The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Lannie Prince brings this action against defendant U.S. Department of State pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§1981"), purporting to challenge defendant's disparate treatment of her based upon her age,*fn1 race, and gender, as well as the disparate impact allegedly inflicted upon her by a facially-neutral employment practice. Plaintiff also asserts that defendant intentionally caused her to suffer emotional distress and retaliated against her for her participation in a protected activity -- specifically, the filing of a discrimination complaint at the administrative level challenging her relocation from a "large enclosed office to a small cubicle that previously had been used [as] a supply storage area." See Amend. Compl. at 11 ¶ 30. Presently before the Court is defendant's motion to dismiss all claims. For the reasons that follow, defendant's motion to dismiss will be granted in part and denied in part.
Plaintiff, an African-American female, is employed as an Equal Employment Opportunity Specialist at the GS-12 level with the Office of Civil Rights. Id. at 4 ¶ 5; id. at 10 ¶ 24. Sometime prior to August 2003, Barbara Pope, the Assistant Secretary for Civil Rights, announced that one of her initiatives was to "improve and change the Department's ranking against other agencies and to reduce the time required to process complaints." Id. at 4 ¶ 7. In this regard, Ms. Pope offered to upgrade staff positions to the GS-13 level provided that the staff members assisted her in reducing the case load and processing cases within 180 days. Id. at 5 ¶ 8. Plaintiff expressed her desire to have her position upgraded and her job description redrafted accordingly, and claims that Ms. Pope indicated to her that she had taken appropriate steps toward accomplishing this for plaintiff by contacting the central personnel office. Id. at 5 ¶ 9. In order to aid in pursuing her initiative, Ms. Pope decided that the individuals then employed as EEO Specialists (including plaintiff) would need to be involved in all aspects of processing cases. Id. at 5 ¶ 10. Accordingly, she changed their titles to EEO Managers and required them to perform the additional task of acting as a liaison with management during the pendency of investigations and the processing of cases. Id. at 5 ¶ 10.
Sometime in late 2002 or early 2003, Vacancy Announcement #03-0047 was posted, announcing the availability of one GS-13 position. According to plaintiff, she was interested in the position, but the announcement listed only one vacancy. Id. at 7 ¶¶ 14, 15; id. at 8 ¶ 20. Plaintiff did not believe herself to be the best-qualified candidate, and, as a result, decided not to apply for the position. Id. at 7 ¶ 16. When the vacancy was filled by Ms. Pope in March 2003, however, five individuals were hired. Id. at 8 ¶ 17, 7 ¶ 14. Plaintiff claims that had she known there was the potential for more than one candidate to be selected, she would have applied. Id. at 8 ¶ 18. Presumably, then, although she did not think she would be the best-qualified candidate, she does believe she would have been in the top five. Id. Of the five selectees for the position, plaintiff claims that only one was an employee of the Office of Civil Rights; the remainder were taken from other government agencies or different offices of defendant. Id. at 9 ¶ 21.
Later, in the summer of 2003, Ms. Pope delegated the authority to draft job descriptions to Mr. Frederick Whittington, a new employee. Id. at 6 ¶ 11. Mr. Whittington drafted a position description for the EEO Specialists (including plaintiff) that did not mention the new duties that accompanied the designation as EEO Manager. Id. at 6 ¶ 12. Plaintiff claims that the employees were told to review the position descriptions and submit feedback, but that no one ever followed-up to amend the description as she recommended or to upgrade her position from GS-12 to GS-13. Id. Shortly thereafter, on August 6, 2003, plaintiff filed a complaint against defendant alleging race, gender, and age discrimination based upon Pope's failure to redraft her position "as promised." Id. at 4 ¶ 6. According to plaintiff, Pope's failure to fulfill her promise caused plaintiff to be denied a promotion. Id. Pope allegedly declined to participate in alternative dispute resolution or mediation activities with plaintiff, despite her willingness to do so with respect to "similarly situated" Caucasian employees. Id. at 6-7 ¶ 13.
Plaintiff contends that the August 6, 2003 discrimination complaint also alleged that she had been retaliated against by defendant, although it is unclear on what basis. See id. at 4 ¶ 6. The Amended Complaint alleges that plaintiff was removed from a "large enclosed office to a small cubicle that previously had been used [as] a supply storage area," after which she filed a second discrimination complaint challenging this relocation. Id. at 11 ¶ 31. As a result of having filed this complaint, plaintiff claims that she was retaliated against in three ways: (1) defendant removed the "the EEO [C]ounselor Co-ordinator duties" from her job responsibilities, id. at 11-12 ¶ 31; (2) her "third-line supervisor" refused to assign her to an "enclosed office or any other work area when one became available," id. at 11-12 ¶ 31; and (3) defendant designated plaintiff as Absent Without Leave ("AWOL") during the three hours that she left work on or about November 2, 2004 to "exercise her rights to vote" at the polls, id. at 12 ¶ 32. As a result of her designation as AWOL, plaintiff lost three hours' pay. Id. She subsequently filed a third administrative discrimination complaint (following the initiation of the present court action) that challenges her AWOL designation. See Def.'s Exh. 1.
I. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure will not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987). All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley, 355 U.S. at 47). "Given the Federal Rules' simplified standard for pleading, '[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiff if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Comm. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Domen v. Nat'l Rehab. Hosp., 925 F. Supp. 830, 837 (D.D.C. 1996) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
II. Conversion of a Motion to Dismiss to a Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56(c)
When, on a Rule 12(b)(6) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 12(b); see Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003). Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 'which it believes demonstrate the absence of a genuine issue of material fact.'" Id. (quoting Fed. R. Civ. P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at ...