The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff, Sandra Ragsdale, an employee of the Federal Bureau of Investigation ("FBI"), brings this action against the defendant Eric Holder, in his official capacity as Attorney General of the United States, asserting claims of disparate treatment and harassment under Section 501 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794 (2006). Amended Complaint ("Am. Compl.") ¶¶ 1, 10-17. Specifically, the plaintiff alleges that because of her disability and in contrast to how "similarly situated non-disabled employees" have been treated, her supervisors have denied her the use of annual leave, instead placing her on leave without pay, id. ¶¶ 10-14 ("Count I"), and have harassed and treated her differently than "similarly situated non-disabled employees" causing her "severe and emotional distress," id. ¶¶ 15-17 ("Count II"). Currently before the Court is the Defendant's Motion to Dismiss the Complaint or, in the Alternative, for Summary Judgment ("Def.'s Mot."), which the plaintiff opposes, Plaintiff's Opposition to Defendant's Motion to Dismiss, or for Summary Judgment ("Pl.'s Mot.").*fn2 For the reasons set forth below, the Court must grant the defendant's motion.
The following are the facts viewed from the perspective most favorable to the plaintiff. The plaintiff is employed as a GS-12 Personnel Security Specialist with the Security Reinvestigations Unit, Personnel Security Section, Security Division, of the FBI. Defendant's Memorandum in Support of Motion to Dismiss ("Def.'s Mem."), Exhibit ("Ex.") 1 (Feb. 6, 2006 Affidavit of Sandra Ragsdale ("Ragsdale Aff.")) at 1. She has been employed by the FBI since 1973, and has occupied her current position since 2005. Id. The plaintiff's primary supervisors are Section Chief Sharon Durkin ("Ms. Durkin"), Unit Chief Wyelene Haase ("Ms. Haase") and Supervisory Personnel Security Specialist Winifred Huger ("Ms. Huger").*fn3 Def.'s Mem. at 2.
Due to a fall suffered in 1986 that occurred at her workplace, which required surgery on both of her knees, the plaintiff has a 30% disability in one knee and a 40% disability in the other, resulting in "chronic pain and difficulty walking, and also pain and swelling and other symptoms (fatigue)." Def.'s Mem., Ex. 1 (Ragsdale Aff.) at 2, 5. Complicating this condition are the plaintiff's other "major medical conditions," which include "Asthma, Systemic Lupus Erythematosus [("Lupus")], Hiatal Hernia, Gastroesophageal Reflux Disease, Arthritis, Bilateral Patellar Chrondromalacia, Irritable Bowel Syndrome, Multiple Chronic Allergies and Fibromyalgia." Id. at 2. The plaintiff requires a cane to assist with walking, and "[d]ue to the pain and swelling, from [her] disability and Lupus symptoms[,] which at times make it impossible for [her] to be mobile," the plaintiff has "had to take considerable time off from work." Id. at 2-3.*fn4 However, "[w]hen [she is] able to [go] to work, [she has] no problem performing [her] job[,]" and has "received exceptional performance ratings." Id. at 3.
"Due to her longevity as a federal employee, [the] plaintiff accrues annual leave . . . at a rate of eight hours per pay period," and "[s]he also accrues sick leave . . . at a rate of four hours per pay period." Def.'s Mem. at 2. Each pay period is two weeks, and under FBI policy "an employee must successfully complete a full pay period in order to accrued [sic] leave." Def.'s Mem., Ex. 4 (Feb. 9, 2006 Affidavit of FBI Human Resources Specialist Maureen A. DeLoach ("DeLoach Aff.")) at 4; see also Def.'s Mem., Ex. 8 (FBI Leave Policy Manual) at 1 ("Leave does not accrue for partial pay periods . . . ."). However, although "[l]eave accruals are not officially earned or applied to an employees [sic] totals until the end of the pay period," "the system will allow leave to be advanced from the projected end of [the pay period.]" Pl.'s Mem., Ex. 1 (June 1, 2005 Email from Selina Jameson to Winifred E. Huger, Wyelene C. Haase, Lynn
M. Poindexter, and Brian T. Kelly ("Jameson Letter")). Thus, an employee may be granted advance annual leave, but the decision to do so "is purely a manager's prerogative." Def.'s Mem., Ex. 4 (DeLoach Aff.) at 4. Indeed, as the FBI Leave Policy Manual states, advance annual leave "is not a vested right of the employee." Def.'s Mem., Ex. 8 (FBI Leave Policy Manual) at 3; see also Def.'s Mem., Ex. 12 (U.S. Office of Personnel Management Leave Policy Manual ("OPM Manual")) at 2-3 ("An employee has a right to take annual leave, . . . [however,] [e]mployees do not have an entitlement to advance annual leave.").
The plaintiff's cause of action stems from the denial of her annual leave request and placement on leave without pay "during May and June 2005, pay periods 13 and 15, respectively."*fn5 Pl.'s Mem. at 1. On May 31, 2005, during pay period 13, the plaintiff requested annual leave for that day. Def.'s Mem., Ex. 1 (Ragsdale Aff.) at 9. However, when she returned to work the next day, she was informed by Ms. Huger that because she "did not have [advance leave] on the books[,]" she would receive only leave without pay. Id. Although the plaintiff claims that "[she] did have [accrued annual leave] as [she] earned it for [pay period 13,]" id., because pay period 13 had not yet ended, "the leave was not showing on 5/31/2005, within the system, [and thus] it technically could not have been earned[,] . . . [although] it would show up [at the end of the pay period,]" Pl.'s Mem., Ex. D (Office of Equal Employment Opportunity Affairs Investigative Notes ("EEO Counselor's Notes"), Statement of Management Assistant Selina Jameson ("Jameson Statement")) at 3-4; see also Def.'s Mem., Ex. 7 (FBI Earnings and Leave Record for Sandra Ragsdale, Pay Period 13 (05/29/2005 -- 06/11/2005) ("Ragsdale Leave Record, Pay Period 13")) at 2 (noting that beginning balance for annual leave was zero). The request for annual leave was officially denied the following day, June 2, 2005. Def.'s Mem., Ex. 1 (Ragsdale Aff.) at 10; Pl.'s Mem., Ex. D (EEO Counselor's Notes) at 1. Soon thereafter, during pay period 15, the plaintiff requested advance annual leave for June 29, 2005.*fn6 Def.'s Reply at 2; id., Ex. 5 (Approval for Leave for Sandra Ragsdale, Pay Period 15) at 2. Again, this request was denied by Ms. Haase because the "hours . . . are not accrued until the end of [the pay period]." Def.'s Mem., Ex. 1 (Ragsdale Aff.) at 10-11.
On June 21, 20005, the plaintiff contacted the Office of Equal Employment Opportunity (the "EEO") and met with an EEO Counselor, "alleg[ing] that she was discriminated against [in the denial of her March 31, 2005 annual leave request] based on reprisal . . . [stemming from the] previous [Office of Professional Responsibility] investigation that was filed involving [Ms. Huger's] actions against the [plaintiff]." Pl.'s Mem., Ex. D (EEO Counselor's Notes) at 1. On August 24, 2005, the plaintiff then elected to file a formal administrative complaint with the United States Equal Employment Opportunity Commission (the "Commission") Washington Field Office alleging discrimination on the basis of her disability based on the June 2, 2005 denial of annual leave. Am. Compl. ¶ 7; Def.'s Reply at 3 & Ex. 2 ("Agency's Opposition to Complainant's Motion to Add Retaliation") ¶ 3. On February 13, 2007, the plaintiff moved to add a claim for retaliation to her administrative complaint based on the June 29, 2005 denial of her request for annual leave, Def.'s Reply, Ex. 1 (Complainant's Motion to Add Retaliation) ¶ 1, but this request was denied for unspecified reasons on February 28, 2007, Def.'s Reply, Ex. 3 (Order Denying Motion to Add Retaliation). Subsequently, on March 6, 2007, the plaintiff withdrew her administrative complaint, invoking her right to sue under 42 U.S.C. § 2000e-5(f) (2006) and 29 U.S.C. § 626, and filed this action with the Court, Am. Compl. ¶¶ 8-9, alleging that the denial of her requests for annual leave was based on discrimination against her as a disabled person, in violation of section 501 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 791, id. ¶¶ 11-13, and that she was harassed by her supervisors because of her disability, in violation of the hostile work environment provisions of the same statute, id. ¶¶ 15-17.
A. Rule 12(b)(1) Motion to Dismiss
In deciding a motion to dismiss based upon lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a Court is not limited to the allegations set forth in the complaint, but "may consider materials outside [of] the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction[.]" Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). Under Rule 12(b)(1), "[i]t is to be presumed that a cause lies outside [the federal courts'] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), unless the plaintiff establishes by a preponderance of the evidence that the Court has jurisdiction, see, e.g., Hollington v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C. 2006).
B. Rule 12(b)(6) Motion to Dismiss
On the other hand, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether the plaintiff has properly stated a claim upon which relief can be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, it need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (internal quotation marks omitted) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Although detailed factual allegations are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the grounds of entitlement to relief, a plaintiff must furnish more than labels and conclusions or a formulaic recitation of the elements of a cause of action." Hinson ex rel. N.H. v. Merritt Educ. Ctr., 521 F. Supp. 2d 22, 27 (D.D.C. 2007) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555). Thus, "[t]he complaint's factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Hinson, 521 F. Supp. 2d at 27 (alteration in original) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555). In other words, the plaintiff's allegations are "entitled to the assumption of truth" only in so far as they comprise of more than "bare assertions . . . amount[ing] to nothing more than a 'formulaic recitation of the elements' of a constitutional discrimination claim." Ashcroft v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937, 1951 (2009) (indicating that bare allegations that the defendant knew of and condoned discriminatory behavior and that discrimination was part of the defendant's workplace policy did not "'nudge [the plaintiff's] claims' of invidious discrimination 'across the line from conceivable to plausible'" (citing Twombly, 550 U.S. at 570)). Therefore, in evaluating a Rule 12(b)(6) motion, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged[,]" Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks omitted), except in the case of purely conclusory allegations, Iqbal, __ U.S. at __, 129 S.Ct. at 1951. Moreover, "[a] dismissal with prejudice is ...