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Rouse v. McHugh

United States District Court, M.D. Tennessee, Nashville Division

April 27, 2015

VELESTA ROUSE, Plaintiff,
v.
JOHN M. McHUGH, Secretary Department of the Army, Defendant.

MEMORANDUM OPINION

TODD J. CAMPBELL, District Judge.

Pending before the Court is Defendant's Partial Motion To Dismiss Plaintiff's Amended Complaint. Docket No. 30. For the reasons stated herein, the Court will grant Defendant's motion in part and deny it in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff was employed by the Department of the Army as a Human Resources Assistant at Fort Campbell, Kentucky. In October 2010, Plaintiff filed her first Equal Employment Opportunities ("EEO") complaint alleging discrimination and hostile work environment on the bases of her race (African American), color (black), sex (female), and age (over 40). She later withdrew her complaint. She alleges that after withdrawing the EEO complaint, she was subjected to a hostile work environment for having filed it.

On March 20, 2011, Plaintiff filed a second EEO complaint alleging discrimination on the bases of her race, color, sex, and age and also reprisal for her prior EEO complaint. On August 7, 2012, the Department of the Army issued a final decision rejecting Plaintiff's claims. Docket No. 3-2 (Final Decision on Second EEO Complaint).[1] The Army's final decision included an explanation of Plaintiff's appeal rights, but Plaintiff did not file an appeal or file a civil action in the United States District Court.

On June 18, 2011, while her second EEO complaint was pending, Plaintiff left her position as Human Resources Assistant for the Department of the Army and accepted a job with the U.S. Army Corps of Engineers in Nashville, Tennessee. Plaintiff alleges that the day before her departure, on June 17, 2011, at a farewell luncheon in her honor, one of her supervisors, Valencia Bratton, warned her, "don't go to Nashville talking bad about us because you may want a job back at Fort Campbell someday." Docket No. 26-1 at 4 (Amended Complaint).

Ten months later, on April 25, 2012, Plaintiff applied for an Administrative Specialist position at Fort Campbell. On July 6, 2012, Plaintiff received notification that she had not been referred for the position. Plaintiff believes Ms. Bratton used her influence to keep Plaintiff from being referred for the position as retaliation for her filing EEO complaints. On September 20, 2012, Plaintiff received a Right to File a Formal Complaint of Discrimination from the EEO.

On September 28, 2012, Plaintiff filed her third Formal Complaint of Discrimination, which is the underlying basis for this action. Docket No. 31-1 ("Third EEO Complaint").[2] In response to the instructions on the complaint form to check all the boxes that identify the bases of the allegation of discrimination, Plaintiff checked only "Reprisal" and indicated that the date of the prior EEO activity was February 2010 through April 2011. Id. at 1. Plaintiff did not check the boxes for race, color, sex, age, national origin, religion, or disability. In the portion of the form that requests an explanation of when and how the complainant was discriminated against, Plaintiff indicated that she had been denied advancement since "at least 2006" because of prior EEO activity and listed several examples dating back to 2010. She alleged that Ms. Bretton "has used her position to defame my reputation and poison the well of my every attempt to compete for promotions dating back to Nov/Dec/2010" by telling decision makers "to not select me because I had violated trust by filing an EEO Complaint." Id. at 2. Plaintiff further alleges that prior to leaving Fort Campbell as a result of "ongoing reprisal and hostile work environment, " she had to go to a luncheon at which Ms. Bretton made humiliating comments to her. Id. at 2. Plaintiff lists on the form witnesses allegedly present at "the luncheon" who heard "the humiliating comments, " individuals with knowledge "of all selections/non-selections since 2010, " including "the non-referral of Administrative Specialist Position." Id. Plaintiff's current counsel represented her in the filing of the Third EEO Complaint.

On May 28, 2014, the Army issued its Final Decision on Plaintiff's Third EEO Complaint.[3] Docket No. 34-1 (Final Decision on Third EEO Complaint). The Final Decision addressed the incident at her farewell luncheon on June 17, 2011 and the Army's decision to not refer her for the position as an Administrative Specialist. With respect to Plaintiff's allegation that she was forced to attend the farewell luncheon and subjected to humiliating comments, the Final Decision indicates that "the evidence does not support her claim that she was ordered to attend, " nor does it support her "contention that humiliating and threatening remarks were made to her" at the luncheon. Id. at 8-9. As to Plaintiff's contention that her non-referral for the Administrative Specialist position was the result of discrimination or created a hostile work environment, the Final Decision states that Derrick Graves was the Human Resources Specialist responsible for rating and ranking the referral list for this position and issuing the list with the best qualified applicants to management. Upon receiving Plaintiff's inquiry about the reason she had not been referred for the position, Mr. Graves reviewed the process he had used to rate the applicants. He discovered that he had mistakenly failed to refer five applicants, including Plaintiff, based on his erroneous understanding of what the "breakpoint" was that distinguished the "best qualified applicants" from the "minimally qualified" applicants. Id. at 7. The Final Decision indicates that, "Mr. Graves said he was directed to prepare letters to each of the five applicants that had not been referred advising them that an error in the rating process occurred and they would be given priority consideration for referral for the next like' position that became available." Id. Plaintiff's Amended Complaint does not address this issue or provide information about whether the Army did, in fact, give her priority consideration for the next "like" position that became available.

On August 26, 2014, Plaintiff filed the Complaint in this matter. Docket No. 1. On February 13, 2015, Plaintiff filed an Amended Complaint, asserting the following causes of action: (1) violations of the Civil Rights Act of 1964; (2) violations of the Civil Rights Act of 1991; (3) violation of the Age Discrimination in Employment Act ("ADEA").

II. Standard of Review

For purposes of a motion to dismiss, the Court must take all of the factual allegations in the complaint as true. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 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. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 1950. A legal conclusion couched as a factual allegation need not be accepted as true on a motion to dismiss, nor are recitations of the elements of a cause of action sufficient. Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).

III. Legal Analysis

A. Title VII ...


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