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March 24, 1997


The opinion of the court was delivered by: LAMBERTH

 This matter comes before the court on defendant's motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons stated below, defendant's motion is granted as to Counts I and II, and denied as to Count III.


 Plaintiff Susan V. Simens, a white female who works as a Special Agent for the Federal Bureau of Investigation ("FBI"), was hired by the Bureau in 1979. Pl.'s Comp., May 13, 1996 paras. 11, 13. Plaintiff was initially assigned to the New York Field Office of the FBI, where she remained until 1984. Simens alleges that during this time she "raised issues relating to gender-based discrimination," and from that time until this day, she "has been the victim of Defendant's systemic gender-based discrimination." Pl.'s Comp. para. 13.

 In 1984, plaintiff was transferred to the United States Capitol, then, in July of 1990 to the Washington Field Office. In March of 1991 she was transferred to FBI headquarters in the District of Columbia, where, she claims, "defendant also increased its level of unlawful systemic discrimination and hostile workplace against plaintiff all in violation of the federal civil rights laws." Pl.'s Comp. para. 15. Plaintiff has alleged three counts of sex discrimination and retaliation.


 On a motion for judgment on the pleadings under 12(c) of the Federal Rules of Civil Procedure, a court may not look at facts outside the pleadings, and furthermore, the moving party must demonstrate that no material fact is in dispute and that it is entitled to judgment as a matter of law. Peters v. Nat'l. Railroad Passenger Corp., 296 U.S. App. D.C. 202, 966 F.2d 1483, 1485 (D.C. Cir. 1992); see also Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988) (stating that all facts presented in the pleadings and any inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party). Importantly, a complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). These are difficult requirements to overcome, but by no means impossible.

 A. Gender Discrimination in Counts I and II

 Plaintiff puts forth three separate counts for her complaint. Count I alleges that she applied for a GM-14 Supervisory Special Agent position, advertised April 25, 1989, but the position was canceled. It was readvertised in September of that year, and Simens reapplied. Simens was not selected, but rather another woman, a woman Simens claims was less qualified for the position, was chosen instead. Simens argues that the selection board's "decision was [based] on plaintiff's gender, and was a pretext and subterfuge to unlawfully discriminate against plaintiff." Comp. para. 25. She also claims she was not selected as a form of retaliation.

 As a matter of law, considering the pleadings alone, plaintiff cannot make out a prima facie case of sex discrimination. Under the familiar prima facie test for failure to promote in violation of Title VII, a plaintiff must show (1) she belongs to a protected group; (2) she was qualified and applied for a promotion; (3) she was considered for and denied the promotion; and (4) other employees not members of the protected group were promoted at the time plaintiff's request for a promotion was denied. Johnson v. Brock, 258 U.S. App. D.C. 100, 810 F.2d 219, 223 (D.C. Cir. 1987) citing Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 951 (D.C. Cir. 1981).

 According to plaintiff, another woman was promoted instead of her. Thus, by her own admission, plaintiff has failed to show that an employee not a member of her protected group (female) was promoted instead.

 But Simens says take one giant step backwards. She believes that the fourth prong of the prima facie case no longer exists. According to Simens, the United States Supreme Court, in a brief, unanimous opinion written by Justice Scalia in O'Connor v. Consolidated Coin Caterers Corp., 134 L. Ed. 2d 433, 116 S. Ct. 1307 (1996), has completely eradicated the prima facie requirement that a member of a non-protected class be promoted instead of the plaintiff.

 In O'Connor, the Court looked at a claim under the Age Discrimination in Employment Act ("ADEA") where a 56 year-old plaintiff was fired and replaced by a 40 year-old worker. The Court held that the McDonnell Douglas prima facie framework *fn1" is applicable to ADEA claims, but because employees aged 40 and over are covered by the ADEA, an issue was raised as to whether the plaintiff could state a prima facie case given in the face of a prima facie requirement that a replacement be outside the protected class. The Court said the plaintiff could press his age discrimination claim notwithstanding that fact. With respect to the ADEA, it is not a sine qua non that a protected person be replaced by someone outside the protected class. As the Court stated

the ADEA does not ban discrimination against employees because they are aged 40 or over; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. Or, to put the point more concretely, there can be no greater inference of age discrimination (as opposed to '40 or over' discrimination when a 40 year-old is replaced by a 39 year-old than when a 56 year-old is replaced by a 40 year-old. Because it lacks ...

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