Laughlin v. Holder

923 F.Supp.2d 204

Laura M. LAUGHLIN, Plaintiff,

v.Eric H. HOLDER, Jr., Attorney General, Defendant.

Civil Action No. 11–1869 (JDB).

United States District Court, District of Columbia.

Feb. 14, 2013.

David M. Wachtel, Lynne A. Bernabei, Bernabei & Wachtel, PLLC, Washington, DC, for Plaintiff.

Laurie J. Weinstein, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiff Laura M. Laughlin has sued defendant Eric H. Holder, Jr., in his capacity as Attorney General, for gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and age discrimination under the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Defendant has moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) on the grounds of failure to exhaust administrative remedies and failure to state a claim upon which relief may be granted. For the following reasons, the Court will grant in part and deny in part defendant's motion.

BACKGROUND

I. Factual Background

Laughlin is the Special Agent–in–Charge (“SAC”) of the Seattle Division of the FBI, a position she has held since March 1, 2005. Compl. [ECF 1] ¶¶ 1, 6. She has worked for the FBI since 1985. Id. ¶ 11.

In 1997, Laughlin filed an Equal Employment Opportunity (“EEO”) complaint of gender discrimination regarding the conduct of Jeffrey Lampinski, then-Inspector-in-Charge of the FBI's Campaign Financing Task Force. Id. ¶¶ 13, 15. Laughlin settled this EEO complaint in 2003. Id. ¶ 19. In the summer of 2004, about six months after the settlement of her EEO complaint, Laughlin applied but was not selected for two promotions, to SAC of the Philadelphia Division and SAC of the Los Angeles Division. Id. ¶¶ 43–44, 46–47.

In 2005, Laughlin was promoted to SAC of the Seattle Division. See id. ¶ 6. Shortly after she began serving in this position, Laughlin reviewed the Seattle Division's ongoing investigation of a major murder, designated Major Case 186. Id. ¶ 20. During her review of the investigation, Laughlin observed what she believed to be unlawful race- and sex-based discrimination by two white male Special Agents against a Supervisory Special Agent (“SSA”) on Major Case 186. Id. ¶¶ 21–23. As a result, Laughlin removed the two Special Agents from the case and reassigned them to other duties. Id. ¶ 24. She reported the discrimination to FBI's senior leadership, but the agency did not follow up on her complaints. Id. ¶ 28–29.

Laughlin's decision to reassign the two Special Agents was strongly opposed by a Special Assistant U.S. Attorney (“SAUSA”) on the case. Id. ¶ 25. ¹ In June 2005, the FBI reassigned the management of Major Case 186 from plaintiff, as SAC of the Seattle Division, to the male SAC of the Portland Division, despite the fact that the murder being investigated had happened in Seattle. Id. ¶ 96. In addition, the two Special Agents that Laughlin had reassigned were put back on the case. Id. ¶ 97.

Laughlin alleges that her management of the Seattle Division was impeded by the reassignment of Major Case 186 to the Portland Division and by the following personnel actions: (1) the FBI delayed approval of Laughlin's request for a Border Liaison Officer for the Seattle Division for more than four years, from June 2005 to July 2009; (2) the FBI “tabled” Laughlin's job posting for the newly vacated position of supervisor of Major Case 186 in September 2009; and (3) the FBI refused Laughlin's request for a replacement Media Representative when the Seattle Division's Media Representative retired in December 2009. Id. ¶¶ 88, 92–93, 100, 116, 121–23, 125, 129–32, 135.

In December 2006, an FBI inspection team investigated the Seattle Division for the second time that year.²Id. ¶ 101. The performance report based on the inspection generally praised Laughlin's job performance but listed two management deficiencies: first, that Laughlin had not consulted the SAUSA before removing the two Special Agents from Major Case 186, and second, that the Seattle Division lacked “a strong and effective executive level media program.” Id. ¶¶ 105.

Laughlin did not receive a bonus in 2006, 2007, or 2008, even though her performance ratings were equal to or better than the performance ratings of other SACs who received bonuses and even though under Laughlin's leadership the Seattle Division received several FBI and DOJ awards for excellence. Id. ¶ 109.

Between 2007 and 2010, Laughlin applied but was not selected for ten promotions within the FBI: (1) SAC of the Newark Division (February 2007); ³ (2) Assistant Director (“AD”) of the Security Division of FBI headquarters (April 2007); (3) AD of the Training Division at Quantico, Virginia (May 2007); (4) Deputy AD of the Criminal Investigative Division at FBI Headquarters (October 2007); (5) SAC of the Philadelphia Division (December 2007); (6) SAC of the Baltimore Division (February 2008); (7) SAC of the Office of International Operations (August 2008); (8) AD of Los Angeles Division (August 2009); (9) Assistant Director–in–Charge of the New York Division (May 2010); and (10) SAC of the Philadelphia Division (July 2010). Id. ¶¶ 50–87.

After Laughlin applied to be SAC of the Office of International Operations, a male was named as Deputy Assistant Director of that office. Id. ¶ 70. Thereafter, the office was renamed the International Operations Division, to be led by an AD rather than an SAC. Id. ¶ 71. The duties of the “upgraded and renamed” position, AD of the International Operations Division, were identical to the duties of the position for which Laughlin had applied. Id. ¶ 73. In October 2009, the male previously named as Deputy Assistant Director was named to the “upgraded and renamed” position. Id. ¶ 72–73.

Laughlin has felt pressure to retire from the FBI since January 2007. See id. ¶ 110. Deputy Director John Pistole first asked Laughlin in September 2007 if she would be retiring soon, then told Laughlin in May 2008 that she would never be promoted within the FBI, and finally, in August 2008, again asked Laughlin when she planned to retire and suggested that she find a job in the private sector. Id. ¶¶ 111, 113–14.

II. Procedural Background

On September 25, 2008, Laughlin contacted an EEO counselor about her claims of discrimination. Id. ¶ 138. She filed a formal EEO complaint against the FBI on December 16, 2008. Id. Based on that complaint, the following claim was accepted for investigation:

whether the Agency discriminated against Complainant on the bases of her sex (female), age (dob 9/14/57), and reprisal, when management continuously harassed her, treated her disparately, denied her promotion opportunities from June 2004 to the present; and when, on August 11, 2008, the Deputy Director suggested that Complainant retire and stated that she should find another job outside of the FBI.

Order (Apr. 25, 2011), Def.'s Mot. to Dismiss [ECF 11] (“Def.'s MTD”), Ex. A (“AJ Order”) 1. After the investigation, Laughlin requested a hearing before an administrative judge. Compl. ¶¶ 139–40. On December 18, 2009, an administrative judge notified Laughlin that her complaint had been assigned to him. Id. ¶ 143. On February 1, 2010, Laughlin moved to amend her complaint to add five claims concerning: (1) her 2009 non-promotion to AD of the Los Angeles Division; (2) her non-promotion to SAC of the Office of International Operations, a position effectively filled by a male in October 2009; (3) the 2009 tabling of Laughlin's job posting for supervisor of Major Case 186; (4) the 2005–2009 delay in approving her request for a Border Liaison Officer; and (5) the 2009 refusal to replace the Seattle Division's Media Representative.⁴Id. ¶ 146. On November 3, 2010, Laughlin filed a second motion to amend her complaint, to add claims concerning (1) her 2010 non-promotion to Assistant Director–in–Charge of the New York Division and (2) her 2010 non-promotion to SAC of the Philadelphia Division. Id. ¶ 148.

The administrative judge accepted for amendment claims (4) and (5) of Laughlin's first motion to amend, but rejected the remaining claims as untimely, reasoning that claims (1), (2), and (3) of Laughlin's first motion to amend and both claims in her second motion had occurred more than 45 days before her respective amendments. See AJ Order 4. In addition, although Laughlin had not raised denial of bonuses to her EEO counselor, the administrative judge interpreted her claims regarding bonuses as an amendment to her complaint and found that they were like or related to the accepted issues. Id. at 2. He found that Laughlin's claims of being denied bonuses in 2006 and 2007 were untimely, but accepted for amendment the denial of a bonus in December 2008. Id. at 2–3. The administrative judge ordered a supplemental investigation of the new claims accepted. Id. at 5.

After the dismissal of her administrative complaint in July 2011, Laughlin filed suit in this Court. See Compl. ¶ 151.

STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Although “detailed factual allegations” are not necessary, to provide the “grounds” of “entitle[ment] to relief,” plaintiffs must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955 (internal quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual...