Rhodes v. Chertoff ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
SHARON RHODES, )
)
Plaintiff, )
)
v. ) Civ. Action No. 08-1414 (EGS)
)
JANET NAPOLITANO,1 Secretary )
of Department of Homeland )
Security, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Sharon Rhodes has brought discrimination and
retaliation claims pursuant to Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., against her
employer, defendant Department of Homeland Security. Pending
before the Court is defendant’s motion to dismiss, or, in the
alternative, to strike the complaint. Upon consideration of the
motion, the response and reply thereto, the applicable law, the
entire record, and for the reasons stated below, the Court GRANTS
IN PART AND DENIES IN PART defendant’s motion to dismiss and
DENIES AS MOOT the motion to strike.
I. BACKGROUND
Plaintiff, an African-American female, has been employed by
1
Pursuant to Federal Rule of Civil Procedure 25(d),
Secretary Napolitano, in her official capacity as the Secretary
of the Department of Homeland Security, is automatically
substituted as the named defendant.
defendant as a Management Analyst in the U.S. Immigration and
Naturalization Service Branch since 1990 or before. Compl. at 1
¶ 2.2 In her complaint, plaintiff alleges that defendant took a
variety of adverse actions against her because of her race, color,
and prior protected activity.3 See Compl. at 3-6 ¶¶ 2, 12, 21-22.
Specifically, plaintiff claims that (1) she was given
undesirable work assignments in 2005 and early 2006, which
included being assigned to work alone inventorying a warehouse
containing “rat and bird feces, water damage, dust particles and
wall to wall furniture and equipment which had been there for more
than 30 years,” Compl. at 1-2 ¶¶ 3, 6; (2) from approximately
January 2006 through August 2006, defendant conducted an
investigation into her alleged misuse of a government vehicle that
culminated with a Letter of Counseling issued in February 2007,4
see Compl. at 2 ¶¶ 6-9; (3) she, along with several other co-
workers, was drug-tested on January 23, 2007, despite the fact
2
Plaintiff’s complaint proceeds by numbering the paragraphs
one through twenty-one and then, on page three, starts again at
paragraph one in listing the allegations for each Title VII
count. For clarity, this Memorandum Opinion includes citations
to both the page of the complaint and the corresponding paragraph
number.
3
In her administrative complaint, plaintiff also checked
the boxes for “age” and “sex.” See Def.’s Ex. 2. Those bases
are not listed in the complaint before this Court, and therefore
are not a part of this action.
4
The complaint also alleges that plaintiff requested
access to vehicle logs to prove that she had abided by the
vehicle sign-out procedures, but was told the logs could not be
located. Compl. at 2 ¶ 8.
2
that personnel in her position were not normally subjected to drug
tests, Compl. at 2 ¶ 11; (4) in late January 2007, her computer,
email address, and work telephone were taken away and were not
returned until April 2007, Compl. at 2-3 ¶¶ 12, 16; and (5)
“[a]fter January” 2007, she stopped receiving work assignments and
was ignored by her co-workers, Compl. at 2 ¶¶ 13-14.
Because of a discrepancy in the record, the date of
plaintiff’s initial contact with the Equal Employment Opportunity
Commission (“EEOC”) is somewhat unclear. The EEOC Intake Form
lists the date of initial contact as March 21, 2007. Pl.’s Ex. D.
However, plaintiff’s administrative complaint, filed on June 26,
2007, lists the date of initial EEOC contact as April 9, 2007 —
the same day that plaintiff’s computer equipment was returned to
her. Def.’s Mem. at 3 & Ex. 2. The EEOC’s official investigation
began on July 13, 2007 and was concluded on September 11, 2007.
Compl. at 3 ¶ 18. Plaintiff sought an EEOC hearing on her
complaint, but on April 16, 2008, at plaintiff’s request, the EEOC
dismissed the hearing request and remanded the case to the agency
for a final decision. Compl. at 3 ¶ 20 & Ex. A. No final action
has been issued. Compl. at 3 ¶ 21.
Plaintiff filed suit in this Court on August 11, 2008,
alleging racial discrimination and retaliation under Title VII.
On February 9, 2009, defendant filed a motion to dismiss or, in
the alternative, to strike the complaint pursuant to Federal Rule
3
of Civil Procedure 11(a) on the basis that it was not signed by
plaintiff or her attorney. Defendant’s motion is now ripe for
decision.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 8(a), a pleading
stating a claim for relief must contain “‘a short and plain
statement of the claim showing that the pleader is entitled to
relief’” in order to provide to the defendant “fair notice of the
claims against” him. Ciralsky v. CIA, 355 F.3d 661, 669, 670
(D.C. Cir. 2004) (quoting Fed. R. Civ. P. 8(a)); see also Erickson
v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (per curiam).
“[W]hen a complaint adequately states a claim, it may not be
dismissed based on a district court’s assessment that the
plaintiff will fail to find evidentiary support for his
allegations or prove his claim to the satisfaction of the
factfinder.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563
n.8 (2007). In considering a 12(b)(6) motion, the Court must
construe the complaint “liberally in the plaintiff’s favor,”
“accept[ing] as true all of the factual allegations” alleged in
the complaint. Aktieselskabet AF 21. November 2001 v. Fame Jeans
Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (alteration in original)
(quoting Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir.
2008)). Plaintiffs are entitled to “the benefit of all inferences
that can be derived from the facts alleged.” Kowal v. MCI
4
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
On a motion to dismiss for lack of subject-matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1),
the plaintiff bears the burden of establishing that the court has
jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). The court must give the plaintiff’s factual allegations
closer scrutiny when resolving a Rule 12(b)(1) motion than would
be required for a Rule 12(b)(6) motion because subject-matter
jurisdiction focuses on the court’s power to hear the claim.
Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003).
Where necessary to determine whether it has jurisdiction, the
court may consider materials outside the pleadings. Alliance for
Democracy v. Fed. Election Comm’n, 362 F. Supp. 2d 138, 142
(D.D.C. 2005).
III. DISCUSSION
Defendant contends that plaintiff failed to exhaust
administrative remedies for all of the claims in her complaint,
with the exception of any claim arising out of the Letter of
Counseling she received in February 2007. Def.’s Mem. at 6-8.
According to defendant, however, this claim must also be dismissed
because the Letter of Counseling does not qualify as an adverse
employment action and, in view of defendant’s withdrawal of the
letter in August 2007, is moot. Def.’s Mem. at 4-5. Finally,
defendant argues that plaintiff’s retaliation claim must be
5
dismissed because the complaint fails to allege a causal link
between any activity protected under Title VII and a materially
adverse action taken against plaintiff by defendant. Def.’s Mem.
at 8-11. The Court will address each of these issues in turn.
A. Exhaustion of Administrative Remedies
“A federal employee filing a Title VII action must exhaust
his or her administrative remedies before seeking judicial
review.” Brodetski v. Duffey, 199 F.R.D. 14, 18 (D.D.C. 2001)
(citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 832-33 (1976)).
The administrative procedures that must be followed in this regard
are laid out in Title 29 of the Code of Federal Regulations. See
29 C.F.R. §§ 1614.101-110. In particular, an aggrieved federal
employee must initiate contact with an EEOC counselor within
forty-five days of the date of the event believed to be
discriminatory or retaliatory; for personnel actions, contact must
occur within forty-five days of the effective date of the
personnel action. Id. § 1614.105(a)(1). The EEOC counselor must
then conduct a final interview within thirty days of the
employee’s contact with the EEOC. Id. § 1614.105(d).
If the matter remains unresolved within that time frame, the
EEOC counselor is required to notify the employee of her right to
file an administrative complaint within fifteen days of such
notice. Id. An administrative complaint must be signed and
“sufficiently precise,” identifying the aggrieved person and
6
describing the basis for the complaint. Id. § 1614.106(c). The
administrative complaint may be amended at any time prior to the
conclusion of the agency’s “impartial and appropriate”
investigation, which must be conducted and completed by the agency
within 180 days of the filing of the complaint. Id. § 1614.106(d)
& (e)(2). An employee may bring a civil action within 90 days of
the receipt of notice of the EEOC’s final action or 180 days after
the filing of an administrative complaint if a final action has
not been issued. 42 U.S.C. § 2000e-16(c); 29 C.F.R.
§ 1614.407(a)-(b).
As noted above, the date of plaintiff’s initial EEOC contact
is not clear from the record. Assuming, however, that her initial
contact was the earlier date of March 21, 2007 (the date alleged
by plaintiff and indicated on the EEOC intake form), the Letter of
Counseling is the only incident raised in plaintiff’s complaint
before this Court that is clearly covered by the forty-five day
time limit set forth in 29 C.F.R. § 1614.105(a)(1). Moreover, as
defendant points out, plaintiff’s administrative complaint
explicitly relied on the Letter of Counseling as the basis for her
claims. See Def.’s Ex. 2 (“The action that was taken that I
believe was discriminatory is . . . [the] letter of Counseling
titled ‘Misuse of Government Vehicle.’”). Therefore, according to
defendant, only claims arising from the Letter of Counseling have
been properly exhausted.
7
In her opposition to defendant’s motion, plaintiff argues
that “she did not limit her EEO administrative complaint to the
Letter of Counseling.” Pl.’s Opp’n at 5. Specifically, she
contends that (1) when she filed her administrative complaint she
was “essentially pro se,” and that that complaint should therefore
be construed liberally; and (2) the EEOC counselor’s report set
forth her claims in more detail, and that, viewing her
administrative complaint in conjunction with the EEOC counselor’s
report, “it is clear that Plaintiff filed the claims raised in her
Complaint in a timely fashion.” Pl.’s Opp’n at 5-6.
Plaintiff is correct that, in general, “[a] lenient standard
applies in evaluating whether an aggrieved party’s actions met his
or her administrative exhaustion responsibilities.” Brodetski,
199 F.R.D. at 18. The claims raised in a civil action must
nevertheless be limited to those that are “like or reasonably
related to the allegations of the [administrative complaint] . . .
and growing out of such allegations.” Park v. Howard Univ., 71
F.3d 904, 907 (D.C. Cir. 1995) (quoting Cheek v. W. & S. Life
Ins., Co., 31 F.3d 497, 500 (7th Cir. 1994)); see Ellis v.
Georgetown Univ. Hosp., Civ. No. 08-1174, 2009 WL 1916315, at *3
(D.D.C. July 6, 2009) (“‘A vague or circumscribed EEOC charge will
not satisfy the exhaustion requirement for claims it does not
fairly embrace’” because that would “‘circumvent the EEOC's
investigatory and conciliatory role, as well as deprive the
8
charged party of notice of the charge.’” (quoting Marshall v. Fed.
Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997))). In Park,
the D.C. Circuit explained the rationale for this limitation:
Although it is true that the administrative charge
requirement should not be construed to place a heavy
technical burden on individuals untrained in negotiating
procedural labyrinths, it is also true that the
requirement of some specificity in a charge is not a
mere technicality. A court cannot allow liberal
interpretation of an administrative charge to permit a
litigant to bypass the Title VII administrative process.
Id. (internal citations and quotation marks omitted).
Viewing plaintiff’s administrative complaint with these
principles in mind, the Court concludes that defendant’s
investigation of plaintiff’s allegedly improper use of a
government vehicle is sufficiently “like or reasonably related to”
the allegations in the administrative complaint to be included as
part of her claims before this Court. The administrative
complaint makes clear that the Letter of Counseling was issued as
a result of plaintiff’s alleged misuse of a government vehicle,
and a reasonable inquiry into the substance of her complaint would
have led the agency to the investigation that preceded the Letter
of Counseling. Plaintiff’s administrative complaint was
sufficient to put defendant on notice of these claims, and the
exhaustion standard has therefore been met. See Brodetski, 199
F.R.D. at 19-20 (noting that “courts require only that a[n
administrative] complaint be adequate to put the agency on notice
and that the agency be given an opportunity to respond out of
9
court,” and concluding the plaintiff had met these requirements by
submitting to the agency five detailed letters chronicling
discrete instances of alleged retaliatory employment actions
within the forty-five day time frame).
Plaintiff’s attempt to further expand the scope of her
exhausted claims by reference to the EEOC counselor’s report is
unavailing, however. Plaintiff cites Mills v. Winter, 540 F.
Supp. 2d 178 (D.D.C. 2008), in support of her contention that the
Court may properly look to the report in determining whether
particular discrimination claims have been exhausted. See Pl.’s
Opp’n at 6. The administrative complaint in that case
specifically listed two instances of discrimination, one of which
was generally described as a denial of promotion. Mills, 540 F.
Supp. 2d at 184. In a footnote, the Mills court explained that
although the administrative complaint was “unclear as to what
comprises the second incident underlying plaintiff’s
discrimination and retaliation claims,” the EEOC counselor’s
report revealed the factual basis for the denial-of-promotion
claim. Id. at 184 n.3. The court thus relied on the report only
to “interpret[t] the language of” the administrative complaint.
Id. In other words, the court in Mills did not create an entirely
new claim; it simply clarified an existing claim.
Here, the only “discriminatory action” explicitly listed in
plaintiff’s administrative complaint was the Letter of Counseling.
10
The complaint made reference to a number of other incidents, but
these allegations appeared in the section describing the “harm”
resulting from the Letter of Counseling. See Def.’s Ex. 2. In
particular, plaintiff alleged that as a result of the letter in
February 2007, plaintiff was “removed from [her] office space,
computer taken, and phone privileges eliminated.” Def.’s Ex. 2.
The administrative complaint also states that she was harmed by
the letter because plaintiff’s “associates stopped communicating
with” her and that she “was ostracized from the work environment.”
Def.’s Ex. 2. This, however, is inconsistent with plaintiff’s
civil complaint, which alleges that the confiscation of her work
equipment took place “in late January, 2007.” Compl. at 2 ¶ 12.
Plaintiff’s own complaint therefore forecloses the possibility
that the confiscation of her work equipment was caused by – or
reasonably related to – the Letter of Counseling. The timeline of
events is further clarified by reference to the EEOC counselor’s
report, which (1) confirms the allegation in the civil complaint
that the confiscation of her equipment occurred in January 2007,
and (2) makes clear that other employees had stopped communicating
with plaintiff “since January 2007.”5 See Pl.’s Ex. C.
Accordingly, the Court concludes that, except for the Letter
5
Applying the Mills approach in the instant case actually
works to plaintiff’s detriment, because the EEOC counselor’s
report resolves the conflict between the administrative and civil
complaints by confirming the untimeliness of her EEOC contact.
11
of Counseling, all of the other incidents listed in the
administrative complaint occurred outside the forty-five day time
limit that spanned from early February 2007 through March 21,
2007. Moreover, because these incidents preceded the Letter of
Counseling rather than flowed from the letter, they are
conceptually distinct and cannot be said to have grown out of the
allegations relating to the letter. These incidents are instead
“discrete acts” that were not timely raised before the agency.
See Rattigan v. Gonzales, 503 F. Supp. 2d 56, 68 (D.D.C. 2007)
(“The Title VII exhaustion requirement . . . ‘precludes recovery
for discrete acts of discrimination or retaliation that occur
outside of the statutory time period’ even when the acts ‘are
related to acts alleged in timely filed charges.’” (quoting Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 113 (2002)).6
In sum, the Court concludes that the vehicle investigation
and Letter of Counseling are the only incidents that are “fairly
embraced” within the administrative complaint and upon which a
discrimination or retaliation claim in this Court may proceed.
The remainder of plaintiff’s claims will be dismissed for failure
to exhaust administrative remedies.7
6
The same is true of the allegations in plaintiff’s
complaint relating to (1) the undesirable work assignments she
received in 2005 and 2006, (2) the drug test to which she was
required to submit in January 2007, and (3) the denial of work
assignments “after” January 2007.
7
Although defendant preemptively argues that plaintiff is
not entitled to equitable tolling, plaintiff makes no mention of
12
B. Plaintiff’s Remaining Discrimination Claims
As a result of the investigation into plaintiff’s alleged
misuse of a government vehicle, plaintiff received and signed a
Letter of Counseling — an official written record memorializing
her misconduct. See Compl. at 2 ¶ 15. The Letter of Counseling
warned plaintiff that future misconduct could result in
disciplinary action, but also noted that the letter’s function was
to “correct . . . [and] deter” and would not be maintained in
plaintiff’s permanent record. Def.’s Ex. 1. On August 8, 2007,
defendant issued a memorandum rescinding the Letter of Counseling
and stating that the letter would be removed from plaintiff’s
employment file. Compl. at 3 ¶¶ 16, 19.
Defendant contends that any discrimination claim based on the
Letter of Counseling must be dismissed for failure to state a
claim, because (1) the withdrawal of the letter renders any claim
based on the incident moot, and (2) the letter does not constitute
an adverse employment action, a required element of a Title VII
claim of discrimination. See Def.’s Mem. at 4. The Court agrees.
Plaintiff makes only one attempt to rebut defendant’s
arguments, claiming that because the letter “has not been expunged
from” plaintiff’s personnel file, it may be used against her at a
later date. Pl.’s Opp’n at 4. But this conclusory assertion is
equitable tolling in her opposition brief. This Court therefore
declines to address the issue.
13
expressly contradicted by plaintiff’s own complaint, in which she
acknowledges that defendant issued a memorandum canceling the
Letter of Counseling and stating that the letter would
“immediately be removed from the Plaintiff’s employee file.”
Compl. at 3 ¶ 19. Plaintiff’s complaint does not allege that the
Letter of Counseling in fact remains in her personnel file, nor
does she provide any support for her contention that a
discrimination claim may proceed where the alleged harm on which
the claim is based has been remedied. To the contrary, the D.C.
Circuit has explicitly held in an analogous circumstance that an
employer may “cure” an adverse employment action before litigation
commences, thus extinguishing any discrimination claim that may
have otherwise been actionable. See Taylor v. Small, 350 F.3d
1286, 1294 (D.C. Cir. 2003) (affirming a grant of summary judgment
in favor of the employer where the plaintiff’s supervisor
“corrected the [erroneous performance] evaluation and paid the
proper bonus before” the plaintiff filed the civil complaint, and
highlighting that the goals of Title VII are served by giving
employers the opportunity to remedy workplace wrongs prior to
litigation).
The Court also agrees with defendant that even if the Letter
of Counseling were a part of plaintiff’s personnel file, the
issuance or existence of the letter does not constitute an adverse
employment action for the purposes of a discrimination claim.
14
Indeed, the caselaw in this Circuit makes clear that a written
warning or admonishment unaccompanied by discipline or any other
change in the terms or conditions of employment does not
constitute an adverse employment action. See, e.g., Brown v.
Brody, 199 F.3d 446, 458 (D.C. Cir. 1999) (affirming the district
court’s conclusion that a letter of admonishment detailing
conflicts between the plaintiff and her supervisors, but
unaccompanied by a change in grade or salary, did not constitute
an adverse employment action; noting that a “thick body of
precedent . . . refutes the notion that formal criticism or poor
performance evaluations are necessarily adverse actions”);
Brodetski, 199 F.R.D. at 21 (holding that a written warning from a
supervisor was not an adverse employment action because there was
“no evidence that the warning affected [the plaintiff’s]
employment position or status”); Walker v. Wash. Metro. Area
Transit Auth., 102 F. Supp. 2d 24, 29 (D.D.C. 2000) (concluding
that a letter of reprimand, later rescinded, was not an adverse
employment action because it did not affect the plaintiff’s grade,
salary, title, duties, benefits, or working hours); see generally
Taylor, 350 F.3d at 1293 (noting that 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’” (quoting Burlington Indus., Inc. v. Ellerth,
15
524 U.S. 742 (1998)). Plaintiff does not allege any facts from
which she could establish that she experienced a “significant
change” in her employment status after the Letter of Counseling
was issued, and she has therefore failed to plead an actionable
discrimination claim based on the letter. For these reasons, the
Court concludes that plaintiff has failed to state a
discrimination claim based on the Letter of Counseling.8
C. Plaintiff’s Remaining Retaliation Claims
To bring an actionable retaliation claim under Title VII, the
plaintiff “must show that (1) she engaged in a statutorily
protected activity; (2) she suffered a materially adverse action
by her employer; and (3) a causal connection existed between the
two.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007).
Defendant argues that any retaliation claim alleged in plaintiff’s
complaint must be dismissed for failure to state a claim, because
plaintiff fails to allege facts from which she could prove that
she suffered any adverse action that was caused by her engagement
in protected activity. Def.’s Mem. at 9-11.
Although it is well established that “‘Title VII plaintiffs
8
The Court similarly concludes that any discrimination
claim based on the investigation that preceded the Letter of
Counseling must also be dismissed for failure to state a claim.
Plaintiff’s complaint makes no allegation from which it could be
established that the investigation resulted in “a significant
change in employment status” such that it could be considered an
adverse employment action for the purposes of a Title VII
discrimination claim.
16
need not plead each element of [a] prima facie case to survive a
motion to dismiss,’” Robinson-Reeder v. Am. Council on Educ., 532
F. Supp. 2d 6, 14 (D.D.C. 2008) (quoting Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 515 (2002)), it is equally true that the
complaint “must allege facts that, if true, would establish the
elements of each claim.” Id. (internal quotation marks omitted);
see also Rattigan, 503 F. Supp. 2d at 75 (“[T]he Court may explore
the plaintiff’s prima facie case at the dismissal stage to
determine ‘whether the plaintiff can ever meet his initial burden
to establish a prima facie case.’” (quoting Rochon v. Ashcroft,
319 F. Supp. 2d 23, 29 (D.D.C. 2004), rev’d on other grounds sub
nom. Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006))). Upon
review of the complaint, the Court concludes that the liberal
pleading standard for a retaliation claim has been met.
1. Protected Activity
To establish a retaliation claim under Title VII, a plaintiff
must allege facts demonstrating that she opposed a Title VII
violation or participated in an investigation of such a violation.
See 42 U.S.C. § 2000e-3 (“It shall be an unlawful employment
practice for an employer to discriminate against any of his
employees . . . because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this
17
subchapter”). Here, plaintiff claims that she has made annual
union complaints based on discrimination and has EEOC contact “on
record” in 2003 and 2004. Compl. at 6 ¶ 21.
Defendant devotes substantial attention to arguing that
because plaintiff has not alleged any retaliatory action
postdating her most recent contact with the EEOC (beginning with
her counseling session in March or April 2007), she cannot raise a
cognizable retaliation claim. In other words, defendant argues
that plaintiff cannot establish a causal link between her filing
of the June 2007 EEOC complaint and any materially adverse action,
because none of the incidents alleged in the complaint took place
after that protected activity. Defendant’s contention is based on
an accurate statement of law, see Ginger v. District of Columbia,
477 F. Supp. 2d 41, 52 (D.D.C. 2007) (“To establish a causal
connection, the adverse connection must take place after the
employee’s protected activity.” (emphasis in original) (citing
Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006))), but a
misreading of plaintiff’s complaint. The retaliation claims in
plaintiff’s complaint are clearly based on her prior EEOC activity
in 2003 and 2004 and her union complaints. See Compl. at 6 ¶ 21.
These allegations are sufficient to establish that she engaged in
prior protected activity.9
9
Although a union complaint is not “categorically
protected” under Title VII’s anti-retaliation provision, it “may
be considered protected activity if it alleges discrimination or
18
2. Materially Adverse Action
The complaint alleges a number of incidents that plaintiff
claims are adverse actions; namely, the change in her job duties,
the improper-use-of-a-government-vehicle investigation, the drug
test, and the confiscation of her office equipment. See Compl. at
7 ¶ 26. As discussed in Section III.A, however, the only claims
properly before this Court relate to the investigation of her
vehicle use from January to August 2006 and the resulting Letter
of Counseling she received in February 2007.
In Burlington Northern & Santa Fe Railway Co. v. White, 548
U.S. 53, 67 (2006), the Supreme Court made clear that the adverse-
action requirement for a retaliation claim is broader than the
adverse-employment-action prong of a Title VII discrimination
claim. See id. at 64 (“[T]he anti-retaliation provision [of Title
VII], unlike the substantive provision, is not limited to
discriminatory actions that affect the terms and conditions of
employment.”). A plaintiff may satisfy the second prong of a
prima facie case by showing “that a reasonable employee would have
another practice made unlawful under Title VII.” Ramey v.
Potomac Elec. Power Co., 468 F. Supp. 2d 51, 59 (D.D.C. 2006);
cf. Rattigan, 503 F. Supp. 2d at 77 n.7 (noting that “opposition
to an unlawful employment practice qualifies as protected
activity even if it may have occurred outside of the EEO context”
(internal quotation marks omitted) (citing Broderick v.
Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006)). The complaint
meets this standard by claiming that plaintiff has made
“allegations of discrimination . . . in union complaints on an
annual basis since 1995, or earlier.” Compl. at 6 ¶ 21.
19
found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Id. at 68
(adopting standard articulated by the D.C. Circuit in Rochon, 438
F.3d at 1219) (internal quotation marks omitted).
Taking the facts as alleged by plaintiff as true, she was the
subject of an investigation that spanned many months in which
defendant “failed to find evidence the Plaintiff was, or had ever,
misused a government vehicle.” Compl. at 2 ¶ 10. This
investigation was followed by a Letter of Counseling which,
although it was not maintained in her file or accompanied by a
change in her employment status, threatened her with “more severe
disciplinary actions, up to and including . . . removal from the
Federal Service.” Def.’s Ex. 1. The length and scope of this
investigation and the tone of the Letter of Counseling might have
deterred a reasonable employee from engaging in protected
activity, and the adverse actions alleged in plaintiff’s complaint
therefore meet the “material adversity” standard set forth in
White. See Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C. Cir.
2006) (reversing dismissal of a retaliation claim where plaintiff
alleged “that she was subject to a lengthy investigation” during
which she was prevented from receiving promotions and quality
assignments, and concluding that the claim was not subject to
dismissal “[b]ecause a reasonable jury could find that the
20
prospect of such an investigation could dissuade a reasonable
employee from making or supporting a charge of discrimination”);
Rattigan v. Holder, 604 F. Supp. 2d 33, 52 (D.D.C. 2009)
(rejecting the defendant’s argument that a disciplinary
investigation did not constitute a materially adverse action
because it lacked the necessary “indicia of threat”; explaining
that “whether an action is ‘materially adverse’ is determined by
whether it holds a deterrent prospect of harm, and not by whether
the harm comes to pass or whether any effects are felt in the
present”).
3. Causation
With respect to the causal-link requirement of a prima facie
case, defendants rely on the fact that there is no temporal
proximity between plaintiff’s prior protected activity and the
adverse actions alleged. Def.’s Mem. at 9-10; Mitchell v.
Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985) (explaining that a
causal connection between protected activity and an adverse action
“may be established by showing that the employer had knowledge of
the employee’s protected activity, and that the adverse personnel
action took place shortly after that activity”); see Woodruff v.
Peters, 482 F.3d 521, 529 (D.C. Cir. 2007) (“Temporal proximity
can indeed support an inference of causation, but only where the
two events are ‘very close’ in time . . . .” (quoting Clark County
School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)). This
21
argument, however, ignores the fact that “a close temporal
connection is not the only way to prove causation. ‘A plaintiff
may also put forward direct evidence and disregard the presumption
and its time limitations.’” Beckham v. Nat’l R.R. Passenger
Corp., 590 F. Supp. 2d 82, 89 (D.D.C. 2008) (quoting Vance v.
Chao, 496 F. Supp. 2d 182, 186 (D.D.C. 2007)).
Plaintiff alleges that defendant initiated the vehicle
investigation and subsequently issued the Letter of Counseling in
retaliation for her 2003 or 2004 EEOC activity and/or the annual
union complaints she has made. This is sufficient to survive a
motion to dismiss. See Beckham, 590 F. Supp. 2d at 89 (denying
motion to dismiss because the plaintiff “satisfied her burden by
alleging that she was denied benefits because of her opposition to
actions made unlawful by Title VII” (emphasis in original)
(internal quotation marks omitted)); Vance, 496 F. Supp. 2d at 186(denying motion to dismiss a retaliation claim because “[a]t this
early stage of the proceedings, plaintiff can meet her prima facie
burden of causation simply by alleging that the adverse actions
were caused by her protected activity”).
D. Defendant’s Motion to Strike the Complaint
Defendant moves in the alternative to strike plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 11(a) on the
basis that the complaint was not signed by either plaintiff or her
counsel. That error was promptly corrected by plaintiff’s
22
counsel, as evidenced by the fact that the complaint now appearing
on the electronic docket, see Compl., Docket No. 1, bears the
signature of plaintiff’s counsel. The Court will therefore deny
defendant’s motion to strike as moot.
E. Punitive Damages
Finally, defendant contends that “the request for punitive
damages [in plaintiff’s complaint] should be stricken because an
award of punitive damages is beyond the Court’s jurisdiction to
award.” Def.’s Mem. at 11. Plaintiff does not oppose this
request, nor could she in view of 42 U.S.C. § 1981a(b)(1), which
bars recovery of punitive damages from a government agency in an
intentional employment discrimination suit. Therefore, section
(e) of paragraph 43 on page 8 of the complaint will be struck.
IV. CONCLUSION
For the reasons stated above, the Court GRANTS IN PART AND
DENIES IN PART defendant’s motion to dismiss and DENIES AS MOOT
defendant’s motion to strike the complaint. An appropriate Order
accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
September 23, 2009
23