The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Hilda L. Solis, Secretary of the United States Department of Labor ("DOL"), who is sued in her official capacity only, responds to the Complaint filed by Ekaterina A. Uzlyan with a partial motion to dismiss. See Def.'s Mot. To Dismiss [Dkt. # 8]. Ms. Uzlyan, formerly a Pension Law Specialist in DOL's Employee Benefits Security Administration, alleges discrimination based upon her mental and physical disabilities, national origin (Russian), gender (female), and/or reprisal for engaging in protected activity. She has moved for full discovery before consideration of DOL's motion. See Pl.'s Mot. For Discovery [Dkt. # 12]. However, finding that certain of Ms. Uzlyan's claims are barred by a prior settlement agreement and others were not perfected through the administrative process, none of which requires discovery, the Court will grant DOL's motion in part and deny it in part, and will deny Ms. Uzlyan's request for discovery.
Ms. Uzlyan, a native of Russia, earned two degrees from Johns Hopkins University before she joined DOL in May 1988. While her first position was that of Research Analyst, she has spent the bulk of her career serving as a Pension Law Specialist in the Employee Benefits Security Administration.
On June 27, 2005, Ms. Uzlyan filed an informal complaint of discrimination against the Employee Benefits Security Administration. She reached agreement to resolve her complaint and a grievance by way of settlement dated August 12, 2005. As relevant here, that settlement agreement had two provisions that DOL argues bar Ms. Uzlyan from proceeding in this Court on any employment-related matter that precedes August 12, 2005:
1. Rights of Complainant [Ms. Uzlyan] Upon Withdrawal
The Complainant hereby withdraws, with prejudice to the right to refile Informal [sic] complaint (IM05-11-173) dated June 27, 2005 and her Union grievance filed July 1, 2005; and all other complaints, grievances, appeals, lawsuits, and other causes of action that she has or may have against the U.S. Department of Labor, its officials, or employee[s], both present and former, both personally and in their official capacities, relating to the facts and circumstances which gave rise to this informal complaint. However, the Complainant retains the right to reinstate this complaint should [the Employee Benefits Security Administration] or the Department fail to fulfill the terms of the agreement in accordance with 29 CFR 1614.504.
2. Non-Initiation of Another Action
The Complainant agrees that she will not initiate any complaints, grievances, appeals, lawsuits, or causes of action against the Department or against any present or former official or employee of the Department, either personally or in his or her official capacity, relating to the facts and circumstances which gave rise to this informal complaint.
Def.'s Notice of Filing ("Def.'s Notice") [Dkt. # 7], Ex. 2 (Settlement Agreement). On February 6, 2006, Ms. Uzlyan filed an informal complaint of discrimination alleging that the Employee Benefits Security Administration breached the settlement agreement. The DOL Civil Rights Center dismissed the complaint on December 21, 2005, finding that no breach had occurred. Def.'s Notice, Ex. 14 (Dec. 21, 2005 Letter from Civil Rights Center). Ms. Uzlyan later filed an appeal with the Equal Employment Opportunity Commission ("EEOC") Office of Federal Operations. The Office of Federal Operations held that the Employee Benefits Security Administration had not violated the settlement agreement by removing Ms. Uzlyan from the Flexiplace*fn1 program once her performance fell below the "fully successful" standard. Def.'s Notice, Ex. 15 (May 23, 2007 Office of Federal Operations Decision). Notified that she had 90 days to file suit in federal court, id., Ms. Uzlyan did not further pursue the matter.
On December 5, 2005, Ms. Uzlyan filed a formal complaint of discrimination alleging disparate treatment based upon her gender, national origin, disability (perceived limp), and reprisal for participating in protected activity. This became Civil Rights Center Case No. 06-11-022. The Civil Rights Center accepted fourteen issues for investigation. Ms. Uzlyan filed an additional complaint of discrimination, on the same protected bases, on March 26, 2007, which became Civil Rights Center Case No. 07-11-058. After each complaint was investigated by the Civil Rights Center, Ms. Uzlyan asked for a hearing before an EEOC Administrative Judge. Before the hearing, however, by letter dated October 18, 2007, Ms. Uzlyan, through her attorney, waived all but ten of her outstanding claims for adjudication. See Def.'s Notice, Ex. 8 (Oct. 18, 2007 Letter). The Administrative Judge allowed a subsequent amendment on January 11, 2008, adding one additional claim. See Def.'s Notice, Ex. 9 (Jan. 11, 2008 Order). The Administrative Judge merged both cases and all eleven (11) claims for adjudication in a single hearing, which occurred over three days in August 2008. The specific issues adjudicated at the hearing were:
Whether, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 §§ U.S.C. 2000e-2000e-17 ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-633a ("ADEA"), and the Rehabilitation Act of 1973, as amended 29 U.S.C. §§ 706, et seq. ("Rehabilitation Act"), the U.S. Department of Labor discriminated against Ekaterina A. Uzlyan ("Complainant") based upon her sex (female), age (d.o.b. 4/9/64), disability (mental; brachial plexus palsy), national origin (Russian), in reprisal (prior EEO activity) and subjected Complainant to a hostile work environment[.]
Def.'s Notice, Ex. 10 (March 25, 2009 EEOC Decision) at 1. In determining whether Ms. Uzlyan was subject to a hostile work environment, the Administrative Judge considered several specific incidents, including, among others, the Employee Benefits Security Administration's denial of Ms. Uzlyan's attempts to receive "detail assignments," the removal of Ms. Uzlyan from the "Flexiplace" program, and the requirement that Ms. Uzlyan "document her work while on Flexiplace in 15-minute increments." Id. at 1-2. The Administrative Judge issued a Final Order on March 25, 2009, in which he determined that the Employee Benefits Security Administration had not discriminated against Ms. Uzlyan. Id. at 18.
In the meantime, on May 28, 2008, Ms. Uzlyan filed formal Complaint No. 08-11-090, alleging discrimination based upon gender (female), national origin (Russian), age, disability (brachial plexus palsy in her left hand and wrist and major depression) and retaliation based upon previous EEO activity. The Civil Rights Center accepted the following issues for investigation:
Whether the Employee Benefits Security Administration (EBSA) discriminated against Complainant based on her sex (Female), age (44 years of age), national origin (Russian), disability (brachial plexus palsy in her left hand and wrist, and major depression), and/or in reprisal for prior EEO activity by allegedly subjecting her to a "hostile work environment," which include[d]: giving her "unsatisfactory" performance evaluations, "[s]landering her to co-workers and management staff," and "[d]enying her reasonable accommodation request for Flexiplace and a transfer to another office," among other things. Def.'s Notice, Ex. 12 (EEO Investigation Report for Case No. DOL-08-11-090).
On April 20, 2009, Ms. Uzlyan filed her final formal complaint of discrimination by Employee Benefits Security Administration, alleging that the same protected classes prompted her discharge on October 17, 2008, and that her former supervisor and the agency EEO Manager both blocked her disability retirement application on January 2, 2009, and February 10, 2009, respectively. This became Civil Rights Center Case No. 09-11-056. The Civil Rights Center dismissed the termination claim because it had already been asserted in Civil Rights Center Case No. 08-11-090, and dismissed the disability retirement claim for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). See Def.'s Notice, Ex. 13 (May 13, 2009 Letter declining to investigate claims).
Ms. Uzlyan filed this lawsuit on June 3, 2009. DOL now moves to dismiss.
When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is both a requirement under Article III of the U.S. Constitution and a statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 ...