United States District Court, District of Columbia
S. CHUTKAN United States District Judge
Jennifer Seed alleges that Defendants violated the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et
seq., and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., when she was
constructively demoted and discharged in 2013 and 2014.
Defendants have moved for partial dismissal based on
Plaintiff's failure to exhaust her administrative
remedies. (ECF No. 11). For the reasons set forth below,
Defendants' motion is GRANTED as to Counts I, II, and V
and DENIED as to Count IV.
Plaintiff's Reassignment and Retirement
her retirement in 2014, Plaintiff had been a federal employee
with the Environmental Protection Agency (“EPA”)
for twenty-three years. (Compl. ¶ 15). From 1998 to
2013, Plaintiff served in the Office of Pollution Prevention
and Toxics, Risk Assessment Division (“RAD”)
first as the Branch Chief for the Existing Chemical
Assessment Branch and then, beginning in 2009, as Deputy
Division Director. (Id. ¶¶ 15, 19, 30). In
her roles as Branch Chief and Deputy Division Director,
Plaintiff served as both a manager and a senior scientist, at
the General Scale GS-15 pay level. (Id. ¶¶
early September 2013, Tala Henry, who was scheduled to assume
the role of RAD Division Director beginning the following
month, informed Plaintiff that the EPA was reorganizing, and
that as a part of that reorganization she would no longer
continue in her role as Deputy Division Director.
(Id. ¶¶ 31-32). Plaintiff was instead
placed in the role of Senior Science Advisor. (Id.
¶ 32). Plaintiff characterizes the reorganization as a
“sham” and alleges that “all of the older
managers were removed” from management positions.
(Id. ¶ 39). At the time of this reassignment,
Plaintiff was approximately fifty-nine years old.
(Id. ¶ 70). She was replaced as Deputy Division
Director by Stanley Barone, who was a Branch Chief and
fifty-three years old at the time. (Id. ¶¶
18, 33, 70). Plaintiff asked Henry about filling a vacant
Branch Chief position instead of the Senior Science Advisor
role, and she alleges that Henry responded that the EPA was
“looking to give the newer, younger individuals an
opportunity to advance through management promotions,
particularly those that were in [EPA] leadership
programs.” (Id. ¶¶ 35, 70).
began her new position as Senior Science Advisor in November
2013. (Id. ¶ 38). Ordinarily, senior science
advisors at the GS-15 level provide scientific leadership,
develop national and international environmental science
policy, review high-level scientific documents prior to their
dissemination, provide expert guidance and advice to senior
management, and attend high-level briefings and decision
meetings. (Id. ¶¶ 45, 47). However, while
Plaintiff continued to be compensated at the GS-15 level, she
alleges that she was excluded from all high-level meetings,
was removed from any significant or grade-appropriate
assignments, and was never asked to review any existing
chemical risk assessment documents RAD had developed.
(Id. ¶ 45). Further, she alleges that all
assignments and tasks in which she had previously held a key
role were discontinued. (Id. ¶ 46). As a
result, Plaintiff describes this reassignment as a
“constructive demotion.” Plaintiff was also
removed from her office and “placed in an open cubicle
along a common route in the office, ” which caused her
to experience distress and humiliation. (See id.).
Plaintiff alleges that following her reassignment, her
colleagues and supervisors created an intolerable work
environment in which they refused to acknowledge her,
responded menacingly to questions, and generally caused her
to feel deeply depressed. (Id. ¶¶ 46,
48-50, 111). Ultimately, due to these changes in her work
experience, Plaintiff retired from employment at the EPA
under the Voluntary Separation Incentive Program.
(Id. ¶ 56). She characterizes this retirement
as a “constructive discharge.”
September 27, 2013, Plaintiff submitted an internal complaint
to the EPA's Office of Civil Rights (“OCR”).
(Id. ¶ 41). Plaintiff had an initial interview
with OCR a month later, and, in January 2014, OCR issued a
Notice of Right to File letter. (Id.). In February
2014, OCR accepted Plaintiff's “formal stage”
complaint, and its EEO investigation report was completed in
June 2014. (Id. ¶¶ 41, 43). That same
month, OCR informed Plaintiff of her continuing right to sue,
following which she filed an EEO complaint with the EEOC.
(Id. ¶ 43). Plaintiff also filed a simultaneous
appeal of her perceived constructive demotion and discharge
to the Merit Systems Protection Board (“MSPB”) on
October 12, 2015. (¶¶ 8, 75-76). In the appeal, she
alleged that the intolerable working conditions in her office
were the cause of her constructive discharge. (Id.
¶ 8). Following no decision by the EEOC or MSPB,
Plaintiff subsequently filed the present suit.
MOTION TO DISMISS STANDARD
motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim “tests the legal sufficiency of a
complaint.” Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). “To survive a motion to dismiss,
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 (2009). A claim is plausible when the factual
content allows the court to “draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. Thus, although a plaintiff may
survive a Rule 12(b)(6) motion even where “recovery is
very remote and unlikely, ” the facts alleged in the
complaint “must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation
marks omitted). Evaluating a 12(b)(6) motion is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
Constructive Demotion and Constructive Discharge (Counts
Count I, Plaintiff alleges that her reassignment from the
Deputy Director of RAD to a Senior Science Advisor position
was a constructive demotion. (Compl. ¶¶ 83-96). In
Count II, she alleges that her retirement under the Voluntary
Separation Incentive Program was a constructive discharge.
(Compl. ¶¶ 97-113). In order to exhaust her
administrative remedies prior to bringing this litigation,
Plaintiff appealed both of these actions to the Merit Systems
Protection Board pursuant to 5 U.S.C. § 7702. However,
Defendants argue that these claims must be dismissed because
Plaintiff's MSPB appeal was untimely. Under the
MSPB's regulations, appeals must be filed within thirty
days of the challenged employment action. 5 C.F.R. §
1201.22(b). The exact dates of Plaintiff's reassignment
and retirement are not clear from the Complaint, in which she
states that the reassignment was “effective November
2013” and does not provide a date for her retirement.
(Compl. ¶¶ 30, 38). Plaintiff's EEO complaint
noted that the date of the reassignment was September 27,
2013, though her MSPB appeal states that it was on October
20, 2013. (Def. Exs. 1, 2). Defendants assert in their motion
that the challenged reassignment took effect on November 17,
2013 and Plaintiff's retirement took effect on December
27, 2014. ...