Camero v. Perdue ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARIBETH CAMERO,
Plaintiff,
v.
No. 19-cv-1558 (DLF)
TOM VILSACK,
Secretary of Agriculture,
Defendant. 1
MEMORANDUM OPINION
Plaintiff Maribeth Camero brings this employment discrimination action against Tom
Vilsack in his official capacity as Secretary of Agriculture. Before the Court is the Secretary’s
Motion to Dismiss and Motion for Summary Judgment, Dkt. 25. For the reasons that follow, the
Court will grant the Secretary’s motion.
I. BACKGROUND
Since January 9, 2006, Camero has worked as an IT Specialist within the U.S. Department
of Agriculture. Def.’s Statement of Material Facts ¶ 1, Dkt. 25-2. 2 She suffers from venous
malformations, which “cause[] her veins to develop abnormally,” and migraines. Id. ¶ 5. In May
2013, Camero was, based on these disabilities, granted a reasonable accommodation of telework
three days per week. Id. ¶ 8.
1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Tom Vilsack, the Secretary of
Agriculture, has been substituted for Sonny Perdue as the defendant.
2
The Court cites to the defendant’s Statement of Facts if a fact is undisputed. If a fact is disputed,
the Court will indicate as such.
On May 28, 2019, Camero filed a complaint in this Court against the Secretary of
Agriculture alleging that, at various points in her employment, the Secretary failed to
accommodate her and interfered with her reasonable accommodations, in violation of the
Rehabilitation Act, Compl. ¶¶ 46–77, Dkt. 1; discriminated against her on the basis of her national
origin and retaliated against her for exercising her rights to reasonable accommodation, in violation
of Title VII of the Civil Rights Act and the Rehabilitation Act, id. ¶¶ 78–93; and interfered with
her rights under and retaliated against her, in violation of the Family and Medical Leave Act
(FMLA), id. ¶¶ 94–98. She alleges that the Secretary disregarded her telework accommodations
between March and May of 2017, id. ¶¶ 48–52, between September 16 and 23 of 2017, id. ¶ 55,
and from September 2018 onwards, id. ¶¶ 63–77. She further alleges that she “became a target”
for discrimination and retaliation, including when she received an “Unacceptable” performance
appraisal for fiscal year 2017 in November 2017. Id. ¶ 83. Finally, she alleges that the Secretary
failed to approve her valid FMLA leave requests in September and October 2018. Id. ¶¶ 95–98.
The Secretary moved to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1)
and for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dkt. 25.
II. LEGAL STANDARDS
A. Rule 12(b)(1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move to
dismiss an action for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Federal law
empowers federal district courts to hear only certain kinds of cases, and it is “presumed that a
cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). When deciding a Rule 12(b)(1) motion, the court must “assume the truth of all
material factual allegations in the complaint and construe the complaint liberally, granting plaintiff
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the benefit of all inferences that can be derived from the facts alleged, and upon such facts
determine [the] jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.
Cir. 2011) (internal quotation marks omitted). Nonetheless, the burden is on the plaintiff to
establish subject-matter jurisdiction. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). And
the court “may undertake an independent investigation” that examines “facts developed in the
record beyond the complaint” to “assure itself of its own subject matter jurisdiction.” Settles v.
U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005) (internal quotation marks omitted).
A court that lacks jurisdiction must dismiss the action. Fed. R. Civ. P. 12(b)(1), 12(h)(3).
B. Summary Judgment
Under Rule 56, summary judgment is appropriate if the moving party “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., 477 U.S. 242, 247–48 (1986).
A “material” fact is one that could affect the outcome of the lawsuit. See Liberty Lobby, 477 U.S.
at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is “genuine” if a
reasonable jury could determine that the evidence warrants a verdict for the nonmoving party. See
Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. In reviewing the record, the court
“must draw all reasonable inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530
U.S. 133, 150 (2000).
A party “opposing summary judgment” must “substantiate [its allegations] with evidence”
that “a reasonable jury could credit in support of each essential element of [its] claims.” Grimes
v. District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015). The moving party is entitled to summary
judgment if the opposing party “fails to make a showing sufficient to establish the existence of an
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element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. ANALYSIS
A. Exhaustion
A federal employee bringing claims under Title VII and the Rehabilitation Act must timely
exhaust administrative remedies before filing suit in federal district court. See Barkley v. U.S.
Marshals Serv., 766 F.3d 25, 33 (D.C. Cir. 2014); Hamilton v. Geithner, 666 F.3d 1344, 1349
(D.C. Cir. 2012); see also 29 U.S.C. § 794a(a)(1). The exhaustion requirement “serves the
important purposes of giving the charged party notice of the claim and narrowing the issues for
prompt adjudication and decision.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)
(internal quotation marks and alteration omitted). For Title VII claims, a “plaintiff’s . . . failure to
exhaust her administrative remedies does not deprive the Court of jurisdiction.” Morris v. Off. of
Pers. Mgmt., No. 20-0016, 2021 WL 2188143, at *4 (D.D.C. May 28, 2021); see also Fort Bend
Cnty. v. Davis, 139 S. Ct. 1843, 1846 (2019); Koch v. Walter, 934 F. Supp. 2d 261, 269 (D.D.C.
2013). For Rehabilitation Act claims, in contrast, this Circuit considers failure to administratively
exhaust a jurisdictional defect. Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006); Morris, 2021
WL 2188143, at *3; Williams v. Perdue, 2020 WL 1892045, at *4 (D.D.C. Apr. 16, 2020);
Williams v. Brennan, 320 F. Supp. 3d 122, 128 (D.D.C. 2018); McIver v. Mattis, 318 F. Supp. 3d
245, 250 (D.D.C. 2018). In such cases, a defendant’s exhaustion argument is construed as a motion
to dismiss for lack of subject-matter jurisdiction. Because failure to exhaust would preclude
jurisdiction, “the plaintiff bears the burden of alleging facts sufficient to establish that . . . she
exhausted administrative remedies.” Brennan, 320 F. Supp. 3d at 127.
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To exhaust administrative remedies for Rehabilitation Act and Title VII claims, a
complainant must complete two steps. First, she “must consult a[n] [Equal Employment
Opportunity (EEO)] Counselor prior to filing a complaint in order to try to informally resolve the
matter.” 29 C.F.R. § 1614.105(a). She must do so “within 45 days of the date of the matter alleged
to be discriminatory.” Id. § 1614.105(a)(1). Second, if the matter is not resolved through informal
counseling, the complainant must file a formal administrative complaint within 15 days of receipt
of notice from the Counselor of the right to file a complaint. Id. § 1614.106(b). Failure to take
either of these steps precludes the complainant from filing suit in federal court. See Doak v.
Johnson, 19 F. Supp. 3d 259, 270 (D.D.C. 2014) (“[T]he Court cannot hear the plaintiff’s failure
to accommodate claims because she did not timely contact an EEO counselor within 45 days of
the department issuing a decision that she viewed as discriminatory.”); 29 C.F.R. § 1614.407(authorizing suit in federal district court only when a complaint “has filed an individual
complaint”); Hamilton v. Geithner, 666 F.3d 1344, 1350 (D.C. Cir. 2012) (“Filing a formal
complaint is a prerequisite to exhaustion . . . .”).
The Court will dismiss for lack of jurisdiction all but one of Camero’s Rehabilitation Act
claims and grant summary judgment on all but one of her Title VII claims for failure to exhaust.
Camero’s first contact with an EEO Counselor occurred on December 12, 2017, Def.’s Statement
of Material Facts ¶ 26, more than 45 days after the Secretary allegedly failed to provide her with
reasonable accommodations from March 24 to May 11, 2017, Compl. ¶¶ 49–54, and September
16 to 23, 2017, id. ¶ 55; discriminated and retaliated against her by not allowing her to speak at a
phone conference in July 2017; and discriminated and retaliated against her by requesting the
status of a ticket she was assigned on October 12, 2017, id. ¶¶ 80–81; Def.’s Statement of Material
Facts ¶¶ 43–44. Further, although Camero timely initiated contact with an EEO counselor about
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the Secretary’s alleged failure to provide her with reasonable accommodations starting in
September 2018 and through the present day, Compl. ¶¶ 63–73; Pl.’s Further Statement of Material
Facts ¶ 27, Dkt. 28-1, she never filed a formal EEO complaint, see Ex. at 21–26, Dkt. 28-2 (EEOC
informal investigation completed on March 6, 2019); Pl.’s Resp. to Def.’s Statement of Material
Facts ¶ 46 (citing no evidence in record that Camero ever submitted a formal complaint). Thus,
this Rehabilitation Act claim also was not properly exhausted.
Camero’s various arguments otherwise are unavailing. First, the continuing violations
doctrine, see Pl.’s Opp. at 6–9, Dkt. 28, does not apply because the Secretary’s alleged
discrimination against Camero, retaliation against her, and interference with her reasonable
accommodations were discrete employment actions, not part of an allegation of an ongoing hostile
work environment. See Koch v. White, 134 F. Supp. 3d 158, 165–66 (D.D.C. 2015) (explaining
that, after National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the continuing
violations doctrine does not apply to “discrete acts of discrimination” or to “ongoing failure to
accommodate,” but does to “claims alleging a hostile work environment”). Second, simply
initiating contact with an EEO counselor, see Pl.’s Opp. at 9–13, does not fulfill the separate
requirement that a claimant file a formal EEO complaint. Hamilton, 666 F.3d at 1350 (holding
that a complainant “cannot rely on the EEO counseling report to establish exhaustion of a claim
that he failed to include in his formal complaint”). Finally, contrary to Camero’s contention, see
Pl.’s Opp. at 13–14, events that arose after the EEOC finished investigating Camero’s first—and
only—formal EEO complaint were not reasonably expected to grow out of the charge of
discrimination in that complaint. In this Circuit, a claim is “reasonably related” to an EEO
complaint if, “at a minimum,” it would “arise from the administrative investigation that can
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reasonably be expected to follow the charge of discrimination.” 3 Haynes v. D.C. Water & Sewer
Auth., 924 F.3d 519, 526–27 (D.C. Cir. 2019) (citation omitted). Camero’s allegations that the
Secretary interfered with her accommodations after September 28, 2018, see Def.’s Statement of
Material Facts ¶ 47; Compl. ¶¶ 63–76, cannot be considered reasonably related to her formal EEO
Complaint, as the investigation related to that complaint concluded on September 14, 2018, Def.’s
Statement of Material Facts ¶ 45, over a week before the alleged interference.
B. Performance Review
Camero’s only remaining, properly exhausted claim is that she was discriminated and
retaliated against when her supervisor issued her an “Unacceptable” annual performance review
in November 2017. Compl. ¶ 83. Where, as here, a plaintiff offers only circumstantial evidence
of discrimination or retaliation, courts evaluate the claims using the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). Figueroa v. Pompeo, 923 F.3d
1078, 1086 (D.C. Cir. 2019) (discrimination); Na’im v. Clinton, 626 F. Supp. 2d 63, 75 (D.D.C.
2009) (retaliation). Under that framework, the employee “must first make out a prima facie case”
of discrimination. Iyoha v. Architect of the Capitol, 927 F.3d 561, 566 (D.C. Cir. 2019). The
burden then shifts to the employer to “come forward with a legitimate reason for the challenged
action.” Id. If the employer does, the district court “need not—and should not—decide whether
the plaintiff actually made out a prima facie case.” Brady v. Off. of Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008) (emphasis omitted). Four factors are “paramount in the analysis” of
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The Court notes that the D.C. Circuit has not settled whether the Supreme Court’s holding that
“discrete discriminatory acts are not actionable if time barred, even when they are related to acts
alleged in timely filed charges” in Morgan, 536 U.S. at 113, controls over the “like or reasonably
related” standard previously applied by this Circuit. See Webster v. Del Toro, 49 F.4th 562, 568
(D.C. Cir. 2022) (“We have twice reserved the question whether Park survives Morgan. We do
the same here . . . .” (citations omitted)). The Court assumes, for purposes of argument, that the
“like or reasonably related standard” continues to apply.
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whether an employer has met its burden at step two: (1) the employer must produce evidence that
would be admissible at trial for a finder of fact; (2) “the factfinder, if it believed the evidence, must
reasonably be able to find that the employer’s action was motivated by a nondiscriminatory
reason”; (3) the employer’s justification must be “facially credible in light of the proffered
evidence”; and (4) the employer must provide a “clear and reasonably specific explanation” for its
action that is “articulated with some specificity.” Figueroa v. Pompeo, 923 F.3d 1078, 1087–88
(D.C. Cir. 2019) (citations and internal quotation marks omitted).
The Secretary has provided a non-discriminatory, non-retaliatory reason for Camero’s
negative performance review. As her supervisor explained in his performance review, Camero:
ha[d] participated in data calls and audit activities with accurate information[;]
however on occasion the timeliness was not sufficient to support the specific
requirement. Various telecommunication request[s] have been noted where the
assigned task ha[d] been initially address[ed] by [Camero] but [went] untouched
for unacceptable periods of time. Many instances fellow team members had to
complete the task including the Branch Chief of networking and
Telecommunications.
Turner Decl. Ex. A at MC537, Dkt. 25-4. This explanation is a credible, specific reason that is
reasonably supported by admissible evidence. For example, contemporaneous emails in the record
show that Camero was assigned a task on January 25, 2017, and failed for almost two months to
respond to at least three follow-up emails. See Turner Decl. Ex. B at MC129–33. On another
occasion, Camero did not act on a third-party vendor request for over two months, and her
supervisor emailed her to note that “[t]hese types of issues are not in line with your performance
standards[,] which can affect the Public Health mission of [the agency].” Id. at MC158. Similarly,
Camero did not complete a request to order two iPhones, until her supervisor emailed her over a
month later to ask her to address the request immediately. Id. at MC181–83. Camero also failed
to provide in a timely fashion audit information to her co-worker, despite multiple reminders. Id.8
at MC147–53. She repeatedly missed scheduled calls with her team, see id. at MC135–37, and
she does not contest that her co-workers “had to complete tasks assigned to [her] because of the
delay [she] caused by . . . failing to complete . . . tasks,” Def.’s Statement of Material Facts ¶ 20.
Tellingly, during her deposition, Camero herself admitted that “there is evidence in the record that
would support” her negative performance review. Camero Dep. at 189–90, Dkt. 25-1.
Where a defendant has provided a legitimate reason for terminating an employee, the
burden shifts to the employee to show that the reason was pretextual. At this stage, the Court
“must conduct one central inquiry . . . : whether the plaintiff produced sufficient evidence for a
reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual
reason and that the employer intentionally discriminated against the plaintiff on a prohibited
basis.” Iyoha, 927 F.3d at 566 (internal quotation marks omitted); see also Na’im, 626 F. Supp.
2d at 76 (applying same analysis in retaliation context). “[T]he issue is not the correctness or
desirability of the reasons offered but whether the employer honestly believes in the reasons it
offers.” Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (alterations and
internal quotation marks omitted). To show pretext, a plaintiff can point to numerous sources of
evidence of “illicit motive,” including “the employer’s better treatment of similarly situated
employees outside the plaintiff's protected group, its inconsistent or dishonest explanations, its
deviation from established procedures or criteria, or the employer’s pattern of poor treatment of
other employees in the same protected group as the plaintiff.” Walker v. Johnson, 798 F.3d 1085,
1092 (D.C. Cir. 2015).
None of the scant evidence that Camero offers to show pretext persuades the Court that a
reasonable jury could conclude that the Secretary’s reason for her negative performance review
was pretextual. Camero contends that her co-worker, Adrianna Vialpando, was a comparably
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situated employee who was treated inconsistently because she did not receive a negative
performance rating. See Pl.’s Opp. at 15–16. But an inference of discrimination can only be drawn
“from disparate treatment of comparable employees [if] all of the relevant aspects of [the
plaintiff’s] employment situation are nearly identical to those of the comparator.” Bennett v. Solis,
729 F. Supp. 2d 54, 61 (D.D.C. 2010) (alteration and internal quotation marks omitted). Vialpando
was not “nearly identical” to Camero because there is no evidence in the record that she was “ever
. . . reprimanded for untimely responses on work assignments.” Def.’s Statement of Material Facts
¶ 56; cf. Pl.’s Opp. at 16 (citing no evidence that Vialpando had similar performance problems).
Camero also argues that the Secretary’s failure to give her a Performance Improvement Plan before
her performance review is evidence of pretext, see Pl.’s Opp. at 16, but agency policy does not
require that an employee receive an improvement plan before an “Unacceptable” review, Abbott
Decl. ¶ 7, Dkt. 29-2. Finally, Camero’s assertions that she was faulted for not completing tasks
“not exclusively assigned to her,” that her absence during conference calls was only a problem
after she “asserted her right to follow her reasonable accommodation telework schedule,” and that
the Secretary improperly withdrew her reasonable accommodation “as punishment for the
Unsuccessful performance rating,” Pl.’s Opp. at 16–17, are unsupported by any evidence in the
record and thus do not constitute evidence of pretext. See Ruiz v. U.S. Dep’t of Just., 636 F. Supp.
2d 85, 88 (D.D.C. 2009) (“In opposing a summary judgment motion, [the] plaintiff may not [rely
on] conclusory allegations . . . , but rather must set forth specific facts showing that there is a
genuine issue for trial.” (internal quotation marks and citation omitted)). In sum, the Court will
grant summary judgment in favor of the Secretary on Camero’s claims that her “Unacceptable”
performance review was discriminatory and retaliatory because Camero has not established that
the Secretary’s proffered reason for the negative review was pretextual.
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C. FMLA
The Court will also grant summary judgment in favor of the Secretary on Camero’s federal
FMLA interference and retaliation claims, Compl. ¶¶ 10, 94–98. Camero does not contest that,
because she is a federal employee with more than 12 months of service, she is a Title II employee
who has no private right of action under the FMLA. See Pl.’s Opp. at 18; Def.’s Mem. at 23–24,
Dkt. 25-1; 5 U.S.C. §§ 6381 et seq. Summary judgment on her FMLA claims is therefore
appropriate. See Manga v. Carranza, No. 18-cv-437, 2020 WL 1451584, at *5–*6 (D.D.C. Mar.
25, 2020); Chandler v. Bernanke, 531 F. Supp. 2d 193, 201 (D.D.C. 2008). The Court will not
consider Camero’s attempts in her opposition to reframe her FMLA claims as not stand-alone
claims, but rather evidence that the Secretary interfered with her reasonable accommodations or
discriminated and retaliated against her, see Pl.’s Opp. at 18–19, because such claims were not
made in her complaint, see Compl. ¶¶ 94–98.
CONCLUSION
For the foregoing reasons, the Court grants the Secretary’s motion to dismiss and motion
for summary judgment. A separate order consistent with this decision accompanies this
memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
December 19, 2022
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