The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Alfreda Hyson brings this action against the Architect of the Capitol, alleging that the Architect and its employees discriminated against her on the basis of her gender, retaliated against her for undertaking protected activities, and harassed her, creating a hostile work environment, in violation of the Congressional Accountability Act of 1995 ("CAA"), 2 U.S.C. § 1301 et seq.*fn1 Before the Court is the Architect's motion for summary judgment and dismissal for lack of subject-matter jurisdiction [#21].*fn2 Upon consideration of the motion, the opposition thereto, oral argument of counsel, and the record of this case, the Court concludes that the Architect's motion must be granted in part and denied in part.
A. The Congressional Accountability Act
The Congressional Accountability Act of 1995, 2 U.S.C. § 1301 et seq., extends the protections of a number of federal remedial statutes, including Title VII of the Civil Rights Act of 1964, to employees of the legislative branch.*fn3 In passing the CAA, Congress created the Office of Compliance, through which legislative employees must attempt to address their grievances before seeking judicial or administrative redress. See id. § 1381(a). First, employees must, within 180 days of the incident at issue, seek counseling with the Office of Compliance.
Id. § 1402(a). Next, they must seek mediation with the Office. Id. § 1403(a). Finally, they may elect to pursue an administrative remedy or file a complaint in U.S. district court, between 30 and 90 days after the end of mediation. Id. §§ 1404--05, 1408. The CAA vests the district courts with jurisdiction over CAA claims brought by covered employees, provided that the employee-plaintiff has completed counseling and mediation for the violation in question. Id. § 1408(a). All other judicial review is prohibited. Id. § 1410. This statutory framework has been in place throughout the events that constitute the subject matter of this litigation.
Hyson began her employment with the Architect as a custodial team leader in September of 2001. In that role, she was responsible for overseeing and performing custodial tasks in various legislative branch buildings. Def.'s Mem. Ex. B ("Hyson Dep.") at 18--19, 30. After some time, Hyson came to feel that she was being singled out by management for blame when other custodial employees did not complete tasks. Accordingly, she bid for and received a reassignment to the "Tiger Team," which would allow her to work alone. Hyson Dep.at 58.
Hyson felt, however, that management continued to mistreat her after her reassignment to the Tiger Team. At various times between 2002 and 2007, Hyson received memoranda of counseling (essentially, written warnings) from various managers, asserting that she had exhibited unprofessional behavior, failed to answer her radio, or failed to properly oversee or support her custodial team. See, e.g.,Def.'s Mem. Ex. C (Mem. of Counseling, Aug. 14, 2002), Ex. D (Mem. of Counseling, Oct. 9, 2003), Ex. E (Mem. of Counseling, Sept. 26, 2005), Ex. F (Mem. of Counseling, Nov. 14, 2005). Hyson disputes these allegations, asserting that they are unfair or deliberately deceptive. See, e.g., Hyson Dep. at 65, 223.
Hyson believed that the custodial managers had singled her out for mistreatment because of her gender and because she had filed Equal Employment Opportunity (EEO) complaints and testified in co-workers' EEO proceedings. Her belief was based in part on remarks made by supervisors Delano Reeves, who called Hyson "too delicate," Hyson Dep. at 116, and Rick Joyce, who said that employees were "either . . . with [him] or . . . "against [him]."Hyson Dep. at 130. According to Hyson, this mistreatment escalated over time to include difficult or impossible assignments and daily threats to her job by Joyce. Hyson Dep. at 122, 125--26. Hyson also describes having difficulty obtaining accommodations for a medical condition that required her to alter her work uniform. See Hyson Dep. at 133--98.
In January of 2007, Hyson applied for a promotion to Laborer Assistant Supervisor via the Avue online application service. The application service generated automated scores for each applicant based on a set of preselected criteria; Hyson received a score of 96 out of a possible 100. Def.'s Mem. Ex. Z (Candidate List) at 2. Five candidates with scores ranging from 100 to 92, including Hyson, were selected to interview for the position. None of those candidates were ultimately selected; instead, Rock Celin, who had occupied the vacant position in a temporary capacity for the previous four months, was selected. Def.'s Mem. Ex. AA (Reeves Decl.) ¶¶ 2--4. Celin, who had received an automated score of 88, was not interviewed before his selection. Hyson attributes Celin's selection - and her non-selection, despite a higher initial score - to his gender. She also asserts that Celin was a favorite of supervisors, and would perform favors for them. Hyson Dep. at 229--30.
In September of 2007, Hyson received a memorandum of counseling from Alfred Brice, in which he reprimanded her for failing to respond to repeated radio calls on the morning of September 7. Def.'s Mem. Ex. H (Mem. of Counseling, Sept. 7, 2007). Hyson asserts that her radio was broken, preventing her from responding, and that she was not authorized to obtain a replacement. Hyson Dep. at 206.
A few days later, Hyson attended a meeting with supervisors Alfred
Brice, Delano Reeves, and Rick Joyce, where they suggested that she
enroll in the Employee Assistance Program ("EAP"), which includes
"free, voluntary, short-term counseling and referral for various
issues affecting employee mental and emotional well-being."*fn4
They asserted that Hyson suffered from anger that impacted
her workplace behavior. Hyson disagreed, asserting that she did
not suffer from any anger problems that could impact her work, and
declined to enroll in the EAP. Hyson Dep. at 72--76. On the same day,
Hyson requested sick leave. This request was initially denied by
Alfred Brice, but subsequently granted by Dennis Campbell. Hyson Dep.
at 233; Def.'s Mem. Ex. DD (Supplemental Mem.) at 2.
In October of 2007, Hyson made a formal request for counseling with the Office of Compliance. Def.'s Mem. Ex. BB (Certification, Case No. 08-AC-10) at 2. She submitted a typed memorandum to accompany her request, in which she asserted that she had been passed over for the Laborer Assistant Supervisor position because of her gender, that management had retaliated against her for her involvement in prior Office of Compliance and EEO activity, that management had created a hostile work environment for her by repeatedly threatening her job without cause, and that she had been temporarily denied leave without justification. Def.'s Mem. Ex. DD (Supplemental Mem.) at 1--2. After completing the Office of Compliance's counseling and mediation programs, Hyson commenced this action.
A. Lack of Subject-Matter Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or a claim therein, for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) ("Federal courts are courts of limited jurisdiction. . . . It is to be presumed that a cause lies outside this limited jurisdiction . . . ."). In response to such a motion, the plaintiff must show that her claims lie within "the judicial Power of the United States," U.S. CONST. art. III, § 1, and that a federal statute grants the Court jurisdiction to hear those claims. Micei Int'l v. Dep't of Commerce, 613 F.3d 1147, 1151 (D.C. Cir. 2010) (citing Mayor v. Cooper, 73 U.S. 247, 252 (1868)); see also Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). If the plaintiff cannot establish both elements, the Court must dismiss the action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle, 7 U.S. 506, 514 (1868)). The Court will, however, "assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
A motion for summary judgment should be granted only "if the movant shows 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). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must support its factual positions by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its burden, the non-moving party must then establish that a genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To meet its burden, the non-moving party must show that "the evidence is such that a reasonable jury could return a verdict" in its favor. Anderson, 477 U.S. at 248. Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine dispute for trial. See FED. R. CIV. P. 56(c)(1), (e); Celotex, 477 U.S. at 322 n.3. If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249--50.
Hyson alleges that the Architect engaged in three distinct unlawful employment practices: disparate treatment on the basis of gender; retaliation for engaging in protected activity; and the creation of a hostile work environment, both in retaliation for engaging in protected activity and on the basis of gender.*fn5 The Court will address each claim in turn; however, it must first clarify the scope of the factual allegations it may consider while doing so. As explained below, there is substantial doctrinal confusion regarding the scope of the allegations that an employment discrimination plaintiff may raise for the first time in court. Here, however, the Court will not attempt to resolve that confusion, because it concludes that the majority of Hyson's allegations are unexhausted regardless of which standard is applied.
A. Administrative Exhaustion of Claims Before the Office of Compliance
As described above, the CAA requires that employees follow the counseling and mediation procedures prescribed therein before bringing a CAA claim in federal court. 2 U.S.C. §§ 1401, 1404, 1408. These exhaustion requirements are jurisdictional in nature. Id. §§ 1408, 1410; Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 705--06 (D.C. Cir. 2009) (holding that the CAA's counseling and mediation requirements deprive the courts of subject-matter jurisdiction ...