The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Diane R. Williams, a Senior Trial Attorney employed at the Government Accountability Office's ("GAO") Personnel Appeals Board ("PAB" or "Board") in the Office of the General Counsel ("PAB/OGC"), brings this action against Gene L. Dodaro in his official capacity as the Comptroller General of GAO, alleging age, race, and sex discrimination, retaliation, and a hostile and abusive work environment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Presently before the Court is the Comptroller General's motion to dismiss or, in the alternative, for summary judgment. Upon careful consideration of the motion and the parties' memoranda, the applicable law, and the entire record, the Court will grant in part and deny in part the Comptroller General's motion.
Williams, an African-American female over 40 years old, has been a Senior Trial Attorney with the PAB/OGC at the GS-14 level since February 1999. Def.'s Statement Of Material Facts Not In Dispute ("Def.'s Stmt.") ¶ 4; Pl.'s Opp'n Ex. 1 ("Williams Aff.") ¶¶ 1-2.*fn2 Until December 2005, Williams reported to Janice Reece, an African-American female over the age of forty, who was employed as General Counsel above the GS-15 level. Def.'s Stmt. ¶ 6. In September 2003, Reece recommended to the Board that two employees, Williams and a younger, white female Senior Trial Attorney, be promoted from GS-14 to GS-15 within their positions. Id. ¶¶ 7-8. The Board did not grant either promotion. Id. ¶ 9.
Reece retired in December 2005 and the Board thereafter sought to hire a new General Counsel. Id. ¶ 11. In the interim, Beth Don, the Board's Executive Director, served as Acting General Counsel, id. ¶ 12, until April 2006 when Anne M. Wagner was hired for the position, id. ¶ 13. Williams did not apply for the vacant GS-15 position of General Counsel, id. ¶ 14, instead continuing to be supervised by whomever was fulfilling those duties, id. ¶¶ 12-13.
On January 20, 2006, Williams sent Don an e-mail requesting a promotion to GS-15 within her position. Id. ¶ 15. Don responded that it would be more appropriate for Williams to make her request to the new permanent General Counsel when the position was filled. Id.*fn3 Less than a month later, Williams e-mailed Don and other PAB members stating that she "wish[ed] to file an EEO complaint regarding the PAB's discriminatory pay policies and practices." Id. ¶ 18.
When Don first assumed the role of Acting General Counsel, she directed Williams "not to report to her any information that might have the impact of causing her to have to recuse herself from matters pending before the PAB Board." Williams Aff. ¶ 7. Then, on February 15, 2006, Don sent Williams a letter asking Williams "to keep her timely and fully informed of all matters of importance to the office going forward." Def.'s Stmt. ¶ 21. This letter was evidently prompted by a large increase in the number of charges filed with PAB that Don believed Williams was aware of but had failed to inform Don about. Id. ¶¶ 19-20. The parties disagree as to whether the letter affected the terms and conditions of Williams's employment, compare Def.'s Stmt. ¶ 22 with Pl.'s Stmt. ¶ 22, but it is undisputed that the letter was not placed in Williams's personnel file, Pl.'s Stmt. ¶ 22. On May 17, 2006, Williams filed an Equal Employment Opportunity ("EEO") Complaint, alleging discrimination on the basis of race, sex, and age, and retaliation for prior EEO activity. That retaliation, Williams contends, manifested itself in the failure to grant her January 20 promotion request and Don's letter regarding timeliness. See Def.'s Stmt. ¶ 29.
At some point during 2006, Williams had been assigned to investigate a complaint of discrimination filed by a Library of Congress ("LOC")*fn4 employee, Linda B. Blumner. Id. ¶¶ 31-32. Ricardo Grijalva, the Acting Director of the Office of Workforce Diversity, expressed his concern that, based on the work that had been done so far, the investigation would not be completed by the LOC policy's deadline for processing investigations -- July 7, 2006, in this case. Id. ¶ 36. Williams was out of the office on unscheduled leave on the Friday that Mr. Grijalva relayed his concerns to Don, as well as on the following Monday and Tuesday. Id. ¶ 37. Wagner, the new General Counsel, called Williams at home and told her that she needed to come in to complete the Blumner investigation. She informed Williams that no further requests for leave would be approved until the investigation was complete. Id. ¶ 42. Wagner also notified Williams that she had scheduled an interview for Williams to conduct with Mr. Grijalva, one of the key witnesses in the investigation. Id. ¶ 41. Williams subsequently canceled this interview and proceeded with the investigation through written interrogatories instead. Id. ¶ 43-44. When Wagner learned of that development, she issued a notice proposing to suspend Williams for five days, which the Board later approved. Id. ¶ 45. At the same time, Williams states that when Wagner learned that Williams had canceled the interview, "Ms. Wagner physically confronted me in a hostile and threatening manner. At that time, Ms. Wagner stormed into my office and, with a raised voice, stood alarmingly and threateningly close to me, and criticized my work performance." Williams Aff. ¶ 24.
On June 6, 2006, Wagner e-mailed Williams asking for information about a rumored business relationship between the Chair of the PAB, Michael Doheny, and one of GAO's private consultants, a relationship that could have created the appearance of a conflict of interest if substantiated. See Def.'s Stmt. ¶¶ 46-50. Although the parties disagree about whether Williams replied initially, compare id. ¶¶ 50-52 with Pl.'s Stmt. ¶¶ 50-52, Wagner continued to request more information from Williams, Def.'s Stmt. ¶¶ 51, 54. On July 26, 2006, Wagner issued a letter of reprimand to Williams for her "refusal to comply" with Wagner's multiple requests to her satisfaction. Id. ¶ 55. On August 21, 2006, Williams filed a second EEO complaint alleging that she was being subjected to a hostile work environment based on race, sex, and age discrimination and retaliation. Id. ¶ 56. On September 1, 2006, she filed a third EEO complaint, also relating to her claims of a hostile work environment. Id. ¶ 57. The EEOC was assigned to investigate Williams's complaints; she received a Notice of Right to Sue on July 13, 2007. Id. ¶ 58. She then filed this civil action on August 10, 2007. Id.
I. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)
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 v. Rhodes, 416 U.S. 232, 236 (1974); 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).
II. Summary Judgment Pursuant to Fed. R. Civ. P. 56(c)
When, on a Rule 12(b)(6) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 12(b); see Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003). Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant 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 identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.
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 ...