Turner v. U.S. Capitol Police Bd.

983 F.Supp.2d 98

Mary Ann Turner, Plaintiff,

v.United States Capitol Police Board, Defendant.

Civil Action No.: 12–00045(RC)

United States District Court, District of Columbia.

September 30, 2013

Jeffrey Howard Leib, Washington, DC, for Plaintiff.

Frederick Michael Herrera, United States Capitol Police, Washington, DC, for Defendant.

Re Document No.: 12

MEMORANDUM OPINION

Granting Defendant's Motion To Dismiss

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

In this employment discrimination action, the plaintiff, Mary Ann Turner, a member of the United States Capitol Police (“USCP”), claims that she was discriminated against based on her gender and retaliated against for complaining about discrimination. Plaintiff raises these claims concerning a close-out performance evaluation she received that was allegedly executed in October 2009. See Am. Compl. ¶ 49, ECF No. 13. Plaintiff splits her concerns about this close-out performance evaluation into numerous separate claims concerning the evaluation itself: a supervisor's “attempt” to interfere with the evaluation, the untimeliness of the evaluation, and her lack of opportunity to review and refute the evaluation. See Am. Compl. Counts I–VIII. Additionally, plaintiff claims that she was subjected to a hostile work environment, based on her gender, and in retaliation for complaining about her discriminatory treatment. Am. Compl. Counts IX & X. These claims are brought pursuant to the Congressional Accountability Act (“CAA”) which in certain respects incorporates the protections of Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). The USCP filed a motion to dismiss largely arguing that the plaintiff's claims are untimely because she failed to seek counseling within 180 days of the alleged discriminatory acts, the allegations concerning the performance evaluation are not actionable because a fully satisfactory evaluation is not materially adverse, and she has not raised claims rising to the level of a hostile work environment because the alleged acts were not severe or pervasive. See Def.'s Mot. Dismiss 9–19, ECF No. 12. For the reasons set forth below, because most of plaintiff's claims are untimely and the performance evaluation was not materially adverse, the defendant's motion to dismiss is GRANTED.

II. FACTUAL ALLEGATIONS

The plaintiff, Mary Ann Turner, has been a member of the USCP since July 1986. Am. Compl. ¶ 3, ECF No. 13. She was promoted to the rank of detective in June 1991. Am. Compl. ¶ 8. In May 2004, plaintiff was transferred to Intelligence Section–Investigations (“IS–I”). Am. Compl. ¶ 9. In the IS–I, plaintiff's first-line supervisor was Michael Albrycht, Sergeant and Supervisory Special Agent (“SSA”). Am. Compl. ¶ 11. But, because plaintiff was detailed to the Joint Terrorism Task Force (“JTTF”) between May 2004 and September 2007, she had limited contact with SSA Albrycht. Am. Compl. ¶¶ 10, 14.

In September 2007, plaintiff returned to the direct supervision of SSA Albrycht in the IS–I. Am. Compl. ¶ 18. SSA Albrycht provided plaintiff with a performance evaluation rating of “outstanding” for the years 2006 and 2007. Am. Compl. ¶¶ 19, 20. She was not evaluated in 2008. Am. Compl. ¶ 21.

On July 23, 2008, plaintiff filed a complaint with the USCP's Office of Professional Responsibility charging SSA Albrycht with gender discrimination. Am. Compl. ¶ 22. That complaint included claims concerning the following: comments SSA Albrycht made at a section briefing; a dispute plaintiff had with SSA Albrycht about a fleet car she was to drive to Richmond, Virginia; SSA Albrycht's denial of plaintiff's request to attend the Women in Federal Law Enforcement Conference; an incident during counseling in which SSA Albrycht told her to remain silent; a misunderstanding between plaintiff and SSA Albrycht regarding completion of a 4^th of July Plan of Action; SSA Albrycht's denial of plaintiff's request for camera and surveillance training and training funded by other USCP units; plaintiff's exclusion from liaison visits to other agencies; plaintiff's assignment to zones in which her area of responsibility did not include activity; SSA Albrycht's exclusion of plaintiff from routine section activities while she was detailed to the JTTF; SSA Albrycht's admonishment of plaintiff for parking a personally owned vehicle in a restricted location; SSA Albrycht's comments to others implying that plaintiff had failed to resolve a ticket; SSA Albrycht's failure to select plaintiff to fill in for CID or to serve as acting supervisor; SSA Albrycht's verbal discipline of plaintiff at the Rayburn House Office Building in the presence of other officers, agents and civilians; and SSA Albrycht's failure to commend plaintiff on a matter involving international terrorism. Id.

On or about the same date that plaintiff filed her complaint, July 23, 2008, SSA Albrycht was immediately detailed to another part of USCP, ordered to have no contact with plaintiff and to stay out of her business, ordered to stay away from IS–I's offices, and ordered to have no contact with IS–I's agents. Am. Compl. ¶¶ 23, 24. About a year later, on August 18, 2009, plaintiff, pursuant to a competitive vacancy announcement, applied for another position in the Security Coordination Section of the USCP. Am. Compl. ¶ 29.

On or about September 22, 2009, plaintiff officially learned that the Office of Professional Responsibility had sustained her discrimination claims against SSA Albrycht. Am. Compl. ¶ 36. On September 25, 2009, plaintiff was detailed to the Intelligence Section—Analytical (“IS–A”) and reported to that detail a few days later. Am. Compl. ¶¶ 38, 39. On or about January 28, 2010, plaintiff was notified of her transfer to the position for which she had competed in the Security Coordination Section and for which transfer was effective as of February 21, 2010. Am. Compl. ¶¶ 39, 40. Thus, after July 23, 2008, the day on which plaintiff complained about SSA Albrycht's discrimination, he never again supervised her.

On June 13, 2011, plaintiff reviewed her personnel jacket. Am. Compl. ¶ 48. She claims that, at this point, for the first time, she found a “close-out” performance evaluation allegedly executed on October 13, 2009 by SSA Scheelar. Am. Compl. ¶ 49. A close-out rating is given to an employee when that employee leaves a unit or when the rating official leaves the unit. See Pl.'s Opp'n Mot. Dismiss, ECF No. 15–1 at 2 (¶ 3.14.3).¹ Close-out ratings are only maintained in the Central Personnel File and are not used in determining the final summary rating. Id. at 2 & 10. Moreover, performance reviews only remain in the Central Personnel File for three years. Id. at 12. The close-out rating plaintiff received in 2009 was “meets expectations” which is lower than the “outstanding” rating plaintiff had received in 2006 and 2007. See Am. Compl. ¶ 50. Plaintiff alleges that SSA Albrycht was involved in this lower rating (despite his not being her supervisor) because, in the personnel file, the close-out evaluation form had a post-it adhered to it addressed to SSA Scheelar from SSA Albrycht stating, “Jay, call me on this, Mike.” Am. Compl. ¶ 53, 54.

Plaintiff filed this action on January 11, 2012. Compl., ECF No. 1. After plaintiff filed an amended complaint, Am. Compl., ECF No. 13, the USCP filed a motion to dismiss. Def.'s Mot. Dismiss, ECF No. 12. For the reasons set forth below, that motion is granted.

III. LEGAL STANDARD

A. Subject Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or a claim therein, for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1); seeKokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ( “Federal courts are courts of limited jurisdiction.... It is to be presumed that a cause lies outside this limited jurisdiction....”). In response to such a motion, plaintiff must show that her claims lie within “the judicial Power of the United States,” U.S. Const. art. III, § 1, and that a federal statute grants the Court jurisdiction to hear those claims. Micei Int'l v. Dep't of Commerce, 613 F.3d 1147, 1151 (D.C.Cir.2010) (citing Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252, 18 L.Ed. 851 (1867)); see alsoShuler v. United States, 531 F.3d 930, 932 (D.C.Cir.2008). If the plaintiff cannot establish both elements, the Court must dismiss the action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Ex parte McCardle, 7 U.S. (7 Wall.) 506, 514 , 19 L.Ed. 264 (1868)). When resolving a motion made under Rule 12(b)(1), the Court will “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.’ ” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C.Cir.2005)).

B. Cause of Action

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). The motion does not test a plaintiff's ultimate likelihood of success on the merits, but only forces the court to determine whether a plaintiff has properly stated a claim. ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 467 (D.C.Cir.1991). The complaint must set forth a short and plain statement of the claim, to give defendants fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir.2003) (citing Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v....