Cureton v. Nielsen

304 F.Supp.3d 102

Katherine A. CURETON, Plaintiff,

v.Kirstjen M. NIELSEN,¹ Secretary, U.S. Department of Homeland Security, et al., Defendants.

Civil Action No. 17–0576 (RJL)

United States District Court, District of Columbia.

FILED MARCH 30, 2018

Katherine A. Cureton, North Bethesda, MD, pro se.

Damon William Taaffe, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge

Plaintiff, Katherine Cureton ("Cureton" or "plaintiff"), proceeding pro se , brought this action against defendants, Kirstjen Nielsen, Rhonda Brooks, Tammy Hudson, and Allen Blume (collectively referred to as "defendants"), alleging various instances of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Defendants moved to dismiss or, in the alternative, for summary judgment. Upon review of the pleadings, the relevant case law, and the entire record herein, defendants' motion is GRANTED and this case is DISMISSED with prejudice.

BACKGROUND

A. Plaintiff's 2013 EEO Activity

Beginning in October 2012, plaintiff worked at the Department of Homeland Security ("DHS") as a Student Trainee in its Pathways Internship Program assigned to the Office of the Chief Financial Officer ("OCFO"). Defs.' Mot. to Dismiss, or, in the Alternative, for Summ. J. [Dkt. # 9] ("Defs.' Mem.") 3; Compl. [Dkt. # 1] 4. Rhonda Brooks ("Brooks"), OCFO's Director of Administration & Logistics, was plaintiff's first-line supervisor. Defs.' Mem. 3. Allen Blume ("Blume") was the Director of OCFO's Budget Division, and Tammy Hudson ("Hudson") was a Records Officer in DHS's Office of the Chief Information Officer. Id.

In September 2013, plaintiff filed a formal EEO complaint (Case No. HS–HQ–02174–2013) with DHS's Office of Civil Rights and Civil Liberties ("CRCL"), alleging discrimination based on her age. Statement of Material Facts Not In Dispute ("SOMF") [Dkt. # 9] ¶ 1. She identified Brooks "as a responsible management official in the administrative complaint." Defs.' Mem. 4.

Plaintiff's employment ended on January 11, 2014, see SOMF ¶ 2, and plaintiff attributes her termination to "retaliation by DHS senior management officials within the Office of the Chief Financial Officer, Office of the Chief Information Officer and the Office of the Chief Human Capital Officer," Compl. 4. Specifically, plaintiff alleges that "Rhonda Brooks ended [her] Pathways appointment when [p]laintiff refused to resign [on] November 20, 2013." Id. Defendants counter that, "[b]ased on a review of the entire evidentiary record, CRCL fully implement[ed] the Equal Employment Opportunity Commission (EEOC) Administrative Judge's (AJ) decision finding no discrimination, as the final action in this matter." Defs.' Mem., Ex. 5 ("Final Order dated March 3, 2016") 1.

Plaintiff's 2013 EEO activity and termination were the subjects of a prior lawsuit. See generally Compl., Cureton v. Johnson , No. 16–cv–1270 (D.D.C. June 23, 2016). In that case, this Court ruled that plaintiff filed her lawsuit "on the 92^nd day after [her] receipt of DHS's final action," such that "the underlying claims, including the [age discrimination] and related wrongful termination claims, [were] untimely." Cureton v. Duke , 272 F.Supp.3d 56, 62 (D.D.C. 2017), appeal docketed , No. 17–5251 (D.C. Cir. Oct. 31, 2017).

B. Applications for Budget Analyst, Program Analyst, and FEMA Positions²

1. Budget Analyst

DHS issued Vacancy Announcement Number DHSHQ15–1380243–FO for a Budget Analyst position, and plaintiff submitted her application on April 21, 2015. See Compl. 4–5; Defs.' Mem., Ex. 2 ("Copeland Decl.") 280. On May 13, 2015, plaintiff "received an automated email from USA Staffing informing her that she had not been referred for consideration for [the] position[.]" SOMF ¶ 3; see Defs.' Mem., Ex. 3 ("Notice of Results"). After the announcement had closed, on May 15, 2015, plaintiff contacted Katherine Copeland ("Copeland"), a Human Resources Specialist, to request consideration for the position under Schedule A hiring authority. SOMF ¶ 4; Copeland Decl. 280–81; Defs.' Mem., Ex. 4; Compl. 5. Although plaintiff submitted the requisite Schedule A documentation, Copeland determined that plaintiff "would not be considered under the announcement because the proper documentation had not been submitted by the closing date of the announcement." Copeland Decl. 281. Nevertheless, Copeland "forwarded [plaintiff's application] to the selecting official for consideration under the Schedule A hiring authority for any vacancies including ... the budget analyst position." Id.

2. Program Analyst

DHS issued Vacancy Announcement Number DHSHQ15–1391613–FO for a Program Analyst, and plaintiff applied for the position in May 2015. Defs.' Mem., Ex. 6 ("Cureton Decl.") 115; see Compl. 5. On June 12, 2015, plaintiff contacted Donald Jackson, a Program Specialist at the OCFO, by email asking whether she would be granted an interview. See Defs.' Mem., Ex. 8 ("Jackson Decl.") 422–23. Mr. Jackson did not respond. See id.

3. FEMA

On June 25, 2015, "[p]laintiff attended a hiring event sponsored by FEMA," the Federal Emergency Management Administration, "for Schedule A applicants." Compl. 5; Defs.' Mem., Ex. 9 ("Addendum to Cureton Decl.") 121; SOMF ¶ 9. Eric Leckey ("Leckey"), FEMA's Acting Chief Administrative Officer, interviewed plaintiff, who was to be considered for the position of "Government Information Specialist, GS12 functioning as a Records Management Specialist within the Privacy Office." SOMF ¶ 10; Addendum to Cureton Decl. 121. By e-mail dated June 29, 2015, Mr. Leckey requested plaintiff's references. Defs.' Mem., Ex. 10.

C. Plaintiff's 2015 EEO Activity

Plaintiff's initial contact with an EEO Counselor with the CRCL took place on July 7, 2015, see Compl., Ex. 2 ("Final Order dated November 29, 2016") 1, and her initial interview took place on July 13, 2015, see Defs.' Mem., Ex. 18 ("EEO Counselor's Report, HS–HQ–24268–2015") 48. Plaintiff filed her formal complaint on August 2, 2015, alleging discrimination based upon physical disability and reprisal for her 2013 EEO activity. See Defs.' Mem. Ex. 1 ("Individual Complaint of Employment Discrimination, Case No. HS–HQ–24268–2015") 33–34. The first two discrimination claims pertained to plaintiff's applications for the Budget Analyst and Program Analyst positions:

1. On June 2, 2015, you were informed that you were not being considered for selection for the Budget Analyst position, advertised under Vacancy Announcement Number DHSHQ15–1380243–FO, and that your application was being forwarded to the Human Resources liaison for consideration under "Schedule A" authority. You further stated that you believe your former supervisor, Rhonda Brooks, has interfered with your ability to be interviewed and considered for this position.

2. On June 9, 2015, you were informed that your application for the Program Analyst position, advertised under Vacancy Announcement Number DHSHQ15–1391613–FO, was forwarded to the Human Resources liaison for consideration under "Schedule A" authority. You further stated that you believe your former supervisor, Rhonda Brooks, has interfered with your ability to be interviewed and considered for this position.

Compl., Ex. 1 ("Statement of Accepted Claim dated December 30, 2015") 1–2.

On October 19, 2015, plaintiff amended her complaint to add another claim:

5. On an unspecified date, you learned that you were not selected for a position at a hiring event on June 25, 2015, after you interviewed for the position and provided the hiring official with your former DHS supervisor's contact information.

Id. at 2; see Defs.' Mem., Ex. 16 at 72.³ On January 29, 2016, EEO forwarded plaintiff a copy of the Investigative File, and on February 22, 2016, plaintiff requested a hearing before an administrative law judge ("ALJ"). See Final Order dated November 29, 2016 at 2. DHS/CRCL issued its final decision on November 29, 2016, citing the following reasons for its decision:

On October 20, 2016, an AJ from EEOC's Washington Field Office issued a decision dismissing the complaint from the hearing process. With the decision, the AJ included an October 14, 2016 email from [plaintiff] in which she wrote that she "will not move forward with the administrative process." The October 14th email contained a forwarded email that [plaintiff] had sent earlier on the same day to HQ EEO, stating, "Notice of intent to file in US District Court for the District of Columbia." After careful review, this Office finds that [plaintiff] clearly wished to withdraw her entire complaint from the administrative process, and not just the hearing process. As such, this Office fully implements the AJ's dismissal decision, and considers this case withdrawn with prejudice from the administrative EEO process.

Id. at 3.

Plaintiff filed the instant complaint on February 27, 2017, bringing claims under Title VII of the Civil Rights Act of 1964, as amended, see 42 U.S.C. § 2000e.⁴

LEGAL STANDARD

A. Dismissal under Rule 12(b)(6)

"A document filed pro se is to be liberally construed, and a pro se complaint, however unartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (citations and internal quotation marks omitted). This Court must grant a motion to dismiss under Rule 12(b)(6) if the allegations in the complaint do not "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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible if the complaint provides "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct...