ROSE LEGAL ADVOCATES OF COUNSEL Attorneys for Plaintiff DAVID L. ROSE, ESQ.
OFFICE OF THE UNITEDMARINA UTGOFF BRASWELL, AUSA STATES ATTORNEY Attorneys for Defendant
MEMORANDUM-DECISION AND ORDER
FrederifcK J. Scullin, Senior United States District Court Judge
Currently before the Court is Defendant's motion to dismiss some of Plaintiffs' claims and for summary judgment on the remainder of her claims. See Dkt. No. 18. Plaintiff opposes the motion. See Id . On December 11, 2012, the Court heard oral argument in support of, and in opposition to, Defendant's motion. At the close of argument, the Court reserved decision on Defendant's motion. The following is the Court's written resolution of Defendant's motion.
Plaintiff has worked for Defendant since 1979. She filed an internal EEO class complaint on July 1, 1993, which Defendant denied on June 11, 1996. Plaintiff, together with four other African-American employees, filed a Title VII putative class action lawsuit against Defendant in 1999, in which she alleged that Defendant's management was predominantly Caucasian and that Defendant discriminated against African-American employees with respect to promotions, training, opportunities, and awards. That lawsuit was settled in 2000.
In the present action, Plaintiff alleges that Thomas Mann, her second level supervisor, retaliated against her for her prior EEOC activity, i.e., the first law suit, when he did not select her for a promotion in connection with three Assignment Opportunity Notices ("AON") and when he did not support her.
Defendant contends that, with respect to two of the three non-selection decisions AON 070080 and AON 070624, Plaintiff failed to contact the EEO Office within forty-five days of not being selected for those positions. Defendant also states that the same is true of her claim that Mr. Mann did not support her. Therefore, Defendant argues that the Court should dismiss these claims for failure to exhaust her administrative remedies.
Alternatively, Defendant contends that, with respect to AON 070624 and Plaintiff's claim that Mr. Mann did not support her, the Court should dismiss these claims because Plaintiff has not shown an adverse action. Specifically, Defendant notes that Plaintiff never applied for AON 070624; and, therefore, her non-selection could not have been an adverse action against her.
Finally, Defendant contends that he is entitled to summary judgment with respect to all of Plaintiff's claims. Specifically, he asserts that two of the AONs to which Plaintiff applied were cancelled without the positions being filled, based on the decision to move the positions to where there was a greater need. As to the third AON, Plaintiff did not apply and, thus, could not be considered for selection. Finally, Defendant contends that Plaintiff's claim of retaliation fails because there is simply too much time between her prior EEO activity and the actions about which she complains.
A. Preliminary matters 1. Whether the mixed motive theory applies to claims of retaliation under Title VII
Plaintiff's counsel conceded that, in light of the Supreme Court's decision in Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343 (2009), and the district court's thorough analysis of that decision in Hayes v. Sebelius, 762 F.Supp.2d 90 (D.D.C. 2011), Plaintiff ...