Bowe-Connor v. Shinseki

• Decision Date: 25 January 2013
• Docket Number: Civil Action No. 10–2032 (JDB).
• Citation: 923 F.Supp.2d 1
• Parties: Shelia S. BOWE–CONNOR, Plaintiff, v. Eric K. SHINSEKI, Secretary of Veteran Affairs, Defendant.
• Court: U.S. District Court — District of Columbia

923 F.Supp.2d 1

Shelia S. BOWE–CONNOR, Plaintiff,

v.Eric K. SHINSEKI, Secretary of Veteran Affairs, Defendant.

Civil Action No. 10–2032 (JDB).

United States District Court,

District of Columbia.

Jan. 25, 2013.

Morris Eli Fischer, Law Office of Morris E. Fischer, LLC, Silver Spring, MD, for Plaintiff.

Laurie J. Weinstein, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiff Shelia S. Bowe–Connor (“Bowe–Connor” or “plaintiff”) brings this action against Eric K. Shinseki, in his capacity as the Secretary of Veterans Affairs, (“Secretary” or “defendant”) alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Defendant has moved to dismiss or alternatively for summary judgment. For the reasons explained below, the Court will grant defendant's motion.

BACKGROUND

The facts and background of the case are set forth fully in this Court's prior opinion. See Bowe–Connor v. Shinseki, 845 F.Supp.2d 77, 77–84 (D.D.C.2012). Plaintiff is a pharmacist with the Department of Veterans Affairs, where she has been employed since 1984. Sec. Am. Compl. ¶ 9. She works in the Outpatient Pharmacy at the VA Medical Center. Id. ¶ 11.

Bowe–Connor, acting pro se, initially brought claims alleging violations of Title VII, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the Equal Pay Act, 29 U.S.C. § 206(d)et seq. (“EPA”). Compl. ¶¶ 1, 2, 4, 8. That complaint, which was filed when Bowe–Connor was proceeding pro se, generally contended that officials at the Department of Veterans Affairs (“VA”) discriminated against her on the basis of age, sex, and national origin; retaliated against her due to her Equal Employment Opportunity Commission (“EEOC”) activity; and subjected her to a hostile work environment. Id. ¶¶ 5, 13, 23. Plaintiff also asserted that male pharmacists performing the same work were paid more than she was, in violation of the EPA. Id. ¶¶ 35–36. Defendant moved to dismiss plaintiff's Title VII and ADEA claims for failure to exhaust and failure to state a claim, Fed.R.Civ.P. 12(b)(6), and plaintiff's EPA claim for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). See generally Def.'s 1st Mot. to Dismiss. At that time, the Court granted defendant's motion to dismiss the EPA claim for lack of subject matter jurisdiction, but, given Bowe–Connor's pro se status, denied the motions to dismiss the Title VII and ADEA claims concluding that it lacked sufficient clarity and information on the claims in the complaint. See Bowe–Connor, 845 F.Supp.2d at 89–95. Because Bowe–Connor secured counsel after the first motion to dismiss was fully briefed, the Court gave her an opportunity to address the deficiencies identified in that prior decision, and granted leave to Bowe–Connor to file an amended complaint. Id. at 96.

Bowe–Connor has now filed an amended complaint.¹ In her amended complaint, she alleges national origin discrimination and retaliation claims. As to national origin discrimination, she claims that her supervisor gave favorable treatment to employees of Ethiopian descent over employees of non-Ethiopian descent. Id. ¶¶ 14–16. Specifically, Bowe–Connor states that she received no bonus in March 2009, which was because of national origin discrimination. Id. ¶ 52–53. She states in addition that other non-Ethiopian employees received lower bonuses than those recommended by her supervisor for employees of Ethiopian descent. Id. ¶ 54. Bowe–Connor also makes retaliation claims as to a proposed five-day suspension, the charging of 3.5 hours of leave without pay by improper reduction of her sick leave, and a letter of counseling for excessive leave usage. Defendant has moved to dismiss Bowe–Connor's second amended complaint, or, in the alternative, for summary judgment.

STANDARD OF REVIEW

All that the Federal Rules of Civil Procedure require of a complaint is that it contain “ ‘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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, 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.” Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955;see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). “To survive a motion to dismiss, a 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955);accord Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir.2009). A complaint is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. This amounts to a “two-pronged approach” under which a court first identifies the factual allegations entitled to an assumption of truth and then determines “whether they plausibly give rise to an entitlement to relief.” Id. at 1950–51.

The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512–13, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant Cnty. Narcotics & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979); see also Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (citing Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). However, “the court need not accept inferences drawn by plaintiffs 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). Nor does the court accept “a legal conclusion couched as a factual allegation,” or “naked assertions [of unlawful misconduct] devoid of further factual enhancement.” Iqbal, 129 S.Ct. at 1949–50 (internal quotation marks omitted); see also Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 n. 4 (D.C.Cir.2008) (explaining that the court has “never accepted legal conclusions cast in the form of factual allegations”).

When both parties submit matters outside the pleadings, the Court should proceed under a summary judgment analysis.²See, e.g.,Fed.R.Civ.P. 12(d); Ahuja v. Detica, Inc., 742 F.Supp.2d 96, 103 (D.D.C.2010) (citing Langley v. Napolitano, 677 F.Supp.2d 261, 263 (D.D.C.2010)); Johnson v. Peake, 634 F.Supp.2d 27, 29–30 (D.D.C.2009). “[B]ecause the Court must look outside the pleadings to resolve defendant's motion to dismiss, the Court will analyze plaintiff's alleged failure to exhaust her Title VII [and ADEA] administrative remedies under the summary judgment standard.” Augustus v. Locke, 699 F.Supp.2d 65, 69 n. 3 (D.D.C.2010).

Summary judgment is appropriate where the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The moving party may successfully support its motion by identifying those portions of “the pleadings, the discovery and disclosure materials on file, and any affidavits” which it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); see Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Summary judgment is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505.

ANALYSIS

I. Exhaustion of Bonus Claim

A federal employee bringing a lawsuit under Title VII or the ADEA is...