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Rhodes v. Napolitano

September 23, 2009


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


Plaintiff Sharon Rhodes has brought discrimination and retaliation claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., against her employer, defendant Department of Homeland Security. Pending before the Court is defendant's motion to dismiss, or, in the alternative, to strike the complaint. Upon consideration of the motion, the response and reply thereto, the applicable law, the entire record, and for the reasons stated below, the Court GRANTS IN PART AND DENIES IN PART defendant's motion to dismiss and DENIES AS MOOT the motion to strike.


Plaintiff, an African-American female, has been employed by defendant as a Management Analyst in the U.S. Immigration and Naturalization Service Branch since 1990 or before. Compl. at 1 ¶ 2.*fn2 In her complaint, plaintiff alleges that defendant took a variety of adverse actions against her because of her race, color, and prior protected activity.*fn3 See Compl. at 3-6 ¶¶ 2, 12, 21-22.

Specifically, plaintiff claims that (1) she was given undesirable work assignments in 2005 and early 2006, which included being assigned to work alone inventorying a warehouse containing "rat and bird feces, water damage, dust particles and wall to wall furniture and equipment which had been there for more than 30 years," Compl. at 1-2 ¶¶ 3, 6; (2) from approximately January 2006 through August 2006, defendant conducted an investigation into her alleged misuse of a government vehicle that culminated with a Letter of Counseling issued in February 2007,*fn4 see Compl. at 2 ¶¶ 6-9; (3) she, along with several other co-workers, was drug-tested on January 23, 2007, despite the fact that personnel in her position were not normally subjected to drug tests, Compl. at 2 ¶ 11; (4) in late January 2007, her computer, email address, and work telephone were taken away and were not returned until April 2007, Compl. at 2-3 ¶¶ 12, 16; and (5) "[a]fter January" 2007, she stopped receiving work assignments and was ignored by her co-workers, Compl. at 2 ¶¶ 13-14.

Because of a discrepancy in the record, the date of plaintiff's initial contact with the Equal Employment Opportunity Commission ("EEOC") is somewhat unclear. The EEOC Intake Form lists the date of initial contact as March 21, 2007. Pl.'s Ex. D. However, plaintiff's administrative complaint, filed on June 26, 2007, lists the date of initial EEOC contact as April 9, 2007 - the same day that plaintiff's computer equipment was returned to her. Def.'s Mem. at 3 & Ex. 2. The EEOC's official investigation began on July 13, 2007 and was concluded on September 11, 2007. Compl. at 3 ¶ 18. Plaintiff sought an EEOC hearing on her complaint, but on April 16, 2008, at plaintiff's request, the EEOC dismissed the hearing request and remanded the case to the agency for a final decision. Compl. at 3 ¶ 20 & Ex. A. No final action has been issued. Compl. at 3 ¶ 21.

Plaintiff filed suit in this Court on August 11, 2008, alleging racial discrimination and retaliation under Title VII. On February 9, 2009, defendant filed a motion to dismiss or, in the alternative, to strike the complaint pursuant to Federal Rule of Civil Procedure 11(a) on the basis that it was not signed by plaintiff or her attorney. Defendant's motion is now ripe for decision.


Pursuant to Federal Rule of Civil Procedure 8(a), a pleading stating a claim for relief must contain "'a short and plain statement of the claim showing that the pleader is entitled to relief'" in order to provide to the defendant "fair notice of the claims against" him. Ciralsky v. CIA, 355 F.3d 661, 669, 670 (D.C. Cir. 2004) (quoting Fed. R. Civ. P. 8(a)); see also Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (per curiam). "[W]hen a complaint adequately states a claim, it may not be dismissed based on a district court's assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). In considering a 12(b)(6) motion, the Court must construe the complaint "liberally in the plaintiff's favor," "accept[ing] as true all of the factual allegations" alleged in the complaint. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (alteration in original) (quoting Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir. 2008)). Plaintiffs are entitled to "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). 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 because subject-matter jurisdiction focuses on the court's power to hear the claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003). Where necessary to determine whether it has jurisdiction, the court may consider materials outside the pleadings. Alliance for Democracy v. Fed. Election Comm'n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).


Defendant contends that plaintiff failed to exhaust administrative remedies for all of the claims in her complaint, with the exception of any claim arising out of the Letter of Counseling she received in February 2007. Def.'s Mem. at 6-8. According to defendant, however, this claim must also be dismissed because the Letter of Counseling does not qualify as an adverse employment action and, in view of defendant's withdrawal of the letter in August 2007, is moot. Def.'s Mem. at 4-5. Finally, defendant argues that plaintiff's retaliation claim must be dismissed because the complaint fails to allege a causal link between any activity protected under Title VII and a materially adverse action taken against plaintiff by defendant. Def.'s Mem. at 8-11. The Court will address each of these issues in turn.

A. Exhaustion of Administrative Remedies

"A federal employee filing a Title VII action must exhaust his or her administrative remedies before seeking judicial review." Brodetski v. Duffey, 199 F.R.D. 14, 18 (D.D.C. 2001) (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 832-33 (1976)). The administrative procedures that must be followed in this regard are laid out in Title 29 of the Code of Federal Regulations. See 29 C.F.R. §§ 1614.101-110. In particular, an aggrieved federal employee must initiate contact with an EEOC counselor within forty-five days of the date of the event believed to be discriminatory or retaliatory; for personnel actions, contact must occur within forty-five days of the effective date of the personnel action. Id. § 1614.105(a)(1). The EEOC counselor must then conduct a final interview within thirty days of the employee's contact with the EEOC. Id. § 1614.105(d).

If the matter remains unresolved within that time frame, the EEOC counselor is required to notify the employee of her right to file an administrative complaint within fifteen days of such notice. Id. An administrative complaint must be signed and "sufficiently precise," identifying the aggrieved person and describing the basis for the complaint. Id. § 1614.106(c). The administrative complaint may be amended at any time prior to the conclusion of the agency's "impartial and appropriate" investigation, which must be conducted and completed by the agency within 180 days of the filing of the complaint. Id. § 1614.106(d) & (e)(2). An employee may bring a civil action within 90 days of the receipt of notice of ...

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