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Abdullah v. Ross

United States District Court, S.D. Texas, Houston Division

February 28, 2018

Wanda Abdullah, Plaintiff,
Wilbur Ross, Secretary U.S. Department of Commerce, Defendant.


          Gray H. Miller, United States District Judge.

         Pending before the court is a memorandum and recommendation (“M&R”) in which the Magistrate Judge recommends that the court grant defendant Wilbur Ross's motion for summary judgment (Dkt. 38). Dkt. 50. Plaintiff Wanda Abdullah has filed objections to the M&R. Dkt. 51. After considering the M&R, objections, relevant documents in the record, and the applicable law, the court is of the opinion that the objections (Dkt. 51) should be OVERRULED and the M&R (Dkt. 50) should be ADOPTED IN FULL.

         I. Background

         This is an employment discrimination and whistleblower retaliation case. Dkt. 50. Abdullah worked as a field representative for the U.S. Census Bureau from on or about January 2008 until February 2015. Dkt. 13. She was assigned to the Dallas Regional Office through October 2012 and then to the Denver Regional Office through February 2015. Id. However, she actually worked in Houston, Texas. Id. She contends that she was retaliated against because she reported fraud to her employer. Id. She also asserts that the supervisors and staff at the Denver Regional Office discriminated against her because of her race and age by not allowing her to keep certain cases and denying her within grade increases. Id. Additionally, she claims that she was a victim of a hostile work environment. Id. She resigned in February 2015, and she claims that she was forced to resign because her job was causing her so much stress that she could no longer do the job. Id. Her claims against her employer include (1) retaliation for whistleblowing; (2) age and race discrimination; and (3) retaliation and hostile work environment relating to her age and race. Id.

         Ross moved for summary judgment, arguing that the court is not required to reach the merits of Abdullah's claims because she did not timely seek Equal Employment Opportunity (“EEO”) counseling, which is a requirement for federal employees who wish to file claims with the EEOC and eventually sue their employers. Dkt. 38. Abdullah contends that she timely sought EEO counseling and, alternatively, that the court should consider the continuing violations doctrine or equitable tolling. Dkt. 44. The Magistrate Judge determined that Abdullah failed to seek EEO counseling within the forty-five day limitations period, as required for federal employees who allege discrimination. Dkt. 50. The Magistrate Judge also held that the continuing violation doctrine does not apply and that there is insufficient evidence to support equitable tolling. Dkt. 50. The Magistrate Judge thus recommends that the court grant Ross's motion for summary judgment. Id.

         Abdullah filed objections to the M&R. Dkt. 51. She contends that the Magistrate Judge erred in finding that Abdullah did not initiate EEO counseling within forty-five days of the incident giving rise to discrimination because her harm was of a continuing nature, taking place over a number of key dates and a series of key events. Id. at 5. Abdullah argues that, as a matter of law, “any one of the dates and every one of the events . . . must be considered to determine timeliness.” Id. at 5-6. She asserts that a letter she received in July 2015 is one example of an event that gave rise to discrimination because it represents an adverse employment action. Id. at 6. This letter, in memorandum form, is dated July 20, 2015; it is a decision on a formal administrative grievance related to which cases Abdullah worked and her overall rating. Dkt. 44-7. The author of the memorandum thanks Abdullah for “bringing this to [the agency's] attention” and grants partial relief. Id.

         Abdullah also contends that she made her initial contact with the EEO counselor in July 2015, citing a counselor's report dated August 16, 2015, in which the counselor notes Abdullah contacted him on July 31, 2015. Id.; Dkt. 44-9. The report contains a timeline stating that the “date of harm” was July 15, 2015. Id. Abdullah contends that this timeline demonstrates that she sought EEO counseling within forty-five days of the incident or event giving rise to discrimination. Dkt. 44-9; Dkt. 51. Abdullah asserts that many of her claims arose from the fact that she encountered further bias and reprisal after filing complaints. Dkt. 51. Abdullah additionally contends that equitable tolling should apply because her employer deliberately failed to respond to her grievances, citing a complaint she made on October 1, 2014, that received a response from Human Resources on February 2, 2015-about four months after filing. Id. She asserts that the employer was required to respond to formal complaints within ninety days and failed to do so.[1] Id. She also argues that the court should note that she called EEO, Office of the Special Counsel, and Office of Civil Rights repeatedly to report misconduct and the untimeliness of Human Resources' response. Id. (citing Dkt. 51, Ex. B (log showing various calls made from October 2014 through August 20, 2015)). Abdullah alleges that her complaints were overlooked by her employer, and she urges the court to not do the same. Id.

         II. Legal Standard

         A. Review of an M&R

         A party may file objections to a Magistrate Judge's ruling fourteen days of being served with a copy of a written order. Fed.R.Civ.P. 72; see also 28 U.S.C. § 636(b)(1)©. The standard of review used by the district court depends on whether the Magistrate Judge ruled on a dispositive or non-dispositive motion. See Fed. R. Civ. P. 72; see also 28 U.S.C. § 636(b)(1)©. District courts must “modify or set aside any part of [an order on a nondispositive motion] that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). For dispositive motions, district courts “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 73(b)(3).

         B. Motions for Summary Judgment

         A court shall grant summary judgment when a “movant 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). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e). The court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008).

         III. Analysis

         The M&R is extremely detailed and addresses all of the issues Abdullah now raises. See Dkt. 50. The only issue Abdullah cites that she claims was not addressed by the M&R relates to an alleged report to EEO in October 2014. Abdullah contends that the Magistrate Judge did not consider evidence that she made phones calls to the EEO Office in October 2014 because a clerk erroneously failed to attach the records to Abdullah's surreply. Dkt. 51. The Magistrate Judge noted in the M&R that Abdullah referred to phone records in her surreply that were not actually attached to the surreply. See Dkt. 50 at 13. Importantly, however, the Magistrate Judge determined that “[e]ven if [Abdullah] had a phone record that showed she called the EEO Office on that date, this does not raise a fact issue that she attempted to invoke the informal grievance procedure required by the regulation, ” which “contemplates the initiation of an informal resolution process, not simply a phone call.” Id. The Magistrate Judge stated ...

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