The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff, June Langley, filed the above-captioned lawsuit against her former employer, Defendant Janet Napolitano, Secretary of the Department of Homeland Security (the "Secretary").*fn1 Plaintiff, a former Management Analyst with the Department of Homeland Security (the "Department"), alleges that she was knowingly and intentionally subjected to disparate treatment and a hostile work environment based on race and color and unlawfully retaliated against based on protected activity in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Currently pending before the Court is the Secretary's partial Motion to Dismiss or in the Alternative for Summary Judgment, which focuses solely on Plaintiff's hostile work environment and reprisal claims.*fn2 The Secretary makes two principal arguments. First, the Secretary contends that Plaintiff's hostile work environment and reprisal claims should be dismissed under Fed. R. Civ. P. 12(b)(6), or in the alternative, that judgment as a matter of law should be awarded to the Secretary under Fed. R. Civ. P. 56, because Plaintiff failed to administratively exhaust her remedies with respect to these claims. Second, the Secretary argues in the alternative that Plaintiff's reprisal and hostile work environment claims fail on their merits because (a) the conduct alleged is neither severe or pervasive, as is required to support a hostile work environment claim, and (b) Plaintiff has not established the required causal elements necessary to make out a reprisal claim. In response, Plaintiff acknowledges that she did not administratively exhaust her remedies with respect to her reprisal claim and therefore voluntarily withdraws that claim. Plaintiff, however, opposes the Secretary's motion with respect to her hostile work environment claim. Accordingly, as Plaintiff has voluntarily withdrawn her claim of reprisal, thereby rendering the Secretary's motion moot as to that issue, the only claim remaining in dispute is Plaintiff's hostile work environment claim.
The Secretary has styled her now-pending motion as a partial Motion to Dismiss or in the Alternative for Summary Judgment. As an initial matter, to the extent she moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), the motion is more appropriately construed as a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) because the Secretary has already filed an Answer to Plaintiff's Complaint, see Ans., Docket No. , and her motion to dismiss under Fed. R. Civ. P. 12(b)(6) is therefore untimely. See Fed. R. Civ. P. 12(b) ("A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed."); see also Douglass v. District of Columbia, 605 F. Supp. 2d 156, 161 (D.D.C. 2009). Nonetheless, as the standards for review are the same under either Fed. R. Civ. P. 12(b) or 12(c), courts routinely treat motions to dismiss that are filed after a responsive pleading has been made as a motion for judgment on the pleadings. Douglass, 605 F. Supp. 2d at 161.
More importantly, however, the Court finds that the Secretary's motion should in fact be construed as a motion for summary judgment rather than a motion for judgment on the pleadings (or a motion to dismiss). In filing her motion, the Secretary attached various exhibits to her filing that both parties have relied upon in their briefing.*fn3 While some of the attached exhibits (specifically, Plaintiff's administrative complaint and amendment thereto) are referred to in the civil Complaint, others are not incorporated in or referenced by the Complaint and are therefore arguably outside the scope of the pleadings in this matter. Moreover, as the Secretary filed the motion as a motion for summary judgment in the alternative, both parties have submitted statements of material fact pursuant to LCvR 7(h) and Plaintiff has therefore had a reasonable opportunity to respond to the attached materials. The Court, in an abundance of caution, thus construes the Secretary's motion as a motion for summary judgment pursuant to Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion."); see also Marshall Co. Health Care Auth. v. Shalala, 998 F.2d 1221, 1226 n. 6 (D.C. Cir. 1993) (advising that it is "probably the better practice for a district court always to convert to summary judgment so as to avoid . . . question[s]" as to whether attached exhibits were properly considering in ruling upon a motion to dismiss under Rule 12(b)(6)). Upon thorough consideration of the parties' submissions, the attachments thereto, the applicable case law, statutory authority, and the entire record of the case as a whole, the Court shall DENY the Secretary's  partial Motion for Summary Judgment. Specifically, the Secretary's motion is DENIED AS MOOT with respect to Plaintiff's reprisal claim, as Plaintiff has voluntarily withdrawn that claim, and is DENIED with respect to Plaintiff's hostile work environment claim, as Plaintiff has exhausted her administrative remedies and the Secretary has not shown that the claim must fail on the merits, for the reasons that follow.
As indicated above, the Secretary, in setting forth the relevant background in her motion for summary judgment, has relied upon and cited to various exhibits drawn from the agency investigation into Plaintiff's Equal Employment Opportunity ("EEO") complaint. In so doing, the Secretary has in essence assumed the truth of Plaintiff's allegations - as set forth both in the administrative investigation below as well as in the civil Complaint - arguing that Plaintiff's hostile work environment claim fails even if Plaintiff's factual allegations are accepted as true. The Secretary has not submitted any contradictory evidence, but has instead referred only to Plaintiff's own unrebutted factual allegations. Accordingly, in summarizing the factual background relevant to the pending motion for summary judgment, the Court shall do the same.
Plaintiff, an African American female, has worked for the Federal government for approximately 34 years, most recently as a GS-12 Management Analyst with the Facilities Management Branch, Resource Management Division of the Immigration and Customs Enforcement within the Department from December 2004 through April 2006. Complaint, Docket No. , ¶¶ 3, 5; see also Def.'s MSJ, Docket No. , Ex. F (Plaintiff's EEO Affidavit) (hereinafter, "EEO Affidavit"), at p. 1.*fn4 While working as a Management Analyst with the Department, Plaintiff's immediate supervisor was Judith Duval, a Caucasian female. Compl., ¶ 5. In September of 2005, Plaintiff requested approval for advanced sick leave. Compl. ¶¶ 6-7; see also Def.'s MSJ, Ex. A (Plaintiff's EEO Complaint) (hereinafter, "EEO Complaint"), at p. 3. Although Duval, as Plaintiff's immediate supervisor, had always been responsible for approving Plaintiff's requests for leave, Duval refused to approve the request in this instance and instead forwarded the request to her own immediate supervisor, Gary Crevonis, a Caucasian male. See Def.'s Stmt. ¶ 8; see also EEO Compl. at p. 3; EEO Aff. at p. 2. Plaintiff did not agree with Duval's decision to forward her request for leave to Crevonis because he was new to the office and did not know Plaintiff. Compl. ¶ 6; EEO Aff. at p. 2. When Plaintiff asked Duval to explain to Crevonis the particular circumstances regarding Plaintiff's request for leave - specifically that Plaintiff had a negative sick leave balance because she had previously taken significant time off to care for her sick father and husband - Duval refused. Compl. ¶¶ 6, 7; EEO Compl. at p. 3; EEO Aff. at p. 2. Crevonis ultimately denied Plaintiff's request for advanced sick leave because Plaintiff was in the negative sick leave category and had a large annual leave balance; he advised Plaintiff that she was required to use annual leave or take leave without pay. Def.'s Stmt. ¶ 9.
Plaintiff thereafter approached Duval to express her concerns regarding the decision to forward her request for leave to Crevonis. Duval became upset and told Plaintiff that she had asked Crevonis to transfer Plaintiff because Duval did not want to work with her. Compl. ¶ 8; EEO Compl. at p. 4. Duval also yelled at Plaintiff, told her that she did not care if Plaintiff filed a grievance, and attempted to slam the door in Plaintiff's face. Compl. ¶ 8; EEO Compl. at p. 4. When Plaintiff attempted to apologize to Duval the next week, Duval told Plaintiff that her behavior was inexcusable and that she was going to "file the fullest measure of retaliatory action against [Plaintiff]." EEO Compl. at p. 5. Duval also made false claims about what occurred, falsely accusing Plaintiff of "putting her hand on her hip and pointing at Duval, and being loud and abusive." Compl. ¶ 9. Plaintiff attempted to address this incident with management, including Crevonis, but no one responded. Compl. ¶ 9; EEO Aff. at p. 3. Ultimately, as a result of this incident, on September 13, 2005, Duval proposed Plaintiff be suspended for five days. See Def.'s Stmt. ¶ 11; see also Compl. ¶ 10; EEO Compl. at p. 5.
Shortly thereafter, on September 15, 2005, Plaintiff became ill at work and had to seek immediate medical attention. Compl. ¶ 11. Plaintiff's doctor advised her that her blood pressure was at a dangerously high level and that she could not return to work given her medical condition. Id.; EEO Compl. at p. 7. Plaintiff provided her doctor's statement to Duval. Compl. ¶ 11; EEO Compl. at p. 7. Plaintiff did not return to work after September 15, 2005, and used 240 hours of annual leave before being placed on leave without pay. Compl. ¶ 11.
On April 14, 2006, after being on leave for approximately seven months, Crevonis issued a letter to Plaintiff that: (1) terminated her leave without pay status effective April 16, 2006; (2) suspended her from pay and duty status for five calendar days effective April 17, 2006 (based on the previous proposed five-day suspension); and (3) directed her to report to work on April 24, 2006, after the conclusion of the five-day suspension, indicating that if she failed to do so, she would be considered absent without leave ("AWOL") and additional action may be taken, including removal from Federal service. Compl. ¶ 12; Def.'s MSJ, Ex. B (Plaintiff's Amendment to her EEO Complaint) (hereinafter, "EEO Amendment"). Plaintiff was still under her doctor's care at that time and had not been released to return to work. Compl. ¶ 12; EEO Amend. Despite Plaintiff's repeated efforts to contact Crevonis by email, fax, and telephone to inform him that she had not yet been released by her doctor and to find out what type of medical documentation was needed, he refused to communicate with Plaintiff. Compl. ¶ 12; EEO Amend.; EEO Aff. at pp. 7-8. As a consequence, Plaintiff "was forced to resign." EEO Aff. at p. 7; see also Compl. ¶ 13. As Plaintiff explains, she "felt that the only thing that [she] could do was resign . . . because if [Crevonis] totally ignored [her] doctor and  put [her] on AWOL, then [she] assume[d] he would start action to fire [her]." EEO Aff. at p. 8.
According to Plaintiff, she was subjected to such treatment because she is African American. EEO Compl. at p. 6. In particular, Plaintiff asserts that other employees, and in particular, Caucasian employees, were absent from work for extended periods of time without having action taken against them by management. EEO Aff. at p. 9. In addition, Plaintiff contends that other employees did not have their doctor's advice ignored. Id. Plaintiff also asserts that during the relevant period of time, Duval provided preferential treatment to a Caucasian ...