United States District Court, E.D. Pennsylvania
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.
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.
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.
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.
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.
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.
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.
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
before the Court is Colvin's Motion to Dismiss or, in the
Alternative, for Summary Judgment. 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
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. ...