Brown v. Salazar , 134 F. Supp. 3d 170 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JEFFREY BROWN, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-cv-295 (TSC)
)
SALLY JEWELL, SECRETARY, )
U.S. DEPARTMENT OF INTERIOR, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Jeffrey Brown alleges race, sex, and age discrimination, and retaliation, in
violation of 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, 29 U.S.C. § 633a (the “ADEA”). Brown claims
that his supervisors at the United States Department of Interior (“DOI”) denied his request to
telework, denied his request to travel, and forced him to retire by transferring most of his job
responsibilities to a different office. (Compl. ¶¶ 13, 17, 21).
Defendant moves to dismiss the race and sex claims for failure to exhaust administrative
remedies, and to dismiss any claims predicated on the alleged forced retirement for failure to
timely appeal. (Def.’s Mem. Supp. Mot. Summ. J. & Dismiss (“Def. Mot.”) at 2). Defendant
also moves, in the alternative, for summary judgment on a variety of grounds, including that
Brown did not suffer any adverse employment action, has not shown an inference of
discrimination, has not demonstrated that DOI’s proffered non-discriminatory reasons for its
actions were pretextual, and has not shown causation for his retaliation claim. (Id. at 2-3).
Upon consideration of the Defendant’s motion, the response and the reply thereto, as well
as the supplemental briefing ordered by the court on the question of the court’s subject-matter
jurisdiction over this case, and for the reasons set forth below, each of Brown’s claims are
dismissed. The forced retirement claims are dismissed for lack of subject-matter jurisdiction,
and Defendant’s motion is granted as to the remaining claims regarding the denial of his requests
to telework and to travel.
I. BACKGROUND
Jeffrey Brown is an African-American male who was approximately 55 years old at the
times relevant to the Complaint. (Compl. ¶ 6). He held various positions at DOI throughout his
career. (Pl.’s Opp’n at 3-5). At the time of the alleged discrimination, he was a GS-14
Information Technology Specialist in the Office of the Chief Information Officer, Division of
IRM Governance, Bureau of Land Management, Department of Interior. (Compl. ¶ 6).
a. Telework Denial and Travel Delays
In September 2008, Brown requested that he be permitted to work remotely for two days
per week to reduce his commute. (Def.’s Statement of Facts ¶ 10). According to Brown, he
could perform 80-90% of his work duties from home, and he requested telework because he
primarily supervised employees on the West Coast, meaning that he often had to stay at work
late. (Compl. ¶ 8). Laura Bell, Brown’s first-line supervisor, initially approved his request.
(Def.’s Statement of Facts ¶ 11). However, the next day Bell informed Brown that her
supervisor (and Brown’s second-line supervisor), Scott MacPherson, had overruled her approval
and denied the telework request because Brown had not provided a medical justification. (Id. at
¶ 12). After discussions between Brown and MacPherson, MacPherson indicated that he would
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only approve the request for either a short duration or for a valid medical reason. (Id. at ¶ 13).
Brown met neither criterion, so his request was denied. (Id.).
A day after MacPherson’s denial, Brown contacted the Department of Interior’s Equal
Employment Opportunity (“EEO”) Office and alleged that he was discriminated against based on
race and age when MacPherson denied his telework request. (Id. at ¶ 14; Compl. ¶ 16). His
complaint was assigned agency complaint number BLM-09-004. (Def.’s Mot. Ex. A).
While his telework complaint was pending, Brown alleges that he experienced additional
incidents of discrimination when MacPherson denied two requests Brown made to travel to DOI
field offices in Oregon and Colorado. (Compl. ¶ 17). In October 2008, Brown received an email
from an IT manager in DOI’s Portland, Oregon field office inviting Brown to travel to Portland
to review their configuration management processes. (Pl.’s Opp’n Ex. B at 57). Brown
submitted a travel request to MacPherson, but MacPherson allegedly never responded. (Pl.’s
Opp’n at 9). Brown claims that MacPherson effectively denied the request (id.); Defendant
claims the trip was merely delayed because of reorganization in the Portland field office. (Def.’s
Mot. at 2-3). Either way, it is undisputed that Brown eventually traveled to Portland in July
2009. (Def.’s Statement of Facts ¶ 16; Compl. ¶ 18).
Brown also received an invitation to travel to DOI’s Denver, Colorado field office in
February 2009. (Compl. ¶ 17). Once again, Brown submitted a travel request to MacPherson,
which MacPherson allegedly ignored, and Brown’s travel to Denver was delayed until May
2009. (Def.’s Statement of Facts ¶ 16).
While the record is unclear, it appears that at some point Brown amended the
aforementioned telework complaint to include allegations related to the travel delays (the
“Telework/Travel Complaint”). (Id. ¶ 15). The EEOC eventually ruled that Brown failed to
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“provide sufficient evidence to raise an inference of discrimination” with respect to the telework
denial and travel delays, and the Telework/Travel Complaint was dismissed on the merits.
(Id. ¶ 18).
b. Forced Retirement
The series of events which resulted in Brown’s alleged forced retirement all transpired
after Paulette Sanford-Brown was hired as branch chief in June 2009. During her first meeting
as Brown’s supervisor, Sanford-Brown allegedly stated in front of Brown’s peers that the front
office was disappointed in Brown’s performance and that she had grave concerns about his
programs. (Pl. Opp’n at 9; Pl. Opp’n Ex. C. (the “Thomas Decl.”) at 105). Michelle Thomas,
another manager in Brown’s office, also noted that Sanford-Brown was annoyed with her during
the same meeting and made direct and potentially embarrassing remarks to her in front of other
managers. (Thomas Decl. at 106). After the meeting, Brown e-mailed MacPherson about what
Sanford-Brown had said, and MacPherson indicated that Brown should discuss matters with
Sanford-Brown directly. (Pl.’s Opp’n at 9).
Brown claims that later that summer, Sanford-Brown “blindsided” him by sending an
e-mail to the Configuration Management team (while Brown was out of the office at a funeral)
“notifying them that Brown would be relieved of his operational duties and those duties would
be transferred to the National Operations Center in Denver, Colorado.” (Compl. ¶ 21). That
e-mail, dated August 21, 2009, read as follows:
I wanted to start the dialogue to eliminate the confusion that still exists around
roles and responsibilities within the National Configuration Management
Program. With the implementation of the MFE initiative, the operational
component of NCM transferred to the NOC. As such, WO released its contract
resources and therefore, we no longer have the resources to assist us with the
document review and final release process.
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Our role has now transitioned to updating and revising existing policy to
incorporate ITIL standards and to access the CM program to ensure that proper
controls are in place . . .
Clearly, we still have some things to work out, but I guarantee will get there.
I look forward to working with each of you to ensure a smooth transition of
responsibilities.
(Pl. Opp’n Ex. C at 108-09).
Brown alleges that this email was tantamount to eliminating his position, as the duties to
be transferred accounted for 80-90% of his job responsibilities. (Pl.’s Opp’n at 11). According
to Defendant, the operational component of Brown’s job was transferred pursuant to the agency-
wide Managing for Excellence initiative, which was designed to consolidate all agency
operational functions at the National Operations Center (“NOC”) in Denver and consolidate all
policy functions in Washington, D.C. (Def.’s Mot. at 2). Defendant alleges that Sanford-Brown
believed that Brown’s operational responsibilities should have been transferred to the NOC long
before she became his supervisor, and that the transfer should not have been a surprise to Brown.
(Pl. Opp’n Ex. E at 126-32). In any event, Brown alleges that as a result of the transfer, he was
forced to retire. (Compl. ¶ 21).
Brown submitted a second complaint to DOI’s EEO Office with respect to his forced
retirement. (Def.’s Statement of Facts ¶ 17). His initial contact with an EEO official occurred
on September 3, 2009. (Pl.’s Opp’n Ex. C at 66). In the informal counseling process, the EEO
Office identified Brown’s complaint as being based on race, sex, and age discrimination, as well
as reprisal for previously filing the Telework/Travel Complaint. (Pl. Opp’n Ex. C at 66, 72, 80).
After the informal counseling process failed, on November 9, 2009, Brown filed a formal
complaint with the agency (the “Forced Retirement Complaint”). (Id. at 65). In the Forced
Retirement Complaint, Brown checked the boxes for “age” and “reprisal” under the section titled
“Basis(es) for believing you were discriminated against: (Check one or more, and provide . . .
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specific information).” (Id.) Brown did not check the boxes for race or sex. (Id.). The Forced
Retirement Complaint was assigned agency complaint number BLM-09-0472. (Id.).
On December 14, 2010, DOI issued its Final Agency Decision (the “Decision”) with
respect to the Forced Retirement Complaint. (Pl’s Opp’n Ex. F). The agency found that Brown
“did not prove that management’s testimony was unworthy of belief” and “did not produce any
evidence to demonstrate that his age or prior EEO activity were determinative factors in the
Agency’s decision to transfer his operations responsibilities to the NOC.” (Id. at 159). DOI
therefore determined that Brown “was not subjected to discrimination on the bases of reprisal or
age.” (Id.). The Decision advised Brown that he had 30 days to appeal the decision to the Merit
Systems Protection Board (the “MSPB” or the “Board”) or a federal district court. (Id. at 15).
Notably, while the Decision clearly discussed the merits of Brown’s Forced Retirement
Complaint—complaint number 0472—it was incorrectly captioned with the case number from
the Telework/Travel Complaint—complaint number 004. (Id. at 1).
It does not appear that Brown took any action after receiving the Decision.
Approximately six months after DOI issued the Decision, it sent Brown a letter acknowledging
that the Decision was incorrectly captioned. (Pl.’s Opp’n Ex. G). Brown responded a few weeks
later, requesting that DOI reissue the Decision with the correct case number. (Pl.’s Opp’n
Ex. H). On August 31, 2011, DOI rejected that request, claiming that it “no longer has the
authority to reissue [the Decision] on appeal because jurisdiction over the matter now resides
with the MSPB.” (Id.).
On September 30, 2011 (within 30 days of DOI’s refusal to reissue the Decision but well
over 30 days after the original issuance of the Decision), Brown appealed to the MSPB.
(Pl.’s Opp’n Ex. I). The MSPB rejected Brown’s appeal on January 31, 2012, stating that it
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lacked jurisdiction over the appeal because Brown had not provided any evidence that his
retirement was involuntary. (Id.).
Brown subsequently filed suit in this court on March 7, 2013.
II. LEGAL STANDARD
a. Subject-Matter Jurisdiction
“Federal district courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute, which is not to be expanded by judicial decree.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted).
“Subject-matter jurisdiction can never be waived or forfeited” because subject-matter jurisdiction
“goes to the foundation of the court’s power to resolve a case.” Gonzalez v. Thaler, 132 S. Ct.
641, 648 (2012); Doe ex rel. Fein v. District of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996).
While Federal Rule of Civil Procedure 12(b)(1) authorizes a party to move to dismiss a
lawsuit for lack of subject-matter jurisdiction, Federal Rule of Civil Procedure 12(h)(3) also
provides, that if a court “determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Thus, courts “have an independent obligation
to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from
any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (citation omitted). “The objection
that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its
own initiative, at any stage in the litigation,” id. at 506, and a court must discharge its
“independent obligation to determine whether subject-matter jurisdiction exists . . . before ruling
on the merits.” Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 706 (D.C. Cir. 2008) (internal
citation omitted) (internal quotation marks omitted); see also Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434 (2011) (“Courts do not usually raise claims or arguments on their
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own. But federal courts have an independent obligation to ensure that they do not exceed the
scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that
the parties either overlook or elect not to press.”); Doe ex rel. Fein, 93 F.3d at 871 (holding that
courts are “obliged to address” their own subject-matter jurisdiction “sua sponte”).
b. Motion for Summary Judgment
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (“the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.”); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Summary
judgment may be rendered on a “claim or defense . . . or [a] part of each claim or defense.” Fed.
R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P.
56(c)(1)(A). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under
governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary
judgment determination. An issue is ‘genuine’ if ‘the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Holcomb, 433 F.3d at 895 (quoting Liberty
Lobby, 477 U.S. at 248) (citation omitted). The party seeking summary judgment “bears the
heavy burden of establishing that the merits of his case are so clear that expedited action is
justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S.
8at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006) (“We
view the evidence in the light most favorable to the nonmoving party and draw all inferences in
its favor.”). The non-moving party’s opposition, however, must consist of more than mere
unsupported allegations or denials, and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant
“is required to provide evidence that would permit a reasonable jury to find [in his favor].”
Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
c. Title VII and the ADEA
Claims under Title VII and the ADEA are governed by the burden-shifting framework
laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Carter v. George
Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). Under this framework, the plaintiff must
first establish, by a preponderance of the evidence, a prima facie case of discrimination.
McDonnell Douglas, 411 U.S. at 802. Once the plaintiff establishes a prima facie case, the
defendant must produce evidence that the adverse employment actions were taken for a
legitimate, non-discriminatory reason. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288
(D.C. Cir. 1998). “Once the defendant has done so, the presumption . . . raised by
the prima facie case is rebutted and drops from the case.” Id. at 1289 (quoting St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 507 (1993)) (internal quotation marks omitted). To survive
summary judgment, the plaintiff must then show that a reasonable jury could infer that the
proffered legitimate reason was false and that defendant’s actions were intended as
discrimination from a “combination of (1) the plaintiff’s prima facie case; (2) any evidence the
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plaintiff presents to attack the employer’s proffered explanation for its actions; and (3) any
further evidence of discrimination that may be available to the plaintiff.” Id.III. ANALYSIS
a. The Court’s Subject-Matter Jurisdiction Over Brown’s Forced Retirement Claims
The Civil Service Reform Act of 1978 (the “CSRA”), 5 U.S.C. § 1101 et seq., creates
“a framework for evaluating personnel actions against federal employees,” providing employees
with “graduated procedural protections depending on an action’s severity.” Kloeckner v. Solis,
133 S. Ct. 596, 600 (2012). “If (but only if) the action is particularly serious . . . the affected
employee has a right to appeal the agency’s decision to the MSPB.” Id. (citing 5 U.S.C.
§§ 1204, 7512, 7701). Agency actions which permit an employee to appeal a case to the MSPB
include a removal (including constructive removals), a suspension for more than 14 days, a
reduction in grade or pay, and a furlough. Id. at 600 n.1 (citing 5 U.S.C. § 7512). An appeal to
the MSPB
may merely allege that the agency had insufficient cause for taking the action under
the CSRA; but the appeal may also or instead charge the agency with discrimination
prohibited by another federal statute[.] . . . When an employee complains of a
personnel action serious enough to appeal to the MSPB and alleges that the action
was based on discrimination, [the employee] is said . . . to have brought a “mixed
case.”
Id. at 600-01 (citing 29 CFR § 1614.302) (emphasis in original).
There are “special procedures” governing mixed cases which are “different from those
used when [a federal] employee either challenges a serious personnel action under the CSRA
alone or attacks a less serious action as discriminatory.” Id. at 601 (citations omitted). These
special procedures permit an employee to proceed in a variety of ways. For instance, a federal
employee “may first file a discrimination complaint with the agency itself, much as an employee
challenging a personnel practice not appealable to the MSPB could do.” Id. (citing 5 CFR
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§ 1201.154(a); 29 CFR § 1614.302(b)). If the agency decides against the employee, “the
employee may then either take the matter to the MSPB or bypass further administrative review
by suing the agency in district court.” Id. (citing 5 CFR § 1201.154(b); 29 CFR
§ 1614.302(d)(1)(i)).
Alternatively, [an] employee may initiate the process by bringing [his or] her case
directly to the MSPB, forgoing the agency’s own system for evaluating
discrimination charges. If the MSPB upholds the personnel action (whether in the
first instance or after the agency has done so), the employee . . . may request
additional administrative process, this time with the EEOC, or else [the employee]
may seek judicial review.
Id. (internal citations omitted).
“Section 7703 of the CSRA governs judicial review of the MSPB’s decisions.” Id.Section 7703(b)(1) sets forth the basic rule that petitions to review final MSPB decisions are to
be filed in the Court of Appeals for the Federal Circuit. Id. Section 7703(b)(2) then provides the
exception to that basic rule—i.e., that “[c]ases of discrimination subject to the provisions of
section 7702 . . . [are to] be filed under the enforcement sections” of certain specified
antidiscrimination statutes (including the Civil Rights Act and the ADEA), all of which authorize
suit in federal district court. Id. Section 7702(a)(1) clarifies the meaning of the phrase “cases of
discrimination” in § 7703(b)(2)’s exception:
[I]n the case of any employee . . . who—
(A) has been affected by an action which the employee . . . may appeal to
the Merit Systems Protection Board, and
(B) alleges that a basis for the action was discrimination prohibited by [the
aforementioned specified antidiscrimination statutes],
...
the Board shall, within 120 days of the filing of the appeal, decide
both the issue of discrimination and the appealable action in
accordance with the Board’s appellate procedures[.]
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Id. at 601-02 (citing 5 U.S.C. § 7702(a)(1)). The “cases of discrimination” referenced in
§ 7703(b)(2)’s exception are therefore “mixed cases, in which an employee challenges as
discriminatory a personnel action appealable to the MSPB.” Id. at 602.
In Kloeckner, the Supreme Court held, in a unanimous opinion, that a “federal employee
who claims that an agency action appealable to the MSPB violates an antidiscrimination statute
listed in § 7702(a)(1)”—i.e., an employee who brings a “mixed case”—“should seek judicial
review in district court, not in the Federal Circuit,” when the MSPB decided the case on
procedural grounds or on the merits. 133 S. Ct. at 607. Notably for purposes of the instant case,
however, the Kloeckner Court did not address whether jurisdictional dismissals by the MSPB
should go to the Federal Circuit or to federal district court. See Conforto v. Merit Sys. Prot. Bd.,
713 F.3d 1111, 1117 (Fed. Cir. 2013).
The D.C. Circuit has not yet addressed whether Kloeckner mandates that mixed cases
dismissed by the MSPB solely on jurisdictional grounds should be reviewed in federal district
court. In Conforto, however, the Federal Circuit held that the “statutory text, the Court’s
rationale in Kloeckner, [the Federal Circuit’s] own prior decisions, and the decisions of other
courts all indicate that an appeal from the Board’s dismissal for lack of jurisdiction belongs in”
the Federal Circuit. 713 F.3d at 1117. The Federal Circuit reasoned that because an employee
may appeal to the MSPB “only if the employee’s claim is within the Board’s appellate
jurisdiction, the plain import of this statutory language is that a purported mixed case appeal is
reviewed by the district court only if the Board has jurisdiction to decide the appeal from the
adverse action in issue.” Id. at 1118; see also id. (noting that the statute “requires that the Board
actually have jurisdiction over the employee’s claim, not merely that the employee allege Board
jurisdiction”).
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The Federal Circuit concluded that because the employee’s claim in Kloeckner was
barred under a procedural rule, the Supreme Court “reversed only the line of authority holding
that ‘mixed cases’ dismissed by the Board on procedural grounds were appealable” to the
Federal Circuit. Id. In support of its conclusion, the Conforto court noted that the Supreme
Court had granted certiorari in Kloeckner in order “to resolve a Circuit split on whether an
employee seeking judicial review should proceed in the Federal Circuit or in a district court
when the MSPB has dismissed her mixed case on procedural grounds.” Id. (citing Kloeckner,
133 S. Ct. at 603) (internal quotation marks omitted). The Conforto court also pointed out that
all of the courts of appeal that had addressed the issue prior to the Kloeckner decision had
unanimously agreed that the Federal Circuit “is the appropriate forum for jurisdictional
dismissals [from the MSPB], and therefore there was no circuit split for the Supreme Court to
resolve on that point.” Id. The Conforto court further noted that the Supreme Court had
reiterated several times throughout its Kloeckner opinion that it was deciding only the question
of “whether judicial review of procedural dismissals of mixed case appeals should go to the
Federal Circuit,” and that, “[b]y contrast, the Court never mentioned jurisdictional dismissals,
nor did it suggest that the rule it adopted applied to any cases falling outside the Board’s
jurisdiction.” Id. at 1118-19 (citing Kloeckner, 133 S. Ct. at 600, 602–07) (emphasis added).
The Conforto court therefore concluded that only the Federal Circuit had “jurisdiction to
review a determination by the Board that it lacks statutory jurisdiction over an employee’s
appeal.” Id. at 1116; see also id. at 1120-21 (holding that where “an employee elects to proceed
by appealing to the Merit Systems Protection Board but the Board concludes it does not have
jurisdiction over the employee’s appeal,” then “any appeal from that decision is to” the Federal
Circuit).
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In Conforto, the MSPB found that the plaintiff’s retirement was voluntary and therefore
held “that it lacked jurisdiction over her claim of constructive removal.” 713 F.3d at 1121.
Therefore, the Federal Circuit found that it, and not any federal district court, had jurisdiction to
decide the plaintiff’s appeal, because “the exception to [its] jurisdiction described in sections
7702(a) and 7703(b)(2) does not apply.” Id. Here, too, the MSPB determined that it did not
have jurisdiction over the claims in Brown’s Forced Retirement Complaint because Brown “had
failed to establish that a reasonable person would have been compelled to retire.” (Def.’s
Statement of Facts ¶ 24; see also Def.’s Brief on Subject-Matter Jurisdiction at 2 (noting that the
MSPB “dismissed the appeal for lack of jurisdiction because the retirement was voluntary and
Plaintiff had failed to make a non-frivolous allegation that his ‘working conditions were made so
difficult or intolerable that a reasonable person in his position would have felt compelled to
resign or retire’”) (emphasis in original); Pl.’s Brief on Subject-Matter Jurisdiction at 2
(acknowledging that “the MSPB concluded that it did not have jurisdiction over” the claims in
Brown’s Forced Retirement Complaint). Thus, because Brown seeks review of the MSPB’s
dismissal of his forced retirement claims for lack of jurisdiction, any petition for review of those
claims must be brought before the Federal Circuit, not this court.
Accordingly, the claims in Counts I, II and III predicated on Brown’s alleged forced
retirement are hereby dismissed for lack of subject-matter jurisdiction.
b. Whether Brown Suffered Adverse Employment Actions When His
Request to Telework was Denied and His Requested Travel was Delayed
Aside from his now-dismissed forced retirement claims, Brown also alleges two other
categories of discriminatory actions: a denial of his request to telework, and the delay of two
trips that he requested to take to DOI field offices. (Compl. ¶¶ 9-18). Defendant argues that the
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remaining purported acts of discrimination relating to the telework denial and the travel delays
do not rise to the level of an adverse employment action. (Def.’s Mot. at 2-3).
“To state a claim for age discrimination . . . a plaintiff must allege that he belonged to the
protected age group of 40 years and older and that he suffered an adverse employment action
because of his age.” Wilson v. LaHood, 815 F. Supp. 2d 333, 338 (D.D.C. 2011), aff’d sub nom.
Wilson v. U.S. Dep’t of Transp., 11-5323, 2013 WL 1164130 (D.C. Cir. Mar. 4, 2013). In
addition, a valid retaliation claim requires a plaintiff to establish that: (i) he participated in a
protected activity; (ii) he suffered an adverse action by the employer; and (iii) there is a causal
link between the participation and the adverse action. See McKenna v. Weinberger, 729 F.2d
783, 790 (D.C. Cir. 1984).
i. Denial of Request to Telework
The portions of Brown’s race and sex discrimination claim (Count I) and age
discrimination claim (Count II) premised on MacPherson’s denial of his request to telework must
be dismissed because Brown has not provided any evidence that he suffered an adverse
employment action. An adverse employment action is “a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits.” Taylor v. Small, 350 F.3d
1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998)) (internal quotation marks omitted). If an action is not presumptively adverse, such as
hiring and firing, “[a]n employee must experience materially adverse consequences affecting the
terms, conditions, or privileges of employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible harm.” Douglas v. Donovan, 559 F.3d
549, 552 (D.C. Cir. 2009) (internal quotation marks and citations omitted). “Not everything that
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makes an employee unhappy is an actionable adverse action.” Broderick v. Donaldson, 437 F.3d
1226, 1233 (D.C. Cir. 2006) (quoting Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001))
(internal quotation marks omitted). “‘[P]urely subjective injuries,’ such as dissatisfaction with a
reassignment, public humiliation, or loss of reputation, are not adverse actions[.]” Holcomb, 433
F.3d at 902 (quoting Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C. Cir. 2002)).
Courts in this and other jurisdictions have repeatedly held that denial of a request to
telework on its own does not constitute an adverse employment action. See, e.g., Byrd v.
Vilsack, 931 F. Supp. 2d 27, 41 (D.D.C. 2013) (“the denial of an employee’s request to work
from home on a few occasions, without more, does not constitute an adverse employment action
under Title VII”); Beckham v. Nat’l R.R. Passenger Corp., 736 F. Supp. 2d 130, 149 (D.D.C.
2010) (“Being denied the ability to work from home on, at most, three occasions is a minor
annoyance, not an adverse action.”); Ng v. LaHood, 952 F. Supp. 2d 85, 96 (D.D.C. 2013);
Bright v. Copps, 828 F. Supp. 2d 130, 148–49 (D.D.C. 2011); Brockman v. Snow, 217 F. App’x
201, 206 (4th Cir. 2007) (“A determination affecting [Plaintiff’s] ability to work where she
chooses is not the type of ultimate decision that this court has required for a prima facie case of
discrimination.”); Homburg v. UPS, No. 05–2144, 2006 WL 2092457, at *9 (D. Kan. July 27,
2006) (“[D]istrict courts . . . have consistently held that the denial of a request to work from
home is not adverse employment action.”) (collecting cases); Seldon v. Nat’l R.R. Passenger
Corp., No. 05-4165, 2007 WL 3119976, at *3 (E.D. Pa. Oct. 24, 2007) (collecting cases); Melton
v. Farmers Ins. Grp., 619 F. Supp. 2d 1131, 1139 (W.D. Okla. 2008); but see Weng v. Solis, 960
F. Supp. 2d 239, 249 (D.D.C. 2013) (holding that plaintiff’s removal from a program that had
allowed plaintiff “to work from home one day a week . . . constituted an adverse employment
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action” because a “reasonable fact finder could find that this materially affected the terms,
conditions, or privileges of [plaintiff’s] employment”) (internal quotation marks omitted).
The Court agrees with the cited opinions that a denial of a request to telework, without
more, does not rise to the level of an adverse employment action, as it does not involve “hiring,
firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing significant change in benefits.” Taylor, 350 F.3d at 1293.
ii. Delayed Travel
Brown’s retaliation claim (Count III) is partially based on what Brown describes as
MacPherson’s “denials” of his requests to travel to Portland and Denver in October 2008 and
February 2009, respectively. (Compl. ¶¶ 17, 39). Brown alleges that these travel denials
constitute adverse employment actions because
he was prevented from performing the required duties of his position and was
unable to create a current Handbook and Manual and other policies. This further
impacted his duties by preventing him from ensuring program continuity and
properly advising field offices on the current policies and procedures. As a result,
Mr. Brown could not properly perform a substantial portion of the required duties
of his position, including overseeing the implementation of the appropriate policies
and procedures in field offices.
(Pl.’s Opp’n 27-28) (internal citations omitted).
Brown’s claims fall short for several reasons. He fails to explain how the delayed visits
to the Portland and Denver field offices prevented him from developing department policies.
He also fails to explain why he could not advise field offices of current policies and procedures
by e-mail or telephone, or why in-person meetings in those field offices were required. He does
not allege that he was required to visit all field offices as part of his job responsibilities, or why
visiting these two field offices in particular was critical.
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Most importantly, it does not appear that MacPherson ever affirmatively denied Brown’s
requests—he simply failed to timely respond. Even if MacPherson had initially denied the
requests, it is undisputed that Brown did in fact travel to Portland and Denver, albeit belatedly.
(Compl. ¶ 18; Def.’s Statement of Facts ¶ 16). “A decision that is later reversed does not have
an objectively adverse effect on a plaintiff warranting relief under Title VII.” Rattigan v.
Gonzales, 503 F. Supp. 2d 56, 74 (D.D.C. 2007) (finding no adverse action where plaintiff’s
planned travel was canceled but later reauthorized); see also Arnold v. Jewell, No. 05-1475, 2013
WL 6730918, at *6 (D.D.C. Dec. 23, 2013) (“delaying Arnold’s work-related travel ‘did not
have a materially adverse effect on the terms or conditions of plaintiff’s employment—[Arnold]
simply carried out [her] work responsibilities at the time . . . dictated by [her] supervisor[.]’”)
(citation omitted). Thus, even if MacPherson’s initial alleged denials of Brown’s travel requests
did constitute adverse employment actions—which is far from clear—“[a]n employer may cure
an adverse employment action . . . before that action is the subject of litigation.” Taylor, 350
F.3d at 1293. Brown does not allege that traveling to Portland and Denver months later than he
had hoped had any adverse impact on the “terms, conditions, or privileges of [his] employment,”
or had any adverse impact at all. Douglas, 559 F.3d at 552. Moreover, nowhere does he explain
why the timing of the visits to the field offices was important.
Thus, the claim in Count III predicated on Brown’s delayed travel is hereby dismissed.
IV. CONCLUSION
For the foregoing reasons, (i) the claims in Counts I, II and III predicated on Plaintiff’s
alleged forced retirement are dismissed for lack of subject-matter jurisdiction; and
(ii) Defendant’s motion to dismiss or in the alternative for summary judgment is granted with
respect to the claims in Counts I and II predicated on the denial of Plaintiff’s request to telework
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and the claim in Count III predicated on Plaintiff’s delayed travel. An appropriate Order
accompanies this Memorandum Opinion.
Date: September 29, 2015
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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