United States District Court, District of Columbia
KATHERINE A. CURETON, Plaintiff,
ELAINE DUKE et al., Defendants.
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
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]. 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.
claims are interspersed among her original complaint, amended
complaint, and supplemental opposition [Dkt. #
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.
Plaintiffs Employment History and 2013 EEO Activity
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.
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.
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.
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.
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.
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.
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.
Plaintiffs 2016 EEO Activity
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 ...