The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Vernard Evans, the plaintiff in this civil lawsuit, brings this action against the Secretary of the Department of Health and Human Services (the "Secretary") in her official capacity, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (2006) ("Title VII"), Amended Complaint ("Am. Compl.") ¶¶ 5, 30, and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a) (2006) (the "ADEA"),*fn2 Plaintiff's Opposition to Motion to Dismiss and Oppose Summary Judgment ("Pl.'s Opp'n I") at 1,*fn3 on the basis that the Department, an agency of the United States government and her employer, engaged in discriminatory employment practices against her based on her race (African-American), Am. Compl. ¶¶ 5, 30, and age (55), Pl.'s Opp'n I at 1, when it failed to promote her to a position for which she initially had been selected. This matter is currently before the Court on the defendant's Motion to Dismiss Or Alternatively, For Summary Judgment ("Def.' s Mot."), which the plaintiff opposes, Pl.'s Opp'n. After carefully considering the parties' pleadings, the defendant's motion and the plaintiff's opposition, and all memoranda of law and exhibits submitted with these filings,*fn4 the Court concludes that it must not only grant the defendant's motion in part and deny it in part, but also grant the plaintiff limited leave to file an amended complaint for the reasons that follow.
Viewing the evidence in the light most favorable to the plaintiff, the facts are as follows. At all relevant times pertaining to this lawsuit, the plaintiff was an employee of the Administration for Developmental Disabilities (the "ADD"), a subordinate office of the Administration for Children and Families (the "ACF"), within the Department of Health and Human Services (the "Agency"). Def.'s Stmt. ¶ 1.*fn5 The plaintiff, an African-American female, age 55 at the time of her non-promotion, Def.'s Mem., Exhibit ("Ex.") 4 (Affidavit of Vernard Evans) ("Evans Aff.") at 2, had been employed with the Agency for twenty-two years, and in her most recent position, served as a GS-101-13 Program Specialist within the ADD, the entity "responsible for administrating programs and policies serving persons with developmental disabilities." Am. Compl. ¶ 2; Def.'s Stmt. ¶ 27. The ADD is headed by a Commissioner, who reports to the Assistant Secretary and Deputy Assistant Secretary of the ACF. Def.'s Stmt. ¶ 1. Prior to August 27, 2001, Sue Swenson served as Commissioner of the ADD, and she was succeeded by Dr. Patricia Morrissey, the appointee of the incoming presidential administration in 2001. Id. ¶ 3.
A. The Plaintiff's Application to the Lead Developmental Disability Specialist Position
On April 21, 2001, the plaintiff applied for a newly created position within the ADD, a GS-14 position with the title "Lead Developmental Disability Specialist" ("LDDS"), "which was one of the four positions that out-going Commissioner Swenson sought to establish as part of her reorganization of [the] ADD." Def.'s Stmt. ¶ 10. The Agency identified this new position in its vacancy announcement as a non-supervisory and non-bargaining unit position. Def.'s Mem., Ex. 8 (LDDS Vacancy Announcement) at 1. On May 16, 2001, a panel of senior staff members interviewed the plaintiff for the position. Def.'s Mem., Ex. 13 (Plaintiff's Letter to the Agency's Office of Equal Employment Opportunity ("EEO") June 13, 2002) at 1. Leola Brooks, the plaintiff's supervisor and the selecting official for the position, recommended the plaintiff for the promotion.*fn6 Def.'s Stmt. ¶ 11; Def.'s Mem., Ex. 2 (Affidavit of Leola Brooks) ("Brooks Aff.") at 6-7, 9, 12. According to the plaintiff, in September of 2001, Ms. Brooks "told [her] she had [been] selected for the position and that the selection certificate had been returned to personnel for processing." Am. Compl. ¶ 6. However, the plaintiff was not formally notified of this purported selection nor placed in the position. Def.'s Mem., Ex. 4 (Evans Aff.) at 5-6. The plaintiff made several inquiries concerning the status of the position, Def.'s Stmt. ¶ 17, and according to her complaint, was also notified by Personnel Specialist Jenny Mason that she had been selected and "would be placed once the Presidential freeze lifted." Am. Compl. ¶ 7.
During the time period covered in this complaint, several hiring policies were in effect at the Agency, the ACF, and the ADD. Def.'s Stmt. ¶¶ 7-9, 12-14. One was a January 20, 2001 decision by the incoming presidential administration to place "all Executive departments and agencies" on a hiring freeze. Def.'s Stmt. ¶ 7; Def.'s Mem. Ex. 17 (Government Hiring Controls Memo Jan. 30, 2001) at 1. Thereafter, in February 2001, Department of Health and Human Services Secretary Tommy Thompson issued an agency wide memorandum asking the heads of all divisions "to defer decisions to fill positions at the GS-13 through SES levels until [he had] the opportunity to review staff deployment throughout the Department." Def.'s Stmt. ¶ 8; Def.'s Mem., Ex. 6 (Undated Memo from Thompson) at 1. Despite the hiring freeze, the Agency was not prohibited from advertising vacancies, but purportedly "could not make official offers until the hiring control was lifted." Def.'s Stmt. ¶ 9; Def.'s Mem., Ex. 15 (Affidavit of Vanessa Jenkins) ("Jenkins Aff.") at 6. By October 2001, the Agency had relaxed the hiring freeze, but retained controls on supervisory and managerial positions at the GS-14, 15, and Senior Executive Service level. Def.'s Stmt. ¶ 12; Def.'s Mem., Ex. 9 (Memo from Sontag Oct. 15, 2001) at 1. Then, in November 2001, Dr. Wade Horn, Assistant Secretary for Children and Families, issued a memorandum to all subordinate ACF offices, in which he discussed the relaxation of agency wide hiring controls. Def.'s Stmt. ¶ 13; Def.'s Mem., Ex. 10 (Memo from Horn Nov. 29, 2001) ("Horn Memo") at 1-3. Dr. Horn's memorandum "continued the hiring controls on all promotions to the GS-13 level and above, including career ladder promotions and accretions in [the] ACF." Def.'s Mem., Ex. 10 (Horn Memo) at 2. The memorandum directed agency officials to "obtain [Dr. Horn's] approval before any official offer is made . . . for any personnel actions that are currently pending . . . in this category." Id.
Still awaiting promotion into the LDDS position, on February 2, 2002, the plaintiff enlisted the aid of her local union chapter representative, Isadora Wills. Def.'s Stmt. ¶ 18; Am. Compl. ¶ 8. The plaintiff alleges that on February 5, 2002, she contacted the personnel office to inquire into the status of the LDDS position and was given contradictory information, being told on the one hand that personnel records indicated that she had already occupied the position, while being ultimately told that "it could be years before any action is taken." Am. Compl. ¶ 9. On February 7, 2002, Ms. Wills submitted the plaintiff's "questions to the Union concerning" the status of the position. Id. ¶ 10. When she had not received a response by February 28, the plaintiff "began feeling stressed by her workload, and the added frustration from [the] promotion process" and officially retired from the Agency. Id. However, according to the plaintiff, she "was told by her manager and Union rep that [the] position was still available," and she subsequently rescinded her retirement and returned to work. Id.
On March 4, 2002, the plaintiff and Ms. Wills met with the President of the Union to discuss the inquiries that the plaintiff had submitted. Id. ¶ 11. The Union President purportedly informed the plaintiff that "she ha[d] been told that the position . . . ha[d] been cancelled per J. In-grid Clemons." Id. Thereafter, the plaintiff again telephoned the personnel office to inquire into the status of the position. Id. The personnel office "denie[d] that the . . . [position] had been cancelled, saying instead that it [was] on hold and that the selection certificate [was] 'still good.'" Id. Then, on March 25, 2002, Dr. Horn, Assistant Secretary of the ACF, held an "All Hands Staff Meeting," id. ¶ 12, and according to the plaintiff, he announced that "there was 'no' promotion freeze on GS-13's and above," which was "totally contradictory" to what the plaintiff had been informed previously. Id. ¶ 12; Pl.'s Opp'n I, Ex. 16 (Affidavit of Lonnie Stewart) ¶ 2.
After the plaintiff's March 4, 2002 meeting with the Union representatives, Ms. Wills contacted personnel representatives with a list of the plaintiff's questions concerning the LDDS position and the legitimacy of the agency hiring freeze and she received a response from Ms. Clemons, the ACF Labor Relations Officer, on March 28. Am. Compl. ¶ 13, Def.'s Mem., Ex. 11 (Email from Clemons to Wills, March 28, 2002) ("Clemons Email"). The email stated that the LDDS position "had been cancelled on March 7, 2002 and that the cancellation was authorized by Leola Brooks, [the plaintiff's] supervisor." Def.'s Mem., Ex. 11 (Clemons Email) ¶ 8. However, according to the plaintiff, Ms. Brooks denied ever having cancelled the promotion. Am. Compl. ¶ 13. The Clemons email also informed Ms. Wills that the requested list of promotions and hires during the Presidential and Secretarial freeze "would be forwarded to [her] via inter-office mail." Def.'s Mem., Ex. 11 (Clemons Email) ¶ 4. However, when the plaintiff and Ms. Wills received the hiring and promotions list on April 11, 2002, "it did not list any promotions or hires in [the] ADD during the freeze." Am. Compl. ¶ 14; Pl.'s Opp'n I, Ex. 4 (Affidavit of Isadora Wills) at 1. Frustrated and "exasperated," the plaintiff "officially retired a second time, on April 3, 2002." Am. Compl. ¶ 14.
Upon her retirement, the plaintiff submitted two Freedom of Information Act ("FOIA") requests to the Agency concerning the cancellation of the LDDS position. See Def.'s Mem., Ex. 12 (FOIA Response May 14, 2002); id. (FOIA Response May 22, 2002). On May 14, 2002, the request yielded the names of three individuals who received promotions in the ADD that were not included in the original list provided to Ms. Wills. Def.'s Mem. Id., (FOIA Response May 14, 2002) at 2. The plaintiff describes the individuals who received promotions as "Caucasian females, younger in age than [her]." Am. Compl. ¶ 15. Specifically, the plaintiff learned that Faith McCormick had been selected to fill an Executive Assistant to the Commissioner position in the ADD. See Def.'s Mem., Ex. 12 (FOIA Response May 14, 2002) at 2. Additionally, the FOIA response from May 22, 2002, stated that "you were selected for the position on 9/13/01 . . . [and] personnel was not notified of a cancellation because a selection was made. The name and title of the authorizing official who requested holding the selected position was not located." Def.'s Mem., Ex. 12 (FOIA Response May 22, 2002) at 1.
B. The Executive Assistant Position
When Dr. Morrissey assumed her position as the ADD Commissioner in August of 2001, she immediately "wanted a[n] Executive Assistant as quickly as [she] could get one." Pl.'s Opp'n I, Ex. 24 (Hearing Testimony of Patricia Morrissey) ("Morrissey Testimony") at 45. Dr. Morrissey wanted a capable assistant with a "credible background" who was a "federal employee with knowledge of people with disabilities," id., and because she was previously acquainted with Faith McCormick, a GS-14 employee in the Department of Health and Human Services' Office of Intergovernmental Affairs, id. at 33, Ms. McCormick was detailed into the ADD as the Executive Assistant, id. at 45. Ms. McCormick was approximately 54 years old in 2001 when the detail was made. Def.'s Mem., Ex. 7 (Hearing Testimony of Faith McCormick) ("McCormick Testimony") at 163. When certain budgetary restrictions had lifted, Dr. Morrissey issued a vacancy announcement for the Executive Assistant position, GS-15 level. Def.'s Mem., Ex. 24 (Morrissey Testimony) at 33; id., Ex. 14 (Executive Assistant Vacancy Announcement) at 1. The vacancy announcement remained outstanding from December 28, 2001 through January 14, 2002, and Dr. Morrissey admits that she personally informed Ms. McCormick about the opening. Pl.'s Opp'n I, Ex. 24 (Morrissey Testimony) at 44. As the only applicant, Dr. Morrissey selected Ms. McCormick for the position, effective February 24, 2002. Id. at 45; Def.'s Stmt. ¶ 25. The plaintiff maintains that she was not aware of the availability of the Executive Assistant position and was therefore denied the opportunity to apply for the position. Pl.'s Opp'n I at 12.
On June 13, 2002, the plaintiff contacted her EEO Counselor to file a complaint of discrimination based on race and age. Def.'s Mem, Ex. 13 (Letter to EEO June 13, 2002) at 1. Unsatisfied with the investigation of her charge by the Agency, the plaintiff filed a formal complaint with the Equal Employment Opportunity Commission ("EEOC"). Am. Compl. ¶ 17. Before the EEOC, the Agency argued that the plaintiff's initial EEO filing was untimely, based on an email that the plaintiff labels as having been "doctored," presumably, she is contending, by the Agency "add[ing] promotions in [the] ADD that should have been in the original e-mail, but were not included." Id. ¶ 22. At that time, the plaintiff presented "the original e-mail . . . with a sworn statement from the Union Rep who received [it] (that did not contain the ADD promotions)." Id. Nonetheless, the administrative judge dismissed the case for having been untimely filed. Id. The plaintiff timely appealed the dismissal and prevailed on appeal, resulting in her case being returned to the administrative judge. Id. ¶ 23. After conducting a hearing, the Agency issued its final decision on April 17, 2006, concluding that there had been no discrimination. Evans v. Leavitt, Appeal No. 0120063847, 2008 WL 858955, at *1 (E.E.O.C. Mar. 21, 2008). On June 16, 2006, the plaintiff appealed the decision to the EEOC's Office of Federal Operations. Id. On March 21, 2008, the Office of Federal Operations affirmed the Agency's decision, finding that it had "provided legitimate, nondiscriminatory reasons for its actions." Id. at *3. The plaintiff then filed this action in this Court June 23, 2008.
In her Amended Complaint, the plaintiff charges that "the Agency discriminated against [her] based on her [r]ace in failing to promote her to the GS-14 position for which she had been selected." Am. Compl. ¶ 30. The plaintiff also claims that she "was not made aware" of the Executive Assistant to the Commissioner position, "or given a chance to compete for other GS-14 and GS-15 details and promotions that were made available to white women within the office, positions which the Bargaining Unit Rules indicate should happen." Id. ¶ 5. As a result of the Agency's actions, the plaintiff states that she has "suffered humiliation along with physical and emotion distress" and has gone from a "hard[working], trusting, productive, efficient, and conscientious employee to [a] paranoid, sleepless, [and] sad" individual who has suffered a "breakdown of [her] body with headaches, abdominal discomfort, depression, back pain, and numerous test[s] which included endoscopy procedure, [two] abdominal sonograms, upper and lower gastro intestinal evaluations, colonoscopy, and stomach CT scan, and anger and irritability with her own family." Id. ¶ 29. According to the plaintiff, the "[t]est results confirmed that [her] [health] problems stemmed from [her] stressed work environment and these symptoms continued past [her] retirement." Id.
On January 12, 2009, the defendant filed the motion currently before the Court, which seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Def.'s Mot. at 1. Specifically, the defendant contends that she is entitled to the relief being requested because the plaintiff has failed to timely exhaust her administrative remedies, and her complaint should therefore be dismissed, Def.'s Mem. at 11, and that summary judgment should be awarded because (1) the evidence demonstrates that the Agency's decision to cancel the LDDS vacancy "was not based on race or age, but rather on hiring controls," id. at 12; (2) the plaintiff was not treated differently from similarly situated ...