United States District Court, D. Columbia.
For LINDA PINTRO, Plaintiff: David A. Branch, LAW OFFICE OF DAVID BRANCH, Washington, DC.
For JULIUS GENACHOWSKI, Defendant: Wyneva Johnson, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR D.C., Washington, DC.
REGGIE B. WALTON, United States District Judge.
Plaintiff Linda Pintro brings this action against Tom Wheeler, in his official capacity as Chairman of the plaintiff's employer, the Federal Communications Commission (" FCC" ), alleging discrimination based on her race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (2012), and retaliation for filing an administrative complaint of discrimination, also in violation of Title VII, § 2000e-3. Complaint (" Compl." ) ¶ ¶ 26-39. The FCC has moved to dismiss the complaint and for the following reasons, the Court concludes that it must grant in part and deny in part the FCC's motion.
The plaintiff is an African-American, female attorney of Haitian descent who is employed in the FCC's International Bureau as a Senior Legal Advisor in the Strategic Analysis and Negotiations Division (" Division" ). Id. ¶ 6. From 2003 to 2009, the plaintiff was supervised by the Chief of the Division, Kathryn O'Brien, a Caucasian female. Id. ¶ ¶ 7-8. The plaintiff alleges that during this time period, O'Brien " provided preferential work assignments with management designations within [the Division] to ten  Caucasian attorneys, non-competitively, and deliberately excluded Plaintiff from these assignments and other opportunities for career advancement." Id. ¶ 9. Specifically, she asserts that O'Brien promoted (1) Alexander Royblat, a Caucasian male, to the position of Assistant Chief of the Division, effective August 24, 2003; (2) Pam Gerr, a Caucasian female, to the position of Special Counsel, effective August 24, 2003; (3) Julie Barrie, a Caucasian female, to the position of Deputy Chief of the Division, effective October 2003; (4) Jennifer Gilsenan, a Caucasian female, to the position of Deputy Chief of the Division, effective July 16, 2004; (5) Dante Ibarra, a Hispanic male, to the position of Supervisory Electronics Engineer, effective July 22, 2007; (6) Carrie Lee Early, a Caucasian female, to the position of Chief of the Division's Multilateral Negotiations & Industry Analysis Branch, effective February 3, 2008; (7) Chris Murphy, a Caucasian male, to the position of Branch Chief of the Division, effective November 2, 2003; and (8) Robert Tanner, a Caucasian male, to the position of Acting Deputy Division Chief in March 2008. Id. ¶ ¶ 10-17. The plaintiff asserts that she " was interested in and clearly better qualified" for the promotions given to Julie Barrie, Jennifer Gilsenan, and Robert Tanner, " but was overlooked for these opportunities in favor of less qualified Caucasian employees." Id. ¶ 18.
In April 2007, O'Brien " detailed Plaintiff to the FCC's Enforcement Bureau to review 'do-not-call complaints,'" which she contends " was essentially a clerical task that did not utilize [her] skills and experience as an attorney and negatively impacted her career growth." Id. ¶ 19. O'Brien subsequently denied the plaintiff's request to be removed from the detail even though " [i]n late 2007 or early 2008, Deputy Division Chief, Linda Dubroof, [a] Caucasian female, was granted a requested reassignment." Id. ¶ 20.
In October 2007, the plaintiff received her 2006 performance evaluation, in which O'Brien rated her " fully successful" in three of four elements and " fully successful" overall, a rating that the plaintiff alleges " failed to consider [her] accomplishments during the relevant time period, and instead was based on arbitrary and irrelevant criteria that O'Brien, when later pressed by Plaintiff, could not justify." Id. ¶ 21. She asserts that the evaluation " precluded [her] from receiving a 'time-off award' and negatively impacted her career advancement." Id.
On April 23, 2008, the plaintiff filed an informal complaint of discrimination based on race and national origin with an Equal Employment Opportunity (" EEO" ) counselor, id. ¶ 22; Def.'s Mem., Exhibit (" Ex." ) A (2008 EEO Complaints) at 2-4, followed by a formal complaint on June 3, 2008, Def.'s Mem., Ex. A (2008 EEO Complaints) at 7-8. The plaintiff alleges that
" [a]fter [she] filed her complaint of discrimination, O'Brien continued to retaliate against [her] by removing her job duties, relegating her to the least favorable job assignments, and giving her few if any awards," and that O'Brien " refused to provide [her] with performance evaluations." Compl. ¶ ¶ 23-24. When the plaintiff received a performance evaluation in March 2010, it " noted that the four critical elements of [her] performance plan were not applicable, and downgraded her rating in all elements from her previous rating." Id. ¶ 24.
The plaintiff subsequently commenced this litigation alleging discrimination based on her race and national origin, and retaliation for her complaint of discrimination. Id. ¶ ¶ 32-39. The FCC now moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the ...