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Pyun v. Colvin

United States District Court, E.D. Pennsylvania

December 22, 2016

SUZANNE PYUN, Plaintiff,
v.
CAROLYN W. COLVIN, in her capacity as Acting Commissioner, U.S. Social Security Administration, Defendant.

          MEMORANDUM

          DuBois, J.

         I. INTRODUCTION

         This is an employment discrimination case arising out of plaintiff Suzanne Pyun's termination following a series of complaints to the Equal Employment Opportunity Commission. Plaintiff alleges a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. against Carolyn W. Colvin, in her capacity as Acting Commissioner of the Social Security Administration. Presently before the Court is defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment. For the reasons that follow, defendant's Motion is denied.

         II. BACKGROUND

         The facts of the case as alleged in the Complaint are as follows. Defendant Carolyn Colvin is the Acting Commissioner of the Social Security Administration (“SSA”). Compl. ¶ 7. The SSA employed plaintiff Suzanne Pyun from 1999 until her termination on October 4, 2006. Compl. ¶¶ 7, 46. Plaintiff alleges that she was terminated in retaliation for filing three earlier complaints against the SSA and its employees with the Equal Employment Opportunity Commission (“EEOC”). Compl. ¶¶ 53-57.

         In 1999, plaintiff began working for the SSA as a Bilingual Korean Service Representative in its Northeast Philadelphia office. Compl. ¶ 14. Plaintiff filed her first EEOC complaint in 2002, alleging that her second-level supervisor Robert Mannion discriminated against her on the basis of national origin and sex when he subjected her to increased scrutiny and monitoring. Compl. ¶ 15. In 2003, plaintiff filed another EEOC complaint, again naming Mannion as “a responsible management official.” Compl. ¶ 16. Plaintiff also identified Josephine Pielocik, a SSA District Manager, as “a responsible management official.” Compl. ¶ 17. Plaintiff avers that both Mannion and Pielocik were aware that they were identified in the EEOC complaints. Compl. ¶ 18. Plaintiff and the SSA reached a settlement agreement on June 15, 2005, resolving plaintiff's pending EEOC complaints. Compl. ¶ 19. Under the terms of the agreement, plaintiff was assigned to the SSA's Jenkintown District Office, where Pielocik was the District Manager. Compl. ¶¶ 20-21. If plaintiff performed satisfactorily during her initial placement at Jenkintown, she was to be permanently reassigned to the office. Compl. ¶ 20.

         Plaintiff alleges that Pielocik “subjected [her] to increased scrutiny and monitoring by conducting formal interview observations” at the Jenkintown District Office. Compl. ¶ 25. During these interview observations, “Pielocik sat near [plaintiff] and observe[d] and [took] notes on interviews [plaintiff] conducted.” Compl. ¶ 25. However, Pielocik did not conduct formal interview observations of plaintiff's co-worker Mae Constantino, another Service Representative in the Jenkintown office. Compl. ¶¶ 23, 26. According to plaintiff, Pielocik subsequently asserted that plaintiff did not perform satisfactorily during her initial placement at Jenkintown as “she typed slowly, did not properly answer the phone, and wore jeans on one occasion.” Compl. ¶ 27. Based on Pielocik's statements, plaintiff was returned to the Northeast Office on October 20, 2005, as Mannion's subordinate. Compl. ¶ 29.

         After her return to the Northeast Office, plaintiff was placed on a Performance Assistance Plan (PAP) on December 15, 2005, under the direct supervision of Lisa McLaughlin. Compl. ¶¶ 30, 32. McLaughlin sat next to the plaintiff to monitor her performance as part of the PAP. Compl. ¶ 34. According to plaintiff, McLaughlin did not observe any mistakes or errors during this supervision. Compl. ¶ 35. McLaughlin was subsequently replaced by Kathleen Tannery, who assumed responsibility for plaintiff's PAP. Compl. ¶¶ 36, 38. On May 1, 2006, plaintiff filed a formal EEOC complaint of discrimination, alleging that she was placed on the PAP as a result of racial discrimination and reprisal. Compl. ¶ 39.

         Eight days later on May 9, 2016, plaintiff was placed on a Performance Enhancement Plan (“PEP”) due to her alleged failure to pass the PAP. Compl. ¶¶ 40-41. Plaintiff alleges that she did not commit any errors or mistakes during the PEP period. Compl. ¶ 43. Nonetheless, Tannery advised plaintiff on or around September 5, 2006, that she proposed removing plaintiff from her Service Representative position. Compl. ¶ 44. According to Tannery, plaintiff's interviewing skills-including her ability to explain technical provisions, elicit relevant facts, and resolve issues-were unacceptable. Compl. ¶ 44. Plaintiff was subsequently terminated on October 4, 2006. Compl. ¶ 46.

         On October 12, 2006, plaintiff filed a grievance through her Union challenging her termination. Compl. ¶ 8. After arbitration proceedings on her termination complaint, the Arbitrator ruled in the SSA's favor on November 14, 2008. Compl. ¶ 9. As required, plaintiff appealed the Arbitrator's decision to the Merit Systems Protection Board (“MSPB”). Compl. ¶ 10. The MSPB affirmed the Arbitrator's ruling on May 11, 2009. Compl. ¶ 10. On June 11, 2009, plaintiff alleges that she “timely filed a Petition for Review to the [EEOC's Office of Federal Operations (“OFO”)].” Compl. ¶ 11. Plaintiff additionally avers that she received a decision on October 30, 2015, from the OFO on a separate administrative claim of discrimination, in which “the [OFO] gave notice to [p]laintiff that it was dismissing her Petition for Review” of the MSPB's decision. Compl. ¶ 12. According to plaintiff, her Complaint is “timely filed 90 days from the date the [OFO] provided notice to Ms. Pyun that it dismissed her Petition for Review.” Compl. ¶ 13.

         Plaintiff filed her Complaint alleging retaliatory termination on January 28, 2016. Plaintiff seeks reinstatement to the same or similar position from which she was terminated, back pay, compensation for lost benefits, compensatory damages of $300, 000 for emotional distress, and attorney's fees and costs.

         Presently before the Court is Colvin's Motion to Dismiss or, in the Alternative, for Summary Judgment.[1] Defendant argues that plaintiff failed to exhaust her administrative remedies by (1) failing to timely file her appeal of the MSPB's decision and (2) not filing this civil action within 30 days of receiving notice that the OFO would not consider the MSPB's decision.

         III. APPLICABLE LAW

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to respond to a pleading by filing a motion to dismiss for “failure to state a claim upon which relief can be granted.” To survive a motion to dismiss, the complaint must allege facts that “‘raise a right to relief above the speculative level.'” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A district court first identifies those factual allegations that constitute nothing more than “legal conclusions” or “naked assertions.” Twombly, 550 U.S. at 555, 557. Such allegations are “not entitled to the assumption of truth” and must be disregarded. ...


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