Savage v. Burwell

WANDA SAVAGE, Plaintiff, v. SYLVIA MATHEWS BURWELL,Secretary, U.S. Department of Health and Human Services, Defendant.

Case No. 15-cv-00791 (CRC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

August 3, 2016

MEMORANDUM OPINION

Wanda Savage, a former management-level employee at the U.S. Department of Health and Human Services ("HHS"), brings this pro se employment discrimination action against the Department's current Secretary, Sylvia Mathews Burwell. This Court received the action following an Order to transfer venue by the U.S. District Court for the Central District of California, where Savage currently resides and the case was originally filed.

In a 15-count, 47-page Complaint, Savage, who is African-American and over 40 years of age, recounts several years of alleged discriminatory conduct and improper personnel actions by her supervisor and other HHS officials. Savage worked in the Office of Financial Planning and Analysis ("OFPA"), which performs financial planning and management for HHS's Office of the Assistant Secretary for Preparedness and Response in Washington, D.C. According to her Complaint, Savage's tenure at HHS began in 2008 as a Senior Management Analyst in OFPA's predecessor office. See Compl. ¶ 21. The following year, she began serving as an Acting Deputy Director in OFPA when the prior occupant of that position was transferred. See id. ¶ 29. After Savage was passed over for a permanent Deputy Director position by her supervisor and then reassigned, she was removed from federal service effective May 2014, ostensibly for performance deficiencies. See id. ¶ 83; Pl.'s Opp'n Def.'s Mot. Dismiss 13-16; Def.'s Mot. Dismiss 7-11.

While it is somewhat difficult to untangle Savage's sprawling Complaint, her claims appear to rest on the following central allegations: (1) that she was not permitted to work remotely from her home in Los Angeles, which she contends was necessary due to complications from injuries she sustained in a 2007 car accident that required two surgeries, see Compl. ¶¶ 20, 37; (2) that HHS failed to provide her other reasonable accommodations, such as an oversized computer monitor and ergonomic office equipment, for a variety of physical disabilities arising from her injuries, id. ¶¶ 46-47; (3) that she was not permitted to continue an alternative work schedule if she wanted to assume the Deputy Director position on a permanent basis, id. ¶ 51; (4) that she was denied a permanent Deputy Director position, reassigned to a different position, and relocated to another building due to her age, gender, race, and disability, and in retaliation for having filed administrative claims with the Equal Employment Opportunity Commission ("EEOC"), id. ¶¶ 89-90, 95; (5) that she received lower performance ratings and associated pay than her white, male, and non-disabled counterparts, id. ¶¶ 99-100; and (6) that she was subjected to a hostile work environment by virtue of the personnel actions noted above and a laundry list of other perceived instances of mistreatment, id. ¶¶ 90, 93.

Savage brings her claims under the usual anti-discrimination statutes: the Rehabilitation Act of 1973, which prohibits discrimination based on disability in federal employment; Title VII of the Civil Rights Act of 1964, which prohibits race and gender discrimination and retaliation in employment; and the Age Discrimination in Employment Act of 1967, which forbids employment discrimination based on age. She also includes claims under the Occupational Safety and Health Act of 1970; the Freedom of Information Act; the Federal Employees'Compensation Act; the Telework Enhancement Act of 2010; and various other federal regulations and executive orders concerning equal employment opportunity and workplace safety. HHS has moved to dismiss these ancillary claims under Federal Rule of Civil Procedure 12(b)(1) on the ground that the applicable statutes, regulations and executive orders do not create private rights of action and, as a result, the Court lacks subject matter jurisdiction. The agency also moves to dismiss Savage's hostile work environment claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. And, despite the fact that no discovery has taken place, it moves for summary judgment on Savage's claims of discrimination based on her nonselection for the Deputy Director position, her allegedly unequal pay, and her reassignments. For the following reasons, the Court will grant the Department's motion to dismiss and grant in part and deny in part its motion for summary judgment.¹

I. Legal Standards

Because "[f]ederal courts are courts of limited jurisdiction," it is "presumed that a cause lies outside of this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Gammill v. U.S. Dep't of Educ., 989 F. Supp. 2d 118, 120 (D.D.C. 2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)) (internalquotation marks omitted). Thus, on a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), "the plaintiff bears the burden of establishing" that the court has jurisdiction. Id. (quoting Adams v. U.S. Capitol Police Bd., 564 F. Supp. 2d 37, 39-40 (D.D.C. 2008)) (internal quotation mark omitted). Although the court must "accept all of the factual allegations in the complaint as true," id. at 120-21 (quoting Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005)) (internal quotation marks omitted), it "must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim" because "subject matter jurisdiction focuses on the court's power to hear the claim," id. at 121 (quoting Bailey v. WMATA, 696 F. Supp. 2d 68, 71 (D.D.C. 2010)) (internal quotation marks omitted).

However, at the same time, in reviewing a motion to dismiss a pro se plaintiff's complaint, a judge must construe the complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" (citations omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))). In other words, courts must "afford all possible inferences favorable" to pro se pleaders "on allegations of fact." Zaidi v. U.S. Sentencing Comm'n, 115 F. Supp. 3d 80, 83 (D.D.C. 2015). But "even a pro se plaintiff . . . bears the burden of establishing that the [c]ourt has subject matter jurisdiction." Id. (alteration in original) (quoting Rodriguez v. U.S. Citizenship & Immigration Serv., 605 F. Supp. 2d 142, 145 (D.D.C. 2009)). Finally, if "a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety." Id. (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)).

On a Rule 12(b)(6) motion for failure to state a claim, a court must assess whether the complaint alleges sufficient facts that, accepted as true, state an entitlement to relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Where a complaint pleads facts that are 'merely consistent' with a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). A complaint's factual allegations must be construed "in the light most favorable to the plaintiff." Hammel v. Marsh USA Inc., 79 F. Supp. 3d 234, 238 (D.D.C. 2015). Yet "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Harris v. Dist. of Columbia Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted). A complaint that presents merely "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is genuine only if a reasonable fact-finder could find for the nonmoving party; a fact is material only if it is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Laningham v. U.S. Dep't of Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion for summary judgment, the court must "view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the . . . motion'"—in this case, Savage. Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting United States v. Diebold, Inc., 369U.S. 654, 655 (1962) (per curiam)). Typically, however, "summary judgment . . . 'is proper only after the plaintiff has been given adequate time for discovery.'" Americable Int'l, Inc. v. Dep't of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (quoting First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988)).

II. Analysis

A. Motion to Dismiss

1. Claims Based on Executive Orders

In Counts Three, Four, and Six of the Complaint, Savage alleges that HHS is liable for having failed to follow Executive Order Nos. 13163, 13164, and 13548, respectively. These Orders generally require federal agencies to expand efforts to recruit and accommodate individuals with disabilities. But they do not provide for private rights of action against the federal government. Federal courts lack jurisdiction over suits against the...