The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiffs Janet Howard, Tanya Ward Jordan, and Joyce Megginson, proceeding pro se, bring this civil action against Carlos M. Gutierrez, the Secretary of the United States Department of Commerce ("Department" or "DOC"). In Count One, plaintiffs allege a disparate impact claim of racial discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In Count Two, Megginson asserts a disability discrimination claim pursuant to the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. Currently before the Court is the Department's motion to dismiss the Second Amended Complaint, or in the alternative, for summary judgment. For the reasons explained herein, the Court will grant the Department's motion to dismiss Count Two under the Rehabilitation Act, but will deny the Department's motion as to Count One under Title VII.
This case has a lengthy history which need not be recounted in full. For purposes of the current motion, an abbreviated summary will suffice. Janet Howard is an African American female who was employed at the Department of Commerce in the Bureau of Industry and Security, formerly known as the Bureau of Export Administration, from 1983 through 2008. Sec. Am. Compl. ¶¶ 12, 14; Def.'s Stmt. of Undisputed Facts ¶ 12. It is undisputed that Howard has filed twenty-five formal administrative complaints against the Department. See Def.'s Mot. to Dismiss Ex. 1 (Decl. of Kathryn H. Anderson) ("Anderson Decl.") ¶ 5. One of these was a formal Equal Employment Opportunity class complaint, submitted on February 22, 1995. See Def.'s Renewed Mot. to Dismiss Ex. A (EEO Class Compl.) at 2. Tanya Ward Jordan is an African American female who began working at the Department of Commerce in 1987. Sec. Am. Compl. ¶ 14. In 2003, Ward Jordan was transferred from the Office of Executive Budgeting and Assistance Management to the Office of Budget. Id. ¶ 128. According to the parties, Ward Jordan has filed eight formal administrative complaints against the Department. See Anderson Decl. ¶ 6. The third plaintiff, Joyce Megginson, is an African American female who has been employed at the Department of Commerce since 1971 and is currently assigned to the National Telecommunications and Information Administration. Sec. Am. Compl. ¶¶ 14, 95. The Department contends that Megginson has filed fifteen formal administrative complaints against the Department. See Anderson Decl. ¶ 7.
Plaintiffs filed their original complaint with this Court on October 5, 2005, and their First Amended Complaint on June 13, 2006. The First Amended Complaint asserted employment discrimination claims on behalf of plaintiffs individually and on behalf of a putative class of African American, non-supervisory Department employees, along with a Rehabilitation Act claim on behalf of Ward Jordan. On February 6, 2007, the Court granted the Department's motion to strike the class claims, denied the Department's motion to dismiss plaintiffs' individual claims, and granted plaintiffs leave to file a Second Amended Complaint. See Howard v. Gutierrez, 474 F. Supp. 2d 41 (D.D.C. 2007). The Court thereafter denied plaintiffs' motion for reconsideration regarding class certification,*fn1 and plaintiffs filed their Second Amended Complaint ("Complaint") on December 11, 2007.
Plaintiffs' central claim is that the Department has violated Title VII by using overly subjective performance-appraisal criteria that result in a disparate impact on African American employees with respect to promotions and promotion-related opportunities. Sec. Am. Compl. ¶¶ 1-3, 6, 217-27. Plaintiffs describe the allegedly subjective nature of the Department's performance appraisal system and present statistical evidence purporting to demonstrate the disparate impact of the system on African Americans. Id. ¶¶ 167-73. The Complaint also includes allegations as to the effect the Department's evaluation system has had on each individual plaintiff. Id. ¶¶ 21-38 (Howard); 95-118 (Megginson); 119-43 (Ward Jordan).
All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S.Ct. 2197, 2200 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp., 127 S.Ct. at 1964-65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted). However, a court "must not make any judgment about the probability of the plaintiff's success, for a complaint 'may proceed even if it appears that a recovery is very remote and unlikely'" or that the plaintiff "will fail to find evidentiary support for his allegations." Aktieselskabet AF 21. November 21 v. Fame Jeans, Inc., 525 F.3d 8, 17 (D.C. Cir. 2008).
The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss 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 County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979); see also Erickson, 127 S.Ct. at 2200 (citing Bell Atl. Corp., 127 S.Ct. at 1965)). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'n Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "legal conclusions cast in the form of factual allegations." Aktieselskabet AF 21. November 21, 525 F.3d at 17 n.4; see also Domen v. Nat'l Rehab. Hosp., 925 F. Supp. 830, 837 (D.D.C. 1996) (citing Papasan, 478 U.S. at 286).
Summary judgment is appropriate under Rule 56 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 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
The Department has moved, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), to dismiss the claims set forth in the Complaint. Specifically, the Department argues that plaintiffs' claims are untimely and unexhausted; that plaintiffs have failed to challenge a specific employment practice; and that plaintiffs have failed adequately to plead causation. In support of the motion for summary judgment, the Department argues that there is no "single centrally defined system for performance evaluations." Def.'s Mem. Supp. Mot. to Dismiss ("Def.'s Mem.") at 21.
A. Title VII: Timeliness and Exhaustion
A federal employee alleging discrimination in violation of Title VII is required to timely exhaust his or her administrative remedies. See Harris v. Gonzales, 488 F.3d 442, 443 (D.C. Cir. 2007); Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); Thorne v. Cavazos, 744 F. Supp. 348, 350 (D.D.C. 1990). Failure to do so will ordinarily bar a judicial remedy. See Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985); see also Rattigan v. Gonzales, 503 F. Supp. 2d 56, 68 (D.D.C. 2007). The employee is first required to contact an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). Should the matter remain unresolved after informal counseling, the employee may file a formal discrimination complaint with the agency. Bowie v. Ashcroft, 283 F. Supp. 2d 25, 33 (D.D.C. 2003). A formal complaint filed with the agency must contain a statement by the employee that is "sufficiently precise to identify the aggrieved individual and the agency and to describe generally the action(s) or practice(s) that form the basis of the complaint." 29 C.F.R. § 1614.106(c). The employee is free to amend the "complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint." Id. § 1614.106(d).
If the employee is dissatisfied with the final disposition of the complaint, he or she may file a civil action within 30 days of receipt of the notice of final action by the agency. Bowie, 283 F. Supp. 2d at 33 (citing 42 U.S.C. § 2000e-16(c)). A civil action filed in federal court is limited in scope by the underlying administrative complaint. A claimant may only litigate those allegations that were contained in the EEO complaint or those that are "like or reasonably related to the allegations of the charge." Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995); see also Lane v. Hilbert, 2004 WL 1071330 (D.C. Cir. May 12, 2004) (noting the breadth of a civil suit is "only as broad as [the] scope of any investigation that reasonably could have been expected to result from [the] initial charge of discrimination"); Lewis v. Dist. of Columbia, 535 F. Supp. 2d 1, 5 (D.D.C. 2008) ("In actions brought under Title VII, a court has authority over only those claims that are (1) contained in the plaintiff's administrative complaint or claims 'like or reasonably related to' those claims in the administrative complaint and (2) claims for which the plaintiff exhausted administrative remedies.") (citation omitted); Cannon v. Paulson, 531 F.Supp.2d 1, 6 (D.D.C. 2008) ("A plaintiff may [ ] proceed on a claim that was not administratively raised below if the new claim is 'like or related to' a previously filed claim.")
(citing Wiley v. Glassman, 511 F.3d 151 (D.C. Cir. 2007)). The failure to exhaust administrative remedies is an affirmative defense that the defendant bears the burden of pleading and proving. Bowden, 106 F.3d at 437; cf. Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921 (2007) ("We conclude that failure to exhaust is an affirmative defense under the PLRA, and that ...