Holmes v. Drug Enforcement Admin.

• Decision Date: 30 March 2007
• Docket Number: No. EP-04-CA-474-FM.,EP-04-CA-474-FM.
• Citation: 512 F.Supp.2d 826
• Parties: Cheryl O. HOLMES, Plaintiff, v. DRUG ENFORCEMENT ADMINISTRATION, Department of Justice, Alberto R. Gonzalez Attorney General, Defendants.
• Court: U.S. District Court — Western District of Texas

512 F.Supp.2d 826

Cheryl O. HOLMES, Plaintiff, v. DRUG ENFORCEMENT ADMINISTRATION, Department of Justice, Alberto R. Gonzalez Attorney General, Defendants.

No. EP-04-CA-474-FM.

United States District Court, W.D. Texas, El Paso Division.

March 30, 2007.

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Cheryl O. Holmes, El Paso, TX, Pro se.

Constance Russell Wannamaker, Law Office of Constance R. Wannamaker, Magdalena G. Jara, Assistant U.S. Attorney, El Paso, TX, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

FRANK MONTALVO, District Judge.

On this day, the Court considered "Defendant's Motion to Dismiss or, in the alternative, Motion for Summary Judgment" ("Motion to Dismiss") [Rec. No. 24], "Plaintiff's Response to Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" ("Response") [Rec. No. 29], "Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment" ("Reply") [Rec. No. 34], "Defendant's Objections to Plaintiff's Summary Judgment Evidence" [Rec. No. 31], "Plaintiff's Response to Defendant's Objections to Plaintiff's Summary Judgment Evidence" [Rec. No. 32], "Defendant's Supplemental Brief in Support of His Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" ("Defendant's Supplemental Brief') [Rec. No. 38], "Plaintiff's Supplemental Brief in Opposition to Defendant's Motion for Summary Judgment" [Rec. No. 39], and "Defendant's Reply to Plaintiff's Supplemental Brief in Opposition to Defendant's Motion for Summary Judgment" [Rec. No. 41]. After duly considering the motion, response, reply, additional briefings, summary judgment evidence, and applicable case law, the Court concludes it should GRANT "Defendant's Motion to Dismiss or, in the alternative, Motion for Summary Judgment" [Rec. No. 24] for the following reasons:

I. BACKGROUND

A. Factual Background

Plaintiff Cheryl Holmes ("Plaintiff') brings the instant action alleging employment discrimination by her employer, the Drug Enforcement Administration ("Defendant"). Plaintiff began her career with the DEA in 1975. In 1994, Plaintiff was promoted to Chief of Research and Analysis Section ("RAS Chief') at the El Paso Intelligence Center (EPIC).¹ Her promotion raised her pay classification from level GS-14 to level GS-15, the highest general service level a DEA employee may attain. Plaintiff was the first and only woman to ever hold her position or any comparable position at EPIC. When Plaintiff joined EPIC, it was operating under a charter from 1987. Shortly after her arrival in 1994, a new charter was implemented. The 1994 charter provided that Section Chief positions would be rotational, with an initial term of at least three years and two optional one-year extensions.

In June 1999, the EPIC Principals Accord ("Principals Accord") became effective, superceding the 1994 EPIC Charter and all EPIC Advisory Board Directives. The Principals Accord identifies the RAS Chief as a position which rotates among EPIC's principal participating agencies: the DEA, the Federal Bureau of Investigation ("FBI"), the United States Customs Service ("USCS"), the United States Coast Guard, and the Immigration and Naturalization Service ("INS"). Under the Principals Accord, an RAS Chief initially serves in his or her position for a two-year period, followed by a possible one-year extension. The Principal's Accord requires the removal of incumbents who have served in the same position for longer than three years as soon as is practical. Of the positions affected by the change, only Plaintiff's position of RAS Chief was immediately affected by the implementation of the Principals Accord. The agency whose turn it is to fill the RAS Chief position decides if it will take a rotational assignment for the position and then selects the person to fill it. However, because the Principals Accord controls the assignment and disposition of the section chief position, the DEA could not unilaterally attempt to impose different conditions or terms on the position.

In 1999, then-EPIC Director John Brown informed Plaintiff her position was rotational and her tour would be ending. He indicated to her that she should start looking for another job. Although Plaintiff was notified as early as 1999 that her position was rotational and the Principals Accord clearly stated that incumbents were to be rotated out as soon as possible, it was not until January of 2001 that Plaintiff was notified that INS had found someone to fill her position as RAS Chief. Then-EPIC Director William Ledwith ("Ledwith") informed her on Friday, January 26, 2001 that she had to be out of her office by Sunday, January 28, so that the new chief could take over her office on Monday. After being rotated out of the Chief position, Plaintiff did not have another job immediately available. When asked what she wanted to do, Plaintiff requested to be moved to the DEA's El Paso Field Division ("EPFD"). The Agency subsequently reassigned Plaintiff to a 120-day temporary detail with the EPFD. The Agency later agreed to extend Plaintiff's detail by an additional year.

Then, on or about June 26, 2001, Ledwith, called EPFD Special Agent in Charge Sandalio Gonzalez ("Gonzalez") and informed him that he wanted Plaintiff to return to EPIC. Gonzalez objected because he felt Plaintiff was doing important and valuable work at EPFD. Gonzalez also told Ledwith he believed that Plaintiff was being treated unfairly and that this might cause her to retire. Ledwith allegedly then told Gonzalez, "that's the idea."²

In March 2002, then-EPIC Director James Mavromatis ("Mavromatis") assigned Plaintiff to the position of Special Assistant to the Deputy Director of EPIC. Plaintiff describes the new position as:

This was a position that previously had not existed and apparently did not exist following Holmes' retirement. No request for personnel action was prepared for this reassignment and there was no notification of personnel action. There was no job description for the position nor were there performance standards. For the year Holmes held this position she received no performance evaluations. ... Mavromatis and the Director of Intelligence, Steven Casteel, knew that she was occupying a non-existent position.³

On October 16, 2002, the agency notified Plaintiff it was transferring her to DEA headquarters in Washington, D.C. Plaintiff submits that this transfer was retaliatory, discriminatory, and an attempt to force her retirement because this transfer occurred while her workers' compensation claims were gaining momentum. Plaintiff made plans to transfer from El Paso to Washington D.C. She was notified of her transfer via a cable on October 21, 2002, which instructed that she must report to Washington D.C. within 90 days of the cable's date. The cable also instructed Plaintiff not to incur any transfer expenses until she received her travel orders. Plaintiff did not receive her travel orders until January 23, 2003. She then requested an extension and received 45 more days to complete her move. Plaintiff subsequently wrote a memorandum to the Career Board rescinding her employment agreement and indicating that she intended to retire. When Plaintiff notified Mavromatis of her plans, Mavromatis told Plaintiff that she had to either be retired or at Headquarters by March 9, 2003 or she would be considered AWOL and face disciplinary and monetary repercussions.

B. Plaintiff's Claims

Plaintiff brings the instant action alleging Defendant violated her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (2000) ("Title VII") and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. In her Complaint, Plaintiff alleges Defendant discriminated against her based on sex (female) and age (over the age of 40); as well as retaliation. She also alleges that she was subjected to a hostile work environment. Finally, she alleges that she was constructively discharged when she retired in 2003.

C. Defendant's Motion

Defendant moves to dismiss Plaintiff s Complaint pursuant to Federal Rule of Civil Procedure 12(b)1 and 12(b)(6); and for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). In its Motion, Defendant contends Plaintiff has failed to exhaust her administrative remedies regarding two of her Agency Complaints. Because exhaustion of administrative remedies is a jurisdictional prerequisite for federal court review of Title VII and age discrimination claims, Defendant urges the Court to dismiss the Plaintiff's allegedly unexhausted claims pursuant to Rule 12(b)(1). Defendant further contends Plaintiff fails to set forth a prima facie case of discrimination, retaliation, hostile work environment and constructive discharge. Alternatively, Defendant asserts that, even assuming Plaintiff has established a prima facie case of discrimination and retaliation, Defendant has articulated legitimate and nondiscriminatory reasons for its decisions regarding Plaintiff's employment. Because Plaintiff has not carried his burden of production by presenting admissible or minimally persuasive evidence that Defendant's proffered reasons were a pretext for discrimination, Defendant contends it is accordingly entitled to summary judgment in this action.

II. STANDARDS FOR DISMISSAL

The Court now considers the legal standards governing Defendant's Motion.

A. Federal Rule of Civil Procedure 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") addresses the court's subject matter jurisdiction, derived from the Case or Controversy Clause of Article III of the United States Constitution. U.S. CONST. art. III.; Finley v. United States, 490 U.S. 545, 558, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989) (Stevens, J., dissenting) (majority result later...