The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION DENYING THE DEFENDANT'S MOTION TO DISMISS*fn1;SUA SPONTE DISMISSING IN PART THE PLAINTIFF'S CLAIMS; GRANTING IN PART AND DENYING IN PART THE PLAINTIFF'S MOTION FOR DISCOVERY; GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT*fn2
Currently before the court are the defendant's motion for summary judgment and the plaintiff's motion for discovery pursuant to Federal Rule of Civil Procedure 56(f). The plaintiff, Intisar R. Na'im, claims racial discrimination, a hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Although the parties do not yet have the benefit of discovery, the defendant moves to dismiss the hostile work environment claim because the plaintiff failed to exhaust administrative remedies, or in the alternative, because she fails to demonstrate severe or pervasive conduct. In addition, the defendant moves for partial summary judgment on the discrimination and retaliation claims, asserting that the plaintiff fails to allege an adverse action to satisfy her discrimination claim and fails to establish aprima facie case of retaliation.
Because the defendant's conduct is not materially adverse in the discriminatory and retaliatory contexts, the court grants the defendant's motion for partial summary judgment on the plaintiff's discrimination and retaliation claims. However, because the court may infer a hostile work environment and retaliation based on a hostile work environment from the alleged incidents, and because summary judgment is generally inappropriate before discovery, the court denies the defendant's motion for summary judgment and grants the plaintiff's motion for discovery on these claims.
The plaintiff, an African American woman, began working for the State Department in 1991. Compl. ¶ 6. Around 1997, the State Department assigned her to work in the "Office of Information Resources and Management Programs and Services, Requester Liaison Division" ("IPS") as a Program Analyst, and by 1999, she reached the GS 12 step 5 grade level. Id. As an analyst, her duties included organizing and coordinating access to information under the Freedom of Information Act and Privacy Act programs. Id.
The plaintiff alleges that during her time at IPS, her department chief, Margaret Grafeld, made racially derogatory comments toward her in the course of her security clearance investigation and during an evaluation of her candidacy for a promotion in 1999. Id. ¶ 7.
Additionally, the plaintiff contends that Grafeld "failed to provide her with timely performance evaluations, gave her unwarranted low performance ratings and portrayed her in a demeaning and highly negative light professionally which undermined her work performance and professional standing." Id. On or about September 26, 2001, the plaintiff filed an informal Equal Employment Opportunity ("EEO") complaint alleging race discrimination and a hostile work environment against Grafeld based on this conduct. Id. The parties resolved the informal EEO complaint through mediation, and the plaintiff signed a "Mediated Settlement Agreement."*fn3 Def.'s Statement of Undisputed Material Facts ("Def.'s Statement") ¶ 4.
Sometime after the parties resolved the September 26, 2001 informal EEO complaint, the plaintiff maintains that the discriminatory conduct continued under the supervision of her immediate supervisor, Tasha Thain. Compl. ¶ 8. Specifically, the plaintiff alleges that Thain provided her with "untimely and unwarranted downgrading of her performance ratings in 2001 and attempted to place her on an utterly unjustified Performance Improvement Plan" ("PIP"). Id. On May 10, 2002, the plaintiff filed a second informal EEO complaint, this time regarding Thain's conduct. Id. The record does not indicate whether the plaintiff took any further action after filing the informal EEO complaint. See generally Pl.'s Opp'n; Pl.'s Statement of Genuine Issues ("Pl.'s Statement").
In May 2002, IPS issued a vacancy announcement for a GS 343-13 position. Compl. ¶ 9. The plaintiff applied for the position on May 15, 2002. Id. She maintains that another employee informed her that she was qualified for the position and that her name was certified with other qualified candidates. Id. Ultimately, however, the defendant did not select the plaintiff for the vacancy. Id. As a result of the non-selection, the plaintiff filed another informal*fn4 EEO complaint of discrimination, and on July 26, 2005, she received a right-to-sue letter. Id. ¶ 10.
After filing the non-selection discrimination EEO complaint, the plaintiff asserts that her supervisors and co-workers made demeaning comments about her professional abilities, personal character and personal appearance. Id. ¶ 11. She also contends that in 2005 her supervisors placed her on an unjustified PIP, forced her to endure harassing "coaching sessions" and threatened her with termination. Id. Finally, she alleges that in 2005 her supervisors gave her unwarranted poor performance evaluations. Pl.'s Opp'n at 14.
The plaintiff maintains that on or about August 15, 2006, she filed a formal EEO complaint against the State Department for race discrimination and retaliation. Compl. ¶ 13. In this formal EEO complaint the plaintiff avers that: (1) as a result of the previous EEO complaints, she experienced reprisal from IPS "management and personnel officials up to the time she departed IPS and was placed on the 2005 PIP to either terminate her or pressure her out of [her job]"; (2) during both previous informal EEO complaint mediations, she was not "treated fairly in terms of . . . her performance evaluations"; (3) her supervisors constantly singled her out by requiring her to attend PIP meetings to discuss her case work; and (4) Thain and division chief, Charlene Thomas, made verbal threats that the State Department would terminate her if she did not "improve." Id.; Pl.'s Opp'n, Ex. A ("EEO Compl.") at 1-2.
On September 28, 2006, the plaintiff received a final agency decision dismissing her claims. Compl. ¶ 13. The final agency decision stated that the plaintiff's claims were not actionable because the defendant did not place the PIP in her official personnel folder and because the delayed performance evaluation did not impact her performance award. Def.'s Mot., Ex. A, Tab 2 ("Final Agency Decision") at 1-2. The final agency decision did not address the plaintiff's discrimination and retaliation claims based on receiving unfair performance ratings for 2005; being singled out for PIP meetings; and being threatened with termination if she did not improve. See generally id.
The plaintiff filed a complaint in this court on December 28, 2006. Compl. On September 21, 2007, the defendant filed an early motion for partial summary judgment. Def.'s Mot. The plaintiff subsequently filed an opposition that raised for the first time a claim of race discrimination and retaliation based on an allegedly unwarranted poor performance evaluation. Pl.'s Opp'n at 14. That same day she filed a motion for discovery pursuant to Federal Rule of Civil Procedure 56(f). Pl.'s 56(f) Mot. Both these motions are now briefed and ready for the court's consideration.
A. Subject Matter Jurisdiction
1. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (noting that "[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction").
Because "subject-matter jurisdiction is an 'Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject-matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). If no motion is filed, the court is obliged to address jurisdiction sua sponte, "since the jurisdiction at issue goes to the foundation of the court's power to resolve a case." Doe ex rel. Fein v. District of Columbia, 93 F.3d 861, 871 (D.C. Cir 1996).
Because subject-matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). When necessary, the court may consider the complaint supplemented by undisputed facts evidenced ...