The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge
Plaintiff was employed as an attorney for the Federal Bureau of
Investigation (the "FBI" or "Bureau") from January 2000 until she
resigned in September 2003. She contends that during her tenure, her
employer discriminated against her on the basis of her gender and
retaliated against her for protected EEO activities in violation of Title
VII of the Civil Rights Act of 1964, codified as amended at
42 U.S.C. § 2000e et seq. She also alleges violation of her First
Amendment rights, claiming her employer improperly retaliated against her
for her vocal advocation of alternative work schedules, and alleges that
her employer unlawfully disciplined her based upon documents maintained
in violation of the Privacy Act, 5 U.S.C. § 552a et seq.
Defendant has moved to dismiss the complaint, arguing that plaintiff
has failed to exhaust her administrative remedies for her Title VII
claims and that her First Amendment and Privacy Act claims are barred
because Title VII provides the exclusive judicial remedy for federal
employment discrimination. Defendant also argues that even if the Court
finds that plaintiff exhausted her administrative remedies, the FBI is
entitled to summary judgment on those claims because it had a legitimate,
non-discriminatory basis for the actions it took. As discussed below,
defendant's motion will be granted in part and denied in part. BACKGROUND
Plaintiff began employment with the Bureau in 1985. In September 1998,
while working as a Special Agent in the contract review unit of the
Bureau's Finance Division, she submitted a written request to use a
flex-time schedule. Her request was granted, and she proceeded to work
alternative hours. In January 2000, plaintiff was selected for a position
as an Assistant General Counsel/Supervisory Special Agent in the Bureau's
National Security Law Unit (NSLU) under a new supervisor, Michael Woods.
Although she did not submit a renewed written request for flex-time
approval, she continued to work a schedule that deviated from the typical
Bureau workday. Plaintiff claims that Mr. Woods expressly approved her
use of flex-time (Velikonja July 16, 2002 Dec. at 10-12; Pl's Facts ¶
90) and cites his handwritten notes to support her claim that she was
allowed to continue with her flexible schedule when she transferred into
the NSLU. (Pl's Facts Ex. B.)
In April and May 2000, Mr. Woods observed discrepancies in the hours
plaintiff claimed she worked as compared to the time she was observed
actually engaging in work activities. (Def.'s Facts at 9 ¶ 1.) He began
closely monitoring plaintiff's arrival and departure times by accessing
the electronic building access time logs and comparing them with
plaintiff's time entries, and by keeping notes to document his
surveillance. (Id.) In October 2000, the Bureau's Inspection Division
reviewed Mr. Woods' notes and records regarding plaintiff's time and
attendance, and the Bureau's Office of Professional Responsibility (OPR)
subsequently began an official investigation into plaintiffs time and
attendance on November 7, 2000. (Velikonja July 16, 2002 Dec. at 13-14;
Pl's Facts ¶ 63.) The next spring, while the OPR investigation was pending, Mr. Woods
again noticed what he perceived to be unauthorized absences. For
example, plaintiff signed out at 4:30 p.m. on a day when she was
allegedly observed leaving the Bureau's Quantico. facility at 1:00 p.m.
(Def.'s Facts at 11 ¶ 1.) On May 13, 2001, plaintiff was assigned to
Temporary Duty in Macedonia, but failed to report back to the NSLU upon
her return. (Id. at 12 ¶ 2.) Citing plaintiff's alleged "repeated time
and attendance discrepancies" and considering "the sensitive nature of
the work performed in the NSLU," the Bureau transferred her against her
will out of her position at the NSLU into the Procurement Law Unit in the
Bureau's Office of General Counsel on July 23, 2001. (Id. at 12 ¶ 3.)
Then, on July 27, 2001, the Bureau made a second referral to OPR of
discrepancies in plaintiff's time and attendance reports, focusing on her
temporary duty in Macedonia. (Id. at 13 ¶ 2.)
On January 30, 2002, the first OPR investigation was completed. Based
on its findings and conclusions, plaintiff was suspended for fourteen
days and placed on probation for one year for her alleged time and
attendance abuses. (Id. at 13 ¶ 5.) Before the second investigation was
completed, however, she resigned from the Bureau.
Her complaint contains six counts, including four brought under Title
VII. In Count I, she alleges that the OPR investigations subjected her to
special scrutiny because of her gender and in retaliation for her
involvement in activities protected under Title VII, and in Count II she
claims that the investigations were prejudicially delayed, also for
discriminatory and retaliatory reasons. In Count III, she alleges
disparate discipline, claiming that the suspension and probation
resulting from the first investigation were excessive and were imposed
because of her gender, and in Count IV, she alleges denial of her due
process rights during the disciplinary proceedings, claiming she was not afforded notice and an opportunity to be
heard on the charges brought against her. Plaintiff invokes the First
Amendment in Counts V, alleging that her employer retaliated against her
for exercising her free speech rights by, inter alia, advocating
alternative work schedules, and invokes the Privacy Act in Count VI,
claiming that the disciplinary action taken against her was based on
notes and materials "unlawfully" maintained by her supervisor.
Defendant contends that the Court should dismiss the portion of Count I
related to the first OPR investigation for plaintiff's failure to exhaust
the administrative remedies available for that claim, and that the
remainder of Count I, related to the second OPR investigation, should be
dismissed because it does not involve an actionable adverse action.
Defendant also argues for dismissal of Counts II, III, and IV for failure
to exhaust and of Counts V and VI for failure to state a claim. Finally,
defendant seeks summary judgment on plaintiff's Title VII claims because
the FBI had a legitimate, nondiscriminatory reason to discipline her.
With respect to a motion to dismiss, under Rule 12(b)(6), dismissal is
appropriate only where a defendant has shown "`beyond doubt that the
plaintiff can prove no set of facts in support of [her] claim which would
entitle [her] to relief.'" In re Swine Flu Immunization Prods. Liab.
Litig., 880 F.2d 1439, 1442 (D.C. Cir. 1989) (quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1955)). The allegations in plaintiff's complaint are
presumed true for purposes of a 12(b)(6) motion, and all reasonable
factual inferences should be construed in her favor. Maljack Prods.,
Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir.
1995); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir.
1979). If factual matters outside the pleadings are submitted and considered by the court, however, the motion must
be treated as one for summary judgment under Fed.R.Civ.P. 56. In such
cases, the standard changes from determining "whether a claim for relief
has been stated" to determining whether there is a "genuine issue of
material fact in dispute" and if "the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c).
Under Rule 56, dispute about a material fact is genuine, and should
preclude summary judgment, if the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits show that a
reasonable jury could return a verdict in favor of the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
contrast, a moving party is entitled to summary judgment against "a party
who fails 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 Corp. v. Catrett, 477 U.S. 317,
322 (1986). In considering a motion for summary judgment, "the court must
draw all reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the evidence." Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also
Washington Post Co. v. United States Dep't of Health & Human Servs.,
865 F.2d 320, 325 (D.C. Cir. 1989).
A. Exhaustion of Title VII claims
Defendant moves to dismiss plaintiff's Title VII counts on the theory
that she failed to exhaust the available administrative remedies before
bringing suit. Lodging a timely administrative charge is a prerequisite
to filing a Title VII claim in district court. See Jarrell v. United States Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985). An
employee complaining of discrimination must consult an Equal Employment
Opportunity (EEO) counselor within 45 days of the date of the allegedly
discriminatory action in order to try to informally resolve the matter.
See 29 C.F.R. § 1614.105(a)(1). As a general rule, discrimination claims
alleging conduct that occurred more than 45 days prior to the initiation
of administrative action are time-barred in a subsequent action before
the court. See Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir.
2001); Valentino v. United States Postal Serv., 674 F.2d 56, 65 (D.C.
Cir. 1982). If EEO counseling does not resolve the matter, the employee
must file a formal complaint with ...