The opinion of the court was delivered by: Barbara J. Rothstein United States District Judge
MEMORANDUM OPINION DENYING DEFENDANT'S MOTION TO DISMISS;DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter is before the court on [Dkt. # 10] the motion to dismiss
and alternative motion for summary judgment filed by Defendant Food
Safety and Inspection Service ("FSIS") of the United States Department
of Agriculture. Plaintiff, an African American, alleges that her
employer, FSIS, discriminated against her on the basis of her race in
violation of Title VII of the Civil Rights Act of 1964 ("Title VII"),
see 42 U.S.C. § 2000e, et. seq. Plaintiff claims that the Secretary
discriminated against her on the basis of her race by failing to (1)
detail*fn1 her to a GS-9 level position*fn2
("failure to detail claim") (2) promote her to the
Administrative Officer position ("failure to promote claim"). See
generally Compl. Defendant Thomas Vilsack, Secretary of the Department
of Agriculture ("the Secretary"), moves to dismiss both of Plaintiff's
claims under Federal Rule of Civil Procedure 12(b)(6) or, in the
alternative, for summary judgment as to
Plaintiff's "failure to promote" claim. Upon review of the motion, the
opposition thereto, and the record in this case, the court concludes
that the Secretary's motion to dismiss must be denied as to the
Plaintiff's failure to detail claim, and the Secretary's motion for
summary judgment must be denied without prejudice as to the
Plaintiff's failure to promote claim.
Plaintiff was employed as a GS-7 Management Assistant at the Resource Management and Planning Staff Division of FSIS. Compl. ¶ 4. In 2005, a GS-11 Administrative Officer position became available in Plaintiff's office. Id. ¶7. From August to October 2005, FSIS detailed Plaintiff into the Administrative Officer position but compensated her at the GS-9 level, a pay grade less than GS-11. Id.
After her detail ended, Plaintiff returned to her position as a GS-7 Management Assistant and continued to perform some Administrative Officer duties while the Administrative Officer position remained vacant. Id. ¶ 7, 9. Given her additional duties, she requested that her supervisor, Robert Cooke, provide her with another GS-9 level detail position or other opportunities to advance her career. Id. ¶ 12. She claims that, although there were positions available for career advancement in two other branches in FSIS, her supervisor took no action to place her in the positions. Id. ¶ 13. Plaintiff alleges that she lost opportunities for career advancement, training and future compensation as a result of this inaction. Id ¶ 5, 12.
Throughout this period, Plaintiff also asked to be promoted to the vacant Administrative Officer position or at least be allowed to compete for it. Id. ¶ 6. According to Plaintiff, in September 2009, Gaye Gerard, a Caucasian woman compensated at the GS-12 level, assumed the Administrative Officer post in Plaintiff's office, a position that Plaintiff says was never advertised. Id. ¶¶ 6, 16.
In January 2010, Plaintiff filed a formal Equal Employment Opportunity ("EEO") complaint, and the Equal Employment Opportunity Commission ("EEOC" or "the Commission") issued a Final Agency Decision the following year denying her claims. Id. ¶ 20. Plaintiff now alleges disparate treatment on the basis of race in violation of Title VII. More specifically, Plaintiff claims that the Secretary discriminated against her on the basis of her race by failing to detail her to a GS-9 level position ("failure to detail claim") and failing to promote her to the Administrative Officer position ("failure to promote claim"). See generally Compl. The Secretary moves to dismiss the failure to detail claim, asserting that Plaintiff failed to exhaust administrative remedies, or, in the alternative, failed to allege an adverse employment action. The Secretary also moves to dismiss or, in the alternative, moves for summary judgment as to the failure to promote claim. With the motion ripe for consideration, the court turns to the applicable legal standards and the parties' arguments.
A. The Court Denies the Secretary's Motion to Dismiss the Failure to Detail
1. Legal Standard - Rule 12(b)(6) Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a motion to dismiss to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." In re Interbank Fund Corp. Sec. Litig., 668 F. Supp. 44, 47-48 (D.D.C. 2009) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also FED. R. CIV. P. 12(b)(6). Ambiguities must be resolved in favor of the plaintiff, giving her the benefit of every reasonable inference drawn from the well-pleaded facts and allegations in the complaint. See In re Interbank Fund Corp. Sec. Litig., 668 F. Supp. at 47-48.
To survive a Rule 12(b)(6) motion, the complaint must plead sufficient facts that, taken as true, provide "plausible grounds" that discovery will reveal evidence to support the allegations. Twombly,550 U.S. at 544. A claim has facial plausibility when Plaintiff pleads factual content that allows the court to draw the reasonable inference that Defendant is liable for the alleged misconduct. Ashroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570)). Moreover, "[a] pleading that offers 'labels and conclusions' or a formulaic recitation of the elements of a cause of action will not ...