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Miller v. Rosenker

September 29, 2008

RICHARD MILLER, PLAINTIFF,
v.
MARK V. ROSENKER, CHAIRMAN ("MILLER II") NATIONAL TRANSPORTATION SAFETY BOARD DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM ORDER

Plaintiff Richard Miller brings this action ("Miller II") against Defendant Mark V. Rosenker in his official capacity as Chairman of the National Transportation Safety Board ("NTSB") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.*fn1

The present matter is before the Court on Defendant's Motion to Dismiss and/or for Summary Judgment pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), and/or 56(b) [Dkt. No. 7].

Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Defendant's Motion to Dismiss [Dkt. No. 7] is granted for Counts III, IV, V, VI, VII, and VIII, and Defendant's Motion for Summary Judgment [Dkt. No. 7] is granted for Counts I and II.

I. BACKGROUND*fn2

Plaintiff was employed with the NTSB from 1999 until June 30, 2006, when he was removed for unacceptable performance. During that time, he was repeatedly turned down for several positions within NTSB, including Special Assistant, Budget Officer, and Chief Financial Officer.

Plaintiff applied for the Budget Officer position in the spring of 2001. Plaintiff was not selected for this position, and was told that he had not demonstrated the requisite level of supervisory and management skill. A woman was selected for this position in October 2001.

Plaintiff applied for a temporary Special Assistant position in early 2001. There were two vacancies for the position, but Plaintiff was not selected for either. Defendant filled the positions with one man and one woman, both younger than Plaintiff. On April 30, 2001, these two candidates were selected for the permanent Special Assistant position. Plaintiff alleges that he contacted an Equal Employment Opportunity (EEO) counselor within forty-five days of learning of the selections for the temporary Special Assistant position and within forty-five days of learning of the selections for the permanent Special Assistant position.

On unspecified dates, Plaintiff was moved to an office on the sixth floor, denied access to emails and documents on Defendant's computer system, excluded from meetings, denied promotion opportunities, prevented from receiving training, and denied a parking spot and a cell phone.

Plaintiff filed a formal discrimination complaint with the NTSB's EEO office on March 13, 2002, alleging discrimination and retaliation.

Plaintiff filed a second EEO complaint on January 21, 2006, alleging thirty instances of discrimination based on mental and physical handicaps, sex, age, and retaliation.

Plaintiff filed this action on June 9, 2006. His Amended Complaint made eight separate allegations: (1) Count I: Gender Discrimination - Non-Selection; (2) Count II: Gender and/or Age Discrimination - Non-Selection; (3) Count III: Gender and/or Age Discrimination -- Inaccurate Position Description, Lowered Performance Appraisal, Removal of Duties, Hostile Work Environment; (4) Count IV: Retaliation -- Inaccurate Position Description, Lowered Performance Appraisal, Removal of Duties, Hostile Work Environment; (5) Count V: Discrimination on the Basis of Age, Gender, and/or Retaliation -- Disparate Treatment; (6) Count VI: Discrimination on the Basis of Age, Gender, and/or Retaliation -- Hostile Work Environment; (7) Count VII: Violation of Workers Compensation Statute; and (8) Count VIII: Violation of the Family and Medical Leave Act.

II. STANDARD OF REVIEW

To survive a motion to dismiss, a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "[O]nce a claim has been stated adequately, it may be ...


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