UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MARGARET L. POSEY,

Plaintiff,

v.

STEVEN T. MNUCHIN,

SECRETARY OF THE 

TREASURY,

Defendant.

Case No. 1:18-cv-299

JUDGE DOUGLAS R. COLE

Magistrate Judge Litkovitz

OPINION AND ORDER

This cause comes before the Court on Magistrate Judge Litkovitz’s March 2, 

2020, Report and Recommendation (“R&R”) (Doc. 30). That R&R recommends that 

this Court grant Defendant Steven Mnuchin’s (the “Secretary”) Motion for Summary 

Judgment (Doc. 25). Plaintiff Margaret Posey objected to the R&R (see Doc. 31), and 

the Secretary responded (see Doc. 33).

For the reasons stated more fully below, the Court OVERRULES Posey’s

Objection (Doc. 31) and ADOPTS the R&R (Doc. 30). As a result, the Court GRANTS

the Secretary’s Motion for Summary Judgment (Doc. 25), thereby DISMISSING this 

action WITH PREJUDICE. 

BACKGROUND

Margaret Posey is a sixty-eight-year-old African American female who has

worked at the Internal Revenue Service (“IRS”) for twenty years. (Compl., Doc. 1, 

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#121). She was initially hired in 1998 as a seasonal data entry clerk before being 

promoted in 2004 to become a team lead for submission processing. (Posey Resume, 

Doc. 23-1, #893). Posey received another promotion in September 2010 to a position 

as a supervisory tax examining technician, where she was responsible for managing 

a team of employees. (See Posey Depo., Doc. 23, #627–30).

During Posey’s employment at the IRS, she filed four Equal Employment 

Opportunity (“EEO”) charges variously alleging racial discrimination, gender 

discrimination, age discrimination, and discrimination in reprisal for prior EEO 

activity. She filed these charges in 2003,

2 2013, 2015, and 2016. (Final Agency 

Decision (“FAD”) in IRS-15-1594-F and IRS-16-0224-F, Doc. 1-1, #35; Ltr. From J. 

Parker to M. Posey, Doc. 1-2, #58; Equal Employment Opportunity Commission 

(“EEOC”) Decision in IRS-13-0510-F, Doc. 1-2, #62).

At least at the outset, Posey’s Complaint in this Court purports to be an appeal 

of the Treasury’s FAD in the 2015 and 2016 administrative cases. (See Compl., Doc. 1, 

#5). But Posey’s Complaint also encompasses employment actions and issues not 

addressed in these two most recent EEO charges, alleging a broader “conspiracy” of 

1 Refers to PageID#.

2 In her Complaint, Posey states that her first EEO charge was filed in 2003. (Compl., Doc. 1,

#11). However, correspondence Posey attached to her Complaint states that the charge was 

filed in 2005 (Ltr. From J. Parker to M. Posey, Doc. 1-2, #58). Without purporting to decide 

which date is accurate, the Court will refer to this as the “2003 charge” for the sake of 

consistency. The Court further notes that whether the charge was filed in 2003 or 2005 is 

immaterial to its holding. 

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discrimination dating back to her first EEO filing in 2003 and continuing after the 

most recent EEO charges were filed in 2016. (Id.).

The Court begins by summarizing each of Posey’s four EEO charges. The Court 

then describes more recent incidents that occurred after the most recent EEO charges 

were filed. The facts as stated are derived from Posey’s verified Complaint, her 

deposition testimony, and documents that both parties submitted.

A. First EEO Charge

Posey filed her first EEO charge, IRS-06-2136, in 2003 (“the 2003 charge”).

(Ltr. From J. Parker to M. Posey, Doc. 1-2, #58). According to Posey’s Complaint in 

this case, this charge arose after her manager forged Posey’s name on an application 

for a vacant manager position while Posey was on leave. (Doc. 1, #9). Her supervisor 

then proceeded to hire a white, female friend for the position. (Id.).

Posey later amended this initial charge to include additional charges for 

retaliation based on prior EEO complaint activity. (Ltr. From J. Parker to M. Posey, 

Doc. 1-2, #58–59). Specifically, Posey alleges that her manager lowered her annual 

appraisal rating without justification and that she was not selected for other 

available positions because of her earlier EEO filings. (Id.). Posey has not submitted 

any documents related to a decision on this charge.

B. Second EEO Charge

Posey filed her second EEO charge, IRS-13-0510-F (“the 2013 charge”), in 

response to multiple employment actions and issues. (EEOC Decision in IRS-13-0510-

F, Doc. 1-2, #62). The EEOC summarized Posey as alleging in that charge that: (1) 

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from September 2010 on, she was not at the same grade level or receiving the same 

pay as a white male counterpart; (2) beginning in 2011, her supervisor failed to take 

proper actions to offer her any career development assignments; (3) in April 2013, 

Posey’s supervisor engaged in a course of conduct that undermined Posey’s 

managerial authority with her employees; (4) in May 2013, Posey’s second-level 

supervisor reprimanded her for a letter she sent to a union representative and 

commanded her to sign a reprimand document; and (5) in June 2013, Posey’s 

supervisor made threatening remarks in response to Posey’s contact with the union. 

(Id.). The Treasury Department rejected Posey’s charge in its FAD, which the EEOC 

upheld on appeal in May 2017. (Id. at #61–68). 

C. Third And Fourth EEO Charge

The Agency issued a consolidated decision in response to Posey’s third and 

fourth EEO charges (filed in 2015 and 2016, respectively). (FAD in IRS-15-1594-F 

and IRS-16-0224-F, Doc. 1-1, #35).

IRS-15-1594-F (“the 2015 charge”) included four allegations: (1) Posey’s 

manager placed a derogatory handwritten note in Posey’s employee personnel file; 

(2) Posey was not reassigned to a different position as management had promised; 

(3) management improperly issued a counseling memorandum for an incident that 

occurred the prior month; and (4) management continued to deny Posey opportunities 

for career development within the IRS. (Id.).

IRS-16-0224-F (“the 2016 charge”) alleged three specific incidents: (1) Posey’s 

supervisor initiated a management inquiry against her in response to complaints by 

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Posey’s employees; (2) Posey’s manager issued her a memorandum regarding a 

Performance Feedback Conversation that wrongly criticized Posey; and (3) Posey’s 

senior managers improperly interfered with Posey’s managerial authority by 

undermining instructions Posey gave to her employees. (Ltr. To M. Posey, Doc 1-2, 

#53). The Agency rejected Posey’s claims on both sets of charges in a single FAD 

issued on January 25, 2018 (FAD in IRS-15-1594-F and IRS-16-0224-F, Doc. 1-1, 

#45). Posey did not appeal the decision to the EEOC, instead filing this Complaint in 

May 2018. (Compl., Doc 1, #5). 

D. Posey’s Complaint Includes Other Allegedly Wrongful Acts By Her 

Employer.

Posey asserts that the FAD issued in response to her 2015 and 2016 charges 

was “[u]nlawful and without merit.” (Id.). But her Complaint also goes significantly 

beyond the specific actions and issues alleged in these two most recent EEO charges.

Rather, Posey appears to allege that every employment issue and action she has faced 

since she filed her 2003 EEO charge is part of “a Conspiracy of ongoing Retaliation 

by means of Unlawful Employment Practices, resulting in a violation of Plaintiff [sic]

Civil Rights.” (Id.; see also id. at #6 (“Plaintiff feels that the Unlawful Ongoing 

Retaliation escalated to a continuation of ongoing cover up against her by method of 

Retaliation of crimes against her for filing a 2003 EEO Charges.”); id. at #11 (“The 

Plaintiff believes that because of EEO dragging their feet for fourteen (14) years, they 

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have permitted the IRS Agency and Upper Management Staff to have their way with 

the Plaintiff since 2003 to present for filing an EEO claim against the Agency.”)). 

Posey also alleges that this pattern of discriminatory conduct continued after 

she filed her most recent EEO charges in 2015 and 2016. For example, Posey’s 

Complaint states that the IRS engaged in a “[r]etaliatory act[]” by launching an antiharassment inquiry into Posey’s management of her team in late 2017 or early 2018. 

(Id. at #8 (citing Memorandum from G. Hudson to M. Posey, Doc. 1-3, #435)). As a 

result of this inquiry, Posey was removed from her managerial role at the agency, 

which Posey also alleges was an act of retaliation. (Id. at #8 (citing Memorandum 

from G. Hudson to M. Posey, Doc. 1-3, #435)). 

PROCEDURAL HISTORY

On May 2, 2018, Posey filed her Complaint in this case, appealing the FAD in 

the 2015 and 2016 charges and, as noted above, more broadly alleging a “conspiracy” 

of retaliation against her dating back to 2003. (Compl., Doc. 1, #5).

In June 2019, the Secretary moved for summary judgment. (Doc. 25). After 

briefing on the motion, the Magistrate Judge issued the R&R recommending that the 

Court grant summary judgment in favor of the Secretary. (Doc. 30). More specifically, 

the R&R found that Posey had failed to exhaust administrative remedies with regard 

to many of her claims, as required by statute, and was thus precluded from litigating 

the claims in this case. (R&R, Doc. 30, #1765–70). Separately, the R&R rejected 

Posey’s due process claims and First Amendment claims because Posey had failed to 

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adequately state the claims in her Complaint. (Id. at 1770–72). The R&R also rejected 

other claims in Posey’s Complaint as too “vague” for her to pursue. (Id. at #1792–93). 

That left the discrimination claims that were related to incidents Posey had 

previously raised in her 2015 and 2016 EEO charges (and thus exhausted), including

Posey’s allegations that the Treasury Department management had discriminated or 

retaliated against her by: (1) improperly issuing a counseling memorandum in 

response to an earlier incident; (2) placing a derogatory handwritten note in her 

employee performance file; (3) failing to reassign Posey as promised; (4) initiating an 

inquiry against Posey in response to her employees’ complaints; and (5) improperly 

undermining Posey’s managerial authority. (Id. at #1772–90). The R&R also 

considered a general “hostile environment” claim. (Id. at #1791–92). With regard to

each of these claims, the R&R found that Posey had failed to establish a case for any 

form of discrimination or retaliation. (Id. at #1772–92). Finding no genuine issue of 

material fact exists, the R&R recommended that the Secretary is entitled to judgment 

as a matter of law on all claims. (Id. at 1793–94). 

Posey timely objected to the R&R (Obj. Doc. 31), and the Secretary responded

(Doc. 33). The Court addresses both Posey’s objections and the Secretary’s responses 

below. 

LEGAL STANDARD

Under Fed. R. Civ. P. 72(b)(3), district courts review an R&R de novo after a 

party files a timely objection. This review, however, applies only to “any portion to 

which a proper objection was made.” Richards v. Colvin, No. 2:12-cv-748, 2013 WL 

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5487045, at *1 (S.D. Ohio Sept. 30, 2013). In response to such an objection, “[t]he 

district court ‘may accept, reject, or modify the recommended disposition; receive 

further evidence; or return the matter to the magistrate judge with instructions.’” Id.

(quoting Fed. R. Civ. P. 72(b)(3)). However, a general objection “has the same effect[] 

as would a failure to object.” Howard v. Sec’y of Health & Human Servs., 932 F.2d 

505, 509 (6th Cir. 1991); Boyd v. United States, No. 1:16-cv-802, 2017 WL 680634, at 

*1 (S.D. Ohio Feb. 21, 2017). That is, the litigant must identify each issue in the R&R 

to which she objects with sufficient clarity that the Court can identify it, or else that 

issue is deemed waived. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“The

objections must be clear enough to enable the district court to discern those issues 

that are dispositive and contentious.”). 

That being said, here, the petitioner is proceeding pro se. A pro se litigant’s 

pleadings are to be construed liberally and are subject to less stringent standards 

than formal pleadings filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520–21 

(1972). At the same time, pro se litigants must still comply with the procedural rules 

that govern civil cases. McNeil v. United States, 508 U.S. 106, 113 (1993).

The R&R at issue here addresses a motion for summary judgment. On that 

front, “[t]he ‘party seeking summary judgment always bears the initial responsibility 

of informing the district court of the basis for its motion and identifying those 

portions’ of the record which demonstrate ‘the absence of a genuine issue of material 

fact.’” See, e.g., Rudolph v. Allstate Ins. Co., No. 2:18-cv-1743, 2020 WL 4530600, at 

*3 (S.D. Ohio Aug. 6, 2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

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But the non-moving party cannot defeat a motion for summary judgment merely by 

pointing to any factual dispute. As the Sixth Circuit has explained, “[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.” Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 

690, 697 (6th Cir. 2020) (bracket omitted) (quoting Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 247–48 (1986)).

LAW AND ANALYSIS

A. Posey Fails To Properly Object To Any Portion Of The R&R.

As a blanket matter, the Secretary argues that Posey fails to properly object to 

any portion of the R&R. (Resp. to Obj., Doc. 33, #18–19). The Court agrees. No part 

of Posey’s Objections clearly identifies any specific portion of the R&R to which Posey 

objects or any specific error that the Magistrate Judge allegedly made. 

Posey’s Objection generally “disputes [that] the Defendant’s Summary 

Judgment Motion [should] be granted.” (Doc. 31, #1798). But this is where Posey’s 

engagement with the R&R ends. Rather than stating specific points of disagreement 

with the R&R’s legal and factual findings, the “substantive core” of Posey’s objection 

is a list of employment actions and issues directed toward the Secretary’s earlier 

arguments. (Resp. to Obj., Doc 33, #1877 (citing Obj., Doc. 31, #1798–800)). For 

example, Posey alleges that a supervisor “retaliated against [her] for her past EEO 

Activities and made reference to [Posey’s] filing of an EEO claim in [a] memo and 

unlawfully placed it in the Plaintiff’s [employee performance file].” (Obj., Doc 31, 

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#1799). How this incident, or any of the other issues Posey lists in her objections, 

relate to the R&R Posey never explains. 

That is a problem because a litigant is required to object to the R&R, not merely 

rehash arguments already made against the opposing party’s motion. See Richards, 

2013 WL 5487045, at *1 (finding no proper objection where plaintiff only repeated the 

same arguments made in earlier briefing rather than identifying specific errors in 

the R&R). By attempting once again to rebut the Secretary’s arguments, rather than 

addressing her objections squarely to the R&R, Posey fails to properly object to the 

R&R. That failure, in and of itself, would be a sufficient basis on which to adopt the 

R&R.

B. Posey’s Arguments Are Meritless.

While Posey has failed to object in a proper fashion, as she is a pro se litigant, 

the Court will do its level best to glean what it can from her objections as to her 

concerns about the R&R, and address those concerns that the Court can identify. 

1. Posey Misstates the Administrative Exhaustion Requirement.

Perhaps the closest Posey comes to engaging with the R&R itself, rather than 

with the Secretary’s prior arguments, is in discussing administrative exhaustion. 

Before a would-be plaintiff can file a Title VII suit, he or she must exhaust 

administrative remedies. Lockett v. Potter, 259 F. App’x 784, 786 (6th Cir. 2008) 

(citations omitted). As the R&R correctly explained:

A federal employee must take several steps to exhaust her 

administrative remedies. Lockett, 259, F. App’x at 786. First, the 

employee must initiate contact with an EEO counselor without 45 days 

of the allegedly discriminatory action to attempt to informally resolve 

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the matter. Id. (citing 29 C.F.R. § 1614.105(a)(1)). Second, the employee 

must file an individual complaint of discrimination with the agency that 

allegedly discriminated against her within the prescribed time limits. 

Id. (citing 29 C.F.R. § 1614.106(a)). Third, the individual must obtain an

FAD. Id. (citing 29 C.F.R. § 1614.110(a)). The employee may appeal the 

FAD to the EEOC within 30 days of its receipt. Id. (citing 29 C.F.R. 

§ 1614.402(a)). In the alternative, the employee can file a civil action in 

district court. Id. (citing 29 C.F.R. § 1614.407). The time limits for filing 

a civil suit are: ‘(a) Within 90 days of receipts of the [FAD] if no appeal 

has been filed; (b) After 180 days from the date of filing an individual ...

complaint if an appeal has not been filed and final action has not been 

taken; (c) Within 90 days of receipt of the Commissioner’s final decision 

on an appeal; or (d) After 180 days from the date of filing an appeal with 

the Commission if there has been no final decision by the Commission.” 

29 C.F.R § 1614.407(a)-(d); see also 42 U.S.C. § 2000e-16(c).

(R&R, Doc. 30, #1765–66). Based on this rule, the R&R found that Posey failed to 

timely exhaust “claims related to her ‘lateral’ transfer in 2018”; “claims related to the 

2017 management inquiry that precipitated that transfer,” and “claims related to any 

IRS employment actions or decisions that occurred prior to July 4, 2015.” (Id. at

#1767). 

As with many of her arguments, Posey does not appear to object to the R&R’s 

findings regarding her failure to exhaust administrative remedies. However, she does 

“dispute the defendant’s claims that [she] did not timely exhaust [these claims].”

(Obj., Doc 31, #1797). Taken at face value, that suffers from the flaw identified 

above—it attacks the opposing party’s underlying argument, not the R&R itself.

But even treating this argument as though it were an objection to the R&R’s 

findings regarding exhaustion, rather than a rehash of the argument below, the

objection would be without merit. In support of her claim that she has satisfied the 

exhaustion requirement, Posey presses two distinct arguments: (1) she effectively 

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exhausted available administrative remedies by engaging in settlement discussions 

after this litigation had already commenced, (id. at #1797–98), and (2) even if she 

failed to exhaust her administrative remedies, as a member of a protected class under 

Title VII of the Civil Rights Act, she is exempt from any exhaustion requirements.3

(Id.). 

The Court takes them in that order. Posey is correct that she engaged in a court 

ordered settlement conference on April 8, 2019, in connection with this litigation. 

(Order Setting Settlement Conference, Doc. 21). But Posey’s participation in that

court-ordered settlement conference is irrelevant to the exhaustion requirement. As 

the Secretary correctly explains in his response to Posey’s objections, “administrative 

exhaustion is a precondition to suit; meaning, administrative EEO requirements 

must be completed prior to—not during—litigation.” (Doc. 33, #1883). See also Younis 

v. Pinnacle Airlines, 610 F.3d 359, 361 (6th Cir. 2010) (explaining that “an employee 

3 As a third line of argument, Posey also suggests that she satisfied the exhaustion 

requirement merely by filing four EEO charges previously. (Obj., Doc. 31, #1797). This 

argument, however, does not respond to the R&R, which recognized that Posey had 

previously filed EEO charges. (Doc. 30, #1757). But the R&R concluded that these 

administrative actions did not exhaust Posey’s claims with regard to every discriminatory 

incident she alleges in this lawsuit. This is because either (1) Posey did not address these 

allegedly discriminatory incidents in the administrative actions she pursued, or (2) they 

occurred more than 45 days before Posey’s first contact with the EEO in connection with the 

EEO charges that gave rise to the present lawsuit and are thus time-barred. (Id. at #1767–

70). Rather than address those shortcomings, Posey seems to suggest that the act of 

exhausting administrative remedies with regard to any past allegedly discriminatory actions 

satisfies the exhaustion requirement with regard to all claims of alleged discrimination. 

Because Posey’s argument on this point is both (1) incorrect, and (2) not even indirectly 

responsive to the R&R’s findings, the Court does not address it at further length here.

The Court similarly rejects Posey’s suggestion that she satisfied the exhaustion 

requirement by reporting certain claims to her Agency Director. (Obj., Doc. 31, #1797). This 

argument does not respond to the R&R’s finding that an official EEO charge must be filed 

and an FAD received before the employee may file suit in district court. (R&R, Doc. 30, 

#1765–66).

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alleging employment discrimination in violation of [Title VII] must first file an 

administrative charge with the EEOC”). Thus, even if Posey had properly framed this 

argument as an objection to the R&R, the Court would reject the objection as 

meritless.

Separately, Posey attempts to circumvent the exhaustion requirement by 

arguing that it does not apply to her as a member of a protected class under the Civil 

Rights Act of 1964 and “therefore, the Plaintiff can bypass the Administrative Process 

and file her complaint in Federal Court regarding her claims.” (Obj., Doc. 31, #1797).

As support for this point, Posey primarily relies on the Supreme Court’s 2019 decision 

in Fort Bend County v. Davis. 139 S. Ct. 1843 (2019). But Fort Bend does not support 

Posey’s argument. The question the Court addressed in Fort Bend was whether “Title 

VII’s charge-filing precondition to suit [was] a ‘jurisdictional’ requirement that can 

be raised at any stage of a proceeding; or ... a procedural prescription mandatory if 

timely raised, but subject to forfeiture if tardily asserted.” Id. at 1846. Because the 

Secretary properly raised the exhaustion requirement as an affirmative defense in 

both his Answer (Doc. 8, #566), and his Motion for Summary Judgment (Doc. 25, 

#1164), the issue facing the Court in Fort Bend is irrelevant here. On the contrary, 

Fort Bend explicitly characterizes the filing of a charge with the EEOC as a 

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“precondition to the commencement of a Title VII action in court”—thus further 

undermining Posey’s hypothetical objection. Id. at 1846.

2. Posey Cannot State New Claims in Her Response to the 

Secretary’s Motion for Summary Judgment. 

Posey also gestures towards the R&R in her objection in discussing whether 

she waived her right to bring a Due Process Claim by failing to state it in her 

Complaint. (Obj., Doc. 31, #1801).

“It is well-settled that a plaintiff may not expand [his or her] claims to assert 

new theories in response to summary judgment or on appeal.” Renner v. Ford Motor 

Co., 516 F. App’x 498, 504 (6th Cir. 2013). Rather, as the R&R correctly explains, “if 

the plaintiff wishes to expand her claims ‘mid-stream,’ then ‘the proper procedure ...

is to amend the complaint in accordance with [Fed. R. Civ. P.] 15(a).’” (Doc. 30, #1771).

Based on this rule, the R&R rejected Posey’s efforts to raise a due process 

claim. “Because plaintiff first raised her [due process] claim in opposition to 

defendant’s motion for summary judgment, defendant has not had an opportunity to 

address plaintiff’s claim. Plaintiff therefore may not pursue her due process claim in 

this lawsuit.” (Id. at #1772). 

Here again, Posey does not directly object to the R&R’s findings. But she does 

direct an argument toward the Secretary that could perhaps be read as an indirect 

response to the R&R as well. “Although, the Defendant argues that the Plaintiff failed 

to introduce the Due Process Law, without mention the Constitution of the Due

Process in her case ... pro se plaintiffs enjoy the benefit of a liberal construction of 

their pleadings and filings.” (Doc 31, #1801). Posey’s argument thus appears to be 

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that, although she may not have raised the due process claim in her Complaint, the 

Court should retroactively read the due process claim as being present in her 

Complaint all along. 

As the Court noted at the outset, Posey is correct that, as a pro se plaintiff, the 

Court will construe her pleadings and filings liberally. Haines, 404 U.S. at 520–21. 

However, she attempts to apply this rule too broadly. As Sixth Circuit observed:

“although liberal construction requires active interpretation of the filings of a pro se 

litigant, it has limits. Liberal construction does not require a court to conjure 

allegations on a litigant’s behalf, and a pleading must provide notice to the opposing 

party of the relief sought.” Erwin v. Edwards, 22 F. App’x. 579, 580 (6th Cir. 2001) 

(dismissing a § 1983 suit brought as a § 2254 petition). Although Posey is entitled to 

a liberal construction of her pleadings, her Complaint did not put anyone on notice 

that she was stating a due process claim, and the Court will not retroactively insert 

such a claim on her behalf. 

CONCLUSION

For the reasons set forth above, the Court OVERRULES Posey’s Objection 

(Doc. 31), and thus ADOPTS the R&R (Doc. 30). Accordingly, the Court GRANTS

the Secretary’s Motion for Summary Judgment (Doc. 25). As a result, the Court 

DISMISSES this action WITH PREJUDICE. The Court further DIRECTS the 

Clerk to ENTER JUDGMENT in the Secretary’s favor, and terminate this matter 

on the Court’s docket. 

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SO ORDERED.

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

October 7, 2021

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