Mustafa v. Iancu
Mustafa v. Iancu
Opinion of the Court
At issue in this Title VII
(i) because plaintiff raised several of the allegedly discriminatory actions that form the basis of his hostile work environment claim as part of a union grievance process which plaintiff then failed to exhaust,
(ii) because several of the allegedly discriminatory actions are untimely, and
(iii) because the allegedly discriminatory actions are not sufficiently severe or pervasive to state a claim for hostile work environment.
Plaintiff opposes defendant's motion, arguing (i) that the untimeliness of the allegedly discriminatory actions must be overlooked because the conduct is part of a continuing violation and (ii) that defendant's conduct, as a whole, is sufficiently severe and pervasive to state a hostile work environment claim. These issues have been fully briefed and argued and are now ripe for disposition.
*687I.
Before reciting the pertinent facts, it is important to identify the proper source of those facts. First, as the parties agree and as settled precedent requires, the facts recited here are taken chiefly from the Amended Complaint's factual allegations, which must be accepted as true at this stage. Cozzarelli v. Inspire Pharm. Inc. ,
Where, as here, a party challenges subject matter jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P., the Fourth Circuit has made clear that the plaintiff's jurisdictional allegations are "mere evidence" and evidence outside the pleadings may properly be considered without converting the motion to dismiss into a motion for summary judgment. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States ,
With respect to a motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., settled circuit authority permits courts to consider external documents when they "are integral to and explicitly relied on in the complaint, and when the plaintiffs do not challenge the document's authenticity." Zak v. Chelsea Therapeutics Int'l, Ltd. ,
II.
Plaintiff, Imran Mustafa, is a resident of Maryland and a former patent examiner at *688the PTO where he was a member of the Patent Office Professional Association ("POPA") bargaining unit. Plaintiff identifies his race as South Asian, his national origin as Indian, and his religion as Muslim. Defendant, Andrei Iancu, is the head of the PTO, the agency responsible for the alleged discrimination.
The Amended Complaint alleges that plaintiff was employed as a patent examiner at the PTO for approximately 10 years. Throughout his time at the PTO, plaintiff received positive comments on his performance and high ratings on performance evaluations. On April 20, 2015, plaintiff received and signed a performance evaluation providing plaintiff with a "Fully Successful" rating. Specifically, plaintiff received a "Fully Successful" rating for his Quality, a "Commendable" rating for his Productivity, a "Fully Successful" rating for his Docket Management, and an "Outstanding" rating for his Stakeholder Interaction.
On April 30, 2015, before boarding his flight to India, plaintiff received a call from his father informing plaintiff that plaintiff's supervisor was trying to get in touch with plaintiff about an emergency at work. When plaintiff called his supervisor, plaintiff's supervisor told plaintiff that plaintiff needed to sign the new performance evaluation or else plaintiff would have an embarrassment upon his return from India. Although the Amended Complaint does not specify what happened upon plaintiff's return from India, the Amended Complaint does allege that immediately after plaintiff refused to sign his performance evaluation, plaintiff was denied a deserved Within Grade Increase ("WGI").
The Amended Complaint further alleges that shortly thereafter, plaintiff gave a presentation and Khoi Tran ("Tran"), a supervisor who was involved in the denial of plaintiff's WGI, argued with plaintiff during his presentation. After the presentation, Tran asked to meet with plaintiff. During the meeting, the Amended Complaint alleges that Tran named several employees of plaintiff's same national origin and race and stated "you people like to do your work in a certain way." Am. Compl. ¶ 24.
On July 7, 2015, pursuant to Article 11 of the collective bargaining agreement ("CBA") between POPA and the PTO, POPA filed an informal grievance with the PTO on behalf of plaintiff, arguing that the PTO wrongfully denied plaintiff's WGI. Specifically, POPA requested that the PTO reinstate the WGI as of April 2015.
Around the same time, in the summer of 2015, the PTO issued a vacancy announcement for a Supervisory Patent Examiner position in plaintiff's department. Plaintiff applied for the position and was interviewed in August 2015. On August 26, 2015, plaintiff was not selected for the position. The Amended Complaint alleges that this occurred despite the fact that plaintiff was the most qualified and experienced candidate of all the applicants. Indeed, the candidate selected for the supervisory position, who is not South Asian, Indian, or Muslim, did not have the same specialized experience or Master's degree as plaintiff.
*689On October 6, 2015, plaintiff met with PTO management and POPA representatives to discuss his July 7, 2015 informal grievance; at this meeting, plaintiff's POPA representatives also alleged that plaintiff's supervisor created a hostile work environment when he contacted plaintiff's father to urge plaintiff to sign his performance evaluation. One month later, on November 15, 2015, the PTO denied in part and granted in part plaintiff's informal grievance, rejecting plaintiff's request for a WGI and determining that plaintiff's supervisor's actions were not sufficiently severe to constitute a hostile work environment. Thereafter, on March 31, 2016, POPA filed a formal grievance on plaintiff's behalf, arguing again that plaintiff was wrongfully denied a WGI and additionally disputing plaintiff's marginal rating on his new performance evaluation.
On May 19, 2016, before the PTO could issue a final decision on plaintiff's formal grievance,
On September 29, 2016, the PTO issued a final agency action dismissing plaintiff's EEO complaint. Thereafter, on October 22, 2016, plaintiff appealed the PTO's final agency decision to the United States Equal Employment Opportunity Commission ("EEOC"). The EEOC affirmed the PTO's decision on January 13, 2017 and denied plaintiff's request for reconsideration on May 4, 2017.
Plaintiff filed the original complaint in this action on August 7, 2017, asserting claims of race, national origin, and religious discrimination in violation of Title VII. An Order issued on March 9, 2018, dismissing with prejudice plaintiff's discrimination claims based on the denial of the WGI, the marginal performance evaluation, the call to plaintiff's father, and plaintiff's non-selection for a supervisory position. See Mustafa v. Iancu , No. 1:17-cv-1357, at *1 (E.D. Va. Mar. 9, 2018) (Order). The claims were dismissed with prejudice (i) because plaintiff pursued, and did not exhaust, negotiated CBA grievance procedures with respect to his first three claims and (ii) because plaintiff's claim based on his non-selection for a supervisory role was untimely. Plaintiff's hostile work environment claim was dismissed without prejudice and with leave to amend.
Defendant filed the Motion to Dismiss at issue here on April 2, 2018. In his Motion to Dismiss, defendant contends that (i) the marginal performance evaluation, (ii) plaintiff's supervisor's pressure to sign the performance evaluation, and (iii) the denial of the WGI, and must be excluded from plaintiff's hostile work environment claim. Specifically, defendant argues there is no subject matter jurisdiction over these matters because plaintiff elected to pursue these matters via negotiated CBA grievance procedures, and not statutory procedures. Defendant also argues that plaintiff's non-selection for the supervisory position cannot be considered as evidence of a hostile work environment because plaintiff did not contact an EEO counselor within 45 days of plaintiff's non-selection. Finally, defendant contends that plaintiff's hostile work environment claim must be dismissed for failure to state a claim. Plaintiff opposes defendant's motion, arguing that even assuming (i) that plaintiff elected to raise some of defendant's harassing conduct as part of the union grievance process and (ii) that other allegedly harassing conduct is time-barred, these actions may still be considered as evidence in support of plaintiff's hostile work environment claim. Plaintiff also contends that defendant's actions were sufficiently severe and pervasive to state a plausible hostile work environment claim and to survive a motion to dismiss.
III.
Where, as here, a defendant argues that the jurisdictional allegations in a complaint are not true and challenges subject matter jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P., the plaintiff bears the burden of establishing subject matter jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. ,
The material jurisdictional facts in this case are not in dispute and establish a lack of jurisdiction with respect to (i) defendant's issuance of a marginal performance evaluation, (ii) plaintiff's supervisor's pressure to sign the performance evaluation, and (iii) the denial of the WGI. The Civil Service Reform Act of 1978 ("CSRA") provides, in relevant part, that "[a]n aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both."
Here, it is undisputed that plaintiff elected to challenge three of defendant's actions through the negotiated CBA grievance procedure, and not Title VII statutory procedures. Specifically, the record discloses that POPA asserted grievances on plaintiff's behalf challenging (i) the marginal performance evaluation, (ii) plaintiff's supervisor's pressure to sign the performance evaluation, and (iii) the denial of the WGI in late 2015 and early 2016. On July 7, 2015, POPA filed an informal grievance on plaintiff's behalf with respect to the denial of the WGI and plaintiff's supervisor's pressure. On March 31, 2016, following the denial of plaintiff's informal grievance, POPA filed a formal grievance on plaintiff's behalf with respect to the denial of the WGI and the marginal performance evaluation. Plaintiff followed all of these procedures well before she contacted the OEEOD in May 2016. As such, because plaintiff timely filed a grievance in writing, in accordance with the provisions of the parties' negotiated CBA grievance procedure, plaintiff exercised his option to raise these matters under the negotiated CBA grievance procedure and cannot now pursue these matters through statutory procedures. See
Moreover, because plaintiff elected to pursue these matters via the negotiated CBA grievance procedure, he was required to exhaust those procedures before bringing suit in federal court. Article 11 of the CBA provides that a written decision in response to a formal grievance may be appealed to binding arbitration by POPA or by the PTO. CBA at 35.
*692grievance procedure one month before a PTO decision issued and attempted impermissibly to switch to the statutory procedure by contacting the OEEOD. Because plaintiff did not exhaust the negotiated CBA grievance procedures he elected to pursue, there is no subject matter jurisdiction over (i) the issuance of a marginal performance evaluation, (ii) plaintiff's supervisor's pressure to sign the performance evaluation, and (iii) the denial of the WGI.
Plaintiff adduces no evidence to contradict defendants' arguments with respect to plaintiff's negotiated CBA grievance or to establish subject matter jurisdiction; rather, plaintiff argues that defendant's actions can still be considered as evidence in support of plaintiff's hostile work environment claim because that precise legal theory was not raised during the grievance process. This argument fails because it misunderstands the nature of the CSRA election requirements. As described above, the CSRA provides that "an aggrieved employee ... may raise the matter under a statutory procedure or the negotiated procedure, but not both."
In sum, by timely filing a grievance before pursuing his statutory remedies, plaintiff elected to pursue negotiated CBA grievance procedures with respect to three *693matters: (i) the issuance of a marginal performance evaluation, (ii) plaintiff's supervisor's pressure to sign the performance evaluation, and (iii) the denial of plaintiff's WGI. Having elected those negotiated CBA grievance procedures, plaintiff then failed to exhaust, and abandoned the grievance procedures to take advantage of statutory procedures. Because plaintiff failed to exhaust his elected CBA grievance procedures, there is no subject matter jurisdiction over these matters, and they cannot be considered, even as evidence in support of plaintiff's hostile work environment claim.
IV.
Defendant next argues that the allegations related to plaintiff's non-selection for the supervisory patent examiner position must be excluded from plaintiff's hostile work environment claim because plaintiff did not contact an EEO counselor within 45 days of his non-selection for the supervisory position, as required by
The Supreme Court has made clear "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R&R Passenger Corp. v. Morgan ,
But this does not end the inquiry because incidents can only qualify as a part of the same hostile work environment claim if they are adequately linked-that is, if the incidents "involve[ ] the same type of employment actions, occur[ ] relatively frequently, and [are] perpetrated by the same managers."
Here, plaintiff's non-selection for a supervisory role was a discrete incident that is unrelated to the allegations associated with plaintiff's hostile work environment claim. To begin with, the non-selection involves a type of employment action different from the allegations associated with plaintiff's hostile work environment claim, namely the allegation that Tran made a disparaging comment to plaintiff and the allegation that the PTO pressured plaintiff to settle his EEO claim. Moreover, the incidents were separated in time and did not occur frequently-the comment was made around April 2015, plaintiff was not selected for a supervisory position several months later in August 2015, and defendant did not pressure plaintiff to settle his EEO claim until almost one year later in June 2016. Finally, the allegedly harassing conduct was perpetrated by different managers. Although the Amended Complaint alleges that Tran, the supervisor who made the "you people" comment, was involved in plaintiff's non-selection, the Amended Complaint does not allege that those same supervisors pressured plaintiff to settle his EEO complaint.
In sum, because plaintiff's non-selection for a supervisory role is unrelated to the allegations associated with plaintiff's hostile work environment claim, the untimeliness of plaintiff's non-selection claim cannot be rescued and plaintiff's non-selection cannot be considered as evidence in support of plaintiff's hostile work environment claim.
V.
Given that (i) the issuance of the marginal performance evaluation, (ii) the pressure to sign the performance evaluation, (iii) the denial of the WGI, and (iv) the non-selection for a supervisory role cannot be considered as part of plaintiff's hostile work environment claim, plaintiff's hostile work environment claim is properly based only on (i) Tran's "you people" comment and (ii) defendant's pressuring plaintiff to waive his EEO rights in June 2016. Because these actions are not sufficiently *695severe or pervasive to state a plausible hostile work environment claim, plaintiff's claim must be dismissed.
Title VII provides a cause of action to an employee when "the 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. ,
These principles applied here point persuasively to the conclusion that plaintiff has failed to state a valid hostile work environment claim. Simply put, the Amended Complaint does not allege facts suggesting that defendant's alleged harassment was sufficiently severe or pervasive to alter the conditions of plaintiff's employment. To begin with, the allegedly harassing conduct was not frequent or pervasive. Specifically plaintiff's hostile work environment is based on two discrete incidents of alleged harassment: (i) Tran's comment that "you people like to do your work in a certain way" in approximately April 2015, and (ii) defendant's pressuring plaintiff to waive his EEO rights in June 2016. Courts have routinely noted that where, as here, the alleged harassment involves isolated or scattered incidents occurring over the course of several months, the conduct is not pervasive enough to state a claim for hostile work environment. See Hopkins v. Balt. Gas & Elec. Co. ,
*696Nor is the harassing conduct alleged here sufficiently severe to state a plausible hostile work environment claim. Plaintiff's complaint concerning the PTO's pressuring plaintiff to settle his EEO claim essentially amounts to a disagreement with defendant's evaluation of plaintiff's performance and defendant's conduct during the EEO process. The Fourth Circuit has made clear that routine personnel disputes or differences of opinion such as these are not sufficiently severe to state a plausible hostile work environment claim. See Sunbelt Rentals, Inc. ,
In sum, the Amended Complaint does not allege conduct that is sufficiently severe or pervasive as to alter the conditions of defendant's employment. As such, plaintiff has failed to state facts that support a plausible claim for relief, and plaintiff's hostile work environment claim must be dismissed.
VI.
In sum, plaintiff's attempts to recast his allegations as a hostile work environment claim do not save his Amended Complaint. Plaintiff's claims based on (i) the issuance of the marginal performance evaluation, (ii) the pressure to sign the evaluation, and (ii) the denial of the WGI cannot be considered as evidence in support of a hostile work environment claim because plaintiff elected to pursue these matters via negotiated grievance, and not statutory procedures. Moreover, plaintiff's untimely claim based on his non-selection for a supervisory role cannot be considered as evidence of a hostile work environment because plaintiff's non-selection is not sufficiently related to the harassment alleged in plaintiff's hostile work environment claim. Finally, plaintiff's hostile work environment claim cannot survive threshold dismissal because plaintiff has not alleged conduct that is sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment. Accordingly, plaintiff's Amended Complaint must be dismissed with leave to amend to allow plaintiff one final opportunity to state a valid hostile work environment claim consistent with the principles announced in this Memorandum Opinion.
An appropriate Order will issue.
42 U.S.C. § 2000e, et seq.
Defendants' additional documents include three exhibits attached to defendant's Motion to Dismiss the original complaint (Doc. 13), each of which contains a declaration and several attachments. Specifically, exhibit 1 contains plaintiff's Equal Employment Opportunity ("EEO") Complaint, the Office of Equal Employment Opportunity and Diversity ("OEEOD") final agency decision, the Equal Employment Opportunity Commission ("EEOC") decision, and the EEOC decision on plaintiff's request for reconsideration. Exhibit 2 contains documents associated with plaintiff's union grievance proceedings, including the union's grievances on plaintiff's behalf, the United States Patent & Trademark Office's ("PTO") informal decision, and the PTO's formal decision. Finally, exhibit 3 is a copy of the EEO counselor's report from her contact with plaintiff.
See also Occupy Columbia v. Haley,
Quality, Productivity, Docket Management, and Stakeholder Interaction are categories on which patent examiners are rated, and there is no dispute between the parties as to their meaning.
The PTO ultimately denied plaintiff's formal grievance on June 15, 2016. Neither plaintiff nor POPA, as permitted by the CBA, filed any exceptions to this decision or initiated arbitration following the PTO's decision.
The statute defines prohibited personnel practices to include alleged discrimination on the basis of race, color, religion, sex or national origin as prohibited by Title VII. See
Although the Fourth Circuit has not addressed this issue, other courts in this circuit have uniformly agreed that a party who chooses a union grievance process must exhaust that remedy before he or she can file suit in federal court. See Price v. Lynch ,
See also Price ,
See also Moreno v. McHugh ,
See also Redmon v. Mineta ,
Id. at 118,
See also Edwards v. Murphy-Brown LLC ,
Mosby-Grant v. City of Hagerstown ,
See also Sunbelt Rentals, Inc. ,
See e.g. , See Hartsell ,
Even assuming, arguendo , that (i) the issuance of the marginal performance evaluation, (ii) the pressure to sign the evaluation, and (iii) the denial of the WGI, and (iv) the non-selection for a supervisory role were properly considered as part of plaintiff's hostile work environment claim, the hostile work environment claim still does not survive dismissal. To begin with, these allegations, like the pressure to settle the EEO claim, essentially amount to disagreements with defendant's evaluation of plaintiff's performance; the Amended Complaint contains no allegations suggesting these actions "have anything to do with ... harassment" based on plaintiff's race, nationality, or religion. Bass v. E.I. DuPont de Nemours & Co. ,
Reference
- Full Case Name
- Imran MUSTAFA v. Andrei IANCU
- Cited By
- 27 cases
- Status
- Published