Casey v. Mabus , 878 F. Supp. 2d 175 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BARBARA M. CASEY,
Plaintiff,
v. Civil Action No. 11-0441 (BAH)
Judge Beryl A. Howell
RAY MABUS,
Defendant.
MEMORANDUM OPINION
The Plaintiff Barbara M. Casey, an African American woman, brings this employment
discrimination action against Ray Mabus, Secretary of the Navy, under the doctrine of
respondeat superior, alleging violations of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §§ 2000e, et. seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981. A motion to
dismiss the plaintiff’s Complaint pursuant to FED. R. CIV. P. 12(b)(6) is pending before the
Court. 1 The Court grants the defendant’s motion to dismiss for the reasons explained below.
I. BACKGROUND
On February 23, 2003, the plaintiff began working for the Department of the Navy as a
Police Officer, which is a General Schedule (“GS”) Grade 6 position within the standard federal
government pay scale. Compl. ¶ 9. Approximately five and a half years later, on November 23,
2008, the plaintiff received a promotion to a GS-7 grade Police Officer Instructor position within
the Training Division of the Navy Police, where “she was to work with New Police Hires as they
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The defendant has also moved to dismiss the Complaint pursuant to FED. R. CIV. P. 12(b)(5) because the
plaintiff failed to serve the defendant in a timely manner within 120 days of filing the Complaint, as required by
Fed. R. Civ. P. 4(m). The Complaint was filed on February 25, 2011 but was not served until July 16, 2011, eleven
days after the 120-day period for service had elapsed. The plaintiff seeks to have the untimely service excused due
to her counsel “inadvertently miscalendar[ing] the original service deadline.” Mem. of P&A in Supp. of Pl.’s Opp’n
to Def.’s Mot. to Dismiss (“Pl.’s Opp’n Mem.”) at 5, (citing Rucker v. Architect of the Capitol, No. 08-cv-0767,
2012 WL 2368865 (D.D.C. June 25, 2012)), ECF No. 6-1. Since the pending motion to dismiss is resolved on other
grounds, the Court need not address the merits of defendant’s motion on grounds of untimely service.
reported to the command.” Id. ¶¶ 9, 11. Following her promotion, the plaintiff received direct
orders from Chief of Police Larry Graves, an African American male. Id. ¶ 11.
At the time of her promotion, the plaintiff was certified in many areas but had not yet
obtained Firearms Instructor Certification, Instructors School Certification, or Navy Instructor
Certification. Id. ¶ 10. Until the plaintiff obtained the missing certifications, she was instructed
by Chief Graves to assist Training Department supervisors Lieutenant Richard Leon (a Hispanic
male) and Lieutenant William Shively (an African American male) with trainings in the areas in
which she was certified. Id.The plaintiff alleges that while she worked under supervisors Lt. Leon and Lt. Shively,
they “repeatedly planned and conducted training and did not include [her] in the planning
process or the actual training of police officers” despite the fact that she was “a new instructor in
that division” and was “certified to teach some of those courses.” Id. She states that in July and
August 2009 she requested “the training needed to acquire the missing certifications” but was
never provided with such training. Id. Plaintiff also states that she “requested to attend training
at the Federal Law Enforcement Training Center,” which she alleges was “noted as ‘required’ for
male officers of lesser rank.” Id.On August 28, 2009, while working under Lts. Leon and Shively, Security Officer
Richard Sypher—a Caucasian male and a supervisor of the plaintiff—informed the plaintiff that
she was responsible for ensuring that Naval Support Activity (“NSA”) North Potomac (a group
of Naval installations in the Washington, D.C. area) “continued to lead the region in training
compliance.” Id. ¶ 12. Shortly thereafter, on September 4, 2009, Chief Graves and Officer
Sypher informed the plaintiff that “she would be overseeing the Training Department because Lt.
Leon and Lt. Shively had been promoted.” Id. ¶ 13. The plaintiff claims that at that time she
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presented Chief Graves and Officer Sypher with reports demonstrating the training deficiencies
in the department that existed prior to her promotion to Police Officer Instructor and presented “a
future training schedule that would alleviate these deficiencies.” Id. The plaintiff requested
access to a training laptop and personnel assistance from NSA North Potomac, but alleges that
she never received “the necessary equipment or assistance . . . to properly and successfully
conduct” training courses. Id. The plaintiff, however, was provided personnel assistance for her
first training courses in September 2009 from Sergeant Timothy May, an African American male
instructor from NSA Washington. Id ¶ 14.
In October 2009, the plaintiff again requested assistance from Sgt. May regarding
upcoming training courses. Id. ¶ 15. The plaintiff alleges that Officer Sypher responded to this
request “in a demeaning manner, suggesting that she was ‘confused’ as to how NSA North
Potomac was to interact with NSA Washington.” Id. Although the plaintiff was not provided
assistance from Sgt. May, she was provided assistance from James Williams, an officer from
outside the command. Id.On November 19, 2009, Chief Graves informed the plaintiff that, effective December 6,
2009, she would be reassigned to “A-Squad as a Field Supervisor, a position that is lateral to her
position as a Police Officer Instructor,” where she would be working during the daytime shift.
Id. ¶¶ 16, 33. The plaintiff alleges that she was not given an explanation for the transfer, and
that, as a result of this change, she “would be returning to the same or similar shift work,”
entailing duties that were “the same or similar to the duties of the position [she] was in prior to
her promotion” to Police Officer Instructor. Id. According to the plaintiff, although “the Field
Supervisor position provided [her] with some supervisory responsibilities, the division and
position were less prestigious, the position did not provide [her] with the opportunity to utilize all
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of the teaching certifications she had received, and the position provided her with less
professional growth and fewer opportunities for career advancement.” Id. ¶ 16.
The day after being informed of her reassignment, on November 20, 2009, the plaintiff
contacted the Department of the Navy’s Equal Employment Opportunity (“EEO”) office to
initiate counseling. Id. ¶¶ 6, 17. Ten days later, on November 30, 2009, the plaintiff submitted a
letter of hardship to Chief Graves explaining that “the sudden change in her job title and
responsibilities, and the sudden change in her work schedule were the cause of great stress for
[her].” Id. ¶ 18. Additionally, the letter explained that “her sudden reassignment to A-Squad
daytime shift would cause her family extreme hardship,” noting that her reassignment would
make it difficult for her and her husband to transport their daughter to and from school. Id. In
response to this letter, on December 7, 2009, Chief Graves informed the plaintiff that, to address
the concerns she expressed in her letter of hardship, she would be reassigned to the A-Squad
midnight shift, instead of the day shift, effective December 20, 2009. Id. ¶ 20.
The plaintiff alleges that, after initiating EEO counseling and questioning her
reassignment, the plaintiff met with both Chief Graves and Officer Sypher and was told by
Officer Sypher that “the Training Division was not satisfied with her training numbers.” Id.
¶ 19. The plaintiff alleges there had been no prior dissatisfaction expressed within the Training
Division about her work performance and that, despite his misgivings stated in the meeting,
Officer Sypher offered to put a statement in writing that emphasized “she was a good worker and
was indispensable to the command.” Id. In a meeting with the plaintiff on December 7, 2009,
however, Officer Sypher denied making this offer and allegedly threatened the plaintiff “by
stating in a loud and aggressive manner,” while “slam[ing] his hands on the desk,” that “if he
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were to put any statements in writing, those statements would include an evaluation that would
lead to a demotion.” Id. ¶ 21.
Three months following this encounter and her reassignment, on March 10, 2010, the
plaintiff filed a formal complaint with the EEO, which was dismissed on November 4, 2010, and
the plaintiff received notice of the dismissal on November 29, 2010. Id. ¶ 6. The plaintiff then
filed the Complaint in the instant case on February 25, 2011, within 90 days of receipt of the
Final Agency Decision. Id.; see 42 U.S.C. § 2000e-16(c).
The plaintiff alleges, in three counts, that the conduct of the Department of the Navy
employees violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e,
et. seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981. The plaintiff specifically asserts
that the defendant engaged in race and gender discrimination (Count I), created a hostile work
environment (Count II), and improperly retaliated against her for initiating contact with the EEO
(Count III). See Compl. ¶¶ 1, 23–49. She seeks, inter alia, lost wages, compensatory damages,
attorney fees, and declaratory and injunctive relief. See id. at 13.
Pending before the Court is the defendant’s motion to dismiss the Complaint under FED.
R. CIV. P. 12(b)(6). Upon consideration of this motion, and as explained below, the Court agrees
that the plaintiff has failed to adequately state claims of race and gender discrimination, hostile
work environment, or retaliation. Consequently, the defendant’s motion to dismiss is granted,
and the plaintiff’s Complaint is dismissed.
II. DISCUSSION
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff
need only plead “enough facts to state a claim to relief that is plausible on its face” and to
“nudge[ ] [his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v.
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Twombly, 550 U.S. 544, 570 (2007); see also FED. R. CIV. P. 12(b)(6). “[A] complaint [does not]
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Instead, the complaint
must plead facts that are more than “‘merely consistent with’ a defendant’s liability”; “the
plaintiff [must] plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. at 678 (quoting Twombly, 550 U.S. at
557); accord Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). The Court “must assume
all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the
plaintiff the benefit of all reasonable inferences derived from the facts alleged.” Aktieselskabet
AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (citations and
internal quotation marks omitted).
The defendant primarily argues that the plaintiff’s Complaint should be dismissed for two
reasons. First, the defendant argues that the plaintiff has failed to allege a cognizable “adverse
employment action” with respect to her disparate treatment and retaliation claims. Def.’s Mot. to
Dismiss (“Def.’s Mem.”) at 5–13, 15–16, ECF No. 4. Second, the defendant argues that the
plaintiff has failed to allege facts that would elevate her workplace treatment to the level of a
“hostile work environment.” Id. at 13–14. The Court agrees and as a result grants the
defendant’s motion to dismiss the Complaint.
A. Adverse Employment Action
Title VII of the Civil Rights Act makes it unlawful for an employer to discriminate
against any individual “because of such individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e–2(a)(1). Under Title VII, “the two essential elements of a discrimination
claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the
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plaintiff’s race, color, religion, sex, [or] national origin.” Baloch v. Kempthorne, 550 F.3d 1191,
1196 (D.C. Cir. 2008); accord Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C.
Cir. 2008).
An “adverse employment action” is “‘a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing significant change in benefits.’” Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C.
Cir. 2011) (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009)); see also Stewart
v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) (“[An] [a]dverse employment action . . . . [entails
a] tangible employment action evidenced by firing, failing to promote, a considerable change in
benefits, or reassignment with significantly different responsibilities.”). An adverse employment
action occurs if an employee “experiences materially adverse consequences affecting the terms,
conditions, or privileges of employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,
1311 (D.C. Cir. 2002).
“‘[N]ot everything that makes an employee unhappy,” however, “is an actionable adverse
action.’” Baird, 662 F.3d. at 1250 (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir.
2009)). Courts have routinely recognized the difference between “purely subjective injuries” on
the one hand and “objectively tangible harm” on the other. See, e.g., Holcomb v. Powell, 433
F.3d 889, 902 (D.C. Cir. 2006) (internal quotation marks omitted). Because adverse
employment actions must be “significant” and entail “objectively tangible harm,” the Supreme
Court has recognized that “in most cases [adverse employment actions] inflict[] direct economic
harm.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998) (emphasis added). As a
result, “[c]ourts applying Title VII have consistently focused on ‘ultimate employment decisions
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such as hiring, granting leave, discharging, promoting, and compensating . . . [and not]
interlocutory or mediate decisions having no immediate effect upon employment conditions.’”
Taylor v. FDIC, 132 F.3d 753, 764 (D.C. Cir. 1997).
1. Disparate Treatment (Race and Gender Discrimination)
The plaintiff alleges in Count I of the Complaint that the defendant discriminated against
her because of her race and gender in violation of Title VII. In an attempt to adequately plead
the elements of this claim, the plaintiff alleges that she suffered several adverse employment
actions at the hands of the defendant. In particular, she alleges that she was: (1) “denied training
that was mandatory for males”; (2) “exclu[ded] from participation in planning training courses
and exclu[ded] from assisting with or teaching training courses”; (3) “denied equipment that was
essential to the optimal functioning of her position [and] denied assistance that was necessary to
properly train officers”; (4) “accus[ed] of responsibility for low training numbers” and as a result
“transferred to a less prestigious position and to a shift that had fewer opportunities for career
growth and career enhancement” and (5) faced “demeaning treatment and threat of demotion”
from her superiors. Compl. ¶¶ 10, 13, 15, 16, 26, 33; Pl.’s Opp’n Mem. at 8. As discussed below,
the Court finds that, assuming the truth of these allegations, none of them qualifies—individually
or in combination—as an “adverse employment action” under Title VII.
a. Denial of Training Opportunities
The Complaint alleges that the plaintiff was denied instructor certification training,
including a class that was “noted as ‘required’ for males of lesser rank.” Compl. ¶¶ 10, 26. The
mere denial of training opportunities, however, does not constitute an adverse employment
action. Dorns v. Geithner, 692 F. Supp. 2d 119, 133 (D.D.C. 2010) (denial of the plaintiff’s
request to attend four training courses was not an adverse employment action); Lester v. Natsios,
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290 F. Supp. 2d 11, 29 (D.D.C. 2003) (denial of training not an adverse employment action
where it did not “affect[] some material change in her employment conditions, status or
benefits”). To rise to the level of an adverse employment action, the denial of a training
opportunity must result in an objectively tangible harm. Edwards v. EPA, 456 F. Supp. 2d 72, 86
(D.D.C. 2006) (“[T]o be adverse, the denial of a travel or training opportunity must have a
discernible, as opposed to a speculative, effect on the terms, conditions, or privileges of one's
employment.”).
The plaintiff’s allegations regarding denial of training are simply insufficient to establish
an adverse employment action. She avers that the training would have enabled her more fully to
carry out her duties as a Police Officer Instructor and would have increased her potential for
career advancement, Compl. ¶ 26, but this is pure speculation. Although it is logical in the
abstract to think that more training results in higher quality work and better career opportunities,
the plaintiff alleges no facts to demonstrate how these added trainings would have materially
affected her employment. Likewise, even assuming that the denial of training opportunities
made the plaintiff a suboptimal worker, such denial is still not an “adverse employment action”
under Title VII absent some concrete factual allegation that her training deficit imposed a
tangible harm on the terms, conditions, or privileges of her employment. Such allegations are
wholly lacking in the plaintiff’s Complaint. To the contrary, the plaintiff admits that she was
promoted to a higher grade as Police Officer Instructor with the Training Division despite the
fact that her direct supervisor knew that she lacked the certifications for which she requested
training. Compl. ¶¶ 9, 10. Although the plaintiff’s allegations regarding the denial of training
opportunities are “conceivable,” they lack the requisite factual content to render them
“plausible,” and thus they are insufficient. See Twombly, 550 U.S. at 570.
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b. Exclusion from Planning and Conducting Training Courses
The Complaint also alleges that the plaintiff was excluded from participating in the
planning of training courses and from assisting with or teaching such training courses. Compl.
¶ 26. The plaintiff has failed to allege any specific meetings from which she was excluded and,
more importantly, has failed to articulate any objectively tangible harm she suffered by being
excluded from the planning or implementation of training courses. Compare Hayslett v. Perry,
332 F. Supp. 2d 93, 105 (D.D.C. 2004) (no adverse employment action where plaintiff neither
specified meetings nor demonstrated how the exclusion from meetings caused her any harm),
with Allen v. Napolitano, 774 F. Supp. 2d 186, 199–200 (D.D.C. 2011) (finding adverse
employment action based on exclusion from meetings where plaintiff “was deprived of
information critical to her duties” which “interfered with her job performance”). See also
Johnson v. Bolden, 699 F. Supp. 2d 295, 300 (D.D.C. 2010) (plaintiff’s complaints about
exclusion from meetings did not “amount to more than general dissatisfaction with his job”).
Here, the Complaint contains no allegations from which a reasonable inference can be
drawn that plaintiff should have been included in the meetings or that the plaintiff’s exclusion
materially changed her employment conditions, status, or benefits. As a result, these allegations
also fail to establish an adverse employment action.
c. Denial of Training Equipment and Personnel Assistance
The Complaint further alleges that the defendant denied the plaintiff training equipment
and personnel assistance needed to conduct training courses properly. Compl. ¶¶ 13, 26. The
only such training equipment described in the Complaint is a laptop computer. Id. Further,
although the plaintiff claims that a lack of personnel assistance prevented her from “properly and
successfully conduct[ing]” training courses, she does not allege that she was totally deprived of
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requested personnel assistance. Id. ¶ 13. On the contrary, she admits that she received personnel
assistance from multiple individuals, including Sergeant Timothy May, an instructor from NSA
Washington, and James Williams, an officer from outside the command. Id. ¶¶ 14, 15. The
plaintiff also concedes that she conducted multiple training courses while being assisted by
Sergeant May and does not allege how these courses were improperly or unsuccessfully
conducted. Id. ¶ 14.
Even assuming the truth of these allegations, they cannot form the basis of a Title VII
claim. The plaintiff appears to complain essentially that she was not allocated as many resources
as she would have liked, but such common workplace shortfalls, without more, are not the kinds
of problems that Title VII was intended to remedy. See Allen, 774 F. Supp. 2d at 203 (finding
denial of additional resources and support is not sufficient to qualify as a material adverse action
where plaintiff “could have benefitted” from them); Rattigan v. Gonzales, 503 F. Supp. 2d 56, 73
(D.D.C. 2007) (“Scarce resources and increased workloads are familiar complaints in virtually
every workplace and every industry, but they do not give rise to a discrimination claim under
Title VII.”). Once again, the Complaint lacks any factual allegations that would support the
inference that these denials of resources effected any tangible harm upon the plaintiff’s
employment. Hence, these allegations likewise do not establish an adverse employment action.
d. Accusation of Low Training Numbers and Transfer of Job Position
The Complaint alleges the plaintiff was wrongfully accused of responsibility for low
training numbers when those low training numbers existed prior to her promotion to the Training
Division. Compl. ¶ 26. The plaintiff also claims that, as a result of these low training numbers,
the plaintiff was transferred to a less prestigious unit and given a less prestigious title that carries
fewer supervisory responsibilities and also has fewer opportunities for career growth and
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promotion. Id. ¶¶ 16, 33. Finally, the plaintiff alleges that her non-African American male
predecessors in the Training Division were promoted in spite of these low training numbers.
Id. ¶ 19.
As an initial matter, and as the defendant points out, the plaintiff does not dispute the
accuracy of the training numbers but instead alleges that the training deficiencies already existed
when she received her promotion. Def.’s Mem. at 9. Although the plaintiff claims that she was
unfairly blamed for these numbers, that alone falls far short of an adverse employment action.
No employee enjoys taking the blame for others’ shortcomings, but enduring “public
humiliation” or “loss of reputation” in the workplace—though unfortunate—cannot form the
basis of a Title VII claim. See Holcomb, 433 F.3d at 902. Even formal, negative performance
evaluations are not adverse employment actions absent tangible harm. See Baloch, 550 F.3d at
1199 (“[P]erformance reviews typically constitute adverse actions only when attached to
financial harms.”); Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (“[F]ormal criticism or
poor performance evaluations are [not] necessarily adverse actions and they should not be
considered such if they did not affect[] the [employee’s] grade or salary.” (internal quotation
marks omitted)).
The more relevant inquiry is whether the reassignment that resulted from the plaintiff
taking the blame for low training numbers qualifies as an adverse employment action. Although
the plaintiff alleges that her transferred position entailed “shift work,” similar to the kind of work
she performed before being promoted and was “less prestigious,” Compl. ¶ 16, she also concedes
that the transferred position was lateral in nature, had a higher pay scale (GS-7) than her prior
“shift work” position (GS-6), and included supervisory responsibilities, id. ¶¶ 9, 16, 33. She also
fails to allege that the reassignment resulted in any decrease in pay or other benefits.
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That being said, courts have recognized that “prestige” is not to be disregarded in
addressing whether a job transfer amounts to an adverse employment action. For example, in
Bloom v. McHugh, the court found that a management team’s refusal to provide an employee
with a more prestigious job title that was required after an official reassignment could plausibly
constitute an adverse employment action. 828 F. Supp. 2d 43, 57–58 (D.D.C. 2011). Notably,
however, the court in Bloom also found that the allegations of the plaintiff’s complaint “plausibly
allege[d] that she was denied a title that confer[red] a professional benefit.” Id. at 57 (emphasis
added). Even the most generous reading of the plaintiff’s Complaint in this case does not
warrant a similar conclusion. Although an objectively less prestigious job title, i.e., one
withholding or diminishing a professional benefit, could constitute an adverse employment
action, the Complaint is devoid of any factual allegations of this kind. Rather, it appears that the
plaintiff’s claim that her reassignment was less prestigious is based on her subjective perceptions
rather than any objective professional benefit. See Forkkio v. Tanoue, 131 F. Supp. 2d 36, 40
(D.D.C. 2001) (“Plaintiff’s own belief that the reassignment was a ‘demotion’ and was
accompanied by a loss in stature or prestige is insufficient to render it otherwise.”), aff’d, 306
F.3d 1127 (D.C. Cir. 2002). The plaintiff’s claims that her reassignment had “fewer
opportunities for job growth and promotion,” unsupported by any factual allegations, are
speculative and likewise unavailing. Edwards, 456 F. Supp. 2d at 86 (declining to find that a
constraint on the opportunity to seek out “potentially fruitful” employment opportunities is an
adverse employment action).
The Complaint additionally alleges the sudden change in the plaintiff’s work schedule
resulting from her reassignment caused her and her family great stress and extreme hardship,
leaving her “embarrassed and emotionally drained.” Compl. ¶ 18. In particular, she alleges that
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her reassignment to a day shift position made it very difficult for her and her husband (also a
police officer) to transport their daughter to and from school. Id. Even so, the defendant
changed the plaintiff’s shift to the midnight shift within one week of being notified of her
hardship, and the change became effective within two weeks of her reassignment. Id. ¶ 20. It
cannot be reasonably inferred that this temporary inconvenience rose to the level of a material
change in the plaintiff’s employment. See Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009)
(“[M]inor inconveniences and alteration of job responsibilities [do] not rise to the level of
adverse action necessary to support a claim.” (internal quotation marks omitted)).
e. Demeaning Treatment and Threats of Demotion
Finally, the Complaint alleges that the defendant subjected her to “demeaning treatment”
when Officer Sypher “threatened plaintiff by stating in a loud and aggressive manner, that if he
were to put any statements in writing those statements would include an evaluation that would
lead to a demotion.” Compl. ¶¶ 21, 26. The Complaint further alleges that Officer Sypher
slammed his hands on a desk during this meeting. Id. The use of harsh words on a single
occasion, even if it amounts to “public humiliation” does not amount to a materially adverse
employment action. See Holcomb, 433 F.3d at 902. It cannot be reasonably inferred that the
alleged “demeaning treatment and threats” resulted in materially adverse consequences affecting
the terms, conditions, or privileges of the plaintiff’s employment.
2. Retaliation
The plaintiff alleges in Count III of the Complaint that the defendant retaliated against
her in violation of Title VII. She claims that, after filing a complaint with the EEO, she was
“treated with hostility” based on a single incident involving Officer Sypher in which he spoke to
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the plaintiff “in a loud and aggressive manner” and “slammed his hands on the desk.” Compl.
¶ 46.
To establish a prima facie case of retaliation under Title VII, a plaintiff must show that
“‘(1) he engaged in protected activity; (2) he was subjected to an adverse employment action;
and (3) there was a causal link between the protected activity and the adverse action.’” Hamilton
v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (quoting Woodruff v. Peters, 482 F.3d 521,
529 (D.C. Cir. 2007)); accord Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007); Smith v.
District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005).
As to the first element, protected activity encompasses utilizing informal grievance
procedures such as complaining to management or human resources about the discriminatory
conduct. Richardson v. Gutierrez, 477 F. Supp. 2d 22, 27 (D.D.C. 2007) (“It is well settled that
Title VII protects informal, as well as formal, complaints of discrimination.”). Thus, there is
little doubt that the plaintiff’s conduct in filing a complaint with the EEO constituted protected
activity under Title VII. Id.As to the second element, the Court must evaluate whether the plaintiff suffered an
adverse employment action independent of the foregoing analysis regarding disparate treatment
claims. This is because adverse actions giving rise to retaliation claims are broader than for
disparate treatment claims and are “‘not limited to discriminatory actions that affect the terms
and conditions of employment,” but reach any harm that “‘well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Baird, 662 F.3d at
1249 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 68 (2006)). This
standard is an objective one, looking to “reactions of a reasonable employee” in order to
“avoid[] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a
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plaintiff’s unusual subjective feelings.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
68–69 (2006). It should also be noted that, although the standard for adverse employment
actions is more lenient with retaliation claims than it is with disparate treatment claims, the Court
in Burlington Northern nevertheless distinguished “materially adverse” actions from “trivial
harms,” “petty slights,” and “minor annoyances.” Id. at 68.
It cannot be reasonably inferred that the incident described by the plaintiff can qualify as
a materially adverse action for the purposes of a retaliation claim. Notably, the incident alleged
by the plaintiff was a single, isolated occurrence that, although likely unpleasant, was not
sufficiently severe so as to become materially adverse. See Baloch, 550 F.3d at 1199 (finding
that multiple, sporadic altercations did not meet “the requisite level of regularity or severity to
constitute material adversity for purposes of a retaliation claim”). The fact that this encounter
was never repeated and that it did not result in any further ramifications for the plaintiff—such as
a reassignment, a pay cut, or other negative action—strongly support the conclusion that the
defendant’s actions would not dissuade a reasonable employee from supporting a charge of
discrimination.
Because the plaintiff does not allege any facts that plausibly imply the existence of any
adverse employment actions on the part of the defendant, her claims for disparate treatment and
retaliation must fail.
B. Hostile Work Environment
The plaintiff’s only remaining claim is that the defendant created a hostile work
environment in violation of Title VII. A plaintiff may establish a violation of Title VII by
proving that the employer created or condoned a discriminatorily hostile or abusive environment.
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64–67 (1986); accord Gary v. Long, 59 F.3d
161391, 1395 (D.C. Cir. 1995). Discrimination in this form occurs “[w]hen the workplace is
permeated with 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) (citation and internal
quotation marks omitted); accord Singletary v. District of Columbia, 351 F.3d 519, 526 (D.C.
Cir. 2003). The Supreme Court in Harris explained that assessing whether a hostile work
environment exists has both subjective and objective components. Thus, no Title VII violation is
present “if the victim does not subjectively perceive the environment to be abusive,” or the
conduct “is not severe or pervasive enough to create an objectively hostile or abusive work
environment.” Harris, 510 U.S. at 21.
While the subjective test of whether the plaintiff actually found the environment abusive
may be readily satisfied in employment discrimination suits, the Supreme Court has
acknowledged that the boundaries of what constitutes an objectively discriminatory hostile work
environment is not “a mathematically precise test.” Id. at 22. The “objective severity of
harassment should be judged from the perspective of a reasonable person in the plaintiff's
position, considering all the circumstances.” Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 81 (1998) (internal quotation marks omitted). This objective test requires examination
of the totality of the circumstances, including “the frequency of the discriminatory [or
retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work
performance.” Harris, 510 U.S. at 23.
The Supreme Court has been clear that Title VII does not establish a “general civility
code for the American workplace.” Oncale, 523 U.S. at 80. Indeed, “Title VII does not prohibit
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all verbal or physical harassment in the workplace.” Id. “[S]imple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to” a hostile work
environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation and internal
quotation marks omitted); see also EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir.
2008) (“[E]ven incidents that would objectively give rise to bruised or wounded feelings will not
on that account satisfy the severe or pervasive standard. Some rolling with the punches is a fact
of workplace life.”). To “[prevent] Title VII from expanding into a general civility code,” the
Supreme Court has emphasized as “crucial” the requirement that the behavior be “so objectively
offensive as to alter the ‘conditions’ of the victim's employment.” Oncale, 523 U.S. at 81; see
also Faragher, 524 U.S. at 788 (“[C]onduct must be extreme to amount to a change in the terms
and conditions of employment . . . .”).
The facts alleged to support the plaintiff’s hostile work environment claim are essentially
identical to those alleged in support of her retaliation and disparate treatment claims. Namely,
the plaintiff alleges that the defendant engaged in behavior that created a hostile work
environment when supervising Officer Sypher “stat[ed] in a loud and aggressive manner, that if
he were to put any statements in writing, those statements would include an evaluation that
would lead to a demotion” while he “slammed his hands on the desk” during a meeting regarding
her reassignment. Compl. ¶¶ 21, 39. Additionally, the plaintiff alleges that Officer Sypher’s
“demeaning” response to her request for personnel assistance (suggesting she was “confused”),
her “supervisors’ subtle discriminatory conduct,” and her exclusion from the planning and
presentation of training courses by the Training Division supervisors contributed to the hostile
work environment. Pl.’s Opp’n Mem. at 12. The defendant naturally argues that this conduct
falls short of creating a hostile work environment. Def.’s Mem. at 13–14. The Court agrees.
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Although the conduct alleged by the plaintiff may have been offensive, it cannot be
reasonably inferred from the plaintiff’s allegations that the defendant’s conduct meets the
demanding standard articulated by the Supreme Court. Even if taken as true, the supervising
officer’s “demeaning manner” and loud, aggressive words are neither severe nor pervasive
enough to create a hostile work environment. See Freedman v. MCI Telecomms. Corp., 255 F.3d
840, 848–49 (D.C. Cir. 2001) (finding supervisor's “nasty attitude” insufficient to establish a
hostile work environment); Johnson, 699 F. Supp. 2d at 302 (dismissing hostile work
environment claim where plaintiff admitted that supervisor's tone was only “negative,” “harsh,”
“unkind,” and “dismissive”). The plaintiff’s exclusion from the planning and presentation of
training courses were, at best, obnoxious discourtesies and, at worst, manifestations of
organizational dysfunction. But in either case, these allegations fall far short of the extreme
behavior contemplated by the protections of the hostile work environment doctrine.
III. CONCLUSION
For the reasons stated above, the Court finds that the plaintiff has failed to state a claim
for disparate treatment, retaliation, and hostile work environment. Accordingly, the Court grants
the defendant’s motion to dismiss the plaintiff’s Complaint.
An Order consistent with this Memorandum Opinion shall be entered.
Date: July 20, 2012
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
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