The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Gloria Halcomb brought this lawsuit, pro se, against the Office of the Sergeant-at-Arms of the United States Senate ("Sergeant-at-Arms") under the Congressional Accountability Act ("CAA" or "Act"), 2 U.S.C. §§ 1301-1438 (2000), asserting race and sex discrimination, and retaliation.*fn1 Amended Verified Complaint ("Am. Compl.") ¶ 1. The defendant has moved to dismiss this case pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that the Court lacks subject-matter jurisdiction, or, alternatively, for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, and the plaintiff has opposed these motions.*fn2 For the following reasons, the defendant's motion to dismiss is denied but its motion for summary judgment is granted.
The plaintiff is an African-American female. Am. Compl. ¶ 4. Between July 1986 and May 2003, she was employed as a media coordinator by the United States Senate's Radio and Television Gallery. Am. Compl. ¶ 6; Plaintiff's Motion and Answer to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n") at 12-13. During her period of employment, Lawrence Janezich was the plaintiff's immediate supervisor. Am. Compl. ¶ 8. The plaintiff contends that during her employment, the Sergeant-at-Arms and Mr. Janezich subjected her to continuous race and gender discrimination, and eventually, to retaliation. Id. ¶ 5. The plaintiff's allegations against the Sergeants-at-Arms are premised on the notion that they countenanced Mr. Janezich's alleged discriminatory acts and retaliation against her. Id. ¶¶ 8-17.
As to her claim for discrimination, the plaintiff alleges that her salary was "kept lower than the other [Senate] media coordinators," id. ¶ 9, that Mr. Janezich prevented her from earning larger bonuses, id. ¶ 11, that he treated his female subordinates inappropriately, id. ¶ 10, and that he repeatedly denied her opportunities for advancement, while employing and promoting less-qualified white males, id. ¶ 12. Presumably, in regards to these alleged acts of discrimination, in October 2000, the plaintiff sought counseling from the Senate's Office of Compliance, as required by the CAA, claiming she had been subjected to racial and gender discrimination. Id. ¶ 14. Both the counseling and the subsequent mediation proved unsuccessful. Id.
The plaintiff contends that after she "initiated proceedings regarding unlawful discrimination" under the CAA, Mr. Janezich, with the support of his superiors in the Office of the Sergeant-at-Arms, began to engage in acts of reprisal and retaliation. Id. ¶ 21. Specifically, the plaintiff claims that Mr. Janezich "tightened [his] supervision of [the p]laintiff to a level not imposed on other employees . . . ." Id. ¶ 17. She also contends, inter alia, that her alleged mistreatment, including her inability to receive promotions after she filed her administrative complaints against the Sergeant-at-Arms and Mr. Janezich, amounted to retaliation. Id. ¶ 18.
On June 27, 2001, the plaintiff filed her initial complaint in this Court against the defendant. In that complaint, the plaintiff alleged race and gender discrimination, and retaliation. On June 3, 2002, this Court dismissed without prejudice the retaliation claim because the plaintiff had not exhausted her administrative remedies as to that claim. Specifically, before filing this lawsuit, she had not, as required by the CAA, participated in counseling and mediation concerning the retaliation claim. See Halcomb v. Office of the Senate Sergeant-at-Arms of the U.S. Senate, 209 F. Supp. 2d 175, 178-79 (D.D.C. 2002). After participating in the required counseling and mediation of the retaliation claim, the plaintiff moved to amend her complaint to again assert the retaliation claim. Motion for Leave to file Amended Complaint.*fn3 On May 21, 2003, while the motion to amend the complaint was pending, the Sergeant-at-Arms terminated the plaintiff's employment. Defendant's Opposition to Plaintiff's Motion for Leave for Time at 2. The Court subsequently granted the plaintiff's motion to amend the complaint, and the plaintiff filed her amended complaint on June 19, 2003. On December 3, 2004, the defendant filed its Rule 12(b)(1) motion, asserting that this Court lacks subject-matter jurisdiction, and, in the alternative, moved for summary judgment under Rule 56(c). Defendant's Motion to Dismiss and/or for Summary Judgment ("Def.'s Mot.").
In its motion, the defendant argues that this Court lacks subject-matter jurisdiction over the plaintiff's discrimination claim because she is challenging acts that either occurred prior to the effective date of the CAA or that did not occur within the 180-day period preceding the plaintiff's October 25, 2000, request for counseling. Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss and/or for Summary Judgment ("Def.'s Mem.") at 2. And, as to the plaintiff's retaliation claim, the defendant argues that the court lacks jurisdiction because the acts underlying this claim did not occur within 180 days of the plaintiff's March 11, 2002, request for counseling. Def.'s Mem. at 5-6, 8, 10. Alternatively, the defendant asserts that it is entitled to summary judgment because the plaintiff has failed to establish a prima facie case of race or gender discrimination, or of retaliation. Def.'s Mem. at 2, 15.
The plaintiff opposes the defendant's timeliness challenge to her discrimination claim, asserting that the discriminatory acts she alleged were "serial and discrete." Pl.'s Opp'n at 4. In other words, she contends that because she "has timely raised a prohibited act [,either discrimination or retaliation,]" the "whole serial claim is actionable" even though certain parts of the act were inside and other parts were outside of the "limitations period." Id. Consequently, the plaintiff disputes the notion that this Court lacks subject-matter jurisdiction over her claims. Id. Furthermore, the plaintiff asserts that she has established a prima facie case as to both her claims for discrimination and retaliation. Pl.'s Opp'n. at 21.
To avoid dismissal under Rule 12(b)(1) of theFederal Rules of Civil Procedure, a plaintiff must establish the Court's jurisdiction by a preponderance of the evidence. Moore v. Bush, 535 F. Supp. 2d 46, 47 (D.D.C. 2008); see also McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (noting that jurisdictional facts must be supported by "competent proof" or justified by a "preponderance of evidence"). When determining the question of jurisdiction, federal courts accept the factual allegations contained in the complaint as true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Additionally, pro se complaints must be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that allegations in pro secomplaints are held to less stringent standards than formal pleadings drafted by lawyers); see, e.g., Dixon v. Maryland,261 F.Supp. 746, 747 (D. Md. 1966) (liberally construing a complaint, alleging a 18 U.S.C. § 242 infraction, as asserting a 42 U.S.C. § 1983 claim, because the plaintiff could not pursue a civil claim under 18 U.S.C. § 242). Moreover, the Court can consider material outside of the pleadings when determining whether it has jurisdiction. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); accord Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001).
Summary judgment is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A material fact is one that is capable of affecting the outcome of the litigation, and a genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment may not rely solely on conclusory allegations but must set forth facts that are significantly probative. Id. at 249-50 (citations omitted). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ." Id. at 255. Thus, when considering a motion for summary judgment, a court must "view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in [her] favor." Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C. Cir. 2007) (internal quotation and citation omitted); see also Greene v. Amritsar Auto Servs. Co., 206 F. Supp. 2d 4, 7 (D.D.C. 2002).
Entering summary judgment is appropriate after there has been "adequate time for discovery . . . [and the] party [against whom the motion has been filed] 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). To survive a motion for summary judgment in a case of this type, a plaintiff must show that a reasonable jury could conclude from all of the evidence that there was an adverse employment action, and that the action was taken for a discriminatory or retaliatory reason. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998) (en banc)).
1. The Defendant's Dismissal Motion
The defendant makes three arguments in support of its position that the Court lacks subject-matter jurisdiction in this case. First, the Sergeant-at-Arms argues that the plaintiff has pled alleged discriminatory acts that occurred before the CAA became law.*fn4 Def.'s Mem. at 6-7. The defendant contends that those claims were cognizable only under the now-repealed Government Employees' Rights Act of 1991 ("GERA"), formerly 2 U.S.C. §§ 1201-1223 (repealed by the CAA), which provided aggrieved Senate employees with an exclusive administrative means of redress and judicial review in the United States Court of Appeals for the Federal Circuit.*fn5 Id. Accordingly, the defendant claims that plaintiff's pre-CAA allegations are barred by the doctrine of sovereign immunity, and that this Court therefore lacks subject-matter jurisdiction over them. Def.'s Mem. at 7.
Second, the Sergeant-at-Arms asserts that the plaintiff has pled alleged acts of discrimination and retaliation that occurred outside of the 180-day period allotted for challenging such acts under the CAA.*fn6 Def.'s Mem. at 8-10. Specifically, Section 1402(a) of Title 2 of the U.S. Code requires that claims be filed "not later than 180 days after the date of the alleged violation." 2 U.S.C. § 1402(a). Consequently, the defendant argues that the Court is foreclosed from considering any acts of discrimination that allegedly occurred more than 180 days before or any time after October 25, 2000, the date on which the plaintiff requested counseling concerning the alleged discriminatory acts. Def.'s Mem. at 9. The defendant makes the same argument in regards to the plaintiff's retaliation claim. Def.'s Mem. at 10. Thus, the defendant argues the plaintiff is precluded from asserting any retaliation violations that occurred more than 180 days prior to May 11, 2002, the date on which the plaintiff requested counseling. Id.
The plaintiff responds to the defendant's first two jurisdictional challenges arguing that Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), supports her position that this Court has jurisdiction to entertain claims involving alleged violations that occurred prior to 1996, the year in which the CAA was enacted, together with claims that occurred after the CAA's ...