Fierce v. Burwell

101 F. Supp. 3d 543, 2015 U.S. Dist. LEXIS 41538, 2015 WL 1505651
CourtDistrict Court, D. Maryland
DecidedMarch 31, 2015
DocketCivil No. RWT 13-3549
StatusPublished
Cited by14 cases

This text of 101 F. Supp. 3d 543 (Fierce v. Burwell) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fierce v. Burwell, 101 F. Supp. 3d 543, 2015 U.S. Dist. LEXIS 41538, 2015 WL 1505651 (D. Md. 2015).

Opinion

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

Federal antidiscrimination laws protect employees from discrimination based on certain protected characteristics, including disabilities. They do not protect employees from a bad relationship with a supervisor. Plaintiff Heather Fierce has presented evidence that she may have suffered from the latter, but because she has failed to produce sufficient evidence that she was discriminated against because of her disability, the Court must grant summary judgment to Defendants.

BACKGROUND

I. Facts

The “Schedule A” program provides for the hiring by the federal government of qualified candidates with disabilities. ECF No. 34-1 at 2-3. Candidates hired under Schedule A are subject to a two-year probationary period, after which they may be hired as permanent employees. Id. Plaintiff Heather Fierce was hired by the Department of Health and Human Services (“DHHS”) as a Schedule A candidate in September 2010. Id. She has clinical depression and unspecified learning disabilities. Id. at 2. Her immediate supervisor at NIH was Tabitha Hairston (“Hairston”), and her second-line supervisor was Kim Derwinski (“Derwinski”). Id. at 3.

A. Hairston’s Attitude Towards Plaintiff Changes

Apparently, Hairston and Plaintiff initially maintained a good working relationship, but this changed suddenly around July 2011, when “Plaintiff observed a change in how Ms. Hairston treated her ... [sjpecifieally, Ms. Hairston adopted an aggressive and accusatory posture towards Plaintiff ... frequently ignored Plaintiffs communications, and provided her with less guidance and instruction on work assignments than she had before.” Id. Hairston also “began repeatedly accusing Plaintiff of failing to meet work deadlines.” Id. Plaintiff maintains in particular that the accusations regarding missed deadlines were unfair, as each missed deadline was either not, in fact, a missed deadline, or was missed due to circumstances outside of Plaintiffs control. Id. at 4. This change in attitude “caused Plaintiff to experience unwarranted self doubt, stress, anxiety, and depression.” Id.

Contrary to Plaintiffs assertion that Hairston’s attitude towards her suddenly changed in July 2011, Defendants assert that Plaintiff had persistent performance issues almost immediately. ECF No. 14-1 at 4. In support of this contention, Defendants have produced numerous contemporaneous documents that indicate Plaintiffs performance problems. This evidence tends to demonstrate that Plaintiff had multiple issues: taking excessive leave, submitting travel vouchers late, using her government charge card for personal purchases, behaving in an unprofessional manner towards colleagues, and failing to appropriately prioritize work projects. ECF No. 14-6 (email from Hairston to Plaintiff concerning excessive use of sick leave); ECF No. 14-8 (emails concerning Plaintiffs failure to timely submit travel voucher); ECF No. 14-9 (emails concerning unauthorized charges on Plaintiffs government charge card); ECF No. 14-10 (hostile emails from Plaintiff to coworkers); ECF No. 14-13 at 1-8 (emails by Hairston requesting updates on various work projects Plaintiff was responsible for).

B. Hairston Requires Plaintiff to Submit Weekly Accounting

In November 2011, Hairston requested that Plaintiff begin submitting weekly re[547]*547ports indicating what items she would be working on during the week and how much time would be devoted to each. ECF No. 14-13 at 9. Hairston required that three other employees submit similar reports. ECF No. 24-1 at 20. One of the other employees required to submit these reports claims to have had a disability, id. at 19, but there is no evidence that Hairston was aware of this employee’s alleged disability, nor is there any evidence that any of the other employees required to submit this report had a disability. ECF No. 14-154.

C. Memorandum of Counseling

In April 2012, Hairston delivered to Plaintiff a “Memorandum of Counseling” addressing the various issues with Plaintiffs performance. ECF No. 14-18. The Memorandum of Counseling detailed various instances in which Plaintiff had missed deadlines and performed unsatisfactory work. Id. Plaintiff denies the allegations in the Memorandum of Counseling. ECF No. 34-1 at 6.

D. Plaintiff Initiates EEO Counseling

In May 2012, Plaintiff filed an informal complaint with DHHS’s Equal Employment Opportunity (“EEO”) office. ECF No. 34-1 at 6. The informal complaint resulted in two failed mediations. Id. Hairston appears to have rejected three proposed terms that resulted from the mediation sessions: (1) that Plaintiff be made a permanent employee; (2) that Plaintiff be allowed to telework one day a week; and (3) that Plaintiffs work with HRSA’s Council for Employees with Disabilities be considered part of her work duties.1 ECF No. 14-25. Following the failure of mediation, Plaintiff filed a formal EEO complaint on August 4, 2012. ECF No. 34-1 at 6.

E.Plaintiff is Terminated

On September 10, 2012, Plaintiff was informed that she would be terminated effective September 22, 2012, at the end of her probation period. ECF No. 14-20. Further, Plaintiff was placed on administrative leave effective immediately. Id. The termination notice exhaustively detailed the litany of performance issues Plaintiff experienced during the probationary period. Id. Plaintiff denies the allegations in the termination notice. ECF No. 34-1 at 6.

II. Procedural History

This case was originally filed in the United States District Court for the District of Columbia. ECF No. 1. After two amendments to the Complaint, the case was transferred to this Court.2 ECF No. 9. Plaintiff alleges six counts in her Complaint. Count I alleges retaliatory termination in violation of Title VII. Id. at 6-7.. Count II alleges various instances of discriminatory treatment on the basis of Plaintiffs disability. Id. at 7-9. Count III alleges a hostile work environment. Id. at 9. Count IV alleges intentional inflic[548]*548tion of emotional distress. Id. at 9-10. Count V alleges negligent infliction of emotional distress. Id. at 10-11. Count VI alleges a failure to accommodate under the ADA.3 Id. at 11.

On March 11, 2014, Defendants filed the instant motion. ECF No. 14. The Court scheduled a hearing for August 28, 2014 to consider the motion. ECF No. 26. With a ripe dispositive motion pending, and a hearing for argument on that dispositive motion scheduled, Plaintiff's counsel, Reginald J. Richter, moved to withdraw his appearance, because he was “winding down his practice in the District of Columbia” and would be “sitting for the California Attorney’s bar in February 2015.” ECF No. 32. The Court reluctantly granted the motion. ECF No. 35. No other attorney has entered an appearance on Plaintiffs behalf.

III. Standard of Review

Defendants and Plaintiff have each filed numerous exhibits that the Court will consider in disposing of the instant motion. Accordingly, it is appropriate to treat Defendant’s motion as a motion for summary judgment. Fed.R.Civ.P.

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101 F. Supp. 3d 543, 2015 U.S. Dist. LEXIS 41538, 2015 WL 1505651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fierce-v-burwell-mdd-2015.