Cureton v. Nielsen

          MEMORANDUM OPINION [DKT. #9]

          RICHARD J. LEON, United States District Judge

         Plaintiff, Katherine Cureton ("Cureton" or "plaintiff), proceeding pro se, brought this action against defendants, Kirstjen Nielsen, Rhonda Brooks, Tammy Hudson, and Allen Blume (collectively referred to as "defendants"), alleging various instances of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Defendants moved to dismiss or, in the alternative, for summary judgment. Upon review of the pleadings, the relevant case law, and the entire record herein, defendants' motion is GRANTED and this case is DISMISSED with prejudice.

         BACKGROUND

         A. Plaintiffs 2013 EEO Activity

         Beginning in October 2012, plaintiff worked at the Department of Homeland Security ("DHS") as a Student Trainee in its Pathways Internship Program assigned to the Office of the Chief Financial Officer ("OCFO"). Defs.' Mot. to Dismiss, or, in the Alternative, for Summ. J. [Dkt. #9] ("Defs.' Mem.") 3; Compl. [Dkt. #1] 4. Rhonda Brooks ("Brooks"), OCFO's Director of Administration & Logistics, was plaintiffs first-line supervisor. Defs.' Mem. 3. Allen Blume ("Blume") was the Director of OCFO's Budget Division, and Tammy Hudson ("Hudson") was a Records Officer in DHS's Office of the Chief Information Officer. Id.

         In September 2013, plaintiff filed a formal EEO complaint (Case No. HS-HQ-02174-2013) with DHS's Office of Civil Rights and Civil Liberties ("CRCL"), alleging discrimination based on her age. Statement of Material Facts Not In Dispute ("SOMF") [Dkt. #9] ¶ 1- She identified Brooks "as a responsible management official in the administrative complaint." Defs.' Mem. 4.

         Plaintiffs employment ended on January 11, 2014, see SOMF ¶ 2, and plaintiff attributes her termination to "retaliation by DHS senior management officials within the Office of the Chief Financial Officer, Office of the Chief Information Officer and the Office of the Chief Human Capital Officer, " Compl. 4. Specifically, plaintiff alleges that "Rhonda Brooks ended [her] Pathways appointment when [p]laintiff refused to resign [on] November 20, 2013." Id. Defendants counter that, "[b]ased on a review of the entire evidentiary record, CRCL fully implemented] the Equal Employment Opportunity Commission (EEOC) Administrative Judge's (AJ) decision finding no discrimination, as the final action in this matter." Defs.' Mem., Ex. 5 ("Final Order dated March 3, 2016") 1.

         Plaintiffs 2013 EEO activity and termination were the subjects of a prior lawsuit. See generally Compl., Cureton v. Johnson, No. 16-cv-1270 (D.D.C. June 23, 2016). In that case, this Court ruled that plaintiff filed her lawsuit "on the 92^nd day after [her] receipt of DHS's final action, " such that "the underlying claims, including the [age discrimination] and related wrongful termination claims, [were] untimely." Cureton v. Duke, 272 F.Supp.3d 56, 62 (D.D.C. 2017), appeal docketed, No. 17-5251 (D.C. Cir. Oct. 31, 2017).

         B. Applications for Budget Analyst, Program Analyst, and FEMA Positions^[2]

         1. Budget Analyst

         DHS issued Vacancy Announcement Number DHSHQ15-1380243-FO for a Budget Analyst position, and plaintiff submitted her application on April 21, 2015. See Compl. 4-5; Defs.' Mem, Ex. 2 ("Copeland Decl.") 280. On May 13, 2015, plaintiff "received an automated email from USA Staffing informing her that she had not been referred for consideration for [the] position[.]" SOMF ¶ 3; see Defs.' Mem, Ex. 3 ("Notice of Results"). After the announcement had closed, on May 15, 2015, plaintiff contacted Katherine Copeland ("Copeland"), a Human Resources Specialist, to request consideration for the position under Schedule A hiring authority. SOMF ¶ 4; Copeland Decl. 280-81; Defs.' Mem., Ex. 4; Compl. 5. Although plaintiff submitted the requisite Schedule A documentation, Copeland determined that plaintiff "would not be considered under the announcement because the proper documentation had not been submitted by the closing date of the announcement." Copeland Decl. 281. Nevertheless, Copeland "forwarded [plaintiffs application] to the selecting official for consideration under the Schedule A hiring authority for any vacancies including ... the budget analyst position." Id.

         2. Program Analyst

         DHS issued Vacancy Announcement Number DHSHQ15-1391613-FO for a Program Analyst, and plaintiff applied for the position in May 2015. Defs.' Mem., Ex. 6 ("Cureton Decl.") 115; see Compl. 5. On June 12, 2015, plaintiff contacted Donald Jackson, a Program Specialist at the OCFO, by email asking whether she would be granted an interview. See Defs.' Mem., Ex. 8 ("Jackson Decl.") 422-23. Mr. Jackson did not respond. See id.

         3. FEMA

         On June 25, 2015, "[p]laintiff attended a hiring event sponsored by FEMA, " the Federal Emergency Management Administration, "for Schedule A applicants." Compl. 5; Defs.' Mem., Ex. 9 ("Addendum to Cureton Deck") 121; SOMF ¶ 9. Eric Leckey ("Leckey"), FEMA's Acting Chief Administrative Officer, interviewed plaintiff, who was to be considered for the position of "Government Information Specialist, GS12 functioning as a Records Management Specialist within the Privacy Office." SOMF ¶ 10; Addendum to Cureton Decl. 121. By e-mail dated June 29, 2015, Mr. Leckey requested plaintiffs references. Defs.' Mem., Ex. 10.

         C. Plaintiffs 2015 EEO Activity

         Plaintiffs initial contact with an EEO Counselor with the CRCL took place on July 7, 2015, see Compl., Ex. 2 ("Final Order dated November 29, 2016") 1, and her initial interview took place on July 13, 2015, ₁yeeDefs.' Mem., Ex. 18 ("EEO Counselor's Report, HS-HQ-24268-2015") 48. Plaintiff filed her formal complaint on August 2, 2015, alleging discrimination based upon physical disability and reprisal for her 2013 EEO activity. See Defs.' Mem. Ex. 1 ("Individual Complaint of Employment Discrimination, Case No. HS-HQ-24268-2015") 33-34. The first two discrimination claims pertained to plaintiffs applications for the Budget Analyst and Program Analyst positions:

1. On June 2, 2015, you were informed that you were not being considered for selection for the Budget Analyst position, advertised under Vacancy Announcement Number DHSHQ15-1380243-FO, and that your application was being forwarded to the Human Resources liaison for consideration under "Schedule A" authority. You further stated that you believe your former supervisor, Rhonda Brooks, ...