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VELIKONJA v. MUELLER

April 13, 2004.

MARIA VELIKONJA, Plaintiff,
v.
ROBERT S. MUELLER, III, Defendant



The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge

MEMORANDUM OPINION

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.

  ANALYSIS

  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).

 I. MOTION TO DISMISS

  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 ...


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