Saunders v. Mills , 842 F. Supp. 2d 284 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
KARLA SAUNDERS, )
)
Plaintiff, )
)
v. ) Case No. 11-cv-486 (RMC)
)
KAREN G. MILLS, Administrator, )
Small Business Administration )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Karla Saunders is a long-time federal employee currently employed with the
Small Business Administration (“SBA” or “Agency”). She complains here of discrimination
based on her sex (female) and race (African American); retaliation for protected Equal
Employment Opportunity (“EEO”) activity; and a hostile work environment. Karen Mills is sued
in her official capacity as the Administrator of the SBA. The SBA has moved for partial
dismissal of Plaintiff’s complaint, arguing that Ms. Saunders has failed to state a claim for relief.
The Court will grant in part and deny in part Defendant’s motion.
I. FACTS
Karla Saunders is a Black female employed with the SBA. In October 2005, Ms.
Saunders applied for and was selected as the Chief of the Training and Benefits Division
(“Training Chief”) in the Agency’s Office of Human Capital Management. As Training Chief,
Ms. Saunders managed the Agency’s centralized training and benefits program. She supervised a
total of seven subordinates, including one GS-14 Training Specialist, three GS-13 Training
Specialists, one GS-12 Benefits Specialist, and one GS-4 Administrative Assistant. Richard
Brechbiel, the Chief Human Capital Officer, selected Ms. Saunders for the position and became
her supervisor. Mr. Brechbiel consistently rated Ms. Saunders as “Highly Successful” or
“Outstanding” and promoted her to the GS-15 level after she had been serving as Training Chief
for approximately one month.
Sometime in 2005, Janice Chiverton, an African American female employee,
applied for a position within the SBA under Mr. Brechbiel. Mr. Brechbiel did not select Ms.
Chiverton for the position and instead hired Sharon Brown, a Caucasian female. Ms. Chiverton
initiated a discrimination complaint against the Agency based upon her nonselection. Ms.
Saunders supported Ms. Chiverton’s complaint by filing an affidavit and giving deposition
testimony indicating that Ms. Brown was not qualified for the position and was selected because
she was romantically involved with Mr. Brechbiel.
Ms. Saunders claims that shortly after her deposition testimony (in January 2007)
Mr. Brechbiel began to harass her in retaliation for her testimony. On April 9, 2007, Ms.
Saunders and two co-workers filed a “request for intervention” alleging that Mr. Brechbiel and
his supervisors had committed illegal, discriminatory, and retaliatory acts and requesting help
from the Small Business Administrator. After receiving the request, the SBA hired Paul,
Hastings, Janofsky & Walker, LLP (“Paul Hastings”) to investigate the claims. After the
investigation began, Ms. Saunders filed a formal EEO complaint with the Agency on July 6,
2007 alleging discrimination and retaliation by Mr. Brechbiel.
Paul Hastings completed its investigation in the fall of 2007. Shortly thereafter,
both Mr. Brechbiel and his supervisor were transferred to other positions within the SBA.
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Napoleon Avery took over Mr. Brechbiel’s position on November 2, 2007. Two months later,
Ms. Saunders was informed that she would be detailed to the Department of Labor (“DOL”).
Ms. Saunders’ detail extended from February 11, 2008 to July 30, 2008. Mr. Avery detailed
Dionne Martin (a Black female) to replace Ms. Saunders as Training Chief. When Ms. Saunders
left for the DOL detail, she was supervising five Training Specialists: one GS-14, one GS-13,
one GS-12, and two GS-11.
On July 30, 2008, Ms. Saunders sent an email to Mr. Avery indicating that her
detail to the DOL was ending and asking when she could return to her position as Training Chief.
Mr. Avery did not respond. Ms. Saunders went in person to the SBA on July 31, 2008 and spoke
with Mr. Avery. Mr. Avery indicated that Ms. Martin was still detailed to the Training Chief
position, and he told Ms. Saunders that she would be detailed to the Agency’s Office of
Entrepreneurial Development (“OED”). Ms. Saunders opposed the second detail but was given
no choice in the matter.
Ms. Saunders began the detail to the OED on August 11, 2008. Seven months
later, Ms. Saunders sent an email to Mr. Avery indicating that her OED detail had ended and
asking whether she could return to her former position as Training Chief. Mr. Avery responded
that the Agency was still trying to determine where her skills could best be utilized. Shortly
thereafter, the SBA reassigned Ms. Saunders to the Agency’s Office of Faith Based and
Community Initiatives as a Senior Advisor. Ms. Saunders opposed the reassignment because the
position was not managerial or supervisory and was thus inferior to her position as Training
Chief. Plaintiff subsequently contacted the EEO Office charging that the reassignment to the
Office of Faith Based and Community Initiatives was discriminatory and retaliatory.
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Ms. Saunders reported to her new position with the Office of Faith Based and
Community Initiatives on May 24, 2009. She served in this position for one year. She complains
here that she had no work during most of that time, that she had no performance standards, and
that she did not receive a performance evaluation.
In June 2009, Ms. Martin’s detail as Training Chief ended. The SBA issued an
announcement that the position was vacant and that it was accepting applications. Ms. Saunders
applied for the position but was not interviewed or selected.
A hearing was held on Ms. Saunders’ original discrimination complaint in
February 2010. The Administrative Judge ultimately held that Mr. Brechbiel had not
discriminated against Ms. Saunders and did not retaliate against her after she testified in support
of Ms. Chiverton’s discrimination claim. Before this ruling issued, however, the Office of
Special Counsel and the SBA entered into an oral agreement under which Ms. Saunders was to
be returned to her position as Training Chief. Ms. Saunders alleges here that the Agency restored
her job title but severely diminished her responsibilities. Specifically, Ms. Saunders alleges that
the SBA reduced the number of employees she supervised and assigned oversight of many
programs from her to other employees within the SBA. Additionally, a few months after
returning to the position, Ms. Saunders received a letter of counseling from Kevin Mahoney, her
direct supervisor. Ms. Saunders claims that the letter was retaliatory and “based on bogus,
inaccurate and contradictory information . . . .” Compl. ¶ 100.
In December 2010, Plaintiff learned that she received a performance rating of “4”
(“Highly Successful”) for fiscal year 2009. Ms. Saunders complains that this evaluation was
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discriminatory and retaliatory. She filed an EEO complaint with respect to this evaluation on
January 24, 2011.
Ms. Saunders filed the present Complaint on March 7, 2011. She complains of
numerous instances of retaliation and discrimination based upon her gender, race, and protected
EEO activities. The SBA moves to dismiss Plaintiff’s complaint in part. Specifically, it moves
to dismiss: (1) Plaintiff’s claims regarding her details to the DOL and OED because the claims
are time barred; (2) Plaintiff’s claim regarding her 2009 performance evaluation because it is
premature; (3) Plaintiff’s claim that her responsibilities and duties were improperly diminished
after she returned to the Training Chief position because the alleged diminished duties are not
“adverse actions;” (4) Plaintiff’s claim that she received a “bogus” letter of counseling because
the letter is not an “adverse action;” and (5) Plaintiff’s hostile work environment claim because
Plaintiff’s allegations do not meet the legal definition of a hostile work environment.
II. LEGAL STANDARD
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim for relief that is “plausible on its face.” Twombly, 550 U.S. at 570.
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A court must treat the complaint’s factual allegations as true “even if doubtful in
fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth
in a complaint. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In deciding a motion under
Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the
complaint as exhibits or incorporated by reference, and matters about which the court may take
judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
III. ANALYSIS
A. DOL and OED Details
Ms. Saunders complains that her detail to the DOL on February 6, 2008 and her
detail to the OED on August 6, 2008 were discriminatory and retaliatory. Ms. Saunders’ claims
fail, however, because she did not exhaust her administrative remedies by contacting an EEO
counselor within 45 days of the alleged discriminatory actions.
“Because timely exhaustion of administrative remedies is a prerequisite to a Title
VII action . . . a court may not consider a discrimination claim that has not been exhausted.”
Steele v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008). The exhaustion requirement is not “a
massive procedural roadblock to access to the courts.” McRae v. Librarian of Congress, 843
F.2d 1494, 1496 (D.C. Cir. 1988). Instead, “[e]xhaustion is required in order to give federal
agencies an opportunity to handle matters internally whenever possible and to ensure that the
federal courts are burdened only when reasonably necessary.” Brown v. Marsh, 777 F.2d 8, 14
(D.C. Cir. 1985). Thus, “[a] Plaintiff who fails to comply, to the letter, with administrative
deadlines ordinarily will be denied a judicial audience.” Id. at 13.
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Under Title VII, a federal employee who believes she has been discriminated
against “must initiate contact with a[n] [EEO] Counselor within 45 days of the date of the matter
alleged to be discriminatory. . . .” 29 C.F.R. § 1614.105(a); see also Weber v. Batista, 494 F.3d
179, 182-83 (D.C. Cir. 2007). This 45-day limit may be extended, however, if the employee “did
not know and reasonably should not have known that the discriminatory matter or personnel
action occurred . . . .” 29 C.F.R. § 1614.105(a)(2). In such a case, the 45-day clock is tolled until
the aggrieved employee has a “reasonable suspicion” that she has been the victim of
discrimination. E.g., Hutchinson v. Holder, 668 F. Supp. 2d 201, 214 (D.D.C. 2009). A plaintiff
cannot wait until “[s]he has direct proof of the allegedly discriminatory actions; rather [she must]
file an EEOC charge even if [s]he is not in possession of the supportive facts necessary to
prosecute a discrimination charge.” Johnson v. Gonzales, 479 F.Supp.2d 55, 59 (internal
quotations omitted).
Ms. Saunders was detailed to the DOL in February 2008 and to the OED in
August 2008. She did not initiate EEO counseling with respect to either detail until June 30,
2009, more than sixteen months after the first detail and ten months after the second. Ms.
Saunders claims that she did not have a “reasonable suspicion” that the details were
discriminatory until June 26, 2009 when: (1) two co-workers informed her that Ms. Martin (who
took over her position as Training Chief) was not qualified for the position, and (2) she learned
from another co-worker that her supervisors had conspired to remove her from her position as
Training Chief permanently. The argument fails, however, because the complaint alleges that
“[o]n March 5, 2009 – a little over one month after [Darryl] Hairston became Acting
Administrator – he took steps to formally reassign Plaintiff to yet another position. This gave
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Plaintiff a clear signal that Hairston was never going to allow Plaintiff to return to her former
position and demonstrated that her detail to OED had no legitimate non-discriminatory purpose.”
Compl. ¶ 32. Accordingly, as of at least March 5, 2009, Ms. Saunders had more than just a
“reasonable suspicion” that the details were discriminatory — she was given “a clear signal” that
she would not be returned to her position and believed that the detail “had no legitimate non-
discriminatory purpose.” At best, Ms. Saunders had 45 days (until April 20, 2009) to contact an
EEO counselor. Because she did not contact an EEO counselor until June 30, 2009, Ms.
Saunders’ claims with respect to these two details will be dismissed.
B. 2009 Performance Rating
According to Ms. Saunders, she received her performance rating for fiscal year
2009 (October 1, 2008 to September 30, 2009) in December 2010. Ms. Saunders alleges that the
rating was discriminatory and retaliatory and did not accurately reflect her performance. She
filed a complaint with the SBA with respect to the performance rating on January 24, 2011.
Because Ms. Saunders filed her Complaint in this Court before the SBA issued a final decision
and before 180 days had elapsed from the time of her administrative complaint, this claim will be
dismissed without prejudice.
As noted above, a federal employee who believes she has been discriminated
against must initiate contact with an EEO Counselor within 45 days. See 29 C.F.R. §
1614.105(a). If the matter is not resolved informally with the counselor, the employee may then
file a formal discrimination complaint with the agency. Id. § 1614.105(d) & 1614.106(a). The
agency then has 180 days to complete an investigation into the alleged discrimination. Id. §
1614.106(e)(2). After the agency issues a final decision, or if the 180 days have expired without
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a final decision, an aggrieved employee can file suit in federal court. See 42 U.S.C. § 2000e-
16(c). If a plaintiff files suit before 180 days have elapsed or before the agency has issued a final
decision, the complaint must be dismissed. See, e.g. Murthy v. Vilsack, 609 F.3d 460, 465-66
(D.C. Cir. 2010).
In the present case, Ms. Saunders filed her discrimination complaint with the SBA
on January 24, 2011. Ms. Saunders filed her Complaint with this Court on March 7, 2011. The
SBA did not issue a final decision on Ms. Saunders’ complaint, and the 180-day investigatory
period did not expire until July 24, 2011. Because Ms. Saunders filed her Complaint before the
Agency issued a final decision and before the 180-day period elapsed, the Court will dismiss her
claim regarding her performance evaluation without prejudice. Cf. Murthy, 609 F.3d at 465-66(“[T]he filing of an amended complaint after the 180-day period expired cannot cure the failure
to exhaust.”).
C. Diminished Duties and Responsibilities
After Ms. Saunders returned to her position as Training Chief on or around June
1, 2010, she alleges that the SBA discriminated against her by reducing her duties and
responsibilities. The SBA moves to dismiss this claim arguing that even if true, the alleged
reduction is not an “adverse action” that can support either a claim of discrimination or
retaliation. The Court disagrees and holds that, viewing all facts in a light most favorable to Ms.
Saunders, the totality of the actions she complains of might support a claim for discrimination
and retaliation.
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Whether an action is sufficiently “adverse” to support a claim under Title VII
depends on whether plaintiff alleges that the action was discriminatory or retaliatory.1 If a
plaintiff claims the action was discriminatory, the plaintiff must show “materially adverse
consequences affecting the terms, conditions, or privileges of her employment or her future
employment opportunities.” Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). The
employment decision must inflict “objectively tangible harm.” Russell v. Principi, 257 F.3d 815,
818 (D.C. Cir. 2001). “An employment decision does not rise to the level of an actionable
adverse action . . . unless there is a tangible change in the duties or working conditions
constituting a material employment disadvantage.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C.
Cir. 2002) (citation omitted). See also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760
(1998) (“A tangible employment action constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.”). “Withdrawing an
employee’s supervisory duties . . . [or] reassignment with significantly different responsibilities”
can constitute an adverse employment action. Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir.
2007) (internal citations and quotations omitted).
If a plaintiff claims the action was retaliatory, she need only show that the action
“could well dissuade a reasonable employee from making or supporting a charge of
discrimination.” Burlington Northern, 548 U.S. at 57. “[T]he proscription against retaliation
1
Title VII speaks of retaliation as a form of discrimination, 42 U.S.C. § 2000e-3(a). The
Court refers to “discrimination” as the “core antidiscrimination provision [of Title VII],” (i.e.,
discrimination based upon race, color, religion, sex, or national origin), Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006), and “retaliation” as discrimination based upon
an employee engaging in protected activity, 42 U.S.C. § Section 2000e-3(a).
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sweeps more broadly than the proscription against discrimination.” Gaujacq v. EDF, Inc., 601
F.3d 565, 577 (D.C. Cir. 2010) (citing Burlington, 548 U.S. at 66–67). Unlike discriminatory
actions, retaliatory actions need not be employment related or occur in the workplace, to be
prohibited by Title VII, Burlington Northern, 548 U.S. at 67, nor must they result in a “a
materially adverse change in the terms or conditions of [one’s] employment.” 548 U.S. at 70.
Whether an action “is materially adverse depends upon the circumstances of the particular case,
and ‘should be judged from the perspective of a reasonable person in the plaintiff's position,
considering all the circumstances.’” Id. at 71 (quoting Oncale v. Sundowner Offshore Svcs., Inc.,
523 U.S. 75, 81 (1998)).
Ms. Saunders alleges that when she returned as Training Chief, SBA significantly
diminished her duties. Specifically, Ms. Saunders complains that (1) her supervisory
responsibilities were greatly diminished, and (2) she no longer oversaw important initiatives and
programs. First, the Agency reassigned two of Ms. Saunders’ most senior subordinates —
Shawn Thompson and Rebecca Archer. Shawn Thompson was a GS-14 Training Specialist and
the most senior, direct subordinate of Ms. Saunders. Shortly before Ms. Saunders returned to her
position as Training Chief, Mr. Thompson was told to report to Mara Kaman instead of Ms.
Saunders. Ms. Kaman was not even a part of the Training and Development Division in which
Mr. Thompson and Ms. Saunders were assigned. Similarly, Ms. Saunders was no longer allowed
to supervise Ms. Archer, although the Complaint does not indicate where or to whom Ms. Archer
was reassigned. In addition to reassigning subordinate employees, Ms. Saunders alleges that the
Agency deliberately failed to approve individuals she had selected to fill vacancies. As a result,
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although the Training Chief supervised five subordinate employees as late as 2009, by October
14, 2010, Ms. Saunders had no employees to supervise.
Second, Ms. Saunders complains that many of the initiatives she previously
supervised as Training Chief were farmed out to different divisions. These included the
“Leadership Development Training Program,” the “Excellence in Government Fellows
Program,” the “Agency Manager/Supervisor Training Program,” and the “Performance
Management Training Program.”
These changes led to a material change in the “terms, conditions, or privileges of
[Ms. Saunders’] employment or her future employment opportunities.” Brown, 199 F.3d at 457;
Cf. Czekalski, 475 F.3d 360 (reassignment that did not affect the salary or benefits of employee
nonetheless was adverse because prior job involved the supervision of hundreds of employees
and a significant budget and the new position involved no budget and the supervision of only 10
employees). The motion to dismiss Ms. Saunders’ claim for discrimination with respect to her
diminished responsibilities will be denied.
With respect to Ms. Saunders’ claim that the diminished responsibilities were
retaliatory, “‘[a]dverse actions’ in the retaliation context encompass a broader sweep of actions
than those in a pure discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1192 n.4
(D.C. Cir. 2008). Because the Court has found that the diminished responsibilities constituted a
material change in her employment, the Court also holds that such diminished responsibilities
would dissuade a reasonable employee from making or supporting a charge of discrimination.
See Burlington Northern, 548 U.S. 60 (transferring employee from forklift operator to more
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arduous track labor duties was materially adverse action). Defendant’s motion to dismiss Ms.
Saunders’ claim of retaliation with respect to her diminished responsibilities will be denied.
D. Letter of Counseling
In December 2009, Kevin Mahoney took over Mr. Avery’s position as Chief of
Human Capital and became Ms. Saunders’ immediate supervisor. On July 1, 2010, Mr.
Mahoney sent Ms. Saunders a letter of counseling which Ms. Saunders alleges was “based on
bogus, inaccurate and contradictory information indicating that Plaintiff had disrespected his
supervision.” Compl. ¶ 100. The letter revolved around the aforementioned reassignment of Mr.
Thompson, who had previously reported to the Training Chief but was transferred to Ms. Kaman.
In his letter, Mr. Mahoney criticized Ms. Saunders for telling Mr. Thompson to report to her even
though Mr. Mahoney had already told Ms. Saunders that Mr. Thomson had been reassigned and
was not her subordinate. See Mot. to Dismiss Ex. G.2 Mr. Mahoney recounted conversations he
had with Ms. Saunders regarding Mr. Thompson and his reassignment and stated that Ms.
Saunders’ “fail[ed] to follow my instructions” and that her “conduct [was] unacceptable and
must not continue.” Id. The letter indicated that it was not disciplinary and would not be made
part of Ms. Saunders’ personnel file but that the letter was “designed solely to inform [Ms.
Saunders] that [her] conduct, as noted above, will not be tolerated in the future.” Id. There was
no abusive language in the letter and its substance was entirely work related. See id.2
The Court considers the Letter of Counseling attached to Defendant’s Motion to
Dismiss without converting the motion to one for summary judgment because the letter is
repeatedly referenced in the Complaint, see Compl. ¶¶ 100, 105, and 123(h), and “is central to
plaintiff’s claim” that the letter was retaliatory and discriminatory. Vanover v. Hantman, 77 F.
Supp. 2d 91, 98 (D.D.C. 1999).
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The parties dispute whether the July 2010 letter constitutes an adverse action
under either the retaliation or discrimination standards. Because the Court finds that the letter is
not an adverse action under even the broader standard for retaliation, the Court will dismiss both
the retaliation and discrimination claim. Cf. Evans v. District of Columbia, 754 F.Supp.2d 30, 47
(“Having concluded that the reduction in plaintiff’s duties was potentially significant to
constitute an ‘adverse employment action,’ if follows that plaintiff has also established the
‘materially adverse action’ necessary to support a retaliation claim.”)
In Baloch v. Kempthorne, the plaintiff claimed that he was retaliated against for
engaging in protected activity. 550 F.3d 1191 (D.C. Cir. 2008). Baloch complained that he was
issued a letter of counseling, letter of reprimand, and unsatisfactory performance review all in
retaliation for his discrimination complaints. The D.C. Circuit held that none of the three actions
was “materially adverse.” Id. at 1193. The Circuit noted that the letters “contained no abusive
language, but rather job-related constructive criticism, which ‘can prompt an employee to
improve her performance.’” Id. (quoting Whittaker v. N. Ill. University, 424 F.3d 640, 647 (7th
Cir. 2005)). The evaluation was also not actionable because it did not result in any financial
harm. Id.Just as in Baloch, the letter here contained job related criticism, and there is no
allegation that the letter resulted in financial harm to Ms. Saunders. Ms. Saunders may have
disagreed with the letter, but it cannot be said that a reasonable employee would be dissuaded
from making or supporting a claim of discrimination based upon it. As such, the letter is not a
materially adverse action. See id; see also Herbert v. Architect of the Capitol, 766 F. Supp. 2d
59 (D.D.C. 2011) (letter of reprimand for employee’s “failure to follow a supervisor’s directive
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and unprofessional and discourteous conduct” was not materially adverse action); Hyson v.
Architect of the Capitol, 802 F.Supp.2d 84, 102 (D.D.C. 2011) (“A letter of counseling . . . if not
abusive in tone or language or a predicate for a more tangible form of adverse action, will rarely
constitute materially adverse action under Title VII.”); Reshard v. Lahood, No. 97-cv- 2794,
2010 WL 1379806, at *17 (D.D.C. Apr. 7, 2010) (letter of reprimand for employee's failure to
perform assigned duties not materially adverse, even though it would be placed in employee's
personnel file for up to three years); Cochise v. Salazar, 601 F.Supp.2d 196, 198–99 & 201
(D.D.C. 2009) (letter of counseling “highlight[ing] plaintiff's ‘rude and discourteous behavior’”
and asking plaintiff to respect other employees would not have dissuaded a reasonable worker
from making a charge of discrimination), aff'd, 377 Fed.Appx. 29 (D.C.Cir. 2010); Harper v.
Potter, 456 F.Supp.2d 25, 29 (D.D.C. 2006) (letter of “suspension” for failure to perform
assigned duties that could remain in employee's personnel file for two years and serve as the
basis for future discipline was not materially adverse where suspension was hypothetical and the
letter was expunged and “bore no consequences”);
E. Hostile Work Environment
“To determine whether a hostile work environment exists, the court looks to the
totality of the circumstances, including the frequency of the discriminatory conduct, its severity,
its offensiveness, and whether it interferes with an employee's work performance.” Baloch, 550
F.3d at 1201. To prevail on a hostile work environment claim, a plaintiff must show that her
employer subjected her to “discriminatory intimidation, ridicule, and insult” that is “sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an abusive
working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav.
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Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). The conduct must be sufficiently extreme to
constitute an alteration in the conditions of employment, so that Title VII does not evolve into a
“general civility code.” Faragher v. City of Boca Raton, 524 U.S. 788 (1998). “[S]imple
teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.” Id.Ms. Saunders alleges that the following acts of “harassment” demonstrate that she
was subjected to a hostile work environment: (1) her February 2008 DOL detail; (2) her August
2008 OED detail; (3) her reassignment to the Agency’s Office of Faith Based and Community
Initiatives in May 2009; (4) her lack of an interview and selection after the Agency posted the
Training Chief position was vacant in June 2009 (5) her lack of performance standards or written
performance appraisals beginning in October 2009; (6) her receipt of a “4” on her 2009
performance rating; (7) her diminished responsibilities when she returned to her position as
Training Chief in June 2010; and (8) her receipt of a letter of counseling in July 2010.
Plaintiff’s attempt to cobble eight separate acts over a two-and-a-half year period
into a hostile work environment claim fails. See Franklin v. Potter, 600 F. Supp. 2d 38, 77
(D.D.C. 2009) (“Cobbling together a number of distinct, disparate acts will not create a hostile
work environment, because discrete acts constituting discrimination or retaliation claims . . . are
different in kind from a hostile work environment.”). None of the acts shows that Ms. Saunders
was subjected to “discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or
pervasive to alter the conditions of [her] employment and create an abusive working
environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see also Houston v. SecTek,
680 F.Supp. 2d 215, 225 (D.D.C. 2010) (“Allegations of undesirable job assignment or modified
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job functions and of . . . unprofessional and offensive treatment are not sufficient to establish that
[Plaintiff’s] work environment was permeated with discriminatory intimidation, ridicule, and
insult”) (citation and quotations omitted), aff’d 407 Fed.Appx. 490 (D.C. Cir. 2011). The Court
will dismiss Ms. Saunders’ hostile work environment claim.
IV. CONCLUSION
Plaintiff’s complaint about her details to DOL and OED are time-barred;
Plaintiff’s claim regarding her 2009 performance evaluation is premature; the letter of counseling
Plaintiff received is not an “adverse action;” and Plaintiff has failed to state a claim for a hostile
work environment. Accordingly, the Court will dismiss these claims and grant in part
Defendant’s Partial Motion to Dismiss [Dkt. # 9]. The motion will be denied with respect to
Plaintiff’s claim that her responsibilities as Training Chief were reduced for discriminatory and
retaliatory reasons. A memorializing Order accompanies this Memorandum Opinion.
Date: February 8, 2012 /s/
ROSEMARY M. COLLYER
United States District Judge
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