Aaron v. Pompeo

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         Plaintiff, proceeding pro se, alleges that, while she was an employee of the United States Department of State, she was discriminated against in various ways on the basis of her sex (female), nationality (Israeli and American), religion (Orthodox Jewish), and disability (bilateral De Quervain's and flexor tendonitis) in violation of Title VII of the Civil Rights Act of 1963. 42 U.S.C. § 2000e, et seq. She also claims that she was retaliated against for reporting the discrimination. Defendant has moved for a partial dismissal of Plaintiff's Complaint, or in the alternative, for partial summary judgment. Fed. R. Civ. Pro 12(b)(6), 56(a). Defendant argues that the bulk of Plaintiff's claims should be dismissed as untimely as they were filed after the 90-day deadline for filing a court action after a final decision by the Equal Employment Opportunity Commission (“EEOC”). 42 U.S.C. § 2000e-16(c). Defendant further argues that the remaining portions of Plaintiff's hostile work environment claims should be dismissed for failure to exhaust administrative remedies and failure to state a plausible claim to relief.

         Upon consideration of the pleadings, ^[1] the relevant legal authorities, and the record as a whole, the Court GRANTS-IN-PART and DENIES-IN-PART Defendant's motion. The Court GRANTS Defendant's motion for summary judgment as to Plaintiff's claims which were raised in her first EEOC action because those claims were filed outside the 90-day deadline for filing an action after the EEOC's final determination. But, the Court DENIES Defendant's motion to dismiss Plaintiff's hostile work environment claims. Considering only the allegations were which exhausted and timely, Plaintiff has stated a claim for which relief can be granted.

         I. BACKGROUND

         For the purposes of the motion before the Court, the Court accepts as true the well-pleaded allegations in Plaintiff's Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). Further, because Plaintiff proceeds in this matter pro se, the Court must consider not only the facts alleged in Plaintiff's Complaint, but also the facts alleged in Plaintiff's Opposition to Defendant's motion. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (“a district court errs in failing to consider a pro se litigant's complaint ‘in light of' all filings, including filings responsive to a motion to dismiss”) (quoting Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999)).

         Plaintiff alleges that, in 2004, she began working for the American Consulate General in Jerusalem, Israel (“ACJI”) as an occupational health nurse tasked with developing an independent medical-services unit within the ACJI. Compl., ECF No. 1, ¶¶ 10, 12. Plaintiff claims that she encountered various forms of discrimination while working for ACJI. In all, Plaintiff raises eight claims for relief under Title VII of the Civil Rights Act:

1) Failure to provide reasonable accommodations for her disability;

2) Disparate treatment based on national origin, religion, and/or sex with respect to providing reasonable accommodations;

3) Disparate treatment based on national origin, religion, and/or sex with respect to providing tuition reimbursement;

4) Wrongful non-selection for a Registered Nurse position at the United States embassy in Tel Aviv, Israel;

5) Wrongful removal of Plaintiff's prescription-writing privileges;

6) Wrongful termination of Plaintiff's employment at ACJI;

7) Subjection to a hostile work environment involving negative and discriminatory comments; and

8) Continued subjection to a hostile work environment.

Pl.'s Opp'n, ECF No. 15, 5.

         Beginning with Plaintiff's first and second claims, Plaintiff alleges that she faced discrimination when she was refused reasonable accommodations for a disability that she developed on the job. According to Plaintiff, as part of her job, she was required to communicate via email and text through an ACJI-issued Blackberry, which had a small keyboard. Compl., ECF No. 1, ¶ 16. Plaintiff claims that, over time, she developed bilateral De Quervain's and flexor tendonitis caused and aggravated by her use of the Blackberry keyboard. Id. at ¶ 17. Plaintiff contends that she requested an accommodation in the form of a FOB, which would let her send work communications through devices other than the Blackberry, or a touch-screen Blackberry which would not require the use of a keyboard. Id. at ¶ 18. Plaintiff alleges that the ACJI employee charged with finding her a suitable accommodation failed to do so. Plaintiff claims that she was not suitably accommodated due to her engagement in protected EEOC activity, her nationality, her religion, and her sex. Id. at ¶ 19. As evidence of the discrimination, Plaintiff claims that another similarly-situated employee, who was of a different religion and nationality, was given the appropriate accommodation of a FOB when facing a similar disability. Id. at ¶ 21. When Plaintiff purchased her own accommodation in the form of a touch-screen iPad, Plaintiff alleges that she was not allowed to use the iPad until it became known that other similarly-situated employees used similar devices. Id. at ¶ 22.

         Considering Plaintiff's third claim, Plaintiff alleges that she was discriminated against when she was refused adequate reimbursement for her continued studies in health policy. Id. at ¶ 23. According to Plaintiff, ACJI informed Plaintiff that she could apply for 50% reimbursement for the cost of her courses only after completing her continuing education program. But, Plaintiff alleges that ACJI reimbursed Arab employees for their continuing studies immediately, and not upon completion of the program. Id. at ¶ 24. She alleges that she was refused adequate reimbursement for her continuing studies on the basis of her nationality, religion, and sex.

         Next, Plaintiff's fourth, fifth, and sixth claims relate to the retaliation that she claims that she faced due to reporting her discrimination and engaging in protected EEOC activity. Id. at ¶ 26. Plaintiff contends that ACJI personnel learned of her first EEOC complaint, which alleged that she had been discriminated against on the basis of her nationality, religion, disability, sex, and reprisal. Id. at ¶ 26. According to Plaintiff, the discovery of her EEOC complaint led to multiple attempts by ACJI to fire her for allegedly unsupported and pretextual reasons. Id. at ¶¶ 26-29. For example, ACJI management alleged that Plaintiff had written a prescription in violation of Israeli law and had received an immunization in the Health Unit in violation of State Department policy. Id. at ¶ 30. Soon after these allegations were reported, Plaintiff was no longer allowed 24/7 access to the Health Unit. Id. at ¶ 25. Additionally, her local prescription writing privileges were removed. Id. at ¶ 31. Plaintiff also alleges that she was not hired for a job as a registered nurse at the United States Embassy in Tel Aviv, Israel because ACJI employees discouraged the embassy from hiring her in retaliation for her EEOC complaint. Id. at ¶¶ 32-33. Finally, Plaintiff alleges that this retaliation culminated in her wrongful termination from ACJI. Id. at ¶ 34.

         Finally, Plaintiff's seventh and eighth claims relate to the hostile work environment that Plaintiff alleges she faced. In addition to some of the incidents described above, Plaintiff claims that, from the beginning of her employment, she faced a hostile work environment because she was a Jewish, Israeli woman. Id. at ¶ 13. According to Plaintiff, she was told that Palestinian supervisors did not want to work with her because she was Jewish and Israeli. Id. at ¶ 12. Plaintiff alleges that many other employees refused to work with her or to submit her supply orders, causing her to have to re-order medical supplies multiple times. Id. at ¶ 13. She also claims that she was subject to other hostile acts and comments by her co-workers due to her religion and nationality. Id. at ¶ 14. Plaintiff contends that ACJI officials knew about the discriminatory acts and behaviors, but the officials did not effectively address the discrimination and were sometimes complicit in it. Id.

         II. PROCEDURAL HISTORY

         Prior to filing a complaint of employment discrimination against a federal agency, a plaintiff must first file an official complaint with the EEOC. Within 90 days of receiving a final decision by either the agency or the EEOC, the plaintiff must file a complaint in a United States district court. 42 U.S.C. § 2000e-16(c).

         In her Complaint, Plaintiff alleges that she filed two actions with the EEOC. Plaintiff alleges that she filed her first EEOC complaint on May 12, 2011. This complaint alleged discrimination based on national origin, religion, disability, reprisal, and sex. Compl. ECF No. 1, ¶ 6. According to Plaintiff, the EEOC rejected her claim on September 30, 2013 and the appeal is still pending. Id. at ¶ 7. Plaintiff alleges that she filed her second EEOC complaint in or about September 2013, claiming discrimination on the basis of national origin, religion, and reprisal. Id. at ¶ 8. According to Plaintiff, on August 23, 2017, the EEOC granted Defendant summary judgment, and Plaintiff filed this action in federal district court within 90 days of that decision. Id. at ¶¶ 8-9.

         In its motion, Defendant disputes the timeline in Plaintiff's Complaint. According to Defendant, Plaintiff did file her first EEOC complaint on May 12, 2011, but the appeal is not still pending. Instead, on March 17, 2017, the EEOC issued a final determination in favor of the Defendant on Plaintiff's appeal and mailed the decision to the address of record for Plaintiff's counsel. Def.'s Mot., ECF No. 6, 7-8. Under this timeline, Plaintiff's complaint, which was filed November 20, 2017, was not filed within the 90-day deadline.

         In her opposition to Defendant's motion, Plaintiff does not contest Defendant's timeline for her first EEOC action. Instead, Plaintiff argues that the EEOC sent the notice of its final determination only to her attorney's address, which was no longer the correct address. Accordingly, Plaintiff contends that she never received notice of the final determination, so the 90-day ...