United States District Court, D. Columbia.
ELVENIA A. LATSON, Plaintiff, Pro se, Jessup, GA.
For ERIC H. HOLDER, JR., Attorney General, Defendant: John Cuong Truong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
REGGIE B. WALTON, United States District Judge.
The plaintiff, Elvenia A. Latson, brings this civil action against Eric H. Holder, in his official capacity as the Attorney General of the United States Department of Justice, alleging that her employer, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (" BATF" ) (a component of the Department of Justice, see Complaint (" Compl." ) ¶ 4) discriminated against her on the bases of her race, sex, and color, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e-2000e-17 (" Title VII" ), see id. ¶ ¶ 1, 5-6, 28-37, her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § § 621-34 (" ADEA" ), see id. ¶ ¶ 1, 28, and an alleged disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § § 701-18b, see id. ¶ 1. The plaintiff further alleges that the defendant retaliated against her for prior Equal Employment Opportunity (" EEO" ) activity, also in violation of Title VII. Id. ¶ ¶ 1, 6, 27-28, 38-40. Currently before the Court is the defendant's Partial Motion to Dismiss (" Def.'s Mot." ) the plaintiff's age, disability, and retaliation claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Defendant's Memorandum of Points and Authorities in Support of Partial Motion to Dismiss (" Def.'s Mem." ) at 5-10. For the following reasons, the Court concludes that it must grant the defendant's motion with respect to the plaintiff's claims of discrimination based on age and an alleged disability, but deny the motion with respect to the plaintiff's retaliation claim.
The plaintiff, an African-American female, Compl. ¶ 1, has worked for the BATF since 1990 and is currently a GS-13 Industry Operations Investigator in the agency's Tallahassee Satellite Office of its Tampa Field Division, id. ¶ 10. Between 2009 and 2010, the plaintiff applied for two vacant BATF Supervisory Industry Operations Investigator positions, the first located in Jacksonville, Florida, and the second located in Harrisburg, Pennsylvania. Id. ¶ ¶ 11-13. The plaintiff alleges that her name was " improperly omitted from the certified list of applicants" for both vacancies, id. ¶ 17, and that she was not selected for either position, id. ¶ ¶ 12-13. According to the Complaint, the BATF selected two white males to fill both the Jacksonville and Harrisburg vacancies. See id. ¶ 26.
The plaintiff claims that she contacted an EEO counselor following her two non-selections, alleging " unlawful discrimination based on her race, sex, and unlawful retaliation for protected activities." Id. ¶ 6. Then, on December 30, 2009, the plaintiff filed an administrative EEO complaint alleging discrimination on the basis of her race and sex. Def.'s Mem., Exhibit (" Ex." ) A (Formal EEO Complaint (" EEO Compl." )). On January 14, 2010, the plaintiff emailed her EEO counselor requesting to amend her EEO Complaint to allege discrimination based also on her " color . . . and . . . dialect." Def.'s Mem., Ex. B (Latson January 12, 2010 email (" January 2010 email" )), at 1. On August 12, 2010, the plaintiff sent a second email to her EEO counselor to further amend her complaint and add claims for " constant harassment and retaliation." Def.'s Mem., Ex. C (Latson August 12, 2010 email (" August 2010 email" )), at 1.
Following an EEO investigation conducted by the defendant, the Equal Employment Opportunity Commission (" EEOC" ) " issued a Decision in favor of the Agency on October 22, 2013." Compl. ¶ 7. On December 4, 2013, the Agency issued a Final Agency Decision affirming and adopting the EEOC's determination. Id. ¶ 8. The plaintiff subsequently brought this action alleging discrimination based on her race, sex, color, age, and a disability, and for retaliation resulting from her prior EEO activity. Id. ¶ ¶ 1, 28-40.
II. STANDARDS OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(1)
Rule 12(b)(1) permits a party to move to dismiss for " lack of subject-matter jurisdiction." Fed.R.Civ.P. 12(b)(1). When a defendant moves to dismiss under Rule 12(b)(1), " the plaintiff bear[s] the burden of proving by a preponderance of the evidence that the Court has subject[-]matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F.Supp.2d 172, 176 (D.D.C. 2004); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A court considering a Rule 12(b)(1) motion must " assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139, 395 U.S.App.D.C. 316 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972, 364 U.S.App.D.C. 326 (D.C. Cir. 2005)). However, because the plaintiff has the burden of establishing the Court's jurisdiction, a " court must give [a] plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim." Byrum v. Winter, 783 F.Supp.2d 117, 122 (D.D.C. 2011) (citing Macharia v. United States, 334 F.3d 61, 64, 69, 357 U.S.App.D.C. 223 (D.C. Cir. 2003)).
" Although 'the District Court may in appropriate cases dispose of a motion to dismiss for lack of subject[-]matter jurisdiction under [Federal Rule of Civil Procedure] 12(b)(1) on the complaint standing alone,' 'where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198, 357 U.S.App.D.C. 72 (D.C. Cir. 2003) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197, 297 U.S.App.D.C. 406 (D.C. Cir. 1992)). Thus, " the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S.App.D.C. 270 (D.C. Cir. 2005).
B. Federal Rule of Civil Procedure 12(b)(6)
A Rule 12(b)(6) motion tests whether a complaint " state[s] a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). " To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly,550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible " when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). While the Court must " assume [the] veracity" of any " well-pleaded factual allegations" in a complaint, conclusory allegations " are not entitled to the assumption of truth." Id. at 679. " A pro se complaint," such as the plaintiff's, " 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Atherton v. D.C. Office of the Mayor,567 F.3d 672, 681-82, 386 U.S.App.D.C. 144 (D.C. Cir. 2009) (quoting Erickson v. Pardus,551 U.S. 89, 94, 127 S.Ct. 2197, ...