Stewart v. Federal Communications Commission , 177 F. Supp. 3d 158 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHARON K. STEWART,
Plaintiff,
v.
Civil Action No. 15-57 (CKK)
FEDERAL COMMUNICATIONS
COMMISSION,
Defendant.
MEMORANDUM OPINION
(April 8, 2016)
Plaintiff, proceeding pro se, is an employee of the Federal Communications Commission
(“FCC”). Plaintiff filed suit against Defendant, the FCC, under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., alleging claims of hostile work environment, gender
discrimination, and retaliation. Presently before the Court is Defendant’s [7] Motion to Dismiss
in Part and for Summary Judgment in Part (“Defendant’s Motion”). Upon consideration of the
pleadings,1 the relevant legal authorities, and the record as a whole, the Court GRANTS IN
PART and DENIES IN PART Defendant’s Motion. The Court grants Defendant’s motion to
dismiss with respect to Count Two (gender discrimination), Count Four (retaliation) and Count
Five (gender discrimination and retaliation). The Court denies Defendant’s motion to dismiss
with respect to Count One (hostile work environment) and denies Defendant’s motion for
summary judgment on Count Three (retaliation).
1
The Court’s consideration has focused on the following documents: Plaintiff’s Complaint, ECF
No. [1]; Defendant’s Motion to Dismiss in Part and for Summary Judgment in Part, ECF No. [7];
Plaintiff’s Opposition to Defendant’s Motion, ECF No. [11]; and Defendant’s Reply in Support
of Motion, ECF No. [16].
1
I. BACKGROUND
For the purposes of Defendant’s Motion to Dismiss, the Court accepts as true the well-
pleaded allegations in Plaintiffs’ Complaint. The Court does “not accept as true, however, the
plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.
v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court recites the
principal facts pertaining to the issues raised in the pending motions, reserving further
presentation of the facts for the discussion of the individual issues below.
A. Factual Background
Plaintiff, proceeding pro se, is an employee within the FCC’s Office of Communications
Business Opportunities (“OCBO”). Compl. at 1. Plaintiff has been an employee of the Federal
Government for over thirty years. See id. Presently, Plaintiff works for the FCC as a “Women’s
Outreach Specialist,” which is classified at the GS-12 grade level. Id. at 3. Plaintiff is suing the
FCC, alleging claims of hostile work environment, gender discrimination, and retaliation. See id.
at 2-6.
With respect to Plaintiff’s hostile work environment claim, Plaintiff alleges that her
immediate supervisor, Mr. Thomas Reed, failed to act on, and protect her from, her male co-
worker’s “systematic viewing of pornography” in the cubicle adjacent to hers, despite her
reporting of the behavior on multiple occasions. Id. at 2. According to the Complaint, the
pornography watching became so “severe and persuasive” that her coworker invited other males
to join him in his cubicle. Id. Plaintiff alleges that she would “hear groans – mmm, mmm, ahh –
in response to the pornography viewings,” and that she feared for her safety because “[o]ne of
the male viewers would stand guard looking for [her]” Id. Plaintiff, citing deposition testimony
that her supervisor admitted to having sex in his Federal office, states that she feels “unsafe,
2
violated, petrified and dominated against these males in this sexually fueled and misogynistic
Federal environment.” Id.
With respect to Plaintiff’s gender discrimination claim, Plaintiff alleges that her
supervisor, Mr. Reed, assigned her administrative duties that were the “official full-time
responsibilities of [the] male GS-9, Senior Staff Assistant” whom Plaintiff alleges was routinely
viewing pornography in the cubicle next to hers. Id. at 3. Plaintiff further alleges that her
supervisor admitted in a deposition that he does not delegate administrative responsibilities to
male non-staff assistant employees within the OCBO. Id. Plaintiff also alleges that when she
objected that the assigned duties fell within her position description, her supervisor called her
“belligerent, angry, and hostile” and “threatened [her] job security by stating that should [she]
not perform the administrative duties, then [she] could find another job where [she] could thrive
and prosper.” Id. Finally, with respect to Plaintiff’s gender discrimination claim, Plaintiff
alleges that she was “bombarded with offensive unwelcomed email conversations of [her
supervisor’s] personal life” and that her supervisor accused her of improperly possessing the
office’s master keys in her home. Id. at 3, 4.
With respect to Plaintiff’s retaliation claims, Plaintiff alleges that she was singled out by
Mr. Reed in 2012 after she began pursuing an EEO action against him that same year. Id. at 4.
Plaintiff further alleges that she was the “sole employee [in her] office that failed to receive any
awards or merit increases” for Fiscal Year 2012. Id. at 4. In addition, Plaintiff alleges that after
she filed an informal EEO complaint against Mr. Reed, Plaintiff’s second-level supervisor, Ms.
Carolyn A. Fleming-Williams, called her into a “reprisal meeting” and “harassed” her with
“fabrications” that Plaintiff had not been communicating with Ms. Fleming-Williams and that
3
there were problems with Plaintiff’s work on the “Section 610 Report.”2 Id. at 5. According to
the Complaint, Ms. Fleming-Williams questioned Plaintiff regarding the EEO claim and
threatened Plaintiff to reconsider her career goals. Id.
In addition to the allegations described above, Plaintiff also contends that she has not
been compensated at a rate commensurate with her work performance. Id. at 6. Plaintiff alleges
that “[s]ince 2004,” she had “been performing the delegated duties of the Section 610 Report,”
which had previously been performed by a now-retired male GS-14 attorney3—two grade levels
above Plaintiff. Id. According to the Complaint, Plaintiff requested that she be compensated at a
rate at least commensurate for her work and with her colleagues, but that her supervisors
disputed Plaintiff’s contentions that she was performing the higher level work. Id.
Plaintiff also contends that “[b]ecause [her] performing higher-level work and not
receiving adequate pay was a component of the EEO complaint, Ms. Fleming-Williams
immediately removed [her] substantive duties in connection with the Section 610 and ultimately
the entire duties” regarding the Section 610 Reports. Id. According to the Complaint, the
Section 610 Reports for 2011, 2012, 2013, and 2014 have not been completed by anyone else in
the office. Id.
B. Plaintiff’s EEO Action
On October 15, 2012, Plaintiff, represented by counsel, filed the informal EEO complaint
referenced above. Id. at 6. According to the Complaint, the EEO complaint was not resolved at
2
As stated in footnote 1 of Plaintiff’s Opposition, under the Regulatory Flexibility Act of 1980,
5 U.S.C. § 610 et. seq., the FCC, along with other federal agencies, is required to provide for the
review of final rules within ten years of their publications. For the purposes of the FCC, this
means that every year, it publishes a list of ten-year-old rules that have, or might have, a
“significant impact . . . on a substantial number of small entities.”
3
Plaintiff also alleges that the retired employee was white. However, race is not an alleged basis
of discrimination in Plaintiff’s Complaint.
4
the informal stage, and Plaintiff pursued a formal EEOC action. See id. at 6-7. In spring 2014,
the parties undertook discovery, and Plaintiff, by that time proceeding pro se, took the
depositions of her supervisors, Mr. Reed and Ms. Fleming-Williams. After the close of
discovery, the FCC filed a Motion for Summary Judgment, and the parties underwent settlement
negotiations that were ultimately unsuccessful. See id. at 7. Before the Administrative Law
Judge issued an Order on the FCC’s Motion for Summary Judgment, Plaintiff filed a
“Withdrawal of Request for Hearing,” which Plaintiff later attempted to withdraw, stating that
she had been “coerced to withdraw because of the threatening and intimidating meeting” that had
transpired with her supervisors a few weeks prior to filing the “Withdrawal of Request for
Hearing.” Id. at 8. On October 24, 2014, the Administrative Law Judge issued an Order of
Dismissal, noting that Plaintiff had given notice that she “intended to file a complaint in Federal
District Court involving the same issues/claims in the above captioned complaint.” Id. at 9.
On October 28, 2014, the Administrative Law Judge denied Plaintiff’s request to withdraw her
“Withdrawal of Request for Hearing.” Id. at 8.
C. The Instant Action
On January 14, 2015, Plaintiff, proceeding pro se, filed her Complaint in this Court,
containing the allegations described above. Plaintiff’s Complaint identifies five claims upon
which Plaintiff seeks relief: (1) “Hostile Work Environment” (Claim 1); (2) “Discrimination
Based on Gender” (Claim 2); (3) “Reprisal for EEO Filing and Discrimination” (Claim 3);
“Further Reprisal for EEO Filing” (Claim 4)”; and “Higher Level Work, Reprisal, Inference with
work and Discrimination Based on Gender” (Claim 5).
5
Plaintiff’s Complaint does not specifically identify Title VII of the Civil Rights Act of
1946, 42 U.S.C. § 2000e et seq., as the statutory basis for her claims. However, both parties
agree in their briefs that Plaintiff is in fact seeking relief under Title VII.
Defendant, the FCC, filed a Motion to Dismiss in Part and Summary Judgment in Part.
Specifically, Defendant moves to dismiss Counts One, Two, Four, and Five of Plaintiff’s
Complaint. Defendant further seeks an entry of summary judgment as to Count III. Plaintiff
opposes Defendant’s motion with respect to all Counts. Defendant’s motion is now ripe for the
Court’s review.
II. LEGAL STANDARD
A. Motion to Dismiss
“Federal courts are courts of limited jurisdiction” and can adjudicate only those cases
entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). The Court begins with the presumption that it does not have
subject matter jurisdiction over a case. Id. To survive a motion to dismiss pursuant to Rule
12(b)(1), a plaintiff bears the burden of establishing that the Court has subject matter jurisdiction
over its claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In
determining whether there is jurisdiction, the Court may “consider the complaint supplemented
by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333
F.3d 193, 198 (D.C. Cir. 2003) (citations omitted).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of
6
‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may
consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by
reference in the complaint,” or “documents upon which the plaintiff's complaint necessarily
relies even if the document is produced not by the plaintiff in the complaint but by the defendant
in a motion to dismiss.” Ward v. D.C. Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119
(D.D.C. 2011) (citations omitted).
Although pro se litigants are generally “held to less stringent standards than formal
pleadings drafted by lawyers, they must still provide more than conclusory allegations to survive
a motion to dismiss.” Lewis v. Bayh, 577 F. Supp. 2d 47, 56 (D.D.C.2008) (internal citations
omitted).
B. Summary Judgment Standard
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
7
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual
basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See
Ass'n of Flight Attendants-CWA, AFL-CIO v. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir.
2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact,” the district court may “consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty
Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are
susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477
U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not
8
significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50(internal citations omitted).
The Court strictly adheres to the text of Local Civil Rule 7(h)(1), which requires that a
party submitting a motion for summary judgment attach a statement of material facts as to which
that party contends there is no genuine issue, with specific citations to those portions of the
record upon which the party relies in fashioning the statement. See LCvR 7(h)(1). The party
opposing such a motion must, in turn, submit a statement of genuine issues enumerating all
material facts which the party contends are at issue and thus require litigation. See id. Where the
opposing party fails to discharge this obligation, a court may take all facts alleged by the movant
as admitted. Id. As the United States Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) has emphasized, “[Local Civil Rule 7(h)(1)] places the burden on the parties and
their counsel, who are most familiar with the litigation and the record, to crystallize for the
district court the material facts and relevant portions of the record.” Jackson v. Finnegan,
Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v.
Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988)). Here, Defendant submitted the required
statement; however, Plaintiff, proceeding pro se, did not comply with Local Civil Rule 7(h)(1)’s
requirement that the party opposing a motion for summary judgment submit a statement of
genuine issues enumerating all material facts which the party contends are at issue and thus
require litigation. Instead, Plaintiff attached, as exhibits to her opposition brief, certain
documentary evidence related to her claims, including deposition transcripts from the earlier
EEO proceeding, emails related to the earlier EEO proceeding, and a performance review from
the relevant time period. See Pl.’s Opp’n at 19-40 (Exhibits A-E). Plaintiff attached the exhibits
without indicating whether the exhibits were in opposition to Defendant’s statement of material
9
facts, or whether they constituted Plaintiff’s own statement of genuine issues. In light of
Plaintiff’s status as a pro se litigant, the Court, contrary to its preferred practice, shall in some
instances, cite directly to the exhibits on which Plaintiff relies in her opposition brief. The Court
also notes that Plaintiff appears to only dispute Fact #5 in Defendant’s Statement of Undisputed
Material Facts—that Plaintiff first initiated protected Equal Employment Opportunity activity on
October 4, 2012—and that she does not dispute the remaining four facts in Defendant’s
statement.
III. DISCUSSION
Defendant has filed a Motion to Dismiss in Part and Summary Judgment in Part.
Specifically, Defendant moves to dismiss Counts One, Two, Four, and Five of Plaintiff’s
Complaint. Defendant further seeks an entry of summary judgment as to Count III. Plaintiff
opposes Defendant’s motion with respect to all Counts.
A. Count One: Hostile Work Environment
Defendant moves to dismiss Plaintiff’s hostile work environment claim on the basis that
Plaintiff fails to state a claim under Rule 12(b)(6).
To establish a prima facie Title VII hostile work environment claim, Plaintiff must show:
(1) she was a member of a protected class; (2) she was subjected to unwelcome harassment; (3)
the harassment occurred because of her protected status; and (4) the harassment had the effect of
unreasonably interfering with the plaintiff's work performance and creating an intimidating,
hostile, or offensive working environment. See Davis v. Coastal Int'l Sec., Inc., 275 F.3d 1119,
1122–23 (D.C. Cir. 2002). “Although a plaintiff need not plead a prima facie case of hostile
work environment in the complaint, the ‘alleged facts must support such a claim.’ ” McKeithan
10
v. Boarman, 803 F. Supp. 2d 63, 69 (D.D.C. 2011) (quoting Middlebrooks v. Godwin Corp., 722
F. Supp. 2d 82, 90–91 & n. 6 (D.D.C. 2010)).
“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 creates an abusive
working environment.’ ” Baird v. Gotbaum, 662 F.3d 1246, 1250 (D.C. Cir. 2011) (quoting
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008). In making this determination, “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. An “important factor in assessing whether harassment
was sufficiently ‘severe,’ ‘pervasive’ and ‘abusive’ is whether the incidents of harassment are
directed at others, rather than at plaintiffs.” Kelley v. Billington, 370 F. Supp. 2d 151, 159
(D.D.C. 2005). This is because conduct directed at others is considered less hostile, id., and
because actions directed at others fails to satisfy that the hostile work environment be “linked to
the plaintiff’s gender.” Slate v. Public Defender Serv., 31 F. Supp. 3d 277, 306 (D.D.C. 2014).
Here, Plaintiff bases her hostile work environment claim on her allegations concerning
the “systematic viewing of pornography” that allegedly occurred in the cubicle adjacent to her
workspace. Plaintiff alleges that her immediate supervisor failed to act on, and protect her from,
the viewing of pornography, despite her reporting of the behavior on multiple occasions. Compl.
at 2. According to the Complaint, the pornography watching became so “severe and persuasive”
that her coworker invited other males to join him in his cubicle. Id. Plaintiff alleges that she
would “hear groans – mmm, mmm, ahh – in response to the pornography viewings,” and that she
feared for her safety because “[o]ne of the male viewers would stand guard looking for [her].”
11
Id. Plaintiff, citing deposition testimony that her supervisor admitted to having sex in his Federal
office, states that she feels “unsafe, violated, petrified and dominated against these males in this
sexually fueled and misogynistic Federal environment.” Id.4
Defendant argues that Plaintiff fails to state a hostile work environment claim because the
alleged pornography was not “directed at Plaintiff” in the precise manner that have recognized as
violations of Title VII, such as where the pornography is displayed in common areas of the
plaintiff’s office environment, where the pornography is emailed to the plaintiff, or where it is
placed on the plaintiff’s desk. Def.’s Mot. at 8 (citing Yuknis v. First Student, Inc., 481 F.3d
552, 553 (7th Cir. 2007); EEOC v. Caterpillar Inc., 503 F. Supp. 2d 995, 1034, N.D. Ill. 2007;).
Rather, Defendant argues that Plaintiff’s Complaint alleges the “mere existence of pornography
in the workplace,” which, Defendant contends, is not sufficiently “severe or pervasive” to alter
the conditions of employment. Id. (citing Lee v. City of Syracuse, 603 F. Supp. 2d 417, 438-39
(N.D.N.Y. 2009).
Plaintiff, in her opposition brief, does not respond to Defendant’s legal arguments, and
instead recites allegations of fact, many of which are not contained within the Complaint and
which have no apparent relevance to Plaintiff’s hostile work environment claim. See Opp’n at 4-
6. The Court cannot consider the factual allegations contained within Plaintiff’s opposition brief
that are absent from the Complaint. See Henthorn v. Dept’t of the Navy, 29 F.3d 682, 688 (D.C.
Cir. 1994) (explaining that “the sparse case law addressing the effect of factual allegations in
briefs or memoranda of law suggests that such matters may never be considered when deciding a
4
As additional evidence of the FCC’s “pornography problem,” Plaintiff’s Complaint cites
several news stories published in recent years. See, e.g., Porn-surfing Feds Blame Boredom,
Lack of Work for Misbehavior, http://www.washingtontimes.com/news/2014/jul/31/feds-accept-
bordom-lack-of-work-as-excuses-for-sur?page=all (last visited on April 8, 2016).
12
12(b)(6) motion”). However, in light of the fact that Plaintiff is proceeding pro se, the Court will
not treat Plaintiff’s failure to respond to Defendant’s arguments concerning the hostile work
environment claim as a concession to Defendant’s position. See FDIC v. Bender, 127 F.3d 58,
68 (D.C. Cir. 1997) (noting that arguments not addressed in an opposition brief may be treated as
conceded).
The Court finds it plausible that Plaintiff’s employer subjected her to “discriminatory
intimidation, ridicule, and insult” that is sufficiently “severe or pervasive” to alter the conditions
of Plaintiff’s employment and “creates an abusive working environment.” Baird, 662 F.3d at
1250. Plaintiff alleges that the discriminatory conduct described in the complaint was not only
frequent and offensive, but also interfered with her work performance, as she on numerous
occasions heard groaning from the cubicle next to hers and felt intimidated by the group of men
who would gather in close proximity to her office in order to view pornography. Furthermore, it
is plausible that the hostile conduct could be considered to be “directed at Plaintiff,” as one of the
male viewers of the pornography would allegedly “stand guard looking for her.” Compl. at 2
(emphasis added); see also Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 84 (D.D.C. 2002)
(finding that a jury could find harassment where the “ongoing harassing behavior” was directed
at plaintiffs, but not at their male co-workers).
Additionally, Plaintiff does not allege the “mere existence of pornography in the work
place,” as Defendant contends. Indeed, the cases relied on by Defendant involve distinguishable
situations where the plaintiff alleges a hostile work environment claim merely because
coworkers watched pornography on their office computers, without any relation to the plaintiff’s
working environment. See, e.g., Yuknis, 481 F.3d at 555 (“The relation between the manager’s
watching pornography on his own screen and the plaintiff’s working environment was almost as
13
attenuated as if she had learned that he watches pornography on his computer at home.”).
Rather, it is plausible that Plaintiff frequently had “no way to avoid” the groups of men watching
pornography in the adjacent cubicle, and that she felt “surrounded by” the pornography being
viewed nearby. See O'Rourke v. City of Providence, 235 F.3d 713, 722, 735 (1st Cir. 2001)
(upholding jury verdict in favor of plaintiff’s work environment claim where she routinely saw
male coworkers watching pornographic movies in the common sitting area and had no way to
avoid exposure to the pornography).
Accordingly, the Court finds that Plaintiff has pled sufficient facts in her Complaint to
state a hostile work environment claim. See id.B. Count Two: Gender Discrimination
Defendant moves to dismiss Plaintiff’s hostile gender discrimination claim on the basis
that Plaintiff fails to state a claim under Rule 12(b)(6).
To establish a gender discrimination claim under Title VII, Plaintiff must show that (1)
she suffered an adverse employment action (2) because of her gender. See Baloch, 550 F.3d at
1196. As the D.C. Circuit has explained, “not everything that makes an employee unhappy is an
actionable adverse action,” because otherwise the courts would be called upon to mediate “even
trivial employment actions that an irritable, chip-on-the-shoulder employee did not like.”
Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (internal quotation marks and citations
omitted). “For discrimination claims, an action must, to qualify, be 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, 662 F.3d
at 1248 (citation omitted). A “tangible employment action in most cases inflicts direct economic
harm.” Douglas v. Preston, 559 F.3d 549, 552 (D.C. Cir. 2009).
14
Here, the alleged acts of discrimination described in the Complaint are as follows:
1) Plaintiff’s supervisor, Mr. Reed, allegedly called Plaintiff into “an illegitimate
meeting” at which he called her “belligerent, angry, and hostile.” Compl. at 3.
Mr. Reed also allegedly “falsely insisted [Plaintiff] was his Assistant to the
Director and responsible for doing his travel, scheduling, and administrative
assignments” when those duties were actually the responsibility of a different,
male employee. Id.
2) Mr. Reed allegedly “linked [Plaintiff] to his Federal work computer calendar”
which caused Plaintiff to be “constantly bombarded with offensive unwelcomed
email conversations of his personal life[.]” Id. at 3-4. These emails were related
to Mr. Reed’s “personal dating life [,] . . . his children’s school schedules,
performance struggles, medical appointments, [and] sporting events[.]” Id. at 4.
3) Mr. Reed allegedly “repeatedly emailed and accused [Plaintiff] of possessing the
master office keys to his office and the OCBO at [her] home and cc’ed [her] lower
and higher graded colleagues the emails containing his false accusation.” Id. Mr.
Reed “was motivated by forehand knowledge that [Plaintiff] was designated as a
witness against him in his upcoming divorce proceeding.” Id. Mr. Reed also
allegedly targeted Plaintiff because she was “the sole employee designated [as] a
witness to testify against him in his divorce proceeding.” Id.
Defendant argues that none of the alleged acts rises to the level of an adverse
employment action.5 The Court agrees. First, the allegation that Mr. Reed called Plaintiff
“belligerent, angry, and hostile” does not indicate a “significant change in employment status.”
Baird, 662 F.3d at 1248. Furthermore, the D.C. Circuit has refused to find similar allegations of
name-calling to constitute an adverse employment action for Title VII purposes. Id. at 1248-49(allegations of “public humiliation” including being called “psychotic” did not rise to the level of
adverse employment action).
5
The Court notes that Plaintiff’s opposition brief ignores Defendant’s legal arguments as to her
gender discrimination claim and instead describes factual allegations, many of which do not
appear in the Complaint. See Opp’nj at 6-9. For the same reasons described above in connection
with the hostile work environment claim, the Court will disregard Plaintiff’s newly proffered
facts. However, the Court will not treat Defendant’s arguments as conceded.
15
Furthermore, Plaintiffs’ allegation that Mr. Reed told Plaintiff she was responsible for
certain administrative assignments, Compl. at 3, does not demonstrate an adverse action.
Plaintiff does not allege that she was ever reassigned to the administrative duties, and even if she
had been reassigned, “changes in assignments and work-related duties do not ordinarily
constitute adverse employment decisions if unaccompanied by a decrease in salary or work hour
changes.” Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997); see also
Childers v. Slater, 44 F. Supp. 2d 8, 19 (D.D.C. 1999) (“Mere inconveniences and alteration of
job responsibilities will not rise to the level of adverse action.”). In addition, Plaintiff cannot
base her claim on her allegation that Mr. Reed “threatened [Plaintiff’s] job security,” Compl. at
3, as the “D.C. Circuit has repeatedly held that mere threats of termination do not rise to the level
of an adverse employment action because they result in no materially adverse consequences or
objectively tangible harm.” Weng v. Solis, 960 F. Supp. 2d 239, 250 (D.D.C. 2013) (citing
Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002); Lutkewitte v. Gonzales, 436 F.3d 248,
271 (D.C. Cir. 2006)).
Plaintiff also alleges that her supervisor, Mr. Reed, falsely accused Plaintiff “of
possessing the master office keys.” Compl. at 4. However, an accusation of possible misconduct
without more is simply not “a tangible employment action constitut[ing] 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,” and therefore
cannot be an adverse personnel action.” Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761
(1994); see also Forkkio, 306 F.3d at 1131. In addition, Plaintiff does not plausibly allege that
the challenged action occurred because of her gender. According to the Complaint, Plaintiff’s
supervisor, Mr. Reed, “was motivated by forehand knowledge that [Plaintiff] was designated as a
16
witness against him in his upcoming divorce proceeding.” Compl. at 4. Accordingly, there is no
factual basis to conclude that Mr. Reed falsely accused Plaintiff “of possessing the master office
keys” because of her gender. See Baloch, 550 F.3d at 1196.
Accordingly, the Court finds that Plaintiff fails to state a gender discrimination claim
under Rule 12(b)(6).
C. Count Three: Retaliation Claim Based on Plaintiff’s Non-Receipt of Awards for
Fiscal Year 2012
Defendant moves for summary judgment on Plaintiff’s retaliation claim in which Plaintiff
alleges that her supervisor, Mr. Reed, failed to award Plaintiff any financial awards for fiscal year
2012. See Def.’s Mot. at 14-.15.
To establish a prima facie case of retaliation, a plaintiff must demonstrate that she
engaged in a protected activity and that her employer took materially adverse action against her
because she engaged in that protected activity. Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C.
Cir. 2013); see also McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012) (“To prove
unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title
VII; (2) that the employer took a materially adverse action against him; and (3) that the employer
took the action ‘because’ the employee opposed the practice.”). As to protected activity, a
plaintiff must show that she “opposed any practice” made unlawful by Title VII or ‘made a
charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” Manuel v.
Potter, 685 F. Supp. 2d 46, 55 (D.D.C. 2010) (citing 42 U.S.C. § 2000e-3(a); Burlington N. &
Santa Ge Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
In the Complaint, Plaintiff alleges that she was singled out by Mr. Reed in 2012 after she
began pursuing an EEO action against him that same year. Id. at 4. Plaintiff contends that she
17
was the “sole employee [in her] office that failed to receive any awards or merit increases” for
Fiscal Year 2012. Id. at 4-5.
In moving for summary judgment, Defendant attaches a declaration of Plaintiff’s
supervisor, Mr. Reed, in which he states that he made the determination as to who should receive
performance awards on August 14, 2012, and that the 2012 performance awards were issued by
the FCC in September 2012. See ECF No. [7-1] ¶ 5. Defendant argues that Plaintiff cannot
establish a causal link between her alleged protected activity and the alleged adverse action
because Plaintiff did not file her informal EEO complaint against Mr. Reed until October 15,
2012. See Def.’s Mot. at 15; Compl. at 4.
In opposition, Plaintiff argues that she engaged in EEO protection beginning in March
2012. See Pl.’s Opp’n at 10. Plaintiff attaches email records indicating that on March 8, 2012,
she emailed Mr. Thomas Wyatt, Director of the FCC’s Office of Workplace Diversity, requesting
a meeting to discuss “long term higher graded duties assigned to and undertaken by me; non-
management and a recent hate crime imposed upon my vehicle by employee(s) of the CBO for
an incident that initiated in the office.” See id. at 32 (Exhibit C). The email also indicates that
Plaintiff had spoken with him previously, and that “Security, IG, and Labor Relations” were
involved in the situation. Id. Plaintiff also attaches a copy of another email between Plaintiff
and Mr. Wyatt, dated August 6, 2012, with subject line, “Available to Meet Now,” in regard to an
undisclosed topic. Id. at 33 (Exhibit C).
Plaintiff contends that she would “have received an award or merit increase”, but for Mr.
Reed’s “unlawful retaliation in response to her established protected activity meetings that
occurred shortly prior to his determination of who would receive an award.” See id. at 10.
Plaintiff attaches a performance review from June 28, 2012, in which Mr. Reed issued a signed
18
“Pass” performance rating to Plaintiff for Fiscal Year 2012, and certified that she “passed” the
Critical Performance Core Competencies in “all” categories. See id. at 36-37 (Exhibit C).
Plaintiff also attaches a transcript of Mr. Reed’s deposition from 2014, in which he stated that he
gave all employees, except for Plaintiff, awards for Fiscal Year 2012. See id. at 21-24 (Exhibit
A).
In reply, Defendant puts forward an amended argument in favor of its summary judgment
motion on this claim: the emails submitted by Plaintiff do not establish that Plaintiff opposed
any practice made unlawful by Title VII or participated in protected activity. See Def.’s Reply at
5. Defendant attempts to cast Plaintiff’s grievances as an “ambiguous complaint,” which did not
make the employer aware of the alleged discriminatory misconduct.” Id. at 6.
The Court finds Defendant’s argument unavailing. Defendant has provided no factual
basis to conclude that Plaintiff undisputedly did not engage in protected activity in her
communications with Mr. Wyatt, the Director of the FFC’s Office of Workplace Diversity.
Furthermore, Defendant provides no legal support for the conclusion that Plaintiff did not engage
in protected activity simply because “Plaintiff did not assert any violation of Title VII in her
email correspondence.” Def.’s Reply at 7. At this stage in the case, the parties have yet to
undertake any discovery, and there is no record to clearly ascertain what exactly Plaintiff
complained of to Mr. Wyatt, or what, if any, activities or procedures occurred subsequent to
Plaintiff’s communications with Mr. Wyatt. Accordingly, the Court finds that there remain
disputed facts as to whether Plaintiff’s activities constitute “protected activities” under Title VII.
The Court also notes that there remain disputed facts as to whether Mr. Reed knew about
Plaintiff’s apparent complaints to the FCC’s Office of Workplace Diversity, and whether he
“took materially adverse action against her” because she engaged in such activities.
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Accordingly, the Court denies Defendant’s motion for summary judgment on Plaintiff’s
retaliation claim concerning her non-receipt of awards for Fiscal Year 2012.
D. Count Four: Retaliation Claim Based on Plaintiff’s Meeting with Plaintiff’s
Second-Level Supervisor, Ms. Fleming-Williams
Defendant moves to dismiss Plaintiff’s second retaliation claim, in which Plaintiff alleges
that after she filed her informal EEO complaint against Mr. Reed, Plaintiff’s second-level
supervisor, Ms. Fleming-Williams, called her into a “reprisal meeting” and “harassed” her with
“fabrications” that Plaintiff had not been communicating with Ms. Fleming-Williams and that
there were problems with Plaintiff’s work on the “Section 610 Report.” Compl. at 5. According
to the Complaint, Ms. Fleming-Williams questioned Plaintiff regarding the EEO claim and
threatened Plaintiff to reconsider her career goals. Id.
Defendant contends that the alleged comments by Ms. Fleming-Williams do not
constitute adverse actions for the purpose of Plaintiff’s retaliation claim. See Def.’s Mot. at 15.6
The Court agrees. It is well settled that “false accusations without negative employment
consequences are not employment decisions actionable under Title VII.” Stewart v. Evans, 275
F.3d 1126, 1136 (D.C. Cir. 2002) (citation omitted). Similarly, “formal criticisms or reprimands,
without additional disciplinary action such as a change in grade, salary or other benefits, do not
constitute adverse employment actions.” Id. Even though Plaintiff alleges that Ms. Fleming-
Williams “yelled” at her, the D.C. Circuit has explained that “sporadic verbal altercations or
disagreements do not qualify as adverse actions for purposes of retaliation claims.” Baloch, 550
6
The Court notes that Plaintiff’s opposition brief largely ignores Defendant’s legal arguments as
to this retaliation claim and instead describes factual allegations, many of which do not appear in
the Complaint. See Opp’nj at 6-9. For the same reasons described above in connection with the
hostile work environment claim, the Court will disregard Plaintiff’s newly proffered facts.
However, the Court will not treat Defendant’s arguments as conceded.
20
F.3d at 1199 (declining to find “profanity-laden yelling” to constitute an actionable adverse
action and holding that threatened suspension was not materially adverse where the suspension
was not carried out).
In sum, Plaintiff has not alleged that the comments by Ms. Fleming-Williams “in any way
affected her job performance ratings or the conditions of her employment. Because [the]
comments had no effect on [Plaintiff’s] pay, benefits, or privileges, [they] cannot be considered
an adverse employment action under Title VII.” Stewart, 275 F.3d at 1136.
Accordingly, the Court finds that Plaintiff fails to state a retaliation claim based on
Plaintiff’s meeting with Ms. Fleming-Williams.
E. Count Five: Plaintiff’s Claim based on her Duties regarding the “Section 610”
Report
Lastly, Plaintiff includes a claim titled “Higher Level Work, Reprisal, Inference [sic] with
work and Discrimination Based on Gender.” Compl. at 6. The parties do not dispute that
through the allegations in Count Five, Plaintiff seeks to bring “a discrimination claim based on
failure to promote,” as well as a retaliation claim. See id. at 17-19; Pl.’s Opp’n at 13-15.
1. Discrimination Claim based on Failure to Promote
First, Plaintiff alleges that “[s]ince 2004,” she had “been performing the delegated duties
of the Section 610 Report,” which had previously been performed by a male GS-14 attorney. Id.
Plaintiff, promoted to GS-12 in 2010, claims that a GS-12 salary was “still not adequate rate
compensation.” Id. According to the Complaint, Plaintiff requested that she be compensated at
a rate at least commensurate for her work on the Section 610 Report, but that her supervisors
disputed Plaintiff’ contentions that she was performing the higher level work. Id.
Defendant moves to dismiss the non-promotion claim for failure to state a claim and for
failure to adequately exhaust the claim. See Def.’s Mot. at 17. Defendant argues that Plaintiff’s
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non-promotion claim fails because Plaintiff does not allege the existence of any available
position to which she applied, nor does she allege that she requested a desk audit,7 or that her
GS-12 position had any promotion potential. Id. at 18. Instead, Plaintiff alleges only that she
demanded more money: “I requested of my managers to be compensated at the GS-13 level[.]”
Id. (quoting Compl. at 6). Defendant also argues that Plaintiff appears to be challenging the
insufficiency of a promotion that occurred in 2010, but that she did not seek EEO counseling
until October 2012—long after the applicable 45-day deadline under Title VII. See id. at 19.
In response, Plaintiff argues that an accretion of duties—the upgrading of an employee’s
position because of additional duties and responsibilities—is another method of achieving
promotion. See Pl.’s Opp’n at 13-15. Plaintiff also contends that she requested to be promoted,
not simply that she “demanded more money,” citing her allegation in the Complaint that her
promotion in 2010 to GS-12 status was not adequate because she “lead[s] the coordination of the
Section 610 Report, and was the lowest paid in [] the Agency’s Bureau and Offices.” Id. at 14;
Compl. at 6. Plaintiff contends that the promotion to the GS-12 grade level was insufficient
because she absorbed certain duties regarding the Section 610 Reports upon the retirement of the
GS-14 male attorney who previously was responsible for the Section 610 Reports. See Pl.’s
Opp’n at 12.
At the outset, the Court notes that Defendant has not shown that Plaintiff has failed to
exhaust her administrative remedies in a timely manner. At the time that Plaintiff filed her
7
“A desk audit is a process by which an employee may request ‘her work to be reviewed.’ ”
Rand v. Secretary of the Treasury, 816 F. Supp. 2d 70, 72 n.1 (D.D.C. 2011) (quoting Williams
v. Dodaro, 806 F. Supp. 2d 246, 249 n. 2 (D.D.C. 2011)). “ ‘[I]f, in the eyes of the reviewers,
that work is at a level higher than that at which the employee is currently graded, the employee
will be promoted to the level’ that is reflected by her performance.” Id. “This is sometimes
called an ‘accretion of duties’ promotion, because the desk audit is meant to trigger a promotion
to match the employee’s ‘accretion of duties’ over time.” Id.22
informal EEO complaint in October 2012, she was responsible for the Section 610 Reports, and
believed that her responsibilities were sufficient to warrant a promotion to the GS-13 level at that
time. Accordingly, the Court finds that Defendant has not met its burden of demonstrating that
Plaintiff has failed to exhaust her administrative remedies in a timely manner, and shall proceed
to the merits of Plaintiff’s non-promote claim. See Nurriddin v. Bolden, 40 F. Supp. 3d 104, 119
(D.D.C. 2014), aff'd, No. 14-5156, 2016 WL 1319727 (D.C. Cir. Apr. 5, 2016) (evaluating merits
of non-promotion claim under an “accretion of duties” theory, where the plaintiff believed that he
was qualified for a promotion in grade and salary within his own position).
Where, as here, a plaintiff claims that she was denied a promotion in grade and salary
within his own position (rather than into a vacant position), to establish a prima facie case he
“must show [1] that she sought and was denied a promotion [2] for which she was qualified, and
[3] that ‘other employees of similar qualifications . . . were indeed promoted at the time the
plaintiff's request for promotion was denied.’ ” Taylor v. Small, 350 F.3d 1286, 1294 (D.C. Cir.
2003) (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)).
As to the first factor, Plaintiff cannot show that she sought or was denied a promotion
because it is undisputed that she never requested a desk audit, a necessary step for a “promotion
resulting from an employee’s position being classified at a higher grade level because of
additional duties and responsibilities.” 5 C.F.R. § 335.103(c)(3)(ii). Courts have repeatedly held
that a plaintiff’s “failure to request a desk audit that could lead to a promotion condemns
h[er] . . . non-promotion claim to failure.” Burton v. Batista, 339 F. Supp. 2d 97, 15 (D.D.C.
2004); see also Marshall v. Shalala, 16 F. Supp. 2d 16, 20 (D.D.C. 1998), aff'd, No. 98-5488,
1999 WL 229010 (D.C. Cir. Mar. 2, 1999). Furthermore, courts have also rejected the argument
that a plaintiff “should not have to show that he sought a promotion because the grade increase in
23
question was not competitive, but rather ‘in-position’ based on an ‘accretion’ of duties.”
Nurriddin, 40 F. Supp. 3d at 120 (D.D.C. 2014), aff'd, 2016 WL 1319727 (D.C. Cir. Apr. 5,
2016).
Second, even if Plaintiff had followed the necessary steps for a promotion, Plaintiff has
not shown that she was qualified for a GS-13 position. Plaintiff only alleges that she
“perform[ed] the delegated duties of the Section 610 Report” that were previously performed by
a GS-14 male, Attorney-Advisor. Comp. at 6. However, “[e]ven assuming that she performed
all the duties she claims to have performed” on the Section 610 Reports, she “has not
demonstrated that such duties were sufficient to support a promotion in grade or salary.” Kilby-
Robb v. Spellings, 522 F. Supp. 2d 148, 157 (D.D.C. 2007) (dismissing discriminatory accretion
of duties claim where GS-13 plaintiff “assumed [a GS-14 predecessor’s] duties” for one project,
but “never ma[de] any argument that she took over [the GS-14 employee’s] duties [on other
assignments]). Plaintiff also has not established that she was qualified for a GS-13 position
because Plaintiff has not alleged “that all of her responsibilities were [GS-13] responsibilities.”
Id.Third, Plaintiff has not alleged “that h[er] employment situation was similar in all
relevant aspects to any individual [she] seeks to use for comparison.” Nurriddin, 40 F. Supp. 3d
at 121, aff'd, 2016 WL 1319727 (D.C. Cir. Apr. 5, 2016). Here, Plaintiff does not allege that any
comparator exists during the relevant time period. Plaintiff cannot rely on the male attorney as a
comparator because she cannot claim that “all of the relevant aspects of [her] employment
situation were nearly identical to [his].” Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999);
see also Kilby-Robb, 522 F. Supp. 2d at 158-59.
24
Accordingly, the Court finds that Plaintiff fails to state a non-promotion claim based on
accretion of duties.
2. Retaliation Claim
Finally, Plaintiff alleges a retaliation claim based on the removal of her duties as to the
Section 610 Reports. Plaintiff contends that subsequent to Plaintiff’s filing of the EEO
complaint, Ms. Fleming-Williams met with Human Resources and “immediately removed
[Plaintiff’s] substantive duties in connection with the Section 610 and ultimately [Plaintiff’s]
entire duties” as to the Section 610 Reports. Compl. at 6. Plaintiff alleges that Ms. Fleming-
Williams took away these responsibilities because the responsibilities were a component of the
EEO complaint. Id. According to the Complaint, the Section 610 Reports for 2011, 2012, 2013,
and 2014 have not been completed by anyone else in the office. Id.Defendant moves to dismiss Plaintiff’s retaliation claim, on the basis that “changes in
assignments or work-related duties do not ordinarily constitute adverse employment decisions if
unaccompanied by a decrease in salary or work hour changes.” Mungin, 116 F.3d at 1557.
Defendant argues that the alleged change in Plaintiff’s duties regarding the Section 610 Reports
does not constitute an “adverse employment decision.” The Court agrees.
This circuit’s standard for an adverse employment action is well-established: “[A]n
employee suffers an adverse employment action if he 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.” Czekalski
v. LaHood, 589 F.3d 449, 454 (D.C. Cir. 2009) (quoting Forkkio v. Powell, 306 F.3d 1127, 1131
(D.C. Cir. 2002). In other words, changes in duties or working conditions, including
reassignments that do not have a tangible effect on the terms, conditions or privileges of
25
employment are not adverse actions. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753
(1998).
Here, Plaintiff does not allege that she has experienced any materially adverse
consequences that affect the terms, conditions, or privileges of her employment or future
employment opportunities. See LaHood, 589 F.3d at 454.
In light of the foregoing, the Court finds that Plaintiff fails to state a retaliation claim
based on the removal of her duties as to the Section 610 Reports.
IV. CONCLUSION
For the reasons set forth above, the Court shall GRANT IN PART and DENY IN PART
Defendant’s Motion. The Court grants Defendant’s motion to dismiss with respect to Count Two
(gender discrimination), Count Four (retaliation) and Count Five (gender discrimination and
retaliation). The Court denies Defendant’s motion to dismiss Count One (hostile work
environment) and denies Defendant’s motion for summary judgment on Count Three
(retaliation).
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
26