The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge
Pending for determination by the undersigned United States Magistrate Judge is Defendant's Motion to Dismiss, or, in the Alternative, for Summary Judgment (Docket No. 11). Plaintiff, an African-American female employed by defendant Smithsonian Institution, sues her employer for violations of Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e, et seq. Plaintiff claims that her employer "discriminated against her on the basis of her sex, race and color, by the creation of a hostile work environment, and by retaliating against her[.]" Complaint (Title VII) for Declaratory, Injunctive and Monetary Relief Arising from Employment Discrimination and Retaliation on the Basis of Sex, Race and Color ("Complaint"), ¶¶ 1-2. Plaintiff's two-count complaint alleges intentional discriminatory and retaliatory denial of career opportunity on the basis of race and sex (Count I), and intentional discriminatory and retaliatory removal of duties amounting to a demotion on the basis of race and sex (Count II). Complaint, ¶ ¶ 25-28.
Plaintiff has been employed by the Smithsonian Institution since 1986 in a number of capacities. Complaint, ¶ 4. In February, 1992, Claudine Brown, the alleged discriminating official, assigned plaintiff to the defendant's Duke Ellington program as a fiscal manager at the GS-11 level. Complaint, ¶ 7. Plaintiff states that her primary responsibility was to "administer all expenditures" by the Duke Ellington program and the National African-American museum project. Complaint, ¶ 6. Plaintiff alleges that she had a good working relationship with Ms. Brown prior to 1992 when Mr. Akbar Ali *fn1 became employed as a project coordinator for the Duke Ellington Project. Complaint, ¶ 10. Plaintiff claims that prior to 1992, plaintiff had never been disciplined for misconduct and had received "outstanding" or "excellent" performance appraisals. Complaint, ¶ 9. Plaintiff alleges that prior to February, 1992, Ms. Brown assigned her to projects performed by higher level employees with the understanding that she would receive a promotion to the GM-13 level. Complaint, ¶ 10. In February, 1992, Ms. Brown ordered plaintiff to award a contract to Mr. Akbar Ali for him to serve as a project coordinator for the Duke Ellington Project. Complaint, ¶ 8.
Plaintiff asserts that Ms. Brown and Mr. Ali had a personal relationship prior to February, 1992. Complaint, ¶ ¶ 2, 21. Plaintiff asserts that because "Ms. Brown's personal relationship with Mr. Ali was a relationship based on their sex, and because Ms. Brown believed that plaintiff's performance of her duties interfered with that relationship, Ms. Brown discriminated against plaintiff." Plaintiff further maintains that such discrimination "amounts to sexual discrimination." Complaint, ¶ 21. Plaintiff also contends that "such discrimination also was racial, because Ms. Brown treated plaintiff, a Black female, differently from whites." Id.
Plaintiff claims that her relationship with Ms. Brown "deteriorated rapidly when plaintiff became aware of improprieties, irregularities and possible violations of the law by Mr. Ali, regarding his handling of financial matters on the Ellington project." Complaint, ¶ 11. Plaintiff identifies at least seven instances of "discriminatory treatment" by Ms. Brown "because of Ms. Brown's personal relationship with Mr. Ali[.]" Complaint, ¶ ¶ 12-18. For example, plaintiff alleges that on March 23, 1992, she told Ms. Brown that Mr. Ali had violated federal regulations by purchasing food for a project workshop with federal funds, and that Ms. Brown allegedly responded by "[holding] plaintiff culpable for [Mr. Ali's] financial irregularity." Complaint, ¶ 12.
Plaintiff further alleges that Ms. Brown "also engaged in retaliatory acts against plaintiff, designed to harass and humiliate her, and to damage plaintiff's credibility with others, so that plaintiff's questions about Mr. Ali's irregularities and improprieties would not be taken seriously by other Smithsonian employees." Complaint, ¶19. Specifically, plaintiff alleges that Ms. Brown directed another supervisor, Ms. Bonds, to conduct an internal audit of plaintiff's financial records; that Ms. Brown refused, without explanation, to "sign off" on plaintiff's "outstanding" performance evaluation which Ms. Bond prepared; and that on June 7, 1992, Ms. Brown failed to promote plaintiff to GS-11, allegedly "in retaliation of plaintiff's questioning of Mr. Ali about the above irregularities and improprieties." Complaint, ¶ 19.
Plaintiff further alleges that the alleged discrimination and retaliation "created a hostile work environment for plaintiff." Complaint, ¶20. Plaintiff alleges that Ms. Brown became discourteous with her; that Ms. Brown would not address her by name; that Ms. Brown attacked plaintiff's "work product and integrity"; and that some other employees, sensing Ms. Brown's "disapproval," became distant and "discontinued plaintiff's involvement in their projects." Id.
With respect to her claim that Ms. Brown treated her differently from white employees, plaintiff alleges that (1) Ms. Brown made certain that white employees received their promotions timely, but that she was not promoted; (2) Ms. Brown approved performance appraisals and recommendations for awards and promotions from white supervisors, but challenged those same requests if they came from black supervisors; (3) that three white co-workers received their cash awards for their work in 1992, but that she had to wait until 1993; and (4) that a white employee who received an "unsatisfactory" job performance evaluation did not face any adverse job action, and was allowed to "loaf." Complaint, ¶21.
CONTENTIONS OF THE PARTIES
Defendant moves to dismiss plaintiff's Complaint for failure to state a claim upon which relief can be granted, or alternatively, for summary judgment, on the ground that no genuine issue of material fact exists and defendant is entitled to judgment as a matter of law. Specifically, defendant claims that plaintiff has "failed to assert a cognizable claim of discrimination pursuant to Title VII." Memorandum in Support of Defendant's Motion to Dismiss, or, in the Alternative, for Summary Judgment ("Defendant's Memorandum") at 12. Defendant asserts that "Title VII does not protect against the type of purported discrimination plaintiff alleges -- differential treatment arising from a supervisor's alleged romantic relationship with a contractor." Defendant's Memorandum at 13 (citations omitted). Defendant maintains that while such treatment may be unfair, it is not violative of Title VII. Defendant further maintains that "plaintiff has not claimed or demonstrated that Ms. Brown treated her differently from any employee--male or female, black or white--who might have voiced opposition to the perceived favoritism received by Mr. Ali." Id.
Defendant maintains that plaintiff similarly has failed to state a claim of hostile work environment, in that she has failed to allege "severe, pervasive harassment based on her gender or race." Defendant's Memorandum at 15 (citations omitted). Defendant characterizes plaintiff's allegations as "isolated incidents," none of which even "remotely involved or even referred to sexually-or racially-based comments or conduct." Defendant's Memorandum at 16.
Finally, defendant maintains that "plaintiff has failed entirely to establish a prima facie case of retaliation." Defendant's Memorandum at 17. Defendant claims that the plaintiff's complaint fails to describe a causal link between the alleged adverse action taken against her and any protected activity. Defendant claims that because plaintiff's complaints concerned only Mr. Ali's alleged fiscal misconduct, such complaints were "in no way related to perceived violations of Title VII[,] [and] therefore, [did] not constitute 'protected activity' under Title VII." Id. In addition, defendant maintains that because plaintiff did not seek EEO counseling until August, 1993, and the alleged retaliation occurred prior to that time, there is no causal connection between the protected activity and the alleged retaliatory conduct. Defendant's Memorandum at 17-18.
Plaintiff, in her opposition, submits that defendant's motion to dismiss must be treated as a motion for summary judgment because defendant "has submitted extensive written evidence 'outside the pleadings.'" Memorandum of Points and Authorities in Support of Plaintiff's Opposition to: Defendant's Motion to Dismiss, or in the Alternative, Summary Judgment ("Plaintiff's Opposition") (Docket No. 24) at 14. Plaintiff further maintains that she "has provided this Court with sufficient facts to survive a summary judgment challenge." Plaintiff's Opposition at 15. With respect to her claim of discrimination, plaintiff, relying on King v. Palmer, 778 F.2d 878 (D.C. Cir. 1985), states that this Circuit recognizes "Title VII's reach into 'third-party' sex discrimination cases, where such sex discrimination is directed against a third party as a result of a relationship between two (2) other parties." Plaintiff's Opposition at 16-17. Plaintiff submits that her "demotion . . . was done because she was female 'competition' for Ms. Brown and that Ms. Brown desired to neutralize [her] effectiveness on the job." Plaintiff's Opposition at 17. Plaintiff submits that Ms. Brown "did not treat her white subordinates in this same manner." Id.
Next, plaintiff maintains that she need not establish a prima facie case of harassment at this stage, and need show only "that there is a factual dispute concerning the existence of a hostile environment." Plaintiff's Opposition at 18. Plaintiff claims that defendant created a hostile work environment by (1) Ms. Brown's comment to her regarding her "real problem"; and (2) Ms. Brown's constant criticism of her "by memoranda in an attempt to keep [her] from becoming a female 'competitor' for Mr. Ali." Plaintiff's Opposition at 18-19.
Finally, with respect to her retaliation claim, plaintiff submits that "[t]hroughout the harassment and the discrimination, [she] complained about defendant's treatment." Plaintiff's Opposition at 19-20. She states that her complaints "culminated" in her decision to file an EEO complaint "sometime in June or early July 1992." Plaintiff's Opposition at 20. Plaintiff argues that there is a causal connection between her complaints of harassment and discrimination and the adverse actions about which she complains. Plaintiff's Opposition at 20-21.
Defendant, in its reply, maintains that plaintiff's opposition is untimely, and that in any event, she has failed to "demonstrate any legitimate ground for defeating Defendant's Motion or otherwise raise a genuine dispute regarding any material fact." Defendant's Reply to "Plaintiff's Opposition to: Defendant's Motion to Dismiss, or in the Alternative, Summary Judgment" ("Defendant's Reply") (Docket No. 15) at 1. Defendant observes that plaintiff did not comply with the requirement of Local Rule 7.1(h) *fn2 that an opposition to a motion for summary judgment shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to ...