UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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VALERIE KLINE, )
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Plaintiff, )

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v. ) Civil Action No. 14-cv—1498

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KATHERINE ARCHULETA, et a1., )
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Defendants. )

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MEMORANDUM OPINION

In this suit, Ms. Kline alleges that her employer, the United States Ofﬁce of Personnel
Management (OPM) discriminated or retaliated against her by giving responsibility for the
regulatory issuances system to Mr. Stephen Hickman instead of to Ms. Kline. Before the Court is
defendant’s motion [ECF No. 13] to dismiss, or in the alternative for summary judgment. Also
before the Court is plaintiffs motion [ECF No. 18] for leave to ﬁle an amended complaint.

I. BACKGROUND

In 2002, OPM hired Valerie Kline as a GS-12 Management Analyst to perform regulatory

duties. In 2003, however, Ms. Kline agreed to a reassignment to a revised position description that
included primarily non-regulatory publication duties. See 2003 Position Description of Valerie
Kline (“2003 Kline PD”), Defs.’ Ex. 3, ECF No. 13-3. This is the third District Court action along
with several administrative actions that Ms. Kline has ﬁled out of dissatisfaction with her job
requirements following her reassignment.

In Kline v. Springer, 602 F. Supp. 2d 234 (D.D.C. 2009), affd 404 Fed. App’x. 505 (DC.

Cir. 2010), Ms. Kline alleged that she had been subjected to discrimination in 2004-05 when she

received a “bad” evaluation of duties assigned to her under her new position description. In a
second suit, decided this date, Ms. Kline alleged that she was retaliated against when her
substantive regulatory duties were stripped from her after she complained to the EEOC. Kline v.
Archuleta, Civ A. No. 10-1802 (D.D.C. April 14, 2015) (“Kline II”).

In this case, Ms. Kline alleges OPM discriminated or retaliated against her “by giving
responsibility for the regulatory issuances system” to Mr. Stephen Hickman instead of to her.
Compl. at 8. While a more complete summary of the factual background in this case can be found
in the today’s companion case, Kline II, the relevant facts are as follows.

In 2006, in preparation for Ms. Carter’s retirement, OPM advertised a “GS-12-classiﬁed
position nearly identical to the one Plaintiff applied for and was hired to fill in 2002.” Opp’n 21.
This position was advertised as a full-time regulatory position. Nonetheless, Ms. Kline failed to
apply for this position, and OPM hired Mr. Stephen Hickman into the regulatory position.

In 2008, 0PM competitively advertised a GS-13 position with responsibility for managing
the regulatory issuances system in USAJOBS. Compl. 11 48. Ms. Kline did not apply for this
position either, and Mr. Hickman was ultimately promoted into this position.

Ms. Kline’s various allegations are indeed unclear and 0PM correctly points out that they

raise issues of res judicata and administration exhaustion, among others. For example, if Ms.

Kline’s claim is a “non-selection” claim, she lacks standing to challenge their actions because she

did not apply to either the 2006 GS-12 regulatory position or the GS-13 position filled in 2008.

In a creative attempt to avoid this obvious problem, Ms. Kline insists that she is not
bringing a “non-selection” claim but instead a claim of “failure to promote.” Opp’n at 10, ECF
No. 17. “[T]he discrimination claim in this case is not based on “non-selection” of the GS-12

classiﬁed position advertised in August 31, 2006, but that Defendants discriminated against

Plaintiff by assigning the duties encumbered under the GS-l3-classiﬁed position to Mr. Hickman
after Ms. Carter retired.” Id. at 11. Essentially, Ms. Kline alleges that 0PM advertised Mr.
Hickman’s GS-12 position “to unlawfully ﬁll Ms. Carter’s GS-l3 position” Opp’n 14.

Therefore, the only question before the Court is whether, after Ms. Carter retired, OPM
discriminated or retaliated against Ms. Kline when they assigned primary responsibility of
regulatory duties to Mr. Hickman rather than Ms. Kline. With the issue thus narrowed, the Court

considers defendant’s motion.

II. MOTION TO DISMISS

A motion to dismiss is appropriate when the complaint fails “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). Such a failure occurs when the complaint is so
factually deﬁcient that the plaintiff 5 claim for relief is not plausible on its face. Bell Atl.
Corp. v. T wombly, 550 U.S. 544, 570 (2007). A court must accept all factual statements made by
the non-moving party as true when deciding a Rule 12(b)(6) motion to dismiss. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). However, conclusory legal allegations devoid of any factual support
do not enjoy the same assumption of truth. Id. at 679. “Factual allegations must be enough to
raise a right to relief above the speculative level.” T wombly, 550 U.S. at 555.

Accepting all facts pleaded as true, and viewing all inferences in alight most favorable to
Ms. Kline, the Court ﬁnds that the complaint sets forth sufﬁcient factual allegations to support her
claim to relief. Accordingly, defendants’ motion is denied.

III. SUMMARY JUDGMENT
A. Legal Standard
Summary judgment should be granted when the “materials in the record, including

depositions, documents, electronically stored information, afﬁdavits or declarations, stipulations,

. . . admissions, interrogatory answers, or other materials” show “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)-(c). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 US. 317, 322, 106 (1986). Factual assertions in the
moving party’s afﬁdavits or declarations may be accepted as true unless the opposing party
submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly,
963 F.2d 453, 456 (DC. Cir. 1992).

B. Title VII Analysis

While a challenged action need not affect a plaintiff s employment status to be considered
unlawful retaliation, Baird v. Gotbaum, 662 F.3d 1246, 1249 (DC. Cir. 2011), the action must
“produce[] an injury or harm,” Burlington N. & Santa Fe Ry. Co. v. White, 548 US. 53, 67 (2006).
“[N]ot everything that makes an employee unhappy is an actionable adverse action” under Title
VII. Bridgeforth v. Jewell, 721 F.3d 661, 663 (DC. Cir. 2013) (internal quotation marks and
citations omitted). “Actionable retaliation claims are limited to those where an employee causes
‘material adversity,’ not ‘trivial harms.’” Wiley v. Glassman, 511 F.3d 151, 161 (DC. Cir. 2007)
(citing Burlington N., 548 US. at 68).

Ms. Kline apparently views the full-time regulatory position that was advertised as a kind
of promotion rather than a different position, and feels that these responsibilities should have been
given to her without having to apply. But despite her unsupported and subjective belief to the
contrary, Ms. Kline had no “right” to be assigned primary responsibility of regulatory duties.1 That

issue was discussed in a separate Opinion issued by this Court on this date, which held that Ms.

1 Indeed, this claim was probably never exhausted. The administrative judge in his order granting summary judgment
to 0PM recognized this: “[T]he decision to advertise the position, as opposed to simply giving the Complainant the
duties in question, is not before me as a separate issue.” Decision and Order, Defs.’ Ex. 14 at 7.

Kline had been reassigned to a job without primarily responsibility for substantive regulatory

work—instead, she was to “assist the regulatory team” as needed. See Kline [1. She cites no
authority for her unsupported assumption that 0PM had an obligation to “reassign” or “promote”
her into a different position. There is nothing in the record, other than Ms. Kline’s unsupported,
self-serving assertions, to suggest otherwise. Ms. Kline’s allegations that she was advised orally
by her supervisors in 2003 that that her position reassignment and PD change were “temporary”
and that she would “still assume responsibility for managing the regulatory issuances after Ms.
Carter retired,” Compl. W 20-21, are unsupported and unavailing. Her PD, which is undisputed,
clearly reassigned her into a new, non-regulatory position. Furthermore, Ms. Kline’s position was
at the full performance level, or the highest grade level established for a particular position—
sometimes called the “target level of a career ladder.” Declaration of Joseph J. Marcec (“Marcec
Decl.”) 1} 8, ECF No. 23-2. Therefore, Ms. Kline would only have been eligible for promotion after
competing for a position—she was not automatically eligible for any promotion. Id.

Thus, upon Ms. Carter’s retirement, 0PM advertised a position describing full-time,
substantive regulatory duties. Ms. Kline did not apply for this position. Ms. Kline argues that a
GS-l2 employee could not take over Ms. Carter’s duties, which were GS-l3—level responsibilities,
but she cites no law prohibiting such a practice. Aside from the fact that this is beyond the scope
of her discrimination or retaliation claim, Joseph Marcec, Manager of OPM’s Recruiting and
Stafﬁng Group, testiﬁed that it is “normal practice for Federal agencies to ﬁll a position at a lower
grade level than the previous incumbent. This provides developmental opportunities and growth
for candidates selected instead of ﬁlling the position at the full performance level.” Declaration of
Id. ﬂ 8. Indeed, Ms. Kline herself alleges that when she was originally hired as a GS— 1 2 employee—

with a nearly identical PD—it was with the intent that she take over Ms. Carter’s duties when she

retired. But Ms. Kline had since been reassigned into a new position that “is very different, and
consisted primarily of publications duties,” id. 11 13; see also 2003 Kline PD, whereas the position
advertised in 2006 “is focused almost exclusively on the regulatory issuances program of the
PMG,” id. 11 14.

Therefore, Ms. Kline needed to apply for the GS-12 regulatory position if she was
interested in a position with primary responsibility of regulatory duties. Yet, she failed to apply
for the GS-12 position, apparently still misunderstanding the contours of her own, different,
position.

IV. LEAVE TO AMEND

Ms. Kline seeks leave to amend her complaint “to include facts and legal representations
that detail the liability of each of the individual Defendants, as well as statements of law detailing
how Defendants Holder and Machen failed to seek justice and promote the public interest,
committed fraud on the court, and obstructed justice.” Pl.’s Mot. for Leave to Am. 3.

Rule 15(a) declares that leave to amend “shall be freely given when justice so requires.”
Nonetheless, a court may deny a motion to amend if it finds undue delay, bad faith, or dilatory
behavior on the part of the movant, undue prejudice to the opposing party or futility of amendment.

Ponce v. Billington, 652 F. Supp. 2d 71, 73 (D.D.C. 2009) (citing Foman v. Davis, 371 U.S. 178,

182 (1962)). As this Opinion explains, it is clear from the record that Ms. Kline did not suffer any
adverse action in this case, as she was never entitled to primary responsibility of regulatory duties

and she failed to apply for the positions that did encompass these duties. As such, there is no set
of facts under which the individual defendants could be held personally liable. Ms. Kline’s

proposed amendments would most certainly be futile, and the Court denies her motion to amend

her complaint.

V. CONCLUSION

For the aforementioned reasons, plaintiff‘s motion for leave to amend her complaint will
be DENIED, defendant’s motion for summary judgment will be GRANTED and plaintiff‘s case
DISMISSED. A separate Order consistent with this Opinion shall issue on this date.

Signed April 14, 2015 by Royce C. Lamberth, United States District Judge.

