The opinion of the court was delivered by: Beryl A. Howell United States District Judge
This case involves troubling claims of employment discrimination and retaliation raised against the Defense Intelligence Agency ("DIA") by Plaintiff Lisa Chambers Stewart, a former civilian intelligence officer who worked in the DIA's Field Operating Base in Japan. The plaintiff brings this action against the Secretary of Defense, in his official capacity, and against two of her former superiors at the DIA in their individual capacities. The defendants have moved to dismiss in part, or, in the alternative, for partial summary judgment. The plaintiff opposes the defendants' motion and has also moved for discovery and for leave to amend her complaint. For the reasons explained below, the Court grants in part and denies in part the defendants' motion to dismiss in part or for partial summary judgment; grants in part and denies in part the plaintiff's motion for leave to amend her complaint; and grants the plaintiff's motion for discovery.
The plaintiff brought this case on September 14, 2009. Complaint, ECF No. 1. She is a Japanese linguist who worked as a Japanese liaison and intelligence officer with the DIA at its Field Operating Based in Japan ("FOB-J"). Compl. ¶¶ 12-13. The plaintiff alleges that she "was effective in her position . . . and she received favorable reviews and performances bonuses" prior to July 2007, when the leadership of FOB-J changed. Id. ¶¶ 16-18. In July 2007, the individual defendants, Col. Patrick Keough and William Desautels, became the commander and deputy commander of FOB-J, respectively. Id. ¶ 18. According to the plaintiff, Col. Keough, who is of Asian-American descent, and Mr. Desautels, who is of Japanese-American descent, "openly held racial/national origin/gender biased views . . . that individuals who were not male and of Japanese descent were less effective in performing jobs that required interaction with the Japanese." Id. ¶¶ 7-8, 18.
For example, the plaintiff alleges that in May 2007, Desautels told her that only fifty-five year-old Japanese-American men would be capable of performing her job. Id. ¶ 22. The plaintiff claims that she confronted Desautels about the inappropriateness of this comment. Id. In the fall of 2007, the plaintiff alleges that a slide presentation was given in the FOB-J office discussing a "Dream Team" of ideal officers for the FOB-J. Id. ¶ 23. She claims that, in the presentation, it was stated that the "Dream Team" would be made up exclusively of male "Nisei," a term indicating Japanese-American descent. Id. The plaintiff alleges that she complained that this presentation was racially and sexually offensive. Id. ¶ 24.
The plaintiff claims that the defendants subjected her to various discriminatory and retaliatory acts intended to force her out of her job at FOB-J. For example, the plaintiff alleges that on September 8, 2007, she was subjected to a baseless security investigation for attending a U.S. Army picnic with her fiancee (now her husband), Col. Andrew Stewart, an army officer stationed in Japan. Id. ¶¶ 29, 50.
The plaintiff also alleges that Desautels nominated her for deployment to Iraq as an interrogator out of discriminatory and retaliatory animosity. Id. ¶ 26. According to the plaintiff, she had no training or experience as an interrogator nor any knowledge of Arabic, and her proposed transfer to Iraq was contrary to a then-existing policy or practice of not sending Japanese linguists to Iraq due to their specialized skills. Id. ¶ 27. The plaintiff also claims that Desautels lied to her by concealing the fact that he was responsible for placing her on the Iraq deployment list. Id. ¶ 28. At a bilateral U.S.-Japanese function on November 1, 2007, the plaintiff claims that Keough falsely announced to her Japanese counterparts that she had accepted a new position and would be leaving Japan for Iraq; the plaintiff claims this announcement damaged her relations with her Japanese counterparts and her ability to continue working in Japan. Id. ¶ 32. The plaintiff claims she had not agreed to deploy to Iraq, was not aware at that time that she was slated for a deployment, and that she was considering remaining in Japan to seek employment in the private sector.*fn1 Id. ¶ 30.
Around November 19, 2007, following her refusal to accept her planned reassignment to Iraq, the plaintiff asserts that Keough told her she must resign or be immediately terminated. Declaration of Lisa C. Stewart dated March 11, 2010 (hereinafter, "Stewart Decl.") ¶ 17. According to the plaintiff, Keough "dictated some exact language to be used in my resignation letter," and she felt she had no choice but to resign. Id. The plaintiff announced at that time that she would resign effective February 2, 2008. See id. ¶¶ 12, 19.
In early December 2007, the plaintiff was the target of another security investigation that she contends resulted from a false story that Keough fabricated about her prior to her resignation. According to the plaintiff, on November 3, 2007, Keough falsely claimed that the plaintiff had attempted suicide by taking approximately 20 Ambien sleeping pills and recounted this to several of his subordinates. Compl. ¶ 33. These subordinates forced the plaintiff to go to the hospital against her will, and Keough and the subordinates submitted a DIA internal report suggesting she had attempted suicide. Id. On December 5, 2007, the plaintiff was instructed to board a plane, but she was not told the destination or purpose of her travel. Id. ¶ 34. She arrived in Washington, D.C., where she learned she was under investigation. Id. After arriving in Washington, a DIA psychologist interviewed the plaintiff and determined that she was not a suicide risk. Id. ¶ 35. A DIA Special Agent from the Security Investigations Office then interrogated the plaintiff, allegedly at the urging of Keough. Id. ¶ 37. At the outset of the interrogation, the plaintiff claims she informed the DIA agent that she had just learned that she was pregnant, but the interrogator persisted in using stressful techniques in questioning the plaintiff, including threatening to call members of her family to tell them lies or embarrassing information, including the allegation that the plaintiff had attempted suicide or was a suicide risk. Id. ¶¶ 37-39. The plaintiff also told the interrogator that she believed she was being harassed and retaliated against by her command and by him, and asked to go to the DIA Equal Employment Opportunity ("EEO") office to make a complaint. Id. ¶ 38.
On the day after the interrogation, December 6, 2007, the plaintiff suffered a miscarriage of her pregnancy, which she attributes to the stress from the interrogation. Id. ¶ 40. That same day, the plaintiff also complained to the DIA EEO office. Id. ¶ 41.
On December 9, 2007, the plaintiff flew back to Japan. Id. ¶¶ 42-43. On December 12, 2007, the plaintiff was summoned to a meeting with her command where she learned that a DIA operative had been spying on her during her return flight. Id. ¶¶ 42-43. This operative reported that he had seen alcohol bottles on her airline tray and had overheard a conversation between the plaintiff and the passenger seated next to her that he found inappropriate. Id. ¶ 43. According to the plaintiff, the secret monitoring and December 12 meeting were part of a further attempt to harass and retaliate against her. Id. ¶¶ 42-44.
Two days later, on December 14, 2007, the plaintiff was informed that her security clearance had been suspended, and she was ordered to return to Washington, D.C. for further security investigations. Id. ¶ 45. She was placed under house arrest and ordered to prepare a power of attorney since she would not be returning to Japan. Id.
Based upon her doctor's orders, the plaintiff refused to travel back to Washington at that time. Id. ¶ 46. She further reported the alleged discrimination, harassment, and retaliation to the DIA EEO office and to the Department of Defense Inspector General's Office in Japan. Id. ¶¶ 47-48. Despite presenting a doctor's note explaining her refusal to travel back to Washington, the plaintiff was accused of being absent without leave. Id. ¶ 49. She also was not permitted to take other leave time that she claims she had earned and was entitled to use. Id. The plaintiff apparently quit effectively immediately around December 21, 2007. See Mem. in Supp. of Defs.' Mot. to Dismiss in Part or for Summ. J. in Part ("Defs.' Mem.") at 12; Stewart Decl. ¶ 19.
In March 2008, the plaintiff married Col. Andrew Stewart and the couple planned to stay in Japan, where Col. Stewart remained stationed. Compl. ¶ 50. The plaintiff alleges that Keough and others then began targeting her husband in an effort to further retaliate against her for her EEO complaints. Id. The plaintiff alleges that these people spoke to Col. Stewart's superior and objected to Col. Stewart's remaining in his post, which resulted in a threatened investigation against him and his ultimate transfer from Japan to Rock Island, Illinois. Id. ¶¶ 50-51.
The plaintiff alleges that the defendants' conduct gives rise to several causes of action. She brings a claim for discriminatory conduct and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., against the Secretary of Defense in his official capacity. Id. ¶¶ 67-71. In addition, she brings causes of action under 42 U.S.C. §§ 1981, 1983, and 1985 against Defendants Desautels and Keough as individuals. Id. ¶¶ 72-90. She seeks various forms of relief including, back-pay, front-pay, damages for lost compensation and benefits, damages for emotional distress, reinstatement as a Japanese liaison and intelligence officer, punitive damages, and other declaratory and injunctive relief. Id. at 17-18.
The defendants have moved to dismiss in part, or, in the alternative, for partial summary judgment. The defendants argue that the individual defendants must be dismissed for various reasons, including that a Title VII suit against the government agency that employed the plaintiff provides the exclusive remedy for her claims of employment discrimination and retaliation. As for the plaintiff's claims against the Agency, the defendants seek to dismiss "any claim by Plaintiff under Title VII that the decision to deploy her to Iraq was discriminatory, that her resignation on November 19, 2007 is actionable under a constructive discharge theory, as well as any claim based on other alleged conduct that preceded the November 19, 2007 resignation." Defs.' Mem. at 7-8.
The plaintiff opposes the defendants' motion and has also moved for leave to amend her complaint. The purpose of the proposed amendment is "to clarify the nature of her claims related to constructive discharge and the timeline of events surrounding her deployment to Iraq." Pl.'s Mem. at 39. The plaintiff also seeks to drop her Section 1981 claim against the individual defendants and to add a claim against them under the Bivens doctrine. Id. Finally, the plaintiff requests an opportunity for discovery before being required to oppose the defendants' motion for partial summary judgment.
A.Defendants' Motion to Dismiss in Part or for Partial ...