RUDOLPH CONTRERAS, United States District Judge.
Plaintiff Shirley Johnson is a female employee and supervisor at the Library of
In a pre-answer motion, the Library moves to dismiss Ms. Johnson's complaint, or, in the alternative, for summary judgment in its favor on Ms. Johnson's claims. Because, on the record presented, a reasonable jury could return a verdict for Ms. Johnson on her Title VII claims based on sex discrimination or retaliation with respect to the removal of certain supervisory duties, the Court declines to grant the Library's motion for summary judgment on those claims. But because Ms. Johnson has not shown significant, tangible harm arising from her performance appraisal, the Court will dismiss Ms. Johnson's Title VII claims based on sex discrimination or retaliation with respect to her performance appraisal. And because Ms. Johnson's intentional infliction of emotional distress claim alleges harm for which Title VII provides a remedy, Title VII preempts that claim and the Court will dismiss it. Lastly, because a claim for injunctive relief is not a freestanding cause of action, the Court will also dismiss Ms. Johnson's third claim.
According to the Complaint, Plaintiff Shirley Johnson is a female employee of the Library of Congress, where she has worked for forty years. Compl. ¶¶ 8, 11, ECF No. 1. At the time of the events at issue in this case, she was the Supervisor for the Library's On-site Constituent Support Unit. Id. ¶ 11. Ms. Johnson's role as Supervisor was supposed to include significant supervisory and managerial responsibilities: she was tasked with supervising a group of employees and with staffing two reading rooms at the Library. See Pl.'s Ex. 10, ECF No. 9-13 (reproducing excerpts of Ms. Johnson's performance plan for the appraisal period from March 1, 2014 through August 29, 2014). Ms. Johnson's immediate supervisor was Supervisor Librarian David Waters. See Compl. ¶ 11;
Ms. Johnson submits that, in her role at the Library, she works "extraordinar[il]y hard and consistently demonstrates a pattern of relentless and steady execution of not only her essential duties, but also assignments, projects and tasks that fall beyond the scope of her duties." Compl. ¶ 11. Her 2014 performance appraisal covers the rating period from March 1, 2013 through February 28, 2014, was signed by Mr. Waters and Ms. Johnson on May 16, 2014, and agrees with Ms. Johnson's assessment of her work: she received an overall rating of "Commendable," meaning that her "performance and initiative [were] worthy of special notice." Def.'s Ex. 4, at 1-2, ECF No. 8-4. Ms. Johnson also received a "Commendable" rating for each of her major areas of responsibility. See id. at 2-3. In particular, her performance appraisal noted that she possessed "extensive supervisory experience" and "perform[ed] very well as Supervisor of the On-site Constituent Support Unit while [she] and [her] staff adjust[ed] to changing job duties and work with various units in CALM." Id. at 2.
A number of Ms. Johnson's supervisees were detailed in 2014 to work on developmental assignments. See Pl.'s Ex. 1, ¶ 14, ECF No. 9-4; Pl.'s Ex. 8, ECF No. 9-11; Pl.'s Ex. 9, at 1-2, ECF No. 9-12. In groups of two at a time, they performed temporary rotations supporting the Library's collections-related activities, managed by the CALM Collections Officer, Beatriz Haspo. See Pl.'s Ex. 8; Pl.'s Ex. 9, at 1-2. Because Ms. Haspo was not a supervisor at the Library, she was not responsible for the supervisees' sign-in and sign-out processes. See Pl.'s Ex. 1, ¶ 14; Pl.'s Ex. 8; Pl.'s Ex. 9, at 1-2. Instead, Ms. Johnson's supervisors told Ms. Johnson that she would continue functioning as supervisor and timekeeper for her supervisees on detail with Ms. Haspo. Pl.'s Ex. 9, at 1.
Early in 2014, two of Ms. Johnson's male supervisees, Robert Bunch and Rodney Marshall, were working on detail with Ms. Haspo. See Pl.'s Ex. 9, at 1, ECF No. 9-12. After a concern arose about the accuracy of Mr. Bunch's sign-in times, Ms. Johnson approached Mr. Waters and Ms. Haspo about the issue. See id. at 2; see also Compl. ¶ 12. Because Mr. Bunch was scheduled to report for work earlier than Ms. Johnson, Ms. Johnson asked to have Mr. Bunch sign in at the CALM Division Office, where the office secretary would be able to monitor Mr. Bunch's sign-in times. See Compl. ¶ 12; Pl.'s Ex. 9, at 2. Mr. Waters granted Ms. Johnson's request. Compl. ¶ 12; Pl.'s Ex. 9, at 2.
After that, both Mr. Bunch and Mr. Marshall began signing in at the Division Office. Pl.'s Ex. 9, at 2. But even though they were signing in at the Division Office, Ms. Johnson still wanted to continue functioning
After Mr. Bunch and Mr. Marshall's time on detail ended, two of Ms. Johnson's female supervisees went on detail with Ms. Haspo. Pl.'s Ex. 9, at 2, ECF No. 9-12. One was Simone Rankin, who began her detail on April 7, 2014. Id. The other was Helen Drakeford, who had already worked a detail with Ms. Haspo, and who began her second detail on June 9, 2014. Id. Earlier that year, Ms. Johnson has issued supervisory memoranda instructing Ms. Drakeford about Ms. Drakeford's inappropriate use of leave, failure to remain in her work area, and failure to follow supervisory instructions. Compl. ¶ 14 ("Ms. Drakeford received a Counseling Memo on January 29, 2014 and an Admonishment Memo on April 4, 2014...."); accord Pl.'s Ex. 1, ¶ 14, ECF No. 9-4; Pl.'s Ex. 4, at 2, ECF No. 9-7.
Between Tuesday, June 17, 2014 and Friday, June 20, 2014, however, problems between Ms. Drakeford, Ms. Johnson, and Ms. Johnson's supervisors intensified.
On Tuesday, June 17, 2014, Ms. Johnson was on leave for the day. Pl.'s Ex. 9, at 2. She nonetheless learned, through an email from Mr. Waters, that Ms. Drakeford had called the Library and had stated that, because Ms. Drakeford's mother was in the hospital, Ms. Drakeford would not be at work for one or two days. Id. Mr. Waters's email also stated that Ms. Drakeford would contact Ms. Johnson if Ms. Drakeford needed further time off from work. Id.
On Wednesday, June 18, 2014, Ms. Drakeford reported to work. Compl. ¶ 13; Pl.'s Ex. 9, at 2. But when Ms. Johnson received a telephone message for Ms. Drakeford, Ms. Johnson could not locate Ms. Drakeford in her work area. Compl. ¶ 13; Pl.'s Ex. 9, at 2. Ms. Johnson then left Ms. Drakeford a handwritten message at her work station, asking Ms. Drakeford to contact Ms. Johnson. Pl.'s Ex. 9, at 2. Ms. Drakeford did not contact Ms. Johnson that day. Id.
On Thursday, June 19, 2014, Ms. Drakeford still did not contact Ms. Johnson and did not report to work. Compl. ¶ 13; Pl.'s Ex. 9, at 2. Instead, Ms. Johnson learned from Ms. Haspo that Ms. Drakeford had left Ms. Haspo a text message, which stated that Ms. Drakeford would not be reporting to work that day. Pl.'s Ex. 9, at 2. By this point, Ms. Johnson's other supervisees had begun telling Ms. Johnson that Ms. Drakeford was not properly requesting or using leave time. Id. Concerned about Ms. Drakeford leaving work early and failing to sign out, Ms. Johnson met with Mr. Waters to discuss the issue. Id. After Ms. Johnson asked Mr. Waters whether Ms. Drakeford had requested or received leave for that day from him, Mr. Waters answered that Ms. Drakeford had not. Id. To improve the situation, Ms.
On Friday, June 20, 2014, Ms. Johnson implemented the agreed-upon plan: She verbally counseled Ms. Drakeford about proper procedures for leave requests, for which Ms. Drakeford should request leave from Ms. Johnson first, and then go up the supervisory ladder if Ms. Johnson was not available. Compl. ¶ 16; Pl.'s Ex. 9, at 2. And Ms. Johnson informed both Ms. Drakeford and Ms. Rankin that they should sign in and out with Ms. Johnson instead of at the Division Office. Pl.'s Ex. 9, at 2.
Later that day, Mr. Waters told Ms. Johnson that he had changed his mind. Compl. ¶ 16; Pl.'s Ex. 9, at 2. Instead of signing in and out with Ms. Johnson, Mr. Waters had decided that Ms. Drakeford and Ms. Rankin should continue to sign in and out at the Division Office. Compl. ¶ 16; Pl.'s Ex. 9, at 2. When Ms. Johnson asked him why he had changed his mind, he merely responded "[b]ecause I said so." Compl. ¶ 16.
Ms. Johnson also spoke with her second-line supervisor, Mr. Herman, on June 20, 2014. Pl.'s Ex. 4, at 2. She and Mr. Herman discussed what kind of leave they would charge Ms. Drakeford, and they agreed on charging her annual leave. Id. Ms. Johnson also mentioned her concerns about Mr. Waters allowing Ms. Drakeford to continuing signing in and out at the Division Office. Id. Mr. Herman told Ms. Johnson that he would speak with Mr. Waters about the issue. Id.
In July and August 2014, while her mother was in the hospital and after her mother died, Ms. Drakeford continued to take leave from work without getting Ms. Johnson's approval. Compl. ¶ 17; Pl.'s Ex. 4, at 2. On July 9, 2014, some of Ms. Johnson's other supervisees told Ms. Johnson that Ms. Drakeford would no longer ask Ms. Johnson for leave, because Mr. Waters had told Ms. Drakeford that asking Ms. Johnson was unnecessary. Pl.'s Ex. 4, at 2.
According to Ms. Johnson, Mr. Water's decisions about Ms. Drakeford were consistent with other decisions made in the time around the June 2014 events. See Compl. ¶ 20. In 2014 and 2015, Ms. Johnson attempted to issue supervisory counseling memoranda to Ms. Drakeford and other female supervisees, but Mr. Waters and Mr. Herman processed these memoranda slowly or not at all. Id. In contrast, Mr. Waters and Mr. Herman reviewed Ms. Johnson's counseling memoranda to similarly situated male employees, edited them, and sent them to the Library's Human Resources department for final approval in less than a week. Id. Additionally, when some of Ms. Johnson's other supervisees — including Mr. Bunch — had a parent or spouse who died, Ms. Johnson reports that those supervisees were not given "any especial treatment ... or favors." Pl.'s Ex. 4, at 2, ECF No. 9-7.
On August 6, 2014, Ms. Johnson met with both Mr. Waters and Mr. Herman to discuss Ms. Drakeford's continued unapproved leave. Compl. ¶ 19; Pl.'s Ex. 1, ¶ 14, ECF No. 9-4. But instead of agreeing with Ms. Johnson's position, Mr. Waters informed Ms. Johnson that he would approve
On August 13, 2014, Ms. Johnson put her narrative in writing and sent an email to Mr. Sweeney about what had happened between herself, her supervisors, and her supervisees on detail with Ms. Haspo. Compl. ¶ 22; see Pl.'s Ex. 9, at 1-2, ECF No. 9-12. In response, Mr. Sweeney took three sets of actions:
Compl. ¶ 22; Pl.'s Ex. 9, at 1; see Pl.'s Ex. 3, ECF No. 9-6 (showing that OIC handled Ms. Johnson's discrimination allegations); Pl.'s Ex. 5, ECF No. 9-8 (same). Having taken these actions, he considered the matter "closed" and directed Ms. Johnson to "work through [her] established management chain of command." Pl.'s Ex. 9, at 1.
In a memorandum to Ms. Johnson dated August 27, 2014, Mr. Herman "establish[ed] the reporting structure ... in place for staff members serving on developmental assignments" with Ms. Haspo. Pl.'s Ex. 8, ECF No. 9-11. The memorandum affirmed Mr. Waters's decision to have Ms. Johnson's supervisees "sign in and sign out in the CALM Division Office." Id. ¶ 1. It went on to state that, for Ms. Johnson's supervisees on detail, "[a]ll requests for leave and for other scheduling-related issues" would be "the responsibility of Rohn Roaché," Ms. Haspo's first-line supervisor. Id. ¶ 2; Def.'s Ex. 1, at 5. In Mr. Roaché's absence, Mr. Herman, as Mr. Roaché's immediate supervisor, would handle leave and scheduling issues. Pl.'s Ex. 8, ¶ 3; Def.'s Ex. 1, at 5. The memorandum further stated that day-to-day assignment of work and performance monitoring would rest with Ms. Haspo. Pl.'s Ex. 8, ¶ 4. After a supervisee completed his or her detail, Ms. Haspo would provide both Ms. Johnson and Mr. Roaché with "an assessment of how the employee performed." Id.
After the August 27, 2014 memorandum, Ms. Johnson's supervisees still at times contacted her to request leave, because they could not reach Mr. Roaché or Mr. Herman. Def.'s Ex. 1, at 5. Because Mr. Herman and Mr. Roaché were often in meetings and sometimes worked off-site, and because Mr. Roaché did not work on Tuesdays, Mr. Herman and Mr. Roaché were not as available as Ms. Johnson. Id.
Alleging discrimination by Mr. Waters and Mr. Herman, Ms. Johnson filed an informal complaint on September 3, 2014 with the Library's Office of Opportunity, Inclusiveness and Compliance (OIC). See Pl.'s Ex. 1, ECF No. 9-4. On September 10, 2014, the OIC told Ms. Johnson by letter that, because no resolution of her informal complaint had been reached, she was "entitled to file a formal discrimination complaint." Pl.'s Ex. 3, ECF No. 9-6.
Ms. Johnson filed a formal discrimination complaint on September 16, 2014. See Pl.'s Ex. 4, ECF No. 9-7. But, on December 19, 2014, the OIC notified Ms. Johnson that it would not accept her formal complaint because she did not timely file it. See Compl. ¶ 10; Pl.'s Ex. 5, at 1, ECF No. 9-8. Ms. Johnson appealed the decision and argued that her formal complaint was in fact timely. Compl. ¶ 10. On March 2, 2015, after reconsidering Ms. Johnson's claims, the OIC affirmed that Ms. Johnson's appeal was denied. See id.; Def.'s Ex. 2, ECF No. 8-2. The OIC further specified that, even if Ms. Johnson had timely filed her formal complaint, it "would not be accepted for investigation due to [her] failure to show an adverse employment action." Id.
In 2015, Ms. Johnson received a lower overall rating on her performance appraisal for the rating period from March 1, 2014 through February 28, 2015: "Successful," instead of the "Commendable" that she had received in 2014. See Compl. ¶ 24. Compare Pl.'s Ex. 7, at 1, ECF No. 9-10, with Def.'s Ex. 4, at 1, ECF No. 8-4 (reproducing Ms. Johnson's 2014 performance appraisal). Her performance rating for her "Supervisory and Managerial Responsibilities" was also "Successful," not "Commendable." Pl.'s Ex. 7, at 3. Ms. Johnson took offense to the lower ratings and, on April 7, 2015, she refused to sign the performance appraisal. See id. at 6-7. In her comments, she charged Mr. Waters with making a "personal" performance evaluation instead of an "objective" one, because Ms. Johnson had filed informal and formal discrimination complaints against him in September 2014. Id. at 6. She also noted that, for both the past two rating periods in which Mr. Waters was her supervisor, she had received a "Commendable" rating from Mr. Waters. Id.
Ms. Johnson filed suit in this Court against the government on May 30, 2015. See Compl. Her complaint brings three "claims for relief": (1) violation of Title VII of the Civil Rights Act of 1964,
In stating her intentional infliction of emotional distress claim, Ms. Johnson's complaint contends that she "has suffered and continues to suffer severe emotional distress as a result of the Library's extreme and outrageous conduct." Id. ¶ 36. In stating her claim for injunctive relief, Ms. Johnson asks the Court "to enjoin the Library from similarly discriminating against its employees," alleges that "[m]ore irreparable harm will result during the pendency of this legal action due to the Library's illegal discriminatory actions against its employees," and argues that "[p]ublic interest will be served if relief is granted." Id. ¶¶ 38-39.
In its pre-answer motion, the Library seeks dismissal of Ms. Johnson's complaint, or, in the alternative, summary judgment in its favor on Ms. Johnson's claims. Mem. P. & A. Supp. Def.'s Mot. Dismiss, or in the Alternative for Summ. J. 1-4 & n.2, ECF No. 8 [hereinafter Def.'s Mem.]. The Library argues for dismissal of Ms. Johnson's Title VII claim and contends that she (1) failed to exhaust administrative remedies, (2) failed to make a prima facie showing of discrimination, (3) failed to show causation, and (4) cannot maintain a hostile work environment claim. Id. at 4-15.
The Court addresses the parties' arguments for each claim in turn, beginning with Ms. Johnson's Title VII claim. For each claim, the Court must determine the proper legal standard before proceeding to the merits.
When, on a motion under Rule 12(b)(6), "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56" and the parties "must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). Here, both parties have submitted evidence outside the pleadings in support of their positions, and they rely on them when discussing Ms. Johnson's Title VII claim. See, e.g., Def.'s Mem. 12 (citing to Ms. Johnson's 2014 performance appraisal when arguing that she failed to show causation); Mem. P. & A. 6, ECF No. 9-1 [hereinafter Pl.'s Mem.] (citing to Mr. Herman's August 27, 2014 memorandum and to Mr. Sweeney's email when responding to the Library's Title VII argument). And though it is improper to convert a Rule
Given that the Library's motion comes before discovery has commenced in this case, the Court pays special heed to the principle that, typically, "summary judgment may not be granted until all parties have had a full opportunity to conduct discovery." United States ex rel. Folliard v. Gov't Acquisitions, Inc., 764 F.3d 19, 25 (D.C.Cir.2014) (internal quotation marks omitted) (quoting Convertino v. U.S. Dep't of Justice, 684 F.3d 93, 99 (D.C.Cir.2012)). This principle is particularly relevant in a Title VII case, where "discovery may even uncover direct evidence of discrimination, thus entirely eliminating the need to prove a prima facie case." Chappell-Johnson v. Powell, 440 F.3d 484, 488-89 (D.C.Cir. 2006). The Court could thus deny the Library's motion for summary judgment on Ms. Johnson's Title VII claims simply because of this case's preliminary posture. But, to ensure that this case is not the atypical one in which pre-discovery summary judgment is proper, the Court will analyze the Library's arguments on their merits, using the legal standard applicable to Rule 56 motions for summary judgment. Cf. Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1032 (D.C.Cir.2003) (explaining that summary judgment "ordinarily" is proper only after discovery (internal quotation marks omitted) (quoting Americable Int'l, Inc. v. Dep't of Navy, 129 F.3d 1271, 1274 (D.C.Cir.1997))).
Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A "material" fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The inquiry under Rule 56 is essentially "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of
The principal purpose of summary judgment is to determine whether there is a genuine need for trial by disposing of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In response, the non-movant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The non-movant may not rest upon mere allegations or denials but must instead present affirmative evidence. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987) (citing Anderson, 477 U.S. at 257, 106 S.Ct. 2505).
In considering a motion for summary judgment, a court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007). All underlying facts and inferences must be analyzed in the light most favorable to the non-movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999).
The Court now turns to the merits of Ms. Johnson's Title VII claim. Title VII declares that "[a]ll personnel actions affecting employees ... in ... the Library of Congress shall be made free from any discrimination based on ... sex...." 42 U.S.C. § 2000e-16(a). This provision extends to Library of Congress employees "the full rights available in the courts as are granted to individuals in the private sector." Loeffler v. Frank, 486 U.S. 549, 558-59, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988) (internal quotation marks omitted) (quoting Chandler v. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976)). These rights include those under Title VII's antiretaliation provision, which "forbids employer actions that `discriminate against' an employee ... because he has `opposed' a practice that Title VII forbids or has `made a charge ... or participated in' a Title VII `investigation, proceeding, or hearing.'" Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 60, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting 42 U.S.C. § 2000e-3(a)).
The three-part McDonnell Douglas burden-shifting framework applies when a Title VII plaintiff offers only indirect evidence of discrimination at summary judgment, which Ms. Johnson does here. Taylor v. Small, 350 F.3d 1286, 1292 (D.C.Cir.2003). See generally Compl. ¶¶ 11-32; Pl.'s Mem. 4-8 (discussing only circumstantial and indirect evidence of discrimination). Under McDonnell Douglas, the plaintiff has the initial burden of production to establish a prima facie case of discrimination; if she does, then the employer must articulate a legitimate, non-discriminatory reason for its action; and if it does, then the plaintiff must receive an opportunity to show that the employer's reason was a pretextual cover for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Although McDonnell Douglas shifts the burden of production between the parties, the plaintiff retains the burden of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407
A plaintiff establishes a prima facie case of disparate-treatment sex discrimination by establishing (1) that she is a member of a protected class, i.e., that she is a woman, (2) that she suffered an adverse employment action, and (3) that the unfavorable action gives rise to an inference of discrimination. See Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007); Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1512 (D.C.Cir.1995). She establishes a prima facie case of retaliation by showing (1) that she opposed a practice made unlawful by Title VII, (2) that her employer took a materially adverse action against her, and (3) that a causal link connects the plaintiff's opposition to the unlawful practice and the materially adverse action. McGrath v. Clinton, 666 F.3d 1377, 1380 & n. 3 (D.C.Cir.2012); Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). For a retaliation claim, the materially adverse action need not be workplace-related or employment-related, but it must be an action that "well might have `dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)). Under either theory of Title VII liability, the plaintiff's burden to establish a prima facie case "is not onerous." Wiley v. Glassman, 511 F.3d 151, 155-56 (D.C.Cir.2007) (per curiam) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); accord Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 n. 2 (D.C.Cir.2008).
The Library's principal argument for summary judgment on Ms. Johnson's sex
For a discrimination claim, an adverse employment action is "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C.Cir.2011) (internal quotation marks omitted) (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009)). The plaintiff must "experience materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Douglas, 559 F.3d at 552 (brackets omitted) (quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir. 2002)). "Objectively tangible harm" tends to "relate to one's work responsibilities and position" and "cause a significant change in employment status." Id. at 552-53 (noting that award or denial of a bonus or pay raise, like hiring, firing, failing to promote, and reassignment with significantly different responsibilities, could show objectively tangible harm because it has a measurable effect on compensation). Adverse employment actions do not encompass "mere idiosyncracies of personal preference" and "[p]urely subjective injuries," such as "dissatisfaction with a reassignment, or public humiliation or loss of reputation." Forkkio, 306 F.3d at 1130-31 (brackets, citations, and internal quotation mark omitted) (quoting Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.1999)).
As one of her alleged adverse employment actions, Ms. Johnson submits that the Library removed Ms. Johnson's supervisory duties over Ms. Drakeford when Mr. Waters told Ms. Johnson that "she was no longer Ms. Drakeford's supervisor." Compl. ¶¶ 19, 24, 31. In cases involving lateral transfers, withdrawal of supervisory duties can be an adverse employment action. See Czekalski v. Peters,
At this time, on the limited evidence available, a reasonable juror could find that the removal of some of Ms. Johnson's supervisory duties caused such a significant change in her employment status that it was an adverse employment action. To be sure, the Library argues that "Ms. Drakeford was not removed as a direct report to Ms. Johnson," and that Mr. Herman's August 27, 2014 memorandum "expressly acknowledged that Ms. Drakeford's performance continued to be within Ms. Johnson's purview." Def.'s Mem. 8. But Mr. Herman's memorandum belies this characterization of the facts; it envisions a very limited role for Ms. Johnson as supervisor to Ms. Drakeford and other supervisees on detail. Contrary to the Library's position, Ms. Johnson would not "receive feedback on Ms. Drakeford's performance during the developmental assignment," id.; she would receive only a one-time "assessment of how [Ms. Drakeford] performed" during her detail "at the end" of the time Ms. Drakeford was on detail with Ms. Haspo, Def.'s Ex. 3, ECF No. 8-3. Nor would Ms. Johnson have responsibility any longer for Ms. Drakeford's sign-in and sign-out timekeeping. See id.; cf. Pl.'s Ex. 9, at 2, ECF No. 9-12 (noting that Ms. Johnson had functioned as a supervisor and timekeeper for "the four previous staff members" who had been detailed to work with Ms. Haspo). Mr. Herman's memorandum implies that, practically speaking, Ms. Johnson ceased to function as Ms. Drakeford's supervisor during the time Ms. Drakeford was on detail. And the memorandum impacted not just Ms. Drakeford, but also any supervisees of Ms. Johnson who would be detailed to Ms. Haspo in the future. See Def.'s Ex. 3 (establishing the reporting structure for all "staff members serving on developmental assignments ... managed by ... Beatriz Haspo," not just the reporting structure for Ms. Drakeford).
The record does not specify exactly how many Library employees Ms. Johnson supervised. It does, however, make clear that supervisory and managerial responsibilities were a major area of responsibility for Ms. Johnson twenty-five percent of her overall performance rating rested on those responsibilities. See Pl.'s Ex. 10, at 2-3, ECF No. 9-13. And whether she succeeded in her supervisory and managerial responsibilities derived, to some extent, from how "[e]ffectively [she] set[] schedules to meet the needs of the division" — i.e., how effectively she managed her supervisees' work and leave time to ensure the Library's goals were met. See id. at 3. With two of Ms. Johnson's supervisees at a time serving detail assignments, and no end date for the detail assignments forecasted, Mr. Herman's memorandum stripped Ms. Johnson of supervisory responsibilities for two supervisees indefinitely. See Pl.'s Ex. 9, at 2 (indicating that Ms. Johnson's supervisees typically went on detail in groups of two); Def.'s Ex. 3 (including no end date for the developmental assignments with Ms. Haspo).
Based on this skeletal record, a reasonable juror could potentially find, on
Given that a reasonable juror could potentially find on a fuller record that the Library took an adverse employment action against Ms. Johnson, a reasonable juror could also proceed to find that Ms. Johnson established each of the three elements of a prima facie case of sex discrimination: First, she is a woman, and therefore a member of a protected class. See Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1512 (D.C.Cir.1995). Second, Ms. Johnson's loss of supervisory duties can be the requisite adverse employment action. Third, a reasonable juror could infer discrimination from the Library's actions because, for Ms. Johnson's supervisees on detail, the Library transferred Ms. Johnson's timekeeping responsibilities to Rohn Roaché, a male supervisor. See Def.'s Ex. 3, ECF No. 8-3. See generally Czekalski, 475 F.3d at 366 ("[A] plaintiff can satisfy the third prong of the prima facie test ... by demonstrating that she was treated differently from similarly situated employees who are not part of the protected class...." (internal quotation mark omitted) (quoting George v. Leavitt, 407 F.3d 405, 412 (D.C.Cir.2005))).
To rebut this prima facie showing of discrimination, the Library has offered no legitimate, non-discriminatory reason for the change in Ms. Johnson's supervisory duties. See Def.'s Mem. 5-12.
Ms. Johnson's complaint names a lower rating on her performance appraisal as another adverse employment action the Library took against her. See Compl. ¶¶ 24, 31. The D.C. Circuit has more than once noted that "performance evaluations ordinarily are not actionable under Title VII" because the harm they cause is often speculative. Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009); see Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) (explaining that poor performance evaluations should not be considered adverse actions when they do not affect the employee's grade or salary); Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir.2001) ("The result of an evaluation is often speculative, making it difficult to remedy."). But, more recently, the Circuit has cautioned that even an unchanged performance evaluation could be an adverse employment action: "An employee whose volume and quality of work demonstrably improved, or who had significant difficulties at work in the prior period that she had overcome, might fairly deserve a significantly improved rating and would be materially harmed if discrimination prevented appropriate recognition." Walker v. Johnson, 798 F.3d 1085, 1095 (D.C.Cir.2015). In determining whether a performance evaluation is actionable under Title VII, therefore, the critical question is whether the evaluation "caused a significant, tangible harm." Id.
Ms. Johnson has not produced evidence showing that her lowered performance rating caused "significant, tangible harm." Id. Although the evidence suggests that Ms. Johnson's overall rating of "Successful" on her 2015 performance appraisal is lower compared to her past ratings of "Commendable," see Pl.'s Ex. 7, at 6, ECF No. 9-10, Ms. Johnson has not alleged that the lower rating will lead to economic harm, or even decreased responsibilities on the job. Nor has she alleged that her "volume and quality of work demonstrably improved," or that she "had significant difficulties at work in the prior period that she had overcome." Walker, 798 F.3d at 1095. Indeed, Ms. Johnson's opposition brief does not even advance the argument that her lower performance appraisal rating is an adverse employment action cognizable in Title VII sex discrimination. See Pl.'s Mem. 4-11 (discussing Ms. Johnson's performance appraisal in the context of her retaliation allegations only). On the record presented, therefore, Ms. Johnson's lowered rating is not an adverse employment action that can ground a prima facie sex discrimination claim. Thus, to the extent that Ms. Johnson's sex discrimination claim is based on her lowered performance rating, that claim is dismissed. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008) (indicating that, even though a plaintiff need not establish a prima facie case to defend against a motion for summary judgment, she still must show that she "has suffered an adverse employment action").
The Court now turns to the Library's arguments about Ms. Johnson's Title VII retaliation allegations. As the Library did
As one element of a prima facie case of retaliation under Title VII, the plaintiff must show that her employer took a materially adverse action against her. McGrath v. Clinton, 666 F.3d 1377, 1380 & n. 3 (D.C.Cir.2012); Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). Although an adverse action is a critical element of the prima facie case for both Title VII discrimination and Title VII retaliation, "Title VII's substantive [antidiscrimination] provision and its antiretaliation provision are not coterminous" in the set of employer actions they forbid. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); see also id. at 61-62, 126 S.Ct. 2405 (juxtaposing the two provisions and observing that, though the substantive provision's text "limit[s] the scope of that provision to actions that affect employment or alter the conditions of the workplace," "[n]o such limiting words appear in the antiretaliation provision"). The Court must therefore analyze whether, separate from Ms. Johnson's prima facie discrimination case, Ms. Johnson's alleged adverse actions suffice for a prima facie retaliation case. As before, the Court begins with general principles before analyzing whether Ms. Johnson's alleged adverse employer actions can sustain a prima facie case of retaliation.
"The scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm." Id. at 67, 126 S.Ct. 2405. It does not, however protect an employee "from all retaliation" — only "from retaliation that produces an injury or harm." Id. Along these lines, Title VII's antiretaliation provision protects employees from materially adverse harms, which might have "dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68, 126 S.Ct. 2405 (internal quotation marks omitted) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir. 2006)). Because the harm must be "material," "petty slights, minor annoyances, and simple lack of good manners" do not rise to the level of materially adverse employer actions. See id.
But no bright line separates materially adverse employer actions from immaterial actions: "Context matters." Id. at 69, 126 S.Ct. 2405. An "act that would be immaterial in some situations is material in others." Id. (internal quotation marks omitted) (quoting Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 661 (7th Cir. 2005)). Nonetheless, determining whether an action is materially adverse "does not require consideration ... of the severity of the underlying act of discrimination to which the employee objected, or ... of the courage that [a] particular employee demonstrated by reporting it (and hence of her asserted imperviousness to acts of retaliation)." Steele v. Schafer, 535 F.3d 689, 696 (D.C.Cir.2008).
Although Ms. Johnson's filings are not models of clarity, one may infer from her complaint that she views the removal
The Court must therefore assess based on the extremely limited record before it whether the removal of Ms. Johnson's supervisory duties is a materially adverse action for purposes of a Title VII retaliation claim. As discussed earlier, a reasonable juror could find that the change in supervisory duties was an adverse employment action in a discrimination case. See supra Part III.A.3.a. Consequently, a reasonable juror could also find that, in a retaliation case, the change in supervisory duties was a materially adverse action. After all, "[t]he scope of the antiretaliation provision extends beyond" the scope of Title VII's antidiscrimination provision. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). And given that Ms. Johnson lost supervisory responsibilities for two supervisees indefinitely, in a year when twenty-five percent of her overall performance rating depended on how well she performed her supervisory responsibilities, the lost supervisory responsibilities "well might have `dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Id. at 68, 126 S.Ct. 2405 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)). Thus, based on this limited record, the Court concludes that a reasonable juror could find that Ms. Johnson has established the materially adverse action necessary to maintain a prima facie retaliation claim under Title VII. But the Court's view could change based on a fuller record.
Ms. Johnson also alleges that the lower rating on her 2015 performance appraisal was a retaliatory act. See Compl. ¶ 24 (contending that "a lower rating on Johnson's Performance Appraisal" was also "backlash from David Waters"). But just as the lower performance rating was not an adverse personnel action that could sustain Ms. Johnson's prima facie discrimination case, it also is not cognizable as a materially adverse action that can sustain her prima facie retaliation case.
Although the law articulates the adverse actions required for prima facie discrimination and retaliation cases differently, see Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61-67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), both types of adverse action must cause a "significant, tangible harm" to comprise part of a prima facie case. See Walker v. Johnson, 798 F.3d 1085, 1095 (D.C.Cir.2015) (explaining that "[w]hether an assessment is adverse" hinges on "whether discrimination or retaliation caused a significant, tangible harm" (emphasis added)). As the Court stated earlier, Ms. Johnson lacks evidence of "significant, tangible harm" flowing from her lower rating. See supra Part III.A.3.b. The rating thus is not a materially adverse action and is not cognizable as Title VII retaliation.
Nonetheless, because the removal of Ms. Johnson's supervisory duties is cognizable
To reiterate, a plaintiff establishes a prima facie case of retaliation by showing (1) that she opposed a practice made unlawful by Title VII, (2) that her employer took a materially adverse action against her, and (3) that a causal link connects the plaintiff's opposition to the unlawful practice and the materially adverse action. McGrath v. Clinton, 666 F.3d 1377, 1380 & n. 3 (D.C.Cir.2012); Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). If the plaintiff's opposition activity and the employer's materially adverse action occurred close in time, then their temporal proximity can support an inference of causation. Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C.Cir.2012). Although a two-month gap can support an inference of causation, id. at 1358, and a twenty-month gap suggests no causality, Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam), the Court must evaluate "the specific facts of each case to determine whether inferring causation is appropriate," Hamilton, 666 F.3d at 1358.
The Library argues that Ms. Johnson cannot show temporal proximity because "the retaliatory act occur[red]
Title VII's antiretaliation provision protects employee opposition to any practice that Title VII made unlawful. See 42 U.S.C. § 2000e-3(a). The Supreme Court has made clear that the opposition need not be the initiation of a written discrimination complaint; it can be more informal, such as "standing pat ... by refusing to follow a supervisor's order to fire a junior worker for discriminatory reasons." Crawford v. Metro. Gov't, 555 U.S. 271, 277, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009). And the Supreme Court has noted that "employees
Here, therefore, Title VII's antiretaliation provision likely protected Ms. Johnson's opposition to what she perceived to be disparate treatment of her female and male supervisees, expressed through her conversations with her supervisors on June 20, 2014, August 6, 2014, and August 13, 2014. See Compl. ¶¶ 16-17 (stating that, on June 20, 2014, Ms. Johnson spoke with Mr. Waters about Ms. Drakeford's treatment); id. ¶ 19 (stating that, on August 6, 2014, Ms. Johnson met with Mr. Herman and Mr. Waters about Ms. Drakeford's treatment); id. ¶ 22 (stating that, on August 13, 2014, Ms. Johnson told Mr. Sweeney about Ms. Drakeford's treatment). At least, for purposes of this motion, the Library does not argue otherwise. Even if, as the Library contends, Mr. Waters and Mr. Herman were not favoring Ms. Johnson's female supervisees, "opposition activity may be protected even though the employer's practices do not amount to a violation of Title VII" when "the employee-plaintiff... [has] a good faith and reasonable belief that the practices are unlawful." Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 24 (D.C.Cir.2013); cf. Def.'s Mem. 14-15 (arguing that evidence contradicts Ms. Johnson's allegation that her supervisors favored her female supervisees over her male supervisees). No evidence in the record indicates that Ms. Johnson lacked a reasonable belief that her supervisors' practices were unlawful; her submissions, which contain detailed explanations about how and why her views arose, show Ms. Johnson's consistent beliefs about her supervisees' disparate treatment based on their sex. See generally Pl.'s Ex. 1, ¶ 14, ECF No. 9-4 (juxtaposing treatment of Ms. Johnson's female and male supervisees); Pl.'s Ex. 4, at 2, ECF No. 9-7 (same); Pl.'s Ex. 9, at 1-2, ECF No. 9-12 (same). Thus, for purposes of this motion, it is undisputed that Ms. Johnson's communications with her supervisors on June 20, 2014, August 6, 2014, and August 13, 2014 were all opposition activities Title VII protected.
Having established that Ms. Johnson engaged in protected opposition activities in June 2014 and early August 2014, the temporal proximity analysis becomes simple. As discussed above, Ms. Johnson has preliminarily established a materially adverse action for her prima facie retaliation case: the removal of her supervisory duties over supervisees on detail with Ms. Haspo. See supra Part III.A.4.a.i. That removal happened, in part, on August 6, 2014, when Mr. Waters told Ms. Johnson that she was no longer Ms. Drakeford's supervisor. Compl. ¶ 19; Pl.'s Ex. 1, ¶ 14; Pl.'s Ex. 4, at 2. And, on August 27, 2014, Mr. Herman's memorandum extended Mr. Waters's decision to remove Ms. Johnson's supervisory duties over Ms. Drakeford to all of Ms. Johnson's supervisees on detail. See Pl.'s Ex. 8, ECF No. 9-11.
Given this timeline, Ms. Johnson's protected opposition activities all came shortly before employer actions that removed some of her supervisory duties. First, Ms. Johnson's initial June 20, 2014 conversation with Mr. Waters about perceived disparate treatment, see Compl. ¶¶ 16-17, occurred about two months before she lost supervisory duties on August 6, 2014 and August 27, 2014. Second, her August 6, 2014 statements expressing concern about the disparate treatment immediately preceded Mr. Waters's statement removing Ms. Johnson's supervisory duties over Ms. Drakeford that very day. Id. ¶ 19. Third, Ms. Johnson's August 13, 2014 email to Mr. Sweeney about the situation occurred just two weeks before Mr. Herman's August 27, 2014 memorandum removing her
Ms. Johnson has thus made out each of the three elements of a prima facie retaliation case: (1) she opposed her supervisors' disparate treatment of her female and male supervisees, (2) her supervisors removed her supervisory duties over supervisees on detail, and (3) these two sets of actions occurred close enough in time that a reasonable juror could infer retaliation. In response to her prima facie case, the Library has offered no legitimate, non-discriminatory reason for the alleged retaliation. See Def.'s Mem. 5-12. On the record as it stands now, a reasonable juror could find at trial that Ms. Johnson has proven her retaliation claim. Because "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," summary judgment for the Library on Ms. Johnson's retaliation claim based on the removal of her supervisory duties is not warranted at this time. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Ms. Johnson's complaint also brings a common law tort claim for intentional infliction of emotional distress. See Compl. ¶¶ 33-36. The Library argues — correctly — that Title VII provides the exclusive remedy for this claim and so the claim must be dismissed. See Def.'s Mem. 15-16. Before addressing the Library's argument, however, the Court must specify the legal standard applicable to this portion of the Library's motion.
Where the Library's briefs address Ms. Johnson's claim for intentional infliction of emotional distress, they do not cite "matters outside the pleadings." Fed. R. Civ. P. 12(d); see Def.'s Mem. 15-18; Def.'s Reply Mem. 9. Federal Rule of Civil Procedure 12(d) accordingly does not require the Court to treat the Library's motion, where it argues to dismiss Ms. Johnson's emotional distress claim, as a motion for summary judgment. See Fed. R. Civ. P. 12(d).
Having determined that the Library's motion, as it relates to Ms. Johnson's emotional distress claim, is a motion to dismiss, the Court must decide which legal standard to apply: the one for motions under Rule 12(b)(1) arguing lack of subject-matter jurisdiction, or the one for motions under Rule 12(b)(6) arguing the plaintiff's failure to state a claim. See Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(6). The Library brings its motion under both Rules. See Def.'s Mot. Dismiss 1 ("Defendant... respectfully moves the Court, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, for an order dismissing Plaintiff's Complaint...."). The citation to both rules makes sense here because the Library's motion brings two alternative arguments attacking Ms. Johnson's emotional distress claim: (1) Title VII preempts her claim, because it provides the exclusive remedy for federal employees bringing employment discrimination claims, Def.'s Mem. 15-16, and (2) even if Title VII did not preempt her claim, the Court lacks jurisdiction, because sovereign immunity shields the federal government from suit and Ms. Johnson's claim does not fall within the Federal Tort Claims Act (FTCA)'s waiver of sovereign
The Library's first argument is properly analyzed under Rule 12(b)(6); the second under Rule 12(b)(1). See King v. Holder, 950 F.Supp.2d 164, 170, 173 (D.D.C.2013) (dismissing under Rule 12(b)(6) "common law tort claims ... based on the exact same conduct as the Plaintiff's Title VII claims"); Clayton v. District of Columbia, 931 F.Supp.2d 192, 200 (D.D.C.2013) ("If sovereign immunity has not been waived, a claim is subject to dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction."). Because the Court finds the first argument sufficient to dismiss Ms. Johnson's claim, see infra Part III.B.2, the Court applies only the Rule 12(b)(6) legal standard.
In considering a motion to dismiss under Rule 12(b)(6), the Court presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C.2000). A Rule 12(b)(6) motion does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Brewer v. District of Columbia, 891 F.Supp.2d 126, 130 (D.D.C.2012).
Nevertheless, "[t]o 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955 (citations and footnote omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A court need not accept a plaintiff's legal conclusions as true, see id. nor must a court presume the veracity of the legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
The Library moves to dismiss Ms. Johnson's emotional distress claim because "Title VII preempts" it. Def.'s Mem. 15-16. Title VII does "provide[] the exclusive judicial remedy for claims of discrimination in federal employment." Brown v. GSA, 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); accord Ramey v. Bowsher, 915 F.2d 731, 734 (D.C.Cir.1990) (per curiam); King v. Holder, 950 F.Supp.2d 164, 173 (D.D.C.2013). Hence, when a common law tort claim arises out of the same conduct as the plaintiff's Title VII claim, Title VII preempts that claim.
Ms. Johnson's tort claim does not allege such a harm. In her complaint, Ms. Johnson's emotional distress claim clearly derives from her discrimination allegations: It incorporates the same facts as those underlying Ms. Johnson's Title VII claim. Compl. ¶ 33. And, without alleging additional facts, it argues that because "[t]he Library acted intentionally in conspiring to discriminate against its male employees and retaliate against [Ms.] Johnson," Ms. Johnson "has suffered and continues to suffer severe emotional distress." Id. ¶¶ 34-36. In her opposition brief, Ms. Johnson does not change the position taken in her complaint: it repeats two sentences of the complaint, Compl. ¶¶ 34-35, before concluding that Ms. Johnson's "emotional suffering is the direct result of Defendant's [discriminatory and retaliatory] conduct." Pl.'s Mem. 9. In sum, Ms. Johnson has not, anywhere in her filings, alleged an assault or other facts "actionable apart from Title VII because [they are] beyond the meaning of discrimination." Boyd, 273 F.Supp.2d at 96. Her emotional distress claim derives completely from the Library's alleged Title VII violations, and thus "[a]ny emotional injuries" arising from those violations "are subsumed within Title VII." Id. Because Title VII provides a remedy for Ms. Johnson's emotional injuries, it preempts her common law emotional distress claim. See generally 42 U.S.C. § 2000e-5(g)(1) (allowing the Court to award "equitable relief as the court deems appropriate" to redress "an unlawful employment practice" under Title VII); id. § 2000e-16(a), (d) (making § 2000e-5 applicable to civil actions against the Library of Congress). The Court will therefore grant the Library's motion to dismiss that common law tort claim.
Ms. Johnson styles the last count of her complaint as a claim for "Injunctive Relief." See Compl. ¶¶ 37-39. Without citing to documents beyond the complaint, the Library urges dismissal of this last count because injunctive relief is "not usually available in employment cases," "is an extraordinary remedy," and "must be sparingly granted." Def.'s Mem. 18 (quoting Robinson-Reeder v. Am. Council on Educ., 626 F.Supp.2d 11, 14 (D.D.C.2009)). Because the Library's argument does not reference "matters outside the pleadings," see Fed. R. Civ. P. 12(d), and does not argue that the Court lacks subject-matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), the Court analyzes this argument under the legal standard for motions to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(b)(6); supra Part III.B.1 (articulating the Rule 12(b)(6) standard of review).
Although the Library contends that Ms. Johnson "shows no basis for this extraordinary relief she requests" in her third claim, Def.'s Mem. 18, the Court chooses to dismiss the claim for a more basic reason: "Injunctive relief ... is not a freestanding cause of action, but rather
Because, based on the skeletal record currently before it, the Court concludes that a reasonable jury could return a verdict in Ms. Johnson's favor on her Title VII claim based on sex discrimination or retaliation with respect to the removal of certain supervisory duties, the Court denies the Library summary judgment on Ms. Johnson's first claim for relief, asserted in Count I of her complaint. See Compl. ¶¶ 26-32. But because Ms. Johnson's other claims are not claims upon which relief may be granted, the Court dismisses Ms. Johnson's claims for relief concerning her performance appraisal, asserted in Count I of her complaint, as well as her second and third claims for relief, asserted in Counts II and III of her complaint. See Compl. ¶¶ 33-39.
For the foregoing reasons, the Library's motion to dismiss, or, in the alternative, for summary judgment (ECF No. 8) is
Because the Court will not enter summary judgment on all of Ms. Johnson's Title VII claims at this time, the Court need not address the merits of any hostile work environment allegations. The Court does note, however, that, if Ms. Johnson's Title VII claim were solely a hostile work environment claim, she would have failed to establish a prima facie case. Ms. Johnson's complaint and evidence do not allege that she was a victim of sexual harassment, nor do they develop many of the elements of a prima facie hostile work environment case. See, e.g., Compl. ¶¶ 11-32; Pl.'s Ex. 9, at 1-2, ECF No. 9-12. See generally Davis, 275 F.3d at 1122-23 (explaining that a plaintiff establishes a prima facie hostile work environment case by showing that (1) she is a member of a protected class; (2) she received unwelcome sexual harassment; (3) the harassment was because of her sex; (4) the harassment unreasonably interfered with her work performance and created an intimidating, hostile, or offensive work environment; and (5) respondeat superior liability exists).
