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Forgus v. Mattis

United States District Court, E.D. Virginia, Richmond Division

December 12, 2017

JAMES MATTIS, Secretary of Defense, Defendant.


          John A. Gibney Jr. United States Distritt Judge

         Ashidda Forgus works at the Defense Logistics Agency ("DLA"), an agency of the Department of Defense, as a Business Process Analyst. The Court ordered Forgus to amend her initial complaint, instructing her to include a clear, brief statement of facts, a separately titled section identifying each legal claim and the facts that support it, as well as the relief sought, a list of defendants, and any documents she wished the Court to consider. After filing her amended complaint, Forgus moved for leave to amend again, which the Court granted. She filed a second amended complaint, containing three claims. She alleges (1) disparate treatment based on race and sex in violation of Title VII; (2) retaliation in violation of Title VII; and (3) hostile work environment.

         Forgus' second amended complaint does not state a claim for relief. She fails to identify the adverse employment action required for her disparate treatment and retaliation claims, and she does not allege sufficient facts to meet the high bar for hostile work environment claims.

         Accordingly, the Court grants the defendant's motion to dismiss the second amended complaint.

         I. BACKGROUND

         Forgus alleges numerous facts spanning several years. The Court, however, may only consider actions or claims contained in the underlying Equal Employment Opportunity Commission ("EEOC") claim. King v. Seaboard Coast Line R. Co., 538 F.2d 581, 583 (4th Cir. 1976). Thus, the Court will not consider any actions before Forgus began working for DLA in 2009, or after March 23, 2012, when she filed her formal EEOC complaint. The Court has summarized the pertinent facts below.

         Forgus, a black woman, began working at DLA in December 2009. DLA consists of several directorates, including the Business Process Support Directorate, which includes the Order Fulfillment Division. The Order Fulfillment Division has two branches: Order Management and Inventory Management. Forgus works as a Business Process Analyst, a position which exists in both the Order Management and Inventory Management branches. She works exclusively within the Order Management branch.

         Forgus describes several instances in which she made complaints or requests, only to make more complaints or requests once her supervisors acquiesced. These include complaints about seating arrangements, assigned alternates, [1] trainings, informal office meetings, and, in January 2011, her discomfort with the office environment. Similarly, when Forgus complained her workload was too light, her supervisor assigned her to an important project, and then Forgus requested a reduction in her workload. This cycle repeated several times.

         Forgus also describes her many attempts to transfer to the Inventory Management branch. On January 6, 2011, DLA posted a vacancy announcement for a Business Process Analyst, and Forgus applied. Although the selecting official put her on a list of qualified candidates, that official said she would not consider Forgus because the vacancy described the position she already held. Her supervisor, Naomi Wilcox, told Forgus she could submit a written request if she wished to transfer to the Inventory Management branch. On January 31, 2011, Forgus emailed Wilcox stating she wanted to work within both branches and broaden the scope of her current job. In February 2011, Forgus had two meetings with her superiors in which she requested a transfer, and voiced concerns about her workload being too light. Wilcox again told Forgus she would have to submit a written request for the specific transfer, rather than utilize the application process. Nevertheless, Forgus told Wilcox to treat her application for Business Process Analyst as a written request. At one of these meetings, the selecting official said, "Well anyway, you're not getting the position, " referring to the vacancy to which Forgus applied, a comment which Forgus describes as "caustic." (Second Am. Compl., at 11.) Two black men from outside the division were eventually chosen as Business Process Analysts, one in Order Management, and one in Inventory Management.

         In October 2011, Wilcox assigned Forgus to a high priority project, which Forgus now argues was an attempt to force her out of her position by giving her too much work. On November 1, 2011, Forgus contacted an EEOC counselor. The next day, Wilcox, unaware of Forgus' EEOC contact, attempted to meet another of Forgus' requests by allowing her to split her time between her normal workload and the special project. When Forgus expressed concern about being fired for failure to keep up with her normal workload, Wilcox assured her she would not be removed. As far as the record shows, Forgus still holds the same position at DLA.

         On March 23, 2012, Forgus filed a formal discrimination complaint with the EEOC. She requested a hearing before an Administrative Judge, and on January 8, 2014, the judge disposed of her allegations regarding discrimination, including hostile work environment and retaliation. On February 26, 2014, she filed an appeal with the EEOC, which affirmed the Administrative Judge's findings. Forgus then brought this suit.


         A Rule 12(b)(6) motion to dismiss gauges the sufficiency of a complaint without resolving any factual discrepancies, testing the merits of the claim, or judging the applicability of any defenses raised by the non-moving party. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering the motion, a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Nemet Chevrolet, Ltd v., Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). "The tenet that a court must accept as true all of the allegations contained in a complaint[, however, ] is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a Rule 12(b)(6) motion to dismiss, a complaint must state facts that, when accepted as true, "state a claim to relief that is plausible on its face." Id. (quoting Bell Ml. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         In Swierkiewicz v. Sorema, the Supreme Court held that a plaintiff alleging employment discrimination must follow only "the ordinary rules for assessing the sufficiency of a complaint." 534 U.S. 506, 511 (2002). Although Iqbal and Twombly "did alter the criteria for assessing the sufficiency of a complaint, " the Fourth Circuit has held that "those cases did not overrule Swierkiewicz's holding that a plaintiff need not plead the evidentiary standard" to survive a motion to dismiss under Rule 12(b)(6) in an employment discrimination case. McCleary-Evans v. Md. Dept. of Transp, State Highway Admin.,780 F.3d 582, 586-87 (4th Cir. 2015) (emphasis in ...

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