Kittner v. Gates

708 F.Supp.2d 47

Stacey A. KITTNER, Plaintiff,v.Robert M. GATES, et al., Defendants.

Civil Action No. 09-1245 (GK).

United States District Court District of Columbia.

April 28, 2010.

Janine M. Brookner, Law Office of Janine M. Brookner, Washington, DC, Kenneth Scott Nankin, Nankin & Verma PLLC, Bethesda, MD, for Plaintiff.

Marina Utgoff Braswell, U.S. Attorneys Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiff Stacey A. Kittner brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., against Defendant Robert M. Gates in his official capacity as Secretary of Defense. Kittner also alleges violations of her Fifth Amendment rights under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against several Department of Defense employees sued in their individual capacities. The individually sued Defendants include Deborah Monroe, Deputy Chief, Directorate for Analysis, Office of Counter-Proliferation Technology (“CPT”), Defense Intelligence Agency (“DIA”); Col. William Russel Strosnider, Chief, Operating Base National Capitol Region (“OBNCR”), DIA; Capt. William S. Gieckel, Acting Chief, OBNCR; Scott Darren LaCoss, Chief of Controlled Operations, OBNCR; Brad Ahlskog, Division Chief, CPT; and Claudia Caslow, Korean Team Chief, CPT.

This matter is presently before the Court on Defendants' Motion to Dismiss in Part [Dkt. No. 8] pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6) ¹ and Defendants' Motion to Stay Discovery [Dkt. No. 21]. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, the Motion to Dismiss in Part is granted, and the Motion to Stay Discovery is denied as moot.

I. BACKGROUND²A. Facts

1. Plaintiff's Allegations of Harassment, Discrimination, and Retaliation

Kittner was hired by the DIA in 2004 as an Intelligence Officer specializing in counter-proliferation issues.³ Pl.'s Opp'n at 2 n. 3 [Dkt. No. 13]. In 2005, she was assigned to a three-year rotation in the DIA's OBNCR, which is located in Maryland. There, Kittner served as a nuclear Subject Matter Expert, providing scientific and technical expertise and support, primarily to OBNCR Detachment 420. Am. Compl. ¶ 14 [Dkt. No. 2].

In November 2006, Kittner traveled to the Asia-Pacific region on a five-day, two-person temporary assignment. The supervisor for the operation was Major “Erich J.K.” (“Maj.K”), a Controlled Operations Officer from the DIA Human Intelligence Office (“DIA/HUMINT”) working in Detachment 420 Id. ¶ 17. Kittner and Maj. K stayed in the same hotel, on Maj. K's instructions, and she was given a key to Maj. K's suite. Id. ¶ 18.

Operational meetings were held in Maj. K's suite on November 8, 9, and 10, 2006. Kittner was required to remain in the suite with Maj. K after the meetings to finish work, as she needed to use a computer with encryption software located there.

On the first night of the trip, while alone with Maj. K in his hotel suite after finishing work, Kittner alleges that Maj. K made sexual advances toward her, which she responded to by repeatedly telling him “no”. Id. at 23. Kittner further alleges that Maj. K drugged the wine that he poured for her that night, which caused her to lose consciousness, and then raped her. Id. at ¶ 27. On each of the following two nights, Maj. K again made advances, which Plaintiff successfully rejected. Id. at ¶¶ 28-29. After returning to the United States, Maj. K telephoned Kittner numerous times from November 11 to 20, 2006, inviting her to dinner and suggesting they meet to talk outside the office. She declined to meet him. Id. at ¶ 30.

The following week of November 13, 2006, Plaintiff reported the incident to three female CPT managers at DIA headquarters, including Defendant Deborah Monroe, Kittner's reviewing officer at OBNCR and her second-level supervisor. She also reported the incident to Defendant William Russell Strosnider, her first-level supervisor, on Friday, November 17, 2006. Strosnider discouraged Kittner from going to the DIA's Equal Opportunity (“EO”) office, and suggested that he could conduct a “Commander's Inquiry” instead, which would “keep the matter within DIA/HUMINT.” Id. at ¶ 33. He also instructed Kittner to continue working with Maj. K to finish the project. Despite what he told Kittner, Strosnider never conducted such an Inquiry, and in fact lacked the authority to do so. Id. at n. 4.

Later that month, Kittner also contacted the DIA's EO office to report Maj. K's conduct during the trip. On December 12, 2006, she submitted a memorandum to the EO office describing Maj. K's behavior, and gave a copy to Defendant Strosnider.

After she reported Maj. K's misconduct, Kittner alleges that Defendants engaged in a number of retaliatory and discriminatory acts. From November 2006 onward, a documented history of positive comments and praise for her work ended, and was replaced with continual criticism. Id. at ¶¶ 16, 45. She began to be treated in an unprofessional manner, including being yelled at by Defendant LaCoss and other supervisors and spoken to in “a demeaning tone” that made co-workers uncomfortable. See Id. at ¶¶ 65, 79-80. She also found herself no longer invited to meetings she had been invited to before, and reprimanded for attending a panel to which she had been invited. Id. at ¶ 59.

Kittner also received negative comments from her supervisors relating to the incident with Maj. K. For instance, on November 20, 2006, and again later that same month, Defendant Strosnider told her that she was unsuitable for working in operations because she should have been able to prevent Maj. K from making advances. In January 2007, Strosnider excused Maj. K's behavior by telling Kittner that Maj. K “was just being a guy,” and warned her “against trying to advance an agenda by tying it to her complaint against Maj. K.” Id. at ¶ 35. On January 7, 2007, Defendant Monroe told Kittner that management had checked up on her, that she was immature for her age, and that she should not be allowed to work in operations.

In March 2007, Defendant Scott Darren LaCoss, OBNCR Chief of Controlled Operations and Plaintiff's first-level supervisor, prohibited Kittner from going on any temporary operational assignments related to Detachment 420 or to continue supporting any Controlled Operation. When Kittner said that she was supporting six Controlled Operations, LaCoss, along with Defendant Strosnider, ordered that two managers be present at all her meetings. Plaintiff alleges that this directive singled out and humiliated her, as no male officer was required to be escorted by his supervisors to meetings.

Plaintiff contends that after Maj. K was removed from DIA in April 2007, the retaliation “increased dramatically.” Id. at ¶ 52. On April 27, 2007, Kittner received a counseling letter which stated that she had given inappropriate guidance on an issue outside her area of responsibility, and that she had been counseled multiple times about providing inappropriate guidance. On June 15, 2007, she received a reprimand in person, and, on June 24, 2007, she was given a list of wrongdoings. In these, and in later reprimands, supervisors criticized Plaintiff for deterioration in her job performance and a tendency to exceed the scope of her job duties. She denies that the reprimands were consistent with the facts, and alleges they were actually given in retaliation for reporting Maj. K's misconduct. Id. at ¶ 56.

Between mid-April and late August 2007, Kittner was told by supervising officers that she must obtain written permission for any work in support of Controlled Operations. This requirement also singled her out and humiliated her, as no other Subject Matter Expert was required to obtain such written permission. Id. at ¶ 61. Additionally, she received a written reprimand on August 2, 2007 for asking Maj. K's successor for such written permission, which she alleges unfairly penalized her for merely following the orders she had received. Id. at ¶ 62.

Next, Defendant Geickel told Kittner in November 2007 that she was to cease communication with Detachment 420, and that she was not allowed to accompany Maj. K's replacement on a temporary operations assignment on which he had asked her to accompany him. Id. at ¶ 67. On December 13, 2007, she received a Letter of Reprimand signed by Defendant Gieckel, was removed from her position, and was transferred to a less desirable job in CPT. Id. at ¶ 75. Defendants Claudia Caslow and Brad Ahlskog, respectively, became her new reviewing officer and second-level supervisor. Defendant Monroe also remained in Kittner's chain of command in her new position.

In her new position, Kittner has continued to experience harassment, retaliation, and discrimination. Id. at ¶ 78. She was prohibited from interacting with colleagues in the intelligence community without prior permission, excluded from meetings, and denied training. Id. Additionally, Ahlskog announced that employees must gain authorization before interacting with Kittner, and that it should be reported to him if Kittner approached anyone in the office. Id. at ¶ 80.

Finally, Kittner began to receive monthly reprimands from her supervisors, including two Memoranda of Counseling dated August 18 and September 11, 2008, a Letter of Reprimand on October 9, 2008, and two emails on November 9 and December 23, 2008. These reprimands cited her for various instances of professional misconduct including circumventing her superiors, ignoring and failing to follow directions, and complaining about being underutilized. Id. at ¶¶ 84-85, 88-91 & 93-95.

2. Equal Opportunity Office Action

Throughout the course of these events, Kittner met with EO office counselors several times to report her treatment. In addition to her initial 2006 contact, she met with a counselor in...