Wright v. Sessions

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANGELA WRIGHT,
Plaintiff,
v.
MERRICK B. GARLAND, in his Civ. Action No. 17-1081
official capacity as Attorney (EGS/GMH)
General of the United States,
U.S. Department of Justice, 1
Defendant.
MEMORANDUM OPINION
I. Introduction
Plaintiff Angela Wright (“Ms. Wright”) has sued Defendant
Merrick B. Garland in his official capacity as Attorney General
of the United States (“Defendant”) under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e et seq. See Compl., ECF No. 1. She
alleges sexual harassment, gender discrimination, and
retaliation for engaging in protected Equal Employment
Opportunity (“EEO”) activity during her six years as a Detention
1 Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, the current Attorney General of the United States,
Merrick B. Garland, is substituted as Defendant for the former
Attorney General of the United States, William P. Barr. See Fed.
R. Civ. P. 25(d).
1
Enforcement Officer with the U.S. Marshals Service (“Marshals
Service” or “Agency”) at the Department of Justice. See id.
Pending before the Court is Defendant’s Motion to Dismiss
or, in the Alternative, for Summary Judgment, see Def.’s Mot.
Dismiss or, in Alternative, Summ. J., ECF No. 23; and Ms.
Wright’s request for discovery pursuant to Rule 56(d), see Pl.’s
Opp’n Def.’s Mot. Dismiss, or, in Alternative, Summ. J., ECF No.
27 at 41-42. 2
Magistrate Judge Harvey issued a Report and Recommendation
(“R. & R.”) recommending that this Court grant in part and deny
in part Defendant’s Motion to Dismiss or, in the Alternative,
for Summary Judgment. See R. & R., ECF No. 47 at 1. Magistrate
Judge Harvey also recommended that this Court deny Ms. Wright’s
request for discovery pursuant to Rule 56(d) as moot. See id. at
2. Ms. Wright raises several objections to Magistrate Judge
Harvey’s R. & R. See generally Pl.’s Objs. Magistrate Judge’s R.
& R. (“Pl.’s Objs.”), ECF No. 52.
Upon careful consideration of the R. & R., the objections
and opposition thereto, the applicable law, and the entire
record herein, the Court hereby ADOPTS Magistrate Judge Harvey’s
R. & R., see ECF No. 47; GRANTS IN PART and DENIES IN PART
2 When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of
the filed documents.
2
Defendant’s Motion to Dismiss or, in the Alternative, for
Summary Judgment, see ECF No. 23; and DENIES Ms. Wright’s
request for discovery pursuant to Rule 56(d), see ECF No. 27 at
41-42.
II. Background 3
A. Factual
Ms. Wright began working as a Detention Enforcement Officer
with the Marshals Service on January 16, 2010. Def.’s Reply
Counter-Statement of Disputed Facts (“SOMF”), ECF No. 45-1 ¶ 1.
At that time, she was assigned to work at the District of
Columbia Superior Court (“D.C. Superior Court”). Id. ¶ 2.
On June 13, 2012, 4 Ms. Wright filed a complaint (the “June
2012 EEO Claim”) with the Office of Equal Employment Opportunity
for the Marshals Service (“EEO”). Id. ¶ 3. She made allegations
against the following individuals: Supervisory Detention
Enforcement Officer Eric Clark (“Supervisory Officer Clark”),
Supervisory Detention Enforcement Officer William Coleman
(“Supervisory Officer Coleman”), Supervisory Deputy U.S. Marshal
David Grogan (“Supervisory Deputy Grogan”), Supervisory Deputy
U.S. Marshal John Waters (“Supervisory Deputy Waters”),
3 The Background section closely tracks Magistrate Judge
Harvey’s R. & R. See R. & R., ECF No. 47 at 2-16.
4 Although the complaint is dated May 1, 2012, it was not filed
with the EEO Office until June 13, 2012. See ECF No. 23-4 at 2,
4.
3
Assistant Chief Deputy U.S. Marshal Terry Fred (“Assistant Chief
Deputy Fred”), Assistant Chief Deputy U.S. Marshal James Cyphers
(“Assistant Chief Deputy Cyphers”), and Chief Deputy U.S.
Marshal James Brooks(“Chief Deputy Brooks”). See ECF No. 23-4 at
2 (June 2012 EEO Claim).
The Agency accepted the following allegations and issues
for further investigation:
Whether [Ms. Wright] was discriminated against
based on sex (female), disability (carpel
tunnel syndrome) and parental status (single
parent) and subjected to sexual harassment and
a hostile work environment since May 1, 2012.
Examples of the sexual harassment/hostile work
environment include, but are not limited to
the following:
1. [Supervisory Officer Clark] asked [Ms.
Wright] for sexual favors, called and visited
[her] work post, and physically brushed his
body against [her];
2. [Supervisory Officer Clark] threatened to
change [Ms. Wright]’s work hours if she did
not give in to his sexual advances. [Ms.
Wright] alleges her status as a single parent
was a factor in this threat;
3. [Supervisory Officer Clark] commented to
District management that [Ms. Wright] is not
capable of performing her job and is
frequently off from work due to injury,
therefore, [she] should perform secretarial
duties; and
4. On June 13, 2012, [Supervisory Officer
Clark] attempted to have the Assistant Chief
Deputy place [Ms. Wright] on leave
restrictions.
5. Whether [Ms. Wright] was subjected to
reprisal (for filing the instant complaint)
and a hostile work environment since June 13,
2012, when district management officials:
4
a) continually changed [her] work
assignment;
b) told other district employees
about [her] performance evaluation
rating;
c) again requested [her] be placed
on leave restriction;
d) questioned district employees
concerning [her] whereabouts and
lunch breaks;
e) discussed [her] leave, workman’s
compensation injury and other
personal business to and/or in front
of other district employees;
f) requested specific information
concerning [her] doctor
appointments; and
g) ordered [her] to be relieved from
her post and enter the cellblock for
meeting although [she] is on light
duty and had been instructed not to
enter the cellblock for safety
reasons.
SOMF, ECF No. 45-1 ¶ 4 (quoting ECF No. 23-4 at 4-6 (September
2012 EEO Acceptance Letter)).
On January 25, 2013, Ms. Wright amended her June 2012 EEO
Claim. See ECF No. 23-4 at 10 n.3 (2012 EEO Claim Investigation
Report)). This amendment added two allegations to the EEO
investigation:
Whether [Ms. Wright] was subjected to reprisal
(for filing the initial complaint) when:
(a) On November 8, 2012, [Ms. Wright] was
informed that her work hours were changed from
6:00 a.m. - 2:30 p.m. to 6:30 a.m. - 3:00 p.m.;
and
(b) On November 21, 2012, [Ms. Wright] was
informed by the supervisory deputy that she
has to report her arrival time, breaks, when
she departs for and returns from the bathroom,
as well as when she leaves for the day.
5
SOMF, ECF No. 45-1 ¶ 6 (citing ECF No. 23-4 at 10 (2012 EEO
Claim Investigation Report)).
Following this investigation, Ms. Wright sought a hearing
before an Administrative Judge on the Equal Employment
Opportunity Commission (“EEOC”). Id. ¶ 7. On February 25, 2015,
the EEOC held the requested hearing and heard testimony from Ms.
Wright and various employees at the Marshals Service. Id. ¶¶ 7-
8. The Administrative Judge issued his final decision on May 11,
2015, finding that Ms. Wright had failed to establish a claim of
sexual harassment, discrimination, retaliation, or hostile work
environment in violation of Title VII. Id. ¶ 9 (citing ECF No.
23-4 at 16-37 (May 2015 Decision)). The EEOC entered its final
order accepting the Administrative Judge’s decision and
informing Ms. Wright of her appeal rights on June 15, 2015. Id.
¶¶ 11-12.
In August 2013, while the investigation concerning the June
2012 EEO Claim was pending, Ms. Wright was temporarily
reassigned from the D.C. Superior Court to the U.S. District
Court for the District of Columbia. Id. ¶ 36. She was then
reassigned back to the D.C. Superior Court and moved to the
evening shift in April 2014. Id. ¶¶ 37-39. Chief Deputy U.S.
Marshal Charlotta Allen-Brown (“Chief Deputy Allen-Brown”)
assigned Ms. Wright to two supervisors: Supervisory Officer
6
Clark and Supervisory Deputy Waters. Compl., ECF No. 1 ¶¶ 17,
18, 23. Chief Deputy Allen-Brown instructed Assistant Chief
Deputy U.S. Marshal Todd Singleton (“Assistant Chief Deputy
Singleton”) to refer Ms. Wright to the Marshals Service’s
Employee Assistance Program (“EAP”). SOMF, ECF No. 45-1 ¶¶ 31-
32. Chief Deputy Allen-Brown testified that the Agency referred
Ms. Wright to the EAP because she was “very stressed out” over
being returned to D.C. Superior Court because people there “did
not like her,” she had “family issues,” and the transfer back
was “not in compliance with [an] alleged agreement that she had
previously entered with Headquarters senior management and the
Office of General Counsel.” ECF No. 23-5 at 10. Supervisory
Deputy Waters issued a memorandum to Ms. Wright on April 8,
2014, stating that her “participation in the EAP program is
mandatory, not voluntary.” Id. at 48. Chief Deputy Allen-Brown
and Assistant Chief Deputy Singleton later testified that the
EAP is voluntary and that neither intended the referral to be
mandatory. See SOMF, ECF No. 45-1 ¶¶ 33-35.
On April 28, 2014, Ms. Wright filed another complaint with
the Marshals Service’s EEO Office (the “April 2014 EEO Claim”).
Id. ¶ 13 (citing ECF No. 23-4 at 52). The Agency accepted the
following allegations for investigation:
(a) In a memorandum dated April 8, 2014, [Ms.
Wright] received notice that she had been
7
referred to and directed to participate in the
Employee Assistance Program;
(b) On April 4, 2014, [Ms. Wright] learned
that her detail to the U.S. District Court was
ending that she was being returned to her duty
station at the D.C. Superior Court and
assigned to work the evening shift.
Id. ¶ 14 (citing ECF No. 23-4 at 54-55 (June 2014 EEO Letter)).
On June 30, 2014, Ms. Wright filed a third complaint with
the Marshals Service’s EEO Office (the “June 2014 EEO Claim”).
Id. ¶ 15. She alleged discrimination based on race, retaliation,
and a retaliatory hostile work environment. Id. ¶ 17. On October
28, 2014, the Agency accepted two incidents for investigation:
(a) On May 27, 2014, [Ms. Wright] learned she
was the only Detention Enforcement Officer
required to report to two different
supervisors.
(b) On May 6, 2014, her supervisor addressed
her in a hostile manner and stated she had
been watching [Ms. Wright] for a couple hours.
Id. ¶¶ 15-16 (quoting ECF No. 23-6 at 4-5 (October 2014 EEO
Letter)).
On August 4, 2014, Ms. Wright filed a fourth complaint with
the Marshals Service’s EEO Office (the “August 2014 EEO Claim”).
Id. ¶ 18. The Agency accepted the following claim for
investigation: “[w]hether [Ms. Wright] was subjected to reprisal
discrimination . . . when, on July 18, 2014, she learned she was
not to attend the August 2014 Basic Deputy United States Marshal
[training]. . . . [Ms. Wright] further alleged her non-selection
was a direct result of conversations she had in meetings with
8
her Chief Deputy” and “her previous EEO activity.” ECF No. 23-4
at 59 (August 2014 EEO Letter).
The Agency consolidated the April 2014 EEO Claim, June 2014
EEO Claim, and August 2014 EEO Claim (the “Consolidated 2014 EEO
Claim”). Id. ¶¶ 22-23.
Then, on December 26, 2014, Ms. Wright filed a fifth
complaint (the “December 2014 EEO Claim”). Id. ¶ 25. The Agency
determined it would investigate whether she “was subjected to
reprisal (filed prior EEO complaints) when, on December 5, 2014,
she learned she was not selected by her District for a slot in
the upcoming class of candidates for the Deputy U.S. Marshal
position (Vacancy Announcement Admit. 15 Number 11-001)
scheduled to begin on January 21, 2015.” Id. ¶ 26 (citing ECF
No. 23-6 at 33 (February 2015 EEO Letter)).
While the EEO Office conducted its investigations, Ms.
Wright “was engaged in a physical confrontation” with a prisoner
on June 8, 2015 and, as required, reported using force greater
than a minor restraint. Id. ¶ 58. The Marshals Service Internal
Affairs Office conducted a review and closed the submission.
Id.; ECF No. 35-2 at 33. On June 17, 2015, upon direction from
the Office of Professional Responsibility, Assistant Chief
Deputy U.S. Marshal Jacob Green placed Ms. Wright on limited
duty and confiscated her credentials, badge, and firearm. SOMF,
ECF No. 45-1 ¶¶ 60-61.
9
On July 30, 2015, Ms. Wright filed a sixth complaint (the
“July 2015 EEO Claim”), alleging reprisal discrimination for her
placement on limited duty and the confiscation of her badge,
credentials, and firearm. Id. ¶ 28. The Agency accepted the
claim for investigation. Id. ¶ 29 (citing ECF No. 23-7 at 48-49
(August 2015 EEO Letter)). Ms. Wright’s union representative
also initiated a “Step One Grievance” pursuant to the collective
bargaining agreement. Id. at 38.
Meanwhile, the EEO Office completed its investigation into
the Consolidated 2014 EEO Claim and issued its report on January
30, 2015. ECF No. 23-6 at 24-26. On February 2, 2015, Ms. Wright
sought a hearing before an EEOC Administrative Judge for the
Consolidated 2014 EEO Claim. Id. at 29.
Similarly, Ms. Wright requested a hearing when the EEO
Office completed its investigations of the December 2014 EEO
Claim and the July 2015 EEO Claim. SOMF, ECF No. 45-1 ¶¶ 27, 30.
But before an Administrative Judge conducted either of those
hearings, Ms. Wright filed this action, and the EEO Office
dismissed her hearing requests. Id.
B. Procedural
On June 28, 2018, Defendant filed its Motion to Dismiss or,
in the Alternative, for Summary Judgment. See Def.’s Mot.
Dismiss or, in Alternative, Summ. J., ECF No. 23. Ms. Wright
filed her brief in opposition to Defendant’s Motion on August
10
10, 2018. See Pl.’s Opp’n Def.’s Mot. Dismiss, or, in
Alternative, Summ. J., ECF No. 27. In that brief, she requested
discovery pursuant to Rule 56(d). See id. at 41-42. Defendant
filed its reply brief on February 7, 2019. See Def.’s Reply in
Supp. of Mot. J. Pleadings or, in Alternative, Summ. J., ECF No.
45.
The Court referred the case to a magistrate judge for full
case management, and the case was randomly assigned to
Magistrate Judge Harvey. See Docket for Civ. Action No. 17-1081.
On June 8, 2020, Magistrate Judge Harvey issued his R. & R.
recommending that the Court grant in part and deny in part
Defendant’s Motion to Dismiss or, in the Alternative, for
Summary Judgment, see R. & R., ECF No. 47 at 1; and that the
Court deny Ms. Wright’s Rule 56(d) discovery request as moot,
see id. at 2.
On August 21, 2020, Ms. Wright filed her objections to
Magistrate Judge Harvey’s R. & R. See Pl.’s Objs., ECF No. 52.
Defendant filed a response on September 18, 2020. See Def.’s
Resp. Pl.’s Objs. Magistrate’s R. & R. (“Def.’s Opp’n”), ECF No.
54. The motions are now ripe and ready for adjudication.
11
III. Legal Standard
A. Objections to a Magistrate Judge’s Report and
Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).
A district court “may accept, reject, or modify the recommended
disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
636(b)(1)(C) (“A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”). A district court “must
determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).
“If, however, the party makes only conclusory or general
objections, or simply reiterates his original arguments, the
Court reviews the [R. & R.] only for clear error.” Houlahan v.
Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013) (citation and
internal quotation marks omitted). “Under the clearly erroneous
standard, the magistrate judge’s decision is entitled to great
deference” and “is clearly erroneous only if on the entire
evidence the court is left with the definite and firm conviction
that a mistake has been committed.” Buie v. Dist. of Columbia,
No. CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12,
12
2019) (internal quotation marks omitted) (quoting Graham v.
Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009)).
Objections must “specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for the objection.” LCvR 72.3(b). “[O]bjections
which merely rehash an argument presented and considered by the
magistrate judge are not ‘properly objected to’ and are
therefore not entitled to de novo review.” Shurtleff v. EPA, 991
F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.
08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)). The
Court reviews Ms. Wright’s objections de novo.
13
B. Rule 56 Motion for Summary Judgment 5
Federal Rule of Civil Procedure 56 provides that summary
judgment motions must be granted if “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, 250 (1986). The moving party
bears the initial burden “of informing the district court of the
basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
5 Magistrate Judge Harvey noted that “Defendant’s motion is
brought pursuant to Rule 12(b)(6), for failure to state a claim
upon which relief may be granted; Rule 12(c), for judgment on
the pleadings; and Rule 56, for summary judgment,” R. &. R., ECF
No. 47 at 16 n.16 (citing ECF No. 23 at 1); but that the
Defendant did not identify which arguments should be addressed
under which rule, id. He noted that both Ms. Wright and the
Defendant had complied with Federal Rule of Civil Procedure 56
and with the local rules of the court and that Ms. Wright
responded to the motion as if it were one for summary judgment
by, among other things, responding to the Defendant’s statement
of facts. See ECF No. 26. Accordingly, Magistrate Judge Harvey
evaluated the motion as one for summary judgment. Neither party
objected to Magistrate Judge Harvey’s approach. See generally
Pl.’s Objs., ECF No. 52; Def.’s Opp’n, ECF No. 54. Accordingly,
this Court will treat the motion as one for summary judgment. Cf.
Panarello v. Zinke, 254 F. Supp. 3d 85, 96 n.3 (D.D.C. 2017)
(treating the defendant’s combined motion to dismiss and motion
for summary judgment as a motion for summary judgment “to the
extent necessary”), aff’d sub nom. Panarello v. Bernhardt, 788
F. App’x 18 (D.C. Cir. 2019).
14
(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be
discharged by ‘showing’ . . . that there is an absence of
evidence to support the nonmoving party’s case.” Celotex, 477
U.S. at 325.
A party opposing a summary judgment motion must show that a
genuine factual issue exists by “(A) citing to particular parts
of materials in the record . . . or (B) showing that the
materials cited do not establish the absence . . . of a genuine
dispute.” Fed. R. Civ. P. 56(c). Any factual assertions in the
moving party’s affidavits will be accepted as true unless the
opposing party submits his own affidavits or other documentary
evidence contradicting the assertion. See Neal v. Kelly, 963
F.2d 453, 456 (D.C. Cir. 1992). However, “the inferences to be
drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (citation and internal quotation marks
omitted).
C. Rule 56(d) Motion for Discovery
Under Federal Rule of Civil Procedure 56(d), a non-moving
party may ask the court to stay the consideration of summary
judgment. See Fed. R. Civ. P. 56(d). A court may defer
considering a motion for summary judgment, deny the motion, or
allow time for the non-movant to take discovery if that party
15
“shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition.”
Id. The criteria of a Rule 56(d) declaration are that:
(1) It must outline the particular facts the
non-movant intends to discover and describe
why those facts are necessary to the
litigation, (2) it must explain why the non-
movant could not produce the facts in
opposition to the motion for summary
judgment; and (3) it must show the information
is in fact discoverable.
U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19,
26–27 (D.C. Cir. 2014) (citing Convertino v. DOJ, 684 F.3d 93,
99-100 (D.C. Cir. 2012)). A Rule 56(d) motion for discovery
“should be granted almost as a matter of course unless the non-
moving party has not diligently pursued discovery of the
evidence.” Convertino, 684 F.3d at 99.
IV. Analysis
A. Magistrate Judge Harvey Correctly Granted Summary
Judgment on Ms. Wright’s Retaliation Claims
Title VII makes it unlawful for an employer to retaliate
against an employee because the employee engaged in protected
activity and asserted her Title VII rights. See 42 U.S.C. §
2000e-3(a); Jeffries v. Barr, 965 F.3d 843, 860 (D.C. Cir.
2020). Where, as here, the plaintiff has no direct evidence of
retaliation, she must proceed under the burden-shifting
framework set out in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Iyoha v. Architect of the Capitol, 927 F.3d 561,
16
574 (D.C. Cir. 2019). This framework requires that the plaintiff
first plead her prima facie case. See McDonnell Douglas, 411
U.S. at 802. In other words, she must establish: “‘(1) that
[s]he engaged in statutorily protected activity; (2) that [s]he
suffered a materially adverse action by h[er] employer; and (3)
that a causal link connects the two.’” Iyoha, 927 F.3d at 574
(quoting Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)).
If the employee makes out a prima facie case, then the burden
shifts to the employer to “‘articulate some legitimate,
nondiscriminatory reason’ for its action.” Jeffries, 965 F.3d at
859 (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248,
252-53 (1981)). If the employer carries its burden, “the burden-
shifting framework disappears,” and the Court considers “whether
a reasonable jury could infer retaliation from all the evidence,
which includes not only the prima facie case but also the
evidence the plaintiff offers to attack the employer’s proffered
explanation for its action and other evidence of retaliation.”
Jones, 557 F.3d at 677 (alterations, citation, and internal
quotation marks omitted).
As relevant here, “only a retaliatory act that is
‘materially adverse’ to the plaintiff is actionable.” Chambers
v. Dist. of Columbia, 35 F.4th 870, 876 (D.C. Cir. 2022) (citing
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006)), judgment entered, No. 19-7098, 2022 WL 2255692 (D.C.
17
Cir. June 23, 2022). Courts determine whether an action is
materially adverse using an objective standard, see id.; that
is, “the employer’s actions must be harmful to the point that
they could well dissuade a reasonable worker from making or
supporting a charge of discrimination,” White, 548 U.S. at 57.
Materially adverse actions are thus “objectively tangible
harm[s],” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir.
2002); and not “those petty slights or minor annoyances that
often take place at work and that all employees experience,”
White, 548 U.S. at 58.
Magistrate Judge Harvey recommended that the Court dismiss
two of Ms. Wright’s retaliation claims: (1) her referral to the
EAP and (2) her assignment to two supervisors. See R. & R., ECF
No. 47 at 58, 61. Specifically, Magistrate Judge Harvey
concluded that Ms. Wright failed to establish that these
incidents constitute materially adverse employment actions. See
id.Ms. Wright objects to this portion of the R. & R. See Pl.’s
Objs., ECF No. 52 at 1-3. For the reasons below, the Court
agrees with Magistrate Judge Harvey’s recommendation as to each
retaliation claim.
18
1. Ms. Wright’s Referral to the EAP Was Not Materially
Adverse
Ms. Wright objects to Magistrate Judge Harvey’s conclusion
that referral to an EAP is not an adverse employment action “as
a matter of law.” Id. at 1. She asserts that the Court should
“allow the claim based on the record adduced so far and further
allow the matter to be explored in discovery.” Id. The Court
rejects Ms. Wright’s characterization of the R. & R. At no point
does Magistrate Judge Harvey conclude that an EAP referral is
not an adverse employment action as a matter of law. See
generally R. & R., ECF No. 47 at 58-61. Rather, Magistrate Judge
Harvey considered the uncontested facts, canvassed the caselaw
concerning EAP referrals in the context of retaliation claims,
and determined that “where, as here, a plaintiff fails to
identify ‘any consequences whatsoever’ from an EAP referral, . .
. the referral does not constitute an adverse employment
action.” Id. at 60 (quoting Hyson v. Architect of Capitol, 802
F. Supp. 2d 84, 103 (D.D.C. 2011)). In other words, the factual
record does not support Ms. Wright’s prima facie case. See
Iyoha, 927 F.3d at 574.
In her briefing, Ms. Wright offers three reasons why the
Court should reject the R. & R. See Pl.’s Objs., ECF No. 52 at
2. First, she contends that the EAP referral was an adverse
action because it “occurred at the same time as the other
19
retaliatory acts that have survived.” Id. Defendant rejects
“[t]his excessively broad interpretation of the meaning of
‘adverse action’” as “not supported by the law.” Def.’s Opp’n,
ECF No. 54 at 2. Indeed, Ms. Wright cites no caselaw to support
her position that contemporaneous acts need not be independently
materially adverse acts. See generally Pl.s’ Objs., ECF No. 52
at 2.
The Court agrees with Defendant that Ms. Wright’s temporal
proximity argument does not provide a basis to reject the R. &
R. See Def.’s Opp’n, ECF No. 54 at 2. In both her April 2014
Claim 6 and her federal Complaint, Ms. Wright alleged that the
EAP referral was a discrete act of retaliation. See ECF No. 23-4
at 52 (April 2014 EEO Claim); id. at 54 (Agency’s framing of
April 2014 EEO Claim); Compl., ECF No. 1 ¶¶ 24-26, 53-56.
Therefore, her “retaliation claim may proceed only under the
theory that [she] experienced a discrete, materially adverse
retaliatory action.” Ali v. D.C. Gov’t, 810 F. Supp. 2d 78, 90
n.16 (D.D.C. 2011) (citing Nurriddin v. Bolden, 674 F. Supp. 2d
6 As Magistrate Judge Harvey explained in his R. & R., “[t]he
Agency’s June 2014 EEO Letter framing the issues from the April
2014 EEO Claim for investigation . . . identifies only two
discrete acts occurring on two specific dates—Plaintiff’s
referral to the EAP on April 8, 2014, and her assignment to the
evening shift on April 4, 2014—as the basis for Plaintiff’s
charge of discrimination. . . . Plaintiff has pointed to no
evidence that she objected to the Agency’s framing of her
claim.” R. & R., ECF No. 47 at 43 (citing, among other cases,
Beaver v. McHugh, 840 F. Supp. 2d 161, 170 (D.D.C. 2012)).
20
64, 94 (D.D.C. 2009)). Ms. Wright must establish that the EAP
referral was materially adverse and cannot bootstrap this claim
into a new theory of retaliation at this stage in the
proceedings. See Dist. of Columbia v. Barrie, 741 F. Supp. 2d
250, 263 (D.D.C. 2010) (“It is well established that a party may
not amend its complaint or broaden its claims through summary
judgment briefing.”).
Second, Ms. Wright argues that her referral to the EAP was
materially adverse because she has shown that Defendant’s claim
that “the EAP referral was ‘voluntary,’ not mandatory, was
plainly wrong.” Pl.’s Objs., ECF No. 52 at 2. As Defendant
points out, see Def.’s Opp’n, ECF No. 54 at 2-3; this argument
ignores that Magistrate Judge Harvey determined that generally
“even a mandatory referral to an EAP is not an adverse
employment action,” R. & R., ECF No. 47 at 60 (collecting
cases). The Court agrees with this analysis. “[T]he weight of
authority indicates that referral to an EAP does not constitute
an adverse employment action under Title VII.” Ndzerre v. Wash.
Metro. Area Transit Auth., 275 F. Supp. 3d 159, 166 (D.D.C.
2017). The caselaw does not turn on whether participation in the
EAP is voluntary or mandatory. See, e.g., Pope v. W. Tidewater
Cmty. Servs. Bd., No. 2:21-CV-449, 2022 WL 3162193, at *13-14
(E.D. Va. Aug. 8, 2022); King v. Fulton Cnty., No. 1:08-CV-
03729TWTGGB, 2010 WL 2978072, at *7 (N.D. Ga. June 28, 2010),
21
report and recommendation adopted, No. 1:08-CV-3729-TWT, 2010 WL
2977968 (N.D. Ga. July 23, 2010); Robinson v. Fulton Cnty., No.
CIVA 105CV-2250-RWS, 2008 WL 78711, at *13 (N.D. Ga. Jan. 4,
2008); Pierce-Daniels v. Potter, No. 01 C 3789, 2003 WL
22532821, at *14 (N.D. Ill. Nov. 7, 2003). Rather, it turns on
whether other adverse consequences accompany the EAP referral.
See, e.g., Mitchell v. GE Healthcare, No. 04-CV-353, 2007 WL
601759, at *15 (E.D. Wis. Feb. 23, 2007) (“[R]eferral to the
Employee Assistance Program with the mandatory leave of absence
may qualify as an adverse employment action.”). Even a mandatory
EAP referral, without more, is simply a “minor annoyance[].”
White, 548 U.S. at 68. Here, Ms. Wright does not allege that she
suffered any other consequences when she was referred to the
Marshals Service’s EAP. See generally Pl.’s Objs., ECF No. 52.
The Court therefore determines that the undisputed facts support
Magistrate Judge Harvey’s conclusion that the EAP referral was
not materially adverse.
Third, Ms. Wright claims that the EAP referral was
materially adverse because “[D]efendant was acutely aware of
[her] concerns about the retaliatory environment” at the time of
the referral. Pl.’s Objs., ECF No. 52 at 2. She cites testimony
from Chief Deputy Allen-Brown acknowledging that she “was
referred to the EAP because [she] was ‘very stressed out’” due
to her transfer to D.C. Superior Court “because people there
22
‘did not like her,’ she had ‘family issues,’ and the transfer
back was ‘not in compliance with [an] alleged agreement that she
had previously entered with Headquarters senior management and
the Office of General Counsel.’” Id. (quoting R. & R., ECF No.
47 at 6-7 (quoting ECF No. 23-5 at 10)). Defendant offers no
response to this argument. See generally Def.’s Opp’n, ECF No.
54 at 2-3. Still, the Court finds no error in the R. & R as Ms.
Wright cites no caselaw to support her argument, nor does she
distinguish the cases upon which the Magistrate Judge Harvey
relied to conclude that the EAP referral was not materially
adverse.
Finally, Ms. Wright states that the Court should reject
Magistrate Judge Harvey’s recommendation because “[i]t is
subjectively and objectively reasonable [under the
circumstances] to interpret a mandatory referral to this type of
program as retaliation for being a complaining victim.” Pl.’s
Objs., ECF No. 52 at 2. She cites no legal authority for this
proposition. See id. As the Court explained supra, referral to
an EAP without additional consequences, as here, is not an
objectively and materially adverse action. See R. & R., ECF No.
47 at 58-61 (collecting cases).
Accordingly, the Court agrees with Magistrate Judge Harvey
that Ms. Wright’s referral to the EAP was not a materially
adverse action; ADOPTS that portion of the R. & R., see ECF No.
23
47; and GRANTS Defendant’s Motion for Summary Judgment on the
issue, see ECF No. 23.
2. Ms. Wright’s Assignment to Two Supervisors Was Not
Materially Adverse
Ms. Wright also objects to Magistrate Judge Harvey’s
conclusion that her assignment to two supervisors was not
materially adverse. See Pl.’s Objs., ECF No. 52 at 2-3. She
argues that the R. & R. “disregards” the record evidence that
she felt “it was embarrassing, humiliating[,] and stressful”;
and she “felt singled out [that she] had to answer to two
supervisors via one would approve something and the other would
disapprove it.” Id. (quoting ECF No. 23-6 at 9). She also
explains that this assignment “was unprecedented for someone of
plaintiff’s rank” and discusses the identity of her two
supervisors as evidence that the action was adverse. Id.
Defendant, citing persuasive authority, asserts that this
evidence is not sufficient to establish that the assignment was
materially adverse. See Def.’s Opp’n, ECF No. 54 at 4-5 (citing
Casey v. Mabus, 878 F. Supp. 2d 175, 186 (D.D.C. 2012); Booth v.
Dist. of Columbia, 701 F. Supp. 2d 73, 80 (D.D.C. 2010)).
The Court is unpersuaded by Ms. Wright’s arguments. First,
feelings of embarrassment and of being singled out do not make
an action materially adverse. The Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) has made clear
24
that “‘purely subjective injuries,’ such as dissatisfaction with
a reassignment, public humiliation, or loss of reputation, are
not adverse actions.” Holcomb v. Powell, 433 F.3d 889, 902 (D.C.
Cir. 2006); see also Casey, 878 F. Supp. 2d at 186 (“[E]nduring
‘public humiliation’ or ‘loss of reputation’ in the workplace—
though unfortunate—cannot form the basis of a Title VII
claim.”).
Second, increased supervision is not a materially adverse
employment action. See Halcomb v. Off. of Senate Sergeant-at-
Arms of U.S. Senate, 563 F. Supp. 2d 228, 241-42 (D.D.C. 2008)
(collecting cases), aff’d sub nom. Halcomb v. Off. of Senate
Sergeant-at-Arms, 368 F. App’x 150 (D.C. Cir. 2010). Courts are
“near unanimous in concluding that close scrutiny, monitoring,
or tracking . . . simply does not rise to the level of a
materially adverse retaliatory action sufficient to survive a
motion to dismiss.” Aldrich v. Burwell, 197 F. Supp. 3d 124,
132-33 (D.D.C. 2016) (collecting cases). Moreover, the
possibility of being subjected to “conflicting directives . . .
constitutes a ‘minor annoyance’ that many employees have endured
in the workplace.” Clarkson v. SEPTA, 700 F. App’x 111, 115 (3d
Cir. 2017).
Third, Ms. Wright’s reference to the identity of her two
supervisors—both of whom were subjects in her June 2012 EEO
claim—does not alter the Court’s analysis here. In his R. & R.,
25
Magistrate Judge Harvey considered three separate events that
Ms. Wright alleged were retaliatory:
1. In April 2014, upon her return to D.C.
Superior Court, [Ms. Wright] was assigned two
supervisors (Event 17);
2. In April 2014, Deputy Chief Allen-Brown
assigned Supervisory Officer Clark as [Ms.
Wright]’s direct supervisor (Event 18); and
3. In April 2014, Deputy Chief Allen-Brown
assigned Supervisory Deputy Waters as one of
[Ms. Wright]’s supervisors (Event 20).
R. & R., ECF No. 47 at 54. Magistrate Judge Harvey then examined
each of these events and concluded that Ms. Wright’s assignment
to Supervisory Officer Clark and her assignment to Supervisory
Deputy Waters were both materially adverse. See id. at 56-57. By
contrast, Magistrate Judge Harvey determined that the fact that
Ms. Wright was assigned to two supervisors, regardless of their
identity, was not similarly materially adverse.
The Court therefore concludes that Ms. Wright’s assignment
to two supervisors was not a materially adverse action; ADOPTS
that portion of the R. & R., see ECF No. 47; and GRANTS
Defendant’s Motion for Summary Judgment on the issue, see ECF
No. 23.
B. Magistrate Judge Harvey Correctly Determined that the
Gender Discrimination and Retaliation Claims Ms. Wright
Raised in Paragraphs 5-13 of the Complaint Were Untimely
or Not Exhausted
A plaintiff must first timely exhaust her administrative
remedies with the relevant administrative agency before bringing
26
her claims to federal court. Smith v. Lynch, 106 F. Supp. 3d 20,
41 (D.D.C. 2015) (citing Payne v. Salazar, 619 F.3d 56, 65 (D.C.
Cir. 2010)). Title VII requires “‘[a]n aggrieved person [to]
initiate contact with [an EEO] Counselor within 45 days of the
date of the matter alleged to be discriminatory.’” Tyes-Williams
v. Whitaker, 361 F. Supp. 3d 1, 10–11 (D.D.C. 2019) (quoting 29
C.F.R. § 1614.105(a)(1)). If the parties are unable to resolve
the matter informally, the employee may file a formal complaint
“with the agency that allegedly discriminated against the
complainant.” 29 C.F.R. § 1614.106(a); Briscoe v. Kerry, 111 F.
Supp. 3d 46, 53 (D.D.C. 2015) (quoting 29 C.F.R. §§ 1614.105(d),
1614.106(a)). The employee must file a formal complaint to
exhaust her administrative remedies. See Blue v. Jackson, 860 F.
Supp. 2d 67, 73 (D.D.C. 2012) (citing Hamilton v. Geithner, 666
F.3d 1344, 1350 (D.C. Cir. 2012)). She then “may file a civil
action after the agency issues an adverse final decision or 180
days elapse without a decision, whichever happens first.” Id.(citing 42 U.S.C. § 2000e–16(c)). If the agency issues a final
decision, the employee may file a civil action but must do so
within 90 days. See Smith, 106 F. Supp. 3d at 42 (citing 42
U.S.C. § 2000e–16(c)).
The exhaustion doctrine also limits the scope of a
plaintiff’s civil action based on what she alleged in her
administrative claim. See Williams v. Spencer, 883 F. Supp. 2d
27165, 173 (D.D.C. 2012). Specifically, “[t]he theories of
discrimination in [a] plaintiff’s lawsuit are limited to the
theories contained in the [administrative EEO complaint] [s]he
filed.” Ponce v. Billington, 652 F. Supp. 2d 71, 74 (D.D.C.
2009) (first and second alterations in original) (quoting
Marcelus, 540 F. Supp. 2d at 236). That is, her “claims ‘must
arise from the administrative investigation that can reasonably
be expected to follow the charge of discrimination.’” Buitrago
v. Dist. of Columbia, No. 18-CV-261(EGS), 2020 WL 1033343, at *5
(D.D.C. Mar. 3, 2020) (quoting Park v. Howard Univ., 71 F.3d
904, 907 (D.C. Cir. 1995)). “‘[A]llowing a complaint to
encompass allegations outside the ambit of the predicate EEOC
charge would circumvent the EEOC’s investigatory and
conciliatory role, as well as deprive the charged party of
notice of the charge, as surely as would an initial failure to
file a timely EEOC charge.’” Marshall v. Fed. Exp. Corp., 130
F.3d 1095, 1098 (D.C. Cir. 1997) (quoting Schnellbaecher v.
Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir. 1989)).
Ms. Wright objects that Magistrate Judge Harvey
misconstrued her gender discrimination and retaliation claims
and therefore improperly dismissed them. See Pl.’s Objs., ECF
No. 52 at 3-4. She asserts that Magistrate Judge Harvey “relied
on the defendant’s unilateral and crimped characterization of”
paragraphs 5-13 of the Complaint as “discrete acts,” thereby
28
“miss[ing] the fact that the allegations giving rise to those
claims show a[] pattern of discrimination that continued
throughout plaintiff’s tenure—including the period post-dating
the filing of her EEOC claim in 2012.” Id.The Court agrees with Defendant that Magistrate Judge
Harvey correctly “conducted his own analysis of the record,
including the EEO administrative documents, to determine the
scope and content of the claims.” Def.’s Opp’n, ECF No. 54 at 5.
Ms. Wright alleges the following in the relevant paragraphs of
the Complaint:
5. “[I]n August 2010 and continuing,
[Supervisory Officer] Clark, subjected her
to vulgar and sexually explicit language
concerning Mr. Clark’s sexual desires for
Ms. Wright; unwarranted sexual advances;
and unwanted sexually-oriented touching”;
6. “In August 2010, [Supervisory Officer]
Clark asked Ms. Wright to come to his room
to study and to have dinner with him”;
7. “Since 2010 and continuing, Mr. Clark asked
Ms. Wright for sexual favors, visited Ms.
Wright’s work post unnecessarily, and
physically brushed up against Ms. Wright”;
8. “Since 2010 and continuing, [Supervisory
Officer] Clark threatened to change Ms.
Wright’s work hours if she did not give in
to his sexual advances”;
9. “Since 2010 and continuing, [Supervisory
Officer] Clark commented to Agency
management that Ms. Wright is not capable
of performing her job, is frequently off
work due to injury and should therefore be
given secretarial duties”;
11. “On June 13, 2012, [Supervisory Officer]
Clark attempted to have Ms. Wright placed
on leave restriction by the Assistant Chief
Deputy”;
29
12. “On June 13, 2012 and continuing, Agency
managers continually changed Ms. Wright’s
work assignments; told other USMS
employees about Ms. Wright’s performance
evaluation rating; questioned USMS
employees concerning Ms. Wright’s
whereabouts and lunch breaks; discussed
Ms. Wright’s leave, worker’s compensation
injury and other personal business to or
in front of other USMS employees; requested
specific information concerning Ms.
Wright’s doctor appointments; and ordered
Ms. Wright to be relieved from her post and
enter the cellblock for a meeting although
she was on light duty and had been
instructed not to enter the cellblock for
safety reasons”;
13. “On November 8, 2012, Ms. Wright was
informed that her work hours were changed.
Ms. Wright was then informed on November
21, 2012 by the supervisory deputy that she
was to report her arrival time, breaks,
when she departed for and returned from the
bathroom, as well as when she left for the
day.”
Compl., ECF No. 1 ¶¶ 5-9, 11-13. Ms. Wright raised gender
discrimination and retaliation claims with respect to all of
these allegations. See id. ¶¶ 46-58.
To survive Defendant’s Motion, Ms. Wright needed to raise
the allegations in paragraphs 5-13 of the Complaint in an EEO
claim. See Buitrago, 2020 WL 1033343, at *5. The Court finds
that she made all but one of these allegations in her June 2012
EEO Claim. See ECF No. 23-4 at 4-5 (September 2012 EEO Letter),
9-10 (2012 EEO Claim Investigation Report), 17-36 (May 2015
Decision). Nevertheless, the Court concludes that Ms. Wright’s
gender discrimination and retaliation claims are untimely or not
30
exhausted and that the legal theory she advances in her briefing
does not change this conclusion.
First, Ms. Wright’s gender discrimination claim is
untimely. Ms. Wright alleged gender discrimination with respect
to the allegations in paragraphs 5 and 7-11 in her June 2012 EEO
Claim. See ECF No. 23-4 at 4-5 (September 2012 EEO Letter), 9-10
(2012 EEO Claim Investigation Report), 17-36 (May 2015
Decision). The administrative documents never discuss these
allegations as part of a “pattern” of allegedly discriminatory
acts. See id. At each stage, these allegations are described as
discrete discriminatory acts. See id. But even if Ms. Wright had
alleged a pattern of discrimination in the administrative
proceedings, the Agency would not have had notice that the
pattern continued after she filed her 2012 EEO Claim because she
did not allege any gender-based claims in her January 2013
amendment or in any of her later EEO claims. See generally ECF
No. 23-4. This pleading failure is fatal to Ms. Wright’s
objection because the allegations in the June 2012 EEO Claim are
untimely. That is because Ms. Wright filed the Complaint after
the statutory deadline for doing so. See 42 U.S.C. § 2000e–16(c)
(complainant must file a civil action within 90 days of
receiving a final administrative decision); ECF No. 23-4 at 17-
36 (May 11, 2015 Decision); Compl., ECF No. 1 (filed June 6,
2017). Ms. Wright offers no reason why this analysis and
31
conclusion are incorrect, and the Court sees none. Because the
allegations in paragraphs 5 and 7-11 are untimely, Ms. Wright’s
objection cannot resuscitate her gender discrimination claim.
Second, Ms. Wright’s gender-based retaliation claim is
untimely. Ms. Wright alleged gender-based retaliation with
respect to the allegations in paragraphs 12 and 13 in her June
2012 EEO Claim. See ECF No. 23-4 at 5 (September 2012 EEO
Letter), 10 (2012 EEO Claim Investigation Report), 17-36 (May
2015 Decision). Those allegations are untimely because Ms.
Wright filed the Complaint on June 6, 2017—more than two years
after the Agency issued its final decision and well past the 90-
day deadline for filing a civil action. See 42 U.S.C. § 2000e–
16(c) (complainant must file a civil action within 90 days of
receiving a final administrative decision); ECF No. 23-4 at 17-
36 (May 11, 2015 Decision); Compl., ECF No. 1 (filed June 6,
2017). Ms. Wright’s argument that she alleged a “pattern” of
retaliatory acts does not save her claim. The record does not
show that she ever raised this theory; rather, her allegations
of retaliation are described as discrete retaliatory acts. See
generally ECF No. 23-4. Moreover, because Ms. Wright did not
allege any gender-based claims in any of her later EEO claims,
see id.; the Agency did not have notice of any retaliation
continuing beyond November 2012, see Buitrago, 2020 WL 1033343,
32
at *5. Ms. Wright’s objection as to paragraphs 12 and 13 is
therefore unsuccessful.
Third, Ms. Wright’s allegation in paragraph 6 of the
Complaint was not exhausted. Ms. Wright did not raise this
allegation at any point in any of her EEO claims. See generally
ECF No. 23-4. In fact, the administrative record suggests that
she only made this allegation at the February 25, 2015 hearing
before the EEOC Administrative Judge. See ECF No. 23-4 at 20
(“In her affidavit as well as her earlier submissions for the
case, [Ms. Wright] never mentioned any dinner with [Supervisory
Officer] Clark or studying with him.”). Contrary to Ms. Wright’s
arguments, see Pl.’s Objs., ECF No. 52 at 3-4; this did not give
the Agency sufficient notice because the Agency had no
“opportunity to fully investigate and resolve [her] claim,”
Vance v. O’Rourke, No. 18-cv-00577, 2019 WL 914010, at *6
(D.D.C. Feb. 22, 2019). This allegation has not been exhausted.
Cf. Blue, 860 F. Supp. 2d at 73; Beaver, 840 F. Supp. 2d at 170
(“[T]he complainant has failed to exhaust his or her
administrative remedies with respect to claims not approved by
the EEO.”).
Accordingly, the Court concludes that Ms. Wright’s gender-
based discrimination and retaliation claims are untimely as to
paragraphs 5 and 7-13 of the Complaint and unexhausted as to
paragraph 6; ADOPTS that portion of the R. & R., see ECF No. 47;
33
and GRANTS Defendant’s Motion for Summary Judgment on the issue,
see ECF No. 23.
C. Magistrate Judge Harvey Correctly Concluded That Ms.
Wright’s Hostile Work Environment Claims Are Untimely
Finally, Ms. Wright objects to Magistrate Judge Harvey’s
recommendation that the Court dismiss her hostile work
environment claims as untimely on the ground that the R. & R.
“misapprehends the nature of [her] hostile work environment
claims and the case law speaking to them.” See Pl.’s Objs., ECF
No. 52 at 4. She first argues that Magistrate Judge Harvey
should have “examine[d] all of the circumstances, including the
frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
---.” Id. (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116 (2002)). This argument misconstrues Morgan and the
related caselaw. A court must “examine all of the circumstances”
to determine “whether an environment is ‘hostile.’” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993). This test is not
relevant to the court’s timeliness analysis. See Morgan, 536
U.S. at 116-17. Instead, a hostile work environment claim is
timely so long as “an act contributing to the claim occurs
within the filing period,” id. at 117; and “the employee
exhaust[s] administrative remedies with respect to at least one
34
act occurring within the [relevant] time period,” Achagzai v.
Broad. Bd. of Governors, 170 F. Supp. 3d 164, 176 (D.D.C. 2016).
Ms. Wright next argues that Magistrate Judge Harvey should
have applied the “like or related to” test. See Pl.’s Objs., ECF
No. 52 at 4. 7 This test allows employees to sue for claims that
are “‘like or reasonably related to the allegations of the
administrative charge . . . , notwithstanding the failure to
otherwise exhaust administrative remedies.’” Howard v. Kerry, 85
F. Supp. 3d 428, 435 (D.D.C. 2015) (quoting Bell v. Donley, 724
F. Supp. 2d 1, 8 (D.D.C. 2010)). 8 An unfiled claim is “like or
reasonably related to” a previously filed claim “if it ‘could
have reasonably been expected to grow out of the original
complaint.’” Bell, 724 F. Supp. 2d at 8–9 (quoting Weber v.
Battista, 494 F.3d 179, 183 (D.C. Cir. 2007)). Claims “are not
7 Since Magistrate Judge Harvey considered whether Ms. Wright’s
untimely retaliation claims could be considered as part of a
retaliatory hostile work environment claim, see R. & R., ECF No.
47 at 45-52; the Court determines that Ms. Wright’s objection
applies only to the analysis of her gender-based hostile work
environment claim.
8 Although courts in the district are split as to whether this
test applies to discrete acts of discrimination and retaliation,
see Hicklin v. McDonald, 110 F. Supp. 3d 16, 19-20 (citing
Morgan, 536 U.S. at 114); “it is settled that [hostile work
environment] claims ‘like or reasonably related to the
allegations of the administrative charge may be pursued . . . ,
notwithstanding the failure to otherwise exhaust administrative
remedies,” Bell, 724 F. Supp. 2d at 8 (alteration, citation, and
internal quotation marks omitted); see also Morgan, 536 U.S. at
115 (“Hostile environment claims are different in kind from
discrete acts.”).
35
‘related’ simply because they arise out of the same incident.”
Id. at 9. Rather, qualifying claims “must arise from the
administrative investigation that can reasonably be expected to
follow the charge of discrimination.” Park, 71 F.3d at 907
(citation and internal quotation marks omitted). This “serves
the important purpose of giving the charged party notice of the
claim and ‘narrow[ing] the issue for prompt adjudication and
decision.’” Id. (quoting Laffey v. Nw. Airlines, Inc., 567 F.2d
429, 472 n.325 (D.C. Cir. 1976)).
The Court agrees with Magistrate Judge Harvey’s assessment
that Ms. Wright has not exhausted her gender-based hostile work
environment claim. See R. & R., ECF No. 47 at 42. Ms. Wright
alleged discrimination on the basis of gender in her June 2012
EEO Claim. See ECF No. 23-4 at 2 (June 2012 EEO Claim). She did
not indicate that she was complaining about gender-based
discrimination in any other EEO claim. See Williams, 883 F.
Supp. 2d at 174 (“The EEOC charge form makes it easy for an
employee to identify the nature of the alleged wrongdoing by
simply checking the labeled boxes that are provided. When an
employee is uncertain which type of discrimination has occurred,
she need only describe it in the text of the charge form.”
(citation and internal quotation marks omitted)). A plaintiff
may not “pursue new categories of discrimination or retaliation
in litigation based on a different type of discrimination [than
36
she] raised before the agency.” Bell, 724 F. Supp. 2d at 9. As a
result, Ms. Wright’s decision to plead gender-based
discrimination in her June 2012 EEO Claim and not in any
subsequent EEO claim means that the allegations in the June 2012
EEO Claim are the only claims that could be construed as a
gender-based hostile work environment charge. There are no other
claims that are “like or reasonably related to” those
allegations. See, e.g., Howard, 85 F. Supp. 3d at 435–36
(dismissing plaintiff’s gender-based hostile work environment
claim because her EEO complaint did not allege gender-based
discrimination). The Court therefore concludes that Ms. Wright’s
gender-based hostile work environment claim is untimely as to
the allegations in the June 2012 EEO Claim and unexhausted as to
any other allegations.
Accordingly, the Court ADOPTS this portion of the R. & R.,
see ECF No. 47; and GRANTS Defendant’s Motion for Summary
Judgment on Ms. Wright’s hostile work environment claims, see
ECF No. 23.
V. Conclusion
For the foregoing reasons, the Court ADOPTS Magistrate
Judge Harvey’s R. & R., see ECF No. 47; GRANTS IN PART and
DENIES IN PART Defendant’s Motion to Dismiss or, in the
Alternative, for Summary Judgment, see ECF No. 23; and DENIES
37
Plaintiff’s request for discovery pursuant to Rule 56(d), see
ECF No. 27 at 41-42.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
December 12, 2022
38