United States District Court, District of Columbia
SHARON K. STEWART, Plaintiff,
FEDERAL COMMUNICATIONS COMMISSION, Defendant
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Plaintiff, proceeding pro se, is an employee of the Federal Communications Commission (“FCC”). Plaintiff filed suit against Defendant, the FCC, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging claims of hostile work environment, gender discrimination, and retaliation. Presently before the Court is Defendant’s  Motion to Dismiss in Part and for Summary Judgment in Part (“Defendant’s Motion”). Upon consideration of the pleadings,  the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART Defendant’s Motion. The Court grants Defendant’s motion to dismiss with respect to Count Two (gender discrimination), Count Four (retaliation) and Count Five (gender discrimination and retaliation). The Court denies Defendant’s motion to dismiss with respect to Count One (hostile work environment) and denies Defendant’s motion for summary judgment on Count Three (retaliation).
For the purposes of Defendant’s Motion to Dismiss, the Court accepts as true the well-pleaded allegations in Plaintiffs’ Complaint. The Court does “not accept as true, however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court recites the principal facts pertaining to the issues raised in the pending motions, reserving further presentation of the facts for the discussion of the individual issues below.
A. Factual Background
Plaintiff, proceeding pro se, is an employee within the FCC’s Office of Communications Business Opportunities (“OCBO”). Compl. at 1. Plaintiff has been an employee of the Federal Government for over thirty years. See Id. Presently, Plaintiff works for the FCC as a “Women’s Outreach Specialist, ” which is classified at the GS-12 grade level. Id. at 3. Plaintiff is suing the FCC, alleging claims of hostile work environment, gender discrimination, and retaliation. See Id. at 2-6.
With respect to Plaintiff’s hostile work environment claim, Plaintiff alleges that her immediate supervisor, Mr. Thomas Reed, failed to act on, and protect her from, her male co-worker’s “systematic viewing of pornography” in the cubicle adjacent to hers, despite her reporting of the behavior on multiple occasions. Id. at 2. According to the Complaint, the pornography watching became so “severe and persuasive” that her coworker invited other males to join him in his cubicle. Id. Plaintiff alleges that she would “hear groans - mmm, mmm, ahh - in response to the pornography viewings, ” and that she feared for her safety because “[o]ne of the male viewers would stand guard looking for [her]” Id. Plaintiff, citing deposition testimony that her supervisor admitted to having sex in his Federal office, states that she feels “unsafe, violated, petrified and dominated against these males in this sexually fueled and misogynistic Federal environment.” Id.
With respect to Plaintiff’s gender discrimination claim, Plaintiff alleges that her supervisor, Mr. Reed, assigned her administrative duties that were the “official full-time responsibilities of [the] male GS-9, Senior Staff Assistant” whom Plaintiff alleges was routinely viewing pornography in the cubicle next to hers. Id. at 3. Plaintiff further alleges that her supervisor admitted in a deposition that he does not delegate administrative responsibilities to male non-staff assistant employees within the OCBO. Id. Plaintiff also alleges that when she objected that the assigned duties fell within her position description, her supervisor called her “belligerent, angry, and hostile” and “threatened [her] job security by stating that should [she] not perform the administrative duties, then [she] could find another job where [she] could thrive and prosper.” Id. Finally, with respect to Plaintiff’s gender discrimination claim, Plaintiff alleges that she was “bombarded with offensive unwelcomed email conversations of [her supervisor’s] personal life” and that her supervisor accused her of improperly possessing the office’s master keys in her home. Id. at 3, 4.
With respect to Plaintiff’s retaliation claims, Plaintiff alleges that she was singled out by Mr. Reed in 2012 after she began pursuing an EEO action against him that same year. Id. at 4. Plaintiff further alleges that she was the “sole employee [in her] office that failed to receive any awards or merit increases” for Fiscal Year 2012. Id. at 4. In addition, Plaintiff alleges that after she filed an informal EEO complaint against Mr. Reed, Plaintiff’s second-level supervisor, Ms. Carolyn A. Fleming-Williams, called her into a “reprisal meeting” and “harassed” her with “fabrications” that Plaintiff had not been communicating with Ms. Fleming-Williams and that there were problems with Plaintiff’s work on the “Section 610 Report.” Id. at 5. According to the Complaint, Ms. Fleming-Williams questioned Plaintiff regarding the EEO claim and threatened Plaintiff to reconsider her career goals. Id.
In addition to the allegations described above, Plaintiff also contends that she has not been compensated at a rate commensurate with her work performance. Id. at 6. Plaintiff alleges that “[s]ince 2004, ” she had “been performing the delegated duties of the Section 610 Report, ” which had previously been performed by a now-retired male GS-14 attorney-two grade levels above Plaintiff. Id. According to the Complaint, Plaintiff requested that she be compensated at a rate at least commensurate for her work and with her colleagues, but that her supervisors disputed Plaintiff’s contentions that she was performing the higher level work. Id.
Plaintiff also contends that “[b]ecause [her] performing higher-level work and not receiving adequate pay was a component of the EEO complaint, Ms. Fleming-Williams immediately removed [her] substantive duties in connection with the Section 610 and ultimately the entire duties” regarding the Section 610 Reports. Id. According to the Complaint, the Section 610 Reports for 2011, 2012, 2013, and 2014 have not been completed by anyone else in the office. Id.
B. Plaintiff’s EEO Action
On October 15, 2012, Plaintiff, represented by counsel, filed the informal EEO complaint referenced above. Id. at 6. According to the Complaint, the EEO complaint was not resolved at the informal stage, and Plaintiff pursued a formal EEOC action. See Id. at 6-7. In spring 2014, the parties undertook discovery, and Plaintiff, by that time proceeding pro se, took the depositions of her supervisors, Mr. Reed and Ms. Fleming-Williams. After the close of discovery, the FCC filed a Motion for Summary Judgment, and the parties underwent settlement negotiations that were ultimately unsuccessful. See Id. at 7. Before the Administrative Law Judge issued an Order on the FCC’s Motion for Summary Judgment, Plaintiff filed a “Withdrawal of Request for Hearing, ” which Plaintiff later attempted to withdraw, stating that she had been “coerced to withdraw because of the threatening and intimidating meeting” that had transpired with her supervisors a few weeks prior to filing the “Withdrawal of Request for Hearing.” Id. at 8. On October 24, 2014, the Administrative Law Judge issued an Order of Dismissal, noting that Plaintiff had given notice that she “intended to file a complaint in Federal District Court involving the same issues/claims in the above captioned complaint.” Id. at 9. On October 28, 2014, the Administrative Law Judge denied Plaintiff’s request to withdraw her “Withdrawal of Request for Hearing.” Id. at 8.
C. The Instant Action
On January 14, 2015, Plaintiff, proceeding pro se, filed her Complaint in this Court, containing the allegations described above. Plaintiff’s Complaint identifies five claims upon which Plaintiff seeks relief: (1) “Hostile Work Environment” (Claim 1); (2) “Discrimination Based on Gender” (Claim 2); (3) “Reprisal for EEO Filing and Discrimination” (Claim 3); “Further Reprisal for EEO Filing” (Claim 4)”; and “Higher Level Work, Reprisal, Inference with work and Discrimination Based on Gender” (Claim 5).
Plaintiff’s Complaint does not specifically identify Title VII of the Civil Rights Act of 1946, 42 U.S.C. § 2000e et seq., as the statutory basis for her claims. However, both parties agree in their briefs that Plaintiff is in fact seeking relief under Title VII.
Defendant, the FCC, filed a Motion to Dismiss in Part and Summary Judgment in Part. Specifically, Defendant moves to dismiss Counts One, Two, Four, and Five of Plaintiff’s Complaint. Defendant further seeks an entry of summary judgment as to Count III. Plaintiff opposes Defendant’s motion with respect to all Counts. Defendant’s motion is now ripe for the Court’s review.
II. LEGAL STANDARD
A. Motion to Dismiss
“Federal courts are courts of limited jurisdiction” and can adjudicate only those cases entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Court begins with the presumption that it does not have subject matter jurisdiction over a case. Id. To survive a motion to dismiss pursuant to Rule 12(b)(1), a plaintiff bears the burden of establishing that the Court has subject matter jurisdiction over its claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether there is jurisdiction, 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 (D.C. Cir. 2003) (citations omitted).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, ” or “documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (citations omitted).
Although pro se litigants are generally “held to less stringent standards than formal pleadings drafted by lawyers, they must still provide more than conclusory allegations to survive a motion to dismiss.” Lewis v. Bayh, 577 F.Supp.2d 47, 56 (D.D.C.2008) (internal citations omitted).
B. Summary Judgment Standard
Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine, ” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record-including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence-in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact ...