Aldrich v. Burwell , 197 F. Supp. 3d 124 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARION ALDRICH,
Plaintiff,
v. Civil Action No. 15-1662 (JEB)
SYLVIA M. BURWELL, Secretary, United
States Department of Health and Human
Services,
Defendant.
MEMORANDUM OPINION
Plaintiff Marion Aldrich works as a policy analyst in the U.S. Department of Health and
Human Services’ Office of the Assistant Secretary for Preparedness and Response. She is 57
years old and has long been diagnosed with and treated for Attention Deficit Disorder (ADD).
Her otherwise uneventful 20-year stint in government service was upended in February 2012
when she began reporting to a new, younger supervisor, Serina Vandegrift. Plaintiff claims that
Vandegrift, motivated by discriminatory animus given Aldrich’s age and disability, created a
hostile work environment, and discriminated and retaliated against her through a series of
workplace incidents. After pursuing some administrative redress, Plaintiff brought suit here.
The government has now filed a Partial Motion to Dismiss, contending that all of Aldrich’s
harms, taken together, do not constitute a hostile work environment, and that one of the specific
incidents she complains of – a so-called “Leave Restriction” – is not severe enough to count as a
discrete act of discrimination or retaliation. The Court agrees with Defendant’s assessment and
will grant the Motion.
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I. Background
The Court, as it must at this stage, draws the facts from the Complaint. Aldrich, a 57-
year-old Cuban émigré with a master’s degree in public health, began working as a public-health
advisor for the Centers for Disease Control and Prevention in 1992. See Compl., ¶¶ 7-9. For the
next 20 years, she had a relatively uncontroversial civil-service career. Id., ¶ 12. In February
2012, while Plaintiff was working as a policy analyst in the Executive Secretariat for the Office
of the Assistant Secretary for Preparedness and Response (ASPR), Vandegrift became that
office’s Director and, consequently, Aldrich’s boss. Id., ¶¶ 9-11.
Vandegrift was “much younger [and] less experienced” than Plaintiff, id., ¶ 9, which
apparently generated some resentment towards Aldrich, given the latter’s “greater age and
experience.” Id., ¶ 25. “[W]ithin months of working under Vandegrift,” Plaintiff began to
experience “abusive and discriminatory conduct.” Id., ¶ 12. She does not elaborate what
conduct that was, but notes that in July 2012, she filed an informal complaint with the
Department’s Equal Employment Opportunity (EEO) office, describing “a pattern of rude and
demeaning treatment [by Vandegrift] . . . motivated by unlawful considerations including age.”
Id. Aldrich eventually dropped the complaint in the hopes that “[Vandegrift’s] experience of
being called out for abusive and discriminatory conduct might have a chastening effect on [her]
going forward.” Id., ¶ 20. She does not state whether Vandegrift was ever made aware of this
complaint.
About a month after filing her EEO complaint, Plaintiff in August 2012 requested a
“quiet work space” as an accommodation for her ADD. Id., ¶ 13. She received that
accommodation without much intervention from her employer, as a co-worker who had a quiet
office agreed to swap spaces with her. Id., ¶¶ 14, 19. Almost a year later, however, the whole
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office, in June 2013, had to “move to another building,” at which point Vandegrift “assigned
Aldrich to a noisy cubicle directly across from Vandegrift’s own office, where she could closely
monitor Aldrich and her movements.” Id., ¶ 19. (Aldrich does not allege that she ever formally
voiced her objection to the new cubicle or otherwise told her employer that it no longer
accommodated her disability.)
Plaintiff notes that from roughly late 2012 through 2013, “Vandegrift’s more abusive
conduct did abate for a time.” Id., ¶ 21. “The daily criticism lessened,” and Plaintiff received
what were, in her mind, fair performance appraisals for both 2012 and 2013. Id., ¶¶ 21, 25.
About three months after Aldrich’s successful performance review for 2013, however, the
armistice began to crack. Id. at ¶ 25.
In May 2014, Vandegrift reprimanded Plaintiff for “unacceptable work performance,
failure to follow instructions and failure to submit leave that accurately reflects time away from
the office.” Id., ¶ 26. In addition, Vandegrift claimed that she had “consistently counseled
[Aldrich] on these issues since May 2012, throughout 2013 until the present day.” Id. ¶ 27.
Plaintiff disputes the legitimacy of the “unacceptable work performance” claim, since Vandegrift
“had rated Ms. Aldrich’s actual job performance as fully successful” for at least the 2012-2013
time period. Id., ¶¶ 26-27. But Plaintiff does not allege that the other infractions – i.e., “failure
to follow instructions and failure to submit leave . . . accurately” – were untrue. Id., ¶ 26.
Similarly, she does not allege that Vandegrift was incorrect in claiming that she routinely
counseled Plaintiff. Instead, Plaintiff explains, “If Vandegrift was demanding to meet with
Aldrich on a weekly basis, it was not for any legitimate purpose, but to harass and demean her, to
undermine her faith in herself and in her work, and ultimately to drive her from government
service.” Id., ¶ 28.
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Following that reprimand, Plaintiff filed a complaint with her union alleging that
Vandegrift’s criticisms were motivated solely by “Aldrich’s age and disability, and by her
persistent efforts to obtain . . . reasonable accommodation[s].” Id., ¶ 30. That complaint met a
swift demise, id., ¶ 31, and Plaintiff did not follow up with an EEO complaint. Id., ¶ 32.
In October 2014, Vandegrift then suspended Plaintiff for five days for “bogus
performance and behavioral ‘reasons.’” Id., ¶ 33. This time, Plaintiff took the matter to the
agency’s EEO office, filing an informal complaint in which she “challenge[d] the suspension as
part of a pattern of [discrimination] . . . based upon age and disability, repeated requests for
reasonable accommodation,” and retaliation for Aldrige’s “exercis[ing] of [her] rights protected
by law.” Id., ¶ 34. On October 30, 2014, the EEO sent Vandegrift a notice regarding Plaintiff’s
informal complaint, and she acknowledged receipt the following day (a Friday). Id., ¶¶ 35-36.
The next Monday, November 3, 2014, Vandegrift handed Aldrich a memorandum titled
“Leave Restriction” in which she made clear that Plaintiff would face closer scrutiny of her
whereabouts during the workday. Id., ¶ 37. “[F]or the next six-month period[,] Aldrich was to
announce [to Vandegrift] any arrival, as well as each and every departure during the day, that
might take 15 minutes or more.” Id., ¶ 39. Despite the title of the memorandum, however,
Plaintiff does not allege that the “Leave Restriction” in any way hampered her ability to take sick
or vacation leave to which she was entitled. Nevertheless, the requirement that Plaintiff inform
Vandegrift of her comings and goings caused her a great deal of stress, sleep deprivation, and
fatigue. Id., ¶ 40. On February 5, 2015 – about three months into the leave restriction – Aldrich
converted her October 2014 informal EEO complaint regarding the five-day suspension into a
formal one. Id., ¶ 41.
The final major action Aldrich complains of is an April 2015 reprimand by Vandegrift in
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which she recommended that Aldrich again be suspended for fourteen days, “this time for
allegedly failing to adhere to prescribed leave policy on [the] day a blizzard was underway in
Washington, D.C.” Id., ¶ 45. Vandegrift’s supervisors approved the suspension in June 2015
but reduced the duration to ten days. Id., ¶ 46. As she did with the October 2014 suspension,
Plaintiff brought this matter to the EEO as another illustration of her supervisor’s discrimination.
Id., ¶ 47. She has yet to receive a final decision from the EEO on the matter. See Opp. at 11-12
n.3.
Before wrapping up, there are a few odds and ends that bear mention. First, one of
Aldrich’s co-workers, Susie Nunez, allegedly offered a “sworn statement to the Department” –
perhaps during the EEO process, although the Complaint does not say – attesting to various
things Vandegrift told Nunez that illustrated her animus towards Plaintiff. See Compl., ¶¶ 15-18
(alleging that Vandegrift told Nunez, inter alia, that Aldrich was “unstable and crazy,” that she
was disappointed that Nunez had agreed to switch offices with Aldrich, and that she had
contemplated “hanging several large bullhorns – which she kept in her office – ‘right above
the door so [they] can swing and hit people like Ms. Aldrich’”). Although Aldrich was clearly
made aware of these statements before she filed this suit, she never says when, over the nearly
four-year period preceding such date, she learned of them.
Second, Aldrich offers a few other isolated anecdotes from 2015 that she claims reveal
Vandegrift’s “pattern of abusive conduct.” Id., ¶ 42. First was an incident in March or April
2015 in which Vandegrift came to her cubicle and “scream[ed] at her and berat[ed] her.” Id.,
¶ 43. Another was Vandegrift’s directing Aldrich to pull articles from the National Institutes of
Health’s archives on the Ebola virus going back to 1950. See id., ¶ 42; Opp., Exh. 2 (July 9,
2015, Email Chain) (“Please provide me a list of resources that speak to the issue, and if
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possible, print or order the articles. I would do a search as far back as 1950.”). This task, in
Aldrich’s eyes, was patently abusive because “Vandegrift must have been aware that Ebola was
only [first] identified in 1977.” Compl., ¶ 42. A third was Vandegrift’s mistakenly accusing
Aldrich of being late for work when Aldrich “was actually 30 minutes early.” Id.; see Opp., Exh.
1 (July 15, 2015, Email Chain) (“I just realized you are early and not late – something I am not
used to. No need to respond since you are early.”). The last example is that in September 2015,
Vandegrift accused Aldrich of “failing to arrange for coverage” and neglecting to put in place an
“out-of-office reply” on her email when Aldrich took two hours of approved leave during the
workday “in order to participate with her attorney in a conference call with the EEO Counselor.”
Compl., ¶ 49. Plaintiff claims that Vandegrift emailed Plaintiff while she was on that call to
complain of her leave violations, even though “Vandegrift must have known [Aldrich was in the
midst of] a conversation with an EEO Counselor.” Id., ¶ 48
In October 2015, Plaintiff filed a seven-count Complaint in this Court. Counts I through
III arise under the Age Discrimination in Employment Act. Count I alleges a hostile work
environment; Count II alleges age discrimination based on the leave restriction and her
suspensions; and Count III alleges Defendant retaliated against her “for objecting to
discriminatory treatment because of age” by imposing the suspension and the leave restriction
and by creating a hostile work environment. Counts IV through VII arise under the
Rehabilitation Act and largely mirror the ADEA counts: hostile work environment (Count IV),
disability discrimination (Count V), and retaliation (Count VII). The only different one is a
failure-to-accommodate claim (Count VI), which is not raised in the present Motion.
Defendant has now filed a Motion to Dismiss in which it seeks complete dismissal of the
stand-alone hostile-work-environment claims (Counts I and IV). Because Aldrich also relies on
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the existence of a hostile work environment to substantiate her retaliation claims, the government
also seeks partial dismissal of Counts III and VII. Finally, Defendants move for partial dismissal
of Counts II, III, V, and VII to the extent they rely upon the “leave restriction” as an adverse
employment action. This Motion is now ripe.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a
complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendants’
Motion to Dismiss, the Court must “treat the complaint’s factual allegations as true . . . and must
grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation omitted); see also Jerome Stevens Pharms.,
Inc. v. FDA, 402 F.3d 1249, 1250 (D.C. Cir. 2005). The pleading rules are “not meant to impose
a great burden upon a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and she
must thus be given every favorable inference that may be drawn from the allegations of fact.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007).
Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, id. at 555, “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). Plaintiff must put forth “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. The Court need not accept as true “a legal conclusion couched as a factual allegation,” nor an
inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm’n,
456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)
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(internal quotation marks omitted)). For a plaintiff to survive a 12(b)(6) motion even if
“recovery is very remote and unlikely,” moreover, the facts alleged in the complaint “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56
(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
III. Analysis
In considering Defendant’s Partial Motion to Dismiss, the Court first discusses certain
concessions related to her discrimination counts (II and V). It will then move to the retaliation
counts (III and VII), focusing specifically on whether the “Leave Restriction” is cognizable as an
act of retaliation – i.e., whether it is a “materially adverse action.” Wrapping up, it will last
address whether Aldrich has sufficiently alleged a hostile work environment, as pled in Counts I,
III, IV, and VII.
A. Discrimination (Counts II and V)
In Count II, Plaintiff alleges that the government discriminated against her on the basis of
her age “by subjecting her to a suspension and [the] Leave Restriction.” Compl., ¶ 56. In Count
V, she alleges discrimination via those same actions, this time on account of her disability. See
id., ¶ 68. In her Opposition, however, Plaintiff concedes that “the humiliating and needless leave
restriction” does not “giv[e] rise to an actionable discrimination claim.” Opp. at 2. The Court
will therefore grant Defendant’s Motion to Dismiss these two counts to the extent they rely on
the Leave Restriction as a discrete act of discrimination.
Aldrich also offers another concession – namely, that the ambiguous “suspension”
referred to in her discrimination claims (Counts II and V) only refers to her five-day suspension
in October 2014 and not her ten-day suspension in June 2015. This is because she has
admittedly failed to exhaust her administrative remedies as to the latter suspension, as she filed
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suit here before 180 days had passed from the filing of her EEO complaint. See Opp. at 11 n.3.
The Court thus cannot properly adjudicate whether the latter suspension constituted
discrimination under either the ADEA or the Rehabilitation Act. See Murthy v. Vilsack, 609
F.3d 460, 465 (D.C. Cir. 2010) (“[A] federal employee must wait 180 days, absent final action
by the EEOC, before filing a lawsuit in the federal district court.”). Despite her concession on
this issue, Plaintiff requests that such claims should be dismissed without prejudice. See Opp. at
11 n.3. The Court agrees that such a course is proper. The only discrete act of discrimination
that remains “live” in Counts II and V, therefore, is the October 2014 suspension.
B. Retaliation (Counts III and VII)
Counts III and VII allege retaliation for engaging in protected activity – specifically, that
Defendant “subjected her to suspension and [the] Leave Restriction” in retaliation for Aldrich’s
filing of an October 2014 EEO complaint in which she charged Vandegrift with disability- and
age-based discrimination. See Compl., ¶¶ 59, 74. As was the case with Plaintiff’s
discrimination claims, Defendant does not, at this stage, challenge whether the five-day
suspension in October 2014 counts as a retaliatory act. The parties also agree that, as with the
discrimination counts, the 10-day suspension in June 2015 shall play no role in Plaintiff’s
retaliation claims, given Aldrich’s failure to exhaust. What remains, then, is the issue of whether
the Leave Restriction counts as a discrete act of retaliation.
“To prove retaliation” under the ADEA and Rehabilitation Act, “the plaintiff generally
must establish that he or she suffered (i) a materially adverse action (ii) because he or she had
brought or threatened to bring a discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191,
1198 (D.C. Cir. 2008) (setting forth standard for both statutes). The central question raised by
Defendant pertains only to the first requirement: whether the “Leave Restriction” rises to the
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level of a “materially adverse action.” If it does not, Aldrich cannot make out a prima facie case
of retaliation on that basis, even if Vandegrift were impermissibly motivated when she subjected
Plaintiff to the restriction.
The reason Plaintiff conceded the issue in her discrimination counts but challenges it here
is that the standards differ. “‘Adverse actions’ in the retaliation context” – referred to most
frequently as materially adverse actions – “encompass a broader sweep of actions than those in a
pure discrimination claim.” Baloch, 550 F.3d at 1198 n.4. A retaliatory act is “materially
adverse” if, objectively speaking, it “would have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. at 1198 & n.5 (quoting Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 67 (2006)). At the same time, however, the statutes’ “antiretaliation
provision[s] protect[] an individual not from all retaliation, but from retaliation that produces an
injury or harm.” Burlington, 548 U.S. at 67 (interpreting Title VII’s antiretaliation language);
see Baloch, 550 F.3d at 1198 & n.4 (applying Burlington in the context of ADEA and
Rehabilitation Act retaliation). In that regard, “[a]n employee’s decision to report discriminatory
behavior cannot immunize [her] from those petty slights or minor annoyances that often take
place at work and that all employees experience.” Burlington, 548 U.S. at 68. Getting to the
heart of the matter, then, the Court must determine whether the “Leave Restriction” is, as
Plaintiff contends, properly categorized as a materially adverse action, or if it falls into the
bucket of “petty slights or minor annoyances” that do not give rise to a claim of retaliation. Id.The D.C. Circuit has not grappled with this precise fact pattern, but the courts that have
done so are near unanimous in concluding that close scrutiny, monitoring, or tracking of an
employee’s whereabouts – without more – simply does not rise to the level of a materially
adverse retaliatory action sufficient to survive a motion to dismiss. See, e.g., Jaeger v. N.
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Babylon Union Free Sch. Dist., No. 15-5452, 2016 WL 3198276, at *15 (E.D.N.Y. June 7, 2016)
(monitoring of plaintiff’s “attendance, even if [stricter than] the scrutiny given to his colleagues”
does not constitute materially adverse action); Lindsey-Grobes v. United Airlines, Inc., No. 14-
857, 2014 WL 5298030, at *10 (D. Md. Oct. 14, 2014) (Plaintiff’s claim that she was “subject to
retaliatory monitoring of her performance, breaks and bidding on shifts” reflect “at most, ‘petty
slights, minor annoyances, [or] simple lack of good manners,’ see Burlington, [548 U.S. at 68],
that cannot be classified as materially adverse . . . .”); Simms v. Navy Fed. Credit Union, No. 02-
900, 2002 WL 32971969, at *5 (E.D. Va. Aug. 27, 2002) (“[I]ncreased monitoring of . . .
[plaintiff’s] time and attendance[] and her computer log in and out data” is not a materially
adverse employment action.); cf. Scafidi v. Baldwin Union Free Sch. Dist., 295 F. Supp. 2d 235,
237, 239 (E.D.N.Y. 2003) (“intensive supervision” of school psychologist not materially adverse
where scrutiny resulted in no negative repercussions).
Additional support comes from cases reaching a no-material-adversity conclusion on an
employer’s motion for summary judgment. See, e.g., Grice v. FMC Techs., Inc., 216 F. App’x
401, 404, 407 (5th Cir. 2007) (no materially adverse action where plaintiff was “watched more
closely than others”); Harbuck v. Teets, 152 Fed. App’x. 846, 848 (11th Cir. 2005) (no
materially adverse action where plaintiff complained that “she has been subject to
heightened scrutiny”); Poppy v. City of Willoughby Hills, 96 F. App’x 292, 295 (6th Cir. 2004)
(no materially adverse action for First Amendment retaliation where plaintiff’s supervisor was
alleged to have “review[ed] her time sheets, request[ed] keys to her office to inspect records kept
there, or install[ed] a security camera in the hall outside her office”); Harris v. Firstar Bank
Milwaukee, N.A., 97 F. App’x 662, 663 (7th Cir. 2004) (Plaintiff’s “allegations of inappropriate
supervisory behavior do not suggest a degree of harm sufficient to constitute an adverse
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employment action.”); accord Daniels v. Connecticut, No. 12-93, 2015 WL 4886455, at *7, 17
(D. Conn. Aug. 17, 2015) (no materially adverse action where employer began to look more
closely at plaintiff’s log entries and criticize her for taking long breaks); Daggs v. Donahoe, No.
11-357S, 2014 WL 2434952, at *5 (W.D.N.Y. May 30, 2014) (no materially adverse action
where plaintiff alleged, “My moves and everything that I did was overseen like a helicopter
parent.”); Flowers v. City of Tuscaloosa, No. 11-1375, 2013 WL 625324, at *24 (N.D. Ala. Feb.
14, 2013) (“[M]onitoring . . . has generally been deemed not actionable in itself.”) (citation
omitted); Workneh v. Pall Corp., 897 F. Supp. 2d 121, 135 (E.D.N.Y. 2012) (same); Soublet v.
Louisiana Tax Comm’n, 766 F. Supp. 2d 723, 735 (E.D. La. 2011) (“[C]omplaints of increased
or altered supervision . . . would not dissuade a reasonable worker from making or supporting a
charge of discrimination.”); Shannon v. VA Dep’t of Juvenile Justice, No. 06-413, 2007 WL
1071973, at *4 (E.D. Va. Apr. 4, 2007) (close monitoring of employee’s “comings and goings”
“fall[s] into the ‘petty slights’ and ‘minor annoyances’ category” of employment actions that do
not rise to the level of material adversity), aff’d, 258 F. App’x 583 (4th Cir. 2007); Carrero v.
Robinson, No. 05-2414, 2007 WL 1655350, at *11 (D. Colo. June 5, 2007) (same).
Although the reasoning of these cases is often either cursory or opaque, a few have
helpfully articulated the logic underlying this conclusion. Simply stated, putting in a full day’s
work is a standard condition of employment. An employer’s “[m]onitoring [of] an
employee’s . . . time and attendance,” therefore, “is a basic employment practice, and as such
could only be an adverse employment action if [plaintiff] previously had immunity from general
employment policies.” Simms, No. 02-900, 2002 WL 32971969, at *5 (emphasis added). In
other words, closely monitoring an employee’s attendance does not “produce[] an injury or
harm,” Burlington, 548 U.S. at 67, as employers may reasonably require consistent, complete
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attendance and take reasonable steps to ensure an employee is not falling short. See Wade v.
Dist. of Columbia, 780 F. Supp. 2d 1, 16 (D.D.C. 2011) (Plaintiff’s claim – “that his supervisors
were overly aggressive in tracking his whereabouts to ensure that he was not avoiding his duties
– involves a common aspect of the working environment, and [plaintiff] has not explained how
this caused him any harm.”); cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998) (courts must take care to avoid “expanding” the antidiscrimination statutes “into a general
civility code”).
The few cases to have gone the other way share one of two common attributes. The first
is the conclusion that where monitoring is not uniformly applied across the workforce, the
disparateness of such monitoring may elevate otherwise innocuous attendance tracking to a
materially adverse action. See, e.g., Deshpande v. Medisys Health Network, Inc., No. 07-375,
2008 WL 2004160, at *5 (E.D.N.Y. May 7, 2008) (acknowledging that “close monitoring
usually does not, without more, constitute a materially adverse action,” but denying employer’s
motion to dismiss retaliation claim where plaintiff alleged that monitoring was “selectively
applied” to him and not others); accord Turley v. ISG Lackawanna, Inc., 803 F. Supp. 2d 217,
241 (W.D.N.Y. 2011). The problem with this reasoning, however – and why this Court chooses
not to follow it here – is that “[a]lthough selective enforcement of employment policies may be
evidence of pretext, such selective enforcement does not alone convert enforcement of a general
policy of employment into adverse employment action.” Simms, No. 02-900, 2002 WL
32971969, at *5 (emphases added). In other words, “even if [the employer’s scrutiny of
plaintiff’s attendance] differed from the scrutiny given to his colleagues,” such scrutiny does not,
without more, “constitute an adverse employment action,” as it does not “produce[] an injury or
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harm.” Jaeger, No. 15-5452, 2016 WL 3198276, at *15. A “petty slight” is still a “petty slight,”
even if that slight is disparately applied.
The second common characteristic of cases in which close monitoring might be
materially adverse is where the monitoring is so extreme and intrusive as to constitute
harassment in its own right. In MacDonald v. United Parcel Serv., 430 Fed. App’x 453 (6th Cir.
2011), for instance, the Sixth Circuit concluded that allegations of an employer’s “extreme
scrutiny in the form of hidden surveillance cameras and tails” was sufficient to establish a
plausible ADA-retaliation claim. Id. at 465-66. Similarly, in Ortez v. Washington County,
Oregon, 88 F.3d 804 (9th Cir. 1996), the Ninth Circuit denied an employer’s motion to dismiss
where it conducted “extreme supervision” in the form of “order[ing] another employee to follow
[plaintiff] and otherwise confirm his whereabouts during the day.” Id. at 809 & n.3.
These actions cross the line from enforcement of standard employment policies (even if
not uniformly applied) to harassing, badgering, and even threatening conduct. See also, e.g.,
Fercello v. Cty. of Ramsey, 612 F.3d 1069, 1081 (8th Cir. 2010) (“[P]lacing an employee under
constant surveillance” may suffice as a materially adverse action); Williams v. Guilford Tech.
Cmty. Coll. Bd. of Trustees, 117 F. Supp. 3d 708, 718-19 (M.D.N.C. 2015) (surveillance
sufficiently adverse where supervisor “placed a hidden video camera with audio recording
outside [plaintiff’s] office . . . and continually recorded [her] and anyone entering and leaving
[her] office with video and audio”) (citation omitted); Rios v. Municipality of Guaynabo, 938 F.
Supp. 2d 235, 244 (D.P.R. 2013) (“[P]lacing an employee under constant surveillance could be
evidence of retaliation.”) (citation omitted).
With that framework in place, the Court concludes that, taking all of Aldrich’s allegations
as true, she has failed to plead facts showing that Vandegrift’s “Leave Restriction” was a
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materially adverse employment action. All that was demanded of her was that she “announce
any arrival, as well as each and every departure during the day, that might take 15 minutes or
more.” Compl., ¶ 39. This comes nowhere near the type of Orwellian hyper-surveillance that
might, standing alone, satisfy the material-adversity requirement. See Ortez, 88 F.3d at 809.
And while Plaintiff might have subjectively found the requirement to be condescending or even
infantilizing, her personal response cannot transform an otherwise “minor annoyance[],”
Burlington, 548 U.S. at 68, into “an action that would have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Baloch, 550 F.3d at 1198 (concluding that
employer’s “sick leave restrictions,” in which it “require[ed] that a physician certify the problem
and date of treatment each time [plaintiff] submitted a leave request” did not constitute
materially adverse action) (internal citations omitted). In sum, Plaintiff’s claim in Counts III and
VII that Vandegrift retaliated against her by imposing a Leave Restriction ends here.
C. Hostile Work Environment (Counts I & IV, III & VII)
The next question is whether Aldrich has stated a claim for retaliation or discrimination
on the basis of a hostile work environment. Neither the ADEA nor the Rehabilitation Act by
their terms makes unlawful a “hostile work environment” – at least not in so many words. Both
statutes do, however, bar the government from discriminating against its employees with respect
to, inter alia, their “terms, conditions, or privileges of employment” because of that person’s age
or disability. See 29 U.S.C. §§ 623(a)(1) & 633a(a) (age); 29 U.S.C. §§ 794(a), (d) (disability;
incorporating standard for discrimination set forth in the Americans with Disabilities Act, see 42
U.S.C. § 12112(a)).
The Supreme Court has read that language broadly, concluding that “[t]he phrase ‘terms,
conditions, or privileges of employment’ evinces a congressional intent to strike at the entire
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spectrum of disparate treatment . . . in employment, which includes requiring people to work in a
discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (emphasis added, citations omitted). The D.C. Circuit, in turn, has extended that
reasoning in holding that “a hostile work environment can [also] amount to retaliation” under the
antidiscrimination laws. Baird v. Gotbaum (Baird I), 662 F.3d 1246, 1250 (D.C. Cir. 2011)
(emphasis added, citation omitted). Plaintiff pursues both avenues here, alleging that her
employer created a hostile work environment both to discriminate against her (Counts I and IV)
and to retaliate against her for engaging in protected activity (Counts III and VII).
That is all well and good, but what, exactly, is a hostile environment? In contrast to other
forms of discrimination or retaliation – which typically arise from discrete acts like terminations
or suspensions – “[a] hostile work environment typically consists of several individual acts that
‘may not be actionable on [their] own’ but become actionable due to their ‘cumulative effect.’”
Baird v. Gotbaum (Baird II), 792 F.3d 166, 168 (D.C. Cir. 2015) (quoting Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile environment claims are different in kind
from discrete acts. Their very nature involves repeated conduct. . . . Such claims are based on
the cumulative effect of individual acts.”)). This is the path Aldrich pursues, arguing that the
entire array of slights she suffered from early 2012 through the fall of 2015, taken together,
reveal a discriminatorily hostile working environment. See Opp. at 14 (“The Complaint
describes a rich and varied pattern of ongoing abusive conduct from Serina Vandegrift,
beginning almost immediately upon becoming Marion Aldrich’s supervisor in February 2012,
and continuing virtually unabated ever since.”).
This timeline presents something of an issue, however, given Aldrich’s pleading of a
hostile environment as both a form of discrimination and retaliation. Specifically, while the
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discrimination chronology may run the entire length of the timeline – i.e., February 2012 through
September 2015 – the retaliation chronology can only plausibly start on the day Aldrich first
engaged in protected activity. As that date does not clearly emerge from the Complaint, the
Court will assess whether the full timeline of complained-of episodes adequately states a hostile-
work-environment claim. Concluding that it does not, the Court has no need to analyze the
separate counts and their incongruent timelines separately.
Now to the merits. The key question is whether all of the episodes taking place between
February 2012 and September 2015, looked at in concert, constitute a hostile work environment.
To ultimately succeed on her claims, Aldrich “must show,” and the factfinder must find, “that
h[er] employer subjected h[er] to ‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of [her] employment and create an
abusive working environment.’” Baloch, 550 F.3d at 1201 (quoting Harris, 510 U.S. at 21). To
survive a motion to dismiss, however, she must merely allege facts capable of supporting such a
finding. See Littlejohn v. City of N.Y., 795 F.3d 297, 321 (2d Cir. 2015) (affirming dismissal of
hostile-work-environment claim where “allegations could not support a finding of hostile work
environment that is so severe or pervasive as to have altered the conditions of [plaintiff’s]
employment”). 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)
(citing Harris, 510 U.S. at 23). 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 government
“alter[ed] the conditions of [her] employment and create[d] an abusive working environment.”
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Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014) (citations and quotation marks
omitted).
The government maintains a laser-like focus on the “severe or pervasive” requirement,
contending that “Plaintiff’s allegations are legally insufficient to demonstrate the pervasiveness
and severity of hostility necessary to show a hostile work environment.” Mot. at 1; see Ahuja v.
Detica Inc., 742 F. Supp. 2d 96, 105 (D.D.C. 2010) (dismissing hostile-work-environment claim
where plaintiff failed to allege actions that are sufficiently severe or pervasive to meet standard).
In other words, even if Vandegrift were motivated by discrimination or a desire to retaliate, and
even assuming Aldrich subjectively believed the environment to be hostile, the episodes, taken
as a whole, do not reveal an objectively abusive environment.
As the D.C. Circuit has explained, 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. To that end, the 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) (citations
omitted); 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].”) (citation omitted). “[T]he standard for
severity and pervasiveness is . . . an objective one.” Baird II, 792 F.3d at 172; see Oncale, 523
U.S. at 81 (“[T]he objective severity of harassment should be judged from the perspective of a
reasonable person in the plaintiff’s position, considering ‘all the circumstances.’”) (quoting
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Harris, 510 U.S. at 23).
Plaintiff identifies ten distinct episodes spanning three-and-a-half years that she believes
illustrate the abusiveness of her work environment:
1. February 2012: Vandegrift “began subjecting . . . Aldrich to rude, hostile, and
otherwise demeaning treatment.” Compl., ¶ 11.
2. June 2013: When the Executive Secretariat moved offices, Plaintiff lost her “quiet
work space” and was assigned by Vandegrift “to a noisy cubicle directly across from
Vandegrift’s own office, where she could closely monitor Aldrich and her
movements.” Id., ¶¶ 13, 19.
3. May 2014: Vandegrift reprimanded Plaintiff for “unacceptable work performance,
failure to follow instructions and failure to submit leave that accurately reflects time
away from office.” Id., ¶¶ 26-27.
4. October 2014: Vandegrift suspended Plaintiff for five days. Id., ¶ 33.
5. November 2014: After being informed of Aldrich’s EEO complaint, Vandegrift
placed Plaintiff on “Leave Restriction,” meaning she must tell Vandegrift anytime she
will be out of the office for more than 15 minutes during the workday. Id., ¶¶ 37, 39.
6. April & June 2015: Vandegrift reprimanded plaintiff for “allegedly failing to adhere
to prescribed leave policy on [the] day a blizzard was underway in Washington, D.C.”
and recommended a fourteen-day suspension, which was reduced by Vandegrift’s
superiors to a ten-day suspension, which she served in June 2015. Id., ¶¶ 45-46.
7. March or April 2015: Vandegrift came to Aldrich’s cubicle and “scream[ed] at her
and berat[ed] her.” Id., ¶ 43.
8. July 2015: Vandegrift directed Aldrich to research articles on Ebola “as far back as
1950,” see July 9, 2015, Email Chain, even though Ebola was not discovered until
1977. See Compl., ¶ 42.
9. July 2015: Vandegrift accused Aldrich by email of being late for work when she
“was actually 30 minutes early.” Id.
10. September 2015: In an email, Vandegrift accused Aldrich of “failing to arrange for
coverage” and neglecting to put in place an “out-of-office reply” on her email when
Plaintiff took two hours of approved leave to speak to her EEO counselor. Id., ¶ 49.
The email was apparently sent during Aldrich’s meeting with her EEO counselor, and
Plaintiff alleges that Vandegrift “must have known that.” Id.
To bolster her claim, she also submits that Vandegrift expressed her disdain for Aldrich to one of
Aldrich’s co-workers, Susie Nunez. See id., ¶¶ 15-18.
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These incidents, taken as true and evaluated as a whole, may well have been unpleasant,
but they simply do not reveal a pattern of behavior that is either sufficiently severe or pervasive
to support a conclusion that the government subjected Aldrich to “discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [her]
employment and create an abusive working environment.” Baloch, 550 F.3d at 1201 (citation
omitted).
To begin, the first incident – Vandegrift’s allegedly “rude, hostile, and otherwise
demeaning treatment,” Compl., ¶ 11 – is too vague and conclusory to meaningfully contribute to
Aldrich’s claim that her working environment was “permeated with discriminatory intimidation,
ridicule, and insult.” Morgan, 536 U.S. at 116 (citation omitted); see Brady v. Livingood, 456 F.
Supp. 2d 1, 11 (D.D.C. 2006) (dismissing hostile-work-environment claim where plaintiff
alleged only “[v]ague, conclusory statements”) (citation omitted), aff’d sub nom. Brady v. Office
of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008). Similarly, the conversations held between
Vandegrift and Nunez offer little support for Plaintiff’s claim, as she has nowhere claimed that
she knew of those statements at any time prior to the filing of her Complaint here. See Wise v.
Ferriero, 842 F. Supp. 2d 120, 126 (D.D.C. 2012) (“Conduct that [plaintiff] did not know
about . . . cannot not be used to establish that he was subjected to a hostile work environment.”).
Plaintiff argues that such statements are useful for establishing evidence of pretext, but
effectively concedes that the conversations Nunez had with Vandegrift cannot help establish
whether the environment itself was hostile. See Opp. at 14 n.5.
None of the remaining episodes reflects “severe” or “offensive” conduct of the type that
might create an objectively abusive environment. See Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998) (“[C]onduct must be extreme to amount to a change in the terms and conditions
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of employment.”). Most relate to workplace reprimands – and punishment flowing from them –
that are well within the bounds of “ordinary tribulations of the workplace.” Faragher, 524 U.S.
at 788 (citation omitted). For that reason, “courts typically do not find . . . 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) (citation omitted); see also, e.g., Baloch, 550 F.3d at 1201(affirming grant of summary judgment to employer where hostile environment allegedly
consisted of several reprimands, requiring pre-approval of any sick leave, reassigning plaintiff’s
duties and diminishing his responsibilities, proposing two separate suspensions, giving plaintiff a
poor performance review, and several verbal altercations); Nurriddin v. Bolden, 674 F. Supp. 2d
64, 94 (D.D.C. 2009) (“[T]he 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.”).
In addition, the fact that the group includes one of the alleged discrete acts of
discrimination – i.e., the October 2014 suspension – does not perforce establish a hostile
environment. See Nurriddin, 674 F. Supp. 2d at 94 (“[M]ere reference to alleged disparate acts
of discrimination . . . cannot be transformed, without more, into a hostile work environment.”)
(citation omitted). The “Leave Restriction” easily lands in this category as well, falling far short
of anything that could be objectively seen as offensive or abusive. See supra Section III.B.
Undoubtedly, some of the episodes – like the incident in which Vandegrift screamed at
Plaintiff in April 2015 – certainly “reflect poorly upon [Vandegrift’s] professionalism.” Barbour
v. Browner, 181 F.3d 1342, 1348 (D.C. Cir. 1999). But even such unpleasant behavior by a
supervisor is not of a piece with the discriminatory, insulting, and offensive conduct normally
required of a hostile-environment claim. See Brooks, 748 F.3d at 1277 (incident in which
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supervisor allegedly “yelled at [plaintiff] and violently threw a book (thick notebook) on a table”
was “at its worst . . . an isolated expression of frustration,” which “alone cannot rise to the level
of severity indicating hostility or abuse”); Munro, 839 F. Supp. 2d at 366 (same); accord
Faragher, 524 U.S. at 788 (“[I]solated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.’”) (emphasis added, citation
omitted).
Looking at the span of dates further undermines Plaintiff’s claim. That the three-and-a-
half-year period comprising this allegedly hostile environment was dotted with loosely related
workplace grievances does not reveal a “pervasive” pattern of abuse. See Nurriddin, 674 F.
Supp. 2d at 94 (That “the alleged events are temporally diffuse, spread out over a [nearly] four-
year period” also “suggest[s] a lack of pervasiveness.”); compare El-Hakem v. BJY Inc., 415
F.3d 1068, 1073 (9th Cir. 2005) (concluding that even though a supervisor’s calling an employee
“Manny” was not severe, discriminatory conduct, the supervisor’s incessant use of that name for
over a year, despite the plaintiff’s repeated objections, constituted behavior that, despite its lack
of severity, was sufficiently pervasive to support a hostile-work-environment claim). And, as
Plaintiff herself admits in her Complaint, the working environment was reasonably healthy for a
large swath of time spanning 2012 through 2013, see Compl., ¶ 21, suggesting that the
environment was a far cry from one that was infected with an air of hostility.
* * *
Having disposed of these questions, the Court finds it useful to clarify what remains.
Counts I and IV, both of which are based solely on a hostile work environment, will be
dismissed in full. Counts II and V (alleging discrimination) and III and VII (alleging retaliation)
will be partially dismissed insofar as they rely on (a) the Leave Restriction, (b) the existence of a
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hostile work environment, or (c) the ten-day suspension in June 2015. What remains, then, is the
following:
• Count II (age discrimination in the form of the October 2014 suspension);
• Count III (age-based retaliation in the form of the October 2014 suspension);
• Count V (disability discrimination in the form of the October 2014 suspension);
• Count VI (failure to accommodate); and
• Count VII (disability-based retaliation in the form of the October 2014 suspension).
IV. Conclusion
For these reasons, the Court will grant Defendant’s Partial Motion to Dismiss. A separate
Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 18, 2016
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