The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Janet E. Allen brings this action against Janet Napolitano, in her official capacity as the Secretary of the U.S. Department of Homeland Security ("DHS"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff alleges that DHS management retaliated against her and created a hostile work environment in response to her filing discrimination and retaliation complaints with the Office of Equal Employment Opportunity ("EEO"). Presently before the Court is defendant's motion to dismiss, or alternatively, for summary judgment. Upon careful consideration of the motion, the parties' memoranda, the applicable law, and the entire record, and for the reasons set forth below, the Court will grant in part and deny in part the defendant's motion for summary judgment.
I. The February 2008 Settlement Agreement
The centerpiece of this case is a February 2008 Settlement Agreement that plaintiff entered into with DHS and ICE, a division of DHS, to resolve her discrimination and retaliation claims against ICE. Compl. ¶ 12. Plaintiff began working as a GS-510-15 Director of Financial Management at U.S. Immigration and Customs Enforcement ("ICE") on May 28, 2005. Id. ¶ 5. She oversaw the financial systems for ICE and five additional bureaus within DHS, approximately 400 employees, with a $60 million budget. Id. ¶ 5. Later, she alleged that the Chief Financial Officer and her immediate supervisor, Debra Bond, created a hostile work environment and discriminated against her on the basis of her gender, age, and disability. Id. ¶ 7. Plaintiff alleged, among other things, that Bond transferred her key responsibilities to other less qualified employees, limited or prevented her from accessing information critical to her job, and took away her supervisory responsibilities. Id. When plaintiff's position was upgraded to the Senior Executive Service ("SES") level, plaintiff alleged, Bond further discriminated against her when Bond did not consider plaintiff for the job and refused to grant her an interview for the position. Id. ¶ 8.
In March 2006, plaintiff filed an informal complaint of discrimination and requested alternative dispute resolution, which was later denied. Id. She alleged that Bond retaliated against her by detailing her to a duty station at DHS Headquarters. Id. ¶ 9. In May 2006, plaintiff filed a formal complaint alleging discrimination and retaliation. Id. ¶ 10. While her first EEO complaint was pending, plaintiff was reassigned from DHS Headquarters to ICE and began reporting to a GS-15 employee who had formerly reported to her when she was Director of Financial Management. Id. ¶ 11. She claimed that in her new position, the scope of her responsibilities was greatly reduced. Id. Plaintiff only oversaw two employees instead of 400; no longer managed an operation budget of $60 million; and reviewed the internal controls of a single entity although she previously was responsible for six entities. Id. Plaintiff also filed a second EEO complaint. Id. ¶ 12. In February 2008, she agreed to enter into a Settlement Agreement to resolve both of her EEO complaints. Id.
Under the Settlement Agreement, DHS and ICE agreed, among other terms, to promote plaintiff to a GS-510-15, Step 10, Supervisory Accountant position retroactively and to pay her the appropriate back pay, compensatory damages, and attorneys' fees and costs. See Ross Decl., Exh. A at 1-2. DHS also agreed to provide plaintiff with "outstanding ratings" for 2005, 2006, and 2007 based on a list of accomplishments that plaintiff would provide to DHS. Id.
II. The Alleged Breach of the February 2008 Settlement Agreement
On April 7, 2008, plaintiff timely notified the DHS Office of Civil Rights and Civil Liberties ("CRCL") of her belief that ICE had breached the settlement agreement by failing to provide her with "properly and duly executed performance ratings." Def.'s Stmt. of Undisputed Material Facts ("Def.'s Stmt.") ¶ 3. Plaintiff complained that ICE had failed to comply with DHS regulations and policies in providing her performance ratings:
On or about March 20, 2008, Kathy Hill [then Acting Director for Office Assurance and Compliance] provided 3 ratings of record and stated that these documents fulfilled the agency's settlement provision to provide outstanding ratings. [Plaintiff] expressed concern about the manner in which performance ratings were executed. Ms. Hill stated that the settlement agreement did not contain specifics about how the ratings would be accomplished. When [plaintiff] raised the issue of compliance with OPM requirements, Ms. Hill was non-responsive. . . . [Plaintiff] believe[s] that ICE has breached the negotiated settlement agreement by failing to provide [her] with properly and duly executed performance ratings within the specified time frame.
See Moore Decl., Exh. A. Plaintiff also alleged that Kathy Hill and Lee Jones signed off on her performance ratings even though neither supervised her during the relevant period in violation of DHS regulations and policies. Id. Plaintiff requested that "ICE . . . fulfill its commitment to provide outstanding ratings and that these ratings be executed in a manner that is consistent with regulatory and policy requirements." Id. at 3.
On August 13, 2008, CRCL responded to plaintiff's letter, rejecting her claims that ICE had breached the Settlement Agreement. Def.'s Stmt. ¶ 4. Noting that the terms of the Settlement Agreement were "unambiguous" and contained no language regarding which procedures must be followed, CRCL found that ICE complied when it provided plaintiff with outstanding ratings for 2005, 2006, and 2007 as required in the Settlement Agreement. See Moore Decl., Exh. B. Plaintiff did not appeal CRCL's ruling. Def.'s Stmt. ¶ 4.
III. The Current Civil Action
On August 28, 2008, plaintiff contacted an EEO counselor, alleging retaliation, Def.'s Stmt. ¶ 5, and she filed an administrative complaint with the EEO on December 18, 2008. See Rock Decl., Exh. C. Plaintiff filed her complaint in this Court on November 24, 2009, alleging that defendant retaliated against her and created a hostile work environment in violation of Title VII. Compl. ¶ 13. According to the plaintiff, defendant "fail[ed] to perform its obligations under the settlement agreement in good faith" by failing to execute her 2005, 2006, and 2007 performance reviews in compliance with the terms of the Settlement Agreement. Id. Additionally, plaintiff alleges that defendant retaliated against her by failing to place her in the position of Acting Director, Office of Compliance and Assurance, by excluding her from meetings that have direct bearing on her work, by failing to provide her guidance with respect to her Performance Work Plans, by frustrating her attempts to gain clarification regarding work assignments, by failing to recognize or reward her significant professional contributions, by filing a negative 2008 evaluation regarding her work performance, and by refusing to engage in alternative dispute resolution with regard to her most recent administrative EEO complaint. Id.
I. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)
"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed true, and plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, a court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court -- plaintiff here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). "'[P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharmaceuticals, Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that all that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief" a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56; see also Papasan, 478 U.S. at 286. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. This amounts to a "two-pronged approach" under which a court first identifies the factual allegations entitled to an assumption of truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.
II. Summary Judgment Pursuant to Fed. R. Civ. P. 56(c)
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. Moreover, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. ...