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Cureton v. Duke

United States District Court, District of Columbia

September 29, 2017

ELAINE DUKE[1] et al., Defendants.



         Plaintiff, appearing pro se, sues the Elaine Duke ("Duke"), the Acting Secretary of Homeland Security; the U.S. Department of Homeland Security ("DHS"); and several other officials, claiming that she was retaliated against for participating in EEO activity. See Am. Compl. at 3 [Dkt. # 17].[2] Pending in this case is defendants' Motion to Dismiss (under Rule 12(b)(6) of the Federal Rules of Civil Procedure), or for Summary Judgment (under Rule 56). Defendants contend that the claims in plaintiffs original complaint are untimely and the claims in the amended complaint are unexhausted. In addition, defendants assert that all but the Secretary of DHS should be dismissed as defendants. Plaintiff has filed an opposition in which she moves for a default judgment. Because the record shows that defendants have not defaulted, see Fed. R. Civ. P. 55(a), plaintiffs motion is denied and, for the reasons explained below, defendants' motion is GRANTED.


         Plaintiffs claims are interspersed among her original complaint, amended complaint, and supplemental opposition [Dkt. # 23].[3] In the original complaint, plaintiff lists her basis of jurisdiction as the Age Discrimination in Employment Act ("ADEA"). Compl. at 4. But the gravamen of this action is plaintiffs belief that "she has been subjected to intentional discrimination and treated unfairly by DHS since filing an ADEA . . . claim [on] September 16, 2013." Supp. Opp'n at 1. The most recent acts of reprisal are alleged to have occurred in February 2016, when plaintiff was rejected for a vacant position in the Office of Chief Financial Officer ("OCFO"), and in May 2016, when plaintiff was rejected for a position at U.S. Immigration and Customs Enforcement ("ICE"). Am. Compl. at 4.

         A. Plaintiffs Employment History and 2013 EEO Activity

         In October 2012, DHS hired plaintiff at age 41 as a Grade 9 Student Trainee under its Pathways Program. The appointment was not to exceed one year, and it did not "offer any promotion potential." Defs.' Stmt, of Facts ¶ 14 [Dkt. #19-1]. As discussed below, plaintiffs appointment ended in January 2014.

         The following history is taken from the undisputed facts set out by the Administrative Judge in the EEOC's February 1, 2016 Decision. See Defs.' Ex. A [Dkt.# 19-2]. Plaintiff was assigned to the OCFO, where she was supervised by Rhonda Brooks ("Brooks"), Director of Administration and Logistics. In June 2013, plaintiff sent an email to the manager of the Pathways Program, Jemilda Williams, requesting a change in her job classification and grade. In September 2013, plaintiff contacted an EEO counselor, complaining that the Pathways Program "is not adhered to and discriminates against her"; that the pay grades for Pathways interns failed to consider participants over 40; that younger Pathways interns "and a few permanent employees hired for the A&L division under Rhonda Brooks' supervision earn[ed] equivalent to or more than [plaintiff]"; and that "she was given a job series of Program Specialist when her job function is Program/Project Manager of OCFO Records Management Program." Dec. at 7-8. In September 2013, Williams sent an email to all Pathways interns, requesting that they complete the Pathways Intern Program Participant Agreement; plaintiffs agreement extended her internship to October 21, 2014. In response, plaintiff notified Williams and Brooks that "she did not 'plan to continue with her Pathways Appointment after January 17, 2014 or when the DHS Acquisition Institute processes [her] APM Level I Certification application.'" Dec. at 8.

         Plaintiff filed her formal EEO complaint on September 30, 2013. In a meeting with Brooks on October 18, 2013, plaintiff confirmed her intention to vacate her position on January 10, 2014, because she was planning to relocate to California. On October 29, 2013, Brooks assigned plaintiff as an administrative assistant to Morgan Geiger, Director of Program Analysis and Evaluation. Twelve days later, on November 13, 2013, plaintiff amended her EEO complaint, alleging that "she was discriminated against because of harassment while working under Geiger's supervision, " and Brooks removed plaintiff from Geiger's supervision. Dec. at 9.

         On November 20, 2013, plaintiff informed Brooks that she intended to complete the Pathways internship through the extended deadline of October 21, 2014, but "at a different DHS component or agency." Id. Plaintiff further informed Brooks that "[u]ntil that appointment is secured, " she "intend[ed] to file for unemployment insurance." Id. The next day, on November 21, 2013, plaintiff amended her EEO complaint, alleging a ''hostile work environment relating to events that occurred between November 13, 2013, and November 20, 2013." Id. On December 18, 2013, Brooks informed plaintiff that "her appointment would expire on January 11, 2014 and that no extension would be approved beyond that date"; a corresponding Personnel Action showed plaintiffs appointment ending on that date as well. Id. On January 13, 2014, plaintiff amended her EEO complaint, alleging wrongful termination; she amended the complaint three more times, on April 22, 2014, May 7, 2014, and June 17, 2014. See Dec. at 9-10.

         The Administrative Judge identified three claims in Cureton's complaint, all of which were resolved in DHS's favor. Claim one alleged age discrimination based on management's refusal in August 2013 to "adjust [plaintiffs] position to the appropriate job series, title, and pay grade in order to reflect her qualifications and job assignment, " and pay disparities favoring younger workers with less education and experience. Def.'s Stmt, of Material Facts ¶ 2 (quoting Feb. 1, 2016 Dec). Claim two alleged a retaliatory hostile work environment based on three separate occurrences in November 2013. Claim three alleged reprisal based on the employment termination in January 2014, two separate occurrences in April and June of 2014, and an undated instance where "the Office of the Chief Human Capital Officer failed to complete and forward the findings of a desk audit [plaintiff] requested in November 2013." Id.

         On March 3, 2016, DHS issued a Final Order that included a Notice of Appeal Rights. Plaintiff was informed of several options. She could appeal to EEOC within 30 days from her receipt of the final decision or file a civil action within 90 days if she did not appeal to EEOC. If plaintiff appealed to EEOC, she could file a civil action within 90 days after receipt of EEOC s final decision on appeal or "after 180 days from the date of filing an appeal with EEOC if there has been no final decision by EEOC." Final Order at 7 [Dkt. # 19-3]. The Notice further informed plaintiff that if her claim was "based on age discrimination, the time limits . . . may not be applicable[.]" Id.

         Plaintiff acknowledged receiving an email to which the Final Order was attached on March 15, 2016, but she did not appeal the decision to the EEOC. Rather, plaintiff lodged this civil action on June 15, 2016, two days beyond the 90th day of her receipt of the right-to-sue notice. Def.'s Stmt, of Material Facts ¶¶ 8-12.

         B. Plaintiffs 2016 EEO Activity

         Meanwhile, in March 2016, plaintiff filed an EEO complaint, charging that DHS Headquarters failed to hire her in February 2016 for an advertised Management and Program Analyst position because of her prior EEO activity. See Apr. 12, 2016 Acceptance Letter, Def.'s Ex. K [Dkt. #19-12]. In the acceptance letter, DHS described the alleged discriminatory incident as follows: "On or around February 9, 2016, you were rated ineligible and not referred for consideration for [the position] advertised under Vacancy Announcement Number DHSHQ16-1597502-FO." Id. at 2. DHS then informed plaintiff that an investigation would be conducted and completed ...

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