Kupec v. Austin

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JENNIFER KUPEC, )

)

Plaintiff, )

)

vs. ) Case No. 5:22-cv-00966-HNJ

)

LLOYD AUSTIN, Secretary, )

Department of Defense, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Jennifer Kupec, an employee of the United States Department of

Defense, asserts claims against Lloyd Austin, the Secretary of that Department, for

gender discrimination, disability discrimination, and retaliation. (Doc. 1). Defendant

moved to partially dismiss those claims. (Doc. 8).

Defendant argues a time bar precludes Kupec’s discrimination claims for alleged

discrete acts occurring more than 45 days before her initial EEO contact in November

2020, and Kupec’s retaliation claim does not state plausible grounds for relief because

Kupec failed to allege a materially adverse action. As illustrated herein, no time bar

precludes Kupec’s gender and disability discrimination claims. Rather, those claims did

not accrue until November 2020, when Defendant selected a non-disabled male for the

position of Kingdon of Saudia Arabia Program Manager. Moreover, Kupec’s

Complaint sufficiently alleges a materially adverse action to support her retaliation

claim. Accordingly, the court will deny Defendant’s motion to dismiss on both

grounds.

BACKGROUND

Jennifer Kupec began working for the Missile Defense Agency at Redstone

Arsenal in Huntsville, Alabama, in 2009, as a Program Analyst, Grade Level 4. (Doc.

1, ¶¶ 12-13). Upon her hire, she submitted a letter from the Alabama Department of

Rehabilitation Services stating she experiences depression as a long-term medical

condition. Medication controls the depression, but without medication, Kupec cannot

function, perform her work, or “maintain high cognitive performance for optimal and

effective functioning of her cognitive capabilities and executive functions.” (Id. ¶¶ 14-

18). In 2019, Kupec discussed her disability with Laura DeSimone, Director of

Acquisition; Steve Stegman, Director of Acquisition Support; Sean Williamson, Deputy

Program Manager; and Major General Garrant. (Id. ¶ 19).

During the pertinent time periods, Kupec worked as the Special Projects and

Foreign Military Sales (FMS) Official for the Terminal High Altitude Area Defense

(THAAD) Office. (Id. ¶ 22). Sean Williamson, a male, served as Kupec’s first-line

supervisor. Colonel Camilla White, a female and the THAAD Project Manager, served

as Kupec’s second-line supervisor. (Id. ¶¶ 20-21).

Kupec’s job duties encompassed “‘all things’ involving FMS THAAD, including

developing an executable United Arab Emirates and Kingdom of Saudi Arabia case for

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the THAAD Weapon System from 2012 to November, 2018.” (Id. ¶ 23). Between

November 26, 2018, and December 2020, Kupec served as THAAD’s Acting Program

Manager for the Kingdom of Saudi Arabia, a newly created position. (Doc. 1, ¶¶ 24,

26). In that role, she helped build the Kingdom of Saudia Arabia FMS Program by

bearing responsibility for cost, scheduling, and performance. (Id. ¶¶ 25, 27).

In early 2019, the Missile Defense Agency sought to permanently fill Kupec’s

temporary position by soliciting applications to select a Program Manager for

THAAD’s Kingdom of Saudia Arabia program. (Id. ¶ 28). To that end, the Agency

convened a Selection Panel consisting of the following three members: (1) Shannon

Womack, a male and the THAAD Project Office Director of Acquisition; (2) Jeffrey

Cullen, a male and the Chief of Staff for International Affairs; and (3) Rene Oyler, a

female and the Director of Operations for the Kingdom of Saudia Arabia Task Force.

(Id. ¶ 30). All panel members possessed experience in both FMS and THAAD. (Id. ¶

31).

The panel received 74 applications for the Program Manager position, including

one from Kupec. The panel members reviewed and rated all the resumes, selected 12

candidates to interview, and eventually conducted eight interviews as four candidates

declined interviews. (Id. ¶¶ 29, 32-35). The panel selected Kupec as the top interviewee

and recommended her for the position. However, Laura DeSimone, a female who

served as the Selecting Official, recommended re-advertising the position rather than

3

selecting Kupec. (Doc. 1, ¶¶ 36-37).

DeSimone exhibited a history of selecting male applicants for positions, and she

knew about a letter from the Kingdom of Saudi Arabia requesting that Reid Vander

Schaaf, a non-disabled male, receive the position. (Id. ¶¶ 39-40, 132). However, Vander

Schaff did not enjoy eligibility for the position at the time of the 2019 posting, as he

retired from military service in September 2018, and the position required a one-year

“cooling off period” after military retirement. (Id. ¶ 42). In addition, “[t]he Kingdom

of Saudia Arabia has a publically [sic] observable history of discriminatory attitudes

against females.” (Id. ¶ 41).

When Kupec ascertained she did not receive the position in 2019, she requested

a meeting with DeSimone; during the meeting, DeSimone stated she did not select

Kupec because of her communication skills. (Id. ¶¶ 43-44). However, while Kupec

served as Acting Program Manager, she always received outstanding performance

evaluations, and she did not receive any negative feedback regarding her

communication skills. (Id. ¶ 45). Kupec requested a follow-up meeting with DeSimone,

but that meeting never occurred. (Doc. 1, ¶ 46).

On January 14, 2020, the Missile Defense Agency again solicited applications for

the Program Manager position. The agency did not inform Kupec about the renewed

solicitation, but she nonetheless became aware and applied for it, along with 90 other

individuals. (Id. ¶¶ 47-49). The agency convened a new, all-male Selection Panel

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consisting of: (1) Colonel Anthony Meeks, DA Deputy Director; (2) Eddie Baker,

Acquisition Lead for Ground-Based Weapon Systems; and (3) Michael Meutjer,

THAAD Chief Engineer. (Id. ¶¶ 50-51). The panel chair reported directly to

DeSimone. (Id. ¶ 56). The members of the 2020 panel possessed limited knowledge in

FMS, even though the Program Manager position required experience in both FMS and

Program Management, and agency guidelines required a selection panel to include

diverse subject matter experts. (Id. ¶¶ 52-55).

During July 2020, the panel interviewed six applicants, including Kupec. (Id. ¶

57). At that time, Kupec possessed 14 years of experience in FMS, including six years

with THAAD and service as both Deputy Program Manager for United Arab Emirates

and Acting Program Manager for the Kingdom of Saudi Arabia. (Doc. 1, ¶ 61). During

her interview, Kupec experienced difficulty hearing, and she asked to reschedule the

interview. The Complaint does not state whether the panel granted that request. Kupec

drew the conclusion during the interview that she was wasting her time. (Id. ¶¶ 58-59).

In November of 2020, the panel selected Vander Schaaf for the Kingdom of

Saudi Arabia Program Manager position and scheduled his start date for December 7,

2020. (Id. ¶ 60). Kupec alleges the Missile Defense Agency portrays a history of placing

males in positions without competition. (Id. ¶ 85). Vander Schaaf possessed very

limited knowledge of FMS, and he maintained experience with only one component of

THAAD weapons: radars. (Id. ¶¶ 63-64). In contrast, Kupec possessed experience in

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all aspects of THAAD other than radar, and she harbored more experience than Vander

Schaaf in both FMS and THAAD weapon systems. (Id. ¶¶ 62, 65). Kupec’s evaluations

depicted she possessed extensive leadership skills, and she maintained experience in

Program Management through her position as Acting Program Manager. (Doc. 1, ¶¶

66-67).

In 2017, Kupec disagreed with a brief Vander Schaaf wrote for a command

structure that would place him in a position over all Kingdom of Saudi Arabia cases, as

she believed the placement did not comport with the Charter for the project. (Id. ¶¶

68-69).

After Vander Schaaf received the Program Manager position, Kupec voiced

concerns over her non-selection to her immediate supervisors. Then, on November

16, 2020, she shared those concerns with Vice Admiral John Hill, the Director.1 During

the conversation, Hill did not express any concerns about Kupec’s professionalism. (Id.

¶¶ 71-72).

Sometime in “late November, 2020,” Kupec contacted the EEO office, and

Stegman knew about the contact at the time. (Id. ¶¶ 4, 73-74). On December 2, 2020,

Kupec initiated an informal EEO complaint that contained facts “such that Kupec was

easily identifiable as the complainant.” (Id. ¶¶ 5, 75-76).

1 The Complaint does not specify whether Hill served as Director of THAAD, the Missile Defense

Agency, or some other entity.

6

Also on December 2, 2020, Stegman removed Kupec from the position of

Acquisition Manager Functional Lead because she had not been attending meetings.

(Id. ¶¶ 78-79). Kupec alleges she only attended meetings when the agenda addressed

FMS. (Doc. 1, ¶ 80).

On December 17, 2020, Williamson issued Kupec a letter of counseling claiming

Kupec did not address issues with her supervisors, and she expressed her concerns in

a “vociferous” manner. Kupec denies both of those claims. (Id. ¶ 81). Williamson

informed Kupec that Major General Garrant instructed him to issue the counseling

letter. (Id. ¶ 82).

On January 7, 2021, Major General Garrant, with no reason, discontinued

Kupec’s attendance at the Ground Based Weapons Systems weekly meeting. (Id. ¶ 83-

84).

On March 12, 2021, Kupec filed a formal complaint with the EEO agency. The

EEO agency issued a Final Decision on May 5, 2022, and Kupec filed this case on

August 2, 2022, less than 90 days later. (Id. ¶¶ 6-7).

DISCUSSION

Kupec’s gender discrimination claim arises under Title VII of the Civil Rights

Act of 1964, et seq., as amended, and her disability discrimination claim arises under the

7

Rehabilitation Act.2 Though the Complaint does not so specify, Kupec’s retaliation

claim presumably arises under both statutes, as she claims she suffered retaliation after

complaining about gender and disability discrimination.3

I. No Time Bar Precludes Kupec’s Gender and Disability Discrimination

Claims, Which Did Not Accrue Until November 2020 When Defendant

Selected Vander Schaaf for the Position of Kingdom of Saudi Arabia

Program Manager

Under both Title VII and the Rehabilitation Act, an aggrieved federal employee

must press a discrimination claim pursuant to the administrative complaint and appeals

process provided in the Equal Employment Opportunity Commission (“EEOC”)

regulations. See 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 794a(a)(1) (incorporating by

2 The Rehabilitation Act prohibits federal and private employers from discriminating against

employees on the basis of a disability. 29 U.S.C. § 701, et seq., as amended.

3 Kupec’s Complaint in this action does not specify the types of discrimination she alleged in her EEO

complaint. However, Defendant attached a copy of the March 12, 2021, EEO complaint to its motion

to dismiss. The EEO complaint asserts Defendant discriminated against Kupec on the basis of sex,

disability, and reprisal for previous EEO activity. (Doc. 8-1, at 1).

Normally, the court may not consider matters outside the pleadings without converting a

motion to dismiss into a motion for summary judgment and providing the parties an opportunity to

submit pertinent material. Fed. R. Civ. P. 12(d). However, a court may consider “documents attached

to a motion to dismiss . . . without converting the motion into one for summary judgment if they are

central to the plaintiff’s claim and their authenticity is not challenged.” Crowder v. Delta Air Lines, Inc.,

963 F.3d 1197, 1202 (11th Cir. 2020). Here, no party has challenged the authenticity of the EEO

documents, and the documents present necessary prerequisites to Kupec’s ability to file suit in federal

court. See Booth v. City of Roswell, 754 F. App’x 834, 837 (11th Cir. 2018) (Conversion not required when

the plaintiff “referred to the EEOC charge in his complaint, as amended; it was central to whether his

claims were viable; and no one disputed its authenticity.”); Equal Emp. Opportunity Comm’n v. Austal

USA, LLC, 389 F. Supp. 3d 1015, 1018 (S.D. Ala. 2019) (citations omitted) (“Courts have found that

an EEOC charge attached to a motion to dismiss may be considered where it was central to a

complaint brought by a charging party and the authenticity of the charge was not disputed.”).

8

reference the “remedies, procedures, and rights” prescribed in § 2000e-16 of the Civil

Rights Act of 1964); 29 C.F.R. § 1614.103(a).

The employee must first attempt to resolve his or her claim through informal

counseling. 29 C.F.R. § 1614.105(a). He or she “must initiate contact with a Counselor

within 45 days of the date of the matter alleged to be discriminatory or, in the case of

personnel action, within 45 days of the effective date of the action.” Id. §

1614.105(a)(1). The agency may extend the 45-day time limit if

the individual shows that he or she was not notified of the time limits and

was not otherwise aware of them, that he or she did not know and

reasonably should not have been known [sic] that the discriminatory

matter or personnel action occurred, that despite due diligence he or she

was prevented by circumstances beyond his or her control from

contacting the counselor within the time limits, or for other reasons

considered sufficient by the agency or the Commission.

Id. § 1614.105(a)(2).

If informal counseling does not resolve the matter, or if counseling does not

conclude within the prescribed time period, the Counselor will inform the employee of

his or her right to file a discrimination complaint. Id. §§ 1614.105(d), (e), (f). The

employee must file the complaint within 15 days of the Counselor’s notice. Id. §

1614.106(b).

Defendant argues Kupec did not timely initiate EEO contact pursuant to these

9

procedures.4 That argument challenges this court’s jurisdiction. “Federal courts are

courts of limited jurisdiction” and, as such, possess the power to hear cases only as

authorized by the Constitution or United States’ laws. Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375, 377 (1994). “[B]ecause a federal court is powerless to act beyond

its statutory grant of subject matter jurisdiction, a court must zealously insure that

jurisdiction exists over a case.” Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).

“If the court determines at any time that it lacks subject-matter jurisdiction, the court

must dismiss the action.” Fed. R. Civ. P. 12(h)(3). In addition, federal courts possess

“an independent obligation to determine whether subject-matter jurisdiction exists,

even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S.

500, 514 (2006).

Federal Rule of Civil Procedure 12(b)(1) permits a district court to dismiss a case

for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). The plaintiff bears

the burden of persuasion on establishing the court’s subject matter jurisdiction. OSI,

Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002) (citing Thomson v. Gaskill, 315 U.S.

442, 446 (1942)).

4 Kupec points out the EEO agency denied as untimely her discrimination claim based upon the 2019

selection. (Doc. 8, at 2-5; Doc. 8-2). Though, as discussed in the previous footnote, the court may

consider the EEO documents for the procedural history of Kupec’s claims, the Agency’s EEO

decision does not bind this court, which must conduct a de novo review. Ellis v. England, 432 F.3d 1321,

1324 (11th Cir. 2005) (“[A] federal employee unhappy with the administrative decision may bring a

claim in the federal district court and obtain the same de novo review that a private sector employee

receives in a Title VII action pursuant to 42 U.S.C. § 2000e-16(c).”).

10

The Eleventh Circuit establishes particular modes of review for Rule 12(b)(1)

challenges to subject matter jurisdiction:

[A] motion to dismiss for lack of subject matter jurisdiction pursuant to

Fed. R. Civ. P. 12(b)(1) can be based upon either a facial or factual

challenge to the complaint. If the challenge is facial, the plaintiff is left

with safeguards similar to those retained when a Rule 12(b)(6) motion to

dismiss for failure to state a claim is raised . . . Accordingly, the court must

consider the allegations in the plaintiff’s complaint as true . . .

A facial attack on the complaint requires the court merely to look

and see if the plaintiff has sufficiently alleged a basis of subject matter

jurisdiction, and the allegations in his complaint are taken as true for the

purposes of the motion . . . Factual attacks, on the other hand, challenge

the existence of subject matter jurisdiction in fact, irrespective of the

pleadings, and matters outside the pleadings, such as testimony and

affidavits are considered. Furthermore, . . . the district court has the power

to dismiss for lack of subject matter jurisdiction on any of three separate

bases: (1) the complaint alone; (2) the complaint supplemented by

undisputed facts evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court’s resolution of disputed

facts.

McElmurray v. Consol. Gov’t of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007)

(citing, inter alia, Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981);5 Lawrence v.

Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)) (internal quotation marks and alterations

omitted).

Therefore, a factual challenge to subject matter jurisdiction typically permits a

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October

1, 1981.

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“trial court . . . to weigh the evidence and satisfy itself as to the existence of its power

to hear the case.” Williamson, 645 F.2d at 412-13 (quoting Mortensen v. First Federal Savings

and Loan Association, 549 F.2d 884, 891 (3rd Cir. 1977)). No presumptive truthfulness

would attach to a plaintiff’s claims, and “the existence of disputed material facts [would]

not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”

Id. (quoting Mortensen, 549 F.2d at 891); see also Lawrence, 919 F.2d at 1529.

As germane to this case, a federal employee must exhaust his or her

administrative remedies as a “jurisdictional prerequisite” to filing a lawsuit under Title

VII or the Rehabilitation Act. Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999);

accord Thomas v. Nicholson, 263 F. App’x 814, 815 n.1 (11th Cir. 2008) (per curiam) (citing

Crawford, 186 F.3d at 1326) (“It is well-settled that, as a jurisdictional prerequisite, a

federal employee must timely exhaust administrative remedies prior to filing an

employment discrimination suit under Title VII.”); Brown v. Snow, 440 F.3d 1259, 1263

(11th Cir. 2006) (quoting Crawford, 186 F.3d at 1326) (“[O]ur case law establishes that

‘[a] federal employee must pursue and exhaust her administrative remedies as a

jurisdictional prerequisite to filing a Title VII action . . . .’”) (second alteration in

original); see Doe v. Garrett, 903 F.2d 1455, 1461 (11th Cir. 1990) (quoting Milbert v. Koop,

830 F.2d 354, 357 (D.C. Cir. 1987)) (“[P]rivate actions against federal government

employers under the [Rehabilitation] Act . . . must satisfy ‘the requirement of

12

exhaustion of administrative remedies in the manner prescribed by section [794a(a)(1)]

and thus by Title VII.’”) (second alteration in original).

Accordingly, a Rule 12(b)(1) motion to dismiss for lack of subject matter

jurisdiction constitutes the proper vehicle for challenging a plaintiff’s failure to exhaust

administrative remedies in the federal employment sector. See Brown, 440 F.3d at 1263

(“We have applied the exhaustion requirement to affirm dismissals for lack of subject

matter jurisdiction when the employee did not provide information requested by the

investigating agency.”); Swauger v. Dep’t of Def. - Def. Intel. Agency, 852 F. App’x 393, 396

(11th Cir. 2021) (citations omitted) (“When a complaint under Title VII is time-barred

for failure to exhaust administrative remedies, it must be dismissed for lack of subject-

matter jurisdiction.”); Hawkins v. Esper, 5:18-cv-00127-AKK, 2019 WL 5963520, at *5

(N.D. Ala. Nov. 13, 2019) (the plaintiff failed to exhaust his administrative remedies

pursuant to Title VII, thus precluding the court’s subject matter jurisdiction over his

claims); Dillard v. Runyon, 928 F. Supp. 1316, 1325 (S.D. N.Y. 1996) (“If a [Title VII]

claimant has not met the filing requirements, . . . there is no waiver of sovereign

immunity, and accordingly, no subject matter jurisdiction. . . . Accordingly, defendant’s

motion here properly is characterized as one pursuant to Fed. R. Civ. P. 12(b)(1) to

dismiss for lack of subject-matter jurisdiction.”); 5B Charles Alan Wright, Arthur R.

Miller & May Kay Kane, Federal Practice and Procedure § 1350 (3d ed. 1995) (“[T]he

Rule 12(b)(1) motion to dismiss for a lack of subject matter jurisdiction . . . may be

13

appropriate when the plaintiff has failed to exhaust administrative procedures that have

been established, typically by statute, as a prerequisite to his bringing suit.”).

Moreover, a plaintiff’s failure to comply with administrative filing deadlines

constitutes a failure to exhaust administrative remedies, notwithstanding a plaintiff’s

timely filing of a complaint in federal court. See Hall v. Potter, No. 06-CV-5003

(JFB)(AKT), 2009 U.S. Dist. LEXIS 18955, at *18-19 (E.D.N.Y Mar. 4, 2009) (“Where

a plaintiff fails to appeal a decision to the EEOC within the thirty-day statutory limit

but does ultimately file a civil action within ninety days of the EEOC’s final

determination of that untimely appeal, the timely filing of the federal court action does

not cure that plaintiff’s original failure to abide by the requisite filing periods.”). The

plaintiff bears the burden of proving he exhausted his administrative remedies. See

Crawford, 186 F.3d 1322; OSI, Inc., 285 F.3d at 951 (“In the face of a factual challenge

to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction

exists.”).

Kupec does not dispute that she failed to initiate EEO contact within 45 days of

the decision not to award her the position in 2019.6 Even so, she argues her gender-

and disability-based discrimination claims should survive because “the discriminatory act,

6 The Complaint does not state the precise date on which DeSimone chose to re-advertise the position

rather than awarding it to Kupec, but she undisputedly effected that option sometime in 2019, and

Kupec initiated EEO contact in late November 2020, much more than 45 days following any date in

2019.

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the selection of a male for the position, did not occur until November, 2020.” (Doc.

15, at 4) (emphasis in original).7 That argument persuades the court. The administrative

regulations required Kupec to “initiate contact with a Counselor within 45 days of the

date of the matter alleged to be discriminatory or, in the case of personnel action, within

45 days of the effective date of the action.” 29 CFR § 1614.105(a)(1). “Ordinarily, a

limitations period commences when the plaintiff has a complete and present cause of

action. . . . A cause of action does not become ‘complete and present’ for limitations

purposes until the plaintiff can file suit and obtain relief.” Green v. Brennan, 578 U.S.

547, 554 (2016) (cleaned up, citations omitted). Based upon Kupec’s remonstrations,

her 45-day limitations period did not become complete and present until the effective

date of the personnel action at issue, i.e., Vander Schaaf’s selection for the Program

Manager position, as she could not have initiated the administrative process to obtain

relief until that date.

7 Kupec partially couches her argument in terms of the doctrine of equitable tolling, as she argues “she

was unaware of the discrimination” before that date. (Doc. 15, at 4). The doctrine of equitable tolling

suspends the limitations period for a claim until “the facts supporting a cause of action became

apparent or should have become apparent to a reasonably prudent person with concern for his or her

rights.” Jones v. Dillard’s, Inc., 331 F.3d 1259, 1267 (11th Cir. 2003), certified question answered sub nom. Byrd

v. Dillard’s, Inc., 892 So. 2d 342 (Ala. 2004). However, as Kupec’s exhaustion of administrative

remedies presents a jurisdictional prerequisite, not a procedural one, equitable tolling does not apply.

See Swauger v. Dep’t of Def. - Def. Intel. Agency, 852 F. App’x 393, 396 (11th Cir. 2021) (citing F.E.B. Corp.

v. United States, 818 F.3d 681, 685 & n.3 (11th Cir. 2016); Wong, 575 U.S. at 407-10, 415-16) (“Equitable

tolling is not available for a jurisdictional time bar.”). Principally, this case involves accrual of Kupec’s

discrimination claims, and “[w]e must distinguish between the accrual of a plaintiff’s claim and the

tolling of the statute of limitations.” Fedance v. Harris, 1 F.4th 1278, 1285 (11th Cir. 2021) (quoting

Holland v. Florida, 560 U.S. 631, 647 (2010) (cleaned up, emphasis in original)).

15

Therefore, Kupec’s discrimination claims did not accrue in 2019 when

Defendant declined to heed the first interview panel’s recommendation to select Kupec

for the Program Manager position. As insinuated by Kupec, Defendant did not exercise

any selection decision at that time. Hence, in the circumstances of this case, and as

denoted by Kupec, Defendant did not render a discriminatory selection at that time. See

Coutu v. Martin Cnty. Bd. of Cnty. Comm’rs, 47 F.3d 1068, 1074 (11th Cir. 1995) (emphasis

in original) (“Unfair treatment, absent discrimination based on race, sex, or national

origin, is not an unlawful employment practice under Title VII.”); Woods v. Waste Pro of

Fla., Inc., No. 21-12610, 2022 WL 2288683, at *2 (11th Cir. June 24, 2022) (“To establish

a Title VII discrimination claim, the plaintiff must show . . . the employer’s

discriminatory animus towards the employee based on the employee’s protected

characteristic . . . .”); Owens v. Governor’s Off. of Student Achievement, 52 F.4th 1327, 1334

(11th Cir. 2022) (citation omitted) (alteration in original) (“To establish a prima facie

case of discrimination under the [Rehabilitation] Act, an individual must show that . . .

he was subjected to unlawful discrimination as the result of his disability.”); Terrell v.

McDonough, No. 8:20-CV-64-WFJ-AEP, 2021 WL 4502795, at *5 (M.D. Fla. Oct. 1,

2021), motion for relief from judgment denied, No. 8:20-CV-64-WFJ-AEP, 2022 WL 523606

(M.D. Fla. Feb. 22, 2022) (Plaintiff “did not suffer differential treatment” when “no

one was selected” after the reposting of a position.).

Rather, Kupec’s discrimination claims accrued in November 2020, when

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Defendant selected Vander Schaaf, a non-disabled male, for the Program Manager

position. (See Doc. 15, at 4 (“[T]he discriminatory act, the selection of a male for the

position, did not occur until November, 2020.”) (emphasis in original)). Indeed,

Kupec’s Complaint portrays this understanding: her two counts for the failure-to-

promote claim integrate the 2019 and 2020 events, including the selection of Vander

Schaff in 2020 for the position.

Defendant does not challenge the timeliness of Kupec’s administrative

complaint addressing her non-selection for the position in November 2020, as the

Agency rendered the selection and Kupec initiated EEO contact in the same month.

Thus, Kupec unquestionably initiated EEO contact within 45 days of her 2020 non-

selection. Therefore, the time bar does not preclude Kupec’s gender and disability

discrimination claims, which did not accrue until November 2020. Accordingly, the

court will deny Defendant’s motion to dismiss those claims in that regard.8

II. Kupec’s Complaint Sufficiently Alleges a Materially Adverse Action to

Support Her Retaliation Claim

Defendant’s entreaty to dismiss Kupec’s retaliation claim invokes Federal Rule

8 The court notes that even if the 2019 decision constituted a separate discrete act, facts surrounding

the 2019 decision my bear relevance as background information for the claims about the 2020

decision. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“The existence of past acts and

the employee’s prior knowledge of their occurrence, however, does not bar employees from filing

charges about related discrete acts so long as the acts are independently discriminatory and charges

addressing those acts are themselves timely filed. Nor does the statute bar an employee from using

the prior acts as background evidence in support of a timely claim.”).

17

of Civil Procedure 12(b)(6), which permits dismissal of a claim for failure to state a

claim upon which the court can grant relief. To assess a motion to dismiss under that

rule, courts must first take note of the elements a plaintiff must plead to state the

applicable claims at issue. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009).

After establishing the elements of the claims at issue, the court identifies all well-

pleaded, non-conclusory factual allegations in the complaint and assumes their veracity.

Id. at 679. Well-pleaded factual allegations do not encompass mere “labels and

conclusions,” legal conclusions, conclusory statements, or formulaic recitations and

threadbare recitals of the elements of a cause of action. Id. at 678 (citations omitted).

In evaluating the sufficiency of a plaintiff’s pleadings, the court may draw reasonable

inferences in the plaintiff’s favor. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d

1242, 1248 (11th Cir. 2005).

Third, a court assesses the complaint’s well-pleaded allegations to determine if

they state a plausible cause of action based upon the identified claim’s elements. Iqbal,

556 U.S. at 678. Plausibility ensues “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged,” and the analysis involves a context-specific task requiring a court

“to draw on its judicial experience and common sense.” Id. at 678, 679 (citations

omitted). The plausibility standard does not equate to a “probability requirement,” yet

it requires more than a “mere possibility of misconduct” or factual statements that are

18

“merely consistent with a defendant’s liability.” Id. at 678, 679 (citations omitted).

Kupec alleges Defendant retaliated against her after she contacted the EEO

office in late November 2020 to complain about her non-selection for the Project

Manager position.

Title VII’s anti-retaliation provision provides:

It shall be an unlawful employment practice for an employer to

discriminate against any of his employees or applicants for employment .

. . because [the employee] has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge,

testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.

42 U.S.C. §2000e-3(a). Similarly, the Rehabilitation Act adopts the standards and

remedies of the Americans with Disabilities Act, which provides: “No person shall

discriminate against any individual because such individual has opposed any act or

practice made unlawful by this chapter or because such individual made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing under this chapter.” 42 U.S.C. § 12203(a); see also 29 U.S.C. § 794(d) (“The

standards used to determine whether this section has been violated in a complaint

alleging employment discrimination under this section shall be the standards applied

under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)

and the provisions of sections 501 through 504, and 510, of the Americans with

Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections relate

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to employment.”).

To assert a viable claim under either statute, a plaintiff must plead facts

demonstrating (1) she engaged in statutorily protected activity; (2) she suffered a

materially adverse action; and (3) some causal relation exists between the two events.

Patterson v. Georgia Pac., LLC, 38 F.4th 1336, 1345 (11th Cir. 2022) (quoting Gogel v. Kia

Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc)) (Title VII); see also

Solloway v. Clayton, 738 F. App’x 985, 988 (11th Cir. 2018) (citation omitted) (“[W]e assess

retaliation claims under the Rehabilitation Act using the same framework as Title VII

retaliation claims.”).

Defendant argues Kupec has not pleaded sufficient facts to demonstrate she

suffered a materially adverse action. Such an action manifests if it “could well dissuade

a reasonable worker from making or supporting a charge of discrimination.” Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). Thus, “[t]he challenged action

must be materially adverse from the standpoint of a reasonable employee.” Davis v.

Coca-Cola Bottling Co. Consol., 516 F.3d 955, 978 n.52 (11th Cir. 2008), abrogated on other

grounds by Ashcroft, 556 U.S. 662. Consistent with Supreme Court precedent, the

Eleventh Circuit prescribed a “liberal view of what constitutes” a materially adverse

action for retaliation claims, pursuant to which an employee must simply demonstrate

the employer’s conduct “might deter a reasonable employee from pursuing a pending

charge of discrimination or making a new one.” Crawford v. Carroll, 529 F.3d 961, 974

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(11th Cir. 2008) (citing Burlington, 548 U.S at 68).

Even so, the employee must experience a materially adverse harm rather than a

trivial one. Burlington, 548 U.S. at 68 (“We speak of material adversity because we believe

it is important to separate significant from trivial harms. . . . An employee’s decision to

report discriminatory behavior cannot immunize that employee from those petty slights

or minor annoyances that often take place at work and that all employees experience.”)

(emphasis in original). In assessing materiality, the court must consider the context of

the adverse action, as “any given act of retaliation will often depend upon the particular

circumstances.” Id. at 69. “‘The real social impact of workplace behavior often depends

on a constellation of surrounding circumstances, expectations, and relationships which

are not fully captured by a simple recitation of the words used or the physical acts

performed.”’ Id. (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82

(1998)). For example:

A schedule change in an employee’s work schedule may make little

difference to many workers, but may matter enormously to a young

mother with school-age children. . . . A supervisor’s refusal to invite an

employee to lunch is normally trivial, a nonactionable petty slight. But to

retaliate by excluding an employee from a weekly training lunch that

contributes significantly to the employee’s professional advancement

might well deter a reasonable employee from complaining about

discrimination.

Burlington, 548 U.S at 69.

Binding authority dictates that materially adverse actions may include:

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• a reassignment of job duties, if it results in more arduous or less desirable

duties or a loss of prestige, id. at 70-71;

• a negative performance review, if it may result in reduced pay, responsibilities,

or other benefits, Crawford, 529 F.3d at 974; see also Manley v. DeKalb Cnty.,

Georgia, 587 F. App’x 507, 513 (11th Cir. 2014); and

• “[w]ithholding a position that an employee would otherwise receive under

company policy.” Chapter 7 Tr. V. Gate Gourmet, Inc., 683 F.3d 1249, 1259

(11th Cir. 2012).

Recent unpublished Eleventh Circuit authority also instructs that threats of disciplinary

action, imposition of additional work hours, disadvantageous alteration of an

employee’s work schedule, and subjecting an employee to “fit for duty” assessments

and drug testing may dissuade a reasonable employee from engaging in protected

activity. Moore v. City of Homewood, No. 21-11378, 2023 WL 129423, at *12 (11th Cir. Jan.

9, 2023).

In all contexts, the inquiry proceeds on a subjective, contextual, and fact-

intensive basis. See Burlington, 548 U.S. at 69 (“Context matters.”). In addition, courts

should collectively consider the total weight of an employer’s adverse actions in

assessing material adversity. Moore, 2023 WL 129423, at *12 (“It is not enough . . . to

view the employer’s actions in isolation. We must view them together, and – in that

light – decide whether they might dissuade a reasonable employee from engaging in

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protected activity.”); see also Harris v. Fla. Agency for Health Care Admin., 611 F. App’x

949, 952 (11th Cir. 2015) (citing Shannon v. BellSouth Telecomm., Inc., 292 F.3d 712, 716

(11th Cir. 2002)) (“[A] set of actions may constitute an adverse employment action when

considered collectively, even though some actions do not rise to the level of an adverse

employment action individually.”).

Kupec’s Complaint alleges Defendant retaliated after notification of her EEO

complaint by: (1) removing her name from an informal attendance roster on a briefing

chart for a December 2, 2020, meeting; (2) removing her from the position of

Acquisition Manager Functional Lead on December 2, 2020; (3) issuing her a December

17, 2020, letter of counseling that falsely claimed she did not address issues with

supervisors and expressed her concerns vociferously; and (4) discontinuing her

attendance at a Ground Based Weapons Systems weekly meeting on January 7, 2021.

Excluding Kupec from meetings, removing her from a leadership position, and

issuing her a letter of counseling may constitute materially adverse actions if such actions

affected her pay, future career prospects, or other benefits; cost her prestige; or resulted

in less favorable job duties. Discovery will provide the facts necessary to evaluate those

context-specific assessments. At the pleading state, Kupec has alleged sufficient facts

to demonstrate she suffered materially adverse actions as a result of Defendant’s

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discriminatory motive.9

Defendant argues Kupec cannot sustain a retaliation cause of action because she

persisted in filing a formal EEO claim on March 12, 2021, notwithstanding all of the

retaliatory actions she allegedly endured. Therefore, according to Defendant,

Defendant’s actions did not, in fact, dissuade Kupec from pursuing relief. (Doc. 8, at

14-15) (“Plaintiff did, in fact, file an EEO claim after these alleged incidents on March

12, 2021.”). Applicable law does not support Defendant’s argument. The court must

perform an objective assessment of whether adverse actions “could well dissuade a

reasonable worker from” pursuing a discrimination complaint, not a subjective inquiry

into whether such actions actually dissuaded the individual plaintiff. Burlington, 548 U.S.

at 57; see also Davis, 516 F.3d at 978 n.52 (“The challenged action must be materially

adverse from the standpoint of a reasonable employee.”).

The objective inquiry “is judicially administrable,” and it “avoids the

uncertainties and unfair discrepancies that can plague a judicial effort to determine a

plaintiff’s unusual subjective feelings.” Burlington, 548 U.S. at 68-69. Moreover,

foreclosing all retaliation claims when the employer’s adverse action failed to deter the

employee from seeking relief would unfairly reward the employer for its retaliation and

9 Defendant does not dispute that Kupec’s EEO complaint constituted protected activity, or that

Kupec alleged a sufficient causal connection between the filing of the complaint and the alleged

adverse actions.

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effectively preclude all retaliation lawsuits. The authors of Title VII and the ADA surely

did not intend such a result. See Quarles v. United States, 139 S. Ct. 1872, 1879 (2019)

(citations omitted) (“We should not lightly conclude that Congress enacted a self-

defeating statute.”). The Supreme Court also could not have intended its decision in

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) would bear such

consequences: the plaintiff in that case submitted an EEOC charge and filed suit in

federal court after the employer allegedly took retaliatory actions, yet the Supreme Court

evaluated the employer’s conduct under the objective standard of a reasonable

employee. Id. at 58-59, 68-73. As the Court observed, the “antiretaliation provision

seeks to prevent employer interference with ‘unfettered access’ to Title VII’s remedial

mechanisms,” id at 68 (citation omitted), and that an aggrieved employee achieves such

access does not categorically render the accomplishment unencumbered. See also

Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 178 (2011) (holding in a retaliation case

that “the term ‘aggrieved’ in Title VII incorporates [the zone-of-interests] test, enabling

suit by any plaintiff with an interest ‘arguably sought to be protected by the statute’”

(citation omitted)).

In summary, as Kupec has adequately alleged retaliation claims under Title VII

and the Rehabilitation Act, the court will deny Defendant’s motion to dismiss those

claims.

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CONCLUSION AND ORDER

In accordance with the foregoing, the court DENIES Defendant’s motion to

dismiss. Kupec’s claims for discrimination based upon her failure to receive the

Program Manager position in 2020, and for retaliation, shall proceed to discovery.

DONE and ORDERED this 17" day of February, 2023.

4 N. feces Met JR.

UNITED STATES MAGISTRATE JUDGE

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