The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION TO DISMISS; DENYING THE DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT*fn1
This case comes before the court on the defendant's motion to dismiss, or, in the alternative, for summary judgment. The plaintiff, Arthuretta Holmes-Martin, brings suit against Michael O. Leavitt, Secretary of Health and Human Services of the United States, in his official capacity, alleging race and disability discrimination, retaliation and a hostile work environment, under 42 U.S.C. § 1981(a); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; the Civil Service Reform Act ("CSRA"), 5 U.S.C. §§ 7701 et seq.; and the Rehabilitation Act, 29 U.S.C. §§ 791 et seq. The defendant moves to dismiss the plaintiff's racial discrimination and hostile work environment claims, contending that the plaintiff fails to state a cause of action. Because the plaintiff adequately pleads her claims, the court denies the motion. The defendant also requests that the court dismiss the plaintiff's hostile work environment claim under Title VII and disability discrimination claim under the Rehabilitation Act because she raises these claims for the first time in her opposition to the defendant's motion to dismiss. But, because these new claims are substantially similar to the original claims and would cause no undue prejudice to the defendant, both claims survive the motion. The plaintiff's filing for Civil Service Retirement System ("CSRS") benefits, however, precludes her Rehabilitation Act claim.
Alternatively, the defendant moves for summary judgment on the plaintiff's hostile work environment, race discrimination and retaliation claims. Because the plaintiff rebuts the defendant's legitimate non-discriminatory reason for her removal, the court denies summary judgment on the plaintiff's claims of racial discrimination and retaliation based on removal. Also, because the parties have not conducted discovery and the plaintiff presents genuine issues of material fact regarding the reassignment of her work and her hostile work environment claim, the court denies the defendant's motion for summary judgment on those claims.
II. FACTUAL & PROCEDURAL BACKGROUND
The plaintiff, an African-American female, worked as a Procurement Analyst and Deputy Director, service grade GS-1102-14, in the Office of Small and Disadvantaged Business Utilization ("Office of Small Business") at the Department of Health and Human Services ("Department of Health") beginning January 2000. Compl. ¶ 7; Def.'s Mot. at 3. The plaintiff alleges issues arose between her and Debbie Ridgely, the Director of the Office of Small Business, starting in 2003-2004. Compl. ¶ 9.
The first incident the plaintiff identifies, however, occurred in October 2004 when Ridgely sent her an e-mail regarding her use of unscheduled leave and submission of leave requests. Compl. ¶ 9; Def.'s Mot. at 3 & Ex. 4. In response, the plaintiff complained about Ridgely's management style and respect for others and noted that she would seek temporary placement in the Office of Women's Health. Def.'s Mot., Ex. 5. Ridgely countered by sending a memorandum to the plaintiff "about inappropriate behavior, standards of conduct, and performance concerns." Def.'s Mot., Ex. 6.
Meanwhile, Ridgely hired Clarence Randall, a white male, for a job created, the plaintiff claims, to supersede her position. Pl.'s Opp'n at 3. The plaintiff contends that Ridgely subsequently transferred many of the plaintiff's responsibilities to Randall. Pl.'s Opp'n, Exs. 1, 3, 5. Additionally, the plaintiff claims Ridgely reassigned her duties to other individuals in the office, Pl.'s Opp'n at 3-5 & Ex. 5, but Ridgely only concedes that "a single task . . . was reassigned to another co-worker" while the plaintiff was on leave, Def.'s Mot. at 7 & Ex. 2. Ridgely maintains that the plaintiff was only temporarily overseeing two other alleged reassigned activities until they could be transferred back to a retiree's replacement. Id. Ridgely insists that all other original duties and responsibilities remained in the plaintiff's care. Id. Furthermore, Ridgely points out that she -- as director -- had assigned many of the programs the plaintiff suggested to other staff from their inception. Def.'s Reply, Ex. 1.
The plaintiff also claims that Ridgely treated her differently than her colleagues. Compl. ¶ 3-4. The plaintiff notes that Ridgely had an open-door policy for Randall, yet not for her, and required Randall's presence at all of the plaintiff's meetings. Pl.'s Opp'n, Ex. 1. More generally, the plaintiff alleges that Ridgely, among other things, relied solely on e-mail contact; did not provide her with work to do seventy-five to eighty percent of the day; isolated her from the Small Business Association ("SBA") procurement center representative; changed the locks on her office; and manipulated her performance evaluations. Pl.'s Opp'n at 5-7 & Exs. 1, 3, 5. Ridgely denies these and all other assertions, arguing that the plaintiff chose to contact her via e-mail; did not inform her of the lack of work; and could have contacted and worked with the SBA procurement office. Def.'s Reply, Ex. 1. Further, Ridgely maintains that she never changed the locks and did not delay the performance reviews (the reviews were delayed by contract negotiations with the Union). Id.
In response to her perceived mistreatment, the plaintiff filed multiple Equal Employment Opportunity ("EEO") complaints. Compl. ¶ 12. From January 2005 to July 2006, the plaintiff submitted two formal complaints and attempted to file a third. Def.'s Mot., Exs. 7-9; Pl.'s Opp'n, Ex. 9. Her first complaint alleged sex, color and race discrimination, reprisal for her use of leave and a hostile work environment, while her subsequent complaint alleged retaliation in the form of threatening and hostile e-mails. Def.'s Mot., Exs. 7, 10. An administrative judge ordered an investigation in August 2006, yet the record reflects no official report or final decision. Def.'s Mot., Ex. 15.
In June 2006, the plaintiff's psychologist, Dr. Frances Holland, sent a letter to Ridgely recommending that the plaintiff, who had already missed a number of days at work, take extended leave to deal with major depression and anxiety disorder. Pl.'s Opp'n at 9; Compl. ¶ 13; Def.'s Mot., Ex. 27. In the letter, Holland indicated that the plaintiff had been under her care "for several years" and that "extended stressful conditions, particularly in the work situation" generated the recent episodes. Def.'s Mot., Ex. 27. One month later, Holland wrote another letter, recommending an extension of sick leave despite some improvement in the plaintiff's psychological well-being. Pl.'s Opp'n, Ex. 11.
In an October 2006 letter, Rachel Chance, Human Resources Specialist, informed the plaintiff that "her . . . absence [was] placing a considerable strain on the staff and their daily operations" and that "[she] was required to report to her office on November 13, 2006." Def.'s Mot., Ex. 35. Holland, however, recommended another extension, stating that despite slow improvement, significant problems remained and "even the simplest demands regarding [the plaintiff's] work situation appear to cause . . . distress." Pl.'s Opp'n, Ex. 12. The plaintiff continued on leave, and in May 2007, Holland informed the agency that "it may be possible for [the plaintiff] to return to a position . . . in a part time capacity in 6-8 months." Def.'s Mot. at 9 & Exs. 29, 40.
While on leave in November 2006, the plaintiff filed worker's compensation claims, claiming that hostile treatment at the office exacerbated the depression she suffered while working for the IRS from 1994 to 1998. Id., Ex. 37. The Department of Labor ("DOL") denied the claims, holding that the evidence did not support them. Id., Ex. 44.
In January 2007, Ridgely proposed the plaintiff's removal due to her inability to perform her job and the need for a full-time employee. Compl. ¶ 14; Def.'s Mot., Ex. 41. The plaintiff challenged the recommendation, but Linda Garvin, Principal Deputy Assistant Secretary for Administration and Management, upheld it in June 2007, effective July 1, 2007. Def.'s Mot., Exs. 42-43. Garvin considered the plaintiff's refusal to allow review of her medical records; her absolute inability to work; and the agency's inability to accommodate the plaintiff at some other full-time position, "now or in the foreseeable future." Id.
The plaintiff filed an appeal of this decision with the Merit Systems Protection Board ("MSPB"), yet the MSPB has yet to issue a final decision. Compl. ¶ 2. Ultimately, the plaintiff filed an application for disability retirement under the CSRS that the Office of Personnel Management ("OPM") granted. Def.'s Mot., Ex. 46.
In November 2007, the plaintiff filed her complaint alleging discrimination and retaliation based on race. Compl. ¶¶ 16-19. The defendant filed a motion to dismiss, or in the alternative, for summary judgment in February 2008. See generally Def.'s Mot. In her opposition to the defendant's motion, the plaintiff for the first time raised claims of a hostile work environment and discrimination under the Rehabilitation Act to which the defendant has replied. See generally Pl.'s Opp'n; Def.'s Reply. The court now turns to the pending motions.
A. The Court Grants in Part and Denies in Part the Defendant's Motion to Dismiss*fn2
1. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(6)
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040(D.C. Cir. 2003) (citing Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pre-trial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).
Yet, the plaintiff must allege "any set of facts consistent with the allegations." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-56,instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim  would entitle him to relief"); Aktieselskabet AF 21. November 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)(affirming that "a complaint needs some information about the circumstances giving rise to the claims"). While these facts must "possess enough heft to 'sho[w] that the pleader is entitled to relief,'" a complaint "does not need detailed factual allegations." Twombly, 127 S.Ct.at 1964, 1966. In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations -- including mixed questions of law and fact -- as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C. Cir. 2004); Browning, 292 F.3d at 242.
2. The Court Denies the Defendant's Motion to Dismiss the Racial Discrimination Claim
The defendant contends that the plaintiff failed "to plead enough facts to state a claim for which relief is possible on its face." Def.'s Mot. at 12. Specifically, the defendant argues that "simply pleading 'discrimination'" does not satisfy the pleading requirement. Id. at 13. In response, the plaintiff asserts that she is only required to allege "that she suffered damages at the hand of her employer based on her membership in a protected class." Pl.'s Opp'n at 12.
The plaintiff's complaint alleges discrimination based on race, manifested in the "reassigning to others her meaningful job responsibilities . . . causing her to suffer . . . depression and . . . [an] anxiety disorder, and . . . terminating her employment." Compl. ¶ 1. Specifically, the plaintiff points to being isolated and subjected to public ridicule and disparate treatment. Id. ¶ 10. In addition, she alleges that the agency's discrimination caused her to suffer from depression and anxiety. Id. ¶ 13. These factual assertions supplement the plain and short statement that the agency discriminated against her on account of her race by providing "circumstances, occurrences, and events." Twombly, 127 S.Ct. at 1965 n.3 (quoting 5 FED. PRAC. & PROC. § 1202 at 94); see also Sparrow v. United Air Lines, Inc. 216 F.3d 1111, 1115 (D.C. Cir. 2000) (requiring that a plaintiff only allege that she "was turned down for a job because of [her] race") (quoting Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)). Accordingly, these facts satisfy the notice pleading requirement, and the court denies the defendant's motion to dismiss for failure to state a claim.
3. The Court Denies the Defendant's Motion to Dismiss the Hostile Work Environment Claim
a. The Plaintiff's Claim is Raised in the Complaint and is Substantially Similar to her Original Claims
The defendant argues that the court should dismiss the plaintiff's hostile work environment claim because "there is no count in the complaint alleging [it]." Def.'s Reply at 6. In the present case, the plaintiff plainly states that Ridgely "created a hostile work environment," although she did not include a separate hostile work environment count. Compl. ¶¶ 1, 9. Even when a "claim is not set forth . . . in a separate count," courts have addressed the validity of that claim as if the plaintiff listed the count. Ficken v. Golden, 2005 WL 692019, at *6 (D.D.C. Mar. 24, 2005) (adjudging the validity of a defamation claim even though the plaintiff did not list it as a separate count). Furthermore, the plaintiff provides factual support for this claim throughout her complaint, pointing to Ridgely's hostile and hurtful treatment of her from 2004 until her departure. Compl. ¶¶ 10-13. Such factual statements are sufficient to allege a claim so long as they provide notice of that claim. Freeman v. Fallin, 254 F. Supp. 2d 52, 59 n.4 (D.D.C. 2003) (holding that the plaintiff's complaint was valid because, despite general allegations, it provided notice). Because the plaintiff expressly identified a hostile work environment claim in her complaint and provides some factual support for that claim, the defendant's argument is factually baseless.
In the alternative, even if the plaintiff did not allege such a claim in her complaint, courts should not dismiss claims raised for the first time in an opposition if they are "substantially similar" to the original claims and would not cause "undue prejudice" to the defendant. Wiley v. Glassman, 511 F.3d 151, 159 (D.C. Cir. 2007) (noting that "when a party has a valid claim, he should recover on it regardless of his counsel's failure to perceive the true basis of the claim at the pleading stage, provided always that . . . [it] will not prejudice the other party" (quoting 5 FED. PRAC. & PROC. § 1219 at 281-83)).
Under the substantially similar prong, a newly introduced claim survives a motion to dismiss if "the factual basis" of the original claims supports the new claim. Id.; accord Alley v. Resolution Trust Corp., 984 F.2d 1201, 1208 (D.C. Cir. 1993) (allowing new claims in the "absence of any need to allege new facts"). In support of her discrimination and retaliation claims, the plaintiff alleges that Ridgely treated her with "extreme hostility" and "subject[ed] her to public ridicule" beginning between 2003 and 2004. Id. ¶ 10. Also, following her EEO complaints, the plaintiff avers that Ridgely's treatment "became even more hostile and hurtful." Id. ¶ 12. These factual allegations equally support the plaintiff's hostile work environment claim. Because the factual basis for these claims is substantially similar to the factual basis for her hostile work environment claim, the plaintiff satisfies the first prong of the test.
The defendant can still prevail on a motion to dismiss a claim made for the first time in the plaintiff's opposition if he can show that the inclusion of that claim causes undue prejudice. Wiley, 511 F.3d at 159 (disagreeing with a district court's decision to strike one of the plaintiff's claims raised for the first time in the opposition to a motion for summary judgment because the defendant did not demonstrate how allowing the plaintiff's claim would cause undue prejudice); Lewis v. District of Columbia, 535 F. Supp. 2d 1, 11 n.10 (D.D.C. 2008) (permitting a new claim because "the defendant d[id] not show how allowing the claim would cause undue prejudice"). Here, the defendant does not allege, much less demonstrate, undue prejudice.*fn3 Moreover, the defendant addresses many of the factual bases for the hostile work environment claim in his motion to dismiss, ...