Magowan v. Lowery, Civil Action No. 15-917 (BAH)

• Decision Date: 29 February 2016
• Docket Number: Civil Action No. 15-917 (BAH)
• Citation: 166 F.Supp.3d 39
• Court: U.S. District Court — District of Columbia
• Parties: Maria De La Cruz Magowan, Plaintiff, v. Brigid D. Lowery, Defendant.

166 F.Supp.3d 39

Maria De La Cruz Magowan, Plaintiff,

v.Brigid D. Lowery, Defendant.

Civil Action No. 15-917 (BAH)

United States District Court, District of Columbia.

Signed February 29, 2016

Maria De La Cruz Magowan, Bethesda, MD, pro se.

Jodi George, Stephanie Nicole Liaw, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL

, United States District Judge

The plaintiff, Maria De La Cruz Magowan, proceeding pro se , initiated this action on June 3, 2015, in the Superior Court for the District of Columbia (“D.C. Superior Court”) against the defendant Brigid D. Lowery, who is the plaintiff's current federal workplace supervisor at the United States Environmental Protection Agency (“EPA”), alleging that the defendant has verbally and physically harassed and abused her for over five years, see Compl., Superior Court Record (“SCR”) at 29, ECF No. 6-1, and requesting an order prohibiting the defendant from having “any kind of contact” with her, as well as $300,000 in damages, Mot. for PI (“Pl.'s Sup. Ct. PI Mot.”) (emphasis in original), SCR at 25; Mot. for TRO (“Pl.'s Sup. Ct. TRO Mot.”) (emphasis in original), SCR at 27; see also Compl. Pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2)

,¹ upon certification by the United States Attorney's Office for the District of Columbia that the defendant was acting within the scope of her employment as a United States employee at the time of the incidents alleged in the complaint, the case was removed to this Court and the United States was substituted as the defendant. Notice of Removal of a Civil Action (“Not. of Removal”), ECF No. 1; id. , Ex. 2 (“Certification”), ECF No. 1-2. On July 27, 2015, the plaintiff's requests to remand the case to Superior Court and for “immediate protection from Brigid D. Lowery” were denied. Order (“July 27, 2015 Order”), ECF No. 10. Pending before the Court is the defendant's Motion to Dismiss Plaintiff's Complaint Against Brigid Lowery and the United States and Opposition to Plaintiff's Motion for Temporary Restraining Order (“Def.'s Mot.”), ECF No. 4. For the reasons set forth below, the motion is granted.

I. BACKGROUND

At the outset, the Court notes that the record on this motion to dismiss is fairly extensive. The plaintiff has submitted numerous documents with her various filings, including 173-pages of exhibits attached to her motion for remand and renewed request for “immediate protection,” see Pl.'s Mot. Remand Case Sup. Ct. D.C. Civil Division and/or Req. Ct. Order U.S. EPA Provide Immediate Protection Pl. From Def. Brigid D. Lowery & Pay Pl. Damages (“Pl.'s Opp'n”), Exs. A–X, ECF No. 8-1; an additional ten pages of exhibits attached to her response to an order of the Court, see Pl.'s Notification That Her Previous Resp., Filing ECF No. 8 Was Not Sufficient & Pl.'s Intent File Further Arguments Resp. Def.'s Mot. Dismiss Case, ECF No. 4, & Other Opp'ns Ordered by Ct. (“Pl.'s Suppl. Opp'n”), Exs. A–C, ECF No. 11; and an additional thirty pages of exhibits attached to a supplemental reply, see Pl.'s Reply Def.'s Suppl. Reply Supp. Mot. Dismiss Pl.'s Compl. Against Brigid Lowery & Opp'n Pl.'s Mot. TRO (“Pl.'s Reply”), Exs. A–B, ECF No. 13. While generally motions to dismiss for failure to state a claim are resolved based on consideration only of “the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which we may take judicial notice,” Mpoy v. Rhee , 758 F.3d 285, 291 n. 1 (D.C.Cir.2014)

(quoting EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C.Cir.1997) ), when, as here, the plaintiff is proceeding pro se , any additional exhibits, “including those in ... opposition to ... [a defendant's] motion to dismiss,” must be considered in construing the sufficiency of the plaintiff's claims, Brown v. Whole Foods Mkt. Grp., Inc. , 789 F.3d 146, 152 (D.C.Cir.2015) ; see also id. (reversing dismissal order where district court did not consider “the facts alleged in all of [the plaintiff's] pleadings” (emphasis in original)). The relevant facts distilled from this record are summarized below before turning to the procedural history of this case.

A. Factual Background

The plaintiff “is a 61 year old Hispanic Economist, with 40 years of professional experience in her field.” Pl.'s Opp'n at 3, ECF No. 8. A native of Bolivia, the plaintiff became a United States citizen in August 1986 and began working for the EPA in 1990. Id. ; id. Ex. A (“Pl.'s Resume”) at 1–2. In 1999, she began working in the EPA's Office of Solid Waste and Emergency Response (“OSWER”), where she continues to work as a federal employee. Pl.'s Opp'n at 3; Pl.'s Resume at 1.

The plaintiff avers that she is a “whistleblower, who made a Disclosure to the Office of the Inspector General ( [“]OIG[”] ) around April 2003.” Pl.'s Opp'n at 3. Specifically, the plaintiff claims that, in April 2003, she disclosed irregularities in contracts of OWSER's Office of Underground Storage Tanks (“OUST”) to the OIG, which issued a report a year later confirming the plaintiff's assertions. Id. at 4; see also id. Ex. B. at 1–2 (March 31, 2004 OIG report citing receipt of a “hotline complaint” regarding OUST's “financial management” prompting “a review to determine the validity of the allegations” which “found OUST had inappropriately used and inefficiently managed contract funds”). As a result, the plaintiff alleges that she “suffer [ed] immediate retaliation in OSWER that continued for four” years until, in April 2007, she reached a settlement agreement with the EPA. Id. at 4. Shortly after the settlement, however, in July 2007, the plaintiff asserts that the agency began a sexual harassment investigation related to her previous whistleblowing. Id. ; see also id. Ex. C (related attorney correspondence). The plaintiff alleges that, “[a]t that point, the retaliation re-started and continues to this day.” Id. at 5 (emphasis omitted).

In December 2007, the plaintiff accepted “a detail that later became permanent to do economic analysis” in OWSER's Office of the Center of Program Analysis (“OCPA”), headed by Director Edward Chu. Id. When Chu left his position a year later, in December 2008, the defendant Brigid D. Lowery replaced him and became the plaintiff's supervisor. Id. The defendant currently remains the plaintiff's supervisor. See Compl.

The plaintiff alleges that “since 2010,” the defendant “has been bullying [her] in all sorts of manners, including physical,” Compl., and claims that she “fears for her safety and her life,” Pl.'s Opp'n at 3; see also Compl. The plaintiff alleges three main incidents with her supervisor underlying her claims of retaliatory and discriminatory conduct. These incidents are described below.

1. June or July 2010 Telephone-Throwing Incident

The earliest incident allegedly occurred in June or July 2010, at a morning meeting in the defendant's office, when the defendant “violently threw” a telephone at the plaintiff, yelled at the plaintiff and called her “so stupid.” Pl.'s Opp'n at 5; see also Compl. A few days later, the plaintiff met with a union representative, Theresa Fleming-Blue, about the alleged incident. Pl.'s Opp'n at 6; id. Ex. D, Decl. of Theresa Fleming-Blue (July 9, 2015) (“Fleming-Blue Decl.”) ¶ 2. Fleming-Blue states that she then met with the defendant, who “denied that she had committed these acts.” Fleming-Blue Decl. ¶ 6.

The plaintiff claims that the defendant retaliated against her in three ways for reporting the phone-throwing incident to the union. First, the plaintiff alleges that the defendant prevented the plaintiff from obtaining a promotion by rewriting the plaintiff's job classification to eliminate the plaintiff's GS-15 promotion potential. Pl.'s Opp'n at 7; see also id. Ex. O at 16 (“Notification of Personnel Action” indicating that, on May 13, 2007 a “Human Resources Specialist” changed the plaintiff's “Position Title” from “Lead Program Analyst” to “Program Analyst” “at the full performance level”). The plaintiff also alleges that the defendant spoke ill of the plaintiff, thereby preventing the plaintiff from obtaining a GS-15 level position in the EPA “or any other place in the Government,” even though the plaintiff was “certified as ‘Best Qualified’ and ... interviewed” for many positions. Id. at 7; see also id. Ex. H (sixteen “thank you” emails sent by the plaintiff to various interviewers on various dates between February 13, 2006 and November 30, 2010). According to the plaintiff, even though “[p]otential employers ... seemed very enthusiastic with [her] qualifications after interviewing and talking to [her],” the employers then “retracted their decisions” upon speaking with the defendant. Id. at 7.

Relatedly, the plaintiff makes a blanket assertion that the EPA has prevented her from “hold[ing] a GS-15 grade” and becoming a supervisor, and, by extension, denying her “any right to work in a safe environment,” because “according to OWSER's own statistics, Plaintiff does not have the one ‘skill’ needed to become a GS-15: Being White.” Id. at 12 (emphasis omitted). To support this assertion, the plaintiff provides what appears to be an EPA booklet or presentation titled, “OWSER DEMOGRAPHICS Fiscal Year 2013,” which contains demographic data about employee promotions and indicates that only white employees received grade 15 promotions between 2010 and 2013. See id. Ex. U at 1, 10. The plaintiff further explains that “[i]n OWSER the very few minorities holding a GS-15 level came already with that level or earned that level before or around a decade ago.” Id. at 12; see also id. (“In Plaintiff's work place (OWSER) a Supervisor must hold a GS-15 grade, but unfortunately, according to statistics provided by OSWER only white employees have been allowed to be promoted to the GS-15 level at least since FY 2010.”).

Second, the plaintiff alleges that the defendant unreasonably and wrongfully denied her sick leave....