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SULLIVAN-OBST v. POWELL

January 29, 2004.

KATHIE SULLIVAN-OBST, Plaintiff,
v.
COLIN L. POWELL, Secretary, Department of State, Defendant



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT
I. INTRODUCTION
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 that count. Page 2

II. BACKGROUND

  A. Factual Background

  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.

  B. Procedural History

  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 Page 3 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 that motion.

  III. ANALYSIS

  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 Page 4 "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 248.

  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 judgment. Id.

  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. Page 5 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 Dismiss
  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 ...

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