UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KATHERINE A. CURETON,
Plaintiff,

v. Civil Action No. 17-2209 (RJL)

KIRSTJEN NIELSEN, Secretary,
U.S_. Department of Homeland Security,
et al.,

FILED

SEP 26 2018
D'efendants.

\/\./V\/\./\/\/\./\./\./\/

Clork. U.S. D|strict & Bankruptcy
Courts tor the District of Columbla

+¢.

MEMORANDUM OPINION
September §§ , 2018 [Dkt. # 6]

Plaintiff, appearing pro se, sues the U.S. Department of Homeland Security
(“DHS”) and several DHS employees, claiming reprisal for engaging in protected activity
under Title Vll of the Civil Rights Act, 42 U.S.C. § 2000e The complaint is far from clear
but stems from an alleged negative reference that “management officials” of the Office of
Chief Financial Officer (“OCFO”) provided to Immigration and Customs Enforcement
(“ICE”) as part of a pre-employment screening investigation Compl. 1 III.

Pending is defendants’ Motion to Dismiss [Dkt. # 6] (“Defs.’ Mot.”) under Rule
lZ(b)(6) of the Federal Rules of Civil Procedure, Which plaintiff has opposed. See Pl.’s
Opp’n to Def.’s l\/Iot. to Dismiss [Dkt. # 8] (“Opp’n”). Defendants contend that plaintiff
failed to timely exhaust her administrative remedies and has otherwise failed to plead

sufficiently under Rule 8(a) of the Federal Rules of Civil Procedure. In addition,

defendants contend that dismissal of all named defendants except Dl-lS Secrctary Kirstjen
Nielsen is required. Plaintiffhas filed an unfocused opposition recounting events that were
the subject of her previous employment discrimination cases in this court. See Careton v.
Nz`elsen, 304 F. Supp. 3d 102 (D.D.C. 20l8), appeal alisml`ssea’, No. 18-5l04, 2018 WL
4099617 (D.C. Cir. July 25, 20l8) (“Carelon I]"); Carelc)n v. Da/ce, 272 F. Supp. 3d 56
(D.D.C. 2017), appeal dismissed sub nom. Carelon v. Nielsen, No. 17-5251, 2018 WL
4154788 (D.C. Cir. July 25, 2018) (“Carel'on [”). For the reasons explained below,
defendants’ motion is GRANTED.
BACKGROUND

Plaintiff claims generally “Employment Discrimination Based upon Reprisal,
previous EEO activity during federal employment 9/2013, 8/2015, 2/2016.” Compl. 11 ll.
A. She “believes she has been subjected to intentional discrimination and treated unfairly
by DHS” since September 16, 2013, when she filed an age discrimination claim “while
employed by DHS” at the OCFO. Opp’n at l; see also Compl. at 5.l ln this case, plaintiff
reasserts a retaliation claim that was dismissed in 2017 for failure to exhaust administrative
remedies. Defs.’ l\/lot. at 2 (citing Carel'on [). The relevant facts follow.

A. Adverse Fitness Decision

On March 14, 2016, plaintiff was offered the full-time position of Senior Records

l\/lanager/Project l\/lanager with a federal contractor, BarnAllen "l`echnologies, lnc. rl`hc

position was assigned to lCE’s Agency Records l\/lanagement project located at an ICE

' All page citations are those automatically assigned by the Cl\/l/ECF system.

facility in Washington, D.C. See Compl. Attachments |:Dl<t. # l-l] at 7 (offer lettcr).
Plaintiff`s “expected start date [was] contingent upon” the government’s “acceptance of
[her] qualifications” and “a favorable security clearance by the government.” [al.

By letter ofl\/lay 6, 2016, plaintiffwas informed by Anthony Pierri, lCE`s Section
Chiefofthe Personnel Security Unit, that “based upon the investigative results” of the pre-
employment screening, she was “found unfit” due to “dishonest conduct as evidenced by
your failure to honor just debts.” Compl. Attach. at 15 (f1tness letter). Plaintiff attributes
Pierri’s decision to an alleged “negative reference” that certain senior managers at OCF()
had allegedly provided “Anthony Pierri and/or Kim l'lodge.” Ia’. at 4¢5. Plaintiffsurmises
that Pierri “overturned l\/ls. Hodge’s favorable suitability deteriniliation” that she alleges
was “granted . . . via phone.” la’. at 5.

B. Related EEO Activity

l\/leanwhile, in l\/larch 2016, plaintiff filed an EEO complaint, charging that DHS
Headquarters failed to hire her in February 2016 for an advertised l\/lanagement and
Program Analyst position because of her prior EEO activity. Carelon I, 272 F. Supp. 3d
at 60. Plaintiff sought to amend that charge in l\/lay 2016 to add a claim of reprisal arising
from the foregoing fitness decision, but DHS denied plaintiffs request upon determining
that the amended claim was “not like or related to [the original] Complaint, as it involves
a different agency, i.e. ICE, and could not have been reasonably expected to grow out of
the investigation of the original claim against this agency.” Ia’. (record citations omitted).
'l`he letter provided information about pursuing an EEO claim with ICE, including the name

and address of the office to contact. Ia’.

On reconsideration, DHS l*leadquarters affirmed the decision to deny the
amendment as to lCE’s fitness decision but permitted plaintiffto add a charge based on the
alleged “negative employment reference” OCFO managers Rhonda Brooks and Chip
Fulghum gave in l\/lay 2016 “in the course” of plaintiffs “candidacy for the contractor
position" at BarnAllen fechnologies, lnc. See Compl. Attach. at l (June 3, 20l6 Amended
Acccptance Letter ~ Revised); see also Careton [, 272 F. Supp. 3d at 60¢61. The appeal
letter again referred plaintiff to ICE’s EEO office to redress lCE’s negative fitness
determinationl See Carelon I, 272 F. Supp. 3d at 60. As of October 26, 2016, ICE had no
record of plaintiffs contacting lCE’s Office of Diversity and Civil Rights, which “is
responsible for receiving and processing EEO complaints filed by employees and
applications oflCE.” Ia’. at 61 (record citation omitted).

LEGAL STANDARD

A Rule l2(_b)(6) motion to dismiss challenges the adequacy of a complaint on its
face, testing whether a plaintiff has properly stated a claim. “While a complaint attacked
by a Rule l2(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs
obligation to provide the grounds of [her] eiititle[inelit] to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Al‘lanlz`c Corp. v. Twambly, 550 U.S. 544, 555 (2007) (alteration in original)
(citations and internal quotations marks omitted). T he complaint “must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Aslzcrofl v. labal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).
“[T]he [C]ourt need not accept inferences drawn by plaintiff[] if such inferences are

4

unsupported by the facts set out in the complaint.” Kowal v. MC[ Commc'ns Co)"p., 16
F.3d 1271, 1276 (D.C. Cir. 1994).

ln ruling on a Rule l2(b)(6) motion to dismiss, the Court may consider “any
documents either attached to or incorporated in the complaint . . . without converting the
motion to dismiss into one for summary judgment.” Ba/cer v. He)'zcle/”son, 150 F. Supp. 2d
13, 15 (D.D.C. 2001) (citations omitted). This includes documents that are “referred to in
the complaint and |:] central to the plaintiffs claim’ ” even if they are produced not by the
plaintiff in the complaint but by the defendant in a motion to dismiss. Solomon v. Q/j(ice
ofthe A)"cltl`l'ect ofthe Capl`tol, 539 F. Supp. 2d 347, 349-50 (D.D.C. 2008) (citing Vanover
v. Hanlman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), a}j”cl 38 lied. Appx. 4 (D.C. Cir. 2002))
(internal citations omitted). ln addition, the Court may consider “matters of which it may
take judicial notice,” EEOC v. Sz‘. F/”ancl,`s Xavler Parochl`al Sch., 117 F.3d 621, 624 (D.C.
Cir. 1997), including to some extent “court records from other cases,” Harcl v. D. C., Gov’l,
864 F.3d 671, 686 (D.C. Cir. 2017).

ANALYSIS
A. The Proper Defendant

As before, the Court agrees that DHS Secretary Nielsen sued in her official capacity
is the only proper defendant Therefore, Charles Chip Fulghum, Rhonda Brooks, Diana
Huron, and Anthony Pierri are dismissed as party-defendants See Careton 1[, 304 F. Supp.

3d at 107; Ca/”elon [, 272 F. Supp. 3d at 63 (finding same).

B. Exhaustion of Administrative Remedies
lt is well-established that federal employees must exhaust their administrative

remedies before bringing lawsuits in federal court under the antidiscrimination statutes, see
Gz‘ll)el”t v. Napolltano, 958 F. Supp. 2d 9, 12 (D.D.C. 2013) (citing cases), for either a
“retaliatory or discriminatory” act, Nal'l R.R. Passenger Co)”p. v. Morgan, 536 U.S. 101,
110 (2002). See 29 U.S.C. §§ 633a(b)~(d)_; 29 C.F.R. § 1614.105(a)(1) (outlining EEOC
procedures for federal employees); Gomez-Perez v. Pol'ter, 553 U.S. 474, 477 (2008) (a
“federal employee who is a victim of retaliation due to the filing of a complaint of age
discrimination may assert a claim under the federal-sector provision of the Agc
Discrimination in Employment Act of 1967”); Nl`slcey v. Kelly, 859 F.3d 1, 3 (D.C. Cir.
2017) (holding district court’s dismissal ofboth discrimination and retaliation claims “for
failure to exhaust [ ] administrative remedies” was proper). ”l`he process for administrative
adjudication has been described as follows:

To begin that process, the employee generally must contact an EEO

counselor to complain about the alleged violation within 45 days of its

occurrence. 29 C.F.R. § 1614.105. . . .lfthe matter is not resolved through

counseling, the employee must timely file an administrative complaint

with the agency’s EEO office. See 29 C.F.R. § 1614.106(a)-(c). After the

agency has the opportunity to investigate the matter, the complainant may

demand an immediate final decision from the agency or a hearing before

an EEOC administrativejudge. See 29 C.F.R. § 1614.106(€)(2); 29 C.F.R.

§ 1614.108(1'). A complainant may file a civil action within 90 days of

receipt of the final decision from the agency or after a complaint has been

pending for at least 180 days. See 29 C.F.R. § 1614.407.
Ca/”elon [I, 304 F. Supp. 3d at 108 (quoting Koch v. Walter, 935 F. Supp. 2d 164, 169-70
(D.D.C. 2013)). Under the ADE/-\, an employee may forego the administrative process by

filing a notice of intent to sue with the Equal Employment Opportunity Commission

6

(“EEOC”) within 180 days ofthe alleged unlawful practice, and waiting thirty days before
commencing suit in a United States district court. Careton [, 272 F. Supp. 3d at 63 (citing
Peyas v. Lalzooa’, 919 F. Supp. 2d 93, 99 (D.D.C. 2013)); see also 29 U.S.C. §§ 633a(c)-
(d).

Defendant contends that the time for plaintiff to pursue her remedies with regard to
the negative fitness determination began to run on l\/lay 11, 2016, when she allegedly
received Pierri’s letter. Defs.’ l\/lot. at 10-11. Plaintiff` does not claim, and the record does
not show, that she contacted an EEO counselor within 45 days (by June 26, 2016), or filed
an intent-to-sue notice with the EEOC within 180 days (by November 8, 2016). Rather,
plaintiff contends, apparently based on the Court’s previous dismissal of certain claims
without prejudice, that she was “granted . . . consent to re-file the case as it related to the
unfavorable suitability decision issued by Anthony Pierri, Senior ICE official.” Opp’n at
2. ”l`heref`ore, she posits, this “case should be allowed to proceed without a decision . . . on
the motion to reinstate the Age Discrimination Complaint also filed in October 2017,” in
Carelon [. Ia’.; see also Opp’n Ex. A at 4-6. Plaintiff fails to mention that the motion to
reinstate was denied because it sought to revive her claim predicated on EEO charges made
in 2013, which was dismissed as time-barred See Carelon 1, No. 16-cv-1270, l\/larch 6,
2018 Order [Dkt. # 35]. Nevertheless, for the reasons discussed next, the Court finds that
plaintiff has failed to state a viable claim.

C. Retaliation

“To prove unlawful retaliation, a plaintiff must show: (l) that [she] opposed a

practice made unlawful by Title Vll; (2) that the employer took a materially adverse action

7

against [her]; and (3) that thc employer took the action ‘because’ the employee opposed
the practice.” McGrat/i v. Cli`nfon, 666 F.3d 1377, 1380 (D.C. Cir. 2012). The first element
is not satisfied “if the practice the employee opposed is not one that could reasonably and
in good faith be regarded as unlawful under Title Vll[.]” ]a'. The second element requires
a showing of action “that would have dissuaded a reasonable worker from making or
supporting a charge of`discrimination.” Balocli v. Kemptlzorne, 550 F.3d 1191, 1198 (D.C.
Cir. 2008) (quoting Barll`nglon N. & Sama Fe Ry. Co. v. W/zlz‘e, 548 U.S. 53, 68 (2006))
(other citation omitted). 'l`he third element requires a causal link between the adverse
employment action and the protected activity, i'.e., the protected activity “was the but-for
cause” ofthe adverse decision. Um`v. ofTexas Sw. Mea’. Cir. v. Nassar, 570 U.S. 338, 343,
362 (2013) ('following Gross v. FBL Fz`na)/lcl`al Servlces, [nc., 557 U.S. 167 (2009) (ADEA
case)).

ln support of her claim, plaintiff offers (1) sweeping allegations about her EE()
activity since September 2013, and (2) Pierri’s negative fitness decision, which presumably
led to the rescission ofthe federal contractor’sjob offer with ICE.2 Plaintiffhas not alleged
in the complaint or opposition that Pierri was aware ofher EEO activity and disqualified

her for that reason. ln her opposition in fact, plaintiffclarifies that Pierri “did not directly

 

2 Plaintiffs claim that OCFO managers Rhonda Brooks and Chip Fulghum provided a
negative employment reference to ICE was accepted as an additional charge in the EEO
complaint against DHS Headquarters, see Compl. Attach. At 1 (June 3, 2016 Amended
Acceptance Letter - Revised), and is not a subject of this litigation. To the extent that the
complaint may be construed as including a claim based on that allegation, the outcome is
the same because the presumed rescinded job offer based on the unfit decision is the only
materially adverse action gleaned from the complaint

8

discriminate against” her “in the handling of [her] Public Trust re-investigation” but
“simply failed to follow the appropriate procedures outlined in the DHS Personnel Security
Procedures for former agency employees with outstanding debt.” Opp’n at 2. But a
“finding of a failure on the part of the prospective employer to follow its own regulations
and procedures, alone, may not be sufficient to support a finding of age discrimination . .
.[I]t is essential that the claimant establish discriminatory motive.” Jolznson v. Lehman,
679 F.2d 918, 922 (D.C. Cir. 1982) (internal quotation mark omitted)). And without a
viable employment discrimination claim, plaintiffs retaliation claim has no traction under
federal law. See Haz'rston v. Vance-Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014) (instructing
that “[e]ven if a plaintiff was victimized by poor selection procedures, we may not second-
guess an employer’s personnel decision absent demonstrably discriminatory motive”)
(quoting Fischbaclz v. D.C. Dep’t of Correctl'ons, 86 F.3d 1180, 1183 (D.C. Cir. 1996)
(internal quotation marks omitted)).
CONCLUSION

For the foregoing reasons, defendants’ motion is GRANTED, and plaintiffs

complaint is DISMISSED. A separate Order consistent with this decision accompanies

this Memorandum Opinion

l

RICHARD J,{LEON!
United States Judge

