The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This is an employment discrimination case brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"). Plaintiff Albert Pearsall brings suit against his long-time employer, the United States Department of Justice ("DOJ"), alleging retaliation and discrimination on the basis of race, gender and age in violation of Title VII and the ADEA. DOJ has moved to dismiss Mr. Pearsall's claims pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn2 On September 29, 2008, the Court issued an Order and Judgment (1) granting DOJ's motion in its entirety, (2) dismissing with prejudice all of Mr. Pearsall's claims except Count Two, and (3) entering judgment in DOJ's favor on Count Two. See Pearsall v. Mukasey, Civil Action No. 07-0108, Order and Judgment (D.D.C. Sept. 29, 2008). This Opinion explains the reasoning behind that Order and Judgment.
Mr. Pearsall, an African American male over the age of 40, has worked at DOJ since 1981. He had supervisory responsibilities for many of those years. In September 2002, Mr. Pearsall was involuntarily transferred from a supervisory position in DOJ's Office of Justice Programs ("OJP") to a non-supervisory position in DOJ's Office of Community Oriented Policing Services ("COPS"). According to Mr. Pearsall, after he was transferred to COPS he was subjected to several unsatisfactory personnel decisions (including the assignment of work incommensurate with his skills and experience, denial of training opportunities, and denial of travel opportunities) and undesirable working conditions (including substandard office space), all of which amounted to a "functional demotion." Mot., Ex. 18, Transcript of Interview of Albert Pearsall by EEO Investigating Officer Elbert Bishop at 41 (Jan. 31, 2005) ("Tr.").
In addition, Mr. Pearsall was not selected for several supervisory positions for which he applied after he was transferred to COPS. One supervisory position for which Mr. Pearsall applied was the Supervisory Social Science Analyst ("SSSA") position within COPS. The position was posted in January 2004. Three candidates, all of whom were deemed qualified, were interviewed for this position: Mr. Pearsall, another COPS employee named Dr. Matthew Scheider (a white male under the age of 40), and a white female. Dr. Scheider received a higher pre-interview score than Mr. Pearsall from the third-party contractor hired to pre-screen applicants. The three-member interview panel included Mr. Pearsall's first-line supervisor, Pamela Cammarata (a white female over the age of 40), COPS Assistant Director Beverly Alford (an African American female over the age of 40), and COPS Senior Supervisory Policy Analyst Jamie French (a white female under the age of 40). Dr. Scheider was offered the SSSA position in April 2004. Ms. Cammarata made the final selection decision.
According to DOJ, neither race, sex nor age played any role in Ms. Cammarata's final selection decision; rather, that decision was based entirely on the relative merits of the three candidates (as demonstrated by their application materials, interviews and prior performance). In particular, DOJ asserts that Ms. Cammarata was swayed by Dr. Scheider's high-level research and analysis skills -- skills that Mr. Pearsall admittedly lacks.*fn3 Mr. Pearsall contends that DOJ's asserted non-discriminatory reasons for not selecting him are, like the selection process itself, "simply a ruse . . . and window dressing" designed to cover up DOJ's discriminatory and retaliatory motives. Compl. ¶ 36.
Mr. Pearsall contacted an Equal Employment Opportunity counselor to complain about these and related events on May 25, 2004. He filed a formal administrative charge on October 6, 2004. Ultimately, the following claims were accepted for investigation:
[1. Mr. Pearsall was] involuntarily transferred from OJP to COPS in September of 2002 which he alleges is due to reprisal (EEO activity);*fn4
[2. Mr. Pearsall was, for discriminatory reasons,] denied the position of Supervisory Program Audit Officer in the COPS office in late 2003;
[3. Mr. Pearsall was, for discriminatory and retaliatory reasons,] denied the position of Supervisory Social Science Analyst on April 19, 2004; [and]
[4. Mr. Pearsall was, for retaliatory reasons,] assigned to a substandard working area in the COPS office once he was transferred there.
Mot., Ex. 23, Letter Re: Acceptance Notice of Complaint of Discrimination of Albert A. Pearsall, III, Docket Number B-05-2511 at 1 (stamped Dec. 9, 2004). Mr. Pearsall, through counsel, later clarified that the fourth claim was actually encompassed by the first claim, and that the substandard office space was not the only unsatisfactory working condition at issue. Specifically, Mr. Pearsall made clear that his first claim should be understood as a claim that (1) he was transferred to COPS for retaliatory reasons; (2) the transfer subjected him to various indignities (including but not limited to substandard office space) constituting a "functional demotion"; and (3) the transfer and the functional demotion it occasioned adversely affected his career. Mot., Ex. 24, Letter from Counsel for Albert Pearsall to Marcus Williams, DOJ Complaints Manager (Dec. 22, 2004) ("Reply Letter"). Notably, Mr. Pearsall later withdrew the first claim. See Mot. at 17 ("In response to Defendant's motion before the Administrative Judge to dismiss [the retaliatory transfer] claim on timeliness grounds, Plaintiff stipulated to the dismissal [and the administrative law judge dismissed it on June 15, 2006]."). The administrative law judge granted summary judgment in DOJ's favor on Mr. Pearsall's other claims. See Mot. at 7 n.3. On January 17, 2007, Mr. Pearsall filed an eight-count complaint in this Court.
A. Motions to Dismiss Pursuant to Rule 12(b)(1)
When deciding a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may dispose of the motion on the basis of the complaint alone or it may consider materials beyond the pleadings. "[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). This Court has interpreted Herbert to allow a court to "consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Board of Elections and Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000).
B. Motions to Dismiss Pursuant to Rule 12(b)(6)
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, 550 U.S. 544 (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 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also 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, 550 U.S. at 555; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). The Court stated that there was no "probability requirement at the pleading stage," Bell Atlantic Corp. v. Twombly, 550 U.S. at 556, but "something beyond . . . mere possibility . . . must be alleged[.]" Id. at 557-58. The facts alleged in the complaint "must be enough to raise a right to relief above the speculative level," id. at 555, or must be sufficient "to state a claim for relief that is plausible on its face." Id. at 570. The Court referred to this newly-clarified standard as "the plausibility standard." Id. at 560 (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 under Rule 12(b)(6), the Court must accept as true all of the factual allegations contained in the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. 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. Nevertheless, 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 ...