Feloni v. Mayorkas

1

VICTORIA FELONI, Plaintiff, v. ALEJANDRO N. MAYORKAS, Secretary of the U.S. Department of Homeland Security, Defendant.

Civil Action No. 22-2094 (JEB)

United States District Court, District of Columbia

May 1, 2023

MEMORANDUM OPINION

JAMES E. BOASBERG, Chief Judge.

Plaintiff Victoria Feloni is a former employee of Immigration and Customs Enforcement who unsuccessfully sought to become a Deportation Officer. ICE requires that male and female trainees for that position meet the same physical-fitness standards, which Plaintiff could not attain. Feloni alleges that this policy has an adverse impact on women and that her eventual termination from ICE amounts to discrimination on the basis of sex. She also brings a disparatetreatment claim in this lawsuit, as well as counts for disability discrimination and retaliation. Defendant Department of Homeland Security, which houses ICE, now moves to dismiss arguing that the Court lacks subject-matter jurisdiction over certain of Plaintiff's claims and that the remainder are unsubstantiated. The Court will grant the Motion in part and deny it in part.

I. Background

The Court at this stage sets forth the facts as pled in the Complaint, assuming them to be true. See Sparrow v United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). Feloni joined ICE as a GS-07 Deportation Officer in the Burlington, Massachusetts, field office on April 14, 2019, which position was contingent on her completing a Physical Ability Assessment (PAA) at the Federal Law Enforcement Training Center (FLETC). See ECF No. 1 (Compl.), ¶¶ 11, 18. The PAA consists of two elements: (1) the Criterion Task Testing (CTT), which is a timed obstacle course; and (2) a 1.5-mile run, which trainees must complete in under 16 minutes and 30 seconds. Id., ¶ 12. Unlike many other law-enforcement agencies, ICE requires that male and female trainees meet the same fitness standards. Id.

Feloni took the PAA for the first time on May 8, 2019, but did not satisfy the CTT component. Id., ¶ 20. As a consequence, she alleges that she was entitled to perform remedial testing, which included a push-up component, although Feloni does not make clear how these remedial tests related to the PAA and CTT. Id., ¶ 11, 22. The first time she attempted the pushup component, her knee touched the ground while completing the exercises; the second time, a training instructor determined that Plaintiff had moved her left hand. Id., ¶¶ 22-23. Feloni alleges that this instructor, who proceeded to “scream at [her] in front of everyone,” singled her out because of her gender. Id., ¶ 23. Plaintiff thus failed the training program and departed FLETC on May 16, 2019. Id., ¶¶ 23-24.

After pandemic-related delays, Feloni returned to FLETC in September 2020 to attempt the PAA again. Id., ¶ 25. This time, presumably because of her prior failure to successfully finish the PAA, ICE required her to complete both prongs in an even shorter time period. Id., ¶ 26. Despite this more stringent standard, Plaintiff completed the CTT within the required time. Id., ¶ 27. She unfortunately finished the 1.5-mile run 6 seconds slower than the new required time of 14 minutes 30 seconds and sprained her ankle in the process. Id. Given her inability to pass, Feloni returned to the Burlington field office and was demoted to a GS-04 Mail Room Clerk position. Id., ¶¶ 29, 31.

Plaintiff responded by filing an Equal Employment Opportunity (EEO) class and individual complaint against the agency for gender and disability discrimination on January 7, 2021. Id., ¶ 34. Less than three weeks later, she received notice that Unit Chief Jack Bonner of the ICE Academy had proposed her termination for failure to complete the required ICE training program. Id., ¶ 35. Plaintiff, however, was not fired, id., ¶ 36, and she instead returned to FLETC for a third time in September 2021 to retry the PAA. Id. She again successfully completed the CTT but suffered a severe asthma attack during the 1.5-mile run and did not finish in the required time period. Id. The doctor who treated Feloni following the run allegedly informed her that students who experience asthma attacks are typically given the opportunity to reattempt the run a few days later. Id. Plaintiff, however, was not so permitted. Id. She received notice on January 21, 2022, that the agency sought her termination from ICE for failure to complete the PAA - a condition of her employment. Id., ¶ 37. Feloni was removed from federal service effective June 21, 2022. Id.

She thus filed this suit against the Secretary of the Department of Homeland Security the next month. See Compl. (filed July 15, 2022). Her Complaint contains four counts: disparate impact under Title VII (Count I); intentional discrimination also under Title VII (Count II); disability discrimination under the Rehabilitation Act (Count III); and retaliation under both laws (Count IV). Id. at 11-14. Defendant now moves to dismiss certain claims for lack of subjectmatter jurisdiction and others for failure to state a claim. See ECF No. 6-1 (MTD) at 1.

The Court notes that in her Opposition Plaintiff requests that this “case be stayed until discovery is complete” in a related class action filed by Feloni that is currently pending before the EEOC. See ECF No. 10 (Opp.) at 4. (She withdrew her individual EEO complaint on July 28, 2022. See ECF No. 6-10 (Notice of Withdrawal) at 1.) The outcome of that EEOC proceeding, however, has no bearing on the Court's disposition of the Motion to Dismiss here. As a result, the Court sees no reason entertain her request.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(1) permits dismissal of a complaint for lack of subject-matter jurisdiction. In general, courts must first address jurisdictional arguments before turning to the merits. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Co., 549 U.S. 422, 43031 (2007). A plaintiff bears the burden of proving that a court has subject-matter jurisdiction to hear her claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Fed. Practice & Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), a court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms., Inc., 402 F.3d at 1253; see also Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

Federal Rule of Civil Procedure 12(b)(6), on the other hand, permits dismissal of a complaint for failure to state a claim upon which relief may be granted. In evaluating such a motion to dismiss, courts must “treat the complaint's factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.'” Sparrow, 216 F.3d at 1113 (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “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, 678 (2009) (quoting Twombly, 550 U.S. at 570) - that is, the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

The Court need not accept as true “a legal conclusion couched as a factual allegation,” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)), nor “inferences . . . unsupported by the facts set out in the complaint.” Id. (quoting Kowal v. MCI Communications Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). And it may consider not only “the facts alleged in the complaint,” but also “any documents either attached to or incorporated in the complaint[,] and matters of which [courts] may take judicial notice.” Equal Emp. Opportunity Comm'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

III. Analysis

In seeking dismissal here, Defendant contends that: 1) Plaintiff has no standing to bring her disparate-impact claim; 2) she has not exhausted administrative remedies as to her disparateimpact and Rehabilitation Act claims; and 3) in any event, she has not adequately pled any of her four counts. See MTD at 1. The Court addresses each of these arguments in turn.

A. Standing

As a threshold matter, DHS moves to dismiss Count I on the ground that Feloni lacks standing to bring a disparate-impact claim under Title VII. See MTD at 14. “[T]he irreducible constitutional minimum of [Article III] standing contains three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “First, the plaintiff must have suffered an ‘injury in fact.'” Id. “Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (internal quotations and alterations omitted). “Third, it must be ‘likely,' . . . that the injury will be ...