The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's motion to dismiss pro se plaintiff Janet Howard's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Mot."), Ms. Howard's opposition thereto ("Opp.") and defendant's reply in support of its motion ("Reply"). For the reasons set forth below, the Court will grant defendant's motion and dismiss without prejudice Ms. Howard's complaint for failure to state a claim.
The following recitation of facts is taken from the Court's Memorandum Opinion and Order of April 16, 2008. See Howard v. Gutierrez, Civil Action No. 08-0421, Memorandum Opinion and Order (D.D.C. April 16, 2008) (denying Ms. Howard's motion for a preliminary injunction) ("P.I. Mem. Op.").
Plaintiff Janet Howard worked for the United States Department of Commerce ("DOC") for over twenty years. At the time she filed this suit against DOC, she was employed by the agency as an Export Compliance Specialist. On November 13, 2007, her supervisor, Todd Willis, placed her on a Performance Improvement Plan ("PIP"). The stated purpose of the PIP was to "allow [Ms. Howard] an opportunity to raise [her] performance to [a] satisfactory level." Plaintiff's Reply Brief in Support of Motion for a Preliminary Injunction and for an Expedited Hearing and Opposition to Defendant's Motion to Dismiss, Ex. 3, Letter from Todd Willis to Janet Howard Regarding PIP at 1 (Nov. 13, 2007). In his letter setting forth the PIP, Mr. Willis informed Ms. Howard that failure to meet the requirements of the PIP could have adverse consequences, including demotion or termination. See id. at 6. On February 5, 2008, Ms. Howard filed a formal Equal Employment Opportunity complaint claiming that the November 2007 PIP was discriminatory and retaliatory.
In a letter dated February 27, 2008, Mr. Willis informed Ms. Howard that, based on her failure to meet the requirements of the PIP, he was proposing to terminate her employment. See Plaintiff's Reply Brief in Support of Motion for a Preliminary Injunction and for an Expedited Hearing and Opposition to Defendant's Motion to Dismiss, Ex. 4, Letter from Todd Willis to Janet Howard Regarding Notice of Proposed Removal at 1 (Feb. 27, 2008). That letter also stated that the proposed removal would become effective no earlier than 30 days from Ms. Howard's receipt of the letter. See id.
On March 6, 2008, Ms. Howard amended her February 5, 2008 administrative complaint so that it encompassed not only the November 2007 PIP but also the notice of proposed removal. Five days later, on March 11, 2008, Ms. Howard initiated the instant suit and filed a motion for a temporary restraining order and preliminary injunction (which this Court treated as a motion for a preliminary injunction). In that motion, Ms. Howard asked this Court to compel DOC "to cease and desist any attempts to remove her from her government job." Plaintiff's Memorandum in Support of Emergency Motion for Temporary Restraining Order and Preliminary Injunction at 4. She argued that DOC's explanation for the notice of proposed removal -- deficient performance -- was pretextual, and that DOC in fact sought to terminate her in retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. The Court heard oral argument on Ms. Howard's motion for a preliminary injunction on April 14, 2008, and denied that motion in a written memorandum opinion and order issued April 16, 2008. See P.I. Mem. Op. at 6-7. It appears that Ms. Howard was removed from her position on April 21, 2008. See Opp. at 7.
On May 12, 2008, DOC filed a motion to dismiss Ms. Howard's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The gist of DOC's motion is that Ms. Howard's complaint must be dismissed because she filed suit before exhausting her administrative remedies. See Mot. at 1.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a complaint if a plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the Supreme Court clarified the standard of pleading that a plaintiff must meet in order to survive a motion to dismiss under Rule 12(b)(6). The Court noted that "Federal Rule of Civil Procedure 8(a)(2) requires only '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[.]'" Id. at 1965 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007); Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008). 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 Atlantic Corp. v. Twombly, 127 S.Ct. at 1964-65. The Court stated that there was no "probability requirement at the pleading stage," Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1965, but "something beyond . . . mere possibility . . . must be alleged[.]" Id. at 1966. The facts alleged in the complaint "must be enough to raise a right to relief above the speculative level," id. at 1965, or must be sufficient "to state a claim for relief that is plausible on its face." Id. at 1274. The Court referred to this newly clarified standard as "the plausibility standard." Id. at 1968 (abandoning the "no set of facts" language from Conley v. Gibson). The D.C. Circuit has noted that Twombly "leaves the long-standing fundamentals of notice pleading intact." Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d at 15.
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 127 S.Ct. at 2200; see also Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1965; Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325 (1991); Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d at 15. The complaint "is construed liberally in the [plaintiff's] favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Communications Corp., 16 F.3d at 1276; see also Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d at 15. While the complaint is to be construed liberally in plaintiff's favor, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint; nor must the Court accept plaintiff's legal conclusions. See Kowal v. MCI Communications Corp., 16 F.3d at 1276; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
III. ADMINISTRATIVE EXHAUSTION
Federal employees must exhaust their administrative remedies before filing suit under Title VII. See 42 U.S.C. § 2000e-16(c); Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). Employees who allege discrimination must consult with an agency Equal Employment Opportunity counselor before filing a written complaint with the agency accused of discriminatory practices. See 29 C.F.R. § 1614.105(a); 29 C.F.R. § 1614.106(a)-(c). A complainant "must initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory[.]" 29 C.F.R. § 1614.105(a)(1). The agency must then investigate the matter within 180 days, after which the complainant may demand an immediate final decision from the agency or a hearing before an administrative judge. See 29 C.F.R. § 1614.106(e)(2); 29 C.F.R. § 1614.108(f)-(g). If an employee subsequently amends her complaint, the agency has the earlier of 180 days from the last amendment or 360 days from the filing of the original complaint in which to complete its investigation. See 29 C.F.R. § 1614.106(e)(2). A complainant may file a civil action only (1) after she has received a final decision (from the agency or, if she timely appeals from the agency's final decision, from the Equal Employment Opportunity Commission), or (2) after a specified length of time has passed without a final decision. Specifically, [a] complainant who has filed an individual complaint . . . is authorized under title VII . . . to file a civil action in an appropriate United States District Court:
(a) Within 90 days of receipt of the final [agency] action on an individual or class complaint if ...