MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Plaintiff
was employed by the United States Securities and Exchange
Commission (“SEC”) from 1990 until her
termination on September 18, 2018. Plaintiff disputes the
circumstances surrounding her termination, which was preceded
by an unacceptable performance rating, placement on a
Performance Improvement Plan (“PIP”), and an
offer for her to be demoted or to resign. Based on these
events, in her Amended Complaint, Plaintiff brings eight
claims against a myriad of SEC employees in their official
and personal capacities. In Count One, Plaintiff alleges that
Defendants violated her constitutional rights by improperly
terminating her without due process. In Count Two, Plaintiff
alleges that Defendants violated RICO, 18 U.S.C. §
1962(c), by engaging in a criminal enterprise involving false
statements to federal officials, mail fraud, and extortion in
order to obtain her property interest in her federal
employment. In Count Three, Plaintiff alleges that Defendants
violated Title VII of the 1964 Civil Rights Act, 42 U.S.C.
§ 2000e, by discriminating against her on the basis of
gender. In Count Four, Plaintiff alleges that Defendants
violated the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621, by discriminating
against her on the basis of age. In Count Five, Plaintiff
alleges that Defendants violated Title VII by discriminating
against her on the basis of religion. In Count
Seven[1], Plaintiff alleges that Defendants
violated Title VII by subjecting her to a hostile work
environment. In Count Eight, Plaintiff alleges that
Defendants violated Title VII by retaliating against her for
engaging in protected activity. And, in Count Nine, Plaintiff
alleges that Defendants violated Title VII by retaliating
against her for making a whistleblower complaint. Defendants
have moved for a partial dismissal of Plaintiff's Amended
Complaint.
Upon
consideration of the pleadings, [2] the relevant legal
authorities, and the record as a whole, the Court will GRANT
Defendants' Partial Motion to Dismiss. First, Plaintiff
has voluntarily agreed to DISMISS her Count Seven hostile
work environment claim and her Count Nine whistleblower
claim. Next, the Court concludes that Plaintiff's Count
One Bivens claim and Count Two RICO claim are
DISMISSED as precluded by the Civil Service Reform Act
(“CSRA”) and Title VII and for failing to state a
claim for which relief may be granted. Furthermore, the Court
finds that Plaintiff's Counts Three, Four, and Five
claims for Title VII and ADEA discrimination may proceed only
as to Plaintiff's termination, as that is the only
cognizable adverse employment action, and only as to
Defendant Clayton in his official capacity, as he is the only
proper Defendant. Finally, the Court similarly finds that
Plaintiff's Count Eight retaliation claim may proceed
only as to Plaintiff's termination, as that is the only
employment action causally connected to a protected activity,
and only as to Defendant Clayton in his official capacity, as
he is the only proper Defendant. Because Plaintiff's
claims and the Defendants against whom those claims are made
have been altered by this Memorandum Opinion, the Court
further ORDERS Plaintiff to file a Second Amended Complaint,
containing only the relevant allegations.
I.
BACKGROUND
For the
purposes of the Motion before the Court, the Court accepts as
true the well-pled allegations in Plaintiff's Amended
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 the United States, 758 F.3d
296, 315 (D.C. Cir. 2014).
Plaintiff
began working for the SEC in 1990. Am. Compl., ECF No. 17,
¶ 79. During the relevant time period, Plaintiff worked
for the SEC's Division of Economic and Risk Analysis
(“DERA”) at a SK-16 pay grade. Id. at
¶ 80. Beginning in 2015 and through the relevant period,
Defendant Robert Willis was Plaintiff's first line
supervisor. Id. at ¶¶ 87-88.
Plaintiff
alleges that during fiscal year 2017, Plaintiff's
supervisors, including Defendant Willis, Defendant Scott
Bauguess, the former deputy director of the DERA, and
Defendant Kim Coronel, a managing executive at the DERA,
planned to create new managerial positions at the DERA,
including a new senior officer position. Id. at
¶¶ 99-102. The new senior officer position was to
be constructed from vacant positions in the DERA which would
be repurposed. Id. at ¶ 103. However, at that
time, there were no vacant positions. Id. at ¶
105.
At the
end of fiscal year 2017, Plaintiff alleges that there were
insufficient vacant positions to construct the new senior
official position. Id. at ¶ 110. Plaintiff
alleges that in order to create the position, one or more
employees would have had to vacate their positions.
Id. at ¶ 111. And, the higher the grade level
of the vacant position, the fewer vacant positions would be
required to create the new senior official position.
Id. at ¶ 112. As a SK-16, Plaintiff was at the
highest non-managerial level in the DERA. Id. at
¶ 114. Plaintiff alleges that there were three other
SK-16s. But, she was the only Jewish person, the only female,
and had the most years' experience. Id. at
¶ 115.
On
October 17, 2017, after fiscal year 2017 had ended, Defendant
Willis asked Plaintiff to develop policy objectives for the
DERA. Id. at ¶ 108. Plaintiff alleges that she
responded that she would complete the policy objectives after
completing more pressing work. Id. at ¶ 109.
On
November 8, 2017, Plaintiff contends that Defendant Willis
told her that she had not provided him with timely policy
objectives, that her performance for the fiscal year 2017 was
unacceptable, and that she would be placed on a PIP.
Id. at ¶ 120. Willis instructed Plaintiff to
speak to Defendant Iris Rossiter, an attorney in the
SEC's Office of General Counsel, about her performance
rating and her PIP. Id. at ¶¶ 120, 126.
Plaintiff informed her union representative of the evaluation
but did not speak with Defendant Rossiter. Id. at
¶ 125.
Plaintiff
had no more communication concerning her performance rating
or her PIP until January 17, 2018. Id. at
¶¶ 129-134. On that date, Plaintiff alleges that
she received an email from the SEC's union indicating
that Plaintiff would receive a poor written performance
appraisal if she did not resign or accept a demotion.
Id. at ¶¶ 135-39. On January 23, 2018,
Plaintiff filed an initial claim with the SEC's Office of
Equal Employment Opportunity (“OEEO”) concerning
these events. Id. at ¶ 23.
On
February 20, 2018, Plaintiff was officially served with the
PIP which lasted from February 21, 2018 through May 21, 2018.
Id. at ¶¶ 147, 151. Plaintiff's
supervisors ultimately determined that Plaintiff failed the
PIP and provided her with a Notice of Proposed Removal on
July 30, 2018. Id. at ¶ 175. Plaintiff,
represented by counsel, submitted oral and written responses
to the Notice in August of 2018. Id. at ¶¶
177-78. The SEC removed Plaintiff from her employment on
September 18, 2018. Id. at ¶ 183.
Plaintiff
alleges that she was terminated pursuant to a fraudulent
employee removal method which is used by the SEC. Pursuant to
this removal method, an SEC manager gives the targeted SEC
employee a fraudulent annual performance appraisal showing
unacceptable performance. Then, the SEC's Office of
General Counsel attorney extorts the employee in order to
induce a resignation or face termination. Id. at
¶¶ 60-61. In Plaintiff's case, she alleges that
this removal method was used to terminate her position in
order to make room for the new senior executive position.
Plaintiff contends that she was targeted and terminated due
to her gender, age, religion, and in retaliation for
protected activity.
On May
15, 2019, Plaintiff filed this lawsuit alleging a multitude
of claims against a myriad of Defendants. Compl., ECF No. 1.
Defendants filed an initial partial Motion to Dismiss. First
Mot. to Dismiss in Part, ECF No. 14. Rather than responding
to the Motion, Plaintiff moved for leave to file an Amended
Complaint, which was granted. On September 20, 2019,
Plaintiff filed an Amended Complaint. ECF No. 17. And, on
October 21, 2019, Defendants again filed a Motion for Partial
Dismissal and for a More Definite Statement. ECF No. 22. That
Motion is currently pending before the Court.
The
claims in Plaintiff's Amended Complaint are numbered to
Count 9; but, because there is no Count Six, Plaintiff makes
only eight claims.
• Count One- Plaintiff alleges that Defendants violated
her Fifth Amendment property and liberty rights by
terminating her without due process;
• Count Two- Plaintiff alleges that Defendants violated
RICO by engaging in a criminal enterprise to make false
statements, commit mail fraud, and commit extortion to obtain
Plaintiff's property interest in her employment position;
• Count Three- Plaintiff alleges that Defendants
violated Title VII by discriminating against her based on her
gender;
• Count Four- Plaintiff alleges that Defendants violated
the ADEA by discriminating against her based on her age;
• Count Five- Plaintiff alleges that Defendants violated
Title VII by discriminating against her based on her
religion;
• Count Seven- Plaintiff alleges that Defendants
violated Title VII by creating a hostile work environment;
• Count Eight- Plaintiff alleges that Defendants
violated Title VII by retaliating against her for engaging in
protected activity; and
• Count Nine- Plaintiff alleges that Defendants violated
Title VII by retaliating against her for filing a
whistleblower complaint.
Am. Compl., ECF No. 17, ¶¶ 185-251. Defendants move
to dismiss, at least in part, each claim.
II.
LEGAL STANDARD
Defendants
move to partially dismiss Plaintiff's Amended Complaint
under Rule 12(b)(6) for “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
The Federal Rules require that a complaint include
“‘a short and plain statement of the claim
showing that the pleader is entitled to relief,' in order
to ‘give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.'”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355
U.S. 41, 47 (1957)).
Although
“detailed factual allegations” are not necessary
to withstand a Rule 12(b)(6) motion, to provide the
“grounds” of “entitle[ment] to relief,
” a plaintiff must furnish “more than labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Id. Instead, a
complaint must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on
its face.” Id. at 556, 570. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
complaint must establish “more than a sheer possibility
that a defendant has acted unlawfully.” Id.
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)).[3]
III.
DISCUSSION
The
Court will now address the merits of Defendants'
arguments for the partial dismissal of Plaintiff's
Amended Complaint. The Court begins by addressing
Plaintiff's concessions in her Opposition. The Court then
explains why Plaintiff's Count One Bivens claim
and Count Two RICO claim are precluded by the CSRA and fail
to state a claim for which relief may be granted. Next, the
Court explains why Plaintiff's Counts Three, Four, and
Five claims for Title VII and ADEA discrimination state a
claim only as to Plaintiff's termination. Finally, the
Court discusses why Plaintiff's Count Eight Title VII
retaliation claim also states a claim only as to
Plaintiff's termination.
A.
Plaintiff's ...