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Seed v. Pruitt

United States District Court, District of Columbia

March 30, 2017

SCOTT PRUITT, Administrator, U.S. Environmental Protection Agency, et al., Defendants.


          TANYA S. CHUTKAN United States District Judge

         Plaintiff 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.

         I. BACKGROUND

         A. Plaintiff's Reassignment and Retirement

         Before 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. ¶¶ 10, 19).

         In 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).

         Plaintiff 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.”

         B. Administrative Proceedings

         On 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.


         A 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.


         A. Constructive Demotion and Constructive Discharge (Counts I, II)

         In 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. ...

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