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Kirby v. Donahoe

United States District Court, D. Minnesota

July 10, 2015

Millicent Kirby, Plaintiff,
Patrick R. Donahoe, Postmaster General, Defendant.

Philip G. Villaume, Jeffrey D. Schiek, and Thomas H. Priebe, Villaume & Schiek, P.A., 2051 Killebrew Drive, Suite 611, Bloomington, Minnesota 55425, for Plaintiff.

C.J. Williams, United States Attorney's Office - Department of Justice, 111 Seventh Street SE, Box 1, Cedar Rapids, Iowa 52401, for Defendant.




This matter is before the Court on Defendant Patrick R. Donahoe's Motion to Dismiss [Doc. No. 40]. For the reasons stated below, Defendant's Motion is granted in part and denied in part.


This lawsuit stems from Plaintiff Millicent Kirby's employment with the Office of the Inspector General ("OIG"), the investigative branch of the United States Postal Service. (Second Am. Compl. [Doc. No. 39] ¶¶ 3, 5.) The allegations in the Second Amended Complaint date back to May 20, 2011, when Plaintiff was interviewed by Daniel Budnick as part of an employment review. (Id. ¶ 6.) According to Plaintiff, Mr. Budnick made sexually-explicit remarks during the interview, including "referring specifically to his testicles, revealing details of intimacy with his wife, and telling the Plaintiff she was beautiful." (Id. ¶ 9.) Plaintiff also alleges that she learned that, immediately following the interview, Mr. Budnick asked her co-worker "whether the Plaintiff had ever made a pornographic video." (Id. ¶ 10.) Plaintiff contends that she reported Mr. Budnick's conduct to her supervisor, Assistant Special Agent in Charge Mark Hines, in May 2011, but that she told Mr. Hines that she did not want to file a complaint for sexual harassment because she was afraid of being retaliated against and being adversely affected in her employment. (Id. ¶¶ 11-13.)

According to Plaintiff, Mr. Budnick falsely reported that he had asked her certain questions during the employment review, (id. ¶¶ 14, 18), and he was then interviewed for a second time based on that false information, (id. at 17). This interview was conducted by Mr. Hines on October 4, 2011. (Id. ¶ 16.) One week after the interview, Mr. Hines informed Plaintiff that she was under official investigation for lack of candor and took possession of her firearm and official vehicle. (Id. ¶ 19.) Mr. Hines also re-assigned Plaintiff to desk duty. (Id.) Plaintiff asserts that, although her supervisors knew as of October 19, 2011 that Mr. Budnick had provided false information and that Plaintiff was not lacking in candor, they continued to investigate her and she was interviewed again on October 27 and December 8, 2011. (Id. ¶¶ 20-22, 24-25.) Meanwhile, in November 2011, Mr. Hines gave Plaintiff a low pay for performance ("PFP") score of 58%, even though Plaintiff's computer-generated score was 93%, "thereby substantially impacting her current and future income." (Id. ¶¶ 23, 28.)

Thereafter, on approximately February 21, 2012, Mr. Hines issued Plaintiff a Letter of Warning in Lieu of Suspension ("LOW"), which imposed disciplinary action on Plaintiff. (Id. ¶ 31.) Plaintiff alleges that all of these actions were taken "because of the Plaintiff's gender and reports and opposition to sexual harassment." (Id. ¶¶ 19, 23, 28; see id. ¶¶ 27, 31.) She also alleges that the report regarding the investigation and the LOW have been made part of her personnel file and are "part of ongoing retaliation and harassment by the Defendant against the Plaintiff because of her gender and because of her reports and opposition to sexual harassment." (Id. ¶ 33; see id. ¶ 42.)

On February 29, 2012, Plaintiff appealed the disciplinary action imposed by Mr. Hines to Area Special Agent in Charge David Barnes. (Id. ¶ 36.) Mr. Barnes affirmed Mr. Hines's decision on March 9, 2012 in a written opinion stating, "[Y]our decision to withhold relevant information during your background check is conduct that impairs your ability to perform official duties." (Id. ¶¶ 36, 39.) On March 22, 2012, Plaintiff appealed Mr. Barnes's decision to Deputy Assistant Inspector General for Investigations Lance Carrington. (Id. ¶ 38.) On April 16, 2012, Mr. Carrington issued a written decision partially dismissing the disciplinary action, and specifically dismissing the discipline for lack of candor. (Id. ¶ 41.)

During this time period, Plaintiff alleges, she also was denied two job transfers or promotions on account of her gender, reports of and opposition to sexual harassment, and low PFP score. (See id. ¶¶ 30, 37, 92.) Plaintiff applied for these positions in January and March 2012. (See id. ¶¶ 30, 37.) Plaintiff claims that, although she was qualified for these positions, Defendant ultimately chose a male with lesser qualifications in each instance. (See id.)

According to the Second Amended Complaint, Plaintiff requested Equal Employment Opportunity ("EEO") counseling on March 20, 2012 and raised complaints in her Pre-Complaint Counseling Information about Defendant relating to sexual harassment and retaliation. (Id. ¶ 43.) In particular, she contends that she told the EEO counselor about the sexual harassment by Mr. Budnick and the subsequent investigation. (Id. ¶ 44.) On April 18, 2012, EEO Dispute Resolution Specialist Arlene Gordon issued a final interview letter in which she accepted as true Mr. Carrington's general denials of Plaintiff's complaint. (Id. ¶¶ 46-47.) Ms. Gordon conducted no further investigation. (Id. ¶ 48.)

Plaintiff then filed a formal EEO Complaint on May 4, 2012, in which she checked the box for "sex" discrimination and described the discrimination as having occurred from "May 20, 2011 through April 18, 2012 and continuing." (Id. ¶¶ 49-51 & Ex. A.) She described her interview with Mr. Budnick, the LOW, the "investigation into [her] character, " the low PFP, her relegation to desk duty, and the denials of the January and March 2012 transfer or promotion applications. (Id., Ex. A.) According to Plaintiff, on about May 11, 2012, EEO Services Specialist Brenda Thompkins issued an order partially accepting and partially dismissing Plaintiff's formal EEO Complaint and improperly summarized Plaintiff's allegations by failing to "frame any issue" related to retaliation or hostile work environment and accepting only Plaintiff's sex discrimination claim. (See id. ¶¶ 52-59.) Plaintiff appealed Ms. Thompkins's decision on June 27, 2012, and, at the same time, amended her EEO Complaint to describe additional retaliatory actions taken by Defendant. (Id. ¶¶ 64-65.) The EEO issued a final decision on November 26, 2013, finding in Defendant's favor but giving Plaintiff the right to sue Defendant in federal court. (Id. ¶ 70.)

Meanwhile, on May 24, 2012, Plaintiff served Defendant with a notice of claims. (Id. ¶ 62.) She asserts that, after serving the notice, and because of her gender and reports of sexual harassment, Defendant's employees "engaged in an ongoing pattern of retaliation toward [her]." (Id. ¶ 63.) According to Plaintiff, her supervisors gave her low PFP scores in December 2012 and December 2013, told her she had to attend training that she had already completed, gave her conflicting instructions on her work assignments in January 2014, prevented her from having her attorney present at a meeting in January 2014, and required her to complete biweekly case reviews. (Id. ¶¶ 68, 71, 73-75, 77-78, 81.) During the January 2014 meeting with Special Agent Joseph Schwartz, Plaintiff was questioned about "numerous unfounded allegations, " and she reported that she felt she was being harassed and working in a hostile work environment and that she had filed a complaint to that effect. (Id. ¶ 74.) She alleges that she was "told that she would be given another LOW for the issues discussed at this meeting." (Id. ¶ 75.)

Plaintiff filed her original Complaint in this Court on January 29, 2014, and she received her second LOW on February 25, 2014. (Id. ¶¶ 79, 82.) This LOW was issued by Mr. Schwartz for alleged "failure to follow instructions, careless performance of duties, and unprofessional conduct." (Id. ¶ 82.) Plaintiff appealed the LOW, and it was upheld on April 11, 2014. (Id.) She contends that the LOWs "have and will continue to hinder [her] career advancement within the [OIG] along with her future employment possibilities, " (id. ¶ 99), and have damaged her professional reputation, (id. ¶ 100).

In addition, Plaintiff asserts that she was denied three more job transfers or promotions on account of her gender, reports of and opposition to sexual harassment, low PFP score, and EEO and federal district court complaints. (See id. ¶¶ 60, 61, 80, 92.) Plaintiff applied for these positions in June 2012, August 2012, and January 2014. (See id. ¶¶ 60, 61, 80.) Plaintiff claims that, although she was qualified for these positions, Defendant ultimately chose a male with lesser qualifications in each instance. (See id.)

On April 8, 2014, Plaintiff again requested EEO counseling and filed pre-Complaint Counseling Information. (Id. ¶ 87.) She then filed a second formal EEO Complaint on May 29, 2014, in which she described her report of Mr. Budnick's sexual harassment, the filing of her formal May 2012 EEO Complaint, the serving of the May 2012 notice of claims, the denial of her August 2012 transfer request, the imposition of low PFP scores and bi-weekly case reviews, her supervisors' provision of conflicting instructions, the requirement that she re-attend training, the January 2014 meeting and the prohibition of the presence of her attorney at that meeting, and the February 2014 LOW. (See id. ¶¶ 88-90 & Ex. B.) This time, Plaintiff checked the boxes on the form for both "sex" discrimination and "retaliation." (See id., Ex. B.) The EEO issued a final decision on December 3, 2014, finding in Defendant's favor and giving Plaintiff the right to sue Defendant in federal court. (Id. ¶¶ 110-11.)

As discussed above, Plaintiff filed this lawsuit in January 2014. The parties twice stipulated to Plaintiff amending her complaint, which she did on April 30, 2014 [Doc. No. 14] and January 8, 2015 [Doc. No. 39]. The Second Amended Complaint is now the operative complaint in this action. In it, Plaintiff enumerates two causes of action against Defendant: "Discrimination in Violation of Federal Law" (Count I), (see id. ¶¶ 112-44); and "Retaliation/Reprisal in Violation of Federal Law" (Count II), (see id. ¶¶ 145-79). Defendant, construing Plaintiff's claims as arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., moved to dismiss the Second Amended Complaint on February 9, 2015. The matter was heard on April 3.


When evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted, the Court assumes the facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). However, the Court need not accept as true wholly conclusory allegations, see Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions the plaintiff draws from the facts pled, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). In addition, the Court ordinarily does not consider matters outside the pleadings on a motion to dismiss. See Fed.R.Civ.P. 12(d). The Court may, however, consider exhibits attached to the complaint and documents that are necessarily embraced by the pleadings, Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003), and may also consider public records, Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).[1]

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint "must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." The U.S. Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), clarified that this Rule does not require that a complaint contain "detailed factual allegations, " but it does require that it contain facts with enough specificity "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In other words, this standard "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]." Id. at 556. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, to survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.

Here, Defendant argues that Plaintiff's discrimination and retaliation claims must be dismissed because: (1) Plaintiff failed to plead that she exhausted her administrative remedies; and (2) she failed to allege sufficiently detailed facts to support either of her claims. (Def.'s Mem. in Supp. of Mot. to Dismiss [Doc. No. 41] ("Def.'s Mem.") at 1-2.) Defendant also argues that Plaintiff's claims cannot be considered claims for hostile work environment because she did not allege that cause of action in a separate count of her complaint. (Id. at 13.) Plaintiff, on the other hand, argues that all of her claims are timely because "[she] has alleged that Defendant's actions constituted a continual and ongoing pattern of discrimination and ...

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