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GUSTAVE-SCHMIDT v. CHAO

September 30, 2002

ANA GUSTAVE-SCHMIDT, PLAINTIFF,
V.
ELAINE L. CHAO, ET AL., SECRETARY, DEPARTMENT OF LABOR DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton, United States District Judge

MEMORANDUM OPINION

I. Factual Background

The plaintiff, a forty-eight year-old Hispanic woman, was employed as an international economist at the United States Department of Labor ("DOL") from March 10, 1991, to March 3, 2000.*fn1 Complaint ("Compl.") at 3. In reciting the applicable facts of this case, the Court will set forth separately those facts that relate specifically to the plaintiff's workplace harassment and discrimination claims, his failure to promote claim, and the arbitration process.

(A) Allegations Involving Workplace Harassment and Discrimination

From July 22, 1992, and until the termination of her employment with the defendant, the plaintiff worked at the DOL's Division of Economic Research in the International Labor Affairs Bureau ("ILAB").*fn2 Id. From at least September 1, 1994, and until her termination, the plaintiff's direct supervisor was Defendant Gregory Schoepfle ("Supervisor" or "Defendant Schoepfle"). Id. at 6. On October 17, 1997, the plaintiff was apparently questioned by two agents of the DOL's Office of Inspector General ("OIG") regarding whether she sent a forged letter that was represented to be from a high-level DOL employee to the President of the Inter-American Bank of Development ("IABD").*fn3 Id. at 8. On July 7, 1998, during the course of this investigation, the plaintiff learned that two OIG agents wanted to speak to her and she apparently requested the presence of her Local 12, AFGE, AFL-CIO ("Local 12") union representative during the interview. However, after one of the OIG agents unsuccessfully attempted to contact the plaintiff's union representative, the plaintiff requested the presence of another union representative at the interview, which was allegedly denied by the OIG agents. Id. The plaintiff asserts that at this interview, the two OIG agents attempted to pressure her into signing a confession stating she had written the forged letter and had sent it to the President of the IABD. Id. Furthermore, the plaintiff alleges that the OIG failed to reasonably investigate the matter and that her Supervisor informed the agents that the signature and the use of expressions in the letter in question were similar to the plaintiff's handwriting and writing style, and pointed to a typewriter near the plaintiff's office which he said produced a similar "style of type" to that of the forged letter. Id. at 8-9.

This incident allegedly resulted in the plaintiff visiting the DOL's Health Unit. Id. On October 13, 1999, the plaintiff's Supervisor issued a proposal to remove the plaintiff from her position for intentionally misrepresenting two research documents as her own independent work, although she asserts that she never claimed authorship for either of these documents. Id. at 11. Finally, the plaintiff claims that beginning in October 1999, and continuing until her termination, the defendants were "engaged in monitoring the [p]laintiff's whereabouts, and her arrivals and departures from the DOL building during her customary working hours." Id. She asserts that she is unaware of any other DOL employee being monitored in such a manner. Id.

(B) Allegations Involving Failing to Promote

On January 8, 1999, the plaintiff applied for a vacancy in the ILAB and, according to the plaintiff, on January 11, 1999, the DOL allegedly modified the position description "from a GS-11/12 to a GS-11/12/13 to the advantage of an applicant outside of the DOL."*fn4 Id. Apparently, while the plaintiff was qualified for this position at all three of these GS levels, the DOL chose an applicant from outside of the ILAB who was "a white female under the age of forty years" and who did not have a Ph.D. degree like the plaintiff. Id. at 6-7.

(C) The Arbitration Process

At all times relevant to this case, Local 12 was the collective bargaining unit and the "designated agency" for the negotiated grievance procedure under the collective bargaining agreement between the DOL and the plaintiff.*fn5 Id. at 4. On May 10, 1999, the plaintiff filed her first grievance with Local 12 with allegations regarding her work environment, public humiliation, and a pattern of harassment, which was "invoked to arbitration" in either August or September 1999.*fn6 Compl. at 3-4; Plaintiff's Opposition to Defendants' Motion for Partial Dismissal of Plaintiff's Complaint ("Pl.'s Opp'n") at 13. On June 17, 1999, the plaintiff filed her second grievance with Local 12 regarding her suspension for the forged letter incident. Compl. at 4. This grievance was apparently supposed to be arbitrated on December 6, 1999, but the DOL cancelled the hearing. Id. On July 12, 1999, the plaintiff filed her third grievance with Local 12 regarding "a merit system violation and hostile treatment by" her Supervisor. Compl. at 4; Pl.'s Opp'n at 13. On July 15, 1999, the plaintiff filed a complaint of discrimination on the bases of national origin, sex, and age with the Equal Opportunity Office ("EOO") of the DOL due to her non-selection for a position as a GS-13-14 economist. Compl. at 4. Finally, on November 24, 1999, the plaintiff filed a fourth grievance with Local 12, in which she alleged retaliatory discharge by her Supervisor. Pl.'s Opp'n at 14.

From February 14-17, 2001, an arbitration hearing was conducted, in which the arbitrator considered the plaintiff's retaliatory discharge claim and her allegations of misconduct by defendants concerning: the OIG investigation, her proposed suspension, and the workplace harassment.*fn7 Compl. at 4-5. The arbitrator subsequently denied the plaintiff's grievance on June 5, 2000. Id. at 5. The plaintiff filed an appeal of the arbitrator's decision with the Merit System Protection Board ("MSPB") on July 10, 2000. Id. On March 14, 2001, the MSPB issued its final decision denying the plaintiff's petition and the plaintiff subsequently filed a complaint with this Court on April 12, 2001. Pl.'s Opp'n at 14.

II. Standard of Review

(A) Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) requires the plaintiff to bear the burden of establishing by a preponderance of the evidence that the court has jurisdiction to entertain her claims. Fed. R. Civ. P. 12(b)(1); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp.2d 9, 13 (D.D.C. 2001) (holding that the court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp.2d 15, 18 (D.D.C. 1998); Darden v. United States, 18 Cl. Ct. 855, 859 (Cl. Ct. 1989). While the Court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), because the plaintiff has the burden of proof to establish jurisdiction, the "`plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police, 185 F. Supp.2d at 13-14 (citation omitted). Finally, the Court notes that in deciding a 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint but may consider material outside of the complaint in an effort to determine whether the court has ...


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