RUDOLPH CONTRERAS, United States District Judge.
In this employment discrimination action, the plaintiff, Mary Ann Turner, a member of the United States Capitol Police ("USCP"), claims that she was discriminated against based on her gender and retaliated against for complaining about discrimination. Plaintiff raises these claims concerning a close-out performance evaluation she received that was allegedly executed in October 2009. See Am. Compl. ¶ 49, ECF No. 13. Plaintiff splits her concerns about this close-out performance evaluation into numerous separate claims concerning the evaluation itself: a supervisor's "attempt" to interfere with the evaluation, the untimeliness of the evaluation, and her lack of opportunity to review and refute the evaluation. See Am. Compl. Counts I-VIII. Additionally, plaintiff claims that she was subjected to a hostile work environment, based on her gender, and in retaliation for complaining about her discriminatory treatment. Am. Compl. Counts IX & X. These claims are
The plaintiff, Mary Ann Turner, has been a member of the USCP since July 1986. Am. Compl. ¶ 3, ECF No. 13. She was promoted to the rank of detective in June 1991. Am. Compl. ¶ 8. In May 2004, plaintiff was transferred to Intelligence Section-Investigations ("IS-I"). Am. Compl. ¶ 9. In the IS-I, plaintiff's first-line supervisor was Michael Albrycht, Sergeant and Supervisory Special Agent ("SSA"). Am. Compl. ¶ 11. But, because plaintiff was detailed to the Joint Terrorism Task Force ("JTTF") between May 2004 and September 2007, she had limited contact with SSA Albrycht. Am. Compl. ¶¶ 10, 14.
In September 2007, plaintiff returned to the direct supervision of SSA Albrycht in the IS-I. Am. Compl. ¶ 18. SSA Albrycht provided plaintiff with a performance evaluation rating of "outstanding" for the years 2006 and 2007. Am. Compl. ¶¶ 19, 20. She was not evaluated in 2008. Am. Compl. ¶ 21.
On July 23, 2008, plaintiff filed a complaint with the USCP's Office of Professional Responsibility charging SSA Albrycht with gender discrimination. Am. Compl. ¶ 22. That complaint included claims concerning the following: comments SSA Albrycht made at a section briefing; a dispute plaintiff had with SSA Albrycht about a fleet car she was to drive to Richmond, Virginia; SSA Albrycht's denial of plaintiff's request to attend the Women in Federal Law Enforcement Conference; an incident during counseling in which SSA Albrycht told her to remain silent; a misunderstanding between plaintiff and SSA Albrycht regarding completion of a 4th of July Plan of Action; SSA Albrycht's denial of plaintiff's request for camera and surveillance training and training funded by other USCP units; plaintiff's exclusion from liaison visits to other agencies; plaintiff's assignment to zones in which her area of responsibility did not include activity; SSA Albrycht's exclusion of plaintiff from routine section activities while she was detailed to the JTTF; SSA Albrycht's admonishment of plaintiff for parking a personally owned vehicle in a restricted location; SSA Albrycht's comments to others implying that plaintiff had failed to resolve a ticket; SSA Albrycht's failure to select plaintiff to fill in for CID or to serve as acting supervisor; SSA Albrycht's verbal discipline of plaintiff at the Rayburn House Office Building in the presence of other officers, agents and civilians; and SSA Albrycht's failure to commend plaintiff on a matter involving international terrorism. Id.
On or about the same date that plaintiff filed her complaint, July 23, 2008, SSA Albrycht was immediately detailed to another part of USCP, ordered to have no contact with plaintiff and to stay out of her
On or about September 22, 2009, plaintiff officially learned that the Office of Professional Responsibility had sustained her discrimination claims against SSA Albrycht. Am. Compl. ¶ 36. On September 25, 2009, plaintiff was detailed to the Intelligence Section — Analytical ("IS-A") and reported to that detail a few days later. Am. Compl. ¶¶ 38, 39. On or about January 28, 2010, plaintiff was notified of her transfer to the position for which she had competed in the Security Coordination Section and for which transfer was effective as of February 21, 2010. Am. Compl. ¶¶ 39, 40. Thus, after July 23, 2008, the day on which plaintiff complained about SSA Albrycht's discrimination, he never again supervised her.
On June 13, 2011, plaintiff reviewed her personnel jacket. Am. Compl. ¶ 48. She claims that, at this point, for the first time, she found a "close-out" performance evaluation allegedly executed on October 13, 2009 by SSA Scheelar. Am. Compl. ¶ 49. A close-out rating is given to an employee when that employee leaves a unit or when the rating official leaves the unit. See Pl.'s Opp'n Mot. Dismiss, ECF No. 15-1 at 2 (¶ 3.14.3).
Plaintiff filed this action on January 11, 2012. Compl., ECF No. 1. After plaintiff filed an amended complaint, Am. Compl., ECF No. 13, the USCP filed a motion to dismiss. Def.'s Mot. Dismiss, ECF No. 12. For the reasons set forth below, that motion is granted.
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or a claim therein, for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ("Federal courts are courts of limited jurisdiction.... It is to be presumed that a cause lies outside this limited jurisdiction....").
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). The motion does not test a plaintiff's ultimate likelihood of success on the merits, but only forces the court to determine whether a plaintiff has properly stated a claim. ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 467 (D.C.Cir.1991). The complaint must set forth a short and plain statement of the claim, to give defendants fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir.2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
"To survive a motion to dismiss, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
The court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004); Browning, 292 F.3d at 242. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
Plaintiff raises gender discrimination and retaliation claims concerning a close-out performance evaluation she received that was allegedly executed in October 2009. Additionally, plaintiff claims that she was subjected to a hostile work environment, based on her gender, and in retaliation for complaining about her discriminatory treatment. Each of these claims is assessed below.
Plaintiff splits her concerns about the close-out performance evaluation into numerous
Plaintiff alleges that she received a close-out performance evaluation, allegedly executed on October 13, 2009, in which her performance was rated as "meets expectations," which she claims is a lower overall rating than the "outstanding" she received in 2006 and 2007. Am. Compl. ¶¶ 49, 50, ECF No. 13. She claims that this lower rating was discriminatory, based on her gender. Am. Compl. Counts I, III, V, VII. She bases this claim not just on the rating itself and SSA Albrycht's interference in its preparation, but also on SSA Albrycht's "attempt" to interfere with the rating, the fact that it was provided to her on an untimely basis, and that she was deprived of an opportunity to review and refute its contents. Id. Plaintiff does not allege that she suffered any financial harm as a result of the rating or that she lost out on any specific professional opportunities because of it. In fact, plaintiff alleges that she did not even learn that the rating existed until months after it was purportedly prepared. See Am. Compl. ¶¶ 48, 49 (close-out evaluation purportedly executed on October 13, 2009, but plaintiff did not locate it in her personnel jacket until June 13, 2011). Accordingly, neither the "meets expectations" close-out rating, nor the alleged procedural issues leading to its issuance constitute unlawful adverse employment actions.
To establish a prima facie case of gender discrimination under Title VII (and thus under the CAA), the plaintiff must show that "(1) [she] is a member of a protected class; (2) [she] suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999); see also Stewart v. Ashcroft, 352 F.3d 422, 428 (D.C.Cir.2003); Carroll v. England, 321 F.Supp.2d 58, 68 (D.D.C.2004). The USCP argues that the close-out performance evaluation did not constitute an adverse employment action in the context of a discrimination claim. The court agrees.
In the context of discrimination claims, the D.C. Circuit has held that, in the absence of a diminution in pay or benefits, an employee does "not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm." Brown, 199 F.3d at 457. "Mere idiosyncrasies of personal preference are not sufficient to state an injury." Id. Likewise, "[m]inor and even trivial employment actions that `an irritable, chip-on-the-shoulder employee did not like'" are not actionable. Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir.2001) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). The Supreme "Court specifically identified `discharge, demotion, or undesirable reassignment' as three examples of the kind of `tangible employment action' for which an employee may bring a vicarious liability suit against her employer under Title VII." Brown, 199 F.3d at 457 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). There is a "thick
The plaintiff alleges that the close-out performance evaluation of "meets expectations" was discriminatory based on her gender. But she does not allege that she was deprived of a bonus, salary increase, or a promotion as a result of it. As the USCP's evaluation policies state, close-out evaluations are not used in determining the employee's final summary rating. See Pl.'s Opp'n Mot. Dismiss, ECF No. 15-1 at 2 (¶ 3.14.3). As such, it is hard to imagine how it could have contributed to bonus or promotion decisions. And plaintiff has not challenged (at least in this action) any final summary ratings she received. Similarly, plaintiff has not alleged any concrete facts supporting a claim that the summary rating of "meets expectations" — that is not adverse in an absolute sense — hindered any future employment opportunities. Again, it is hard to imagine how it could have. According to plaintiff's own allegations, the close-out rating at issue was not in her personnel file until shortly before June 2011 (despite it being dated October 2009). Am. Compl. ¶¶ 48, 49. Pursuant to the USCP's performance evaluation policies, it would have been removed from her personnel file three years after execution — i.e., October 2012. Pl.'s Opp. Mot. Dismiss, ECF No. 15-1 at 12. Thus, for the several months the close-out rating was located in plaintiff's personnel file, the plaintiff has not identified any specific instances of it having impacted her professional opportunities and, because it has now been removed from the file, it cannot have any impact in the future.
As such, because plaintiff's close-out performance rating of "meets expectations" does not constitute an adverse employment action, she cannot base a discrimination claim on it.
Plaintiff also claims that she was rated "meets expectations" in the close-out performance evaluation in retaliation for having previously complained about the discriminatory treatment she allegedly endured. But for the same reasons her discrimination claims concerning this close-out
To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in a statutorily protected activity, (2) a reasonable employee would have found the challenged action materially adverse, and (3) there existed a causal connection between the protected activity and the materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). In the retaliation context, the term "adverse action" "encompass[es] a broader sweep of actions than those in a pure discrimination claim." Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C.Cir.2008).
The USCP argues that plaintiff's retaliation claim fails because the "meets expectations" close-out evaluation does not constitute the materially adverse action required to make out a retaliation claim. Again, the Court agrees.
As set forth in detail above, there is no allegation that the rating caused plaintiff to miss out on a bonus, salary increase, or promotion. Additionally, she has not plausibly alleged facts indicating that the close-out performance evaluation hindered her professional opportunities. Nor has she explained how, given the nature of close-out evaluations as set forth in the relevant USCP policies, either of these things could have occurred. Accordingly, because plaintiff has not alleged facts supporting a claim that she suffered a materially adverse action — i.e., one that might have dissuaded a reasonable worker from making or supporting a charge of discrimination — her retaliation claims fail as well. See, e.g. Taylor v. Solis, 571 F.3d 1313, 1321 (D.C.Cir.2009) (finding the lowering of employee's performance evaluation from "Outstanding" to "Excellent" to "Fully Effective" not materially adverse because downgrades were not attached to financial harms despite plaintiff's conclusory allegation that she was denied promotional and bonus opportunities); Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C.Cir.2008) (finding that a performance rating of "not achieved" was not materially adverse because plaintiff failed to produce evidence that the rating could affect his position,
Plaintiff claims that she was subjected to a hostile work environment, based on her gender, and in retaliation for complaining about her discriminatory treatment. See Am. Compl. Counts IX & X. The USCP principally argues that these claims are untimely. For the reasons set forth below, the Court agrees and dismisses the gender-based claim as untimely. But the retaliatory hostile work environment claim fails because it does not allege severe or pervasive harassment.
The plaintiff brings her claims pursuant to the Congressional Accountability Act. Am. Compl. ¶¶ 1-6. Through the CAA, "Congress extended the protections of Title VII of the Civil Rights Act of 1964, as well as ten other remedial federal statutes, to employees of the legislative branch." Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699, 701 (D.C.Cir.2009). "In Subchapter IV Congress specified a three-step process that requires counseling and mediation before an employee may file a complaint seeking administrative or judicial relief." Id. To "commence a proceeding," an employee must request counseling within 180 days of the date of the alleged violation of law. 2 U.S.C. § 1402(a); Blackmon-Malloy, 575 F.3d at 702. Because the relevant CAA provisions provide "that a district court has `jurisdiction over [appropriate actions] commenced ... by a covered employee who has completed counseling ... and mediation'" and a "civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation," the D.C. Circuit has held that the CAA's administrative exhaustion requirement is jurisdictional. Id. at 705-706; accord Gordon v. Office of the Architect of the Capitol, 928 F.Supp.2d 196, n. 6 (D.D.C.2013); Bradshaw v. Office of the
The Supreme Court's opinion in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), requires that a plaintiff file a charge for each separate discrete act of discrimination within the required period of time. As set forth above, in the case of claims under the CAA, a claimant must seek counseling within 180 days of the discriminatory act. But with respect to claims of hostile work environment, which are different in kind because they involve repeated conduct that does not fully manifest itself on any particular day, a claim is timely so long as one of the acts contributing to the hostile work environment occurred within the 180 day filing period. Morgan, 536 U.S. at 116-17, 122 S.Ct. 2061. Because the plaintiff did not seek counseling until June 13, 2011, Am. Compl. ¶ 4, she must establish that one of the acts contributing to the alleged hostile work environment occurred within 180 days of that date, i.e., approximately December 15, 2010. Otherwise, the hostile work environment claims are untimely pursuant to the CAA's statutory requirement.
As set forth above, in order for her claims to be timely, plaintiff must establish that one of the acts contributing to the alleged hostile work environment occurred within 180 days of June 13, 2011, i.e., after December 15, 2010. For the reasons set forth below, she cannot do so. Accordingly, her hostile work environment claims are dismissed as untimely.
In order to properly assess plaintiff's hostile work environment claims, a few basic principles must be kept in mind. First, the standards for judging a hostile work environment claim are sufficiently demanding to ensure that Title VII does not become a "general civility code for the American workplace." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Thus, not everything that makes an employee unhappy would necessarily be part of a hostile work environment claim. Second, a "plaintiff `must always prove that the conduct at issue was not merely tinged with offensive ... connotations, but actually constituted discrimination ... because of the employee's protected status." Peters v. District of Columbia, 873 F.Supp.2d 158, 188-89 (D.D.C.2012) (quoting Oncale, 523 U.S. at 81, 118 S.Ct. 998). "It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage of correlation to the claimed ground of discrimination." Id. at 189. Finally, in order for allegations to qualify as "part of the same actionable hostile work environment claim," they must be "adequately linked into a coherent hostile environment claim" by "involv[ing] the same type of employment actions, occurr[ing] relatively frequently, and [being] perpetrated by the same managers." Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C.Cir. 2011) (internal citations omitted).
The Court begins with the retaliatory hostile work environment claim first because that is the easier claim to dismiss. Plaintiff alleges that she engaged in protected activity on July 23, 2008, by submitting a complaint with the Office of Professional Responsibility charging SSA Albrycht with discrimination based on the plaintiff's gender. Am. Compl. ¶ 22. But, based on that complaint, SSA Albrycht was immediately detailed away from supervising plaintiff and never supervised her again. Am. Compl. ¶¶ 24, 38-42.
Plaintiff complains that she suffered harassment from SSA Albrycht based on a long list of acts to which he allegedly subjected her. See Am. Compl. ¶¶ 22.a, 22.p. But those actions took place before plaintiff filed her discrimination complaint. Consequently, they could not have been retaliatory. Lewis v. District of Columbia, 653 F.Supp.2d 64, 79 (D.D.C.2009) ("The fact that the allegedly retaliatory actions preceded the protected activity precludes a determination that the protected activity caused the defendant to retaliate against the plaintiff."); see also Bryant v. Brownlee, 265 F.Supp.2d 52, 70 (D.D.C.2003) (same).
Thus, the only act by SSA Albrycht of which plaintiff complains that post-dates the protected activity concerns his alleged interference with the close-out evaluation.
Contrary to the retaliatory hostile work environment claims, the gender-based hostile work environment claims could conceivably include all of SSA Albrycht's actions set forth in paragraphs 22.a-22.p of the Amended Complaint. These events, however, took place before plaintiff filed her discrimination complaint with the Office of Professional Responsibility on July 23, 2008. Am. Compl. ¶ 22. Accordingly, these claims on their own would be untimely because plaintiff did not seek counseling pursuant to the CAA's mandatory scheme until June 13, 2011, almost three years later. Am. Compl. ¶ 4. Thus, for plaintiff's gender-based hostile work environment claim to be timely, she must identify an act contributing to the alleged hostile
The only allegedly discriminatory act plaintiff identifies that arguably took place within this time frame is the "meets expectations" close-out evaluation. Although this evaluation was purportedly executed in October of 2009, plaintiff suggests it might have been prepared later. Moreover, plaintiff claims that she did not discover the evaluation until June 13, 2011. See Am. Compl. ¶¶ 48, 49. Accordingly, for purposes of this motion only, the Court will assume that this evaluation can be considered as having occurred within the 180 day window before counseling.
But, in order for this evaluation to make the prior hostile work environment claims timely, plaintiff must demonstrate that the evaluation was part of, and contributed to, the same hostile work environment. For the reasons set forth below, the Court concludes it was not.
As set forth above, in order for allegations to qualify as "part of the same actionable hostile work environment claim," they must be "adequately linked into a coherent hostile environment claim" by "involv[ing] the same type of employment actions, occurr[ing] relatively frequently, and [being] perpetrated by the same managers." Baird, 662 F.3d at 1251. Moreover, intervening actions by the employer can sever earlier incidents from more recent incidents. See, e.g., Vickers v. Powell, 493 F.3d 186, 199 (D.C.Cir.2007). The Court finds that the close-out performance evaluation is not part of same actionable hostile work environment as the earlier claims. Thus, the plaintiff's gender-based hostile work environment claims are untimely, because the plaintiff has failed to identify an act contributing to the alleged hostile work environment that occurred after December 15, 2010.
First, the close-out evaluation occurred remotely in time from the earlier acts. The earlier acts took place no later than July 23, 2008, but the close-out performance evaluation took place no earlier than October 2009 (and plaintiff suggests later), fifteen months later. Second, the close-out performance evaluation did not involve the same type of employment action that was involved in plaintiff's prior complaint. To the contrary, the plaintiff complains that the close-out performance evaluation was not as favorable as the "outstanding" performance evaluations she previously received in 2006 and 2007. Third, plaintiff was unaware of the close-out performance evaluation until June 2011, almost three years after SSA Albrycht ceased being her supervisor. See, e.g., Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1046 (7th Cir.2000) ("Mean-spirited or derogatory behavior of which a plaintiff is unaware, and thus never experiences, is not `harassment' of the plaintiff (severe, pervasive, or other)."); Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir.2000) (explaining that hostile actions of which plaintiff is unaware are not relevant to hostile work environment claim); Dudley v. WMATA, 924 F.Supp.2d 141, 168 (D.D.C.2013) (same); Hutchinson v. Holder, 815 F.Supp.2d 303, 321 (D.D.C.2011) (same). Because conduct that the plaintiff does not perceive as abusive cannot alter the terms and conditions of her employment, conduct that the plaintiff did not know about cannot be used to establish that she was subjected to a hostile work environment. Hutchinson, 815 F.Supp.2d at 321. Finally, because the USCP removed SSA Albrycht from plaintiff's supervision and, ultimately found that he had discriminated against her, these intervening actions sever the earlier incidents from the more recent incident.
In the end, based on all of the above reasons combined, the Court finds that the close-out performance evaluation is not related
For the foregoing reasons, the defendant's motion to dismiss is GRANTED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
