MEMORANDUM OF POINTS AND AUTHORITIES

CLARENCE BALDWIN

1131 University Blvd. West

Silver Springs, MD 20902

Pro Se

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This is a case of discrimination and retaliation against the Plaintiff while she was an employee of the Defendant. Despite Plaintiff’s numerous attempts to address the problems, the Defendant nevertheless continued to conduct itself in the same manner.

STATEMENT OF FACTS

Plaintiff was employed by the Defendant as a GS-13 Loan Specialist on February 19, 2017 as a Career Conditional Employee requiring a one-year probationary period.

From the date of employment to around July 31, 2017, Plaintiff was not given any training on the major program, QuickSilver, used to perform the essential functions of his job.

Instead, Plaintiff sat at a desk and took online management training course unrelated to the essential functions of performing his job because he had not been trained on Quick Silver. He was not assigned a mentor to train him neither was he given any cases to work on.

During the said period of time, Plaintiff was only ever assigned the task of comparing hard-copy files to computer files in the “Documentum” program, locate missing files in the hard-copy file and upload the file into the client electronic “Documentum” file.

Between the months of April 2017 to June 2017, Plaintiff made numerous requests to Director Jeffrey Williams to have him transferred to Risk Management because Mr. Akladus was failing to train him. Plaintiff’s request was denied because there were no open positions in Risk Management.

On or about July 27, 2017, Plaintiff emailed Mr. Akladus and Mohammad Banaei, stating he had not been assigned any accounts after five (5) months (150 days) of employment, had not been assigned a mentor to train him, nor had he received substantive training on the QuickSilver system, and informs the parties of his intent to file a formal EEOC complaint.

On or about July 28, 2017 an email from Mr. Marcum to Mr. Akladus, Mr. Marcus states he intends to place Plaintiff on a Performance Assistance Plan (“PAP”) despite Plaintiff not being trained yet, not having been assigned a mentor, nor been assigned his first case.

On or about late June-July 2017, Plaintiff learned that his supervisor, Mr. Akladus was aware of a QuickSilver training/simulator program, for which Plaintiff was never informed or given access to in order to learn the essential functions of his job.

On or about August 7, 2017, Plaintiff was assigned the “Record Hill” account, one of the Agency’s most severely outdated and delinquent cases, despite Plaintiff still not having been trained, nor having been assigned any mentor who has spent any time with him to learn QuickSilver or the essential functions of the job.

On or about August 7, 2017, after Plaintiff was assigned the Record Hill account, Kelly (female) was assigned to Plaintiff as his mentor. However, Kelly would only come by the Plaintiff’s sitting area, and sit with him for three (3) minutes at a time before leaving. Kelly did not engage Plaintiff on any form of mentorship.

Sometimes later in August 2017, Plaintiff was assigned a GS-9 probationary employee to allegedly train him on QuickSilver and other functions of his job, along with a contractor, Alex Manroa. Plaintiff, however, was not able to provide the required mentorship as he had never been provided with any training or mentorship.

On or about September 2017, Plaintiff requested Mr. Marcum remove Plaintiff from under Mr. Akladus’s supervision because Mr. Akladus was not properly training him or having him properly trained.

On November 29, 2017, Mr. Akladus, issued Plaintiff a performance rating for FY 2017 with a “needs improvement rating” despite Plaintiff still not being properly trained or given a mentor to provide him any substantive training.

On or about early December 2017, Plaintiff made a second request of Mr. Marcum to remove Plaintiff from under Mr. Akladus’s supervision because Mr. Akladus was not properly training him or having him properly trained.

Sometimes in December 2017, Mr. Marcum told Plaintiff they would discuss his reassignment of supervisors after the holidays.

On or about December 14, 2017, Plaintiff contacted the EEOC counselor alleging discrimination based on age, race, and color for only being assigned one account and for the Agency failing to provide him training to work on the account.

On or about January 18, 2018, Plaintiff was issued a Notice of Termination for “failure to perform the essential functions of his job” that were based on three errors made on the Record Hill account between August 2017 and December 2017, despite Plaintiff not being properly trained.

Prior to termination, Plaintiff was not placed on a Performance Assistance Plan (“PAP”) despite the earlier recommendation, and still not provided proper training after his November 29, 2017 Performance Evaluation.

On or about January 19, 2018, Plaintiff resigned in lieu of termination.

The three issues (errors) listed in Plaintiff’s termination were pretext for discrimination as follows: 1) they were either minor errors, 2) errors that Plaintiff did not make; and 3) are the result failure to properly train Plaintiff.

The first error (terminable offense) on about August 22-24, 2017, Plaintiff created an incorrect task in QuickSilver. Plaintiff’s error was caught by trainer Kelly the same day and resulted in no harm. The second alleged terminable offense on or about October 18, 2017, Plaintiff’s then-trainer, Alex, instructed Plaintiff to take a folder of documents upstairs and hand it to Sarkia. Plaintiff handed the folder to Sarkia, who subsequently told Plaintiff to put the folder on Mr. Reyes desk but not to send out any emails until after Mr. Reyes signed the documents. As a result, an incorrect task was created before the Mr. Reyes signatures were obtained. Plaintiff did7 not create the wrong task in QuickSilver. The third error on or about January 18, 2018, Plaintiff is alleged to create another wrong task in QuickSilver. Plaintiff could not have created the incorrect task because his computer was down and with IT for repairs.

Another employee, Mr. Sanders (Caucasian, male, over the age of 40) is witness to Plaintiff’s lack of training, the disparate treatment, and the hostile work environment.

Defendant’s pretext and discriminatory animus toward Plaintiff is further exemplified by Mr. Sanders (Caucasian, male, over the age of 40), who also filed similar complaints against Mr. Akladus and requested transfer from Mr. Akladus’s supervision. Mr. Sanders’ complaints were adjudicated and his request to transfer granted. Other Issues:

During the course of his employment, Mr. Akladus denied Plaintiff’s request to telework, despite Mr. Akladus and Mr. Maher were teleworking all the time and rarely in the office. Other workers were allowed to telework.

During the course of his employment, Plaintiff’s request to assist with Hurricane Harvey Relieve was denied, with Mr. Maher initially granting the initial request and then denying the request stating the division was too busy, yet Plaintiff was not being trained and had only been assigned one account.

Since his termination, and ongoing, Plaintiff has been denied all opportunities to be rehired by the Agency despite the fact that Plaintiff is fully qualified for the positions for which he applied.

SUMMARY JUDGMENT STANDARD

Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Only those facts “that might affect the outcome of the suit under the governing law” are material. Id. at 248. Where, as here, “the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Wyo. Outdoor Council v. Dombeck, 148 F. Supp. 2d 1, 7 Case 1:10-cv-00651-JDB Document 5 Filed 06/08/10 Page 29 of 58 17 (D.D.C. 2001); Ellinos, Inc. v. Austintown Twp., 203 F. Supp. 2d 875, 878 (N.D. Ohio 2002) (“Summary judgment is particularly appropriate in a case challenging the facial constitutionality of a statute.”).

ARGUMENT

I DISCRIMINATION

In the case of Trujillo v. Univ. of Colo 157 F.3d 1211, 1214 (10th Cir. 1988), the court determined the principal requirements for establishing a prima facie case against discrimination. The court held that a claiming party must show (1) they are a member of a racial minority; (2) they have suffered an adverse employment action; and (3) similar situated employees were treated differently.

It is not in dispute that the Plaintiff herein is an African American (black) woman and thus falls within the category of a minority group. We therefore remain with the question of whether the Plaintiff suffered an adverse employment action and whether similar treatment was experienced by her colleagues.

The law prohibits punishing employees for asserting their rights to be free from employment discrimination. The language of the “opposition” clause of Title VII’s anti-retaliation provision states that “it shall be an unlawful employment practice for an employer to discriminate against any employee because the employee opposed any act made an unlawful employment practice.” 42 U.S.C. § 2000e–3(a).

The primary purpose of anti-discrimination laws is, among other thing, to “assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.” See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

In Colorado Civil Rights Commission v. State, 30 Colo.App. 10, 18, 488 P.2d 83, 87 (1971), the court of appeals recognized that, in cases alleging discrimination, direct evidence of overt discrimination is not a prerequisite to a finding of discrimination. For some time, it has been known that “one intent on violating the Law Against Discrimination cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive for we deal with an area in which `subtleties of conduct … play no small part.'” Holland v. Edwards, 307 N.Y. 38, 119 N.E.2d 581, 584 (1954).

“[W]hile objective facts may be proved directly, the state of a man’s mind must be inferred from the things he says or does…. [C]ourts and juries every day pass upon knowledge, belief and intent the state of men’s minds having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred.” See American Communications Ass’n v. Douds, 339 U.S. 382, 411, 70 S. Ct. 674, 94 L. Ed. 925 (1950). In employment discrimination cases, “[t]here will seldom be `eyewitness’ testimony as to the employer’s mental processes.” Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983). Additionally, “[v]ictims of heavy-handed uses of the spoils system [should] not [be] limited to redress in only those (relatively rare) instances in which a `smoking gun’ can be produced.” Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 102 (1st Cir. 1997).

In the present case, it is not disputed that the Plaintiff was employed by the Defendant on February 19, 2017 as GS-13 Loan Specialist. From the month of February to around July 31, 2017, the Plaintiff despite being an employee of the Defendant, received no work assignment from the Defendant. Further, the Defendant failed to provide the necessary training to enable Plaintiff to be able to perform the works required of her. The Plaintiff on her part did not sit back, relax and enjoy the little to no work assigned to her. Instead, she attempted several times to communicate with her superiors so as to be able to make positive contributions to the company. She requested her supervisor, Mr. Akladus, to assign her a mentor in order for her to learn to operate the QuickSilver software pending her first assignment. Sadly, Mr. Akladus did not grant her request and the Plaintiff nevertheless did not lose hope.

The Plaintiff then proceeded to contact Mr. Marcum seeking to be transferred from her current department and over to risk management, where the Plaintiff was sure skills would be of great use to the organization. Again, and to the Plaintiff’s dismay, her request was not granted. She continued to occupy a position where she was not receiving any training, mentorship or work assignments. However, it did not escape the Plaintiff’s attention that one Mr. Sanders (Caucasian, male, over the age of 40), who also filed similar complaints against Mr. Akladus had requested transfer from Mr. Akladus’s supervision. Mr. Sanders’ complaints were adjudicated and his request to transfer granted.

In August of 2017, the Plaintiff was assigned her first work assignment, the “Record Hill” file. Known to the organization was that the Record Hill file had not been worked on for some time and thus required an experienced individual to handle it. This fact was not unknown to the Plaintiff leaving her with mixed emotions. On one part, Plaintiff was excited to receive her first assignment. On the other, Plaintiff lacked the necessary training/mentorship to work with the QuickSilver software and thus did not possess the skill to tackle the work assignment.

On the very same day, Plaintiff was assigned a mentor by the name Kelly. Contrary to the Plaintiff’s expectations, Kelly did not provide the requisite training/mentorship to empower the Plaintiff. Consequently, the Plaintiff was constrained to proceed with the assignment given her. Yet, the Defendant later on assigned the Plaintiff to act as a mentor/trainer for Alex Manroa who had joined as a GS-9 probationary employee.

Plaintiff emailed Mr. Akladus and Mohammad Banaei, stating he had not been assigned any accounts after five (5) months (150 days) of employment, had not been assigned a mentor to train him, nor had he received substantive training on the QuickSilver system, and informs the parties of his intent to file a formal EEOC complaint.

Plaintiff also contacted the EEOC counselor alleging discrimination based on age, race, and color for only being assigned one account and for the Agency failing to provide him training to work on the account.

“An employee is protected from … unreasonably harsh conditions, in excess of those faced by his [or her] co-workers.” Id. at 1247, 32 Cal. Rptr. 2d 223, 876 P.2d 1022. “[A]dverse working conditions must be unusually `aggravated’ or amount to a `continuous pattern’ before the situation will be deemed intolerable.” Id.

It is apparent from the facts above that the Plaintiff brought it to the attention of the Defendant that she has not received any form of training or mentorship to enable her to use the QuickSilver software. Further, Plaintiff also notified the Defendant that she has not received any work assignments since her employment by the Defendant. Rather than devising means to meet the Plaintiff’s concerns, Defendant proceeds to repeat its actions leaving the Plaintiff in a position where she could not perform her duties as she wished to.

Subsequently the Defendant terminated the Plaintiff’s employment whereas the Plaintiff had not acquired the relevant experience that would justify her time being employed with the Defendant. The Defendant justified Plaintiff’s termination on grounds that: –

(1) on about August 22-24, 2017, Plaintiff created an incorrect task in QuickSilver. Plaintiff’s error was caught by trainer Kelly the same day and resulted in no harm; (2) The second alleged terminable offense on or about October 18, 2017, Plaintiff’s then-trainer, Alex, instructed Plaintiff to take a folder of documents upstairs and hand it to Sarkia. Plaintiff handed the folder to Sarkia, who subsequently told Plaintiff to put the folder on Mr. Reyes desk but not to send out any emails until after Mr. Reyes signed the documents. As a result, an incorrect task was created before the Mr. Reyes signatures were obtained. Plaintiff did7 not create the wrong task in QuickSilver; and (3) The third error on or about January 18, 2018, Plaintiff is alleged to create another wrong task in QuickSilver. Plaintiff could not have created the incorrect task because his computer was down and with IT for repairs.

In McDonnell Douglas, 411 U.S. 792, 800, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court held that the complainant could rebut McDonnell Douglas’ presumptively valid reason for rejecting the complainant by showing that the reason was a pretext for discrimination. Id. at 805, 93 S. Ct. at 1825-26. The McDonnell Douglas Court stated that in showing pretext, it would be especially relevant for the complainant to introduce evidence that Caucasian persons involved in comparable conduct as the complainant were nevertheless rehired. Id. at 804, 93 S. Ct. at 1825. According to the Supreme Court in a subsequent case, a complainant could succeed in proving pretext either by directly showing that a discriminatory reason more likely motivated the employer or by indirectly showing that the employer’s proffered explanation is unworthy of credence. See Bodaghi v. Department of Natural Resources, 450 U.S. at 256, 101 S. Ct. at 1095.In Colorado Civil Rights Commission v. Big 0 Tires, Inc., 940 P.2d 397 (Colo. 1997) the court established that “Thurman presented evidence that Big O’s nondiscriminatory reason for her discharge was a pretext for a discriminatory reason. Specifically, Thurman introduced evidence that during the same week in which Thurman committed the time clock violations for which she was fired, Edmonds, a Caucasian inside sales clerk, committed comparable time clock violations but that Edmonds was not fired at the same time.   This evidence was sufficient to create an inference that Big O’s asserted legitimate reason for terminating Thurman’s employment was a pretext for discrimination.”

The grounds as all are premised on actions beyond the Plaintiff’s control. The Plaintiff lacked the required skill to perform the accounting tasks given to her as no training or mentorship was provided by the employer despite numerous complaints and queries by the Plaintiff. Further, the Plaintiff was under duty and obligation to await the proper execution of documents by Mr. Reyes as instructed by her superiors. Finally, the Defendant wrongfully and blatantly relies on inability to work on a damaged computer as grounds for misconduct amounting to termination, yet it is the Defendant’s responsibility to provide the Plaintiff with the means and facilities to perform her tasks.

II RETALIATION

The law prohibits punishing employees for asserting their rights to be free from employment discrimination including harassment. The language of the “opposition” clause of Title VII’s anti-retaliation provision states that “it shall be an unlawful employment practice for an employer to discriminate against any employee because the employee opposed any act made an unlawful employment practice.” 42 U.S.C. § 2000e–3(a). Also see Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (2009). Title VII prohibits an employer from retaliating against an employee who has either (1) “opposed any practice made an unlawful employment practice by this subchapter,” or (2) “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter,” 42 USC 2000e-3(a).

Plaintiff relies on the case of Somoza v. Univ. Denver, 513 F.3d 1206, 1212 (10th Circ. 2008), wherein the court sets down three principle determinants of retaliation. (1) engagement in a protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) a causal connection exists between the protected activity and the adverse action.

On the first issue, it is clearly established above that Plaintiff engaged in a protected activity when she emailed Mr. Akladus and Mohammad Banaei, stating he had not been assigned any accounts after five (5) months (150 days) of employment, had not been assigned a mentor to train him, nor had he received substantive training on the QuickSilver system, and informs the parties of his intent to file a formal EEOC complaint. Plaintiff also contacted the EEOC counselor alleging discrimination based on age, race, and color for only being assigned one account and for the Agency failing to provide him training to work on the account.

On the second issue, it is clear that following the Plaintiff’s complaints, the Defendant issued the Plaintiff with a termination notice on January 18, 2018. It is expected that no reasonable employee would perceive notice of termination with joy and excitement, especially when the same follows a complaint earlier made by that employee.

On issue three, it is established in Piercy v. Maketa 480 F.3d 1192, 1198 (10th Cir. 2007) the court quotes Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) stating that “A retaliatory motive may be inferred when an adverse action closely follows protected activity.” In the present suit, the Plaintiff has displayed positive attempts to remedy the deficiencies of her employment. However, all her efforts were met with resistance. The Plaintiff has witnessed a white colleague be transferred to another department after raising the same complaints and requests as the Plaintiff. Rather than facilitating the Plaintiff, the Defendant opted to issue her with a termination notice and supporting said notice with mistakes beyond the Plaintiff’s control.

CONLCLUSION

Plaintiff is entitled to judgment as a matter of law. The undisputed facts show that Plaintiff was denied all reasonable training, mentorship or guidance to enable her to properly and efficiently perform her work responsibilities. Defendant then relied on the mistakes arising from said denial, to terminate the employment of the Plaintiff.

DATED:                                     Respectfully Submitted

BY:   /S/ CLARENCE BALDWIN

CLARENCE BALDWIN

1131 University Blvd. West

Silver Springs, MD 20902

Pro Se

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