MEMORANDUM OPINION
On January 15, 2016, plaintiff Cassandra M. Menoken, who has filed a case against the United States Office of Personnel Management (“OPM”) in this court previously, Am. Compl. [No; l:03-cv-01775, Dkt. #8] (referred to in this opinion as “Menoken I Compl.”), filed two more lawsuits proceeding pro se: one against OPM
Qn October 11, 2016, defendants filed a consolidated motion to dismiss plaintiffs complaints under Federal Rule of Civil Procedure 12(b)(6), arguing that: (1) plaintiffs claims in Menoken II are barred under the doctrines of res judicata and issue preclusion, and (2) plaintiff has failed to allege sufficient facts in Menoken III to state claims of discrimination and retaliation. Defs.’ Mot. to Dismiss [No. l:16-cv-0084, Dkt. # 11] (“Defs.’ Mot.”); Mem. of P. & A. in Supp. of Defs.’ Mot. [No. 1:16-cv-0084, Dkt. #11-1] (“Defs.’ Mem.”); Defs.’ Mot. [No. l:16-cv-0083, Dkt. # 10]; Defs.’ Mem. [No. l:16-cv-0083, Dkt. # 10-1]. On October 31, 2016,.plaintiff opposed defendants’ motion, Pl.’s Consolidated Mem. in Opp. to Defs.’ Mot. [No. l:16-cv-0084, Dkt. # 14] (“Pl.’s Opp.”); Pl.’s Opp. [No. l:16-cv-0083, Dkt.# 13], and defendants have replied. Defs.’ Reply in Supp. of Defs.’ Mot. [No. l:16-cv-0084, Dkt. # 15] (“Defs.’ Reply”); Defs.’ Reply [No. l:16-cv-0083, Dkt. # 14].
After considering the parties’ submissions, the Court will grant defendants’ motion to dismiss plaintiffs retaliation claim against OPM and SSA in Menoken II because it is precluded under the doctrines of res judicata and issue preclusion. The Court will also grant defendant’s motion to dismiss plaintiffs retaliation claim against HHS, but it will deny the motion to dismiss plaintiffs claim of retaliation against OPM and plaintiffs claim of discrimination against OPM and HHS in Menoken III.
BACKGROUND
I. Factual Background
Plaintiff is an African American female living in Washington, D.C., who has been applying for an ALJ position since 1993. Menoken III Compl. ¶ 4. The ALJ application process includes a competitive examination administered by OPM, the results of which are then used by agencies seeking to hire ALJs. See id. ¶¶ 16, 31.
OPM has exclusive control over the process used to refer applicants to be considered for ALJ positions. Menoken III Compl. ¶ 5. OPM maintains an “ALJ Register” that ranks applicants in descending order based on their examination scores. Id. ¶16. Upon request, OPM provides “certificates of eligibles” to agencies looking to hire ALJs. Id. ¶31. These certificates contain names of applicants based on their ALJ examination score ranking and their geographic availability, and they usually list at least three applicants for each vacancy an agency is seeking to fill. Id. ¶¶ 32-33.
In 1993, plaintiff took the ALJ examination administered by OPM. Menoken II Compl. ¶4. OPM then created an ALJ Register using the scores of applicants who had completed the 1993 ALJ examination, and that ALJ Register was used for the next fourteen years until it was replaced in 2007 based on the results of a new examination. Id. ¶¶ 16, 22.
In 2005, OPM compiled four certificates of eligibles for HHS, which was seeking to hire a total of fifty ALJs for assignment to four locations. Menoken III Compl. ¶ 38. Instead of issuing one certificate with potential ALJ candidates, which plaintiff describes as the typical method, OPM gave HHS “four small ALJ certificates”—one for each geographic location. Id. ¶¶ 44, 46. Each certificate listed candidates in order of their ALJ examination scores and their geographic availability. Id. ¶ 32.' Even though plaintiff had indicated that she was available for all four of the geographic locations involved, her name was not on any of the certificates. See id. ¶¶ 38, 49. Plaintiff claims that had the “normal practice” been used, her name would have been included on the single large certificate for ALJ consideration because that list would have included at least 150 ALJ candidates. Id. ¶ 45.
II. Related Cases
Plaintiff has sued OPM before. She. filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) in 1994, and then brought an action in the U.S. District Court for the District of Columbia in 2003. Both proceedings have been resolved.
A. Menoken v. OPM, EEOC No. 100-95-7644X (“EEOC Action”)
After plaintiff took the ALJ examination in 1993, she filed a formal charge with the EEOC against OPM in May of 1994. See Ex. 1 to Defs.’ Mot. [No. l:16-cv-0084, Dkt. #11-2] (“EEOC Order”) at 1; see also Menoken v. Whipple,
On November 9, 2000, the Administrative Judge presiding over the case found that the “partner benchmark” used in the SQS portion of the ALJ examination violated Title VII. EEOC Order at 53. This component, which awarded points to applicants who were partners at large law firms, was found to create an “adverse impact on the basis of race.” Id. at 50. The remainder of plaintiffs discrimination claims were rejected by the Administrative Judge. Id. at 61. The Administrative Judge ordered OPM to “cease use of that benchmark” and to stop relying on it during the ALJ hiring process. Id. OPM was required to review the scores of all applicants on the 1993 ALJ Register, adjust their scores and rankings if they had been affected, and notify agencies using the 1993 ALJ
In August and September 2001, plaintiff filed two appeals with the EEOC, alleging that OPM had failed to comply with the EEOC’s Order and that the' Administrative Judge had erroneously rejected her other claims. See Defs.’ Mem. at 4; Whipple,
B. Menoken v. Whipple,
In August 2003, plaintiff brought an action in the U.S. District Court for the District of Columbia, alleging that OPM was in “willful violation” of the EEOC Order and that OPM’s administration of the ALJ selection process unlawfully discriminated against African American and female applicants in violation of Title VII under the theories of disparate impact and disparate treatment. Menoken I Compl. ¶¶ 1-3; Whipple,
C. Menoken v. Cobert, et al, No. 1:16— cv-00084 (D.D.C. 2016). (“Menoken II”)
On January 15, 2016, plaintiff filed two complaints with this Court, and she filed an amended complaint in each case on August 23, 2016. Menoken II Compl.; Menoken III Compl. The first, Menoken v. Cobert, et al., No. 1:16-cv-O084, asserts Title VII retaliation claims against OPM and SSA. Menoken II Compl. ¶ 1. Plaintiff alleges that in March 2001, OPM and SSA manipulated the ALJ selection process to deny plaintiff consideration for an ALJ position because she was a party in the 1994 EEOC Action. See id. ¶¶ 40-41, 55; see also id. at 11. Specifically, plaintiff claims that “OPM was determined to’ do whatever necessary to ensure that [plaintiff would not benefit from her success” in the EEOC Action and that SSA was a “willing and like-minded partner.” Id. ¶¶ 40-41.
D, Menoken v. Cobert, et al, No. 1:16-cv-00083 (D.D.C. 2016) (“Menoken III”)
In the second action filed on January 15, 2016, Menoken v. Cobert, et al., No. 1:16-cv-0083, plaintiff brings Title VII discrimination and retaliation claims against OPM and HHS. Menoken III Compl. ¶ 1. Plaintiff alleges that because she was a party in the 1994 EEOC Action, OPM and HHS retaliated against her in 2005 by deviating from the normal selection process in creating “four small ALJ certificates” instead of one large certificate with at least 150 ALJ candidate names. Id. ¶¶ 42,'44-49. Plaintiff claims that she would have been considered for the ALJ position if defendants had used the “normal practice” of a single list. Id. ¶ 45. Plaintiff also brings a discrimination claim under a disparate impact theory, alleging that the alleged deviation from the normal selection process “had the
STANDARD OF REVIEW
“To survive a [Rule 12(b)(6)] 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.’ ” Ashcroft v. Iqbal,
A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678,
When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe a complaint liberally in the plaintiffs favor, and it should grant the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp.,
Where the action is brought by a pro se plaintiff, a district court has an obligation “to consider his filings as a whole before dismissing a complaint,” Schnitzler v. United States,
ANALYSIS
I. Plaintiffs retaliation claim against QPM in Menoken II is barred by the doctrine of res judicata.
“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigat-ing issues that were or could, have been raised in that action.” Allen v. McCurry,
A subsequent lawsuit will be precluded if “there has been prior litigation (1) involving the same claims or cause of action (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.” Smalls v. United States,
This case warrants the application of resjudicata. First, Menoken I and Me-noken II involve the same parties. Second, plaintiffs current retaliation claim could have been brought against OPM in Meno-ken I since the claims in both cases arise out of the same factual circumstances.
In Menoken I, plaintiff alleged:
In March 2001, OPM “used” the discriminatory scoring benchmark when it forwarded a “certificate of eligibles” to the Social Security Administration (SSA).... In September 2001 OPM again “used” the discriminatory scoring benchmark by facilitating SSA’s ability to make ALJ appointments from the tainted March 2001 certifícate.
Menoken I Compl. ¶¶ 59, 62. In Menoken II, plaintiff similarly alleges:
OPM had issued an ALJ certificate to SSA in March 2001.... SSA used the certificate to make ALJ selections in April 2001 and communicated offers to the selectees in September 2001.... OPM and SSA manipulated the selection process to enable SSA to hire 120 ALJs without having to consider [pjlaintiffs presumptive entitlements in [the EEOC Action].
Menoken II Compl. ¶¶49, 54-55. In both cases, plaintiff addresses OPM and SSA’s use of the March 2001 certificate to recommend and hire ALJs in September 2001. She also includes factual allegations about her 1994 EEOC Action in both complaints. Menoken I Compl. ¶ 8; Menoken II Compl. ¶ 10. Thus, all of the facts forming the basis of plaintiffs retaliation claim against OPM in Menoken II were present in her Menoken I complaint.
The court granted OPM’s motion for summary judgment in Menoken I, which constitutes a final judgment on the merits with res judicata effect. Prakash v. Am. Univ.,
II. Plaintiffs retaliation claim against SSA in Menoken II is barred by issue preclusion.
The Social Security Administration was not a defendant in the first action, but defendants contend that plaintiffs retaliation claim against the agency in Menoken II is barred by the doctrine of issue preclusion. Defs.’ Mem. at 16-18,
Under the doctrine of issue preclusion, “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen,
First, the same issue now being raised must have been, contested by the parties and submitted for judicial determination in the prior case. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in that' prior case. Third, preclusion in' the second cáse must not work a basic unfairness to the party bound by the first determination.
Yamaha Corp. of Am. v. United States,
Plaintiff labels her claim against SSA as a cause of action for retaliation, but she does not allege that the agency took any particular action—such as requesting a certificate from OPM—in retaliation for her protected activity. Instead, what she alleges is that SSA and OPM were colluding against her to engage in a pattern of discovery abuses during the relief phase of her original EEOC proceeding, in an effort to hide the fact that OPM was not in compliance with the 2000 EEOC Order.
Plaintiff states that she became aware of this conduct while the EEOC matter was still pending. Menoken II Compl. ¶ 49. She claims that the agencies’ failure to disclose the ALJ certificate issued by OPM to SSA in March of 2001 (which' did not include her name) concealed the fact that OPM was violating the terms of the EEOC Order, in particular, the provision that required the agency to adjust her score. Id. ¶¶ 36 41. Since plaintiff was not listed on the certificate, she was not considered for a position at Social Security. See id. ¶¶ 54-55. But in plaintiffs view, given her victory at the administrative level and the Administrative Judge’s order, she was “presumptively entitled to priority consideration and/or placement in an ALJ position in 2001,” id. ¶ 58; see also id. ¶ 32, and the agencies’ obstructive conduct enabled OPM to “circumvent plaintiffs presumptive entitlements.” Id. ¶¶ 36-48.
But pláintiff already specifically alleged in Count I of Menoken I that OPM violated Title VII “by repeatedly and deliberate
Moreover,, preclusion of re-litigating this issue does “not work a basic unfairness” to plaintiff in any way because plaintiff has already had her opportunity to litigate this issue fully against OPM, and,OPM had every incentive to litigate the issue to finality in the first case. See Yamaha Corp.,
III. Plaintiff has stated a claim of discrimination against OPM and HHS in Menoken III.
Under Title VII, the federal government is required to make “[a]ll personnel actions affecting employees or applicants for employment... free from any discrimination based on race.’.’ 42 U.S.C. § 20Q0e-16(a). A plaintiff can prove that she was not hired because of her race under a disparate treatment theory, by demonstrating that her employer’s conduct was motivated by discriminatory intent, or under a disparate impact theory, by showing that even if the employment practice was not intended to discriminate, it “in fact [had] a disproportionately adverse effect on minorities.” Ricci v. DeStefano,
Plaintiff claims that defendants violated Title VII by using an unlawful ALJ referral practice that disproportionately disqualified African American applicants, including plaintiff, from being considered for ALJ positions. Menoken III Compl. at 8-9. Defendants argue that plaintiff’s discrimination claim should be dismissed under Rule 12(b)(6) because it fails to state a claim upon which relief can be granted. Defs.’ Mem, at 18-21. The Court finds that
“[A] plaintiff establishes a pri-ma facie disparate-impact claim by showing that the employer ‘uses a particular employment practice that causes á disparate impact’ on one of the prohibited bases.” Lewis v. City of Chi.,
Considering the fact that plaintiff is proceeding pro se, the Court finds that plaintiffs allegations satisfy this standard. See Haines,
Plaintiffs allegations with respect to the impact of this practice are somewhat con-clusory, but at this stage, they are barely sufficient to create an inference of causation. Plaintiff claims that “larger certificates allowed OPM to reach into the lower ranks of the ALJ Register,” which “made it easier for agencies to consider African American candidates because, as a group, they tended to be clustered at the lower ranks of the Register due to lower examination scores.” Menoken III Compl. ¶¶ 34-35. Further, she alleges that using four certificates rather than one allowed OPM “to avoid going too deep into the Register to reach [plaintiffs score,” and that “[ajvoiding lower scores on the Register had the further effect of limiting the number of African American candidates HHS would consider.” Id. ¶ 48. These allegations suggest that the' use of four separate certificates had the effect of disproportionately disqualifying African American applicants, including plaintiff, from being considered for an ALJ position. Therefore, plaintiff has alleged sufficient facts to state a cognizable claim, and the motion to dismiss plaintiffs discrimination claim against OPM and HHS in Menoken III will be denied. See Lewis,
IV. Plaintiff has stated a claim of retaliation against OPM, but not against HHS in Menoken III.
Plaintiff also claims that defendants retaliated against her in violation of Title VII by “engaging in acts designed to ensure [she] would not be considered for an ALJ position in 2005 because she had prevailed in a Title VII claim against OPM”—her 1994 EEOC Action. Menoken III Compl. at 8. Defendants move to dismiss this claim under Rule 12(b)(6) as well. Defs.’ Mem. at 18-21.
Title VIPs anti-retaliation provision makes it unlawful for “an employer [to] ‘discriminate against’ an employee ... because that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” Burlington N. & Santa Fe Ry. Co. v. White,
Defendants do not seem to contest that plaintiff engaged in statutorily protected activity oi- that she suffered an adverse action. See Defs.’ Mem. at 19-21. They only argue that plaintiff has failed to plead that there is a “causal connection between her protected activity and the alleged' improper action.” Id. at 20. The Court finds that plaintiff has put forth sufficient allegations against OPM to survive a motion to dismiss, but it concludes that plaintiffs claim against HHS is full of conclusory assertions that do not give rise to a retaliation claim.
.To succeed in a retaliation case, a plaintiff must show a causal connection between the protected activity and the complained of action. And courts in this district have sustained complaints at the Rule 12(b)(6) stage when the plaintiff has merely alleged that he or she was subjected to an adverse
The Court is not certain that the legal proposition applied in these cases is consistent with Iqbal,
To prove causation, a plaintiff may show that “the employer had Knowledge of the employee’s protected activity, and that the adverse personnel action took place shortly after that activity.” Baldrige,
Plaintiff claims that OPM, “mindful” that she “prevailed” in her 1994 EEOC Action, devised a plan of using four separate certificates that would not reach plaintiffs adjusted score so that plaintiff would not “benefit from any relief she was awarded as a result of her prevailing party status.” Menoken III Compl. ¶¶ 40-43, 46. She alleges that “[t]he purpose and effect of the decision to use four certificates, instead of one, was to allow OPM to avoid going too deep into the Register to reach [plaintiffs score,” id. 1148 and that the scheme succeeded in “depriving [her] ... of a fair and equal opportunity to be considered for an ALJ appointment.” Id. 1149. Plaintiffs complaint also makes the conclu-sory allegation that OPM retaliated against her “by engaging in acts designed to ensure [p]laintiff would not be considered for an ALJ position in 2005 because she had prevailed' in a Title VII claim against OPM.” Menoken III Compl. at 8-9. Although plaintiff could have done a better job of articulating a causal connection—indeed, she does not even allege that any OPM decision maker involved with the HHS vacancies knew about her protected activity—she has done just enough to survive a motion to dismiss given the existing case law in this district and the fact that she is proceeding pro se. The Court cautions plaintiff, though, that mere concluso-ry allegations of retaliatory animus will not be enough to sustain a claim at the summary judgment stage.
However, with regard to her retaliation claim against HHS, plaintiff has not pled sqfficient facts to allow an inference of retaliation. Although she claims that OPM and HHS “worked closely” and that OPM “elicited the cooperation of HHS” to carry out its alleged scheme to deprive plaintiff of consideration for an ALJ position, Menoken III Compl. ¶¶ 37, 43, she never actually alleges that HHS knew that plaintiff initiated the EEOC Action that eliminated the discriminatory partner benchmark or that she had engaged in protected activity at all. Plaintiff simply says that OPM was required to inform HHS of the order that resulted from plaintiffs EEOC Action. Id. 1139 (“OPM informed HHS of EEOC’s discrimination finding in the [EEOC] matter.”); see id. 1122 (“HHS is deemed to have been aware of EEOC’s discrimination finding at or around the time it used the ALJ Regis
Because plaintiff has alleged sufficient facts to state a retaliation claim against OPM, but has failed to do so with regard to its claim against HHS, the Court will deny defendants’ motion against OPM and grant the motion as to HHS.
CONCLUSION
The Court will grant defendants’ motion to dismiss the • retaliation claim against OPM in Menoken II since it is barred by the doctrine of res judicata, and it will dismiss the retaliation claim against SSA because it is barred by issue preclusion.
The Court will deny defendant’s motion to dismiss plaintiffs discrimination claim against OPM and HHS, and will deny defendant’s motion to dismiss plaintiffs retaliation claim against OPM in Menoken III. But the motion to dismiss the retaliation claim against HHS in Menoken III will be granted because plaintiff has failed to state a claim.
A separate order will issue.
Notes
. The Court must take plaintiff’s allegation as true on its face, but notes that it does not know if plaintiff would have in fact been listed in the top 150 ALJ candidates.
. The ALJ examination has four components: (1) the Supplemental Qualifications Statement ("SQS”); (2) th.e Personal Reference Inquiry ("PRI”); (3) the Written Demonstration ("WD”); and (4) the Panel Review ("PR"). EEOC Order at 4-5.
. Though plaintiff is an attorney, and despite' the fact that a pro se attorney "is presumed to have a knowledge of the legal system and need less protections from the court,” Richards v. Duke Univ.,
. Defendant points out that the EEOC came to the same conclusion in its 2013 dedision, Defs.' Mem. at 7-8. In that EEOC proceeding, . plaintiff “.characterized her claim as 'whether OPM, with the active and willing assistance of SSA, manipulated the AU certification process in 2001 in a manner designed to ensure [plaintiff] would not receive equitable relief as a result of her status as a prevailing party in a 1994 discrimination complaint against OPM.’ " Id. at 7, quoting Menoken v. Archuleta, EEOC No. 012012091,
. When "the plaintiff claims that the retaliation took the form of failure to hire, the plaintiff must also show (4) that [she] applied for an available job; and (5) that she was qualified for that position.” Morgan v. Fed. Home Loan Mortg. Corp.,
. The problem in Rochon was that the district court had dismissed a complaint for failure to state a claim on the grounds that the plaintiff had not adduced evidence to show that the adverse action would not have occurred but for his protected activity.
Rochon is not required, however, in order to state a claim of retaliation, to allege facts sufficient to negate the FBI’s alternative explanations for its actions—whatever they may turn out to be. See Sparrow v. United Air Lines, Inc.,216 F.3d 1111 , 1114 (D.C. Cir. 2000). On the contrary, in order to survive a motion to dismiss, "all [the] complaint has to say,” id. at 1115, is "the Government retaliated against me because I engaged in protected activity.” Rochon’s complaint meets this liberal pleading standard.
Rochon,
Rochon unquestionably engaged in statutorily protected activity when he filed Title VII complaints against the FBI.' And we have long held a "causal connection ... may be established by showing that the employer had knowledge of the employee’s protected activity, and that the adverse ... action took place shortly after thqt activity.” Here, Rochon claims the FBI [took action against him] around the time he and the Bureau settled his Title VII suit. ... The district court erred, therefore, in concluding that Rochon failed "to [allege sufficient] facts to support a reasonable inference that the FBI acted with retaliatory or discriminatory motivés.”