The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Charisse Williams, an African-American woman, brings suit against Wendy Spencer, in her official capacity as the Chief Executive Officer of the Corporation for National and Community Service ("CNCS"), a federal agency established in 1993. Plaintiff alleges hostile work environment and retaliation under Title VII of the Civil Rights Act. She also asserts a claim for "wrongful termination" in violation of Title VII and the CNCS Labor Management Agreement. Plaintiff alleges that she was retaliated against and subjected to a hostile work environment because of the "protective disclosures" she made to defendant's Human Capital Resource Department ("HR") and during several alternative dispute resolution ("ADR") sessions.
Defendant ("CNCS") filed a motion to dismiss or, in the alternative, for summary judgment. The Court will grant defendant's summary judgment motion as to all claims for the reasons stated below.
Plaintiff was hired on January 18, 2005, as a Program Officer for AmeriCorps, a sister agency of CNCS. Am. Compl. ¶ 8; Def.'s Mem. in Support of Def.'s Mot. Summ. J. ("Def.'s Mot.") at 3. During plaintiff's first year on the job, she received a "satisfactory" rating in her first-year performance evaluation. Def.'s Mot. at 4 & Attach. 1 ("Nembhard Decl.") ¶ 11. However, beginning in late 2005 plaintiff ran into difficulties with her supervisor, Lois Nembhard, Deputy Director of CNCS. Am. Compl. ¶ 10; Pl.'s Supp. Mem. Opp'n to Def.'s Mot. ("Pl.'s Opp'n") at 1. By January 2006, plaintiff claims that Nembhard had become "very hostile toward her and other staff." Am. Compl. ¶ 11. For example, plaintiff contends that Nembhard ignored and humiliated her during staff meetings and failed to respond to any of her correspondence. Id. ¶¶ 45-47. Because of these communication problems, plaintiff arranged a meeting with HR in which she discussed her supervisor's "hostile and harassing behavior." Id. ¶ 16.
HR referred plaintiff to the office's ADR team. Id. ¶ 17. Plaintiff shared her beliefs with the team that Nembhard, a Jamaican woman, showed preferential treatment to two co-workers who were Caucasian women. Id. ¶ 17 & ¶ 21 n.2. Plaintiff alleges she also told the ADR team: that she believed that Ms. Nembhard's behavior toward her appeared to be personal but she was unsure whether it was because of her race (African American) or her color (fair-skinned) or Nembhard simply did not like her.
Id. ¶ 21. The CNCS ADR Facilitator and Mediator, Jodi Ovca, stated that plaintiff never raised the subject of race or color discrimination in any of their conversations. Def.'s Mot., Attach. 3 (Aff. of Jodi Ovca), ¶¶ 13-14 ("Ovca Aff.").
Following multiple conversations with Ovca, plaintiff agreed to participate in a one-onone ADR session with Nembhard, which took place in March 2006. Am. Compl. ¶¶ 22-23. During that session, plaintiff discussed Nembhard's "lack of management or guidance and lack of communication" and described her management style as "cold, demeaning, disrespectful and abrasive." Id. ¶ 23. There was no settlement or agreement after the ADR session, and plaintiff asserts that it actually worsened their already strained relationship. Pl.'s Opp'n at 5.
After the ADR session, Nembhard stopping talking to her and started giving her a hard time about her use of sick leave. See Am. Compl. ¶ 55. In April 2006, Nembhard wrote plaintiff a memo laying out requirements for her use of sick leave that plaintiff claims did not apply to other Program Officers. Id. ¶¶ 72-73; Ex. F to Nembhard Decl. (Mem. of Counseling -- Use of Leave Concerns). Nembhard also allegedly charged plaintiff with eight hours of unapproved leave (AWOL) even though plaintiff says she requested the leave through the proper channels, used her time off to attend a doctor's appointment, and telecommuted the rest of the day. Am. Compl. ¶ 72. That same month,*fn2 plaintiff received an "unsatisfactory" mid-year performance evaluation, which she says was in retaliation for the "protective disclosures" she had made during ADR and not based on her job performance. Id. ¶¶ 29-30; Ex. D to Nembhard Decl. (Performance Evaluation). Plaintiff insists that she was a hardworking and successful employee and submits affidavits from her colleagues to support that claim. Pl.'s Opp'n at 5, see also Pl.'s Opp'n, Exs. 3-5.*fn3 Defendant, on the other hand, stands by its performance assessment, providing specific examples of missed deadlines, unscheduled leave, negative interactions with co-workers, and complaints from grantees.*fn4 Def.'s Mot. at 9 & Exs. A-D.
In August 2006, plaintiff was terminated from her job at CNCS. Am. Compl. ¶¶ 75-80. Her notice of termination states that she was terminated for: (1) failure to complete assigned tasks in a timely manner and meet customer expectations; (2) failure to participate in team projects and tasks; (3) failure to effectively communicate with co-workers and customers; and (4) failure to respond to management's requests. Ex. E to Nembhard Decl. (Notice of Probationary Removal).
On August 29, 2006, plaintiff contacted an Equal Employment Opportunity ("EEO") counselor. Am. Compl. ¶ 37. In February 2007, she filed a formal complaint against CNCS with the Equal Employment Opportunity Commission ("EEOC") that asserted discrimination claims based on "reprisal for participation in the discrimination complaint process" and "hostile work environment." Id. ¶ 38; Pl.'s Opp'n, Ex. 7 (Complaint of Discrimination). The EEOC issued a decision in February 2008 concluding that plaintiff "was not subjected to discrimination based on reprisal or subjected to a hostile work environment." Def.'s Mot., Attach. 8 (Final Agency Decision) at 12; Am. Compl. at ¶ 41.
Defendant moves to dismiss plaintiff's amended complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Alternatively, it moves for summary judgment pursuant to Fed. R. Civ. P. 56. Defendant's Rule 12(b)(1) motion for lack of subject matter jurisdiction is based on plaintiff's alleged failure to exhaust her administrative remedies. However, the D.C. Circuit has stated that Title VII's exhaustion requirements are not jurisdictional. See Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011) (citing Menominee Indian Tribe of Wis. v. United States, 614 F.3d 519, 527 (D.C. Cir. 2010); see also Ly v. U.S. Postal Serv., 775 F. Supp. 2d 9, 11 (D.D.C. 2011) ("[C]courts in this circuit tend to treat failure to exhaust as a failure to state a claim rather than as a jurisdictional deficiency.") (internal quotations omitted); Taylor v. Mabus, 685 F. Supp. 2d 94, 96 (D.D.C. 2010) (analyzing failure to exhaust under Rule 12(b)(6)); Hall v. Sebelius, 689 F. Supp. 2d 10, 21-22 (D.D.C. 2009) (same). Hence, the Court will not treat defendant's motion as brought under Rule 12(b)(1).
Defendant also moves to dismiss plaintiff's amended complaint pursuant to Rule 12(b)(6) for failure to state a claim. However, defendant has already filed an answer and engaged in discovery. Moreover, numerous exhibits are attached to the motion papers. When "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56" and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). Hence, the Court will treat defendant's motion as brought under Rule 56.
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 issue 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. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
Defendant has filed a motion to strike eight of plaintiff's exhibits.
On July 28, 2009, plaintiff timely filed her memorandum in support of
her opposition, which included five exhibits. Defendant moved for an
extension of time to reply, because the memorandum filed by plaintiff
was unreadable. The Court granted defendant's motion and ordered
plaintiff to file a "readable
brief in opposition." Minute Order on Aug. 3, 2009. On August 10,
2009, plaintiff filed a readable copy of her brief as well as thirteen
exhibits, eight of which defendant now moves to strike. Mot. to Strike
at 3. Defendant argues that these eight exhibits were not authorized
by the Court's August 3, 2009 Order, Mot. to Strike at 5,*fn5
but plaintiff states that her opposition brief "always
referred to all of [her] exhibits (Exhibits 1-13)," Pl.'s Opp'n Mot.
Strike at 4-5. She asserts ...