The opinion of the court was delivered by: Richard W. Roberts United States District Judge
In this action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., plaintiff claims that while employed at the Department of Agriculture, she was harassed and discriminated against because of her gender and age and was retaliated against because of her equal employment opportunity ("EEO") activity. Defendant moves to dismiss under Rule 12(b)(1) and Rule (b)(6) of the Federal Rules of Civil Procedure or for summary judgment under Rule 56 [Dkt. No. 8]. Upon consideration of the parties' submissions and the entire record, defendant's motion will be granted.
Plaintiff had been employed with the Department since 1987 when, in 2005, she became a GS-7 Public Affairs Assistant in the Grain Inspection, Packers and Stockyards Administration under the supervision of William Crutchfield. Def.'s Statement of Material Facts as to Which There is No Genuine Dispute ("Def.'s Facts") ¶ 1; Pl.'s Response to Statement of Material Facts [Dkt. No. 11] ("Pl.'s Resp.") ¶ 1. "Beginning around 2005," defendant conducted a mandatory study "to 'determine the overall feasibility of successfully competing activities with the private sector under an [Office of Management and Budget] A-76 cost comparison.' " Plaintiff's position was identified as "one that could be considered a candidate for competitive sourcing," Def.'s Facts ¶ 2, and was one of 25 positions "listed as appropriate for removal[.]" Id. ¶ 3; Def.'s Reply [Dkt. No. 15] at 4, n.1 (correcting number of positions). In response to an agency reorganization in late 2005 unrelated to the A-76 study, Def.'s Facts ¶ 4, Crutchfield "asked all of his employees if they planned to retire or find other jobs." Def.'s Facts ¶ 7; see Pl.'s Resp. ¶ 3 ("During 2005-06, Mr. Crutchfield repeatedly asked me several times about when I am going to retire.").
In 2006, the Public Affairs office was "disbanded" as part of the reorganization and, in September 2006, plaintiff became the Administrative Assistant to Crutchfield. Def.'s Facts ¶¶ 4-5. Meanwhile, on March 22, 2006, plaintiff filed a grievance charging discrimination, retaliation for previous EEO activity, harassment and "deformation [sic] of character." Def.'s Mot. to Dismiss, Ex. 1.*fn1 Defendant investigated whether plaintiff was subjected to "discriminatory harassment" and reprisal when . . . 1. she received a memo identifying her as an A-76 study employee; 2. she was reassigned from the position of Public Affairs Assistant to an Administrative Assistant; 3. she was denied training; 4. she received repeated changes to her position description; 5. her duties decreased; and 6. her supervisor constantly asked her about retirement.
Def.'s Attachment [Dkt. 8-8] (Report of Investigation ("ROI")). On February 13, 2009, the Equal Employment Opportunity Commission ("EEOC") affirmed the agency's ruling against plaintiff and notified her of her right to sue. Compl. Attachment. Plaintiff filed this action on March 26, 2009.
Defendant seeks dismissal of any unexhausted claims under Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. See Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mem.") at 4, n.1 (citing rulings dismissing unexhausted claims under Rule 12(b)(1) and Rule 12(b)(6)). "Because the exhaustion requirement [under Title VII], though mandatory, is not jurisdictional," Douglas v. Donovan, 559 F.3d 549, 556 n.4 (D.C. Cir. 2009), defendant's motion to dismiss will be considered under Rule 12(b)(6).
"Title VII requires that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on the charge." Park v. Howard University, 71 F.3d 904, 907 (D.C. Cir. 1995). "A Title VII lawsuit following the EEOC charge is limited in scope to claims that are 'like or reasonably related to the allegations of the charge and growing out of such allegations.' " Id. (quoting Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994) (omitting other citations)). Plaintiff has not refuted that she did not exhaust certain claims and she has not provided any argument for equitable tolling.*fn2 See Hewitt v. Rice, 560 F. Supp. 2d 61, 64 (D.D.C. 2008) ("The limitations period for filing an administrative charge of discrimination is subject to equitable tolling in the unusual instance where justice requires that the plaintiff be spared the consequences of failing to meet the deadline imposed.") (citations omitted). Therefore, any unexhausted claims -- i.e., those beyond the issue of "[w]hether the agency subjected the Complainant to discriminatory harassment based on sex (female), age (54), and reprisal (prior EEO activity)," ROI at 1, -- are dismissed under Rule 12(b)(6). See Hairston v. Tapella, 664 F. Supp. 2d 106, 110 (D.D.C. 2009) (stating in a Title VII action that "motions to dismiss for failure to exhaust administrative remedies are . . . appropriately analyzed under Rule 12(b)(6)") (quoting Hopkins v. Whipple, 630 F. Supp. 2d 33, 40 (D.D.C. 2009)) (other citations omitted).
2. Motion for Summary Judgment
Defendant argues that plaintiff has not stated a harassment claim under Title VII. Given the reliance on matters beyond the pleadings, this claim is analyzed under the standards for summary judgment. On a motion for summary judgment, "[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment may be granted only where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). A material fact is one that is capable of affecting the outcome of the litigation. Anderson, 477 U.S. at 248. A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," id., as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 252. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the non-movant. Id. at 255.
The nonmoving party, however, must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must "come forward with 'specific facts showing that there is a genuine issue for trial.' " Id. at 587 (emphasis omitted). In the end, "the plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential ...