Maloney v. Blinken

ANGELA MALONEY, Plaintiff, v. ANTONY BLINKEN, Secretary, U.S. Department of State, Defendant.

Civil Action No. 20-2516 (ABJ)

United States District Court, District of Columbia

September 22, 2021

MEMORANDUM OPINION

AMY BERMAN JACKSON, UNITED STATES DISTRICT JUDGE

On September 8, 2020, plaintiff Angela Maloney filed this employment discrimination and retaliation action under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794 et seq. See Compl. [Dkt. # 1]. Her claims arise out of her five-year appointment with the United States Department of State as an entry-level Foreign Service Officer (“FSO”) career candidate, during which time she developed a number of hand and wrist disabilities. Id. ¶¶ 2, 10, 16-17, 23; see also Def.'s Mem. of P.& A. in Supp. of Mot. [Dkt. # 7-1] (“Mem.”) at 1, 3.^[1] Pending before the Court is defendant Secretary of State Antony Blinken's partial motion to dismiss or, in the alternative, motion for summary judgment on plaintiff's retaliation claim.^[2] Def.'s Partial Mot. to Dismiss Or, In The Alternative, for Summ. J [Dkt. # 7] (“Mot.”).

The matter is fully briefed, and the motion to dismiss will be granted.^[3] Plaintiff has not exhausted that portion of her retaliation claim that challenged a denial of tenure in 2020, and she has not stated a claim for retaliation with respect to the agency's 2019 deferral of the tenure decision for further consideration in the future.

BACKGROUND

Plaintiff was employed by the State Department as an entry-level Foreign Service Officer (“FSO”) career candidate on the Political Affairs track between April 8, 2015, and July 4, 2020. See Compl. ¶¶ 16, 19; Mot. at 3.

According to the State Department's Foreign Affairs Manual, an entry-level FSO candidate has five years to “achieve” tenure or face mandatory separation from the Service. See Ex. 1 to Mot. [Dkt. # 7-2] at 5-6, 11-12 (“FAM”) §§ 2241.3(1), 2245.1. The State Department's Commissioning and Tenure Board (“the Board”) evaluates entry-level FSO candidates for tenure for the first time after thirty-six months of employment, id. § 2245.2(a), but according to the Department's Foreign Affairs Handbook this decision can be deferred up to two times. See Ex. 2 to Mot. [Dkt. # 7-2] at 26 (“FAH”) § 2246.3(a)(1).

Section 2246.3(a)(1) states:

The Board will: [r]eview and make recommendations on the conferral of career status upon all FS-04 Foreign Service Officer candidates . . . as soon as possible after completion of 36 months of service. A second review will take place after 48 months. When the Board judges that additional evaluated experience may lead to a favorable tenuring decision, the Board may recommend a third review six months prior to expiration of the candidate's limited appointment.

FAH § 2246.3(a)(1).

In early 2016, during an assignment to Chennai, India, that involved visa adjudication, plaintiff “developed flexor tenosynovitis among other medical conditions as a result of the repetitive hand motions necessary” to the role. Compl. ¶ 16. She also suffers from bilateral carpal tunnel syndrome, id. ¶ 10, which together with her other hand and wrist conditions, limits her ability to lift, write, type, and grasp. Id. ¶ 17. According to plaintiff, these issues are exacerbated by the repetitive typing motions requiring of visa processing, which led her to take medical leave between February 2018 and October 2018, and again between February 2019 and her separation from the State Department in July 2020. Id. ¶ 19.

On April 9, 2018, plaintiff filed a class action lawsuit against defendant, alleging disability discrimination. See Maloney v. Blinken, No. 18-cv-0809-ABJ (“Maloney I”).^[4] Shortly thereafter, in the summer of 2018, plaintiff first qualified for a review for tenure. The Board notified plaintiff in an email dated August 15, 2018, that it was deferring the decision on her tenure to a second review the following year:

The cable listing those recommended for tenure by the Summer 2018 Commissioning and Tenure Board will soon appear. I am writing to you in advance to inform you that although the Board did not include you among those it recommended for tenure on this review, it did acknowledge your excellent progress as a career candidate. The Board specifically noted that there were no areas of significant concern in your performance but, as is often the case, wanted to have additional evaluated work experience before making its recommendation. You will be reviewed again for tenure by the Summer 2019 Commissioning and Tenure Board.

Ex. 4 to Mot. [Dkt. # 7-2] at 31 (“Summer 2018 Board Decision”). Plaintiff does not challenge that decision in this lawsuit. See Opp. at 8 (“[Plaintiff] is challenging the failure to recommend tenure in 2019[.]”).

During the 2019 performance evaluation cycle, plaintiff was again considered by the Board for tenure, and in June, the decision was again deferred, this time for six months in accordance with FAH subsection 2246.3. The June 17, 2019 email to plaintiff stated:

The cable listing those recommended for tenure by the Summer 2019 Commissioning and Tenure Board will soon appear. I'm writing to you in advance to inform you that the Board did not include you among those it recommended for tenure on this review. You have, however, been granted a third review for tenure to be performed in six months by the Winter 2019 Commissioning and Tenure Board.

Ex. 5 to Mot. [Dkt. # 7-2] at 34 (“Summer 2019 Board Decision”) (emphasis in original).

On August 30, 2019, plaintiff filed an administrative complaint with the State Department's Office of Civil Rights (“OCR”). See Ex. 7 to Duncan Decl. [Dkt # 7-2] at 40-46 (“2019 OCR Complaint”); see also Compl. ¶ 27. She alleged that on May 17 and June 7, 2019, she was discriminated against for her physical disabilities (“chronic tenosynovitis, ganglion cyst”) and retaliated against for engaging in prior protected activity and opposing discriminatory policies. 2019 OCR Complaint at 41-42, 44-46. It was acknowledged on September 3, 2019 (Case No. 570-2020-00213X). See Compl. ¶ 27.

On June 19, 2020, the Board completed its third and final tenure review, and it made, for the first time, the “decision not to grant [plaintiff] tenure, ” which required that plaintiff separate from the State Department within thirty days. Ex. 6 to Mot. [Dkt. # 7-2] at 37-38 (“Spring 2020 Board Decision”); see also FAM § 2246.2-1(d). On August 21, 2020, plaintiff filed a second complaint with the OCR - this time concerning the June 2020 denial of recommendation for tenure that resulted in her termination. See Ex. 8 to Duncan Decl. [Dkt. # 7-2] at 47-52 (“2020 OCR Complaint”).

On September 8, 2020, plaintiff filed the instant lawsuit alleging in Count I that the agency failed to accommodate her disability and engage in the interactive process when she lost career opportunities, including “being denied tenure, ” Compl. ¶ 41, and in Count II that defendant retaliated against her when “she was denied tenure and other career opportunities, ” and “denied accommodations and denied a good-faith interactive process.” Id. ¶ 49. Plaintiff seeks compensatory damages, including for emotional distress and lost wages and benefits. Id. ¶ 53.

Defendant filed a partial motion to dismiss, asking the Court to dismiss Count II - plaintiff's claim for retaliation - on two grounds: (1) that she failed to exhaust her administrative remedies with respect to the 2020 denial of tenure before she filed the instant complaint, and (2) that she failed to state a plausible retaliation claim based on the deferrals of the tenure decision because a deferral is not an actionable adverse employment action, and the complaint does not allege facts that give rise to an inference of any causal connection between plaintiff's protected activities and the deferrals. See Mem. at 2, 8-10.

Now that the matter is fully briefed, the only issue for the Court to resolve is whether Count II states a claim that the 2019 decision to defer the tenure review was retaliatory.^[5]

STANDARD OF REVIEW

In order to survive a motion to dismiss under Rule 12(b)(6), “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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

When considering a motion to dismiss under Rule 12(b)(6), the Court must construe a complaint liberally in the plaintiff's favor, and it should grant the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994), citing Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979). That said, the Court is not required to accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. See Kowal, 16 F.3d at 1276; see also Iqbal, 556 U.S. at 678 (internal citation omitted) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997).

ANALYSIS

The Rehabilitation Act makes it unlawful for an employer to engage in “retaliation against or coercion of individuals who seek to vindicate the...