*fn12,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,DIANE M. SCHMIDT, PLAINTIFF, v. UNITED STATES CAPITOL POLICE BOARD, DEFENDANT." />

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Diane M. Schmidt v. United States Capitol Police Board

November 28, 2011 *fn12

DIANE M. SCHMIDT, PLAINTIFF,
v.
UNITED STATES CAPITOL POLICE BOARD, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff, Diane M. Schmidt, filed her complaint on June 3, 2011, claiming that her employer, the United States Capitol Police Board ("USCPB"),*fn1 violated Sections 201, 202, and 207 of the Congressional Accountability Act ("CAA"), 2 U.S.C. §§ 1301-1438,*fn2 by engaging in a pattern of harassment, discrimination, intimidation, and retaliation against her on the basis of her sex and age, subjecting her to disparate treatment by denying her requests for leave under the Family and Medical Leave Act, and by taking adverse employment actions against her, including its failure to promote and complete her annual performance reviews. Plaintiff's Complaint ("Compl.") at 1. Currently before the Court is the defendant's Motion to Dismiss the Plaintiff's Complaint. See Agency Defendants' Motion to Dismiss ("Defs.' Mot.") at 1. Upon careful consideration of all of the relevant submissions made by the parties,*fn3 the Court will grant the USCPB's motion to dismiss with respect to all of the plaintiff's discrete claims brought under § 1311 and § 1312 that occurred prior to April 2010, as well as the plaintiff's § 1317 retaliation claim, for lack of subject-matter jurisdiction. The Court will also grant the defendant's motion to dismiss the plaintiff's § 1312 claim that she was continually denied family and medical leave and the option to work at home under the defendant's purported Telework policy,*fn4 because the plaintiff has not demonstrated that this Court has subject-matter jurisdiction over that claim. The Court will grant the defendant's motion to dismiss under Rule 12(b)(6) the plaintiff's timely § 1311 claim that she was denied a promotion to the Grade 13/Step 5 level in September 2010, because the plaintiff does not allege with sufficient specificity why the failure to promote her to a higher paygrade amounted to disparate treatment, or how that purportedly disparate treatment was based on gender or age. Finally, the Court will grant the defendant's motion to dismiss the plaintiff's additional "continuing violation" claims-that she was continually harassed in the workplace and that her co-workers' actions created a hostile work environment-because she similarly fails to present any facts supporting this claim.

I. BACKGROUND

The plaintiff is a fifty-year-old woman who has been employed by the USCPB since 1986. Compl. ¶¶ 9(a),f 22. Between January 27, 1986 and September 2005, she was a United States Capitol police officer, who ultimately reached the rank of sergeant. Id. In September 2005, the plaintiff decided to transfer from her position as a police officer to a civilian position, and began working as a Legal Administrative Analyst in the Office of the General Counsel at the USCPB. Id. ¶ 23. The plaintiff maintains that she agreed to transfer to the civilian position because the prior General Counsel promised her that "the position was a 'non-competitive career ladder promotion' position," and that "after the successful completion of the first year, [she] would be promoted from a Grade 12 to a Grade 13, Step 1[,] and every year thereafter, [she] would be promoted to the next step as a Grade 13 civilian employee on the 'non-competitive career ladder.'" Id. ¶ 24.

When she began working as a Legal Administrative Analyst in September 2005, the plaintiff earned $101,578 annually, which is the paygrade for a Grade 12/Step 1 employee. Id. ¶ 26. The next year, in September 2006, the plaintiff requested a promotion to the Grade 13/Step 1 level, which paid $117,315. Id. ¶ 27. According to the plaintiff, her supervisor, Gretchen E. DeMar, id. ¶ 25, ignored her request and refused to complete an annual performance review of her work. Id. ¶ 27. However, the plaintiff was advanced to the Grade 12/Step 2 paygrade, with an annual salary of $107,094. Id. ¶ 28. The following year, in September 2007, the plaintiff requested a promotion to the Grade 13/Step 2 level, which had an annual salary of $122,731, as she asserts she had been promised, but this request was also denied and no performance review of her work was conducted. Id. ¶ 29. Instead, the plaintiff was elevated to the Grade 12/Step 3 level, which resulted in her being paid $112,002 annually. Id. ¶ 30. Similarly, in September 2008, the plaintiff requested that she be promoted to the Grade 13/Step 3 level, which would have paid her $130,361 per year, but her request was again denied and no performance review of her work was conducted. Id. ¶ 31. Instead, the plaintiff was advanced to the Grade 12/Step 4 level and paid $119,190 annually. Id. ¶ 32. In September 2009, the plaintiff requested a promotion to the Grade 13/Step 4 level, which paid $139,399 per year, but her request was denied, no performance review was completed, id. ¶ 33, and she remained at the Grade 12/Step 4 level but her annual salary was increased to $124,887, id. ¶ 34. Finally, in September 2010, the plaintiff requested a promotion to the Grade 13/Step 5 level, which paid a salary of $142,772 per year, but her request was denied, no performance review was completed, id. ¶ 35, and she was instead advanced to the Grade 12/Step 5 level and paid $130,244 annually, id. ¶ 36.

Thus, according to the plaintiff, from September 2006, through September 2010, the plaintiff annually requested promotions she had allegedly been promised by the prior General Counsel when she transferred to the civilian position, and each year her request was denied. Id.

¶¶ 27-37. She further contends that no annual performance review of her work was ever conducted, id. ¶¶ 27-35, and that other employees in her office received the promotions and salary increases that she had been promised, id. ¶ 37.

During her tenure as a Legal Administrative Analyst, the plaintiff alleges that Ms. DeMar and other employees of the USCPB "mistreated, harassed, intimidated[,] and disrespected" her on a daily basis. Id. ¶ 45. Specifically, the plaintiff states that "[t]here were often times that [Ms.] DeMar[] refused to speak directly to [her] even though they were physically in the same office," id. ¶ 46, and that "[o]n an almost daily basis, [Ms.] DeMar[] and other employees harassed [her] with a continuous stream of text messages[,] although they were all physically in the same office," id. ¶ 47. The plaintiff also alleges that when she was on medical leave "[Ms.]

DeMar[] and other employees harassed [her] with e[-]mails, text messages[,] and telephone messages demanding that she contact them." Id. ¶ 48.

The plaintiff alleges various additional instances of discriminatory treatment in addition to the annual denials of her specific requests for promotions to the Grade 13 level. For example, the plaintiff asserts that during her tenure as a Legal Administrative Analyst, "[she] requested advancements of leave for personal and family medical issues pursuant to the Family and Medical Leave Act; however, most requests were denied although other[ employees] were granted such advancements of leave." Id. ¶ 39. Specifically, the plaintiff states that "[i]n 2009, [she] requested a 40-hour advancement of leave for personal and family medical issues . . . which was denied," id. ¶ 40, even though other employees' requests for longer periods of leave were granted, id. ¶¶ 40-41. The plaintiff further alleges that in 2010 she was denied the opportunity to work from home under the Capitol Police's Telework policy, while other employees were allowed to do so. Id. ¶¶ 43-44.

On October 14, 2010, the plaintiff filed a Request for Counseling with the Office of the Chief ("OOC"), as required by the CAA, id. ¶ 49, in which she alleged "harassment, unfair discipline, lack of promotion, disparate treatment[,] and denial of advanced paid leave for FMLA purposes because of sex, disability, and reprisal in violation of sections 201, 202[,] and 207 of the [CAA]," Defs.' Mem., Exhibit ("Ex.") 1 at 1. The plaintiff then completed the CAA-mandated mediation process on March 1, 2011, which was ultimately unsuccessful. Compl. ¶ 49. The plaintiff alleges that after the mediation in March 2011, "[the d]efendants threatened to demote and/or fire [her]; however, she was ultimately transferred to the Office of the Chief of USCP[B] on or about April 25, 2011," where she is currently employed. Id. ¶ 52.

The plaintiff's complaint alleges three violations of the CAA: (1) that she was unlawfully discriminated against under § 1311 due to her sex and age, (2) that she was denied the right to family and medical leave under § 1312, and (3) that her supervisor and the USCPB unlawfully retaliated against her for initiating the mediation proceedings under § 1317. Id. at 1. Specifically, the plaintiff claims that the USCPB's failure to promote her annually as promised, id. ¶¶ 55-56, failure to grant her requests for family and medical leave, and failure to grant her requests to work from home under the defendant's Telework policy while allowing other employees to do so, id. ¶¶ 57-60, constituted unlawful discrimination. Additionally, she alleges that the treatment she endured as a result of the actions of her supervisor and other employees, such as refusing to speak to her directly while in the office, sending her a flood of text messages while in the office, and constantly harassing her with e-mails and text messages while she was on leave is further evidence of discrimination. Id. ¶¶ 78-81. The plaintiff also claims that after bringing this behavior to the attention of the OCC and going through the required mediation process, her supervisor and other employees retaliated against her by demanding that she provide evidence of the medical condition that prevented her from working despite having already provided the defendant "doctor's notes," id. ¶ 83, constantly e-mailing her while she was on leave demanding that she return to work, and requiring her to provide medical documentation for every hour she was not at work even though she had already provided such documentation. Id.

¶¶ 82-87.

The defendant argues in its motion to dismiss that the plaintiff did not exhaust her administrative remedies, as is required in order for this Court to have subject-matter jurisdiction over her claims. Defs.' Mem. at 7. The defendant further maintains that the plaintiff has asserted claims for which relief cannot be granted, because some of the claims are based on ...


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