UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA
Marilyn Bloch, P laintif f,
v. Civil Action No. 10-0800 (JD B) United States Ce nsu s Bureau, Defendan t.

MEMORAN DUM OP INION In this civil action broug ht pro se , plaintiff sues the De partment of Commerc e for failing to hire her

at the Census B urea

u (“B urea u”) “ beca use ac cordingto the [] Census Bur eau . . . plaintiff was guilty

of a misdemea

nor in NewYork.” Compl. at 1. P laintiff see ks $4 mill ion in monetary damag es for

libel, slander a

nd discrimination based on he r ag e (60 year s) and g ender

. Def endant moves to dismiss the defamation claims under Rule 12(b) (1) of the Fe dera l Rules of Civil P roce dure f or lac k of subject matter

jurisdiction and the discrimination claims under Rule 12( b)(6) for f ailure to state a

claim upon which r elief c an be grante d and for failure to exhaust administ rative r emedies. D efe ndant moves in the alter native for summary judgme nt under Rule 56. Upon c onsideration of the parties’ submissi ons and the e ntire re cord, the Court will gr ant def

endant’ s motion t o dismiss the def amation claims and its motion for summary judgme nt on the discrimination claims.I. BACKG ROUND

To implement the 2010 Dec ennial Census, the B urea u “hire d hundreds of

thousands of local wor kers a cross the c ountry . . . .” De f.’s Mot. to Dismiss or, in the Alternative, for Summ. J
. (“D ef.’ s Mot.”) [Dkt. No. 10] , Dec l. of Ann F oster Mar riner ( “Mar

riner D ecl.” ) ¶ 2. Job applicants “ took a D-267 te st for non-supe rvisory positions. The [ candidate’s] score w as used to evaluate [his or her] employ ment rankingin [ a] database of applica nts.” Id . ¶ 5. On De cembe r 17, 2008, plaintiff, a r esident of Holly wood, Flor ida, applied f

or one of those temporar

y positions. Def.’s Ex. 2 (Census Employ ment Inquiry

). Plaintiff alleg es that she took a te st in August 2009 and was infor med that she ha d passed it. She furthe r alleg es that she wa s not hired beca use of a misdemeanor c onviction that she disputes. Compl. at 1. But on August 3, 2009, 1 the B urea u informed plaintiff that based on the infor mation she had submitted with reg ard to the fore g oing a

rre st, “we ha

ve made a fa

vorable deter

mination on y our ca se and you are elig ible to return to wor

k eff ective immediate ly . We have notified the local Census Off ice of this decision.” Def .’s Ex. 5. On October 2, 2009, the B urea u sent a sec ond letter re iteratingplaintiff’s elig ibilit y status and informed he r that her local ce nsus office would contac t her “ if and whe n a job opportunity

become s available .” Id ., Ex . 1. Be cause the B urea

u “ha[d] not called but said they would in J anuar

y , 2010, [pl aintiff conclude d] obvi ously

[she] is not being hire d due to the convic tion they claim she ha s which she does not.” Compl. at 2 ¶ 8. Plaintiff filed this action on May 17, 2010, claiming “ag e discrimination [ beca

use] the Census Dept. has no employees who are women of 60 year s of ag e
Acc ordingto plaintiff, she wa s arr ested in 1999 in NewYork “ and illeg ally strip 1 sear ched at the Nassau County jail . . . but she only

pled not g uilty , [] there was no [jury ] t rial” and, henc e, no convic tion. Com pl. at 1 ¶¶ 4- 5. 2workingin their [si c] ag ency .” Id . at 2 ¶ 6. Plaintiff also cla ims that she “has lost all fede ral jobs

due to this malicious lie gossiped a round the c ountry , and has [suffe red] emotional distress[.] ” Id . ¶ 7. II. DISCUSS ION 1. Subject Matter Jurisdiction Def endant c orre ctly

argues that plaintiff’s c laims for libel and slande r ar e bar red by

sovere ign immunity . “It is ax iomatic that the United States may not be sued without its consent and that the e x istence of

consent is a pr ere quisite for jurisdiction.” United States v. Mitche ll , 463 U.S. 206, 212 (1983). Such conse nt may not be implied, but mustbe “une quivocally expressed.” United States v. Nordic Village, Inc

. , 503 U.S. 30, 33-34 (1992). The Fe dera l Tort Claims Act (“F TCA”) ope rate s as a limited waiver of sover eig n immunit y , rende ring the United States

amena ble to suit for ce rtain, but not all, tort claims. See, e .g., Richards v. United States , 369 U.S. 1, 6 (1962). “ Absent a w aiver , sovere ign immunity shields the Fe dera l Governme nt and its ag encie s from suit.” Fed. De posit Ins. Corp. v. Meye r , 510 U.S. 471, 475 (1994). The F TCA specific ally

excludes from its rea ch “[a]ny claim ar ising out of . . . libel [or] slander . . . .” 28 U.S.C. § 2680(h). Henc e, the Court will g rant de fenda nt’s motion to di smiss those claims under

Rule 12(b)(1)

. See W

uterich v. M

urtha , 562 F.3d 375, 387 ( D.C. Cir. 2009) (conc luding that “ the District Court will be require d to dismi ss the [defamation] case [ag ainst the United States] for lack of subject matter jur isdiction.”). 2. Def endant’ s Motion for Summary J udg ment Under Rule 56 of the F eder al Rules of Civil P roce dure, summar y judgme nt is appropriate “if the mova

nt shows that there is no g enuine dispute a s to any materia l fac t and the movant is
3entitled to judgment a s a matter of law.” Fe d. R. Civ. P . 56(a) . Materia l fac ts are those that "mig ht affe ct the outcome of the suit under the g overning law." Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 248 (1986). The party seekingsummary

judgme nt bear s the initial burden of demonstratingthe abse nce of a g enuine issue of

materia l fac t. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Onc e that is shown, the nonmovingparty must do more than simply "showthat there is some metaphy sical doubt as to the mater ial fac ts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Cor

p., 475 U.S. 574, 586 (1986). That party must show that a g enuine f actua l issue exis ts by “(A ) citingto particular

parts of materials in the re cord. . . or (B ) showingthat the materia ls cited do not establish the absenc e . . . of a g enuine dispute[.] ” F ed. R. Civ. P. 56(c). Any fac tual asser

tions in t he moving party ’s af fidavits will be acc epted a s being true unless the opposing pa

rty submits her own aff

idavits or other doc umentary evidenc e contr adictingthe

asser tion. Neal v. Kelly, 963 F.2d 453, 456 ( D.C. Cir. 1992). To establish a prima f

acie case of employ

ment discrimination, a plaintiff must show that “(1) she is a member

of a pr otected c lass; (2) she suf fer ed an a dverse employ

ment action; and ( 3) the unfavorable action g ives rise to an infe renc e of discr imination.” Stella v. Mineta , 284 F.3d 135, 145 (D.C. Cir. 2002) (c iting Brown v. Brody , 199 F.3d 446, 452 ( D.C. Cir. 1999)). Onc e a plaintiff establishes a

prima fa cie c ase, the burden shifts to the def endant to ar

ticulate a leg itimate, non-discriminatory explanation for its actions. See Sm ith v. Dist. of Col umbia , 430 F.3d 450, 455 ( D.C. Cir. 2005). Def endant a sserts cor

rec tly that plaintiff has not stated a ny fac ts to support either he r ag e discrimination claim under the Ag e Discr imination in Em ploy ment Act (“A DEA” ), 29 U.S.C. §§ 621 et seq ., or her g ender discrimination claim under Title VI I of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e et seq . SeeMem. of P. & A . in Supp. of Def.’ s 4Mot. to Dismi ss or, in the Alterna tive, for Summ. J . at 8-9. The fac t that plaintiff’s sole alleg ation is that the Bur eau did not employ women over

60 is reason e noug h to enter summar y judgme nt for def

endant on these claims. See G reenev. Dalton, 164 F.3d 671, 675 ( D.C. Cir. 1999) (a ffirmingthe dismissal of a re taliation claim resting"e ntirely upon a conc lusory repr esentation"). Neve rtheless, de fenda

nt’s uncontested f

acts provide further

support for e ntering judgme nt in its favor . The job applica nts’ score s from the D- 267 test were “used to e valuate their employ

ment rankingin [ a] database of applica nts.” Marr iner De cl. ¶ 5. “ When the Bur eau neede d employ ees f

or a [particula

r] operation, selec tion parame ters, such a s g eog raphic location and languag e skill needs, we re e ntere d into a computer pr og ram,” id . ¶ 6, and the “best qua lified individuals were ide ntified and ra nked.” Id . ¶ 7. Applica

nts were selec ted “a ccor ding to their ranking . After

the re quisite number of c andidates w as selec ted, lower rankingcandidates wer e not contacte d by

the B urea

u.” Id . ¶ 8. Plaintiff’s name a

ppear ed on two lists of potential selecte es in Marc h and Apr il of 2010. Def .’s Sealed E x . 6. The sele cted individuals, howeve r, had sc ored hig her tha n plaintiff’s scor e of 72 on the D- 267 test. Def.’ s Statement of Mater ial Fa cts Not in Dispute ¶ 13 & Sealed Ex. 6. Contrary to plaintiff’s unsubstantiated alleg ation that the Census Bur eau e mploy ed no women over the ag e of 60, the two highe st ranked se lectee s from the Mar ch 2010 list were a 71-year -old woman and a

69-y ear -old woman, both of whom ha d score d 97 on the test. Def .’s Sealed E x s. 6, 7. No re asonable fac t finder pr esente d with this evidence c ould find for plaintiff on he r conclusory

claims of ag e and g ender discrimination. See Kralman v. I ll. Dep’t of Veterans’ 2

In light of this deter

mination, the Court will not addre ss defe ndant’s conte sted 2 argument for dismissal under Rule 12(b) (6) on the ground that plaintiff fa iled to exhaust her administrative re medies. 5Affairs , 23 F.3d 150, 156 n.7 ( 7 Cir. 1994) (obser ving that a re asonable infere nce of ag e t h discrimination may

be dra wn from the se lection of a n individual belonging

to ADEA’s pr otected class of individuaAn ls over 40 y ear s of ag e if that pe rson is “suffic iently young er” than the complainant) ( citing c ases) ; Brown v. PSI Se rvice s, Inc. , ___ F. Supp. 2d ___, 2010 WL 3562094, *4 (D.D.C. Sept. 13, 2010) (“ One wa y to discredit an e mploy er' s justification is to show that similarly

situated employ ees of

a diffe rent [ge nder] rec eived more favor able treatment.”) (quoting Royall v. Nat'l Ass 'n of L etter Carriers , 548 F.3d 137, 144 ( D.C. Cir. 2008)) ( alteration in original). CONCLUSION For the fore g oing r easons, the Court g rants def endant’ s motion t o dismiss as to plaintiff’s libel and slander

claims and g rants def

endant’ s motion for summary judgme nt as to plaintiff’s discrimination claims. A separ ate Or der a ccompa nies this Memorandum Opinion.

s/ J OHN D. B ATES United States District J udg e Dated: De cembe r 6, 2010

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