Peyus v. Lahood

919 F.Supp.2d 93

Albert V. PEYUS Jr., Plaintiff,

v.Ray LAHOOD, Secretary, United States Department of Transportation, Defendant.

Civil Case No. 11–02087 (RJL).

United States District Court, District of Columbia.

Jan. 29, 2013.

Neil Stuart Hyman, Law Office of Neil S. Hyman, LLC, Bethesda, MD, for Plaintiff.

Andrea McBarnette, U.S. Attorney's Office, Washington, DC.

MEMORANDUM OPINION

[Dkt. # 4]

RICHARD J. LEON, District Judge.

Plaintiff Albert V. Peyus, Jr. (“plaintiff”) brings this suit against the defendant Ray Lahood, Secretary for the U.S. Department of Transportation (“defendant”), alleging discrimination based on age and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 626 et seq. On March 5, 2012, the defendant moved to dismiss the plaintiff's complaint or, in the alternative, for summary judgment [Dkt. # 4]. Upon consideration of the parties' pleadings, relevant law, and the entire record therein, the defendant's motion is GRANTED.

BACKGROUND

Plaintiff, a sixty-five-year-old Aviation Safety Inspector, has been employed by the U.S. Department of Transportation's Federal Aviation Administration (“FAA”) since 1996. Compl. ¶¶ 6–8, ECF No. 1. In 2007, plaintiff joined FAA's AFS–52 team and was supervised by Marlene Livack (“Livack”), Manager of the International Operations and Standardization Branch of the AFS–52 team. Id. ¶¶ 9–10; Def.'s Mem. in Support of Mot. to Dismiss or, in the Alt., for Summ. J. (“Def.'s Mem.”) at 1, ECF No. 4; Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss, or, in the Alt., for Summ. Judgment (“Pl.'s Opp'n”), Ex. 3, ECF No. 7.

Since plaintiff's employment with the AFS–52 team, plaintiff alleges that Livack has repeatedly and consistently discriminated against him on the basis of his age, as well as retaliated against him for filing a complaint with the Equal Employment Opportunity Commission (“EEOC”). He points to a veritable laundry list of incidents which he claims were discriminatory or retaliatory, which include: (1) Livack's comments upon plaintiff's employment with the AFS–52 team that Livack was forced to bring him to the branch (Compl. ¶¶ 11–12); (2) on a 2009 business trip to Kenya, Livack's demand that plaintiff maintain contact or he would not be allowed to travel anymore, and Livack's criticism of plaintiff for the large telephone bill that accrued as a result ( id. ¶¶ 13–17); (3) on May 25, 2010, Livack's reprimand of plaintiff for making her look bad by not informing her of a lack of data with regard to the International Aviation Safety Data Exchange (“IASDEx”) program prior to a managers meeting, and her instruction to plaintiff thereafter to get her approval on each and every action needed to manage the program ( id. ¶¶ 18–22); (4) Livack's nonresponse to plaintiff's request to take a class on May 16, 2010, causing him to miss the registration deadline ( id. ¶¶ 23–24); (5) Livack's failure to sign plaintiff's travel voucher in a timely fashion, rendering plaintiff late in paying his government credit card bill ( id. ¶¶ 32–34); (6) in June 2010, Livack's suspension of plaintiff's government credit card, despite a death in plaintiff's family, due to late payment, which prevented him from travelling to a June 2, 2012 assignment ( id. ¶¶ 25–31, 35–36, 38); (7) Livack's admonishment and suspension of plaintiff for late payment of his government credit card ( id. ¶¶ 25–31, 35, 37); (8) between June 16 and June 18, 2010, Livack's threat to get rid of the plaintiff or put him in another line of work because of his inability to travel, along with plaintiff's receipt of two angry voicemail messages from Livack ( id. ¶¶ 39–41, 43); (9) Livack's removal of plaintiff as Program Manager for IASDEx because he could no longer travel for the government without a government credit card ( id. ¶ 42); (10) in July 2010, Livack's admonishment of plaintiff for failing to track down the original paperwork on a Safety Recommendation project ( id. ¶¶ 55–57); (11) in August 2010, Livack's lack of response to plaintiff's need for a signature and review of a completed project, as well as her failure to acknowledge his presence ( id. ¶¶ 61–65); (12) in late August and September 2010, Livack's failure to provide plaintiff with new assignments, and her reassignment of two programs that were previously assigned to plaintiff to younger employees ( id. ¶¶ 66–70); (13) on September 21, 2010, Livack's assignment to plaintiff to set up a storage site for papers, briefs, power points, letters, and statements on the computer system ( id. ¶¶ 71–72); (14) in November 2010, Livack's failure to acknowledge plaintiff's presence on multiple occasions ( id. ¶¶ 77–78); (15) on January 6, 2011, Livack's demand for proof that plaintiff was actually volunteering with the Red Cross ( id. ¶¶ 79–80); (16) in January and February 2011, Livack's failure to acknowledge plaintiff's presence ( id. ¶¶ 81–82); (17) Livack's demand for an in-person discussion prior to her approval of his request for a teaching assignment in Oklahoma City ( id. ¶¶ 83–85); and (18) in May 2011, Livack's failure to approve a leave slip for the plaintiff ( id. ¶¶ 86–88).

In July 2010, plaintiff emailed the Equal Employment Opportunity (“EEO”) Counselor's office regarding the discrimination he was suffering at the hands of Livack. Id. ¶ 50. Based on his Division Manager John Barbagallo's request, however, plaintiff agreed to try to work things out with Livack before filing a formal complaint with the EEO Counselor, which he eventually did. Id. ¶¶ 51–52; Pl.'s Opp'n, Ex. 8. Plaintiff filed this suit on November 21, 2011, seeking compensatory damages, a reassignment of duties, and costs for claims of age discrimination and retaliation against the defendant. See generally Compl. The defendant filed a Motion to Dismiss or, in the Alternative, for Summary Judgment on March 5, 2012, asking this Court to dismiss plaintiff's complaint or grant summary judgment in its favor. See generally Def.'s Mot. to Dismiss or, in the Alt., for Summ. Judgment, ECF No. 4. For the following reasons, the defendant's motion is GRANTED.

STANDARD OF REVIEW

I. Rule 12(b)(6)

The defendant moves to dismiss plaintiff's claims that have not been exhausted for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6); Def.'s Mem. at 8–9. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle [ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration in original) (citations and internal quotations marks omitted). The 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and internal quotation marks omitted). “[T]he [C]ourt need not accept inferences drawn by plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). The Court may, however, consider “any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997).

II. Rule 56

The defendant here moves alternatively for summary judgment. Summary judgment is appropriate when, based on the record, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. SeeFed.R.Civ.P. 56(a); Hussain v. Principi, 344 F.Supp.2d 86, 94 (D.D.C.2004). Summary judgment is not available, however, when there are factual disputes that may determine the outcome of the case under the governing law or when sufficient evidence exists such that a reasonable juror could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255, 106 S.Ct. 2505.

The moving party has the initial burden of demonstrating that there is no genuine issue of material fact to be decided with respect to any essential element of the nonmoving party's claim. Id. at 263, 106 S.Ct. 2505. Once that burden is met, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party's opposition may not rest upon the mere allegations or denials of the pleadings, but must be supported by affidavits or other competent evidence. Id. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. at 322–23, 106 S.Ct. 2548.

ANALYSIS

I. Failure to Exhaust Administrative Remedies

As a threshold matter, defendant asserts that plaintiff failed to exhaust his administrative remedies before filing this action with respect to age discrimination claims ¹ that stem from conduct that occurred prior to May 27, 2010. I agree.

The ADEA, which makes it unlawful for an employer to discriminate against an employee based on age, 29 U.S.C. § 623(a)(1), provides two avenues for federal employees aged 40 or older to assert claims. See29 U.S.C. § 633a. First, an employee can exhaust his or her administrative remedies, and if the case is not resolved administratively, the employee can file a civil suit thereafter. Id. Second, the employee can forego the administrative process, file...