The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Edna L. Vance has brought suit alleging that, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Department of Labor improperly rated her performance, placed her on a performance plan, and denied her a performance award in retaliation for her having filed and pursued a prior employment discrimination lawsuit. Defendant has moved to dismiss for failure to state a claim upon which relief may be granted. For the reasons set forth herein, the Court will deny the motion.
Plaintiff is an African-American woman who has been employed by the Department of Labor since approximately 1975. (Compl. ¶¶ 3, 5.) On May 17, 1999, she sued defendant alleging employment discrimination. (Id. ¶ 7.) The case was referred to Magistrate Judge Alan Kay, and, after the parties reached a tentative settlement in the fall of 2000, the case was dismissed. Vance v. Chao, No. 99-01178, Dismissal Order (D.D.C. July 15, 2003). Defendant, however, never ratified the settlement. (Compl. ¶ 7.) In September 2004, November 2004, and June 2005, plaintiff filed notices with Judge Kay explaining that the settlement had not been finalized and seeking the court's guidance. (See Def.'s Mem. in Supp. Ex. A.)*fn1
In December 2002, while the suit before Judge Kay was pending, plaintiff filed a second action. (Compl. ¶ 8.) In her second suit, plaintiff alleged that she had received an improper performance appraisal in retaliation for having filed her first suit. (Id.) Because plaintiff's complaint was untimely, Judge Gladys Kessler dismissed the case. Vance v. Chao, No. 02-02480, Mem. Op. (July 16, 2003).
Plaintiff initiated the present suit on January 3, 2007.*fn2 She alleges that, on or about January 24, 2005, she was given a performance appraisal for the year 2004 using standards with which she had not previously been presented. (Id. ¶ 9.) Plaintiff further alleges that, as a result of her performance appraisal, she was placed on a ninety-day performance plan and denied a performance award. (Id. ¶ 10.) According to plaintiff, these actions were taken in retaliation for her participation in the suit before Judge Kay and her ongoing attempts to complete the settlement process. (Id. ¶ 11.)
A case must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). The allegations in plaintiff's complaint are presumed true at this stage and all reasonable factual inferences must be construed in plaintiff's favor. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995). 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 Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). To survive a motion to dismiss, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Bell Atl., 127 S.Ct. at 1965.
The anti-retaliation provision of Title VII states as follows:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). Thus, in order to establish a prima facie case of retaliation, plaintiff must demonstrate (1) that she engaged in protected activity and that (2) as a consequence (3) her employer took a materially adverse action against her. E.g., Weber v. Batista, --- F.3d ---, ---, 2007 WL 2033254, at *4 (D.C. Cir. 2007). "Without conceding that [p]laintiff can meet the first of the prima facie elements" (Def.'s Mem. at 7), defendant argues ...