The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff Ann Mogenhan ("Plaintiff") brings this action against Defendant Eric K. Shinseki, Secretary of Veterans Affairs ("Defendant"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. She alleges that she was subjected to discrimination on account of her race, disability, and gender, and retaliation on account of her prior Equal Employment Opportunity ("EEO") activity (Count I); and disparate treatment on account of gender and prior EEO activity (Count II).
This matter is now before the Court on Defendant's Motion to Dismiss those claims in Count I based on race and disability [Dkt. No. 34].*fn2 Upon consideration of the Motion, Opposition, Reply, the entire record herein, and for the reasons set forth below, Defendant's Motion to Dismiss is granted.
On October 8, 2000, Plaintiff was hired as an Administrative Officer in the Office of Financial Management and Accounting Systems at the Veterans Health Administration in the Department of Veterans Affairs ("the Agency"). Her position required her to handle a variety of issues, including "budget, financial management, human resources, procurement and contracting, property management, executive correspondence, health and safety, and security." Compl. ¶ 15. During her service, she received several awards, including Sustained Superior Performance Awards, Special Contribution Awards, and Exemplary Performance Awards. Id. at ¶ 15 [sic].*fn4
Plaintiff applied for the One-VA SES Candidate Development Program. To be considered for admission to the program, Plaintiff needed two of her supervisors, David Rutledge ("Rutledge") and Jimmy Norris ("Norris"), to complete an appraisal of her performance.
Plaintiff states that the appraisal submitted by Rutledge and Norris was "mediocre" and that they knew that it "did not accurately reflect her performance." Id. ¶ 19. On February 3, 2007, Plaintiff was informed that Norris would not sign a form indicating that he supported her for the position.
On February 26, 2007, Plaintiff received a letter informing her that she had not been selected for the position. Plaintiff states that her "non-selection was due in large part to the refusal of Mr. Norris to sign" the form. Id. ¶ 22. Plaintiff also states that other applicants were accepted "without the requirement that their supervisors execute the form." Id. ¶ 23.
Plaintiff filed three formal EEO complaints: the first on December 20, 2001, the second on March 23, 2005, and the third on December 19, 2005. Plaintiff consolidated these three administrative complaints into a civil action that was filed on November 29, 2006 in this Court (Civil Action No. 06-2041). In the Amended Complaint, Plaintiff alleged that she was subjected to a hostile work environment on the basis of her gender and her prior EEO activity (Count I); that she was subjected to disparate treatment for the same reasons (Count II); and that she was subjected to adverse personnel actions because of her race, gender, and prior EEO activity (Count III). See 06-2041, Am. Compl. ¶¶ 34-36.
On February 28, 2007, Plaintiff contacted an EEO Counselor. On March 26, 2007, she filed a formal EEO complaint alleging that she was discriminated against on the basis of her gender and that she was retaliated against on the basis of her prior EEO activity. Id. ¶ 11. This EEO complaint did not allege that she was subjected to discrimination on account of her race and disability. See generally Defs.' Mot., Ex. A.
On February 21, 2008, the Agency's Office of Employment Discrimination and Complaint Adjudication ("OEDCA") denied Plaintiff's March 26, 2007 EEO Complaint, finding that Plaintiff had not been subjected to discrimination on the basis of gender or reprisal. Id. The OEDCA decision never referenced race or disability discrimination, and it made no findings on these issues. See id.
On March 4, 2008, Plaintiff filed a second Complaint (Civil Action No. 08-391). The Complaint alleged that Plaintiff was subjected to unlawful discrimination on the basis of her race, disability, and gender, and retaliation on the basis of her prior EEO activity (Count I), and disparate treatment on account of her gender and her prior EEO activity (Count II).
On June 16, 2008, the Court consolidated the two cases*fn5 and specified that all future pleadings were to be filed in the lead case, 06-2041. Defendant filed ...