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December 12, 2002


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


This matter comes before the Court upon defendant's motion to dismiss the plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The plaintiff brings this cause of action pursuant to Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq., (2000) ("Title VII"), 42 U.S.C. § 1981 (2000) ("Section 1981"), 42 U.S.C. § 1981(a) (2000) ("Section 1981(a)"), and 42 U.S.C. § 1983 (2000) ("Section 1983") and alleges: (1) employment discrimination based on religion, race, national origin, age and sex; (2) retaliation; (3) the creation of a hostile work environment; (4) wrongful discharge; (5) intentional and negligent infliction of emotional distress; (6) negligent hiring, supervision, and retention; and (7) defamation. Amended Complaint and Prayer for Jury Trial ("Compl.") at 9-13. Upon consideration of the parties' submissions and for the reasons set forth below, the Court must deny the defendants' motion to dismiss the plaintiff's race discrimination claims under Title VII and Section 1981 because, contrary to the defendants' assertion, she has sufficiently pled an adverse action. However, the Court must grant the defendants' motion to dismiss the plaintiff's religious discrimination claim, because it is barred by the religious entities exception of Title VII, and all of her remaining claims because she has failed to respond to the defendants' motion to dismiss those claims and therefore this Court will treat those claims as conceded.

I. Factual Background

A brief description of the defendants, all affiliates of the United Methodist Church ("the Church"), is a necessary predicate prior to addressing the facts of this case.

(A) The United Methodist Church

Each of the defendants are "entities and affiliates of the Church . . ." Id. at ¶ 7. Within the Church, "the main legislative and policymaking body is a quadrennial General Conference." Defendants' Motion to Dismiss ("Defs.' Mot.") at 4. The Church's General Conference has established general boards, including defendant General Board of Global Ministries ("General Board"), "to carry out assigned functions of program, administration, and/or service." Id. at 6 (quoting The Book of Discipline of The United Methodist Church (Harriet Jane Olson, ed., 2000) ("Book of Discipline")*fn1 at ¶ 703). The Book of Discipline "sets forth various responsibilities and objectives for Defendant General Board, involving such matters as missionary work of various types, ministering to human need, expressing the concerns of women, etc."*fn2 Id. (citing Book of Discipline at ¶¶ 1302-03). Defendant Women's Division of the General Board ("Women's Division") has

responsibilities [that] include such matters as securing funds `for the support of the program of the Church through the General Board of Global Ministries;' involving women in church activities; enlisting women in activities `that have a moral and religious significance of the public welfare and that contribute to the establishment of a just global society;' and recommending programs and policies to United Methodist Women.

Id. at 6-7 (quoting Book of Discipline at ¶ 1318). Finally, Defendant United Methodist Women is an auxiliary to the Women's Division with a mission "to promote its work in accordance with the program and policies of the Women's Division . . ." Book of Discipline at ¶ 533.

(B) Factual Background of This Case

The plaintiff, a Native American female, who is not a member of the Church, was employed in the Women's Division as an Executive Secretary for Economic Justice from June 14, 1996 until June 18, 1999. Compl. at ¶ 8; Defs.' Mot. at 7. According to the plaintiff, shortly after she began working for the Women's Division she voiced her "concerns" to her immediate supervisor about what she describes as an "unwritten job requirement that executive level staff . . . were to participate in United Methodist worship, devotions and or prayer services." Compl. at ¶ 11. The plaintiff allegedly continued to complain that such attendance at the Church's religious services was contrary to her own religious beliefs and in 1998 she began to either not attend or arrived late to these religious services. Id. at ¶ 12. During this time period, defendants allegedly required the plaintiff "to increasingly write and develop resources and participate in meetings or exercises that involved advance use and understanding of Biblical scripture and many United Methodist, [sic] multimedia resources." Id. at ¶ 13. The plaintiff states that she "periodically . . . indicated to her supervisor . . . that she found a few of the [aforementioned] tasks unpleasant or difficult based either upon her religion, race or ethnicity, or national origin." Id. at ¶ 14. In addition, the plaintiff claims that while several of her peers were experts in matters related to "Native American and indigenous peoples[,]" her supervisor assigned her to tasks related to these issues. Id. The plaintiff also asserts that she "repeatedly made requests to her supervisor for necessary office equipment to carry out her job function tasks . . . and to have support staff disciplined for poor job performance." Id. at ¶ 15. Beginning in the middle of 1997, the plaintiff allegedly brought complaints of discrimination to her supervisor, who promised remedial action, but according to the plaintiff her claims were ignored. Id. a ¶¶ 16-17. Then, in the middle of June 1999, the plaintiff was terminated from her job for insubordination, which, according to plaintiff, violates the defendants' "own employment policies and guidelines[,]" id. at ¶ 22, and allegedly was in response to complaints she lodged with the defendants' "leadership personnel" about the inaction by her immediate supervisor towards her prior claims, id. at ¶ 20. The plaintiff claims that the defendants "manufactured [a] reason to terminate [her] based upon her inability to attend two back-to-back meetings." Id.

II. Standards 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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