UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANIE COLE, )
)
Plaintiff, )
)
v. ) Civil Case No. 07-1829 (RJL)
)
EARL A. POWELL III, )
Director of the National Gallery of Art, )
)
Defendant. )
MEMORANDtkoPINION
(March fl, 2009) [#8]
Plaintiff Janie Cole ("Cole"), a Christian, claimed that the National Gallery
of Art ("the Gallery") discriminated against her when it failed to promote her from
a GS-9 to a GS-ll position, allegedly because of her religion. A settlement
agreement resolved that discrimination claim, but, in her complaint before this
Court, plaintiff argued that the agreement was void and itself constituted
retaliation in violation of Title VII and the Family Medical Leave Act ("FMLA").
Plaintiff further alleged that the Gallery constructively discharged her by failing to
investigate her discrimination claims and by preventing her from using medical
leave to treat her depression. Because plaintiff has failed to state a claim upon
which relief can be granted, the Court GRANTS defendant's motion to dismiss.
BACKGROUND
Cole served as a personnel staffing assistant, a GS-9 position, at the
Gallery. Compl. ~ 12; Def. Mot. at 2. In August 2005, she filed an Equal
Employment Opportunity complaint alleging that the Gallery denied her a
promotion to a GS-ll position because of her religion, stating that "Jewish
management was favoring Jewish employees" over her. CompI. ~~ 7, 10. The
Gallery and Cole settled the EEO complaint with an agreement in October 2005.
CompI. ~ 16; Def. Mot. Exs. 1_2.1
Under the terms of the agreement, Cole would withdraw her EEO
complaint and waive any religious discrimination claims "which were or could
have been raised on or before the effective date of' the agreement. Def. Mot. Ex.
1 ~ 2. In return, the Gallery would promote Cole to a GS-ll position after ninety
days if she "demonstrate[ d] improved and sustained dependability in the area of
scheduling leave in advance, arriving on time, and maintaining reliable attendance
during said ninety (90) day period." Id. ~ 4. The agreement set out specific
requirements for Cole during these ninety days, including scheduling leave 24
hours in advance and submitting documentation to justify unscheduled leave. Id. ~
5. The agreement also provided that, in the event of an alleged breach, the non-
breaching party must notify the EEO Officer, in writing, of the non-compliance
within thirty days of when the party knew or should have known of the breach. Id.
~ 12.
1 A court can consider materials outside the complaint without converting the motion to one for summary
judgment when the documents are incorporated into the complaint and are central to the plaintiffs claim.
Jacobsen v. Oliver, 201 F. Supp. 2d 93, 110 (D.D.C. 2002). Because the settlement agreement and the
denial of Cole's promotion are mentioned in the complaint and are central to plaintiff's claim, this Court
will consider those documents without converting defendant's motion.
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Because Cole had three unscheduled absences during the ninety-day period,
the Oallery denied Cole the promotion from a OS-9 to a OS-II position on
January 24,2006. Def. Mot. Ex. 3. On February 28, 2006, Cole contacted an
EEO Officer and asserted the agreement was void. Compl. ~ 36. A few months
later, on July 20, 2006, Cole began to take unpaid medical leave pursuant to the
FMLA, which expired on September 19,2006. Compl. ~ 83.
Cole filed her suit in this Court on October 10,2007, alleging that the
settlement agreement was unenforceable, that the agency's enforcement of the
agreement was retaliation in violation of Title VII and the Family Medical Leave
Act ("FMLA"), and that defendant constructively terminated plaintiff in violation
of Title VII and the Rehabilitation Act. Compl. ~~ 15-87. Defendant filed its
motion to dismiss on May 6, 2008, arguing that plaintiff failed to state a claim for
which relief can be granted. For the following reasons, I agree.
DISCUSSION
Under Rule 12(b)(6), dismissal of a complaint is appropriate when a
plaintiff has failed to state a claim upon which relief can be granted. Fed. R. Civ.
P. 12(b)(6). Although "detailed factual allegations" are not necessary to survive a
Rule 12(b)( 6) motion to dismiss, a plaintiff must furnish "more than labels and
conclusions" or "a formulaic recitation of the elements of a cause of action." Bell
At!. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). The factual allegations in the
complaint must be enough "to raise a right to relief above the speculative level ...
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on the assumption that all the allegations of the complaint are true (even if
doubtful in fact)." Id.
The complaint "is construed liberally in the plaintiffs' favor, and [the Court
should] grant plaintiffs the benefit of all inferences that can be derived from the
facts alleged." Kowal v. MCI Commc 'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994). However, the court need not accept as true "legal conclusions cast in the
form of factual allegations." ld.; see also McManus v. District of Columbia, 530
F. Supp. 2d 46,64 (D.D.C. 2008).
Plaintiffs conception of the application of Rule 12(b)(6) appears to differ
from this settled law. She states that "'demonstrating' ... a claim is valid or void
requires evidence," and because no evidence has been presented, defendant cannot
succeed on its motion to dismiss. PI. Opp. at 6. This argument misses the point.
The question now before the Court is not whether the evidence supports plaintiff s
claims; it is whether, accepting all facts in the complaint as true, plaintiff has
stated a claim for which relief can be granted. She has not.
III. Contract Claims
A. Exhaustion ofAdministrative Remedies
An Equal Employment Opportunity Commission ("EEOC") complainant
must timely exhaust her administrative remedies before filing suit in a federal
district court. Bowden v. United States, 106 F.3d 433,437 (D.C. Cir. 1997).
Under these administrative procedures, an employee who believes an agency has
failed to comply with a settlement agreement must contact an EEO officer within
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thirty days of when the employee knew (or should have known) of the alleged
noncompliance. 29 C.F.R. § 1614.504(a); Herron v. Veneman, 305 F. Supp. 2d
64, 71 (D.D.C. 2004).
However, Cole does not allege that the agency failed to comply with the
settlement agreement, but that the agreement itself is void and unenforceable. PI.
Opp. at 5. Whether the exhaustion requirements of29 C.F.R. § 1614.504(a),
which references only noncompliance claims, apply in these circumstances is a
question not easily resolved. See Baker v. England, 2002 WL 1841060, at *1
(EEOC Aug. 6,2002) (requiring exhaustion under 29 C.F.R. § 1614.504(a) when
complainant alleged he was coerced into signing the agreement). The Court need
not decide that issue here, however, because even assuming the requirements of 29
C.F.R. § 1614.504(a) do not apply, defendant's motion to dismiss must still be
granted because plaintiff has not alleged sufficient facts to support her claim that
the settlement agreement is unenforceable.
B. Enforceability of the Settlement Agreement
Plaintiff makes several claims questioning the enforceability of the
agreement, arguing that it is void on public policy grounds, lacks consideration,
and is the product of mistake and fraud. Compi. at 7. While the basis for these
claims is somewhat unclear from the complaint, none of these allegations are
supported by the facts as plaintiff has alleged them or by the terms of the
agreement itself.
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Plaintiff first alleges that the agreement is unenforceable because it binds
the plaintiff from asserting "any present or future rights" to a OS-II position.
Compl. ~ 25. This is incorrect. The agreement waives claims "which were or
could have been raised on or before the effective date." Def. Mot. Ex. I ~ 2
(emphasis added). Settlement agreements containing this type of release are
undoubtedly enforceable. See, e.g., Mwabira-Simera v. Sodexho Marriot Mgmt.
Servs., 2005 WL 1541041, at *2 (D.D.C. Jun. 30,2005) (settlement agreements
releasing Title VII claims that were or could have been alleged in the underlying
case "are routinely enforced").
Plaintiff next asserts that the agreement's requirement that she "enhance her
use" of medical leave interferes with her rights under the FMLA and is therefore
unlawful. Compi. ~~ 31-32. However, the agreement's notice and documentation
requisites for the use of leave - requiring leave to be scheduled at least twenty-
four hours in advance, and, in instances of unscheduled leave, requiring
documentation that reflects a bona fide emergency - are in full accord with the
FMLA. 29 C.F.R. § 825.303(a) ("When the approximate timing of the need for
leave is not foreseeable, an employee must provide notice to the employer as soon
as practicable[.]"); 29 U.S.C. § 2613 ("An employer may require that a request for
leave ... be supported by certification issued by the health care provider of the
eligible employee[.]"). Plaintiffs allegation that the terms of the agreement
interfere with her FMLA rights is therefore without merit.
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Finally, plaintiff argues the agreement fails for a lack of consideration
because "Plaintiff is not Jewish and the religious identity of the Plaintiff is the core
of her allegations of discrimination and the very purpose of the Settlement
Agreement." Compl. ~ 46. This argument is both unclear and untenable. The
consideration offered in the agreement is sufficient: the Gallery agreed to promote
plaintiff if she met specific and easily-attainable leave requirements. Def. Mot.
Ex. 1 ~~ 4-5; see 2 Corbin on Contracts § 5.31 (1995) ("A promise can be
consideration for a return promise even though it is conditional."). In return,
plaintiff agreed to withdraw and waive her religious discrimination claims. Def.
Mot. Ex. 1 ~~ 1-2. Plaintiff nowhere explains how the agreement fails to address
her EEO claim, or where it fails for consideration. These claims, too, must
therefore be dismissed. 2
II. Constructive Discharge
Plaintiff alleges that the Gallery constructively discharged her in violation
of two statutes: Title VII and the Rehabilitation Act. To support this claim,
plaintiff must show "( 1) intentional discrimination existed, (2) the employer
deliberately made working conditions intolerable, and (3) aggravating factors
justified the plaintiffs conclusion that she had no option but to end her
employment." Turner v. District a/Columbia, 383 F. Supp. 2d 157, 171 (D.D.C.
2 The Court has considered plaintiffs other claims, including her allegation that the agreement is the
product of mistake and fraud, Compl. at 7, and found them to be "legal conclusions cast in the form of
factual allegations." Kowal, 16 F.3d at 1276. As such, these claims cannot withstand a motion to dismiss.
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2005). Because plaintiff has failed to satisfy this standard under either Title VII or
the Rehabilitation Act, her claim must be dismissed.
Plaintiff does not allege any facts to support her constructive discharge
claims under the Rehabilitation Act. She asserts that the Gallery constructively
discharged her when it "sought to prevent [her] from using medical leave to treat
her disability." Compl. ~ 86. But she presents no facts in her complaint that show
either that the employer deliberately made working conditions intolerable, or that
any aggravating factor justified her conclusion that she had no choice but to end
her employment. See Turner, 383 F. Supp. 2d at 171 (dismissing plaintiff s
constructive discharge claim when plaintiff did not "allege any aggravating factor
close in proximity to her resignation and justifying her conclusion that she had no
option but to retreat to a lesser position, other than her own development of
illness."). Plaintiffs sparse allegations are insufficient to withstand a motion to
dismiss.
The basis for plaintiffs Title VII constructive discharge claim is equally
flawed. The only support for the claim are plaintiffs allegations that an EEO
Officer, after the settlement agreement was signed, "refused to allow Ms. Cole to
obtain counseling," and that plaintiff experienced a "continued and pervasive
pattern of discrimination, retaliation, and reprisal, which has included the
improper hijacking of the EEO counseling process." Compl. ~~ 73, 75. But this
alleged failure in EEO procedure is insufficient to establish even a discrimination
claim because "there is no cause of action under Title VII for complaints of delay
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or interference in the investigative process." Keeley v. Small, 391 F. Supp. 2d 30,
45 (D.D.C. 2005); see also Jordan v. Summers, 205 F.3d 337,342 (7th Cir. 2000).
Because "constructive discharge ... requires a finding of discrimination and the
existence of certain aggravating factors," Mungin v. Katten Muchin & Zavis, 116
F.3d 1549, 1558 (D.C. Cir. 1997) (emphasis added) (internal quotations omitted),
plaintiff s failure to state a discrimination or retaliation claim necessarily means
that her constructive discharge claim fails as a matter of law.
Because plaintiff has failed to state a claim for constructive discharge under
either Title VII or the Rehabilitation Act, the defendant's motion to dismiss those
counts is granted.
III. Retaliation Claims
Plaintiff further alleges that the Gallery retaliated against her for her
protected activities under Title VII and the FMLA. However, the Gallery's only
"retaliatory" activity, as alleged by plaintiff, was to enforce the terms of the
settlement agreement. Such an allegation cannot withstand a motion to dismiss.
To state a claim for retaliation under either Title VII or the FMLA, plaintiff
must allege: (1) she engaged in protected behavior; (2) the employer took
materially adverse action against her; and (3) a causal relationship existed between
the protected activity and the subsequent adverse action. Norden v. Samper, 503
F. Supp. 2d 130, 156 (D.D.C. 2007); see also Beard v. Preston, 576 F. Supp. 2d
93, 102 n.ll (D.D.C. 2008). A materially adverse action is one that "might have
dissuaded a reasonable worker from making or supporting a charge of
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discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,68
(2006) (quoting Rochon v. Gonzales, 438 F.3d 1211,1213 (D.C. Cir. 2006)).
Such an action is not present in this case. The conditions imposed by the
settlement agreement - conditions to which the plaintiff agreed - are reasonable
restraints on the use of unscheduled absences and limitations on tardiness. A
restriction on tardy arrivals or a required doctor's note in the event of an
unscheduled absence are conditions of employment known to workers
everywhere; to impose them on the plaintiff does not constitute a materially
adverse action. Cf Norden, 503 F. Supp. 2d at 157 (a proposed settlement
agreement that included, among other terms, a prohibition on the plaintiffs use of
medically necessary absences to extend deadlines constituted a materially adverse
action). Plaintiff therefore fails to state a claim for retaliation.
CONCLUSION
For all of the foregoing reasons, defendant's motion to dismiss is
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GRANTED.
~ United States District Judge
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Cole v. Powell
Combined Opinion