The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING THE DEFENDANT'S MOTION TO DISMISS AND FOR
This case comes before the court on the defendant's motion to dismiss
and for summary judgment. The plaintiff alleges racial and sexual
discrimination in violation of Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. § 2000e et seq.; age discrimination
in violation of the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 621 et seq.; and retaliation in violation of Title
VII and of the Family and Medical Leave Act ("FMLA"),
29 U.S.C. § 2601 et seq. The plaintiff also alleges a violation of the
Privacy Act, 5 U.S.C. § 552a. Because the plaintiff has not made out
a prima facie case for a hostile work environment based on race or sex,
for retaliation under either Title VII or the AEDA, or for a violation of
the Privacy Act, the court grants the defendant's motion for summary
judgment on those counts. The court further concludes that the plaintiff
can prove no set of facts which would entitle her to relief under the
FMLA. Accordingly, the court grants the defendant's motion to dismiss on
The Department of State ("State Department") employed the plaintiff, a
53 year old Caucasian female, as a secretary from January 1991 until
April 28, 2000. Am. Compl. ("Compl.") ¶ 4. The plaintiff alleges that
throughout her tenure working in various offices within the State
Department, her supervisors subjected her to a litany of abusive behavior
motivated by a discriminatory and retaliatory animus. See generally
id. Specifically, the plaintiff alleges discrimination on the basis
of race, sex, and age, and that her supervisors retaliated against her
for engaging in Equal Employment Opportunity ("EEO") activity and
exercising her rights under the FMLA. Id. ¶¶ 71-99. The
plaintiff also contends that a supervisor violated her rights under the
Privacy Act. Id. ¶¶ 100-103.
The plaintiff filed EEO complaints regarding the alleged discrimination
on June 5, 1995, August 18, 1997, and January 7, 2000. Id. ¶¶
7-9; Def.'s Mot. at 9-10, 13. After various supervisors warned her about
her deficient work performance, and conducted an investigation into
sexual harassment charges filed against her, the defendant terminated the
plaintiff, citing misconduct and leave abuses. Compl. ¶ 69; Def.'s
Mot. Ex. F.
On March 27, 2000, the plaintiff, proceeding pro se, filed a
complaint alleging discrimination, retaliation, the creation of a hostile
work environment, and violation of the FMLA. On July 6, 2001, the
plaintiff initiated a second pro se case by filing a complaint
containing many of the same claims alleged in the first complaint, but
also setting forth new facts and claims regarding alleged violations of
the FMLA, the Privacy Act and the creation of a
hostile work environment.
On January 4, 2002, the court consolidated the two cases. On February
11, 2003, the plaintiff retained counsel to represent her in the
now-consolidated litigation. On March 6, 2003, the defendant filed a
motion to dismiss and for summary judgment. In a July 2, 2003 order,
however, the court struck the complaints along with the motion to
dismiss, explaining that "[t]he parties' submissions would prevent the
court from rendering a fair ruling because they do not crystallize the
relevant issues and they are disorganized." Order dated July 2, 2003.
Accordingly, the court ordered the parties to re-file the complaint and
dispositive motion. Id. On July 23, 2003, the plaintiff
submitted a seven-count amended complaint alleging (1) retaliation in
violation of Title VII; (2) age discrimination in violation of the ADEA;
(3) discharge in violation of the FMLA; (4) retaliation in violation of
the FMLA; (5) sex discrimination in violation of Title VII; (6) race
discrimination in violation of Title VII; and (7) violation of the
Privacy Act. Compl. ¶¶ 71-103. On October 6, 2003, the defendant filed
a new motion to dismiss and for summary judgment. The court now turns to
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED. R. C. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood,
43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are
"material," a court must look to the substantive law on which each
claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A "genuine issue" is one whose resolution could establish an
element of a claim or defense and, therefore, affect the outcome of the
action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at
In ruling on a motion for summary judgment, the court must draw all
justifiable inferences in the nonmoving party's favor and accept the
nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A
nonmoving party, however, must establish more than "the mere existence of
a scintilla of evidence" in support of its position. Id. at 252.
To prevail on a motion for summary judgment, the moving party must show
that the nonmoving party "fail[ed] to make a showing sufficient to
establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322. By pointing to the absence of evidence
proffered by the nonmoving party, a moving party may succeed on summary
In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.
Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993).
Rather, the nonmoving party must present specific facts that would enable
a reasonable jury to find in its favor. Greene, 164 F.3d at 675.
If the evidence "is merely colorable, or is not significantly probative,
summary judgment may be granted." Anderson, 477 U.S. at 249-50
(internal citations omitted). Finally, the D.C. Circuit has directed that
because it is difficult for a plaintiff to establish proof of
discrimination, the court should view summary-judgment motions in such
cases with special caution. See Aka v. Washington Hosp. Ctr.,
116 F.3d 876, 879-80 (D.C. Cir. 1997), overturned on other grounds,
156 F.3d 1284 (D.C.
Cir. 1998) (en banc); see also Johnson v. Digital Equip.
Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
B. Legal Standard for a Rule 12(b)(6) Motion to
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a
complaint. Browning v. Clinton, 292 F.3d 235
, 242 (D.C. Cir.
2002). The complaint need only set forth a short and plain statement of
the claim, giving the defendant fair notice of the claim and the grounds
upon which it rests. Kingman Park Civic Ass'n v. Williams,
348 F.3d 1033
, 1040 (D.C. Cir. 2003) (citing FED R. Civ. P. 8(a)(2) and
Conley v. Gibson, 355 U.S. 41
, 47 (1957)). "Such simplified
notice pleading is made possible by the liberal opportunity for discovery
and the other pre-trial procedures established by the Rules to disclose
more precisely the basis of both claim and defense to define more
narrowly the disputed facts and issues." Conley, 355 U.S. at
47-48 (internal quotation marks omitted). It is not necessary for the
plaintiff to plead all elements of his prima facie ...