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Rodriguez v. Donovan

United States District Court, District of Columbia

February 12, 2013

Elizabeth RODRIGUEZ, Plaintiffs,
v.
Shaun DONOVAN, Secretary United States Department of Housing and Urban Development, Defendant.

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[Copyrighted Material Omitted]

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Elizabeth Rodriguez, River Oaks, TX, pro se.

Alexander Daniel Shoaibi, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiff Elizabeth Rodriguez, proceeding pro se, brings this action seeking damages for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ) and the Age Discrimination in Employment Act, 29 U.S.C. § 633a (" ADEA" ) based on plaintiff's ethic background and her age. Defendant Shaun Donovan, the Secretary of the United States Department of Housing and Urban Development (" HUD" ) moved to dismiss. Upon consideration of the motion, the entire record herein, and for the reasons stated below, the motion to dismiss will be GRANTED.

I. BACKGROUND

Plaintiff filed her complaint in this Court on March 20, 2012, attaching a copy of a December 21, 2011 Final Agency Decision regarding her EEO complaint against HUD. ECF No. 1. Plaintiff alleges that she is a 58-year-old Mexican-American woman. In the Complaint, plaintiff states that she does not agree with the Final Agency Decision. She alleges that she suffered discrimination in the form of verbal abuse, was subjected to retaliation, her work products were unfairly criticized, and her professional reputation was tarnished. These actions, plaintiff alleges, caused a mental and physical toll. The alleged discrimination and mistreatment appear to arise from plaintiff's disagreement as to whether her supervisor Makia Smith-Thomas was qualified to be her supervisor. The complaint fails to allege specific causes of action or to specify which parts of the Final Agency Decision plaintiff seeks to challenge and why. The complaint also fails to set forth the grounds for the court's jurisdiction. Because plaintiff is proceeding pro se, the Court has considered the allegations in the Final Agency Decision as incorporated within plaintiff's complaint.

On May 21, 2012, defendant moved to dismiss plaintiff's complaint for failure to state a claim under Rule 12(b)(6). ECF No. 3. In the motion, defendant appears to

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construe plaintiff's complaint broadly and also incorporates claims made by plaintiff in the Final Agency Decision. Nonetheless, defendant argues that plaintiff has failed to exhaust administrative remedies as to her retaliation claims. Defendant further argues that even if plaintiff had exhausted administrative remedies, plaintiff's opposition to her supervisor is not protected activity. Defendant also contends that plaintiff's disparate treatment claims fail because plaintiff was not the subject of an adverse employment decision and she was not similarly situated to the person she alleges was treated fairly. Finally, defendant argues that plaintiff cannot maintain a claim for hostile work environment as a result of one alleged incident.

On June 29, 2012, the Court issued a so-called Fox/Neal Order, advising plaintiff of her obligation to respond to defendant's motion to dismiss. ECF No. 4. The Court advised plaintiff that Local Civil Rule 7(b) required her to " file a memorandum of points and authorities in opposition to the motion." Id. at 1. Plaintiff was further advised that if " such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded." Id. The Court directed plaintiff to respond to the motion to dismiss by no later than July 23, 2012.

On July 23, 2012, plaintiff filed a brief response to defendant's motion to dismiss. ECF No. 5. Plaintiff essentially reiterates her claim that she was subjected to retaliation and mistreatment, including that her work product was criticized, and that she was required to report to Ms. Smith-Thomas even though Ms. Smith-Thomas allegedly did not treat plaintiff well. Plaintiff stated that she " does not trust HUD's Equal Opportunity Office" and chose to go directly to this Court with her claims instead. Plaintiff also stated that she was seeking legal counsel " who can adequately address this case."

On August 9, 2012, defendant filed a reply in further support of its motion to dismiss. ECF No. 8. Defendant argued that plaintiff had conceded all of defendant's arguments by failing to respond to them and that its motion to dismiss should be granted.

On January 11, 2013, the Court held a status conference to address plaintiff's efforts to obtain counsel. Plaintiff stated that she had been speaking with an attorney but was unsure whether she would proceed with that attorney. The Court advised plaintiff that if she intended to obtain counsel, counsel would be required to enter an appearance in this case by no later than January 25, 2013, or the Court would proceed to decide the motion to dismiss as it was currently briefed. On January 25, 2013, plaintiff contacted the Court via telephone and ...


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