                SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.


                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

   MARY C. MEDLIN,

                          Plaintiff,

                          v.                               Civil Action No. 9-cv-2402 (RLW)

  ARCHITECT OF THE CAPITOL,


                          Defendant.


                                       MEMORANDUM OPINION


       Plaintiff Mary C. Medlin brings this discrimination claim against the Architect of the

Capitol (AOC) alleging gender and age discrimination, as well as hostile work environment and

retaliation in violation of 2 U.S.C. §§ 1311(a)(1), 1311(a)(2), and 1317(a). (Doc. 1.) At the time of

the incidents which gave rise to her complaint, Plaintiff was Assistant Director of Personnel in the

AOC’s Human Resource Management Division. Plaintiff challenges the abolishment of her

position, which led to her early retirement.

       Seeking dismissal of all Plaintiff’s claims, Defendant filed a motion to dismiss or, in the

alternative, motion for summary judgment. (Doc. 9.) For the reasons explained below, the Court

finds Defendant’s motion is due to be granted, in part, and denied in part.



                                        LEGAL STANDARDS

       The Court must treat a Rule 12(b)(6) motion to dismiss as a Rule 56 motion for summary

judgment if “matters outside the pleadings are presented to and not excluded by the court.” Fed. R.


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                 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.

Civ. P. 12(d). In so doing, the Court must allow all parties “a reasonable opportunity to present all

the material that is pertinent to the motion.” Id. Here, both parties refer extensively to documents

outside of the complaint and there is nothing in the record which might indicate the parties did not

have a reasonable opportunity to present all pertinent material. Accordingly, the Court will treat the

Defendant’s motion as a motion for summary judgment.

         The party seeking summary judgment bears the initial burden of demonstrating no genuine

issues of material fact exist. See Fed. R. Civ. P. 56. When determining whether genuine issues of

material fact exist, the Court must draw all justifiable inferences from the evidence in favor of the

nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), cited in Cruz-Packer v.

Dist. of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008).



                                              ANALYSIS 1

A.       Retaliation Claim (Count V):

         No genuine issues of material fact exist with respect to Plaintiff’s retaliation claim because it

is undisputed that she engaged in protected activity after she was informed about the challenged

employment decision. Plaintiff admits that Chief Administrative Officer (CAO) David Ferguson

verbally informed her, sometime in mid-to-late April 2009, that the Acting Architect of the Capitol

said he would abolish Plaintiff’s position. (Medlin Decl. ¶ 31.) On June 30, 2009, Plaintiff

received a confirmation letter notifying her that her position was to be abolished effective August

30, 2009. (Medlin Decl. ¶ 39; Def.’s Ex. C.) In that letter, she was advised that she was eligible for

a “discontinued service retirement” and she was also advised that she could apply for other


            1
               This summary memorandum opinion is written with the understanding that the reader is
     familiar with the facts and arguments found in the pleadings.

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                 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.

positions. (Def.’s Ex. C.) A little over one month after receiving the letter, Plaintiff informed

Ferguson that she was going to submit an EEO complaint, which she did several days later on

August 10, 2009. (Medlin Decl. ¶¶ 43-44, 48.) The complaint was mediated on August 27, 2009,

and apparently mediation was unsuccessful. Three days later, on August 30, 2009, Plaintiff

received a letter confirming abolishment of her position and explaining that a termination action

would be processed if she failed to submit her retirement paperwork by close of business. (Def.’s

Ex. D.) Contrary to Plaintiff’s argument, this final August 30 letter did not constitute retaliation for

Plaintiff’s EEO complaint; it is undisputed that Plaintiff filed her EEO complaint between the time

she received the initial June 30 letter and the final August 30 letter. Thus, the EEO complaint could

not have been the cause of the decision to abolish her position. Accordingly, Plaintiff’s retaliation

claim must fail. 2



B.       Hostile Work Environment Claims (Counts III & IV):

         No genuine issues of material fact exist with respect to Plaintiff’s hostile work environment

claims. “[Conduct] creates a hostile environment only if it is so ‘severe or pervasive as to alter the



            2
                Plaintiff’s discussion with Ferguson about the problems she was having with her
     supervisor (Tiscione) did not constitute “protected activity.” See 42 U.S.C. § 2000e - 3(a).
     Although the discussion with Ferguson occurred prior to the challenged employment action,
     Plaintiff admits she did not tell Ferguson the nature of her problems with her supervisor. (Pl.’s
     Br. at 2; see Medlin Decl. ¶¶ 19-20, 24). Without a complaint about alleged discriminatory
     treatment, Plaintiff’s discussion with Ferguson was not “protected activity.” See Barber v. CSX
     Distribution Services, 68 F.3d 694, 701 (3rd Cir. 1995) (finding plaintiff did not engage in
     protected activity where he sent a letter complaining about “unfair treatment and [his]
     dissatisfaction with the fact that someone else was awarded the position, but [did not]
     specifically complain about age discrimination.”); Walden v. Georgia-Pacific Corp., 126 F.3d
     506, 512 n. 4 (3d Cir. 1997) (finding general grievance about working conditions and questioning
     job security did not constitute protected activity where letter did not contain any reference to
     conduct that is protected by federal anti-discrimination laws).

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                SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.

conditions of the victim's employment and create an abusive working environment.’” Taylor v.

Solis, 571 F.3d 1313, 1318 (D.C. Cir. 2009) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67

(1986)).

       In her complaint, Plaintiff makes the following allegations in support of her hostile work

environment claim:

       The pattern of decisions taken by Defendant’s decisionmaking agents resulting [in the
       abolition of Plaintiff’s position] created a hostile work environment which deprived
       Plaintiff of a workplace environment free from unlawful discrimination . . . .

                                                 . . . .

       There was a direct and proximate nexus between Plaintiff’s [protected status] and the
       pattern of on going [sic] and continuing decisions taken by Defendant’s decisionmaking
       agents resulting in the creation and sustaining of the on going [sic] continuing hostile
       work environment and Defendant’s violation of terms, conditions and privileges of
       Plaintiff’s employment.


(Compl. ¶¶ 34, 36, 40, 42.) Plaintiff’s complaint does not contain “sufficient factual matter” from

which this Court may “draw the reasonable inference” that she experienced conditions “so ‘severe or

pervasive as to alter the conditions of [her] employment and create an abusive working

environment.’” See Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (requiring that a

plaintiff’s complaint include sufficient facts to support plaintiff’s cause of action); Taylor, 571 F.3d

at 1318 (explaining the standard for establishing a hostile work environment claim). Furthermore,

the declaration she submitted in opposition to Defendant’s motion contains no detailed descriptions

regarding alleged hostile work environment. As such, these claims fail as a matter of law.



C.     Age Discrimination Claim (Count II):

       Nothing in the record supports Plaintiff’s age discrimination claim. She makes no specific


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                 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.

arguments relating to her age discrimination claim in her brief. In the complaint, Plaintiff alleges

only two positions were eliminated: her position and the position of her supervisor. (Compl. ¶ 17.)

Additionally, Plaintiff alleges the following:

       There were no employees under the age of 40 whose positions were abolished pursuant
       to the reorganization who performed substantially the same duties and responsibilities
       post the reorganization as they had performed before the reorganization.


(Compl. ¶ 19.)

       These allegations do not support an inference of age discrimination because Plaintiff does not

proffer any comparators under the age of forty. It is undisputed that Plaintiff’s immediate supervisor,

Rebecca Tiscione, requested abolishment of her own position so that she could retire early. Thus,

abolishment of that position does not help Plaintiff’s case.

       Similarly, Plaintiff’s inquiry about abolishment of her own position does not help her case.

Indeed, she admits she asked “COA Ferguson to inquire whether the Acting Architect Ayers would

‘consider’ abolishing [her] position to enable [her] to apply for ‘discontinued service retirement.’”

(Decl. ¶ 26.) Thus, the viability of Plaintiff’s age discrimination claim depends on whether any

employees under forty inquired about abolishment of their positions, but were treated more

favorably. A plaintiff in a discrimination case must show that “all of the relevant aspects of” her

“employment situation were nearly identical to those” of the employees outside of her protected

class. Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1554 (D.C. Cir. 1997). Because Plaintiff

has failed to allege facts sufficient to establish that her “employment situation was nearly identical”

to any employees under 40, she has failed to create a genuine issue of material fact on her age claim.3



          3
           Likewise, there is no evidence that Defendant hired someone younger than Plaintiff to
  assume the position Defendant created to replace the position Plaintiff had held.

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                SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.

D.     Gender Discrimination Claim (Count I):

       Plaintiff’s gender discrimination claim, on the other hand, survives. In late winter 2008 or

early spring 2009, Plaintiff experienced “professional difficulties with” her immediate supervisor,

Tiscione. (Medlin Decl. ¶ 19.) Plaintiff contacted Ferguson to schedule an appointment to meet

with him to discuss those issues. According to Plaintiff, the two of them were scheduled to meet

privately, but she discovered just before the planned meeting that Tiscione was also scheduled to

attend. Plaintiff refused to discus her “difficulties” in the presence of Tiscione. Plaintiff also

became “frustrated and emotionally distraught and broke down in uncontrollable sobbing and crying

for approximately 20 minutes.” (Id. ¶ 23.) Plaintiff then advised Ferguson that her “inordinate work

load” was causing her “stress” and “frustration.” (Id. ¶ 24.) Ferguson “did not address” Plaintiff’s

problem and “offered no solution for [Plaintiff’s] distress.” (Id. ¶ 25.) Out of “desperation,”

Plaintiff asked Ferguson to inquire whether the Acting Architect would “consider” abolishing

Plaintiff’s job so that she could apply for a “discontinued service retirement.” (Medlin Decl. ¶ 26.)

       Unbeknownst to Plaintiff, around this same time, her immediate supervisor had requested

abolishment of her own position. Plaintiff claims she would not have asked about possible

abolishment of her job had she known Tiscione’s position might be eliminated. (Id. ¶¶ 29-30.)

Although Plaintiff never “formally or informally” advised Defendant that she “wanted her position

abolished,” (Pl.’s Br. at 3; see Medlin Decl. ¶ 40), Defendant abolished both her position and

Tiscione’s position during a workforce management reorganization precipitated by Office of

Personnel Management policies and the Chief Human Capital Officers Act of 2002. (Ferguson Decl.

¶¶ 2, 6-8, 10.) Prior to official notification that her position was going to be abolished, Ferguson

asked Plaintiff on three separate occasions whether she had made a decision about the “discontinued

service retirement.” (Medlin Decl. ¶¶ 31-39.) On two of those occasions she responded she was

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                SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.

undecided, but the third time she informed Ferguson that she had decided against taking the

“discontinued service retirement.” (Id.) Thus, she was surprised to receive the June 30 letter

indicating her position had been abolished. (Medlin Decl. ¶ 39.)

       In her complaint, Plaintiff claims no males had their positions abolished. This fact alone

does not create evidence of discriminatory motive, as there is no evidence males asked to have their

positions abolished or inquired about the possibility.

       More troubling is Plaintiff’s allegation, found in her Declaration, regarding Defendant’s

accommodation of male employees:

       Based on my prior knowledge of Defendant’s accommodating male employees with
       employment options other than “discontinued service retirement” even when termination
       actions were warranted to be taken against said other male employees, I had a reasonable
       good faith belief that I was discriminated against based on my female gender.

(Medlin Decl. ¶ 45.)

       Given these claims, the Court will deny Defendant’s motion as premature. Specifically, it is

clear that Plaintiff put Defendant on notice that she was having trouble with her immediate

supervisor and Defendant was aware that the immediate supervisor would soon be leaving her

position. Yet, Defendant failed to “address” Plaintiff’s problem or “offer [a] solution for [Plaintiff’s]

distress.” (Medlin Decl. ¶ 25.) Instead, Defendant went forward with Plaintiff’s “inquiry” about

abolishing her position when it was clear that the issue might resolve itself and that Plaintiff had

decided she did not want to seek early retirement. Moreover, according to Plaintiff, Defendant did

not actually abolish her position, but only restructured the position and failed to grant her an

interview for the new position despite a “qualified” applicant rating. Thus, to the extent Plaintiff

can more specifically point to examples of Defendant’s willingness to find alternatives to retirement

for male employees with similar workplace issues, she may be able to provide sufficient evidence of


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                SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.

discriminatory intent. Without discovery, however, she will be unable to do so. 4



                                           CONCLUSION

        For the reasons set forth above, by separate order, Defendant’s motion will be granted, in

part, and denied, in part.

SO ORDERED.

August 19, 2011.

                                                                   /s/
                                                       ___________________________
                                                       Robert L. Wilkins
                                                       United States District Judge




           4
             Plaintiff’s reliance on 5 U.S.C. § 8336(d) and 5 C.F.R. § 831.503 as evidence that
   Defendant should have offered her an alternative position is without merit. These provisions
   simply prohibit an employee from collecting an annuity if the employee declines a reasonable
   offer of another position in the employee’s agency; the cited provisions do not require that the
   employer offer the employee another position.

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