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Enas Pubentz v. Eric H. Holder

May 19, 2011

ENAS PUBENTZ, PLAINTIFF,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, ROBERT S. MUELLER, III, INDIVIDUALLY AND AS DIRECTOR, FEDERAL BUREAU OF INVESTIGATION; AND COLLEEN ENGLAND, INDIVIDUALLY AND AS FOREIGN LANGUAGE PROGRAM MANAGER, CHICAGO DIVISION OF THE FEDERAL BUREAU OF INVESTIGATION, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge:

MEMORANDUM OPINION

This matter comes before the Court on Defendants' motions to dismiss Plaintiff Enas Pubentz's ("Pubentz") complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motions are granted in part and denied in part.

BACKGROUND

According to the allegations of the complaint, which we accept as true for purposes of this motion,*fn1 Pubentz is an Israeli national who joined the Chicago division of the Federal Bureau of Investigation ("FBI") as a language analyst in November 2003.

On January 9, 2009, a speaker of Palestinian origin was invited by the University of Illinois at Chicago ("UIC") to make a presentation on the Gaza war. During the presentation, Pubentz expressed her opinions on the Israeli-Palestinian conflict, the refugee situation, and the political, social and religious concerns in the Middle East. Because of her dialogue with the UIC speaker, Pubentz was allegedly excluded from eligibility for the position of Acting Supervisor. Colleen England ("England"), Pubentz's direct supervisor and manager of the Foreign Language Program, allegedly advised her that her exchange with the Palestinian speaker negatively affected her access to analytical training, collateral assignments and future promotion in the department. Pubentz further alleges that departmental supervisors and co-employees characterized her as an "embarrassment" to the FBI, deemed her views on the Gaza war "unrepresentative of Arabs in the region," and referred to her as a "Zionist Arab." From that day on, Pubentz claims that her supervisors and other members of the department expressed distrust in her ability to be impartial. England excluded Pubentz from all training events, supervisory assignments and wrongfully accused her of insubordination. England, along with other supervisors, denied Pubentz access to future promotional assignments, falsely accused her of unprofessional work ethic, and negatively and inaccurately evaluated her performance. Pubentz was also subjected to harassment, a hostile work environment, and disparate terms and conditions of employment.

On April 28, 2009, Pubentz filed an Equal Employment Opportunity complaint ("EEO complaint") with her department's Office of Equal Opportunity. The Department's Office did not issue a final decision and more than 180 days have elapsed since the filing of the administrative complaint.

In July 2009, Pubentz transferred to the FBI's San Francisco office. According to Pubentz, even though she had left the Chicago office, England continued to penalize her because Pubentz had engaged in EEO activity in Chicago. Pubentz alleges that England falsely described her to her new supervisors in San Francisco as "high maintenance," insubordinate, and unreliable. As a result, Pubentz was placed on a performance-improvement-plan, was denied several work and promotional opportunities, and was continuously subjected to adverse and retaliatory terms and conditions of employment. On September 17, 2010, Pubentz filed another EEO complaint with the San Francisco EEO Department. The FBI investigated the matter and on February 25, 2011, mailed a report to Pubentz notifying her that she had 30 days to request a hearing before the Equal Employment Opportunity Commission ("EEOC"), otherwise the Department of Justice (the "DoJ") would issue a final decision without a hearing.

On December 5, 2010, Pubentz filed suit in the United States District Court for the Northern District of Illinois seeking various forms of injunctive and monetary relief.

In her complaint, Pubentz asserts three Title VII counts against the United States Attorney General:*fn2 one for discrimination on the basis of race and national origin (count I), one for retaliation based on the Chicago events (count II), and one for a continuing course of retaliation taking place in San Francisco (count III). Pubentz also asserts an additional count for retaliation in violation of her First Amendment (count IV) against the FBI Director, in his official capacity, and against England in both her individual and official capacities.*fn3 Defendants now move to dismiss counts III and IV of the complaint, and to dismiss England from the suit.*fn4

LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, construe the allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint.

Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations within a complaint must raise a claim for relief "above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To state a cognizable claim, a complaint must describe the claim in sufficient detail to give the defendant notice of what it is and the ground upon which it rests and plausibly suggest that the plaintiff has a right to relief. EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007). With these principles in mind we turn to the motions at hand.

DISCUSSION

I. Count III - Continuing ...


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