The opinion of the court was delivered by: Amy Berman Jackson United States District Judge
Plaintiff John Munro brings this action against Ray LaHood, Secretary of the United States Department of Transportation ("DOT"), under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., alleging gender and disability discrimination, retaliation, and hostile work environment by his employer, DOT. Defendant moves the Court to dismiss the complaint or, in the alternative, to grant summary judgment for defendant [Dkt. # 9]. Defendant contends that the actions plaintiff alleges as discriminatory do not constitute adverse employment actions within the meaning of Title VII, that any alleged discriminatory or retaliatory actions can be explained by legitimate, nondiscriminatory and nonretaliatory reasons, and that the circumstances presented by plaintiff do not rise to the level of severity necessary to make out a hostile work environment claim. For the reasons stated below, the Court will deny defendant's motion to dismiss as to plaintiff's discrimination and retaliation claims and will grant defendant's motion to dismiss as to plaintiff's hostile work environment claim.
Plaintiff is a male who suffers from post-concussion syndrome, depression, anxiety, and Attention Deficit Disorder. Compl. ¶ 1. He was employed by defendant from January 2002 to January 2011 as a GS-14 Program Analyst in the Office of Corporate Research, Technology, and Innovation Management in the DOT Federal Highway Administration ("FHWA"). Compl. ¶ 10. Plaintiff's responsibilities, described by the agency as "critical job elements" ("CJEs"), included providing leadership on intellectual property issues, managing the FHWA Small Business Innovation Research Program, and leading the Office of Research, Development, and Technology's performance management issues. Compl. ¶ 12; Def.'s Mem. of Law in Supp. of Mot. to Dismiss or, in the alternative, for Summ. J. ("Def.'s Mem.") at Ex. 6.
On June 2, 2009,*fn1 plaintiff filed a formal complaint against defendant with the Equal Employment Opportunity Commission ("EEOC") for alleged violations of Title VII and the Rehabilitation Act. Pl.'s Mem. of Law in Opp. to Def.'s Mot. to Dismiss or, in the alternative, for Summ. J. ("Pl.'s Mem.") at Ex. Z. In the EEO Complaint, plaintiff alleges that his supervisor, Jack Jernigan, discriminated against him on the basis of his sex and disability when Jernigan disciplined him for allegedly threatening a female co-worker but did not discipline the female co-worker or verify her allegations. Id.*fn2 Further, he alleges that defendant retaliated against him when he brought the incident to the attention of the EEOC office prior to filing his formal EEO Complaint. Compl. ¶ 17. Plaintiff claims that, before filing the EEO Complaint, he "had never been counseled or disciplined for performance-related matters." Compl. ¶ 18.
On November 5, 2009, Mr. Jernigan notified plaintiff that he had received a "Fails to Meet Requirements" performance rating on several of his CJEs and that he would be placed on a Performance Improvement Plan ("PIP") as a result. Def.'s Mem. at Ex. 6. The PIP memorandum stated that plaintiff's performance had "declined" since October 2008 and that "the deficiencies were noted at [plaintiff's] mid-year evaluation and in numerous meetings since." Id. According to the terms of the PIP, plaintiff had 90 days*fn3 from the date of the memorandum to improve his performance rating to at least "Meets or Exceeds Requirements," and if he was unable to do so, plaintiff would "be subject to removal . . . after a further opportunity period in which to demonstrate acceptable performance." Id.
Plaintiff's progress while on the PIP was monitored and documented by Mr. Jernigan, who provided plaintiff with written feedback on his progress after 30 and 60 days, on December 7, 2009 and January 14, 2010, respectively. See Def.'s Mem. at Ex. 3. In the 30-day evaluation, Mr. Jernigan told plaintiff: "[y]ou made efforts to advance some initiatives, but your work continues to lack in terms of volume produced, quality/completeness, level of supervision required, and demonstrated performance at the GS-14 level." Id. Mr. Jernigan reiterated these concerns in the 60-day evaluation, informing plaintiff that "[y]ou are moving in the right direction, but are not there yet." Id. Ultimately, plaintiff failed to attain a "Meets or Exceeds Requirements" rating, and he received a rating of record of "Fails to Meet Requirements." Def.'s Mem. at Ex. 1.
On February 26, 2010, plaintiff was notified of the "Fails to Meet Requirements" rating and informed that he would be given a Final Opportunity Period ("POP") of 90 days to bring his performance up to the "Meets or Exceeds Requirements" level. Def.'s Mem. at Ex. 1. Unlike the terms of the PIP, the terms of the POP stated that if plaintiff failed to obtain a "Meets or Exceeds Requirements" rating at the close of his POP, he would "be subject to some type of formal action which could include demotion, reassignment, or removal." Def.'s Mem. at Ex. 6. During a meeting on his PIP performance held the same day, plaintiff alleges that Mr. Jernigan "yelled at him." Compl. ¶ 23. Moreover, presumably at some point prior to being put on the POP, plaintiff also alleges that he was told he could no longer submit assignments because "his supervisor had already decided to placed [sic] him on a Performance Opportunity Period." Compl. ¶ 28.*fn4
Plaintiff filed this complaint on January 14, 2011 [Dkt. #1]. Counts I, III, and IV*fn5 allege gender discrimination, retaliation, and hostile work environment in violation of Title VII. Counts II and III allege disability discrimination and retaliation in violation of the Rehabilitation Act. Defendant has moved to dismiss, or in the alternative, for summary judgment under Fed. R. Civ. P. 12(b)(6) and 56(a) [Dkt. #9].
"To survive a [Rule 12(b)((6)] 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 . . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted); see Bell Atlantic Corp. v. Twombly, 555 U.S. 544, 555 (2007) (a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . .") (citations omitted). In considering a motion to dismiss for failure to state a claim, a court generally "must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94, (2007), and "grant plaintiff the benefit of all inferences that can be derived from the facts alleged," Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the court need not accept a plaintiff's legal conclusions or the inferences he draws if those inferences are unsupported by the alleged facts. Id. "Nor must the court accept legal conclusions cast as factual allegations." Id.; see Warren v. District of Columbia, 353 F.3d 36, 39--40 (D.C. Cir. 2004) (differentiating unacceptable conclusions of law from acceptable conclusions of fact).
In ruling on a Rule 12(b)(6) motion to dismiss, the court "may consider only the facts alleged in the complaint, [and] any documents either attached to or incorporated in the complaint," EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997), or those "documents upon which the plaintiff's complaint necessarily relies . . . produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss," Hinton v. Corrections Corp. of Amer., 624 F. Supp. 2d 45, 46 (D.D.C. 2009) (internal quotation marks and citations omitted); accord Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004). In addition, the court may consider "matters ...