United States District Court, District of Columbia
ELIANA M. AARON, Plaintiff
MICHAEL POMPEO, Defendant
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
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.
consideration of the pleadings,  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
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.
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
2) Disparate treatment based on national origin, religion,
and/or sex with respect to providing reasonable
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
6) Wrongful termination of Plaintiff's employment at
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.
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.
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.
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.
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.
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.
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.
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
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 ...