The opinion of the court was delivered by: Emmet G. Sullivan Unites States District Judge
Plaintiff Debra Augustus brings this action against Defendant United States Department of Commerce (the "DOC") alleging race and sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Pending before the Court is defendant's motion to dismiss, or in the alternative, for summary judgment. Upon consideration of the motion, the response and reply thereto, the applicable law, the entire record, the arguments of counsel made during the motions hearing held on March 24, 2010, and for the reasons stated below, the Court DENIES defendant's motion for summary judgment as to plaintiff's race and sex discrimination claims and GRANTS without prejudice defendant's motion for summary judgment as to plaintiff's retaliation claim.
Plaintiff is an African-American female employed as an Equipment Facilities Services Assistant in the Office of Facilities Management at the DOC. Compl. ¶¶ 5, 6. She has been employed in that position since approximately June 2004. Compl. ¶ 6. Her rank is roughly equivalent to a GS-8 rank, and plaintiff's annual salary is approximately $52,000. Compl. ¶ 6.
On or about December 18, 2007, defendant assigned plaintiff the duties of the Contracting Officer Technical Representative ("COTR") in the cafeteria at the Herbert C. Hoover Building in addition to her duties as an administrative assistant. Compl. ¶ 7. Her duties as a COTR include, among other things, performing twice daily inspections of the cafeteria, monitoring the employees for health code compliance, and inventory maintenance. Compl. ¶ 9. Plaintiff spends approximately 45-50% of her work time performing COTR duties. Compl. ¶ 10.
A. Plaintiff's Allegations of Race & Sex Discrimination (Agency Complaint No. 08-51-00148)
When plaintiff was assigned the COTR duties, she was informed by her first-line supervisor, Ms. Pat McNutt (white, female), that she would receive a pay increase. Compl. ¶ 11.*fn1
Plaintiff's second-line supervisor (white, male) and fourth-line supervisor (white, male), however, allegedly stalled efforts to increase plaintiff's salary. See Compl. ¶¶ 12-17.
Accordingly, on June 23, 2008, plaintiff filed a formal complaint of discrimination (Agency Complaint No. 08-51-00148) alleging that she was not properly compensated for her additional COTR duties because of her race and sex. See Def.'s Statement of Material Facts ("SMF") ¶ 2; Pl.'s Ex. 1, Declaration of Debra Augustus ("Augustus Decl.") ¶ 6; see also Def.'s Ex. C. The agency accepted these claims for investigation on July 9, 2008. See Pl.'s Ex. 3. The agency completed its investigation on September 23, 2008, and advised plaintiff that she had 30 days to either request a hearing before an Equal Employment Opportunity Commission ("EEOC") administrative judge or a Final Agency Decision based on the record. See Def.'s Ex. E. On September 29, 2008, Ms. Augustus elected to proceed with a hearing before an administrative judge. See Def.'s SMF ¶ 3; Def.'s Ex. F.
On December 10, 2008 - 170 days after plaintiff filed her agency complaint -- the Washington field office of the EEOC sent the parties an "Acknowledgment and Order." See Def.'s Ex. H. This order acknowledged receipt of plaintiff's request for a hearing, and provided an overview of the hearing process, including the parties' discovery obligations. See Def.'s Ex. H. Specifically, the order advised that "[a]bsent prior approval from the Administrative Judge, a party must initiate discovery within twenty (20) calendar days of receipt of this Order."
Def.'s Ex. H. Plaintiff's counsel received the Acknowledgment and Order on December 19, 2008, see Augustus Decl. ¶ 8, and served discovery requests on the DOC on January 7, 2009. On January 8, 2009, however, the DOC advised plaintiff that it would not respond to her discovery requests, explaining that the requests were due by January 5, 2009 and were therefore untimely. See Def.'s SMF ¶ 4; Augustus Decl. ¶ 10. Plaintiff's counsel immediately filed a motion to extend the deadline to initiate discovery nunc pro tunc and to compel discovery responses, stating her intent to file suit in federal court if the request was denied. See Def.'s SMF ¶ 4; Augustus Decl. ¶ 10.*fn2
On or about February 11, 2009, the administrative judge advised counsel that he would not grant plaintiff's motion and ruled that plaintiff would be precluded from conducting discovery. See Def.'s SMF ¶ 5; Augustus Decl. ¶ 11. Accordingly, on February 16, 2009, plaintiff's counsel advised the EEOC that plaintiff had decided to file a complaint in federal district court. See Pl.'s Ex. 6.
B. Plaintiff's Allegation of Retaliation (Agency Complaint No. 09-51-00510)
Plaintiff also alleges that after she filed her administrative complaint asserting race and sex discrimination claims (Agency Complaint No. 08-51-00148), her first-line supervisor, Ms. McNutt, began retaliating against her by, inter alia, scrutinizing her work performance, threatening to give plaintiff's COTR duties to other employees, prohibiting plaintiff from leaving her desk during certain hours, and withholding pertinent information from plaintiff. See Compl. ¶¶ 20-27. Accordingly, on June 15, 2009, plaintiff filed another formal complaint of discrimination (Agency Complaint No. 09-51-00510), alleging that Ms. McNutt subjected her to a hostile work environment in retaliation for filing her initial EEO complaint (Agency Complaint No. 08-51-00148). See Def.'s SMF ¶ 6; Augustus Decl. ¶ 15. This complaint was accepted for investigation on July 1, 2009. See Pl.'s Ex. 7. On September 1, 2009, plaintiff amended her complaint to include additional events in support of her claims for hostile work environment and retaliation. See Augustus Decl. ¶ 16. Plaintiff's amended complaint was accepted for investigation on September 8, 2009, and was completed on December 3, 2009. See Docket No. 14, Pl.'s Status ...