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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARTA B. LEIPZIG, )
Plaintiff, §
v. g Civil Case No. 12-909 (RJL)
MICHAEL J. ASTRUE. l
Defendant. §
a .l
MEMORANDUM OPINION

(Jun@ _3__, 2013) [#10]

Plaintiff Marta B. Leipzig brings this suit against defendant Michael J. Astrue,
Commissioner of the Social Security Administration ("SSA"), alleging retaliation in
violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000(€)
et seq. Before the Court is defendant’s Motion to Dismiss ("Def.’s Mot. to Dismiss")
[Dkt. #10]. Upon consideration of the parties’ pleadings, relevant law, and the entire
record therein, defendant’s motion is GRANTED.

BACKGROUND

On June 21, 2009, plaintiff, a middle-aged white woman, was hired as a Senior

Case Technician ("SCT") in the SSA’s Off`1ce of Disability Adjudication and Review

("ODAR") in Washington, D.C. for a two-year trial period.l Compl. 1111 l, 6 [Dkt. #l].

‘Although the Complaint notes the races of several individuals involved in this case, it does not plead (or even hint
at) a racial discrimination claim. In her opposition to dismissal, plaintiff for the first time alleges that some of her

l

As a SCT, plaintiff assisted in the administrative adjudication of appeals brought by
individuals denied Social Security and Social Security Insurance benefits. Id. 11 8. In
addition to her regular SCT work, plaintiff perfonned clerical and technical tasks as a
personal clerk to an administrative law judge and frequently filled in as the receptionist at
the front desk of ODAR. Id }Hl 9, ll.

Three months after plaintiff commenced her job with SSA, an African American
male co-worker physically assaulted her, prompting her to file an informal Equal
Employment Opportunity ("EEO") complaint. Id. 11 13. The co-worker, meanwhile,
claimed that plaintiff attacked him. Ia’. Plaintiff’ s supervisor, Hariette Hindie
("Hindie"), responded to the incident by interrogating plaintiff in a Weingarten session,
which allows for an employee to bring a union representative to any management inquiry
that the employee reasonably believes might result in discipline. Id.; see also NLRB v.
Weingarten, Inc., 420 U.S. 521 (1975). When an SSA EEO official told plaintiff that

formal EEO complaints must be filed against "management," plaintiff decided not to

j pursue a formal complaint for fear of losing her job. Compl. jj l3. Although plaintiff

did not take any formal action, SSA management knew of her communications with the
EEO regarding the assault. Ia’.

On May 26, 2010, the African-American male co-worker who had been the subject

supervisor’s actions may have been based on race. Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss at 5 [Dkt. #13]. It
is well established that the Court will not entertain claims that appear for the first time in responses to dispositive
motions. See, e.g., Richardson v. Capital One, N.A., 839 F. Supp. 2d 197, 202-03 (D.D.C. 2012). In any event,
the Court accepts these facts as true but notes that they are irrelevant to the only claim in the Complaint, which is for

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of plaintiffs prior EEO complaint physically attacked another SSA employee, an African
American woman named Robin Adams. Id. il l4. On this occasion, armed police
removed the co-worker shortly after the assault, and SSA management responded with
great concern for the victim. In addition, the Department of Homeland Security
participated in the ensuing investigation. Ia'.

Soon after this incident, plaintiff eamed a promotion, effective June 2010, to a
General Schedule ("GS") level seven from a GS level six. Id. 11 l2. Hindie supported
the promotion, which was based on plaintiff’s job performance during the first year of a
two-year probationary period. Ia’. In the following months, however, Hindie began
scrutinizing plaintiff’s work more closely, and in September, she gave plaintiff a
counseling memorandum that identified specific problems with her recent job
performance Ia'. 111 16-l7. Plaintiff responded by defending her performance in a
rebuttal memorandum, presented to Hindie both orally and in writing. Id. 11 18.

On November 22, 2010, Hindie recommended plaintiff’ s termination on the basis
of poor work performance during the second year of plaintiffs probationary period. Id.
Plaintiff sought the support of the two lead SCTs, both of whom submitted signed
statements contradicting Hindie’s basis for plaintiff"s termination. Id. jj 19. Hindie
proceeded with plaintiff’s termination nonetheless. Ia’. After leaming that she would

not have the opportunity to appeal her termination, plaintiff resigned effective January 5,

retaliation based on a protected activity.

2011 to avoid embarrassment, increase her chances of obtaining future employment, and
leave a work environment that caused her stress-related illnesses. Ia'. 1111 21-22.

Following her resignation, plaintiff filed a formal EEO complaint against SSA
management, alleging retaliation and coerced resignation, ld. 1111 22-23. Plaintiff filed
this suit on June 5, 20l2, seeking, among other things, compensatory damages,
reinstatement with back pay, transfer to a position of her choice, official performance
appraisals of "excellent" for every year since her hiring (including post-resignation years
in which she did not work for SSA at all), and legal fees. Id. jj 25.

On September 10, 2012, defendant moved to dismiss plaintiffs complaint. See
Def.’s Mot. to Dismiss. For the following reasons, defendant’s motion is GRANTED.

LEGAL STANDARD

Defendant moves to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure on the ground that it fails to state a claim upon which relief can
be granted. In evaluating defendant’s Motion to Dismiss, the Court must "treat the
complaint’s factual allegations as true" and "grant plaintiff the benefit of all inferences
that can be derived from the facts alleged." Sparrow v. Um'ted Az'r Lines, Inc., 216 F.3d
1111, 1113 (D.C. Cir. 2000) (citation and internal quotation marks omitted).

"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 Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (alteration in original) (citations and internal quotation marks
omitted). Rather, 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 (2009) (citation and internal quotation marks omitted); see also Twombly, 550 U.S. at
555 (factual allegations must "be enough to raise a right to relief above the speculative
level"). "[T]he court 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). Indeed, "where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged_but it has not ‘show[n]’_‘that the pleader is entitled to relief."’ Iqbal, 556
U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
ANALYSIS

"In order to prevail upon a claim of unlawful retaliation, an employee must show
she engaged in protected activity, as a consequence of which her employer took a
materially adverse action against her." Taylor v. Solis, 571 F.3d 13 13, 1320 (D.C. Cir.
2009) (emphasis added; internal quotation marks omitted); see also Pl.’s Mem. in Opp’n
to Def.’s Mot. to Dismiss ("Pl.’s Opp’n") at 1-2 (noting that Complaint "must allege that

the adverse [employment] action was taken in retaliation for . . . her protected activity,"

and it "fails a Rule 12(b)(6) challenge if it does not specify the adverse action or the

causal connection.").

The alleged adverse action-SSA’s proposed termination of plaintiffs
employment-is not in dispute. Plaintiff, however, has failed to plead facts that would
allow the Court reasonably to infer that defendant retaliated against her because of her
prior protected activity. In fact, the Complaint pleads the opposite: that plaintiffs
proposed termination was the result of events and motives unrelated to her EEO contact.

According to the Complaint, "the greatest change with regard to plaintiff s
employment situation at the hands of the management" came "sometime following the
immediate period after the Adams’ assault." Compl. 11 15. Only then did plaintiff
experience a "sharp, negative tum" in the workplace. Id. Plaintiff alleges no facts
linking either the assault on her coworker or defendant’s response to that assault, on the
one hand, to plaintiffs informal EEO complaint, on the other.

Instead, plaintiff alleges that Hindie’s increased scrutiny and proposed termination
of plaintiff stemmed from the supervisor’s "apparent embarrassment at not having
properly reacted" to plaintiff s assault claims seven months prior. Ia’. 11 17. Accepting,
as the Court must, that Hindie was "embarrassed" by her handling of the earlier assault
allegation, the Complaint pleads that it was this personal sense of embarrassment-not
plaintiffs informal EEO complaint_that caused Hindie to scrutinize plaintiff and

ultimately propose her ter1nination. Responding to defendant’s motion to dismiss,

plaintiff reiterates that Hindie was embarrassed by her own "poor management," which

"became even more obvious - and thus more embarrassing - when [her alleged attacker]
assaulted another female co-worker," Pl.’s Opp’n at 5, and this led to plaintiffs
ter1nination.
Yet, plaintiff pleads no facts to support the great inferential leaps that she asks the
Court to make, from plaintiffs EEO communications, to Hindie’s embarrassment
following the second assault, to plaintiffs proposed tennination. The Court cannot, on
the sole basis of plaintiffs vague and conclusory allegation that her supervisor was
embarrassed by her own job performance, reasonably infer retaliation against plaintiff.
The Complaint therefore fails to plead facts sufficient to support a plausible claim that
Hindie retaliated against plaintiff because of her protected communications with EEO.
Finally, it is also noteworthy that, according to the Complaint, plaintiff contacted

EEO in October 2009, Compl. 11 13, but the alleged retaliation did not begin for another
nine months in approximately July 20l0, id. 11 17. In the interim, Hindie supported
plaintiffs positive employment evaluation and promotion. Ia’. 11 12. Thus, even
assuming that retaliation could occur nine months after a protected activity and a positive
evaluation and promotion, plaintiff has failed to plead any facts that would allow the
Court to infer the necessary causation in this case. See, e.g., Taylor, 571 F.3d at 1322
(no inference of retaliation based on two-month proximity; collecting cases holding

same); Peterson v. Hantman, 2006 WL 1442662, at *9 (D.D.C. May 25, 2006) (causal

link broken by five-month interval and intervening promotion).

CONCLUSION
For all the foregoing reasons, defendant’s Motion to Dismiss [#10] is hereby
GRANTED. An appropriate order shall accompany this Memorandum Opinion.

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RICHARD J. LE@)N
United States District Judge

