Beberman v. U.S. State Dep't & Sec'y of State Rex Tillerson

JULIE A. BEBERMAN, Plaintiff, v. U.S. STATE DEPARTMENT and SECRETARY OF STATE REX TILLERSON,in his official capacity, Defendants.

Civ. No. 17-48

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

August 9, 2018

OPINION

THOMPSON, U.S.D.J.¹

INTRODUCTION

This matter has come before the Court upon the Motion to Dismiss Plaintiff's Complaint by Defendants United States Department of State and Secretary of State Rex Tillerson, in his official capacity, (collectively "Defendants"). (ECF No. 9.) Plaintiff Julie Beberman ("Plaintiff") opposes (ECF No. 14) and has also filed a motion for consolidation (ECF No. 12). Defendants oppose Plaintiff's Motion. (ECF No. 13.) The Court addresses these Motions together and has decided them upon the written submissions of the parties, without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons stated below, Defendants' Motion to Dismiss is granted in part and denied in part, and Plaintiff's Motion to Consolidate is denied.

BACKGROUND

This case arises out of Plaintiff's employment as a Foreign Service Officer within the State Department and the Department's alleged discrimination against Plaintiff, which she claimscaused her to be denied tenure. Plaintiff has two additional actions in this District related to her employment with the State Department, Civil Action Numbers 14-20 and 17-61.

Plaintiff's Complaint pleads the following four Counts: (1) Discriminatory Denial of Tenure, (3) Visa Office's Discriminatory Animus Proximately Causing Tenure Denial, (4) Discriminatory Conduct of the Young Diplomat Network Proximately Causing Harm and Proximately Causing Tenure Denial, and (5) Retaliatory and Discriminatory Denial of Opportunity to Serve as Backup Consular Officer Causing Harm, Including Proximately Causing Tenure Denial. (See generally Compl., ECF No. 1.)² Her claims are brought pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 28 U.S.C. § 633a. (Id. ¶ 1.)

Plaintiff was commissioned as a Foreign Service Officer with the State Department with a limited five-year career appointment that would expire if not granted tenure. (Id. ¶¶ 21-22.) Plaintiff served her first assignment at Embassy Caracas, Venezuela between October 2011 and July 2012. (Id. ¶¶ 23, 25.) During her tenure at Embassy Caracas, Plaintiff was reviewed by Deputy Visa Chief Shane Myers, Consul General Dale Rumbarger, and Visa Chief Eric Cohan, who provided two Employee Evaluation Reports ("EERs"). (Id. ¶¶ 25-27.) Plaintiff alleges that Myers and Rumbarger discriminated against Beberman as an older woman by including discriminatory comments and falsely negative reviews in her EERs, minimizing her accomplishments, not explaining the basis for their criticism, treating her less favorably than similarly situated younger male colleagues, and not providing her the same training as younger male and female colleagues. (Id. ¶¶ 32-35, 39, 41-42, 67, 105.) Plaintiff claims that Myers favored younger male colleagues, including Tom Hwei (id. ¶¶ 46-48) and Royce Branch, whoMyers and Rumbarger recommended for tenure (id. ¶¶ 50-53). Plaintiff also claims that Myers told her she had a lower-than-average refusal rate, but never mentioned it in her EERs (id. ¶¶ 60-62), and she received an award during that time for her contributions to the Embassy (id. ¶ 63). Additionally, Cohan allegedly subjected Plaintiff and another older female colleague to higher scrutiny (id. ¶¶ 71-76), denied her access to the consular computer system (id. ¶¶ 80-81), accused her of unsupported Visa Lookout Accountability ("VLA") violations but denied her VLA training until the end of her tenure (id. ¶¶ 82, 83-85), treated her differently than younger male colleague David Urbia (id. ¶¶ 87-88), generally refused her additional work opportunities (id. ¶¶ 89-93), and publicly humiliated her (id. ¶ 94). Plaintiff also asserts that she was not allowed to complete her Caracas assignment, her Embassy Port of Prince, Haiti assignment was cancelled, and she was instead sent to Washington, D.C. (Id. ¶ 107.) Plaintiff asserts that the Summer 2015 Commissioning Tenure Board ("CTB") and Winter 2015 CTB relied on the negative EER comments and her shortened assignment at Embassy Caracas in denying her tenure; thus the discriminatory conduct proximately caused her denial of tenure. (Id. ¶¶ 43, 53-56, 109, 115-18.)

Plaintiff also describes the conduct of remote employee David Franz, who was allegedly influenced by his wife, Deputy Chief of Mission to Embassy Caracas, and her views that were formed by Myers, Cohan, and Rubmarger. (Id. ¶¶ 122-24.) He allegedly failed to provide VLA training, ignored his conflict of interest, infused himself in the decision-making process regarding VLA violations, and treated older male colleague John Elliot differently than Plaintiff. (Id. ¶¶ 135-32.) Plaintiff then received a one-day disciplinary suspension as a result of this discriminatory animus, which she claims also had bearing on her tenure decision. (Id. ¶¶ 138-39.)

Plaintiff describes that when she returned to Washington, she was invited to join the Young Diplomats Network ("YDiN"), accepted the invitation, and agreed to serve as AF Coordinator for the African Bureau. (Id. ¶¶ 142, 143.) Plaintiff disagreed with other members about the official status of the group and whether State Department approval was necessary for an event. (Id. ¶¶ 150-53.) She was allegedly advised to quit if she could not agree that the group was an official entity, and she claims that another member tried to push her out of her AF Coordinator role (Id. ¶¶ 155-56, 165-66.) Plaintiff made her own inquiries regarding YDiN's status, after which members ceased communications with her. (Id. ¶¶ 160-61, 163-65.) Plaintiff advised YDiN members that she was considering bringing an age discrimination claim, and she now asserts that the group was hostile to her based on her age and discriminated against her systematically, as the Career Development Office allegedly condoned said conduct. (Id. ¶¶ 178-84.) She asserts that this too proximately caused her to be denied tenure because her personnel file does not reference her participation in YDiN. (Id. ¶ 185.)

Finally, Plaintiff asserts that then-Deputy Assistant Secretary, Marcia Bernicat, held a retaliatory animus against her and had conflicts of interest, and communicated negative information about Plaintiff that was then shared with the Bureau of Consular Affairs, causing her to be denied the opportunity to serve as backup consular at Embassy Malabo and chilling her participation in ADEA activities. (Id. ¶¶ 191-96, 198.) She alleges that this chain of events created a negative impression of her with Embassy Malabo and thus during her CTB review. (Id. ¶¶ 206-08.)

On February 16, 2016, Plaintiff was denied tenure by the Winter 2015 CTB. (Id. ¶ 11.) She then filed a formal complaint with the State Department Office of Civil Rights ("OCR") on August 9, 2016. (Id. ¶ 14.) Plaintiff claimed that she was denied tenure based on the "age, sex,race, national origin, color, sexual orientation, disability discriminatory animus of the raters and reviewers who prepared my employee evaluation reports ('EERs')"; "sex discriminatory animus of the personnel in the Visa Office"; and "the age discriminatory animus of the leaders of the [YDiN]." (Id. ¶ 15.) Plaintiff received a notice of the right to file on April 19, 2017 and brought her motion to file a sixth amended complaint in Civ. No. 14-20 with these claims on May 9, 2017. (Id. ¶¶ 16-17.) The Court denied Plaintiff leave to amend with respect to these claims. (Id. ¶¶ 18-90; ECF Nos. 130, 135 (denying reconsideration of prior opinion).)

On October 16, 2017, Plaintiff filed her Complaint in this action, pro se.³ On January 22, 2018 Defendants moved to dismiss. (ECF No. 9.) On February 1, 2018, Plaintiff moved to consolidate this case with Civ. No. 14-20. (ECF No. 12.) Defendants opposed Plaintiff's motion on February 8, 2018 (ECF No. 13), and Plaintiff opposed Defendants' motion on February 12, 2018 (ECF No. 14). Plaintiff replied to her own Motion. (ECF No. 15.) Both Motions are presently before the Court.

LEGAL STANDARD

I. Motion to Dismiss

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 factualallegations 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 types of 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...