Beberman v. U.S. Dep't of State & Sec'y of State Rex Tillerson
| Decision Date | 26 April 2018 |
| Docket Number | Civ. No. 14-0020 |
| Parties | JULIE A. BEBERMAN, Plaintiff v. U.S. DEPARTMENT OF STATE and SECRETARY OF STATE REX TILLERSON, in his official capacity, Defendants. |
| Court | U.S. District Court — Virgin Islands |
1
This matter has come before the Court upon the Motion to Dismiss Plaintiff's Seventh Amended Complaint by Defendants United States Department of State and Secretary of State Rex Tillerson, in his official capacity (collectively, "Defendants"). (ECF No. 138.) Plaintiff Julie Beberman ("Plaintiff") opposes (ECF No. 143) and has also filed a Motion to Amend Count 2 of the Seventh Amended Complaint (ECF No. 145). Defendants oppose. (ECF No. 146.) The Court has addressed these Motions together and decided them upon the written submissions, without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons stated below, Defendants' Motion is granted in part, and Plaintiff's Motion is denied,
This case arises out of Plaintiff's employment as a Foreign Service Officer within the Department of State and the Department's alleged discrimination against Plaintiff, which sheclaims caused her to be denied tenure. Plaintiff filed the present lawsuit on May 9, 2014. (ECF No. 1.) She filed an application for a TRO or preliminary injunction on May 13, 2014 (ECF No. 9), the denial of which Plaintiff appealed on April 4, 2016 (ECF No. 87). On March 6, 2017, the Third Circuit issued its mandate affirming the district court. (ECF No. 104.) This case was reassigned to the Honorable Anne E. Thompson on May 8, 2017. (ECF No. 108.)
In June 2017, the Court had five pending motions to amend the complaint by Plaintiff and two motions to dismiss by Defendants. In an Order and Opinion on September 1, 2017, the Court resolved the motions, denying Plaintiff's fifth motion to amend, granting in part Plaintiff's sixth motion to amend, and denying Defendants' motions to dismiss without prejudice and with leave to refile after Plaintiff filed a new complaint. (ECF Nos. 129, 130.) The Court directed Plaintiff to file a Seventh Amended Complaint to serve as the operative complaint in this action. (ECF No. 130.) After the Court denied Plaintiff's motion for reconsideration (ECF Nos. 135, 136), Plaintiff filed the Seventh Amended Complaint on October 16, 2017 (ECF No. 137).
Defendants promptly moved to dismiss. (ECF No. 138.) Plaintiff opposed (ECF No. 143), Defendants replied (ECF No. 144), and then Plaintiff moved to amend her Seventh Amended Complaint as to Count 2 (ECF No. 145). Defendants opposed, and Plaintiff replied. (ECF Nos. 146, 148.) These Motions are presently before the Court.
Plaintiff's Seventh Amended Complaint pleads seven Counts: (1) discriminatory denial of tenure, (2) tort claims for infliction of emotional distress, (3) discriminatory animus proximately causing denial of tenure, (4) retaliatory and discriminatory denial of opportunity to serve as backup consular officer causing harm, including proximately causing tenure denial, (5) retaliatory and discriminatory transfer due to Ambassador Furuta-Toy's conduct, (6) retaliatoryand discriminatory transfer, and (7) retaliatory failure to make tenure and promotion recommendation. (See generally Seventh Am. Compl., ECF No. 137.) These Counts find statutory basis in the Age Discrimination in Employment Act of 1967 ("ADEA").
Plaintiff accepted employment with the State Department in January 2010 and was confirmed as a Foreign Service Generalist on June 30, 2011. (Id. ¶¶ 12, 19.) She had "a limited career appointment that would expire if she were not granted tenure within five years" of her appointment. (Id. ¶ 61.) Plaintiff was assigned to the Embassy in Caracas, Venezuela from October 2011 to November 2012. (Id. ¶¶ 20, 62.) There she was supervised by Deputy Visa Chief Shane Myers ("Myers"), Consul General Dale Rumbarger ("Rumbarger"), and Visa Chief Eric Cohan ("Cohan"). (Id. ¶¶ 64-65.) Plaintiff was then transferred to the Bureau of African Affairs from December 2012 until December 2014. (Id. ¶ 68.) After that interim appointment, Plaintiff began a three-year post at the Embassy in Malabo, Equatorial Guinea. (Id. ¶¶ 26, 69.)
Plaintiff claims that while at Embassy Caracas she was discriminated against and treated differently by her supervisors because she was an older woman and her visa refusal rate was lower than that of younger men (id. ¶¶ 89-90, 107), allegedly prompting her supervisors to issue unfavorable reviews in her employee evaluation reports ("EERs") (id. ¶ 153), cut short her assignment in Caracas, and cause her to lose her designated assignment at the Embassy in Port-au-Prince, Haiti (id. ¶ 155). During this time, Plaintiff alleges that Cohan acted outrageously, maliciously, and oppressively towards her (id. ¶ 182), thereby deliberately inflicting emotional harm (see, e.g., id. ¶¶ 186-87, 191-92). Plaintiff also claims that David Franz ("Franz"), a remote employee in the Visa Office who investigates Visa Lookout Accountability ("VLA") violations, was involved with and influenced by Myers, Rumbarger, and Cohan, and he consequently failed to provide Plaintiff VLA training at Embassy Caracas until she hadcommitted VLA violations. (Id. ¶¶ 199-200.) She claims Franz identified a conflict of interest because of his wife's employ at the Embassy, but still referred Plaintiff's violations to a VLA panel and treated her differently. (Id. ¶¶ 201-02, 206-08.) The panel found Plaintiff had committed violations and issued a one-day disciplinary suspension. (Id. ¶¶ 211-12.) Plaintiff claims that this same violation process was handled very differently for another Foreign Service Officer and older male colleague, John Elliot ("Elliot"). (Id. ¶¶ 203-04.) At this time, Plaintiff engaged in mediation with the State Department for her Equal Employment Opportunity ("EEO") complaints, and she believes that then Deputy Assistant Secretary, Marcia Bernicat ("Bernicat"), held a retaliatory animus against her and had conflicts of interest. (Id. ¶¶ 217, 219-22.) According to Plaintiff, this animus, in addition to that of her supervisors, had a negative effect on her later assignments and her tenure review. (See, e.g., id. ¶ 213.)
On February 26, 2016, Plaintiff was denied tenure by the Winter 2015 Commissioning and Tenure Board ("CTB"). (Id. ¶¶ 70-71.) The Foreign Service Grievance Board ("FGSB") granted temporary interim relief from termination while Plaintiff appealed her denial of tenure. (Id. ¶¶ 73-74.) Plaintiff further alleges that Ambassador Julie Furuta-Toy ("Furuta-Toy") had a negative view of Plaintiff from individuals at consular affairs, and acting in retaliation, denied Plaintiff's request to remain in Malabo while her FGSB grievance was pending. (Id. ¶¶ 242, 246.) Plaintiff again compares herself and her treatment to Elliot, "an older male Foreign Service Officer, [who] had not engaged in any activity protected under the ADEA" (id. ¶ 251), who was also denied tenure but was treated more favorably afterwards (id. ¶¶ 250, 251-52). Finally, Plaintiff claims that despite positive EER ratings, Furuta-Toy and Deputy Chief of Mission Petra Zabriskie ("Zabriskie") refused to recommend her for tenure in retaliation for her conduct at Malabo and EEO grievances. (Id. ¶¶ 267-70.) Plaintiff claims that she has exhaustedall administrative remedies with respect to these claims against the Department of State. (Id. ¶¶ 42-76.) Plaintiff was issued separation orders and transferred to Washington without further assignment (id. ¶ 74). In November 2016, Plaintiff received a retroactive assignment to the Bureau of African Affairs where she is currently employed. (Id. ¶ 76.)
A motion under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). When considering a Rule 12(b)(6) motion, a district court should conduct a three-part analysis. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). "First, the court must 'take note of the elements a plaintiff must plead to state a claim.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must accept as true all well-pleaded factual allegations and construe the complaint in the light most favorable to the plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009); see also Connelly v. Lane Constr. Corp., 809 F.3d 780, 786-87 (3d Cir. 2016). The court, however, may disregard conclusory legal allegations. Fowler, 578 F.3d at 203. Finally, the court must determine whether the "facts are sufficient to show that plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Iqbal, 556 U.S. at 679). A complaint which does not demonstrate more than a "mere possibility of misconduct" must be dismissed. See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679).
Although a district court generally must confine its review to the pleadings on a Rule 12(b)(6) motion, see Fed. R. Civ. P. 12(d), "a court may consider certain narrowly defined typesof material" beyond the pleadings. In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999). The Court "may also take into account 'public record[s]' and 'undisputedly authentic document[s] that a defendant attaches as . . . exhibit[s] to a motion to dismiss if the plaintiff's claims are based on the document' when ruling on a 12(b)(6) motion." Bostic v. AT&T of V.I., 166 F. Supp. 2d 350, 354 (D.V.I. 2001) (alteration in original) (quoting Pension Benefit Guar. Corp. v. White, 998 F.3d 1192, 1196-97 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994)).
After amending as of right, a plaintiff may further...
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