Harris v. Mayorkas ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ARLENE HARRIS,
Plaintiff,
v. Civil Action No. 21-cv-1083 (GMH)
ALEJANDRO MAYORKAS,
Secretary of Homeland Security, et al.,
Defendants.
MEMORANDUM OPINION & ORDER
Plaintiff Arlene Harris brings this employment discrimination action under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Age Discrimination in
Employment Act of 1967, 42 U.S.C. § 621 et seq. (“ADEA”), and accuses her supervisors at the
Federal Emergency Management Agency (“FEMA”) of taking adverse action against her on
account of her race, age, and sex, retaliating against her for engaging in protected activity, and
creating a hostile work environment. Defendants, high-ranking officials at FEMA and the
Department of Homeland Security, which oversees FEMA, have filed a motion to dismiss
Plaintiff’s Amended Complaint, 1 which alleges race and sex discrimination, retaliation, and the
creation of a hostile work environment in violation of Title VII (Counts I, III, IV, and V,
respectively) and age discrimination in violation of the ADEA (Count II). The Court grants
Defendants’ motion as to the discrimination claims (Counts I–III) because Plaintiff has failed to
set forth any facts plausibly suggesting that the actions allegedly taken against her were motivated
by discriminatory animus. Her hostile work environment claim (Count V) must be dismissed, as
1
Plaintiff filed her initial complaint in April 2021. ECF No. 1. Thereafter, Defendants filed a motion to dismiss, ECF
No. 12, and in response Plaintiff filed the Amended Complaint, ECF No. 17.
well, because none of the conduct she alleges—either individually or collectively—clears the high
bar set for such claims. And while most of Plaintiff’s allegations are not sufficiently material to
sustain a retaliation claim, some are at this stage of this case, and the Court therefore only dismisses
Count IV in part. 2 So, Defendants’ motion is granted in part and denied in part.
I. BACKGROUND
Before assessing Defendants’ motion to dismiss, the Court will first survey Plaintiff’s
allegations and briefly outline the arguments for and against dismissal.
A. The Amended Complaint
According to the Amended Complaint, Plaintiff is 58 year-old Black woman who has been
a program analyst for FEMA since 2017. ECF No. 17-2 at 3. From 2017 to 2019, Plaintiff’s
employment at FEMA was proceeding smoothly, but she says things changed once her supervisor
retired in July 2019. Id. at 3–4. In February 2020, she alleges that her new first line supervisor,
Dominic Ionta, “gave [her] an undeserved lowered rating for Fiscal Year 2019,” and that he further
lowered the evaluation after she spoke with him about it. Id. at 4. As a result, Plaintiff says she
did not receive her typical bonus. Id. In March 2020, Plaintiff contacted an equal employment
office (“EEO”) Counselor to report Ionta’s evaluation and claimed at that time that she was
discriminated against on the basis of her age, sex, and race. See ECF No. 17-3.
Then, in June 2020, Plaintiff alleges that another of her supervisors, Pamela Hubbard,
required her to work for no pay on scheduled off days and forced her to work through lunch breaks.
ECF No. 17-2 at 4. Plaintiff also says that Hubbard did not “timely meet [with] her to discuss her
2
The relevant docket entries for purposes of this Memorandum Opinion & Order are: (1) the Amended Complaint
and its attachments (ECF No. 17); (2) Defendants’ motion to dismiss (ECF No. 22-1); (3) Plaintiff’s opposition to
Defendants’ motion to dismiss (ECF No. 27); (4) Defendants’ reply (ECF No. 28); Plaintiff’s Notice of Supplemental
Authority (ECF No. 30); and Defendants’ Notice of Supplemental Authority (ECF No. 31). The page numbers cited
herein are those assigned by the Court’s CM/ECF system.
2
performance plan for fiscal year 2020.” Id. But there was more than that, Plaintiff alleges. Starting
in June 2020, she asserts that Hubbard “assigned impossible deadlines” and “commented about
how the Plaintiff need[ed] to manage time better,” “rudely” interrupted her when she requested
assistance, and “disparaged [her], embarrassed her in front of co-workers and undeservedly gave
praise to co-workers in front of Plaintiff just to humiliate [her].” Id. at 6. On June 16, 2020,
Plaintiff filed a “formal complaint of discrimination” concerning the conduct to which she
allegedly subjected. Id. at 2; ECF No. 17-4 at 1.
Further, on numerous occasions between June and September 2020, Plaintiff contends that
Hubbard denied her requests for leave, curtailed her communications with co-workers, and was
generally “greatly disrespectful to the Plaintiff.” ECF No. 17-2 at 4–6. Additionally, Plaintiff says
that during that same time period, Hubbard stripped “75% of [her] core duties away without
justification or foundation” and “eliminated 60% of the duties in [her] Performance Goals, with
no notice or discussion.” Id. at 4–5. In mid-July 2020, Plaintiff says Hubbard “yelled at [her],
insulted her, gave her unreasonable deadlines and told her she did not do [budget] analysis.” Id.at 5–6. About six weeks later, Hubbard gave Plaintiff only negative feedback during her mid-year
evaluation and allegedly told Plaintiff that if she did not sign a performance improvement plan
(“PIP”), “there would be even worse consequences.” Id. at 6.
On September 18, 2020, Plaintiff filed a report with FEMA’s Office of Professional
Responsibility and claimed that Hubbard and another supervisor, Amber Smith, had harassed and
retaliated against her. Id. at 7. Several days later, on September 22, 2020, Plaintiff amended her
EEO claims for a final time, and “FEMA accepted twelve separate claims”—spanning August 1,
2019 to September 17, 2020—“for investigation into charges of discrimination and retaliation.”
ECF No. 22-1 at 14; see also ECF 17-4 at 1–3. Plaintiff then took a leave of absence she says was
3
necessitated by the health impacts of the bullying and hostile treatment she was subjected to at
work. ECF No. 17-2 at 7. She produces doctors’ notes dating from the fall and winter of 2020
stating that she was suffering from “intermittent episodes of disequilibrium, balance issues, vertigo
and Basal Ganglia Ischemia” that “had been greatly exacerbated by” her treatment at work. ECF
No. 17-6; see also ECF No. 17-2 at 7. One of the notes indicated that Plaintiff “could work with
her supervisor provided that the agency held the supervisor accountable for her unnecessary
hostility.” 3 Id.By March 5, 2021, Plaintiff returned to full-time work at FEMA, but she then allegedly
faced a string of retaliatory conduct committed by Hubbard that included: restricted work
responsibilities and communications with colleagues, including a “ban” on attending most
meetings and communicating with FEMA’s Office of Chief Financial Officer and other budget
analysts—the latter of which she says is “necessary for her job”; accusations of aggressiveness
towards a supervisor; a poor performance review for the 2021 year that again resulted in the loss
of a bonus; a new requirement that a supervisor approve emails she sent and that her emails not
include Smith; and failing to timely approve her leave requests, necessitating cancellation or
rescheduling of medical appointments “because leave was not approved in time.” Id. at 7–9.
On the basis of those allegations, Plaintiff says she was discriminated against based on her
race (Count I) and gender (Count II) in violation of Title VII, discriminated against on the basis of
age in violation of the ADEA (Count III), retaliated against in violation of Title VII (Count IV),
and subject to a hostile work environment (Count V). Id. at 9–12.
3
The Amended Complaint does not make clear which of Plaintiff’s supervisors the doctor’s note referred to.
4
B. The Motion to Dismiss
Defendants insist the Amended Complaint fails to state a claim for relief and must be
dismissed. See ECF No. 22-1; Fed. R. Civ. P. 12(b)(6). Analytically, they group Plaintiff’s claims
into two buckets: the discrimination and retaliation claims (Counts I to IV), and the hostile
workplace claim (Count V). As to the former, Defendants advance three arguments in favor of
dismissal. First, they contend Plaintiff failed to administratively exhaust her claims arising from
alleged conduct that occurred after she last amended her EEO complaint in September 2020. Id.at 13–16. Specifically, Defendants point to the medical leave of absence Plaintiff took from
September 2020 to March 2021 and the discriminatory and retaliatory conduct she allegedly was
subjected to following her return to work. Id. at 14. Claims related to that conduct must be
rejected, Defendants urge, because there is no evidence Plaintiff ever sought EEO counseling and
therefore no administrative action was ever taken with respect to it. Id. Defendants then contend
that Plaintiff’s allegations of “various discrete incidents of insults and abuse” are not sufficiently
adverse to sustain the discrimination and retaliation claims stemming from that alleged conduct. 4
Id. at 16–20. Thus, they argue that allegations that Plaintiff’s supervisor “yelled at [her],” “insulted
her,” “gave her unreasonable deadlines and told her she did not do analysis,” “was greatly
disrespectful to [her],” “assigned impossible deadlines,” “commented about how the Plaintiff
needs to manage time better,” “failed to provide clear communications,” “rudely cut her off,”
“disparaged [her],” “embarrassed her in front of co-workers,” and “undeservedly gave praise to
co-workers” are not actionable as discrete discrimination or retaliation claims. ECF No. 28 at 10;
4
Defendants initially alleged that all conduct Plaintiff alleged was directed at her was not sufficiently adverse to state
claims for retaliation or discrimination, ECF No. 22-1 at 16–20, but later scaled back the argument to target only the
“allegations of various discrete incidents of insults and abuse,” ECF No. 28 at 9–10, thereby excluding her allegations
related to “lower review scores, requiring her to work on off days without compensation, limiting core duties, and
curtailed communication with coworkers,” id.5
see also ECF No. 22-1 at 18–19. Finally, Defendants contend that all of Plaintiff’s discrimination
and retaliation claims must be dismissed because she failed to sufficiently allege a causal link
between the conduct she was allegedly subjected to and her race, sex, or age. ECF No. 22-1 at
20–23. Specifically, they say Plaintiff did not set forth factual material plausibly suggesting that
certain, adverse actions were taken against her on the basis of a protected status. Id.Turning to Plaintiff’s hostile work environment claim (Count V), Defendants ask the Court
to dismiss it, as well, because none of the conduct she alleges, even when considered together, is
“sufficiently severe or pervasive” to make out such a claim. Id. at 23–27. More, they say,
Plaintiff’s reliance on the same alleged conduct for her discrimination, retaliation, and hostile work
environment claims is untenable because litigants “‘cannot so easily bootstrap alleged retaliatory
incidents into a broader hostile work environment claim.’” ECF No. 28 at 16 (quoting Keeley v.
Small, 391 F. Supp. 2d 30, 51 (D.D.C. 2005)).
Plaintiff, of course, takes the opposite tack and asks the Court to preserve her claims. See
ECF No. 27. As to Defendant’s exhaustion arguments, Plaintiff points to cases “holding that
hostile work environment claims have a ‘less stringent’ standard in an exhaustion analysis than
stand-alone claims.” Id. at 3. She says that courts in this Circuit have developed a “totality of the
circumstances test” that allows hostile work environment claims to ease under the traditional
exhaustion bar so long as the unexhausted claims are “like or reasonably related to the allegations
of the [EEO] charge and growing out of such allegations.” Id. at 3–4. She then pushes back on
Defendant’s contention that the conduct she allegedly was subjected to was not sufficiently adverse
to sustain the discrimination and retaliation counts. Id. at 5–6. Notably, she argues that the “lack
of clear communication” provided by her supervisors “particularly limits [her] ability to perform
her job satisfactorily as nobody can be expected to keep up with a supervisor’s moving target of
6
expectations.” Id. at 6. That type of workplace, Plaintiff says, “is established for the purpose of
setting up an employee to fail.” Id. Next, she asserts that, contrary to Defendants’ position, she
did adequately allege a causal connection between her protected statuses (race, sex, and age) and
the conduct she endured. Id. at 6–8. She points to the allegations contained in the Amended
Complaint “that similarly situated individuals outside of [her] protected class did not endure the
treatment [she] did.” Id. at 6. Further, as to her racial discrimination claim, Plaintiff notes a
supervisor’s statement in an EEO report that there was “racial and social tension” in her office.
Id.; ECF No. 17-3 at 4. Plaintiff also emphasizes that there was sufficient temporal proximity
between her initial EEO complaint in March 2020 and the string of subsequent conduct to raise
the inference of retaliation. ECF No. 27 at 7–8.
Finally, Plaintiff defends her hostile work environment claim, reasoning that because the
Court “must take [her] allegation . . . that the cumulative effect of the discrete acts she endured
was hostile” as true at the motion to dismiss phase, Defendant’s motion must be denied. Id. at 8–
9. The dispositive question, she says, is whether the conduct she suffered was sufficiently “severe
or pervasive,” and that “analysis cannot take place in a summary motion.” Id. at 9.
II. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure seeks
dismissal of a complaint based on a failure to state a claim upon which relief can be granted. Fed.
R. Civ. P. 12(b)(6). As such, it tests the legal sufficiency of a complaint. Id.; see also Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The Federal Rules require that a complaint provide
“‘a short and plain statement of [a plaintiff's] claim showing that [she] is entitled to relief,’ in order
to ‘give the 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) (quoting Conley v. Gibson, 355 U.S. 41, 47
7
(1957)); Fed. R. Civ. P. 8(a). A Rule 12(b)(6) motion does not assess the pleader’s likelihood of
success on the merits but only whether the pleader has properly stated a claim. E. Savings Bank,
FSB v. Papageorge, 31 F. Supp. 3d 1, 11 (D.D.C. 2014). Thus, “[t]o survive a [Rule 12(b)(6)]
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. While “detailed factual allegations” are not required, a complaint must offer “more
than labels and conclusions” to provide grounds for relief. Twombly, 550 U.S. at 555. In
adjudicating motions to dismiss, district courts “may consider documents attached to a motion to
dismiss, without converting the motion into a motion for summary judgment, if those documents’
authenticity is not disputed, they were referenced in the complaint, and they are ‘integral’ to one
or more of the plaintiff’s claims.” Scott v. J.P. Morgan Chase & Co., 296 F. Supp. 3d 98, 105
(D.D.C. 2017).
Additionally, parties bringing claims pursuant to Title VII must first exhaust their
administrative remedies. See Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). “The
primary purpose of the exhaustion requirement is to provide the agency with sufficient notice to
begin the investigative process.” Hernandez v. Mao, 235 F. Supp. 3d 172, 177 (D.D.C. 2017).
The exhaustion requirement is “not a jurisdictional prescription delineating the adjudicatory
authority of courts,” but, rather, may be raised as an affirmative defense. See Ft. Bend Cty. v.
Davis, __ U.S. __, __, 139 S. Ct. 1843, 1850–51 (2019). Even after filing a charge with the
agency’s EEO, an employee may not bring a civil action for employment discrimination unless
she has first received a notice of “final action” taken by the EEO. See 42 U.S.C. § 2000e–16(c);
8
Williams v. Dodaro, 576 F. Supp. 2d 72, 82 (D.D.C. 2008). Although the rules of exhaustion
“should not be construed to place a heavy, technical burden” on plaintiffs, Fennell v. AARP, 770
F. Supp. 2d 118, 126 (D.D.C. 2011) (quoting Park, 71 F.3d at 907), a failure to exhaust
administrative remedies “will ordinarily bar a judicial remedy,” Bowe–Connor v. Shinseki, 923 F.
Supp. 2d 1, 5 (D.D.C. 2013). Relatedly, courts assessing exhaustion of remedies arguments at the
motion to dismiss stage may consider “‘any documents either attached to or incorporated in the
complaint.’” Mackinac Tribe v. Jewell, 87 F. Supp. 3d 127, 138 (D.D.C. 2015) (quoting EEOC v.
St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)), aff’d, 829 F.3d 754 (D.C.
Cir. 2016).
III. DISCUSSION
The Amended Complaint contains three discrimination claims (Counts I–III), a retaliation
claim (Count IV), and a hostile work environment claim (Count V). The Court will address them
in turn. The discrimination claims are inadequately pleaded, as they fail to allege sufficient facts
to give rise to a plausible inference that Plaintiff’s supervisors took actions against her because of
her race, age, or sex. The hostile work environment claim also fails because the actions Plaintiff
has said that her supervisors took against her do not, either considered singly or in combination,
rise to level of “severe or pervasive” abuse, which is necessary to sustain such a claim. Plaintiff’s
retaliation claim is different story, however. While most of the adverse actions she alleges are not
enough to sustain a retaliation claim, Defendants do not contest that some are sufficiently adverse.
Accordingly, some Plaintiff’s retaliation claims may proceed.
A. Title VII Race Discrimination Claim (Count I)
Plaintiff alleges that her supervisors discriminated against her on account of her race in
violation of Title VII. ECF No. 17-2 at 9. She has not, however, alleged sufficient facts plausibly
9
suggesting that the actions taken against her were motivated by racial animus. Accordingly, Count
I is dismissed.
In Title VII cases alleging disparate treatment,
a plaintiff establishes a prima facie case of discrimination by pleading facts from
which it can reasonably be inferred that “(1) [s]he is a member of a protected class,
(2) [s]he suffered an adverse employment action, and (3) the unfavorable action
gives rise to an inference of discrimination (that is, an inference that [her] employer
took the action because of [her] membership in the protected class). 5
Bartlette v. Hyatt Regency, 208 F. Supp. 3d 311, 321–22 (D.D.C. 2016) (quoting Brown v.
Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014)). Twombly and Iqbal require that Plaintiff allege
these elements with sufficient factual material “to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570; see also Iqbal, 556 U.S. at 678. As to the third prong, an
inference of discrimination can be established through allegations that the plaintiff was “treated
differently from similarly situated employees who are not part of the protected class.” George v.
Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005). And in cases where, as here, “a plaintiff seeks an
inference of discrimination based on ‘disparate treatment,’” a Title VII plaintiff must plead
5
Following the completion of the briefing on Defendants’ motion to dismiss, the D.C. Circuit issued its opinion in
Chambers v. District of Columbia, 35 F.4th 870 (D.C. Cir. 2022) (en banc). In that case, the en banc court overruled
prior precedent and held that “an employer that transfers an employee or denies an employee’s transfer request because
of the employee’s race, color, religion, sex, or national origin violates Title VII by discriminating against the employee
with respect to the terms, conditions, or privileges of employment.” Id. at 872. In so doing, Chambers overruled the
Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999), which had required an employee to allege “objectively tangible harm”
to state a Title VII discrimination claim. Chambers, 35 F.4th at 872, 874–75; see also Liu v. Georgetown Univ., No.
22-cv-157, 2022 WL 2452611, at *5 (D.D.C. July 6, 2022) (rejecting an employer’s post-Chambers argument that an
employee “must ‘allege significant changes to his employment status’ to survive a motion to dismiss” Title VII
discrimination claims (quoting the record)).
In wake of Chambers, the parties submitted brief memoranda outlining their views on its applicability in this
case. See ECF Nos. 30 and 31. Plaintiff simply noted that Chambers overruled Brown v. Brody—a case cited in
passing by Defendants in their motion to dismiss—and requested that Chambers be applied in this case. ECF No. 30
at 1. Defendants acknowledge their citation of Brown, but argue in their memorandum that Chambers “does not alter
the analysis of the pending motion to dismiss,” both because Plaintiff here has not alleged a denial of lateral transfer
and because they withdrew their contention that certain of Plaintiff’s discrimination claims were not sufficiently
adverse. ECF No. 31 at 2; see also ECF No. 28 at 9–10. Defendants also say that Plaintiff’s discrimination claims
are still subject to dismissal because, even setting to the side the issue of adverse action, she “nonetheless ‘failed to
plausibly allege a causal connection between these actions and an impermissible basis.’” ECF No. 31 at 3 (quoting
ECF No. 28 at 10 & n.3). As will be explained in this section and those that follow, the Court agrees with Defendants
that Plaintiff’s Title VII discrimination claims fail for reasons divorced from the holding in Chambers.
10
sufficient facts to raise a plausible inference that “‘all of the relevant aspects of her employment
situation were “nearly identical” to those’ of the other employees who did not suffer similar
adverse employment actions.” Budik v. Howard Univ. Hosp., 986 F. Supp. 2d 1, 7 (D.D.C. 2013)
(quoting Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995)); see
also Vaher v. Town of Orangetown, 916 F. Supp. 2d 404, 434 (S.D.N.Y. 2013) (“While a plaintiff
is not required to proffer evidence of similarly situated individuals at the motion to dismiss stage,
the court ‘still must determine whether, based on a plaintiff's allegations in the complaint, it is
plausible that a jury could ultimately determine that the comparators are similarly situated.’”
(quoting Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 697, 697–98
(S.D.N.Y. 2011))).
Plaintiff’s race discrimination claim fails to meet these standards. Under the third prong
of the pleading standard, Plaintiff was required to provide sufficient factual allegations to support
a plausible inference of race discrimination. The Amended Complaint, however, is devoid of any
such factual material. Although she alleges that she was repeatedly mistreated by her supervisors,
ECF No. 17-2 at 3–9, there are no facts alleged from which it can be plausibly inferred that the
mistreatment was racially motivated. While the Amended Complaint generally avers that
“[s]imilarly situated co-workers outside of the [her] race were not treated in the manner in which
[she] was,” id. at 9, Plaintiff offers no facts to back that up, rendering the allegation “just a legal
conclusion—and a legal conclusion is never enough.” SS & T, LLC v. Am. Univ., No. 19-cv-721,
2020 WL 1170288, at *5 (D.D.C. Mar. 11, 2020) (“‘A plaintiff’s assertion that [it] is similarly
situated to other[s] . . . is just a legal conclusion—and a legal conclusion is never enough.’”
(alterations in original) (quoting Bekkem v. Wilkie, 915 F.3d 1258, 1275 (10th Cir. 2019) (affirming
dismissal of Title VII discrimination claim where plaintiff’s allegations were “too conclusory to
11
permit a reasonable inference of differential treatment of similarly situated employees”))). Indeed,
nowhere does the Amended Complaint even generally describe any comparator employees, how
they were similarly situated, or how they were treated differently than Plaintiff. Other courts in
this District and elsewhere have not hesitated to dismiss disparate treatment Title VII claims with
comparable pleading deficiencies. See, e.g., Beaulieu v. Barr, No. 15-cv-896, 2019 WL 5579968,
at *4 (D.D.C. Oct. 29, 2019) (dismissing Title VII discrimination claim where, as here, the plaintiff
failed to “identify any ‘comparator’ employees who were treated differently”); Budik, 986 F. Supp.
2d at 7 (dismissing Title VII disparate treatment claim where, as here, the plaintiff “has not pleaded
facts that show that ‘all of the relevant aspects of her employment situation were ‘nearly
identical[]’ to those of her . . . Caucasian co-worker,” such as “the co-worker’s job title, or . . . any
facts about the co-worker’s experience, seniority, or expertise”) (internal citation omitted) (quoting
Neuren, 45 F.3d at 1514); compare Coleman v. Maryland Ct. of Appeals, 626 F.3d 187, 190–91
(4th Cir. 2010) (concluding that the plaintiff’s allegation that he “was treated differently as a result
of his race than whites”—even where the plaintiff identified an alleged comparator—was
insufficient to sustain a Title VII claim at the motion to dismiss stage because, as here, no factual
allegations plausibly suggested the comparator was “actually similarly situated”) with Fennell, 770
F. Supp. 2d at 128–29 (finding that Title VII plaintiff had sufficiently alleged race- and sex-based
discrimination where he “identifie[d] three allegedly similarly situated white employees, and one
similarly situated female employee, who engaged in comparable conduct but were not treated in
alike manner”). 6 Thus, Plaintiff’s allegation that “[s]imilarly situated co-workers outside of the
6
A chorus of other courts have reached the same conclusion: Title VII plaintiffs pressing disparate treatment claims
cannot make it past the motion to dismiss stage without coming forward with some facts that other, similarly-situated
employees were treated differently. See, e.g., Newell v. Acadiana Plan. Comm’n Inc., No. 20-cv-1525, 2022 WL
532758, at *2 (W.D. La. Feb. 22, 2022) (finding that the plaintiff’s “allegations do not state a plausible disparate
treatment claim under Title VII” where, as here, “[the plaintiff] points to no comparators to show that she was subject
12
[her] race were not treated in the manner in which [she] was,” ECF No. 17-2 at 9, is no more than
a “formulaic recitation of a cause of action’s elements” that is not sufficient to survive a motion to
dismiss, 7 Twombly, 550 U.S. at 555; see also Easaw v. Newport, 253 F. Supp. 3d 22, 30 n.4
(D.D.C. 2017) (“Stating simply ‘I was turned down for a job because of my race’ is precisely the
kind of conclusory allegation that is patently incompatible with Twombly and Iqbal’s pleading
requirements.”); cf. Markowicz v. Johnson, 206 F. Supp. 3d 158, 169 (D.D.C. 2016) (noting that a
to less favorable treatment”); Goddard v. Apogee Retail LLC, No. 19-cv-3269, 2021 WL 2589727, at *8 (D. Md. June
24, 2021) (“Any [Title VII] claim of disparate impact on a protected status equally fails, as [p]laintiff points to no
comparators from similarly situated nonmembers of a protected class.”), appeal dismissed, No. 21-1814, 2021 WL
6689512 (4th Cir. Nov. 2, 2021); Fukelman v. Delta Air Lines, Inc., No. 18-cv-2, 2020 WL 4587496, at *10 (E.D.N.Y.
Apr. 13, 2020) (“Failure to identify any comparators at all, even in the motion to dismiss stage, makes [a Title VII
claim] vulnerable to dismissal.”), report and recommendation adopted, 2020 WL 2781662 (E.D.N.Y. May 29, 2020);
Mejia v. White Plains Self Storage Corp., No. 18-cv-12189, 2020 WL 247995, at *5 (S.D.N.Y. Jan. 16, 2020)
(dismissing Title VII discrimination claim where the plaintiff “fail[ed] to plausibly allege disparate treatment or impact
on the basis of his religion, because he fail[ed] to describe the existence of any putative comparators or how he was
‘treated differently’ from them” (quoting the complaint)); Murray v. Dutchess Cty. Exec. Branch, No. 17-cv-9121,
2019 WL 4688602, at *10–11 (S.D.N.Y. Sept. 25, 2019) (dismissing claims of racial discrimination brought under
Title VII where the plaintiff “broadly allege[d] that” certain events “culminating in his termination were . . .
discriminatory” but, as here, failed to “identify any comparators at all, let alone any comparator employee . . . who
was disciplined or otherwise treated differently than [the plaintiff] was under similar circumstances”); Olivier v. Cty.
of Rockland, No. 15-cv-8337, 2018 WL 401187, at *8 (S.D.N.Y. Jan. 11, 2018) (“Plaintiff offers no allegation about
any comparators for the [Title VII] charge at issue. Given that Plaintiff does not allege the existence of any
comparators, let alone that any comparators engaged in the same or even similar misconduct . . . , [p]laintiff has not
adequately pleaded allegations from which it is ‘plausible that a jury could ultimately determine that the comparators
are similarly situated,’ and therefore has failed to adequately allege disparate treatment that could plausibly support
even a minimal inference of discrimination.” (quoting Weslowski v. Zugibe, 14 F. Supp. 3d 295, 319 (S.D.N.Y.
2014))); Goodine v. Suffolk Cty. Water Auth., No. 14-cv-4514, 2017 WL 1232504, at *4 (E.D.N.Y. Mar. 31, 2017)
(“[A] Title VII plaintiff must still identify at least one comparator to support a minimal inference of discrimination;
otherwise the motion to dismiss stage would be too easy to bypass.”); Moore v. Nat’l Tire & Battery, No. 13-cv-1779,
2013 WL 5587295, at *2 (D. Md. Oct. 9, 2013) (finding that the plaintiff’s racial discrimination allegations “fail to
sustain a plausible inference that [d]efendant failed to promote [plaintiff] for discriminatory reasons. [Plaintiff] does
not allege the race, sex, or qualifications of the people who received the position in question and, thus, fails to identify
any comparators”); Erby v. Webster Univ., No. 13-cv-518, 2013 WL 5495586, at *5 (D.S.C. Oct. 1, 2013) (“Because
[p]laintiff has failed to identify any comparators in either her complaint or her response brief, . . . it is recommended
that her Title VII discrimination claim be dismissed.”), report and recommendation adopted, id. at *1.
7
It is true that “[c]ourts regularly conclude that plaintiffs have stated facts giving rise to an inference of discrimination
by alleging that comparators were treated differently, without fleshing out the exact relative characteristics of those
comparators.” Tolton v. Jones Day, No. 19-cv-945, 2020 WL 2542129, at *15 (D.D.C. May 19, 2020) (emphasis
added). Yet despite the fact that “a plaintiff need not plead [their] similarity to alleged comparators with fine detail in
order to state a disparate treatment claim,” id. (emphasis added), they must allege some facts giving rise to a plausible
inference that they were treated differently than similarly-situated peers outside their protected class, Budik, 986 F.
Supp. 2d at 7. Here, Plaintiff failed to do so.
13
statement that “I was turned down for a job because of my race,” is sufficient to survive a motion
to dismiss as long as it is “accompanied by factual allegations that render that claim plausible”).
In her opposition brief, however, Plaintiff points to a portion of the EEO documentation
(attached to her Amended Complaint) where Ionta, one of her supervisors, told an investigator that
“there was racial and social tension in [Plainiff’s] office.” ECF No. 27 at 6; ECF No. 17-3 at 4.
That, Plaintiff seems to argue, is enough to “nudge[] [her] claims across the line from conceivable
to plausible.” Twombly, 550 U.S. at 570; see also Attakora v. District of Columbia, 943 F. Supp.
2d 152, 157 (D.D.C. 2013) (finding that “specific statements purportedly made” by a supervisor
“reflecting an animus against individuals of” plaintiff’s protected class were sufficient to sustain a
discrimination claim). The Court disagrees. Although Ionta’s statement can be considered despite
its absence from the Amended Complaint, the statement itself—when read in context—is so
generalized, vague, and undetailed that it does not meaningfully bolster Plaintiff’s claims of racial
discrimination—that is, it does not elevate the “conceivable” to the “plausible.”
To start, it should be noted that Ionta’s statement is contained in a FEMA EEO counselor’s
report concerning some of Plaintiff’s allegations of discriminatory treatment; that document is
attached to Plaintiff’s Amended Complaint. See generally ECF No. 17-3. As explained,
documents appended to complaints may be considered in deciding motions to dismiss without
converting the motion to one for summary judgment. See, e.g., Bullock v. Donohoe, 71 F. Supp.
3d 31, 33 (D.D.C. 2014) (“In deciding the defendant’s motion to dismiss under Rule 12(b)(6), the
Court may consider the documents attached to the complaint and those incorporated by reference
without triggering the conversion requirement of Fed. R. Civ. P. 12(d).”). The Court will do so
here.
14
Even so, Ionta’s statement cannot carry the substantial weight Plaintiff places upon it. The
statement that “there was racial and social tension in the office” is situated in the following
paragraph in the FEMA EEO report:
Mr. Ionta asserted he never saw any indication that [Plaintiff] was treated
differently because she was African-American and by observation, he saw no overt
evidence that [Plaintiff] was treated differently because she was African-American.
Mr. Ionta affirmed there was racial and social tension in the office and there were
tensions between the legacy FEMA people and the new ICE people; many FEMA
people had been there lots of years (e.g. 30 years).
ECF No. 17-3 at 4. Read in context, Ionta’s “racial and social tension” statement was nothing
more than a passing comment describing generalized racial tension, which—standing alone—is
not sufficient to make out a plausible claim of disparate treatment. Most importantly, Ionta’s
statement does not specify who, if anyone, was racially biased against Plaintiff. Indeed, nowhere
does the statement—or the report as a whole—indicate that Plaintiff herself was the target of those
racial tensions. Nor is there any connection between that statement and any particular supervisors
or actions taken against Plaintiff. The statement is not an admission or confession from Ionta;
instead, and even when viewed in the light most favorable to Plaintiff, it is merely a generalized
statement about the atmosphere in which Plaintiff worked. In any event, a generalized opinion
from one supervisor about the “racial tension” in Plaintiff’s office is insufficient to attribute
discriminatory intent to any or all of Plaintiff’s supervisors, and to Hubbard in particular, to whom
Plaintiff attributes most of the allegedly adverse action. ECF No. 17-2 at 4–9; see, e.g., Howard
v. D.C. Pub. Sch., 531 F. Supp. 2d 115, 118 (D.D.C. 2008) (concluding, in a Title VII case, that
“there is no basis for ‘inferring the personal attitudes of [one employee] from generalized
allegations of racial friction and allegations concerning unnamed [employees],’ nor is there any
basis for inferring the personal attitudes of [the defendant employer’s] decisionmakers from such
allegations” (quoting the record)); see also Parker v. Ill. Hum. Rights Comm’n, No. 12-cv-8275,
15
2013 WL 5799125, at *7 (N.D. Ill. Oct. 25, 2013) (finding that, without more, one individual’s
discriminatory intent cannot be attributed to a different individual who was responsible for the
adverse employment action); cf. Hall v. Giant Food, Inc., 175 F.3d 1074, 1079–80 (D.C. Cir. 1999)
(refusing to find, at the summary judgment stage, that one employee’s bias reflected in a
discriminatory remark was sufficient to infer that another employee’s termination of plaintiff was
motivated by impermissible bias). So, if Ionta’s “racial and social tension” statement should be
viewed as an admission that Ionta himself harbored racial animus—and the Court expressly
concludes it was not—that would nevertheless be insufficient to make out a plausible claim that
Plaintiff’s other supervisors, and Hubbard in particular, harbored the same views.
More, Ionta’s statement does not even generally describe the type or nature of “racial . . .
tension” present in Plaintiff’s workplace—and that matters here because Plaintiff is alleging that
she was discriminated against because she is Black. The statement does not characterize the
tensions as being directed toward any particular racial group, and, indeed, the statement could be
referring to racial tensions between other racial groups (e.g., Caucasians and Hispanics). Other
courts have recognized that such generalized statements of racial friction are insufficient to
sufficiently allege discriminatory intent. See, e.g., Holmes v. Gates, 403 F. App’x 670, 673 (3d
Cir. 2010) (affirming dismissal of Title VII claims and finding that “generalized grievances” about
racial discrimination lack the “requisite specificity” to plausibly allege aTitle VII claim); see also
Bates v. City of Chicago, 726 F.3d 951, 957 n.5 (7th Cir. 2013) (finding, at summary judgment
stage, that plaintiff failed to establish prima facie claim of race discrimination where his complaint
“made nothing but vague and generalized allegations about the racial attitudes of [certain]
defendants, and failed to make any specific allegations about how racism was the basis for” any
of the alleged adverse action); Von Zuckerstein v. Argonne Nat. Lab., 78 F.3d 587 (7th Cir. 1996)
16
(noting that “a generalized racial animus . . . is not enough to constitute a . . . Title VII violation”).
To be sure, while “generalized statements of racial animus that are not directed at a plaintiff, when
considered alongside other circumstantial evidence, may support an inference of discrimination,”
Younge v. Fulton Jud. Cir. Dist. Att’y’s Off., No. 20-cv-684, 2021 WL 4901896, at *2 (N.D. Ga.
Mar. 10, 2021), here there are no “other” facts alleged supporting the theory that Plaintiff’s
supervisors acted as they did on account of her race.
For these reasons, the Court finds that Ionta’s statement that “there was racial and social
tension in the office” does not “nudge” Plaintiff’s racial discrimination claims “across the line
from conceivable to plausible.” Twombly, 550 U.S. at 570. Count I is therefore dismissed in its
entirety.
B. Title VII Gender Discrimination Claim (Count II)
Count II of the Amended Complaint alleges that Defendants discriminated against Plaintiff
on account of her gender in violation of Title VII. ECF No. 17-2 at 9–10. The claim is also
dismissed because it suffers from the same pleading infirmity as Count I.
As with her race discrimination claim, to survive a motion to dismiss Plaintiff’s gender
discrimination claim was required to allege
facts from which it can reasonably be inferred that “(1) [s]he is a member of a
protected class, (2) [s]he suffered an adverse employment action, and (3) the
unfavorable action gives rise to an inference of discrimination (that is, an inference
that [her] employer took the action because of [her] membership in the protected
class).
Bartlette, 208 F. Supp. 3d at 321–22 (quoting Brown, 774 F.3d at 1022)). Plaintiff was required
to plead those elements consistent with the “plausibility” standard set forth in Twombly and Iqbal.
See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.
17
Plaintiff’s gender discrimination claim falls short of these pleading requirements. Similar
to the racial discrimination claims in Count I, the Amended Complaint is devoid of any factual
material that would support a “plausible inference” that Plaintiff’s supervisors acted as they did on
account of her gender. To be sure, Plaintiff alleges conduct that may be adverse employment
action, but there is not a shred of factual material in the Amended Complaint supporting the theory
that such action was taken on account of her gender. Merely “stat[ing] that similarly situated
individuals outside of Plaintiff’s protected class did not endure the treatment Plaintiff did” is not
sufficient. ECF No. 27 at 6; see also ECF No. 17-2 at 9. Again, and as explained above in the
context of her race discrimination claim, Plaintiff’s unadorned allegation that “similarly-situated”
persons of the opposite sex were treated differently is a mere legal conclusion lacking any factual
support. See SS & T, 2020 WL 1170288, at *5 (“‘A plaintiff’s assertion that [it] is similarly
situated to other[s] . . . is just a legal conclusion—and a legal conclusion is never enough.’”
(quoting Bekkem, 915 F.3d at 1275)). This is precisely the type of “formulaic recitation of a cause
of action’s elements” the Supreme Court has said cannot survive a motion to dismiss. Twombly,
550 U.S. at 545; see also Hemp Indus. Ass’n v. DEA, 36 F.4th 278, 288 (D.C. Cir. 2022) (“In fact,
‘constru[ing] [a] complaint liberally in the plaintiff’s favor’ does not entail ‘accept[ing] inferences
unsupported by facts or legal conclusions cast in the form of factual allegations.’” (alterations in
original) (quoting City of Harper Woods Emps.’ Ret. Sys. v. Olver, 589 F.3d 1292, 1298 (D.C. Cir.
2009)). Other courts in this District have dismissed Title VII gender discrimination claims where,
as in this case, the complaint fails to plausibly allege similarly-situated comparators. See, e.g.,
Beaulieu, 2019 WL 5579968, at *4 (dismissing the plaintiff’s Title VII gender discrimination
claim where, as here, the complaint failed to “identify any ‘comparator’ employees who were
treated differently” or “‘identif[y] specific statements purportedly made’ by a supervisor
18
‘reflecting an animus against individuals of’ her protected class” (quoting Attakora, 943 F. Supp.
2d at 157)); Redmon v. YMCA of Metro. Washington, 417 F. Supp. 3d 99, 103–04 (D.D.C. 2019)
(dismissing the plaintiff’s Title VII gender discrimination claim where the complaint failed to
allege appropriate comparators and plaintiff therefore could not “show that ‘he was treated
differently from similarly situated employees who are not part of the protected class’” (quoting
George, 407 F.3d at 412)); Townsend v. United States, 236 F. Supp. 3d 280, 309–10 (D.D.C. 2017)
(dismissing the plaintiff’s Title VII gender discrimination claim where the complaint failed to
plausibly allege appropriate comparator employees). Count II is therefore dismissed.
C. ADEA Discrimination Claim (Count III)
Plaintiff’s age discrimination claim (Count III) runs into the same issue as her race and
gender discrimination claims: There simply are no facts to support a plausible inference that
Plaintiff’s supervisors were motivated by age-based animus in any of their dealings with her. With
that link missing, Plaintiff’s age discrimination claim cannot stand and is dismissed.
Plaintiffs pressing ADEA claims must plead
facts from which it can reasonably be inferred that “(1) he is a member of a
protected class, (2) he suffered an adverse employment action, and (3) the
unfavorable action gives rise to an inference of discrimination (that is, an inference
that his employer took the action because of his membership in the protected class).
Bartlette, 208 F. Supp. 3d at 321–22 (quoting Brown, 774 F.3d at 1022). The Supreme Court has
recently held that while “age must be the but-for cause of differential treatment,” age need not be
“a but-for cause of the ultimate decision” in order to establish causation under the federal-sector
provision of the ADEA. Babb v. Wilkie, __ U.S. __, __, 140 S. Ct. 1168, 1174 (2020). Again,
these elements must be pled consistent with Twombly and Iqbal’s “plausibility” standard. Iqbal,
556 U.S. at 678; Twombly, 550 U.S. at 570.
19
Although Plaintiff was required to craft a complaint that contained “enough facts to state a
claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570, the Amended Complaint is
barren of any factual material supporting the notion that Plaintiff’s supervisors acted as they did
on account of her age. Instead, and as with her race and gender discrimination claims, Plaintiff
simply alleges that “[s]imilarly situated co-workers outside of the Plaintiff’s Age group were not
treated in the manner in which Plaintiff was.” ECF No. 17-2 at 10. As explained in the foregoing
sections, that “formulaic recitation” is no more than a legal conclusion, which is “never enough”
to survive a motion to dismiss. Twombly, 550 U.S. at 555; SS & T, 2020 WL 1170288, at *5.
Plaintiff was required to plead facts supporting that element of her age discrimination claim, and
she failed to do so. Count III is therefore dismissed, as well. Other court in and out of this Circuit
have done the same in like circumstances. See, e.g., Yee v. Garland, No. 21-cv-1185, 2022 WL
2046112, at *10 (D.D.C. June 7, 2022) (granting the government’s motion to dismiss age
discrimination claims where, as here, “plaintiff [did] not pled a single fact that would give rise to
a plausible inference that [the adverse employment action] was motivated in any way by her age”);
Townsend, 236 F. Supp. 3d at 308 (dismissing ADEA claim where, as here, plaintiff’s complaint
failed to allege sufficient facts that would allow a plausible inference that plaintiff was similarly-
situated to comparator employee); see also Marcus v. Leviton Mfg. Co., Inc., 661 F. App’x 29, 32
(2d Cir. 2016) (holding that the absence of “any information as to whether [the comparator]
employees were otherwise similarly situated or the specifics of their conduct” prevents “even a
minimal inference of age discrimination”).
D. Title VII Retaliation Claim (Count IV)
Count IV of Plaintiff’s Amended Complaint alleges that her supervisors retaliated against
her for reporting their conduct to FEMA’s EEO office. ECF No. 17-2 at 10–11. However, most
20
of the action she alleges was taken against her is not sufficiently adverse to make out a retaliation
claim. Further, some of the action she complains of was never presented to FEMA’s EEO office
and is therefore unexhausted and not actionable here. Still other allegedly adverse conduct
predated her initial EEO reports and cannot form the basis of a retaliation claim. Yet even after
accounting for these issues, there are a few allegations that, assuming their truth, could be
retaliatory, and so the Court will allow claims based on that conduct to proceed. The remainder
of Plaintiff’s retaliation claim is dismissed.
“In order to sustain a claim for retaliation at the motion-to-dismiss stage, ‘a plaintiff must
show that (1) he engaged in a statutorily protected activity; (2) his employer took an adverse
personnel action against him; and (3) a causal connection exists between the two.’” McNair v.
District of Columbia, 213 F. Supp. 3d 81, 89 (D.D.C. 2016) (quoting Keys v. Donovan, 37 F. Supp.
3d 368, 372 (D.D.C. 2014)). The Court will address each prong of the pleading standard in turn.
1. Statutorily Protected Activity
Here, there is no dispute that Plaintiff engaged in protected activity when she sought
counseling from FEMA’s EEO office on March 9, 2020. 8 ECF No. 17-3 at 1; see Bell v. Gonzales,
398 F. Supp. 2d 78, 94 (D.D.C. 2005) (“Initiation of EEO counseling to explore whether an
employee has a basis for alleging discrimination constitutes protected activity.”). Plaintiff also
engaged in protected activity when she filed a formal EEO complaint on June 16, 2020, and when
she amended that complaint on September 1 and September 22, 2020. ECF No. 17-4 at 1; see
Warner v. Vance-Cooks, 956 F. Supp. 2d 129, 150 (D.D.C. 2013) (“[P]rotected activity
encompasses . . . the filing of both informal and formal EEO complaints.”).
8
Plaintiff’s meeting with Ionta to discuss her low performance evaluation for the 2019 Fiscal Year does not constitute
protected activity. ECF No. 17-2 at 4. There is no indication that Plaintiff “oppose[d] any discrete practice that [she]
reasonably could have believed discriminated on the basis of race, color, religion, sex, or national origin” during that
meeting. Morris v. McCarthy, 825 F.3d 658, 673 (D.C. Cir. 2016).
21
2. Adverse Personnel Action
i. Adverse Action
As to the adverse action element, although Defendants initially argued that none of the
conduct Plaintiff alleged was sufficiently adverse to support her retaliation claims, they then
limited the argument to only her “allegations of various discrete incidents of insults and abuse.”
Compare ECF No. 22-1 at 16–20 with ECF No. 28 at 10. Specifically, Defendants no longer
contend that Plaintiff’s allegations of “lower review scores, requiring her to work on off days
without compensation, limiting core duties, and curtailed communication with coworkers” are
sufficiently adverse to support a retaliation claim. ECF No. 28 at 9–10. So, what remains are
Plaintiff’s allegations that her supervisor “yelled at [her],” “insulted her,” “gave her unreasonable
deadlines and told her she did not do analysis,” “was greatly disrespectful to [her],” “assigned
impossible deadlines,” “commented about how the Plaintiff needs to manage time better,” “failed
to provide clear communications,” “rudely cut her off,” “disparaged [her],” “embarrassed her in
front of co-workers,” and “undeservedly gave praise to co-workers.” Id. Defendants say these
actions are not sufficiently adverse and thus are not actionable under Title VII’s antiretaliation
provision. 9 ECF No. 22-1 at 16–20; ECF No. 28 at 9–11. In reply, Plaintiff does not specifically
explain why these incidents are sufficiently adverse to support her retaliation claims; she concedes
that Title VII and the ADEA “do not impose a civility standard” but asserts that “pervasive hostility
is recognized as adverse.” ECF No. 27 at 5–6. She also argues that her supervisor’s “lack of clear
communication” was meant to “set[] up an employee to fail.” Id. at 6. Defendant has the better
9
Defendants also argued that these actions are not sufficiently adverse to support Plaintiff’s discrimination claims,
ECF No. 28 at 9–10, an issue the Court does not reach because her discrimination claims are otherwise subject to
dismissal for failure to provide sufficient factual allegations to support a plausible inference of race, gender or age
discrimination. See supra sections III.A–C.
22
of the argument, and the Court finds that much of Plaintiff’s retaliation claim warrants dismissal
as being insufficiently adverse.
In the retaliation context, an adverse action is one that is “harmful to the point that [the
employer’s action] could well dissuade a reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). Notably,
this standard “involve[s] something short of what would ordinarily be considered a ‘personnel
action’ (e.g., denial of promotion, discharge, salary reduction),” in the discrimination context.
Rattigan v. Gonzales, 503 F. Supp. 2d 56, 75 (D.D.C. 2007); see also Chambers, 35 F.4th at 876
(“Unlike the antidiscrimination provision, the antiretaliation provision . . . prohibits even
retaliatory actions that do not affect the terms, conditions, or privileges of employment, for
example, an employer making a false criminal charge against an employee who had complained
of discrimination, or a law enforcement agency refusing to investigate death threats made against
an employee who had complained of discrimination.”) (internal citations omitted). However,
actionable retaliation claims “are [still] limited to those where an employer causes ‘material
adversity,’ not ‘trivial harms,’” Wiley v. Glassman, 511 F.3d 151, 161 (D.C. Cir. 2007) (quoting
Burlington N., 548 U.S. at 68), a principle left undisturbed by the D.C. Circuit’s recent en banc
decision in Chambers overturning the “objectively tangible harm” requirement previously
applicable to discrimination claims. 10
10
Chambers is careful to make clear it does not overrule any D.C. Circuit precedent on Title VII retaliation claims.
See Chambers, 35 F.4th at 876–77 (distinguishing discrimination and retaliation claims and explaining that the
“considerations” that led the Supreme Court in Burlington Northern to impose a “materially adverse” requirement on
Title VII retaliation claims do not “appl[y] to the antidiscrimination provision”); see also id. at 874 (“[T]he question
before us, put in terms of the relevant statutory text, is whether an employer that denies an employee’s request for a
job transfer because of her sex (or another protected characteristic) ‘discriminate[s] against’ the employee with respect
to the ‘terms, conditions, or privileges of employment.’” (quoting 42 U.S.C. § 2000e-2(a)(1))); Harbour v. Univ. Club
of Washington, No. 21-cv-2047, 2022 WL 2304033, at *6 n.4 (D.D.C. June 27, 2022) (noting that Chambers
“expressly distinguished discrimination and retaliation claims—in effect preserving case law indicating that a purely
lateral transfer could not be a materially adverse event for the purposes of the latter”). Thus, the Court perceives
nothing in Chambers that would impact the analysis of Plaintiff’s Title VII retaliation claim.
23
Here, that “material adversity” retaliation standard bars Plaintiff’s retaliation claims arising
from the multiple incidents of insults and other verbal abuse she claims her supervisor hurled at
her in 2020. Yelling, rude comments, disparaging remarks, and statements that embarrass a
claimant in front of coworkers are, even though uncivil and objectionable, not actionable bases for
Title VII retaliation claims. See, e.g., Howard v. Kerry, 85 F. Supp. 3d 428, 435 (D.D.C. 2015)
(dismissing Title VII retaliation claim in part because supervisor’s yelling “in an intimidating
fashion” did not rise to the level of adverse action); Koch v. Schapiro, 699 F. Supp. 2d 3, 14
(D.D.C. 2010) (dismissing Title VII retaliation claims premised on a supervisor’s episode of
yelling at the plaintiff); see also Rasko v. New York City Admin. for Children’s Servs., 734 F.
App’x 52, 55–56 (2d Cir. 2018) (affirming the district court’s dismiss of Title VII retaliation claims
and finding that “[plaintiff’s] complaints” about a supervisor’s “rude” behavior “are nothing more
than petty slights, if they are slights at all” and did not constitute adverse action); Cepada v. Bd. of
Educ. of Baltimore Cty., 814 F. Supp. 2d 500, 515 & n.25 (D. Md. 2011) (dismissing Title VII
retaliation claims and holding that being “yelled at” and “criticized” did not constitute adverse
employment actions under the more lenient standard for such actions applied to such claims). So,
Plaintiff’s claims that her supervisor “yelled at [her],” “insulted her,” “was greatly disrespectful to
[her],” “commented about how the Plaintiff needs to manage time better,” “rudely cut her off,”
“disparaged [her],” “embarrassed her in front of co-workers,” and “undeservedly gave praise to
co-workers” cannot sustain retaliation claims under Title VII. See, e.g., Baloch v. Kempthorne,
550 F.3d 1191, 1199 (D.C. Cir. 2008) (finding that “alleged profanity-laden yelling . . . did not
meet the requisite level of regularity or severity to constitute material adversity for purposes of a
retaliation claim”).
24
The same result holds for Plaintiff’s allegations that her supervisor “gave her unreasonable
deadlines” and “impossible deadlines” and “failed to provide clear communications.” To be sure,
“frequently tightening deadlines . . . can be considered materially adverse action” that would
support a Title VII retaliation claim. Allen v. Napolitano, 774 F. Supp. 2d 186, 203 (D.D.C. 2011).
Here, however, Plaintiff’s allegations of “unreasonable” and “impossible” deadlines are
undetailed, vague, and—most importantly—do not describe pervasive assignment of such work.
Not only does she fail to explain why the deadlines at issue were “unreasonable” or “impossible,”
but there is only one, specific day on which Plaintiff alleges she was given such assignments. ECF
No. 17-2 at 5–6 (alleging that, on July 14, 2020, Hubbard “gave [Plaintiff] unreasonable
deadlines”). So, because Plaintiff has “not alleged that meeting her deadlines was often
impossible, that her workload increased dramatically or that she was buried in work,” the “claim
is not sufficient to qualify as a materially adverse action” such that it would dissuade a reasonable
employee from engaging in protected conduct. See Allen, 774 F. Supp. 2d at 203 (dismissing Title
VII retaliation claim premised on plaintiff “receiv[ing] unreasonable deadlines for completing
time-sensitive assignments”); see also Green v. Mayorkas, No. 18-cv-2589, 2021 WL 5564650, at
*5 (D.D.C. Nov. 29, 2021) (explaining, in the summary judgment context, that “[e]ven in the
broader context of a retaliation claim, ‘unreasonable deadlines and reporting requirements’ . . . are
‘unlikely to prevent a reasonable employee from engaging in protected activity and therefore do[ ]
not amount to . . . materially adverse action[s].’” (third, fourth, and fifth alterations in original)
(quoting Morales v. Gotbaum, 42 F. Supp. 3d 175, 198 (D.D.C. 2014))).
Accordingly, Plaintiff’s claims of retaliation based on yelling, insults, assignment of
unreasonable and impossible deadlines, disrespectful, disparaging, and rude conduct, comments
regarding her time management, and communication failures is dismissed.
25
ii. Exhaustion
Defendants further contend that any retaliation claims arising from events after September
17, 2020, should be dismissed because Plaintiff has not administratively exhausted them. ECF
No. 22-1 at 13–16. This covers Plaintiff’s allegations concerning her leave of absence and the
allegedly retaliatory treatment she received after returning to work, including, as explained,
restricting her work and communications with colleagues and requiring supervisor approval on
emails; accusations of aggressive behavior; poor performance review for 2021; and failure to
timely approve leave requests. Id.; see also ECF No. 17-2 at 7–9. September 17 is the operative
date because FEMA “accepted twelve separate claims for investigation into charges of
discrimination and retaliation,” the last of which occurred on September 17. ECF No. 22-1 at 14;
see also ECF No. 17-4 at 1–3. Because Plaintiff has not shown that any retaliatory conduct that
allegedly occurred after that date has been subject to EEO process, Defendants urge the Court to
dismiss the discrimination and retaliation claims arising from that conduct. ECF No. 22-1 at 13–
16. Defendants rely on what they characterize as the “majority” view in this District that
“exhaustion [is required] for all discrete acts of discrimination and retaliation ‘regardless of any
relationship that may exist between those discrete claims and any others.’” Id. at 15 (quoting
Moran v. Barr, No. 18-cv-1986, 2020 WL 4286825, at *10 (D.D.C. July 27, 2020)). They also,
however, acknowledge the minority view that “there is no separate exhaustion requirement if
subsequent alleged retaliatory acts are ‘of a like kind to the retaliatory acts alleged in the EEOC
charge such that they would have come within the scope of any investigation that reasonably could
have been expected to result from [the] initial charge of discrimination.’” Id. at 15 n.2 (quoting
Hazel v. Wash. Metro. Area Transit Auth., No. 02-cv-1375, 2006 WL 3623693, at *5, 8 (D.D.C.
Dec. 4, 2006)).
26
Yet despite requesting and receiving multiple extensions of time to file an opposition,
Plaintiff does not truly address these arguments head-on. Instead, she argues that the less exacting
standard of exhaustion set forth in the minority position articulated above applies to her hostile
work environment claims; namely, that all allegations that “are like or reasonably related to the
allegations of the [EEO] charge and growing out of such allegations” should be treated as
exhausted. ECF No. 27 at 3–5. Under that standard, she contends, her technically-unexhausted
hostile work environment claims should be allowed to move forward because the allegations
arising after September 17 are “related to the hostility and treatment Plaintiff detailed in her EEO
complaint.” Id. at 4. That may be so, but Defendants never contended that Plaintiff’s hostile work
environment claim was unexhausted. They pressed that argument only against her discrimination
and retaliation claims. ECF No. 22-1 at 13–16; ECF No. 28 at 6–9 (“Defendants did not argue
that Plaintiff had failed to exhaust her hostile work environment claims; rather, they argued that
her discrimination or retaliation claims based on discrete conduct that occurred after September
17, 2020, should be dismissed due to her failure to administratively exhaust those claims.”). The
question, then, is whether Plaintiff’s discrimination and retaliation claims arising after September
17, 2020, were exhausted—yet Plaintiff does not directly grapple with that issue. In fact, the only
on-point response to Defendants’ arguments the Court discerns in Plaintiffs’ opposition is her
restatement of the minority view articulated above (“For exhaustion purposes, the EEO charge
encompasses claims that are like or reasonably related to the allegations of the charge and growing
out of such allegations.”), but she does not explain why it should be applied over the majority
approach or its application to her retaliation claims. ECF No. 27 at 3–4. For those reasons,
Defendants say Plaintiff has conceded the exhaustion argument. The Court agrees.
27
As the Court has explained previously, “‘when a [litigant] files a response to a motion to
dismiss but fails to address certain arguments made by the defendant, the court may treat those
arguments as conceded.’” Holt v. Walsh Grp., 316 F. Supp. 3d 274, 278 (D.D.C. 2018) (quoting
Lockhart v. Coastal Int’l Sec., 905 F. Supp. 2d 105, 118 (D.D.C. 2012)); see also Colindres v. U.S.
Dep’t of State, No. 21-cv-348, 2021 WL 5906041, at *4 (D.D.C. Dec. 14, 2021) ([B]y failing to
address [an issue raised in the defendant’s motion to dismiss] in their opposition,” plaintiffs
“conceded the [defendant’s] argument.”), appeal docketed, No. 22-5009 (D.C. Cir. Jan. 20. 2022);
Gable v. United States, No. 12-cv-1634, 2020 WL 8186344, at *3 (D.D.C. Feb. 28, 2020) (similar),
report and recommendation adopted, 2020 WL 6392761 (D.D.C. Nov. 2, 2020). Further, as
Defendants set forth, “‘[p]erfunctory and undeveloped arguments, and arguments that are
unsupported by pertinent authority, are deemed waived.’” Cox v. Nielsen, No. 16-cv-1966, 2019
WL 1359806, at *14 (D.D.C. Mar. 26, 2019) (quoting Johnson v. Panetta, 953 F. Supp. 2d 244,
250 (D.D.C. 2013)). And a party may “forfeit [an argument] because [the party] does not further
develop it (or even mention it again) after [a] ‘single, conclusory statement.’” United States v.
TDC Mgmt. Corp., 827 F.3d 1127, 1130 (D.C. Cir. 2016) (quoting Bryant v. Gates, 532 F.3d 888,
898 (D.C. Cir. 2008)).
Here, Plaintiff failed to address Defendants’ core argument, which is that certain of her
retaliation and discrimination claims are unexhausted and therefore must be dismissed. ECF No.
22-1 at 13–16; ECF No. 28 at 6–9. To be sure, she reiterates this District’s minority position that
even exhausted retaliation claims can proceed so long as they “are like or reasonably related to the
allegations of the [EEO] charge and growing out of such allegations,” but she does not further
develop that argument with respect to the retaliation claims. ECF No. 27 at 3–4. Instead, she
applies that standard to her hostile work environment claim—an entirely distinct issue and not
28
responsive to Defendants’ contentions. Id. Merely citing a disputed legal standard and then failing
to apply it to the claims at issue is precisely the type of “perfunctory and undeveloped” argument
courts deem waived. Cf. Stewart v. Gracik, No. 10-cv-698, 2011 WL 4559179, at *14 (W.D.
Mich. Aug. 26, 2011) (finding that “merely citing [a] legal standard” and making conclusory
arguments “without reference to the applicable law or facts at issue in this case” is not sufficient
to “adequately raise [an] issue”), report and recommendation adopted, 2011 WL 4571871 (W.D.
Mich. Sept. 30, 2011). Thus, because Plaintiff did not meaningfully respond to Defendants’
exhaustion argument with respect to her retaliation claims, the Court will deem the argument
conceded. So, Plaintiff’s retaliation claims arising from her medical leave of absence from
September 2020 to March 2021 and the conduct she was allegedly subjected to following her return
to work are dismissed.
In any event, Defendants are correct on the merits of their exhaustion argument. As they
lay out, “the majority of courts in this jurisdiction now require plaintiffs to exhaust each discrete
claim of retaliation.” Jones v. Granholm, No. 20-cv-472, 2021 WL 2530677, at *7 (D.D.C. June
21, 2021); see also Moran, 2020 WL 4286825, at *10 (collecting cases); Rashad v. Washington
Metro. Area Transit Auth., 945 F. Supp. 2d 152, 166 (D.D.C. 2013) (“Most judges in this district
have held that plaintiffs alleging discrete acts of discrimination or retaliation ‘must exhaust the
administrative process regardless of any relationship that may exist between those discrete claims
and any others.’” (quoting Coleman–Adebayo v. Leavitt, 326 F. Supp. 2d 132, 137–38 (D.D.C.
2004))). 11 While the D.C. Circuit has on several occasions declined to expressly weigh-in on the
11
Then-Judge Ketanji Brown Jackson helpfully surveyed the divide on the exhaustion issue in Mount v. Johnson, 36
F. Supp. 3d 74, 84–86 (D.D.C. 2014).
29
issue, 12 this Court finds the majority view more concordant with the Supreme Court’s articulation
in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) that “each retaliatory adverse
employment decision constitutes a separate actionable ‘unlawful employment practice.’” Further,
“[r]equiring a plaintiff to exhaust each discrete claim of discrimination or retaliation ‘comports
with the purpose of the exhaustion doctrine to give the agency notice of a claim and [the]
opportunity to handle it internally and ensures that only claims plaintiff has diligently pursued will
survive.’” Romero–Ostolaza v. Ridge, 370 F. Supp. 2d 139, 149 (D.D.C. 2005) (second alteration
in original) (quoting Velikonja v. Mueller, 315 F. Supp. 2d 66, 74 (D.D.C. 2004)). So, and contrary
to Plaintiff’s contentions, she was required to administratively exhaust each discrete claim of
retaliation. Here, however, Defendants say there is no evidence that Plaintiff presented her claims
concerning her medical leave from September 2020 to March 2021 or the allegedly retaliatory
conduct she endured upon her return to an EEO counselor for investigation. ECF No. 22-1 at 14–
16. Plaintiff does not dispute that in her papers. In fact, a review of the EEO investigation
documents Plaintiff attached to her Amended Complaint show that the last discrete act of
retaliation accepted by FEMA occurred on September 17, 2020—the day before Plaintiff began
her leave. Accordingly, her retaliation claims arising from her medical leave and subsequent return
to work are dismissed. 13
12
See, e.g., Haynes v. D.C. Water & Sewer Auth., 924 F.3d 519, 527 n.1 (D.C. Cir. 2019); Payne v. Salazar, 619 F.3d
56, 65 (D.C. Cir. 2010) (explaining that the court “need not decide whether Morgan” now requires individualized
exhaustion of discrete claims).
13
The Court’s findings on exhaustion apply equally to the discrimination claims contained in Counts I–III. Thus,
even though the discrimination claims fail for other, independently dispositive reasons, any claim of discrimination
based on conduct occurring after September 17, 2020, is unexhausted and must be dismissed for that reason, too. See,
e.g., Gomez v. McDonough, No. 21-cv-1685, 2022 WL 1471375, at *6 (D.D.C. May 10, 2022) (finding that the
plaintiff failed to exhaust Title VII discrimination claims where, as here, “plaintiff nowhere suggests that he sought
[EEO] counseling within the requisite 45 days or at any other time” concerning the conduct he alleged was
discriminatory).
30
So, at this juncture, the following allegations remain cognizable in the Title VII retaliation
claim: the negative performance evaluation from February 2020; the allegation that Plaintiff was
required to work on scheduled days off with no pay and work through lunch breaks; the alleged
denial of requests for leave; the alleged restrictions on Plaintiff’s work duties; the curtailed
communications with coworkers; and the threatened “worse consequences” if Plaintiff did not sign
a performance improvement plan.
3. Causal Link
As to the causal link between the cognizable adverse action and her protected activity,
Plaintiff relies merely on the temporal proximity between the two. See ECF No. 27 at 6–8
(“Plaintiff lodged a good faith complaint and suffered hostility on the heels of the agency
acknowledging [her] complaint . . . .”). The causation prong of the pleading standard “may be
established if the plaintiff alleges ‘that the employer had knowledge of the protected activity and
that the adverse action occurred soon thereafter.’” Greer v. Bd. of Trs. of Univ. of D.C., 113 F.
Supp. 3d 297, 311 (D.D.C. 2015) (quoting Marshall v. Potter, 634 F. Supp. 2d 66, 73 (D.D.C.
2009)). Courts have held that “mere temporal proximity” between a protected activity and an
adverse employment action can be sufficient evidence of causality, but have also “uniformly h[eld]
the temporal proximity must be ‘very close.’” Keys, 37 F. Supp. 3d at 372 (quoting Clark Cty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). “When relying on temporal proximity alone to
demonstrate causation, there is no bright-line rule, although three months is perceived as
approaching the outer limit.” Greer, 113 F. Supp. 3d at 311; see also Mayers v. Laborers’ Health
& Safety Fund of N. Am., 478 F.3d 364, 369 (D.C. Cir. 2007) (per curiam) (noting that the Supreme
Court in Breeden cited with approval circuit cases accepting temporal proximity of three and four
months as evidence of causation), abrogated on other grounds by Green v. Brennan, 578 U.S. 54731
(2016); Rattigan, 503 F. Supp. 2d at 77 (“This Court has often followed a three-month rule to
establish causation on the basis of temporal proximity alone.”). “For purposes of analyzing
temporal proximity, the courts in this Circuit look at not only the filing of the complaint, but also
subsequent protected activity.” Turner v. U.S. Capitol Police Bd., 983 F. Supp. 2d 98, 108 n.5
(D.D.C. 2013), aff’d, 653 F. App’x 1 (D.C. Cir. 2016).
In this case, Plaintiff’s first cognizable allegation of adverse employment action—the
“undeserved” low performance evaluation in February 2020—predated her initial protected
activity, which was the EEO counseling session on March 9, 2020. ECF No. 17-2 at 2, 4. Thus,
the low performance evaluation cannot form the basis of a retaliation claim. See, e.g., Peace-
Wickham v. Walls, 409 F. App’x 512, 522–23 (3d Cir. 2010) (holding that plaintiff “cannot
establish a sufficient causal relationship between her protected activities” and adverse employment
action because the adverse action “predated all of her protected activities”); Watkins v. Tex. Dep’t
of Crim. Just., 269 F. App’x 457, 461 (5th Cir. 2008) (“[M]any of the actions [plaintiff] complains
of cannot be retaliatory because they predate his participation in any protected activity.”).
On the other hand, the Court finds that the temporal proximity between Plaintiff’s protected
activity and the remainder of the cognizable adverse employment action is sufficient—barely—to
make out a prima facie case of retaliation. As explained, the initial protected activity came on
March 9, 2020, and the next cognizable allegation of adverse action falls on June 5, 2020, when
Plaintiff alleges that Hubbard “required [her] to work on scheduled days off (no pay) and [] to
work through lunch.” ECF No. 17-2 at 2, 4. Although that is pushing up against the edge of the
three-month window courts in this Circuit have characterized as “the outer limit” of temporal
causation, the Court—drawing, as it must, “all inferences in favor of the nonmoving party,”
Harper Woods, 589 F.3d at 1298—finds that Plaintiff has sufficiently alleged a causal link between
32
her protected activity on March 9, 2020, and the adverse action on June 5, 2020. Her next protected
activity occurred on June 16, 2020, when she filed a formal EEO complaint. ECF No. 17-2 at 2;
ECF No. 17-4 at 1. That was followed by a string of alleged adverse actions beginning on June
24 (Hubbard failed to “timely” meet with Plaintiff “to discuss her performance plan for fiscal year
2020”) and lasting throughout the summer (e.g., curtailing Plaintiff’s work responsibilities and
denying requests for leave) until mid-September, when she took leave. ECF No. 17-2 at 4–7.
Those allegations fall within the three-month window courts in this Circuit have considered to be
appropriate for establishing causation by temporal proximity. Thus, the Court finds that Plaintiff
has sufficiently pled a causal connection between her protected activity and the remainder of the
cognizable adverse employment action—that is, the allegations that she was: required to work on
days off and through lunch; that her requests for leave were denied; that her work duties and
communications with co-workers were restricted and curtailed; and was threatened with other
reprisals if she did not sign a performance improvement plan. Compare Walden v. Patient-
Centered Outcomes Rsch. Inst., 177 F. Supp. 3d 336, 344 (D.D.C. 2016) (finding that a “gap of
approximately three months between” the protected activity and the allegedly adverse action “is
sufficient to establish temporal proximity” at the motion to dismiss phase) with Allen, 774 F. Supp.
2d at 201 n.2 (finding that gap of six months between the protected conduct and adverse
employment action was “simply too long to permit an inference of causation from temporal
proximity”).
* * * * *
Here is where that leaves things: The race, gender, and age discrimination claims set forth
Counts I, II, and III, respectively, do not adequately allege a link between any adverse employment
action and any discriminatory animus and are therefore dismissed. As to Count IV, Plaintiff’s
33
retaliation claim based on the insults and verbal harassment she allegedly suffered; the
“unreasonable” and “impossible” work deadlines she was assigned and the “lack of clear
communication” provided by her supervisor; her leave spanning September 2020–March 2021 and
the conduct she was allegedly subjected to upon her return; and the negative performance
evaluation from February 2020—including the associated loss of a bonus—are also dismissed.
What remains are Plaintiff’s retaliation claims based on her allegations that: her supervisor
required her to work on scheduled days off with no pay and work through lunch breaks on or about
June 5, 2020 (ECF No. 17-2 at 4), denied her requests for leave between July and September 2020
(id.), restricted Plaintiff’s work duties between July and September 2020 (id. at 4–5), curtailed her
communications with coworkers between July and September 2020 (id.), and threatened “worse
consequences” if Plaintiff did not sign a performance improvement plan on or about August 31,
2020 (id. at 6). Retaliation claims based on that conduct may proceed and are not dismissed.
The Court now turns to Plaintiff’s Title VII hostile work environment claim (Count V).
E. Title VII Hostile Work Environment Claim (Count V)
The final count of Plaintiff’s Amended Complaint is a Title VII hostile work environment
claim. The allegation must be dismissed because the conduct Plaintiff says was visited on her by
her supervisors is not severe or pervasive enough to sustain such a claim.
Claims of a hostile work environment will survive a motion to dismiss only if the pleadings
allege facts capable of supporting plausible inferences that
(1) [the plaintiff] is a member of a protected class; (2) [the plaintiff] was subjected
to unwelcome harassment; (3) the harassment occurred because of the plaintiff’s
protected status; (4) the harassment was severe to a degree which affected a term,
condition, or privilege of employment; and (5) the employer knew or should have
known about the harassment, but nonetheless failed to take steps to prevent it. 14
14
Again, nothing in Chambers alters the pleading requirements for Title VII hostile work environment claims. Indeed,
and just as with Title VII retaliation claims, Chambers distinguished discrimination claims from allegations of a hostile
34
Peters v. District of Columbia, 873 F. Supp. 2d 158, 189 (D.D.C. 2012); see also Baloch, 550 F.3d
at 1201 (noting that, to prevail on a Title VII hostile work environment claim, “a plaintiff must
show that his employer subjected him 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’” (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)));
Laughlin v. Holder, 923 F. Supp. 2d 204, 219–20 (D.D.C. 2013) (dismissing hostile work
environment claim where plaintiff’s complaint contained “no allegations of discriminatory or
retaliatory ‘intimidation, ridicule, [or] insult’ in her day-to-day work environment” (alteration in
original) (quoting Harris, 510 U.S. at 21)). This analysis requires the Court to look “‘at all the
circumstances,’ including the ‘frequency of the [alleged] discriminatory 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.’” Vickers v. Powell, 493 F.3d 186,
197 (D.C. Cir. 2007) (quoting Farragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)).
The Court must “assess the timeline of events as a whole,” to determine whether, in totality, the
facts may plausibly support a conclusion that the conduct “alter[ed] the conditions of [her]
employment and create[d] an abusive working environment.” Brooks v. Grundmann, 748 F.3d
1273, 1276 (D.C. Cir. 2014) (second alteration in original) (quoting Ayissi-Etoh v. Fannie Mae,
712 F.3d 572, 577 (D.C. Cir. 2013)). “Generally speaking, ‘[u]se of the same discrete acts, upon
which the plaintiff bases h[er] discrimination and retaliation claims, to support a hostile work
environment claim is disfavored.’” Adams v. U.S. Dep’t of the Navy, No. 17-cv-1618, 2020 WL
work environment, noting that cases involving the latter “have no bearing on a case in which an employer discriminates
against an employee with respect to the actual terms or conditions of employment.” Chambers, 35 F.4th at 877–78
(explaining that, unlike Title VII discrimination cases, “[t]he thrust of the hostile work environment cases is that an
abusive working environment amounts to a ‘constructive alteration in the terms or conditions of employment’ only if
harassment is severe or pervasive” (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998))).
35
2308581, at *6 (D.D.C. May 8, 2020) (alterations in original) (quoting Townsend, 236 F. Supp. 3d
at 312)). More, and contrary to Plaintiff’s desired standard, the Court is not at this stage in the
proceedings required to “take the allegation by the Plaintiff that the cumulative effect of the
[discrete] acts she endured was hostile.” ECF No. 27 at 9. Rather, the Court must take the
allegations that certain conduct occurred as true, and then determine whether those allegations
contain enough factual material to raise a plausible inference that she was subjected to a hostile
work environment. See, e.g., Iqbal, 556 U.S. at 678; Hemp Indus. Ass’n., 36 F.4th at 288
(“‘[C]onstru[ing] [a] complaint liberally in the plaintiff’s favor’ does not entail
‘accept[ing] inferences unsupported by facts or legal conclusions cast in the form of factual
allegations.’” (quoting Harper Woods., 589 F.3d at 1298)).
The D.C. Circuit has explained that severity and pervasiveness “are complementary factors
and often go hand-in-hand, but a hostile work environment claim c[an] be satisfied with one or the
other.” Brooks, 748 F.3d at 1276. Thus, Plaintiff must either allege a connected series of incidents
that are “‘sufficiently continuous and concerted’ to be considered pervasive” or set forth facts
showing that “a single episode is ‘severe enough’ to establish a hostile working environment.”
Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 318 (2d Cir. 1999) (internal citations omitted)
(first quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997), and then quoting
Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999)); Cerros v. Steel
Techs., Inc., 398 F.3d 944, 951 (7th Cir. 2005) (“[P]ervasiveness and severity ‘are, to a certain
degree, inversely related; a sufficiently severe episode may occur as rarely as once, while a
relentless pattern of lesser harassment that extends over a long period of time also violates the
[antidiscrimination] statute[s].’” (quoting Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1047
(7th Cir. 2002))). “[T]he standard for severity and pervasiveness is . . . an objective one.” Baird
36
v. Gotbaum, 792 F.3d 166, 172 (D.C. Cir. 2015) (emphasis omitted). That is, “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) (quoting Harris, 510 U.S. at 23)).
Here, none of Plaintiff’s claims of discriminatory and retaliatory treatment are sufficiently
severe—either individually or collectively—or pervasive to support her hostile work environment
claim. To start, Plaintiff complains of a number of work-related actions by her supervisors,
including restricting her responsibilities and limiting the meetings she could attend and the
colleagues she could speak with (ECF No. 17-2 at 4–5, 8); lowering her performance evaluations
(id. at 4, 8); assigning her the same work goals as a prior year (id. at 8); imposing supervisory
requirements on her emails and her computer use (id.); threatening “worse consequences” if
Plaintiff did not sign a performance improvement plan (id. at 6); providing only negative feedback
during evaluations (id.); imposing “unreasonable” and “impossible” deadlines (id. at 5–6); failing
to “provide clear communications” or “timely meet” with her to discuss her performance plan for
an upcoming year (id. at 4, 6); denial of leave (id. at 4, 9); and being required to work on days off
and through lunch breaks (id. at 4). But courts in this Circuit “typically do not find these types of
‘work-related actions by supervisors’ to be sufficient for a hostile work environment claim.”
Munro v. LaHood, 839 F. Supp. 2d 354, 366 (D.D.C. 2012) (dismissing Title VII hostile work
environment claims predicated on, similar to this case, “placement on the [performance
improvement plan]” and “receipt of unfavorable feedback”). That is because actions of the type
Plaintiff alleges, including the exclusion from work teams, “the removal of important assignments,
lowered performance evaluations, and close scrutiny of assignments by management [cannot] be
characterized as sufficiently intimidating or offensive in an ordinary workplace context.”
37
Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (dismissing Title VII hostile work
environment claims premised on, similar to here, “disparaging remarks, criticisms of [plaintiff’s]
work, and other negative comments”); see also Massaquoi v. District of Columbia, 81 F. Supp. 3d
44, 54 & n.10 (D.D.C. 2015) (dismissing Title VII hostile work environment claims where, as
here, the plaintiff reported being “stripped of many of the duties of his position”).
The imposition of difficult workplace deadlines or threats of other personnel action are
likewise insufficient to transform an uncivil work environmental into a hostile one. See, e.g.,
Morales v. Gotbaum, No. 10-cv-221, 2012 WL 13036867, at *10 (D.D.C. Apr. 17, 2012)
(dismissing Title VII hostile work environment claims premised on, among other things,
“personnel disputes . . . regarding work deadlines, the content of assignments, and work reports”);
Newton v. Off. of the Architect of the Capitol, 839 F. Supp. 2d 112, 117 (D.D.C. 2012) (dismissing
Title VII hostile work environment claims and noting that “‘threatened’ job related consequences
for the employee’s refusals to meet workplace expectations did not demonstrate a hostile work
environment pervaded by discrimination”). The same goes for Plaintiff’s claims of denial of leave,
which apparently happened on more than one occasion. See Nurriddin, 674 F. Supp. 2d at 93–94
(granting a motion to dismiss Title VII hostile work environment claim premised in part on
repeated denial of leave requests). On the other hand, Plaintiff’s allegations that she was asked to
work on scheduled days off and through a lunch break are confined to a single day in June 2020.
See ECF No. 17-2 at 4 (“On or about June 5, 2020, the Plaintiff’s new supervisor, Pamela Hubbard,
required the Plaintiff to work on scheduled days off (no pay) and had to work through lunch.”).
Such claims are neither sufficiently severe or pervasive to bolster her hostile work environment
claim. See, e.g., Briscoe v. Costco Wholesale Corp., 61 F. Supp. 3d 78, 88 (D.D.C. 2014)
(dismissing Title VII hostile work environment claim because the employer’s “denial of the
38
requests for days off . . . did not create an objectively hostile environment as a matter of law”);
Lancaster v. Vance-Cooks, 967 F. Supp. 2d 375, 391 (D.D.C. 2013) (dismissing Title VII hostile
work environment claim premised in part on plaintiff’s claim, similar to this case, that he was
“denied a lunch break once”); see also Schmitz v. Walgreens Co., No. 17-cv-80478, 2017 WL
9831637, at *2 (S.D. Fla. Nov. 28, 2017) (dismissing Title VII hostile work environment claims
and concluding that “[a] denial either of breaks, days off and managerial training does not rise to
the level of a hostile work environment”). Finally, being assigned the same work goals as a prior
year and one’s supervisor failing to communicate clearly or timely meet with an employee to
discuss future work is assuredly not the type of “severe” conduct actionable in a Title VII suit.
Again, those “work-related actions by supervisors” are simply not sufficient to make out a hostile
work environment claim. Munro, 839 F. Supp. 2d at 366. For these reasons, the work-related
conduct Plaintiff alleges cannot sustain her hostile work environment claim. 15
Further, Plaintiff also alleges a number of incidents of verbal harassment and generally
rude and “greatly disrespectful” conduct by her supervisors, including episodes where her
supervisor cut her off in conversations, disparaged her in front of colleagues, and “undeservedly
gave praise to co-workers in front of Plaintiff” to humiliate her. ECF No. 17-2 at 5–6. She also
says she was accused of being aggressive. Id. at 8. These, too, are not of the severity required to
sustain a hostile work environment claim, and courts in this Circuit have so held. Indeed, “the
15
The Court acknowledges that some courts outside this Circuit have found that “an employer may create a hostile
work environment by ‘deliberate sabotage of a victim’s work performance, such as simply assigning her task[s] that
are impossible to accomplish.’” Goode v. Camden City Sch. Dist., No. 16-cv-3936, 2019 WL 6243156, at *19 (D.N.J.
Nov. 22, 2019) (quoting Cardenas v. Massey, 269 F.3d 251, 262 n.8 (3d Cir. 2001)). In Cardenas, for example, the
court found that plaintiff was set up to fail when he was given contradictory instructions and berated when he failed
to comply, and was therefore subjected to a hostile work environment. 269 F.3d at 262; see also ECF No. 27 at 6
(alleging that Plaintiff’s supervisor’s “fail[ure] to provide clear and consistent communications” created a work
environment “established for the purpose of setting up an employee to fail”). These cases are not controlling here
and, in any event, run headlong into the law of this Circuit, which, as explained, generally holds that “work-related
actions by supervisors” are “typically” not “sufficient for a hostile work environment claim.” Munro, 839 F. Supp.
2d at 366.
39
D.C. Circuit has held that workplace tribulations, such as ‘petty insults, vindictive behavior, and
angry recriminations[,]’ are not actionable under Title VII.” Dieng v. Am. Insts. for Rsch. in Behav.
Scis., 412 F. Supp. 3d 1, 15 (D.D.C. 2019) (alteration in original) (quoting Brooks, 748 F.3d at
1277–78). So, the rude and disrespectful behavior Plaintiff complains of also does not advance
her hostile work environment claim. See, e.g., Dieng, 412 F. Supp. 3d at 14 (dismissing Title VII
hostile work environment claims based on “denial of teleworking,” “yelling at [plaintiff] during
staff meetings,” “ignoring [plaintiff] at those meetings,” and “constant questioning of [plaintiff’s]
work”); Nurriddin, 674 F. Supp. 2d at 94–95 (dismissing Title VII hostile work environment
claims premised on, amongst other conduct, disparaging remarks); Singh v. U.S. House of
Representatives, 300 F. Supp. 2d 48, 54–57 (D.D.C. 2004) (dismissing Title VII hostile work
environment claims based on the plaintiff’s allegations that her employer humiliated her at
important meetings, screamed at her in one instance, told her to “shut up and sit down” in one
instance, and was “constantly hostile and hypercritical” did not amount to a hostile work
environment). And as to Plaintiff’s allegation that she was accused of being aggressive, a single
such accusation of misconduct (assuming it is false) is certainly not severe or pervasive enough to
make out a hostile work environment claim. Cf. Bartlette, 208 F. Supp. 3d at 326–27 (“[T]he court
can envision a scenario where constant false accusations of misconduct,” coupled with other
actions, “might be sufficiently severe and pervasive to constitute a hostile working environment.”
(emphasis added)). To be sure, many of Plaintiff’s allegations unfortunately reflect an uncivil
work environment that was no doubt difficult to navigate. But in this jurisdiction, “simply having
a rude, harsh, or unfair boss is not enough for a hostile work environment claim.” Dudley v.
Washington Metro. Area Transit Auth., 924 F. Supp. 2d 141, 171 (D.D.C. 2013).
40
It is also significant here that Plaintiff has attempted to “bootstrap [her] alleged discrete
acts of retaliation into a broader hostile work environment claim”—something courts in this Circuit
“frown on.” Id. at 164 (quoting Baloch v. Norton, 517 F. Supp. 2d 345, 364 (D.D.C. 2007)). More,
and as Defendants point out, courts here and elsewhere have dismissed hostile work environment
claims based on circumstances as or more oppressive than those Plaintiff alleges. See, e.g.,
McCaskill v. Gallaudet Univ., 36 F. Supp. 3d 145, 155 (D.D.C. 2014) (dismissing a hostile work
environment claim based in part on allegations that the plaintiff was “confronted in a very hostile
manner” by a coworker and endured “verbal abuse, condescension, and castigation” at meetings);
Badibanga v. Howard Univ. Hosp., 679 F. Supp. 2d 99, 104 (D.D.C. 2010) (dismissing a hostile
work environment claim where the plaintiff was placed on leave because of a false accusation,
colleagues criticized his accent, he was told that he could easily be replaced with an American,
and his supervisor told him that they would not hire other Africans); see also Baloch, 550 F.3d at
1201 (affirming grant of summary judgment on a hostile work environment claim where defendant
yelled, used profanity, and threatened arrest); George, 407 F.3d at 408, 416–17 (affirming grant
of summary judgment on hostile work environment claim because statements by three employees
over six-month period that plaintiff should “go back where she came from” and separate acts of
yelling did not rise to level of severity necessary to find a hostile work environment).
So, because none of the allegedly discriminatory or retaliatory conduct Plaintiff sets forth
clears the “severe or pervasive” hurdle, the Court will dismiss her hostile work environment claim
(Count V).
41
CONCLUSION
For the reasons set forth herein, Plaintiff’s discrimination claims (Counts I–III) and hostile
work environment claim (Count V) are DISMISSED without prejudice. 16 Her retaliation claim
(Count IV) is DISMISSED IN PART (without prejudice), but her claims that her supervisor
required her to work on scheduled days off with no pay and work through lunch breaks on or about
June 5, 2020 (ECF No. 17-2 at 4), denied her requests for leave between July and September 2020
(id.), restricted Plaintiff’s work duties between July and September 2020 (id. at 4–5), curtailed her
communications with coworkers between July and September 2020 (id.), and threatened “worse
consequences” if Plaintiff did not sign a performance improvement plan on or about August 31,
2020 (id. at 6) may proceed. Accordingly, Defendants’ motion to dismiss is GRANTED IN
PART and DENIED IN PART.
G. Michael Digitally signed by G. Michael
Harvey
Date: August 18, 2022 Harvey Date: 2022.08.18 11:19:32 -04'00'
___________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
16
Although Defendants ask that the Amended Complaint be dismissed with prejudice, see ECF No. 22-1 at 28 and
ECF No. 28 at 17, the Court, in its discretion, will dismiss without prejudice because “the Court does not foreclose
the possibility that Plaintiff[] might be able to state a claim for relief.” Crawford v. Barr, No. 17-cv-798, 2019 WL
6525652, at *4 (D.D.C. Dec. 4, 2019) (dismissing Title VII litigant’s first amended complaint but permitting “one
more opportunity”); see also Dickerson v. District of Columbia, 70 F. Supp. 3d 311, 326 (D.D.C. 2014) (permitting
Title VII litigant to file a second amended complaint).
42