United States District Court, District of Columbia
KATHERINE A. CURETON, Plaintiff,
KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al., Defendants.
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
appearing pro se, sues the U.S. Department of
Homeland Security ("DHS") and several DHS
employees, claiming reprisal for engaging in protected
activity under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e. The complaint is far from clear but stems from
an alleged negative reference that "management
officials" of the Office of Chief Financial Officer
("OCFO") provided to Immigration and Customs
Enforcement ("ICE") as part of a pre-employment
screening investigation. Compl. ¶ III.
is defendants' Motion to Dismiss [Dkt. # 6]
("Defs.' Mot.") under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, which plaintiff has
opposed. See Pl.'s Opp'n to Def.'s Mot.
to Dismiss [Dkt. # 8] ("Opp'n"). Defendants
contend that plaintiff failed to timely exhaust her
administrative remedies and has otherwise failed to plead
sufficiently under Rule 8(a) of the Federal Rules of Civil
Procedure. In addition, defendants contend that dismissal of
all named defendants except DHS Secretary Kirstjen Nielsen is
required. Plaintiff has filed an unfocused opposition
recounting events that were the subject of her previous
employment discrimination cases in this court. See
Cureton v. Nielsen, 304 F.Supp.3d 102 (D.D.C. 2018),
appeal dismissed, No. 18-5104, 2018 WL 4099617 (D.C.
Cir. July 25, 2018) ("Cureton II); Cureton v.
Duke, 272 F.Supp.3d 56 (D.D.C. 2017), appeal
dismissed sub nom. Cureton v. Nielsen, No. 17-5251, 2018
WL 4154788 (D.C. Cir. July 25, 2018) ("Cureton
I). For the reasons explained below., defendants'
motion is GRANTED.
claims generally "Employment Discrimination Based upon
Reprisal, previous EEO activity during federal employment
9/2013, 8/2015, 2/2016." Compl. ¶ II. A. She
"believes she has been subjected to intentional
discrimination and treated unfairly by DHS" since
September 16, 2013, when she filed an age discrimination
claim "while employed by DFIS" at the OCFO.
Opp'n at 1; see also Compl. at 5. In this case,
plaintiff reasserts a retaliation claim that was
dismissed in 2017 for failure to exhaust administrative
remedies. Defs.' Mot. at 2 (citing Cureton I).
The relevant facts follow.
Adverse Fitness Decision
March 14, 2016, plaintiff was offered the full-time position
of Senior Records Manager/Project Manager with a federal
contractor, BarnAllen Technologies, Inc. The position was
assigned to ICE's Agency Records Management project
located at an ICE facility in Washington, D.C. See
Compl. Attachments [Dkt. # 1-1] at 7 (offer letter).
Plaintiffs "expected start date [was] contingent
upon" the government's "acceptance of [her]
qualifications" and "a favorable security clearance
by the government." Id.
letter of May 6, 2016, plaintiff was informed by Anthony
Pierri, ICE's Section Chief of the Personnel Security
Unit, that "based upon the investigative results"
of the pre-employment screening, she was "found
unfit" due to "dishonest conduct as evidenced by
your failure to honor just debts." Compl. Attach, at 15
(fitness letter). Plaintiff attributes Pierri's decision
to an alleged "negative reference" that certain
senior managers at OCFO had allegedly provided "Anthony
Pierri and/or Kim Hodge." Id. at 4-5. Plaintiff
surmises that Pierri "overturned Ms. Hodge's
favorable suitability determination"-that she alleges
was "granted ... via phone." Id. at 5.
Related 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. Curelon I, 272 F.Supp.3d
at 60. Plaintiff sought to amend that charge in May 2016 to
add a claim of reprisal arising from the foregoing fitness
decision, but DHS denied plaintiff's request upon
determining that the amended claim was "not like or
related to [the original] Complaint, as it involves a
different agency, i.e. ICE, and could not have been
reasonably expected to grow out of the investigation of the
original claim against this agency." Id.
(record citations omitted). The letter provided information
about pursuing an EEO claim with ICE, including the name and
address of the office to contact. Id.
reconsideration, DHS Headquarters affirmed the decision to
deny the amendment as to ICE's fitness decision but
permitted plaintiff to add a charge based on the alleged
"negative employment reference" OCFO managers
Rhonda Brooks and Chip Fulghum gave in May 2016 "in the
course" of plaintiffs "candidacy for the contractor
position" at BarnAllen Technologies, Inc. See
Compl. Attach, at 1 (June 3, 2016 Amended Acceptance Letter -
Revised); see also Cureton I, 272 F.Supp.3d at
60-61. The appeal letter again referred plaintiff to
ICE's EEO office to redress ICE's negative fitness
determination. See Cureton I, 272 F.Supp.3d at 60.
As of October 26, 2016, ICE had no record of plaintiffs
contacting ICE's Office of Diversity and Civil Rights,
which "is responsible for receiving and processing EEO
complaints filed by employees and applications of ICE."
Id. at 61 (record citation omitted).
12(b)(6) motion to dismiss challenges the adequacy of a
complaint on its face, testing whether a plaintiff has
properly stated a claim. "While a complaint attacked by
a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiffs obligation to provide the
grounds of [her] entitle[ment] to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration in original) (citations and internal quotations
marks omitted). The 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) (citation and internal
quotation marks omitted). "[T]he [C]ourt need not accept
inferences drawn by plaintiff if such inferences are
unsupported by the facts set out in the complaint."
Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994).
ruling on a Rule 12(b)(6) motion to dismiss, the Court may
consider "any documents either attached to or
incorporated in the complaint . . . without converting the
motion to dismiss into one for summary judgment."
Baker v. Henderson,150 F.Supp.2d 13, 15 (D.D.C.
2001) (citations omitted). This includes documents that are
"referred to in the complaint and  central to the
plaintiffs claim'" even if they are produced not by
the plaintiff in the complaint but by the defendant in a
motion to dismiss. Solomon v. Office of the Architect of
the Capitol,539 F.Supp.2d 347, 349-50 (D.D.C. 2008)
(citing Vanover v. Hantman,77 F.Supp.2d 91, 98
(D.D.C. 1999), aff'd 38 Fed. Appx. 4 (D.C. Cir.
2002)) (internal citations omitted). In addition, the Court
may consider "matters of which it may take judicial
notice," EEOC v. St. Francis ...