Allen v. Napolitano
2011 U.S. Dist. LEXIS 34493
| D.D.C. | 2011Background
- Plaintiff Allen, a former ICE Director of Financial Management, alleges DHS retaliation and hostile environment under Title VII after a February 2008 settlement with DHS/ICE.
- Settlement mandated retroactive promotion and back pay, plus “outstanding ratings” for 2005–2007; ICE allegedly breached by improper performance ratings.
- Allen filed informal discrimination and retaliation complaints (2006–2007), was reassigned, and later claim scope narrowed after settlement.
- In 2008 she notified CRCL of alleged breach; CRCL rejected the breach claim as compliant with the settlement; no appeal followed.
- Allen filed an EEO retaliation claim (-August 2008 counselor contact; December 2008 EEO complaint); she filed suit November 2009 in district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject matter jurisdiction over ratings breach | breach of settlement treated as Title VII retaliation claim | breach is contract claim within Tucker Act, claims belong to Court of Federal Claims | Court lacks jurisdiction; breach claim falls to Court of Federal Claims |
| Exhaustion of administrative remedies for retaliation claim | notice to CRCL suffices; opportunity to investigate existed | exhaustion required EEO counselor contact within 45 days; CRCL notice inadequate | Untimely exhaustion; retaliation claim dismissed on exhaustion grounds |
| Timeliness and material adversity of remaining retaliation claims | several post-2008 actions were retaliatory and severe | claims either untimely or not materially adverse | Only exclusion from meetings and negative 2008 evaluation survive as materially adverse and timely |
| ADR claim as basis for retaliation | refusal to engage in ADR constitutes retaliation | ADR claim not cognizable as retaliatory action | Dismissed; ADR refusal not actionable |
| Hostile work environment under Title VII | exclusion from meetings, poor feedback, and criticized performance created hostile environment | conduct not severe or pervasive enough; ordinary workplace disputes | Hostile environment claim dismissed; not sufficiently severe or pervasive |
Key Cases Cited
- Greenhill v. Spellings, 482 F.3d 569 (D.C.Cir. 2007) (breach of settlement claims fall outside Title VII where contract interpretation dominates)
- Hansson v. Norton, 411 F.3d 231 (D.C.Cir. 2005) (settlement enforcement may require federal contract law; discrimination claims differ)
- Brown v. United States, 389 F.3d 1296 (D.C.Cir. 2004) (breach of settlement claim appropriate to Court of Federal Claims)
- Rochon v. Gonzales, 438 F.3d 1211 (D.C.Cir. 2006) (breach-of-settlement issue framed as contract, Tucker Act considerations)
- Wood v. United States, 961 F.2d 195 (Fed. Cir. 1992) (contracts with the United States generally fall under Court of Federal Claims)
- Awad v. United States, 301 F.3d 1367 (Fed. Cir. 2002) (claims arising from contract with government belong in economic damages context)
- Douglas v. Donovan, 559 F.3d 549 (D.C.Cir. 2009) (negative performance ratings and bonuses can be materially adverse)
- Taylor v. Solis, 571 F.3d 1313 (D.C.Cir. 2009) (retaliation standard includes material adversity and causation elements)