling "as to the continued discrimination and retaliation that occurred after her first request in April 2016." Id. ¶ 86. She requested mediation on September 22, and mediation ended on October 24. Id. ¶ 87. On September 6, a few weeks after Wigfall's second counseling request, Uelmen "further increased [her] workload by requiring her to complete four employee evaluations" by September 9. Id. ¶ 88. Uelmen also attended performance review for Wigfall's subordinates-something he had not done before-and "consistently praised" the white female employee Wigfall had attempted to write up for tardiness. Id. ¶¶ 90-91. Uelmen also promised a white male employee he would help him get a raise, but did not make similar promises to minority employees and generally "praised white employees more than non-white employees." Id. ¶ 92.
Wigfall sued OOC on November 23, 2016. Dkt. 1. Her complaint-as amended, see Dkt. 34-lists four counts under the Congressional Accountability Act: failure to accommodate her disabilities; discrimination on the bases of gender, race, and disability; hostile work environment on the bases of gender, race, and disability; and retaliation. Each of her four counts "repeats and realleges" her entire complaint without specifying which acts are alleged to support which counts, leaving the Court to parse the events recounted above for colorable claims of failure to accommodate, discrimination, hostile work environment, and retaliation.
II. LEGAL STANDARDS
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss an action or claim when the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion for dismissal under Rule 12(b)(1)"presents a threshold challenge to the court's jurisdiction." Haase v. Sessions ,
*167"To survive a [ Rule 12(b)(6) ] motion to dismiss, 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 ,
In analyzing the merits of Congressional Accountability Act (CAA) claims, "courts in this jurisdiction consistently have read the CAA to incorporate Title VII as well as other remedial federal statutes and, thus, have applied case law related to underlying remedial federal statutes, such as Title VII, in analyzing claims brought under both the antidiscrimination and antiretaliation provisions of the CAA." Harrison v. Office of the Architect of the Capitol ,
III. ANALYSIS
OOC raises both jurisdictional and merits-based challenges to Wigfall's claims. The Court addresses each of Wigfall's four counts in turn. As noted, because Wigfall's complaint does not specify which acts are alleged to form the basis of which counts, the Court identifies and analyzes potential theories of liability on which Wigfall's complaint could conceivably rest.
A. Count I: Failure to Accommodate
1. Jurisdiction
For subject-matter jurisdiction to exist in a CAA case, a plaintiff must have satisfied the CAA's three-step process: (1) request counseling with OOC within 180 days of the alleged violation; (2) request mediation within 15 days after receiving notice of the end of counseling; and (3) file a complaint between 30 and 90 days after receiving notice of the end of mediation. Blackmon-Malloy v. U.S. Capitol Police Bd. ,
OOC also argues that there is no subject-matter jurisdiction over claims arising out of any events occurring after April 25 because Wigfall's complaint was filed too early to include any of the events encompassed in her second round of counseling and mediation. Def.'s Mot., Dkt. 36 at 12. The CAA requires that civil actions be filed "not sooner than 30 days[ ] after the end of the period of mediation."
OOC nevertheless argues that § 1404"creates a 30-day moratorium" period and that complaints filed on the 30th day are too early. Def.'s Mot., Dkt. 36 at 13. This is a misreading of the statute, which states that complaints may be filed "not sooner than 30 days[ ] after the end of the period of mediation."
In sum, the Court concludes that it has subject-matter jurisdiction over Wigfall's failure-to-accommodate claim.
*1692. Merits
To state a failure-to-accommodate claim under the CAA,
At least one district court in this Circuit has concluded that allergic reactions to substances in the workplace can constitute a disability, at least where the symptoms are not limited to the workplace. See, e.g. , Morris v. Jackson ,
B. Count II: Discrimination
1. Jurisdiction
OOC argues that there is no subject-matter jurisdiction over Wigfall's discrimination claim to the extent it relies on OOC's denial of a bonus in 2015. The Court agrees.
An employee's request for counseling-which, as noted above, is a jurisdictional prerequisite-must be made "not later than 180 days after the date of the alleged violation."
Wigfall argues that although she learned of the bonus denial in September, she did not receive the performance evaluation until October, she disputed her performance evaluation in December, and she did not "kn[o]w for certain" that she would not receive a bonus until OOC's executive director "made the final decision not to adjust [her] performance evaluation" in December. Pl.'s Opp'n, Dkt. 37 at 9. But Supreme Court precedent states that a claim accrues on the date an adverse employment decision is made and the employee is notified, and an employee's attempt to appeal that decision does not toll the 180-day window. Del. State College v. Ricks ,
2. Merits
As this Court has explained, "[t]he appropriate standard for assessing a motion to dismiss" discrimination claims "resists a concise summation." Thomas v. Wash. Metro. Area Transit Auth. ,
Wigfall's complaint does not clearly identify which allegations she believes make out a discrimination claim or an adverse employment action, but her theory of the case could conceivably rely on any of the following:
*171• OOC's failure to promote Wigfall to the position of OSH program manager in 2010, and its refusal to fill Wigfall's old position once she eventually became program manager in 2013. Second Am. Compl. ¶¶ 24-33.
• Dunning's decision to remove Wigfall's findings of health and safety issues from a report in October 2015. Id. ¶¶ 40-42.
• Wigfall's receipt of a negative performance evaluation from Dunning on October 28, 2015. Id. ¶ 43.
• Uelmen's decision to "stop[ ] processing [Wigfall's] report" regarding mold in one of OOC's file rooms and his subsequent decision to "change[ ] the process of OSH safety reports, whereby attorneys completed a final review without input from the OSH team." Id. ¶ 52.
• Uelmen's comment to another employee (a white male) that he would try to get that employee a raise even though "no employees would get raises this year." Id. ¶ 92.
• Uelmen's disagreement with Wigfall about the appropriate level of discipline for Wigfall's subordinates. Id. ¶¶ 81-84.
None of these allegations saves count II from dismissal: the hiring decisions in 2010 and 2013 are well outside the 180-day timeframe from Wigfall's first counseling request in April 2016, and the remaining allegations do not rise to the level of an adverse employment action.
Wigfall's disagreement with Dunning over health and safety findings did not result in any significant change in employment status, but rather resulted simply in Wigfall's boss editing her report. Similarly, Uelmen's decisions to stop processing Wigfall's "mold report" and to change the process for future reports are insufficient, as "[c]hanges in assignments or work-related duties do not ordinarily constitute adverse employment decisions if unaccompanied by a decrease in salary or work hour changes." Mungin v. Katten Muchin & Zavis ,
*172That leaves a single negative performance evaluation. Though Wigfall points to Walker v. Johnson ,
Because Wigfall has failed to allege any adverse employment actions to sustain her discrimination claims, the Court will dismiss count II without prejudice.
C. Count III: Hostile Work Environment
1. Jurisdiction
The only jurisdictional question for Wigfall's hostile work environment claim is whether the Court can consider acts that occurred after April 25. For the reasons expressed in part III.A.1 of this opinion, the Court concludes that it has jurisdiction over the claims included in Wigfall's second round of counseling and mediation, including acts that occurred after April 25.
2. Merits
A hostile work environment exists where a plaintiff's employer subjects her 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 ,
Wigfall's allegations fail to satisfy the "severe or pervasive" standard. She makes general allegations that her supervisor, Uelmen, "regularly" engages in "rude and inappropriate behavior" toward her, including interrupting her at meetings and minimizing her achievements. Second Am. Compl. ¶ 38. She also alleges generally that "she and other minority employees were marginalized and ignored by white staff, and that their feedback on OSH investigations was frequently ignored." Id. ¶ 46. And she alleges a few specific instances of such conduct: disagreements with Dunning over health and safety findings in one of Wigfall's reports, id. ¶ 41; disagreements with OOC's executive director about findings of mold in a separate report, id. ¶ 51; comments from Uelmen and other coworkers indicating they did not believe Wigfall had a severe allergy to bug spray and asking her to apologize to the woman wearing the bug spray, id. ¶¶ 64-65, 78; an expectations memo from Uelmen accusing her of disregarding her duties, id. ¶ 68; being interrupted and ignored at staff meetings on May 2 and July *17318, id. ¶¶ 71, 85; disagreements with Uelmen over personnel discipline, id. ¶¶ 81-84; and praise from Uelmen for other (white) employees but not for Wigfall, id. ¶¶ 90-92.
Wigfall's list of grievances is long, but "a long list of trivial incidents is no more a hostile work environment than a pile of feathers is a crushing weight." Baird , 792 F.3d at 172. The Baird court confronted a long list of "name-calling, rude emails, lost tempers and workplace disagreements" and considered it "the kind of conduct courts frequently deem uncognizable under Title VII." Id. at 171 ; see also id. (collecting cases rejecting hostile work environment claims). Here, Wigfall's allegations amount to nothing more-and probably much less-than the list of grievances rejected in Baird . The Court will therefore dismiss count III without prejudice.
D. Count IV: Retaliation
1. Jurisdiction
OOC argues that the Court lacks jurisdiction over Wigfall's claim that she was retaliated against in her October 28 performance review and when Uelmen allegedly imposed additional job duties on December 9. For the reasons expressed in part III.A.1 of this opinion, the Court finds Wigfall's allegations and her underlying administrative documents sufficient to establish jurisdiction. See Pl.'s Opp'n Ex. A, Dkt. 37-1 at 6 ("I believe that Amy Dunning and John Uelmen retaliated against me for raising health and safety concerns and for my refusal to take my staff into the unsafe work environment of the Senate mail facility. This incident was mentioned in the negative performance evaluation."); id. at 9 ("I believe that John Uelemen [sic] and/or Amy Dunning misinformed the OOC Board about an inspection, and, they claimed, as a result the Board had to pass a resolution to force my staff to do additional work.").
To the extent Wigfall alleges a retaliation claim predicated on Uelmen's decision to "further increase[ ] [Wigfall's] workload" on September 6, 2016, Second Am. Compl. ¶ 88, the Court lacks jurisdiction to review that event. It took place after Wigfall's second request for counseling on August 22, and Wigfall does not allege that she ever engaged in a third round of counseling and mediation. "[T]he completion of counseling and mediation for one set of violations does not give the court jurisdiction over related claims of retaliation that occurred after counseling had commenced; the administrative remedies must be exhausted for each claim." Gordon v. Office of the Architect of the Capitol ,
2. Merits
Wigfall's complaint alleges four potential instances of retaliation: (1) that Wigfall's poor performance evaluation on October 28 was retaliation for complaining to Dunning about safety violations, Second Am. Compl. ¶¶ 41-43; (2) that Uelmen imposed "additional job responsibilities" on December 9 in retaliation for Wigfall's findings about mold in the file room, id. ¶¶ 55-56; (3) that Uelmen "acted aggressively" toward Wigfall in a meeting and sent a memo accusing her of disregarding her job duties in retaliation for requesting a reasonable accommodation, id. ¶¶ 67-68; and (4) that Uelmen ignored her and that OOC's executive director scolded her shortly after her first request for counseling, while she was attempting to deal with her bug spray allergy, id. ¶¶ 71-76.
None of these complaints is actionable. To state a claim for retaliation under the CAA, a plaintiff must show (1)
*174that she engaged in statutorily protected activity; (2) that the defendant took an adverse employment action against her; and (3) a causal connection between the two. Halcomb ,
Wigfall's first two (potential) theories of retaliation fail on the first element, as alleged. She alleges that her poor performance review and additional job duties were retaliation for complaining about safety violations and findings about mold in a file room, respectively. But an employee "must in some way allege unlawful discrimination" for her conduct to qualify as protected activity. Broderick v. Donaldson ,
The second two theories fail because they do not allege any adverse employment action. In the retaliation context, an adverse action is one that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Mogenhan v. Napolitano ,
Because Wigfall's complaint, as alleged, fails to state a claim for retaliation, the Court will dismiss Count IV without prejudice.
CONCLUSION
For the foregoing reasons, the Court grants OOC's motion to dismiss and dismisses the complaint without prejudice. A separate order consistent with this decision accompanies this memorandum opinion.
The Congressional Accountability Act incorporates by reference certain provisions of Title VII, the Rehabilitation Act of 1973, and the Americans with Disabilities Act and applies them against Congress and legislative branch agencies.
The facts here are recited as alleged in Wigfall's Second Amended Complaint, Dkt. 34, and are assumed true, as they must be in considering a motion to dismiss. See Ctr. for Responsible Sci. v. Gottlieb ,
In a section of her complaint entitled "History of discrimination within OOC," Wigfall recounts OOC's failure in 2010 to promote her to a position that she eventually obtained in 2013. See Second Am. Compl. ¶¶ 18-33. This incident is well outside the timeframe of Wigfall's 2016 administrative complaints and appears to be provided for background purposes, so the Court does not repeat it here.
OOC argues in reply that Wigfall has provided "no basis for the Court to consider such documents," Def.'s Reply, Dkt. 38 at 2, but the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction," Jerome Stevens Pharm., Inc. v. FDA ,
Neither of the two cases OOC cites warrants a different conclusion. In Stevens v. Department of the Treasury , the Supreme Court analyzed whether the Age Discrimination in Employment Act (ADEA), which disallows suit unless an employee "has given the Commission not less than thirty days' notice," means that an employee must file suit within or after 30 days of the notice.
The Court finds unconvincing OOC's second case, an unreported and out-of-circuit decision in which a district court concluded in a footnote that a 60-day wait period in the ADEA required filing on the 61st day. See Clark v. Nat'l Recognition Prods., Inc. , No. 3:14-cv-287,
As noted above, the CAA incorporates provisions of the ADA and the Rehabilitation Act. Those two acts are interpreted coterminously. Dave v. Lanier ,
It comes closest in recounting Wigfall's discussion with Architect of the Capitol staff members regarding cleaning, and a subsequent reprimand from OOC's executive director. Second Am. Compl. ¶¶ 75-76. But that discussion cannot be the request that was denied, since Wigfall herself admits that the cleaning occurred-and actually alleviated the problem-and she "does not believe that the spring cleaning was related to her request for a reasonable accommodation." Id. ¶ 79.
OOC characterizes Wigfall's allegations regarding additional job duties as a count II claim, but Wigfall's complaint alleges that the additional duties were imposed "in retaliation for her insistence that OOC issue findings of safety violations" in the mold room investigation. Second Am. Compl. ¶ 56. The Court therefore believes that this allegation is better analyzed as a retaliation claim under count IV and addresses it there.
Similarly, the Court views Wigfall's allegations of "rude and inappropriate behavior," id. ¶ 38, from Uelmen and other OOC staff as best situated within Wigfall's hostile work environment claim and thus analyzes those allegations under count III. Wigfall has not made any attempt to characterize those workplace slights as adverse employment actions for purposes of a discrimination claim, and the Court does not see how they could be.
In her brief in opposition, Wigfall also lists "[a]ddition of menial job functions" as an adverse action. Pl.'s Opp'n, Dkt. 37 at 8. Whether that refers to the December 9 or September 6 incident, those allegations are addressed in part III.D.
For the same reason, because Wigfall does not allege any discriminatory motive but rather a motive based on work-related disagreements, the additional job duties claim could not survive even if the Court analyzed it as a discrimination claim under count II.
Reference
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