The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Pending before the Court is Defendant Francis J. Harvey's motion to dismiss or, in the alternative, for summary judgment. Plaintiff Elena Coles, who is proceeding pro se, opposes the motion. Ms. Coles alleges that Defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), by subjecting her to sexual harassment and then retaliating against her after she complained. Having considered the parties' briefs and accompanying materials, the Court will grant Defendant's motion in part and deny it in part.
This case is related to an action that Ms. Coles brought against Kelly Services, Inc., a temporary employment agency for which Ms. Coles worked at the time of the alleged harassment. In that case, Ms. Coles - who had been assigned by Kelly Services to work at Walter Reed Army Medical Center ("WRAMC") - argued that Kelly Services had violated Title VII by subjecting her to sexual harassment at WRAMC and then discharging her when she complained. This Court granted Kelly Service's motion for summary judgment and dismissed Ms. Coles's complaint in October 2003. See Coles v. Kelly Servs., Inc., 287 F. Supp. 2d 25 (D.D.C. 2003). Because the operative facts in this action are identical to the facts in Ms. Coles's prior lawsuit, the Court will provide only a summary here; a more detailed description can be found in Court's prior opinion. See id. at 26-30.
According to the present Complaint, in August 2000 Ms. Coles received a telephone call from Charles Ansley, the on-site supervisor for the Infectious Disease Clinic ("Clinic") at WRAMC.*fn1 Compl. ¶ 10. The purpose of Mr. Ansley's call was to inform Ms. Coles of a job opportunity as a receptionist at the Clinic and to offer her the position if she were interested. Id. ¶¶ 11-14. Ms. Coles responded that she was interested, and Mr. Ansley instructed her to apply for the job through Kelly Services, which held a contract to provide clerical workers to WRAMC. Id. ¶ 14. Ms. Coles did so and was hired on September 6, 2000. Id. ¶ 16.
In May 2001 Sergeant Gregory Lawrence became the Non-Commissioned Officer in Charge of the Clinic. Id. ¶ 19. Shortly afterward, Sgt. Lawrence allegedly began harassing Ms. Coles. Id. ¶ 20. Specifically, Ms. Coles claims that Sgt. Lawrence sent her several sexually explicit e-mails between May 24 and June 25, 2001 and that, while standing at her work-station, he discussed in explicit terms a sexual encounter he had had with another woman. Id. ¶¶ 21-23. When Ms. Coles told Sgt. Lawrence that she wanted this behavior to cease, she asserts that Sgt. Lawrence began to make physically threatening gestures toward her and that he swore at her and used profanity. Id. ¶¶ 25-26.
This course of harassment allegedly came to a head on July 6, 2001, when Ms. Coles had a run-in with Sgt. Lawrence in the Clinic's waiting room. Id. ¶ 27. After that incident, Ms. Coles reported Sgt. Lawrence's alleged behavior for the first time. Id. ¶ 28. She first went to see Mr. Ansley, complaining that Sgt. Lawrence was sexually harassing and physically intimidating her. Id. ¶ 28. Mr. Ansley was "busy at the moment" and told Ms. Coles to wait in his office, during which time she called Kelly Services and left a message with the receptionist. Id. ¶ 29-30; Coles, 287 F. Supp. 2d at 27. Mr. Ansley returned to his office shortly after Ms. Coles concluded her call. Compl. ¶ 30; Coles, 287 F. Supp. 2d at 27.
In the meantime, Sgt. Lawrence was meeting with Dr. Clifton Hawkes, Chief of the Infectious Disease Service, to relate his version of the events. Coles, 287 F. Supp. 2d at 27. Ms. Coles later spoke to Dr. Hawkes by telephone from her home. Compl. ¶ 31. She reported her allegations against Sgt. Lawrence, and Dr. Hawkes stated that he wanted to arrange a meeting for Ms. Coles, Sgt. Lawrence, and himself to discuss the situation and improve their ability to work together. Id. Ms. Coles responded that she was going to prepare a written statement and file a formal complaint because she did not feel safe working around Sgt. Lawrence. Id.
Three days later, on Monday July 9, Mr. Ansley contacted Ms. Coles and purportedly encouraged her not to write a statement or to report sexual harassment by Sgt. Lawrence. Id. ¶ 33. Ms. Coles informed Mr. Ansley that she was afraid of Sgt. Lawrence and did not want to return to WRAMC until she had reported sexual harassment to Kelly Services. Id. ¶ 34. Mr. Ansley gave her permission to stay home until she had done so. Id. At the same time, unbeknownst to Ms. Coles, Ann DeSoto, a Supervisory Administrative Coordinator at the Clinic, contacted Kelly Services and stated that Ms. Coles had falsified her timecard, been rude to patients and co-workers, and had slapped a co-worker's hand. See Coles, 287 F. Supp. 2d at 28-29. She requested that Kelly Services send a replacement for Ms. Coles. Id.
Later that day, Ms. Coles called Dr. Hawkes. Compl.¶ 35. Dr. Hawkes told her that Kelly Services had fired her because of a timecard discrepancy. Id. Ms. Coles subsequently spoke to Mr. Ansley, who told her that there was no timecard discrepancy - she had been fired because she insisted on filing a formal complaint against Sgt. Lawrence. Id. ¶ 36. The next day, July 10, 2001, Ms. Coles called Kelly Services and was informed that her job at WRAMC had been terminated because she had falsified her timecard and had been rude to a doctor. Id. ¶ 38.
Ms. Coles sued Kelly Services on September 19, 2002, alleging sexual harassment and retaliation in violation of Title VII. On October 17, 2003, this Court granted Kelly Service's motion for summary judgment and dismissed Ms. Coles's complaint. See Coles, 287. F. Supp. 2d at 25. The Court of Appeals for the District of Columbia Circuit affirmed that ruling on July 20, 2004. See Coles v. Kelly Services, 105 Fed. Appx. 275 (D.C. Cir. 2004). On February 8, 2006, Ms. Coles filed the instant action against Defendant based on the same factual and legal allegations. On September 26, 2006, Defendant moved to dismiss or, in the alternative, for summary judgment. That motion has been fully briefed and is now ripe for decision.
Under Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction. See Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002); Pitney Bowes Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). Because "subject-matter jurisdiction is an 'Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). It is well established that, in deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint "but may ...