Schmidt v. United States Capitol Police Board , 826 F. Supp. 2d 59 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DIANE M. SCHMIDT, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1028 (RBW)
)
UNITED STATES )
CAPITOL POLICE BOARD, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
The plaintiff, Diane M. Schmidt, filed her complaint on June 3, 2011, claiming that her
employer, the United States Capitol Police Board ("USCPB"), 1 violated Sections 201, 202, and
207 of the Congressional Accountability Act ("CAA"), 2 U.S.C. §§ 1301-1438, 2 by engaging in
a pattern of harassment, discrimination, intimidation, and retaliation against her on the basis of
her sex and age, subjecting her to disparate treatment by denying her requests for leave under the
Family and Medical Leave Act, and by taking adverse employment actions against her, including
its failure to promote and complete her annual performance reviews. Plaintiff's Complaint
("Compl.") at 1. Currently before the Court is the defendant's Motion to Dismiss the Plaintiff's
Complaint. See Agency Defendants' Motion to Dismiss ("Defs.' Mot.") at 1. Upon careful
1
The plaintiff’s complaint originally listed three defendants: the USCPB, the United States Capitol Police,
and her former supervisor, Ms. Gretchen E. DeMar. Subsequently, the plaintiff consented to the dismissal of the
latter two defendants. Accordingly, Defendant DeMar's Motion to Dismiss is now moot.
2
In the complaint, the plaintiff refers to the relevant sections of the CAA as Sections 201, 202, and 207.
Sections 201, 202, and 207 are codified at 2 U.S.C. § 1311, 2 U.S.C. § 1312, and 2 U.S.C. § 1317, respectively, and
the Court will accordingly refer to them in that manner from this point forward.
1
consideration of all of the relevant submissions made by the parties, 3 the Court will grant the
USCPB's motion to dismiss with respect to all of the plaintiff's discrete claims brought under
§ 1311 and § 1312 that occurred prior to April 2010, as well as the plaintiff's § 1317 retaliation
claim, for lack of subject-matter jurisdiction. The Court will also grant the defendant's motion to
dismiss the plaintiff's § 1312 claim that she was continually denied family and medical leave and
the option to work at home under the defendant’s purported Telework policy, 4 because the
plaintiff has not demonstrated that this Court has subject-matter jurisdiction over that claim. The
Court will grant the defendant's motion to dismiss under Rule 12(b)(6) the plaintiff's timely
§ 1311 claim that she was denied a promotion to the Grade 13/Step 5 level in September 2010,
because the plaintiff does not allege with sufficient specificity why the failure to promote her to a
higher paygrade amounted to disparate treatment, or how that purportedly disparate treatment
was based on gender or age. Finally, the Court will grant the defendant's motion to dismiss the
plaintiff's additional "continuing violation" claims—that she was continually harassed in the
workplace and that her co-workers' actions created a hostile work environment—because she
similarly fails to present any facts supporting this claim.
3
In addition to the documents already referenced, in deciding this motion, the Court also considered the
following submissions: the defendants' Memorandum of Points and Authorities in Support of Agency Defendants'
Motion to Dismiss ("Defs.' Mem."), the plaintiff's Memorandum in Opposition to Agency Defendants' Motion to
Dismiss ("Pl.'s Opp'n"), the Defendants' Reply to Plaintiff's Opposition to Defendants' Motion to Dismiss ("Defs.'
Reply"), and the Plaintiff’s Notice of Voluntary Dismissal ("Pl.’s Notice").
4
Nowhere in the complaint does the plaintiff explain the "Telework policy." The Court will assume, based
on the plaintiff’s claims, that the policy involves the privilege of working from home using electronic
communication for a period of time, a privilege that an employee must request and that can only be granted by an
employee’s supervisor.
2
I. BACKGROUND
The plaintiff is a fifty-year-old woman who has been employed by the USCPB since
1986. Compl. ¶¶ 9(a),f 22. Between January 27, 1986 and September 2005, she was a United
States Capitol police officer, who ultimately reached the rank of sergeant. Id. In September
2005, the plaintiff decided to transfer from her position as a police officer to a civilian position,
and began working as a Legal Administrative Analyst in the Office of the General Counsel at the
USCPB. Id. ¶ 23. The plaintiff maintains that she agreed to transfer to the civilian position
because the prior General Counsel promised her that "the position was a 'non-competitive career
ladder promotion' position," and that "after the successful completion of the first year, [she]
would be promoted from a Grade 12 to a Grade 13, Step 1[,] and every year thereafter, [she]
would be promoted to the next step as a Grade 13 civilian employee on the 'non-competitive
career ladder.'" Id. ¶ 24.
When she began working as a Legal Administrative Analyst in September 2005, the
plaintiff earned $101,578 annually, which is the paygrade for a Grade 12/Step 1 employee. Id. ¶
26. The next year, in September 2006, the plaintiff requested a promotion to the Grade 13/Step
1 level, which paid $117,315. Id. ¶ 27. According to the plaintiff, her supervisor, Gretchen E.
DeMar, id. ¶ 25, ignored her request and refused to complete an annual performance review of
her work. Id. ¶ 27. However, the plaintiff was advanced to the Grade 12/Step 2 paygrade, with
an annual salary of $107,094. Id. ¶ 28. The following year, in September 2007, the plaintiff
requested a promotion to the Grade 13/Step 2 level, which had an annual salary of $122,731, as
she asserts she had been promised, but this request was also denied and no performance review
of her work was conducted. Id. ¶ 29. Instead, the plaintiff was elevated to the Grade 12/Step 3
level, which resulted in her being paid $112,002 annually. Id. ¶ 30. Similarly, in September
3
2008, the plaintiff requested that she be promoted to the Grade 13/Step 3 level, which would
have paid her $130,361 per year, but her request was again denied and no performance review of
her work was conducted. Id. ¶ 31. Instead, the plaintiff was advanced to the Grade 12/Step 4
level and paid $119,190 annually. Id. ¶ 32. In September 2009, the plaintiff requested a
promotion to the Grade 13/Step 4 level, which paid $139,399 per year, but her request was
denied, no performance review was completed, id. ¶ 33, and she remained at the Grade 12/Step 4
level but her annual salary was increased to $124,887, id. ¶ 34. Finally, in September 2010, the
plaintiff requested a promotion to the Grade 13/Step 5 level, which paid a salary of $142,772 per
year, but her request was denied, no performance review was completed, id. ¶ 35, and she was
instead advanced to the Grade 12/Step 5 level and paid $130,244 annually, id. ¶ 36.
Thus, according to the plaintiff, from September 2006, through September 2010, the
plaintiff annually requested promotions she had allegedly been promised by the prior General
Counsel when she transferred to the civilian position, and each year her request was denied. Id.
¶¶ 27-37. She further contends that no annual performance review of her work was ever
conducted, id. ¶¶ 27-35, and that other employees in her office received the promotions and
salary increases that she had been promised, id. ¶ 37.
During her tenure as a Legal Administrative Analyst, the plaintiff alleges that Ms. DeMar
and other employees of the USCPB "mistreated, harassed, intimidated[,] and disrespected" her
on a daily basis. Id. ¶ 45. Specifically, the plaintiff states that "[t]here were often times that
[Ms.] DeMar[] refused to speak directly to [her] even though they were physically in the same
office," id. ¶ 46, and that "[o]n an almost daily basis, [Ms.] DeMar[] and other employees
harassed [her] with a continuous stream of text messages[,] although they were all physically in
the same office," id. ¶ 47. The plaintiff also alleges that when she was on medical leave "[Ms.]
4
DeMar[] and other employees harassed [her] with e[-]mails, text messages[,] and telephone
messages demanding that she contact them." Id. ¶ 48.
The plaintiff alleges various additional instances of discriminatory treatment in addition
to the annual denials of her specific requests for promotions to the Grade 13 level. For example,
the plaintiff asserts that during her tenure as a Legal Administrative Analyst, "[she] requested
advancements of leave for personal and family medical issues pursuant to the Family and
Medical Leave Act; however, most requests were denied although other[ employees] were
granted such advancements of leave." Id. ¶ 39. Specifically, the plaintiff states that "[i]n 2009,
[she] requested a 40-hour advancement of leave for personal and family medical issues . . .
which was denied," id. ¶ 40, even though other employees' requests for longer periods of leave
were granted, id. ¶¶ 40-41. The plaintiff further alleges that in 2010 she was denied the
opportunity to work from home under the Capitol Police’s Telework policy, while other
employees were allowed to do so. Id. ¶¶ 43-44.
On October 14, 2010, the plaintiff filed a Request for Counseling with the Office of the
Chief ("OOC"), as required by the CAA, id. ¶ 49, in which she alleged "harassment, unfair
discipline, lack of promotion, disparate treatment[,] and denial of advanced paid leave for FMLA
purposes because of sex, disability, and reprisal in violation of sections 201, 202[,] and 207 of
the [CAA]," Defs.' Mem., Exhibit ("Ex.") 1 at 1. The plaintiff then completed the CAA-
mandated mediation process on March 1, 2011, which was ultimately unsuccessful. Compl. ¶
49. The plaintiff alleges that after the mediation in March 2011, "[the d]efendants threatened to
demote and/or fire [her]; however, she was ultimately transferred to the Office of the Chief of
USCP[B] on or about April 25, 2011," where she is currently employed. Id. ¶ 52.
5
The plaintiff's complaint alleges three violations of the CAA: (1) that she was unlawfully
discriminated against under § 1311 due to her sex and age, (2) that she was denied the right to
family and medical leave under § 1312, and (3) that her supervisor and the USCPB unlawfully
retaliated against her for initiating the mediation proceedings under § 1317. Id. at 1.
Specifically, the plaintiff claims that the USCPB's failure to promote her annually as promised,
id. ¶¶ 55-56, failure to grant her requests for family and medical leave, and failure to grant her
requests to work from home under the defendant’s Telework policy while allowing other
employees to do so, id. ¶¶ 57-60, constituted unlawful discrimination. Additionally, she alleges
that the treatment she endured as a result of the actions of her supervisor and other employees,
such as refusing to speak to her directly while in the office, sending her a flood of text messages
while in the office, and constantly harassing her with e-mails and text messages while she was on
leave is further evidence of discrimination. Id. ¶¶ 78-81. The plaintiff also claims that after
bringing this behavior to the attention of the OCC and going through the required mediation
process, her supervisor and other employees retaliated against her by demanding that she provide
evidence of the medical condition that prevented her from working despite having already
provided the defendant “doctor’s notes,” id. ¶ 83, constantly e-mailing her while she was on
leave demanding that she return to work, and requiring her to provide medical documentation for
every hour she was not at work even though she had already provided such documentation. Id.
¶¶ 82-87.
The defendant argues in its motion to dismiss that the plaintiff did not exhaust her
administrative remedies, as is required in order for this Court to have subject-matter jurisdiction
over her claims. Defs.' Mem. at 7. The defendant further maintains that the plaintiff has asserted
6
claims for which relief cannot be granted, because some of the claims are based on the
"continuing violation" doctrine, id. at 7-8, which is not applicable to each claim asserted.
II. STANDARDS OF REVIEW
A. Rule 12(b)(1)
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a claim must be dismissed
if a district court lacks subject-matter jurisdiction to entertain the claim. Fed. R. Civ. P. 12(b)(1).
Rule 12(b)(6), on the other hand, requires a court to dismiss "a claim upon which relief can[not]
be granted." Fed. R. Civ. P. 12(b)(6). When a defendant files a motion to dismiss under Rule
12(b)(1) and Rule 12(b)(6), this Circuit has held that the court must first examine the Rule
12(b)(1) challenges, U.S. ex rel. Settlemire v. District of Columbia, 198 F.3d 913, 920 (D.C. Cir.
1999), because "if it must dismiss the complaint for lack of subject[-]matter jurisdiction, the
accompanying defenses and objections become moot and do not need to be determined," Epps v.
U.S. Capitol Police Bd., 719 F. Supp. 2d 7, 12 (D.D.C. 2010) (citing Rhulen Agency, Inc. v. Ala.
Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.1990)); see also Bell v. Hood, 327 U.S. 678, 682
(1946) (holding that a motion to dismiss for failure to state a claim may be decided only after
finding subject-matter jurisdiction).
Because Rule 12(b)(1) concerns a court's ability to hear a particular claim, the court must
scrutinize the plaintiff's allegations more closely when considering a motion to dismiss pursuant
to Rule 12(b)(1) than it would under a motion to dismiss pursuant to Rule 12(b)(6). Macharia v.
United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Epps, 719 F. Supp. 2d at 12; Grand Lodge
of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). In deciding a
motion to dismiss challenging the Court’s subject-matter jurisdiction under Rule 12(b)(1), a
court must "accept as true all of the factual allegations contained in the complaint" and draw all
7
reasonable inferences in favor of the plaintiff, Brown v. District of Columbia, 514 F.3d 1279,
1283 (D.C. Cir. 2008), but courts are "not required . . . to accept inferences unsupported by the
facts or legal conclusions that are cast as factual allegations," Rann v. Chao, 154 F. Supp. 2d 61,
64 (D.D.C. 2001). Further, the "court may consider such materials outside the pleadings as it
deems appropriate to resolve the question whether it has jurisdiction in the case." Scolaro v.
D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000). Ultimately, the plaintiff
bears the burden of establishing the Court’s jurisdiction, McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 182-83 (1936), and where subject-matter jurisdiction does not exist, "the
court cannot proceed at all in any cause," Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
(1998).
B. Rule 12(b)(6)
A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains a "short and
plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2),
and while "detailed factual allegations" are not necessary, the plaintiff must provide "more than
an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, __ U.S. __ ,
__ 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 562-63 (2007). Thus, to survive a motion to dismiss under Rule 12(b)(6), "a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face." Iqbal, __ U.S. at __ , 129 S. Ct. at 1949 (2009); Twombly, 550 U.S. at
562-63. The court “must treat the complaint's factual allegations as true, and must grant [the]
plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation marks and
citations omitted); see also Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165
8
(D.C. Cir. 2003); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002); Schuler v. U.S., 617
F.2d 605, 608 (D.C. Cir. 1979) (explaining that the facts in the complaint should be "liberally
construed . . . in favor of the plaintiff, who must be granted the benefit of all inferences that can
be derived from the facts alleged") (internal quotation marks and citations omitted). A claim is
considered plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, __ U.S. at
__, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 556). The Supreme Court has clarified
that plausibility "is not akin to a 'probability requirement' but it asks for more than a sheer
possibility that a defendant has acted unlawfully." Id.
III. LEGAL ANALYSIS
A. The Congressional Accountability Act (CAA)
Sections 1311 and 1312 of Title 2 of the United States Code guarantee the protections
provided by the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967,
and the Family and Medical Leave Act to employees in specific departments of the legislative
branch. 5 The CAA requires an employee alleging violations of a civil right protected by § 1311
to utilize certain administrative procedures, which include counseling and mediation. 6 2 U.S.C.
5
2 U.S.C. § 1301(3) provides that employees covered by the CAA include individuals working in the House of
Representatives, the Senate, the Capitol Guide Service, the Capitol Police, the Congressional Budget Office, the
Office of the Architect of the Capitol, the Office of the Attending Physician, the Office of Compliance, and the
Office of Technology Assessment.
6
The administrative procedure described in § 1401 reads:
Except as otherwise provided, the procedure for consideration of alleged
violations of part A of subchapter II of this chapter consists of—
(1) counseling as provided in section 1402 of this title;
(2) mediation as provided in section 1403 of this title; and
(3) election, as provided in section 1404 of this title, of either—
(A) a formal complaint and hearing as provided in section
(continued . . .)
9
§ 1401. As set forth in § 1402 and § 1403 of the CAA, an employee's request for counseling
must be made within 180 days of the alleged violation. 2 U.S.C. §§ 1402-03. Then, within
fifteen days after receiving a notice of completed counseling, that employee must file a request
for mediation. See id. § 1403. Furthermore, pursuant to § 1408(a) of the CAA, an aggrieved
employee must complete these administrative requirements before a district court will have
subject-matter jurisdiction over an employee’s claims. 2 U.S.C. § 1408(a). 7
The District of Columbia Circuit has recognized that a district court will not have subject-
matter jurisdiction over a claim arising under § 1311 until a plaintiff has fully complied with the
administrative process mandated by the CAA. See, e.g., Blackmon-Malloy v. U.S. Capitol
Police Bd., 575 F.3d 699, 705-06 (D.C. Cir. 2009) (stating that "it is apparent from the plain
terms of the [CAA's] text that Congress intended counseling and mediation to be jurisdictional
requirements"); see also Hyson v. Architect of Capitol, __ F. Supp. 2d __ , __ , 2011 WL
3489128, at *4 (D.D.C. 2011) ("[T]he CAA requires that employees follow the counseling and
mediation procedures prescribed therein before bringing a CAA claim in federal court . . . These
exhaustion requirements are jurisdictional in nature."). Furthermore, as this Court has previously
( . . . continued)
1405 of this title, subject to Board review as provided in
section 1406 of this title, and judicial review in the United
States Court of Appeals for the Federal Circuit as provided
in section 1407 of this title, or
(B) a civil action in a district court of the United States as
provided in section 1408 of this title.
7
2 U.S.C. § 1408(a) states:
The district courts of the United States shall have jurisdiction over any civil
action commenced under section 1404 of this title and this section by a covered
employee who has completed counseling under section 1402 of this title and
mediation under section 1403 of this title. A civil action may be commenced by
a covered employee only to seek redress for a violation for which the employee
has completed counseling and mediation.
10
held, "the completion of counseling and mediation for one set of violations does not give the
court jurisdiction over related claims of retaliation that occurred after counseling had
commenced; the administrative remedies must be exhausted for each claim." Gordon v. Office
of the Architect of the Capitol, 750 F. Supp. 2d 82, 92-93 (D.D.C. 2010) (citing Halcomb v.
Office of the Senate Sergeant-At-Arms of the U.S. Senate, 209 F. Supp. 2d 175, 177-79 (D.D.C.
2002). Therefore, in order for this Court to have subject-matter jurisdiction over the plaintiff's
claims, the plaintiff must have completed the requisite counseling and mediation, within the
prescribed statutory periods, for each claim on which she seeks relief.
B. The Continuing Violations Doctrine
Before turning to whether the plaintiff's claims survive the defendant's Rule 12(b)(1)
arguments for dismissal, the Court must first address a separate legal issue. While many of the
allegations in the plaintiff's complaint pertain to discrete instances of disparate treatment (for
example, specific dates on which she requested and was denied a promotion, and dates on which
she requested and was denied family and medical leave), Compl. ¶¶ 26-36, 40, the plaintiff also
alleges "continuing violations" of her civil rights, such as consistent harassment from her co-
workers, id. ¶¶ 45-48. Because there is a statutory period of 180 days within which the plaintiff
must have requested counseling with respect to these alleged "continuing violations," the Court
must first resolve whether it can, under the "continuing violation doctrine," exercise subject-
matter jurisdiction over those claims based on events that allegedly occurred before, during, and
after the statutory time period for participation in counseling and mediation.
The continuing violations doctrine arises from the principle that where a statute sets a
specific time limit within which a claim for relief must be made, there may be instances in which
evidence of violations that occurred outside of that statutory window may nonetheless be
11
considered. See Morgan v. Nat'l R.R. Passenger Corp., 232 F.3d 1008, 1015 (9th Cir. 2000)
(finding that a plaintiff can demonstrate a continuing violation by "showing a series of related
acts[,] one or more of which are within the limitation period—a serial violation. A serial
violation is established if the evidence indicates that the alleged acts of discrimination occurring
prior to the limitations period are sufficiently related to those occurring within the limitations
period"), rev'd, 536 U.S. 101 (2002). Upon review of the Ninth Circuit's decision in Morgan,
however, the Supreme Court determined that the Ninth Circuit was incorrect to apply the
continuing violations doctrine in such a broad sense, so as to allow any related claims outside the
statutory period to be considered so long as one such claim occurred within the statutory
window. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Instead, the Supreme
Court drew a distinction between "[d]iscrete acts[,] such as termination, failure to promote,
denial of transfer, or refusal to hire" which are easily identifiable and each of which "constitutes
a separate actionable 'unlawful employment practice,'" id. at 114, and hostile environment
claims, which by "[t]heir very nature involve[] repeated conduct," id. at 115. Thus, the Morgan
Court held that where discrete acts are concerned, the district court would only have subject-
matter jurisdiction over those claims that actually occurred during the 180-day statutory period.
Id. With respect to continuing violation claims, however, the Court held: "[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," id. at 117.
Accordingly, the continuing violations doctrine applies to allegations which, when considered
collectively, constitute a hostile environment claim. In making this determination, the Court
reasoned that "[t]he 'unlawful employment practice' . . . cannot be said to occur on any
particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete
12
acts, a single act of harassment may not be actionable on its own." Id. at 115 (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Therefore, based on the Supreme Court's decision in
Morgan, a district court has subject-matter jurisdiction over any discrete claims falling within the
statutory period for which the plaintiff has exhausted her administrative remedies, and any
continuing violation claims that collectively constitute a hostile work environment claim, so long
as one of the allegedly discriminatory acts underlying the hostile work environment claim
occurred during the statutory time period.
C. The plaintiff's § 1311 and § 1312 claims
The plaintiff's § 1311 and § 1312 claims include discrete acts, such as her claims that she
was not promoted annually to Grade 13 salaried positions as she contends she was promised,
Compl. ¶¶ 27-37, the failure to grant her request for leave in 2009, id. ¶ 40, and the failure to
grant her request to work at home under the Capitol Police’s Telework policy, id. ¶ 43. The
plaintiff's complaint also includes alleged continuing violations, such as her claims that she was
"mistreated, harassed, intimidated[,] and disrespected" by her supervisor and other employees on
a daily basis, id. ¶ 45, and that "[o]n an almost daily basis, [Ms.] DeMar[] and other employees
harassed [her] with a continuous stream of text messages[,] although they were all physically in
the same office," id. ¶ 47.
In her October 14, 2010 request for counseling, the plaintiff alleged "harassment, unfair
discipline, lack of promotion, disparate treatment and denial of advanced paid leave for FMLA
purposes because of sex, disability, and reprisal in violation of sections 201, 202[,] and 207 of
the [CAA]." Defs.' Mem., Ex. 1 (Notice of Invocation of Mediation) at 1. Under the law of this
Circuit, see Settlemire, 198 F.3d at 920, the Court must first determine whether the plaintiff has
proven that this Court has subject-matter jurisdiction over her § 1311 and § 1312 claims. In this
13
analysis, the Court must examine whether any of the discrete acts that she asserts constitute
discrimination occurred outside the 180-day statutory window, or if any of the conduct giving
rise to the continuing violation claims occurred at least once within the statutory window. If any
of the discrete acts the plaintiff contends amounted to discrimination occurred outside of the 180-
day statutory window or if none of the alleged conduct that would give rise to a continuing
violation claim occurred at least once within the statutory window, under Morgan, the plaintiff's
claim arising from such conduct would fall outside this Court's subject-matter jurisdiction.
The plaintiff's request for counseling was dated October 14, 2010. Compl. ¶ 49.
Therefore, to fall within the applicable statutory 180-day window, the defendant's allegedly
discriminatory behavior must have occurred between April 17, 2010, and October 14, 2010. In
regards to all but one of the plaintiff's § 1311 discrete claims—the USCPB’s failure to promote
her to the Grade 13/Step 1 level in September 2006, Compl. ¶ 27, the USCPB’s failure to
promote her to the Grade 13/Step 2 level in September 2007, id. ¶ 29, the USCPB’s failure to
promote her to the Grade 13/Step 3 level in September 2008, id. ¶ 31, and the USCPB’s failure
to promote her to the Grade 13/Step 4 level in September 2009, id. ¶ 33— all of these claims
must be dismissed because each constitutes a discrete act that falls outside the 180-day statutory
window, due to the plaintiff’s failure to timely exhaust her administrative remedies as to these
claims, which precludes this Court from having subject-matter jurisdiction over them. The
remaining § 1311 discrete claim—the defendant’s failure to promote the plaintiff to the Grade
13/Step 5 level in September 2010, id. ¶ 36—did occur within the 180-day statutory window.
The Court, therefore, has subject-matter jurisdiction over this claim.
The plaintiff's § 1312 discrete claim—that she was denied forty hours of family and
medical leave in 2009, id. ¶ 40—must also be dismissed because it occurred more than 180-days
14
prior to the plaintiff's request for counseling, resulting in the plaintiff’s failure to timely exhaust
her administrative remedies as to this claim. Accordingly, the Court does not have subject-
matter jurisdiction over this claim. While the plaintiff also alleges that there were other instances
during her tenure as a Legal Administrative Analyst when her requests for family and medical
leave were denied, Compl. ¶ 39, and her requests to work from home under the defendant’s
Telework policy were denied, id. ¶ 44, she incorrectly characterizes these claims as continuing
violations. The Court agrees with the defendant that the failure to grant a request for family and
medical leave and the failure to grant a request for Telework are more accurately categorized as
discrete claims, as in both instances the requests were filed and thereafter rejected on specific
dates. See, e.g., Ragsdale v. Holder, 668 F. Supp. 2d 7, 19 (D.D.C. 2009) (finding that the denial
of a request for leave is more akin to a discrete act such as failure to promote, termination, or
refusal to hire); Kilby-Robb v. Spellings, 522 F. Supp. 2d 148, 164 (D.D.C. 2007) (disallowing
the plaintiff from using the denial of a Telework claim as support for a hostile work environment
claim). Thus, the denial of family and medical leave and Telework privileges had to occur
within the statutory window in order for this Court to have subject-matter jurisdiction to hear
those claims. Because the plaintiff asserted both forms of these claims as continuing violations,
she did not plead specific instances on which these allegedly discriminatory activities occurred.
Under a Rule 12(b)(1) analysis, the Court must scrutinize the plaintiff's allegations more
closely, Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003), and the plaintiff bears
the burden of proving by a preponderance of the evidence that the Court has subject-matter
jurisdiction over her claims, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The
plaintiff's unspecified allegations that "[d]uring her tenure as a Legal Administrative Analyst . .
. [she] requested advancements of leave for personal and family medical issues pursuant to the
15
Family and Medical Leave Act . . . [and that] most requests were denied although other
[employees] were granted such advancements of leave," Compl. ¶ 39, and that "[she] requested
numerous authorizations to perform her duties under the Telework policy . . . [and that] her
requests were denied," id. ¶ 43, do not establish by a preponderance of the evidence that any one
of these discrete incidences of denial of leave or denial of Telework privileges occurred within
the 180-day statutory window. Thus, these claims also fail to survive the defendant's 12(b)(1)
motion to dismiss, and the only discrete claim for which the plaintiff has established this Court’s
jurisdiction is the single § 1311 claim that the USCPB failed to promote her to the Grade 13/Step
5 level in September 2010, id. ¶ 36.
Turning to the plaintiff's continuing violation claims, which include harassment, unfair
discipline, and disparate treatment, all of which she asserts created a hostile work environment,
the Court finds that these claims survive the defendant's 12(b)(1) motion. The plaintiff contends
that most of this activity occurred "on an almost daily basis," Compl. ¶ 47, which, drawing all
reasonable inferences in favor of the plaintiff, Rann, 154 F. Supp. 2d at 64, suggests that the
discriminatory conduct occurred within the statutory window of April 17, 2010, to October 14,
2010. As the Supreme Court explained in Morgan, "[h]ostile environment claims are different in
kind from discrete acts. Their very nature involves repeated conduct . . . The 'unlawful
employment practice' therefore cannot be said to occur on any particular day. It occurs over a
series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment
may not be actionable on its own." 536 U.S. at 115. Therefore, these claims, under Morgan,
survive the defendant's 12(b)(1) motion to dismiss, because the plaintiff timely exhausted her
administrative remedies by disclosing this behavior in her October 2010 request for counseling.
Compl. ¶ 49.
16
Next, the Court must determine whether any of the plaintiff's claims over which this
Court has jurisdiction survive the defendant's 12(b)(6) arguments that she failed to state a claim
on which relief can be granted. See Defs.' Mem. at 3. The Court will first consider the plaintiff's
remaining § 1311 discrete claim, accepting as true both the allegations that in September 2010,
the defendant failed to promote the plaintiff to the Grade 13/Step 5 level, Compl. ¶ 36, and that
this was a promotion that had been promised to the plaintiff and to which she was allegedly
entitled, id. ¶ 24. Evaluating the specificity of this claim and the plausibility that the plaintiff
would be entitled to relief if this claim were proven, the Court finds that the September 2010
failure to promote allegation does not survive the defendant's Rule 12(b)(6) motion to dismiss
because the complaint does not allege facts sufficient to demonstrate that the USCPB's failure to
promote her to the Grade 13/Step 5 level constituted disparate treatment. The plaintiff alleges
that she "requested promotions as outlined [in the complaint] over a six year period, but she
never received the increases in Grade and Step, as expected and requested, although other
employees in her office received such promotions and increases." Id. ¶ 37. Even taking this
allegation to be true, the Court cannot find that the USCPB's failure to promote the plaintiff to
the Grade 13 level is evidence of discrimination, especially considering that the plaintiff’s pay
was increased each year, albeit through a step increase within the Grade 12 level. Id. ¶¶ 27-37.
If the plaintiff had factual support for the statement that other employees were granted the
"promotions and increases" she requested, id. ¶ 37, those facts should have been included in the
complaint. The plaintiff's mere allegation that other employees were promoted each year to
positions that she requested, even considered in the light most favorable to the plaintiff, is alone
insufficient to show that the failure to promote her to the Grade 13 level constituted unlawful
discrimination. Furthermore, the plaintiff's complaint alleges that she experienced
17
discrimination against her on the basis of her age and sex. 8 However, she asserts no allegations
in the complaint from which it can even be inferred that the plaintiff was treated differently
because of her age or sex. There is not a single point in the complaint where the plaintiff
presents a factual allegation even remotely related to age or sex discrimination; rather, she
simply makes the conclusory statement that the failure to promote her to the Grade 13 level was
based on her age and sex. Id. ¶ 55. This allegation amounts to no more than " an unadorned,
the-defendant-unlawfully-harmed-me accusation," Iqbal, __ U.S. at __, 129 S. Ct. at 1949 (2009)
(citing Twombly, 550 U.S. at 555-57), and as such the claim must be dismissed.
With respect to the plaintiff's § 1311 claim that she was "harassed . . . [o]n an almost a
daily basis" by her supervisor and her co-workers "with a continuous stream of text messages[,]
although they were all physically in the same office," Compl. ¶ 47, the Court finds that these
claims similarly fail to state a claim upon which relief may be granted. While the plaintiff does
attempt to present factual support for this hostile work environment claim, her mere assertion
that her supervisor and other employees "harassed [her] with e-mails, text messages[,] and
telephone messages demanding that she contact them although she was on leave," id. ¶ 48, is
insufficient, without more, to adequately plead a hostile work environment claim. Namely, the
plaintiff's statements that she was "mistreated, harassed, intimidated[,] and disrespected" by her
supervisor and co-workers "on a daily basis," id. ¶ 45, does not comply with Rule 8(a)(2) which
requires a "short and plain statement of the claim." Fed. R. Civ. P. 8(a)(2). Once again, rather
8
Notably, in her request for counseling filed on October 14, 2010, the plaintiff alleged "harassment, unfair
discipline, lack of promotion, disparate treatment[,] and denial of advanced paid leave for FMLA purposes because
of sex, disability and reprisal. . . in violation of the CAA." Defs.' Mem., Ex. 1 at 1. However, nowhere in her
complaint filed in this Court does she allege discrimination on the basis of a disability. The Court, therefore, fails to
understand why the plaintiff has alleged age discrimination in this case while having alleged discrimination on the
basis of a disability in her request for counseling.
18
than pleading factual allegations in support of her claims, the plaintiff's statement that she was
"mistreated, harassed, intimidated[,] and disrespected" by her co-workers, Compl. ¶ 45, is
nothing more than a legal conclusion. In other words, the plaintiff does not explain how she was
"mistreated, harassed, intimidated[,] and disrespected"; she merely avers in conclusory terms that
she was. In granting the defendant's motion to dismiss the plaintiff's hostile work environment
claims, however, the Court will do so without prejudice, 9 according the plaintiff a further
opportunity to allege more specifically in a subsequent action, if there is a basis for doing so, the
instances on which the alleged harassment occurred and the details as to how the content of the
text messages and e-mails constituted harassment.
In summary, regarding the plaintiff's § 1311 and § 1312 claims, the Court will grant the
defendant's motion to dismiss all of the plaintiff's claims for failure to promote that occurred
prior to April of 2010, pursuant to Rule 12(b)(1) because the plaintiff did not timely exhaust her
administrative remedies in accordance with the CAA as to those claims. Additionally, the
plaintiff's claims that she was repeatedly denied family and medical leave as well as the option to
work from home under the defendant’s Telework policy are dismissed under Rule 12(b)(1),
because the plaintiff does not demonstrate by a preponderance of the evidence that the Court has
subject-matter jurisdiction over these claims, which are properly classified, as discrete claims.
The plaintiff's claim that the defendant's failure to promote her to the Grade 13/Step 5 level in
September 2010, though timely, will be dismissed under Rule 12(b)(6), because the plaintiff fails
9
See Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006) (emphasis in original) (citing Firestone v.
Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)) ("The standard for dismissing a complaint with prejudice is high:
dismissal with prejudice is warranted only when a trial court determines that the allegation of other facts consistent
with the challenged pleading could not possibly cure the deficiency… [T]herefore, a complaint that omits certain
essential facts and thus fails to state a claim warrants dismissal pursuant to Rule 12(b)(6)[,] but not dismissal with
prejudice.") (internal quotation marks omitted).
19
to present even a single fact suggesting that the failure to promote her to this particular grade
level amounted to discriminatory treatment based on her age or sex. Finally, the Court will also
grant the defendant's motion to dismiss under Rule 12(b)(6) the plaintiff's hostile work
environment claim, comprised of allegations that she was continually "mistreated, harassed,
intimidated[,] and disrespected" by her supervisor and co-workers, because she has failed to
present any factual allegations of harassment. Accordingly, the Court will dismiss all of the
plaintiff's § 1311 and § 1312 claims.
D. The plaintiff's § 1317 claim
Section 1317 of Title 2 of the United States Code prohibits any intimidation, reprisal, or
discrimination against "any covered employee because the covered employee has opposed any
practice made unlawful by this chapter, or because the covered employee has initiated
proceedings, made a charge, or testified, assisted, or participated in any manner in a hearing or
other proceeding under this chapter." 2 U.S.C. § 1317(a). As noted in § 1401, violations of
§ 1317 are subject to the same exhaustion of administrative remedies before a district court has
subject-matter jurisdiction over the claim. 10
The plaintiff's § 1317 claim states that "[a]fter the March 1, 2011[] mediation, while at
home and under the care and supervision of her doctor, [Ms.] DeMar constantly e-mailed [the
p]laintiff demanding that she return to work," Compl. ¶ 84, and that "[the d]efandants wrongfully
served [the p]laintiff with a 'Leave Restriction' report which required [her] to provide medical
documentation for every hour she was not at work although she had previously provided said
10
Section 1401 also applies to an aggrieved employee asserting a § 1317 claim; thus, an aggrieved employee
alleging a § 1317 violation must also timely exhaust her administrative remedies as required by the CAA before a
district court will have subject-matter jurisdiction to hear that claim. 2 U.S.C. § 1401.
20
documentation." Id. ¶ 85. The plaintiff contends that these actions were in retaliation for the
unsuccessful March 2011 mediation, id. ¶¶ 82-88, which she initiated regarding the alleged
"harassment, unfair discipline, lack of promotion, disparate treatment[,] and denial of advanced
paid leave for FMLA purposes," Defs.' Mem., Ex.1 (Notice of Invocation of Mediation) at 1.
Assessing first whether the plaintiff's § 1317 claim survives the defendant's jurisdictional
arguments for dismissal, the Court finds that the plaintiff did not exhaust her administrative
remedy as to this claim. Therefore, the defendant's motion to dismiss must be granted as to this
claim. While the Court certainly understands how an employee who believes that she was
wronged by her employer may view as futile the need to further engage in an administrative
process conducted by the employer to attempt to remedy a violation that she believes resulted
from her prior participation in that same administrative process, the language of the CAA is clear
regarding this Court's jurisdiction. Section 1401 explicitly states that the resolution of any
claims arising under §§ 1311-1317 of the CAA requires the completion of the administrative
process before a district court has jurisdiction to hear the claim. 2 U.S.C. § 1401. Here, the
plaintiff alleges that she was retaliated against in March 2011, after—and directly because of—
her completed but unsuccessful participation in mediation. Compl. ¶¶ 52, 87. It is, therefore,
impossible that she could have exhausted her administrative remedy as to this claim during the
March 2011 mediation, because the alleged violation had not yet occurred. And there is no
indication that the plaintiff pursued her administrative remedies following the March 2011
mediation but before filing this lawsuit. While the plaintiff did allege a violation of § 1317 in
her October 2010 request for mediation, Defs.' Mem., Ex. 1 at 1, the alleged violation could not
possibly have been the March 2011 instance of purported retaliation, which would have occurred
after the completion of the mediation. Moreover, as this Court held in Gordon, "the completion
21
of counseling and mediation for one set of violations does not give the court jurisdiction over
related claims of retaliation that occurred after counseling had commenced; the administrative
remedies must be exhausted for each claim." 750 F. Supp. 2d at 92. For this reason, in order for
this Court to have subject-matter jurisdiction over the plaintiff's § 1317 retaliation claim, the
violation must have occurred within the statutory time period, and she must have requested
counseling and completed mediation in accordance with § 1401, which she did not do. Having
failed to exhaust her administrative remedies as to the alleged retaliation she suffered after the
failed March 2011 mediation, the defendant's motion to dismiss the plaintiff's § 1317 claim
pursuant to Rule 12(b)(1) must be granted. 11
IV. CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss pursuant to Rule 12(b)(1)
and Rule 12(b)(6) is granted.
SO ORDERED this 28th day of November, 2011. 12
REGGIE B. WALTON
United States District Judge
11
The plaintiff did allege a violation of § 1317 in her October 2010 request for mediation, Defs.' Mem., Ex. 1
at 1, but because retaliation is a discrete claim, she would have to allege more specifically the way in which she was
retaliated against after April 2010 in order to bring a claim under § 1317 in this Court. See supra at 11-13. If the
plaintiff can present a specific instance of retaliation that occurred between April 2010, and October 2010, she may
be able to show that she exhausted her administrative remedies for such a claim.
12
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
22