Teliska v. Napolitano ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
KATHERINE A. TELISKA, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-2422 (RWR)
)
JANET NAPOLITANO, )
)
Defendant. )
_____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff Katherine A. Teliska filed this action against her
former employer, the Secretary of the Department of Homeland
Security (“DHS”), under Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e et seq., alleging that the Secret Service,
a DHS agency, subjected her to a hostile work environment in
retaliation for her complaining about sexual harassment.
DHS moves under Federal Rule of Civil Procedure 12(b)(6) to
dismiss Teliska’s complaint for failure to state a claim for
which relief can be granted. Because Teliska’s complaint pleads
a plausible claim of retaliatory hostile work environment, DHS’s
motion will be denied.
BACKGROUND
In February 2006, Teliska lived in Odenton, Maryland and
worked as an Executive Officer for Pentagon official Maxie
McFarland. Teliska applied through the Secret Service’s
Baltimore office for a position as a Secret Service Special Agent
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(“SA”). (Compl. ¶¶ 8-9.) SA Sean McCarthy was Teliska’s point
of contact for interviews and other application activities with
the Secret Service. McCarthy conducted Teliska’s initial
application interview in Baltimore. (Id. ¶¶ 10-12.) Teliska
alleges that on the day of the interview, McCarthy told her he
was attracted to her, asked her to refrain from applying to the
Secret Service because McCarthy would not be able to date an
applicant, and asked her to spend the following weekend with him
at his condominium in New York. Teliska declined McCarthy’s
invitation (id. ¶¶ 17-20), and later informed McFarland of
McCarthy’s inappropriate advances (id. ¶¶ 28).
In the Spring of 2006, McFarland instructed a colleague to
contact Secret Service SA Tom Armis and complain about McCarthy’s
harassment of Teliska. (Id. ¶ 29.) According to the complaint,
as a result of McFarland’s intervention, the Secret Service
investigated McCarthy’s harassment of Teliska, and eventually
removed McCarthy from Teliska’s application file as a recruiter.
(Id. ¶¶ 32-33.) Later in 2006, Teliska was interviewed by a
panel of Secret Service agents. During the panel interview,
Special Agent in Charge Ed Lugo informed Teliska that his office
was composed primarily of men, and asked whether that should
preclude him from hiring her “since [Teliska] obviously [had] a
‘sting’ out for men[.]” (Id. ¶¶ 38-40.)
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In September 2006, the Secret Service hired Teliska to begin
work in October 2006. (Id. ¶ 46.) According to Teliska, from
the month she was hired through the beginning of December 2008,
the Secret Service continuously retaliated against her for
objecting to McCarthy’s behavior. (Id. ¶ 47.) Teliska alleges
that even though McCarthy had told her she would work in the
Washington, D.C. region where she lived, the agency assigned her
to New York and denied her a posting near Washington, D.C.,
falsely claiming no positions were available there (id. ¶¶ 48-49,
57); that the agency forced her to in-process in New York instead
of following the normal procedure of having in-processing in the
office of recruitment (Baltimore), imposing significant financial
hardship on her (id. ¶¶ 50-53, 58); that her duties were
reassigned during the United Nations General Assembly session in
August 2008 in a manner that reduced her overtime hours; that the
Secret Service denied her request for a hardship transfer to
Washington D.C. in September 2008 (id. ¶¶ 69-79); that in
November 2008 her supervisor who was good friends with McCarthy
de-selected her for a Washington, D.C. assignment she requested
because she sought to drive there in her personal car rather than
in the agency vehicle he demanded she drive that she could not
have used for personal errands, even though her replacement was
not required to drive the agency vehicle (id. ¶¶ 83-90); that
also in November 2008 her New York office never officially
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notified her of her assignment by headquarters to an imminent
overseas Presidential protection detail which caused her to
nearly miss the departing military plane (id. ¶¶ 94-103); and
that the Secret Service denied her November 22, 2008 request to
protect Vice President-elect Biden on Thanksgiving and required
other agents, who had not volunteered, to work that detail (id.
¶¶ 104-105).
Teliska alleges that in November of 2008, she asked to speak
with John McQuade, Assistant to the Special Agent in Charge
(“ATSAIC”) in New York about “a potential EEO issue.” (Id.
¶¶ 91-92.) On December 19, 2008, she contacted an EEO officer to
complain of sex discrimination and sexual harassment, and to
request counseling with an Agency EEO specialist. (Id. ¶ 106.)
According to Teliska, in January 2009, Evyenia Poumpouras, a
special agent supervised by McCarthy, falsely accused Teliska of
sleeping on the job and losing track of the whereabouts of the
protectee to whom she was assigned. Even though the Special
Agent In Charge of the New York office told Teliska that she was
not responsible for the incident, ATSAIC McQuade removed Teliska
from her duties as a midnight shift agent for the protectee and
moved her to midnight response for counterfeit money arrests.
The ATSAIC informed Teliska that her reassignment was based upon
Poumpouras’s accusations. Teliska alleges that her reassignment
was humiliating and raised unfounded questions about her
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competence and professionalism. (Id. ¶¶ 112-125.) Almost
immediately after she was reassigned, the supervisor of the
counterfeit squad accused Teliska of not following appropriate
protocol for the midnight response unit. (Id. ¶¶ 130-131.)
On February 4, 2009, Teliska gave a written statement to
Inspector Eric Whatley and ATSAIC Kim Cheatle detailing the
actions that Teliska considered to be retaliation against her for
her complaint against McCarthy. (Id. ¶¶ 134-135.) Inspector
Whatley told Teliska that her complaint would be forwarded to the
EEO office, but asked Teliska whether she merely had a personal
conflict with Poumpouras. (Id. ¶¶ 133, 136.) The Secret Service
granted Teliska a transfer to the Washington D.C. office later
that month, since she married a Secret Service agent living
there. (Id. ¶ 141.) However, rather than continue her
assignment to an Electronic Crimes Squad for which she had the
requisite special training, the Secret Service assigned her to
the Washington Investigative Team and assigned to the Electronic
Crimes Squad agents who did not have the requisite special
training she had. (Id. ¶¶ 142-143.)
On March 13, 2009, Teliska filed a formal EEO discrimination
complaint with the DHS EEO office, alleging claims of sex
discrimination and reprisal for having engaged in prior EEO
activity. (Id. ¶ 181.) Teliska left the Secret Service later
that month. (Id. ¶ 144.) In November 2009, the DHS issued a
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final agency decision (“FAD”) dismissing Teliska’s EEO complaint
as untimely. (Id. ¶¶ 191-193.)
Teliska filed this action on December 23, 2009. Teliska’s
complaint alleges one count of discriminatory hostile work
environment in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-3(a). (Id. ¶¶ 151-166.) The DHS has
moved to dismiss Teliska’s complaint, arguing that it failed to
sufficiently allege a claim of retaliatory hostile work
environment because her hostile work environment claim consists
of discrete acts of retaliation, for some of which Teliska failed
to exhaust her administrative remedies, and the remainder of
which are insufficient as a matter of law to constitute a claim
of retaliatory hostile work environment. Teliska opposes the
motion, arguing that she timely pursued administrative relief and
adequately pled a claim of retaliatory hostile work environment.
DISCUSSION
“A complaint can be dismissed under Federal Rule of Civil
Procedure 12(b)(6) when a plaintiff fails to state a claim upon
which relief can be granted.” Maib v. FDIC, 771 F. Supp. 2d 14,
17 (D.D.C. 2011) (quoting Peavey v. Holder, 657 F. Supp. 2d 180,
185 (D.D.C. 2009) (citing Fed. R. Civ. P. 12(b)(6))). “A Rule
12(b)(6) motion to dismiss tests the legal sufficiency of a
complaint.” Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d
123, 129 (D.D.C. 2009).
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To survive a motion to dismiss, a complaint must
contain sufficient factual matter, acceptable as true,
to “state a claim to relief that is plausible on its
face.” . . . A claim has facial plausibility when the
plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is
liable for the misconduct alleged.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). The
complaint must be construed in the light most favorable to the
plaintiff and “the court must assume the truth of all
well-pleaded allegations.” Warren v. District of Columbia, 353
F.3d 36, 39 (D.C. Cir. 2004).
“Under Federal Rule of Civil Procedure 8(a)(2), a claim need
only contain ‘a short and plain statement of the claim showing
that the pleader is entitled to relief.’” Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000) (quoting Fed.
R. Civ. P. 8(a)(2)). Plaintiffs filing employment discrimination
claims are not subject to heightened pleading standards,1 see
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (cited
approvingly in Twombly, 550 U.S. at 569-570), and they are not
required to “plead law or match facts to every element of a legal
1
See Sparrow, 216 F.3d at 1118 (“We understand why district
courts may want to alleviate their crowded dockets by disposing
quickly of cases that they believe cannot survive in the long
run. But . . . this may not be accomplished by employing
heightened pleading standards . . . . Rather, federal courts and
litigants must rely on summary judgment and control of discovery
to weed out unmeritorious claims sooner rather than later.”)
(internal quotation marks omitted).
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theory.” Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000)
(internal quotation and citation omitted). Historically,
[t]he D.C. Circuit has long recognized the ease with
which a plaintiff claiming employment discrimination
can survive a Rule 12(b)(6) motion to dismiss for
failure to state a claim upon which relief may be
granted. “Because racial discrimination in employment
is a claim upon which relief can be granted, . . . ‘I
was turned down for a job because of my race’ is all a
complaint has to state to survive a motion to dismiss
under [Rule] 12(b)(6).”
Rouse v. Berry, 680 F. Supp. 2d 233, 235 (D.D.C. 2010) (quoting
Potts v. Howard Univ. Hosp., 258 Fed. Appx. 346, 347 (D.C. Cir.
2007)). All that is required of a complaint is that it provide
enough factual heft to show a plausible entitlement to relief,
that is, that it contain “enough facts to [nudge] a claim to
relief . . . across the line from conceivable to plausible[.]”
Twombly, 550 U.S. at 570.
“The elements of a claim of retaliation are that the
plaintiff engaged in a statutorily protected activity, the
employer treated the plaintiff adversely, and a causal connection
existed between the two.” Winston v. Clough, 712 F. Supp. 2d 1,
11 (D.D.C. 2010) (citing Wiley v. Glassman, 511 F.3d 151, 155
(D.C. Cir. 2007); Rochon v. Gonzales, 438 F.3d 1211, 1216-20
(D.C. Cir. 2007); Iweala v. Operational Techs. Servs., 634 F.
Supp. 2d 73, 83 (D.D.C. 2009) (internal quotation marks
omitted)). “Statutorily protected activities include the filing
of [EEO] complaints and the initiation of litigation to vindicate
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claims of employment discrimination or retaliation.” Shipman v.
Vilsack, 692 F. Supp. 2d 113, 116 (D.D.C. 2010) (quoting Baloch
v. Norton, 517 F. Supp. 2d 345, 354 (D.D.C. 2007) (citing Forkkio
v. Powell, 306 F.3d 1127, 1131-32 (D.C. Cir. 2002)).
“In this circuit, a hostile work environment can amount to
retaliation under Title VII.” Hussain v. Nicholson, 435 F.3d
359, 366 (D.C. Cir. 2006) (citing Singletary v. Dist. of
Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003)). To state a
hostile work environment claim, Teliska must allege that she
suffered harassment because of her protected activity, that her
employer knew or should have known of the alleged harassment and
failed to take remedial action, and that the hostile environment
interfered with her work. Winston, 712 F. Supp. 2d at 12 (citing
King v. Pierce Assocs., 601 F. Supp. 2d 245, 248 (D.D.C. 2009)
(citing Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1122-23
(D.C. Cir. 2002)); Roberson v. Snow, 404 F. Supp. 2d 79, 97 n.8
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993);
Faragher v. Boca Raton, 524 U.S. 775, 788 (1998)). “A hostile
work environment exists when ‘the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment[.]’” Roberson, 404 F. Supp. 2d at 97 n.8.
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DHS argues that Teliska failed to exhaust her administrative
remedies for all of the discrete incidents that she cites to
support her claim of hostile work environment that occurred
before October 20, 2008, which is 45 days before the FAD suggests
Teliska first sought counseling.2 (Def.’s Mem. in Supp. of
Def.’s Mot. to Dismiss (“Def.’s Mem.”) at 8-12.) However, a
“hostile work environment claim . . . ‘is composed of a series of
separate acts that collectively constitute one unlawful
employment practice.’” Smith-Thompson v. Dist. of Columbia, 657
F. Supp. 2d 123, 131 (D.D.C. 2009) (quoting Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 117 (2002) and 42 U.S.C.
§ 2000e-5(e)(1)). “Unlike a claim premised on discrete acts of
discrimination, a hostile work environment claim cannot be
reduced to a single action on a single day because ‘[its] very
2
“Before filing a Title VII suit, a federal employee must
timely pursue her administrative remedies, following the
requirements set forth in 29 C.F.R. § 1614.” Hines v. Bair,
594 F. Supp. 2d 17, 22 (D.D.C. 2009). “If a plaintiff believes
that she has been unlawfully discriminated against, ‘she must
consult an EEO counselor in an effort to resolve the situation
informally.’” Id. (citing 29 C.F.R. § 1614.105(a)). This
contact with the EEO counselor must occur within 45 days of the
alleged discriminatory incident. Id. (citing 29 C.F.R.
§ 1614.105(a)(1)). If informal counseling fails to resolve the
grievance, the employee then has 15 days from when the employee
receives notice that counseling has ended to file a written
complaint. See Chandler v. Bernanke, 531 F. Supp. 2d 193, 196
(D.D.C. 2008); 29 C.F.R. § 1614.106(b). After filing a written
complaint, the employee may file a civil action once the agency
issues an adverse final decision or 180 days elapse without a
decision, whichever happens first. See 42 U.S.C. § 2000e-16(c).
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nature involves repeated conduct’ and it is based ‘on the
cumulative effect of individual acts.’” Smith-Thompson, 657 F.
Supp. 2d at 131 (quoting Morgan, 536 U.S. at 115). For a hostile
work environment claim, “[p]rovided that an act contributing to
the claim occurs within the filing period, the entire time period
of the hostile environment may be considered by a court for the
purposes of determining liability.” Smith-Thompson, 657 F. Supp.
2d at 131 (quoting Morgan, 536 U.S. at 115). DHS does not
dispute that at least some acts occurred within the filing period
(Def.’s Mem. at 15), so even if discrete acts Teliska complained
of were not administratively exhausted and could not support
stand-alone claims, they “may be considered as incidents
supporting the retaliatory hostile work environment claim.”
Graham v. Gonzalez, Civil Action No. 03-1951 (RWR), 2005 WL
3276180, at *24 (D.D.C. September 30, 2005).
DHS also argues that the remaining incidents cited by
Teliska fail to rise to the level necessary to support a hostile
work environment claim, and that Teliska’s complaint should be
dismissed as an impermissible attempt to “bootstrap” unexhausted,
discrete acts of discrimination into a retaliatory hostile work
environment claim. (Def.’s Mem. at 13-24.) However, with all
reasonable inferences drawn in her favor, her complaint contains
enough facts to nudge her claim across the line from conceivable
to plausible. Teliska alleges as protected activities that she
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engaged in, at minimum, reporting McCarthy’s misconduct to
McFarland in 2006,3 asking the ATSAIC in November 2008 for an
appointment concerning a potential EEO issue, and initiating the
EEO proceeding in December 2008. Teliska alleges as evidence of
pervasive discriminatory abuse that the Secret Service placed her
in a geographic location both to in-process and to work that was
punitive for her, denied her a hardship relocation and a
Washington D.C. assignment, unreasonably denied her overtime
opportunities that she sought to help offset the draining cost of
her adverse geographic location, caused her nearly to fail to
report for a Presidential protection assignment, damaged her
professional standing by removing her from a protection
assignment based upon false accusations of misconduct, and barred
her assignment to a special unit for which she was qualified
while assigning others to it who were unqualified. Teliska’s
complaint alleges that much of this purported harassment was
causally connected to her protected activity because it was
perpetrated by friends of McCarthy, the SA she complained about
in her initial complaint to McFarland. (Compl. ¶¶ 82, 112, 127-
128.) “A plaintiff alleging retaliation faces a low hurdle at
3
Because DHS does not challenge that Teliska’s reporting of
McCarthy’s behavior to McFarland was a protected activity (Def.’s
Mem. at 22-23), this opinion will assume without deciding that
such activity was indeed protected. See CSX Transp., Inc. v.
Commercial Union Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986);
Felter v. Salazar, 679 F. Supp. 2d 1, 2 n.2 (D.D.C. 2010).
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the motion to dismiss stage[.]” Winston, 712 F. Supp. 2d at 11
(citing Rochon, 438 F.3d at 1219-1220); see also Ali v. Dist. of
Columbia, 697 F. Supp. 2d 88, 92 (D.D.C. 2010) (denying motion to
dismiss the plaintiff’s hostile work environment claim even
though “it [was] unlikely that [the plaintiff’s] claims of
discrimination will ultimately prove meritorious”); Vance v.
Chao, 496 F. Supp. 2d 182, 185, 187 (D.D.C. 2007) (citing
Twombly, and denying a motion to dismiss, stating that at the
motion to dismiss stage, “[the] plaintiff can meet her prima
facie [sic] burden simply by alleging that the adverse actions
[that were supported by facts in her complaint] were caused by
her protected activity”); Rhodes v. Napolitano, 656 F. Supp. 2d
174, 187 (D.D.C. 2009) (finding the plaintiff’s allegation that
the defendant initiated the retaliatory action in response to her
previous EEOC activity “sufficient to survive a motion to
dismiss”); Dave v. Lanier, 606 F. Supp. 2d 45, 52-53 (D.D.C.
2009) (denying the defendant’s motion to dismiss the plaintiff’s
claim of retaliation because “the plaintiff . . . made out a
legally cognizable claim of retaliation by contending that he
engaged in a protected activity by reporting the trainer’s
allegedly discriminatory conduct and that in response to his
complaint, the defendant retaliated against him by subjecting him
to materially adverse actions”); Holmes-Martin v. Leavitt, 569 F.
Supp. 2d 184, 193 (D.D.C. 2008) (denying the defendant’s motion
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to dismiss the plaintiff’s claim of hostile work environment
because the plaintiff “alleged some conduct in support of her
claim,” and noting that a plaintiff is required to plead facts
which “support,” not “establish,” the claim). Taken together,
Teliska’s allegations amply state a claim of a retaliatory
hostile work environment. Therefore, the motion to dismiss
Teliska’s complaint will be denied.
CONCLUSION AND ORDER
Teliska adequately alleges a plausible claim of retaliatory
hostile work environment in her complaint. Accordingly, it is
hereby
ORDERED that the defendant’s motion [5] to dismiss be, and
hereby is, DENIED.
SIGNED this 28th day of November, 2011.
/s/
RICHARD W. ROBERTS
United States District Judge