Kline v. Cobert

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VALERIE KLINE, )
)
Plaintiff, )
)
v. ) Case No. 1:16-cv-262-RCL
)
MARGARET WEICHERT, in her )
official capacity as Acting Director of )
U.S. Office of Personnel Management, )
)
Defendant. )
_______________________________________)
MEMORANDUM OPINION
On February 16, 2016, plaintiff Valerie Kline filed this lawsuit against defendant
Margaret Weichert in her official capacity as Acting Director of U.S. Office of Personnel
Management.1 Ms. Kline alleges sex discrimination, age discrimination, and retaliation under
Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq., 42 USCS § 1981 and under
the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634. On April 11, 2019,
defendant moved for summary judgment under Federal Rule of Civil Procedure 56. Upon
consideration of that motion (ECF No. 34), Ms. Kline’s opposition (ECF No. 35), defendant’s
reply (ECF No. 38), and Ms. Kline’s sur-reply (ECF No. 39), the Court will GRANT
defendant’s motion.
1
Ms. Kline’s Complaint initially named Beth Cobert, who was the Acting Director of U.S. Office of Personnel
Management at the time.
1
BACKGROUND2
Ms. Kline is a female over the age of 40 who has been employed by the Office of
Personnel Management (“OPM”) since 2002. ECF No. 35-2, Exh. 5. Ms. Kline’s first-line
supervisor, William Davis, retired in May of 2007 and was superseded by Donna Lease in June
of 2007. ECF No. 34 at 2; ECF No. 1 at ¶ 26. In December of 2007, a detail assignment for 120
days from the Publications Management Group (“PMG”) to the Contracting Group was proposed
for Ms. Kline and approved by Claudio Benedi and Tina McGuire. ECF No. 34-1, Exh. 1. On
January 2, 2008, Ms. Kline received an email from Patricia Jones indicating that she had a
package to pick up. Id. at Exh. 2. This package contained paperwork concerning Ms. Kline’s
proposed detail to the Contracting Group. Id. at Exh. 3.
On January 3, 2008, upon learning that Ms. Kline had the original detail paperwork, Ms.
Lease asked her for the paperwork, and a disagreement ensued. Id. at Exh. 4. The parties dispute
who started that disagreement and the basis for it. Ms. Lease discussed the incident with Mr.
Benedi and Caprice Miller, a Human Resources Specialist in the agency’s office of Employee
Relations. Id. at Exh. 7. On January 20, 2008, Ms. Kline received a Counseling Memorandum
from Ms. Lease concerning Ms. Kline’s unacceptable behavior towards her supervisor. Id. at
Exh. 9. On March 4, 2008, Ms. Kline filed an EEO complaint relating to the issuance of the
Counseling Memorandum. Id. at Exh. 11. Ms. Lease became aware of Ms. Kline’s prior EEO
activity in July or August of 2007. Id. at Exh. 4.
2
Because only defendant has filed for summary judgment, only defendant was required to submit a statement of
material facts. Ms. Kline has suggested using her proposed stipulated facts (ECF No. 35-2 at 13-15) in lieu of
defendant’s statement of material facts due to an alleged discovery dispute, but the Court finds that defendant
complied with all discovery requirements, and thus there is no basis for ignoring defendant’s statement of material
facts or for finding that defendant is bound by Ms. Kline’s proposed stipulated facts. Of course, the Court has still
noted the parties’ factual disagreements throughout the Background Section of this Memorandum Opinion.
2
On June 18, 2008, Ms. Lease assigned Ms. Kline to prepare the Contracting Group
Customer Service Guide for submission to OPM’s web team for posting onto OPM’s intranet
site. Id. at Exh. 12. On July 24, 2008, Ms. Kline sent Ms. Lease an email stating that two of her
co-workers—Lisa Adgerson and Wayne Cuffley—might be interested in Section 508 compliance
training. Id. Ms. Lease responded that Ms. Kline needed to continue working on her assigned
project and instructed her to “see me before discussing any potential changes to assignments,
projects, etc. with your co-workers.” Id. at Exh. 13-14. After receiving this email, Ms. Kline
attended a staff meeting at which she stated that she was “coordinating the [Section 508]
training, which was free, in case anyone was interested.” ECF No. 35-2, Exh. 5. On August 8,
2008, Ms. Lease issued Ms. Kline an official reprimand for failure to follow instructions. ECF
No. 34-1, Exh. 12. Ms. Kline disputes whether this reprimand was warranted, maintaining that
she did not violate any policies or instructions by making that announcement. ECF No. 35-2 at
15.
On November 25, 2008, OPM advertised that a GS-13 Management Analyst position was
under vacancy. Id. at Exh. 8. Ms. Kline had believed that she would be assuming this position
once the previous employee in that position, Jacqueline Carter, retired. ECF No. 35-2, Exh. 5.
Ms. Kline and Stephen Hickman were the only two applicants. ECF No. 34-1, Exhs. 16-17.
Between September 2008 and January 2009, Ms. Kline and Mr. Hickman had the same job title
as Management Analyst but were under two different position descriptions. ECF No. 34-1, Exh.
18. According to defendant, Mr. Hickman’s position was a full-time regulatory position on the
Regulatory Team of the PMG, and his responsibilities included managing the Regulatory
Issuance System (“RIS”), analyzing legislation, processing documents to upload to the system,
and serving as the Liaison between the office and the Federal Register. Id. at Exhs. 10, 18. Ms.
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Kline maintains that Mr. Hickman’s position description did not contain any mention of
responsibility for managing the RIS, and thus he was performing that work unlawfully. ECF No.
35-1 at 4. Both parties agree that Ms. Kline was responsible for analyzing and preparing
recommendations to assist offices in achieving their multi-media communication objectives as
well as for maintaining and issuing the OPM Directory of Key Officials; however, Ms. Kline
disagrees with defendant’s contention that she merely assisted the Regulatory Team as needed
and maintains that she performed regulatory work as the “backup” to the RIS manager and
served as the Federal Register and OMB Liaisons. ECF No. 34-1, Exhs. 18-19; ECF No. 35-1 at
4, 6. Ms. Kline also alleges that on September 8, 2008, Ms. Lease had given her responsibility
for reviewing and processing Federal Register notices, and it was not until January 23, 2009 that
Ms. Lease informed her that she would only be reviewing routine notices from that point
forward, and after July 30, 2009, Ms. Kline was no longer assigned any regulatory work. ECF
No. 35 at 18-19; ECF No. 1, ¶¶ 28, 30, 34.
According to defendant, Mr. Hickman and Ms. Kline were both certified as qualified for
the Management Analyst, GS-0434-13 position. ECF No. 34-1, Exh. 21. Ms. Kline agrees that
Ms. Kline and Mr. Hickman were both qualified for the GS-13 position at the time the position
was advertised, but Ms. Kline believes that Mr. Hickman was not qualified for the position at the
time Ms. Carter retired, which was two years earlier. ECF No. 35-1 at 4. When the position first
became vacant two years earlier, Ms. Kline had been at the GS-12 level for over five years, while
Mr. Kline had only been at the GS-12 level for three weeks. ECF No. 35 at 10-11. OPM
regulations require a minimum of one year time-in-grade (or other qualifying factors) to be
eligible for the next higher grade. Id. Mr. Hickman was selected for the position effective
4
December 21, 2008. ECF No. 34 at 5; ECF No. 1 ¶ 22. His major responsibilities in this new
position included managing the RIS. ECF No. 34-1, Exh. 20.
On March 5, 2009, Ms. Lease sent an email to PMG staff instructing them to store their
work and personal items off their desks because of sprinkler system work to be performed by
night contractors. ECF No. 34 at 6; ECF No. 1 ¶ 60. Ms. Kline replied-all to this email, “Bob you
better order us some boxes!!!.” ECF No. 34-1, Exh. 23. On March 31, 2009, Ms. Lease issued a
Proposal to Suspend Ms. Kline, which defendant claims was due to her failure to follow
instructions in connection with the March 5, 2009 email. ECF No. 34-1, Exh. 28. On May 27,
2009, Ms. McGuire issued a Decision on Proposed Suspension, finding that the charges outlined
in the Proposal to Suspend warranted Ms. Kline’s suspension with pay on Saturday, May 30,
2009. Id. at Exh. 24. Ms. Kline contends that she had authority to request the purchase of boxes,
that there was no requirement that she ask permission before making such a request, and that her
email did not violate any prior instructions from her supervisors. ECF No. 35-1 at 10; ECF No.
35-2 at 15.
Ms. Kline filed four administrative EEO complaints pertaining to the issues relevant to
this litigation, all of which were consolidated: OPM Case Nos. 2008019 (filed on March 4,
2008), 2008034 (filed on September 18, 2008), 2009014 (filed on February 20, 2009), and
2009026 (filed on July 14, 2009). On September 7, 2012, the EEOC Administrative Judge issued
an Order Entering Judgment and Decision granting the agency’s motion for summary judgment
and entering judgment in favor of the agency on all claims, which became the agency’s final
decision. ECF No. 34-1, Exh. 25. Ms. Kline filed an appeal, and on April 17, 2015, the Office of
Federal Operations affirmed the Administrative Judge’s decision. Id. at Exh. 26. Ms. Kline
5
requested reconsideration, which was denied on November 12, 2015. Id. at Exh. 27. On February
16, 2016, Ms. Kline filed this lawsuit. ECF No. 1.
LEGAL STANDARDS
I. SUMMARY JUDGMENT
Summary judgment is appropriate “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). Courts must “view the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in its favor.” Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625,
629 (D.C. Cir. 2010). To show that a dispute is “genuine” and defeat a summary judgment
motion, the nonmoving party must present evidence “such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Id. at 249-50. A mere “scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.
at 252. If, however, there are material, “genuine issues that properly can be resolved only by a
finder of fact,” summary judgment is not appropriate. Id. at 250. When deciding a summary
judgment motion, the Court is not supposed to weigh the evidence—rather, the Court must
determine whether there is contradictory evidence to be weighed at trial. See Abraham v.
Graphic Arts Int’l Union, 660 F.2d 811, 814 (D.C. Cir. 1981).
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II. DISCRIMINATION & RETALIATION CLAIMS
Ms. Kline alleges sex discrimination, age discrimination, and retaliation under Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C § 2000e et seq., 42 USCS § 1981 and
under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634.
Employment discrimination and retaliation claims that rely on circumstantial evidence—as
opposed to direct evidence of discrimination—are analyzed under the burden-shifting framework
found in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Ford v. Mabus, 629
F.3d 198, 200 (D.C. Cir. 2010) (applying the McDonnell Douglas burden-shifting framework to
an ADEA claim). Under McDonnell Douglas, the employee “must carry the initial burden under
the statute of establishing a prima facie case of . . . discrimination.” Id. at 802. Under both Title
VII and the ADEA, a prima facie case requires a showing that “(1) [the plaintiff] is a member of
a protected class; (2) [the plaintiff] suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination.” Chappell-Johnson v. Powell,
440 F.3d 484, 488 (D.C. Cir. 2006) (citing Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)).
If the employee establishes a prima facie case of discrimination, the burden “must shift to
the employer to articulate some legitimate, nondiscriminatory reason” for the adverse action.
McDonnell Douglas, 411 U.S. at 802. The employer “must clearly set forth, through the
introduction of admissible evidence, the reasons for the [adverse action]” so as to “raise[] a
genuine issue of fact as to whether it discriminated against the plaintiff.” Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). The employer, however, “need not persuade the
court that it was actually motivated by the proffered reasons.” Id. at 254.
If the employer succeeds in offering legitimate, nondiscriminatory reasons for the action,
“the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
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discrimination.” Id. at 253. As the Supreme Court recently held in Babb v. Wilkie, 140 S. Ct.
1168 (2020), lawsuits brought under the ADEA only require the plaintiff to show that age
discrimination was a but-for cause of the differential treatment; the plaintiff does not necessarily
need to show that age discrimination was a but-for cause of the personnel decision itself. The
plaintiff may demonstrate pretext “either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.” Burdine, 450 U.S. 248 at 256. Either way, the
plaintiff must show “both that the reason was false, and that discrimination was the real reason.”
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Evidence of pretext may include “the
employer’s better treatment of similarly situated employees outside the plaintiff’s protected
group, its inconsistent or dishonest explanations, its deviation from established procedures or
criteria, or the employer’s pattern of poor treatment of other employees in the same protected
group as the plaintiff” as well as any “other relevant evidence that a jury could reasonably
conclude evinces an illicit motive.” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015)
(emphasis added).
Retaliation claims are subject to the same McDonnell Douglas burden shifting standard
as discrimination claims. Walker, 798 F.3d at 1091. To establish a prima facie case of retaliation,
“the plaintiff must allege that she engaged in activity protected by [the statute], the employer
took adverse action against her, and the employer took that action because of the employee’s
protected conduct.” Id. at 1091-92. Once the plaintiff establishes these three elements of a prima
facie case, “the burden shifts to the employer to identify the legitimate, . . . non-retaliatory reason
on which it relied in taking the complained-of action.” Walker, 798 F.3d at 1092. Then, the
plaintiff must show “that the employer’s stated reasons were pretextual, and the real reason[]”
8
for the adverse action was “prohibited . . . retaliation.” Id. The aforementioned categories of
evidence demonstrating pretext in discrimination claims also apply to retaliation claims.
In practicality, the issue of whether the plaintiff has established a prima facie case of
discrimination or retaliation under McDonnell Douglas is often irrelevant. See Brady v. Office of
the Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). “[B]y the time the district court
considers an employer’s motion for summary judgment . . . the employer ordinarily will have
asserted a legitimate, non-discriminatory reason for the challenged decision,” which is
“important because once the employer asserts a legitimate, non-discriminatory reason, the
question [of] whether the employee actually made out a prima facie case is ‘no longer relevant’
and thus ‘disappear[s]’ and ‘drops out of the picture.’” Id. (quoting Hicks, 509 U.S. at 510-11).
Therefore, the D.C. Circuit has stated:
[W]here an employee has suffered an adverse employment action and an employer
has asserted a legitimate, non-discriminatory reason for the decision, the district
court need not, and should not, decide whether the plaintiff actually made out a
prima facie case under McDonnell Douglas. Rather, in considering an employer’s
motion for summary judgment or judgment as a matter of law in those
circumstances, the district court must resolve one central question: Has the
employee produced sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason was not the actual reason and that
the employer intentionally discriminated against the employee on the basis of [an
impermissible ground]?
Id. at 494; see Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (explaining that the
simplified McDonnell Douglas standard applies to retaliation claims as well as discrimination
claims).
III. HOSTILE WORK ENVIRONMENT CLAIMS
Title VII also prohibits creating a hostile work environment, considering it to be a form
of discrimination. “When the workplace is permeated with ‘discriminatory intimidation, ridicule,
9
and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment,’ Title VII is violated.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 65, 67 (1986)). Courts are to look “to the totality of the circumstances, including the
frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes
with an employee’s work performance” to determine whether a hostile work environment exists.
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (citing Faragher v. City of Boca
Raton, 524 U.S. 775, 787-88 (1998)). The standard for such a claim is extremely high, and as the
D.C. Circuit has explained, “a few isolated incidents of offensive conduct do not amount to
actionable harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002).
ANALYSIS
For the reasons set forth below, the Court will grant defendant’s motion in its entirety and
dismiss the case with prejudice.
I. THE COURT WILL GRANT SUMMARY JUDGMENT FOR THE DEFENSE ON
COUNT ONE.
Defendant is entitled to summary judgment on Count I, which alleges that Ms. Kline was
not selected for the GS-13 position due to age and sex discrimination.3 Defendant argues that
3
In her opposition and sur-reply, Ms. Kline argues numerous times that her non-selection was also based on
retaliation, but her Complaint does not allege that non-selection was based on retaliation (only discrimination).
Count I—the only Count that mentions non-selection—is specifically titled “Count I – Non-Selection
Discrimination” and never mentions retaliation. Counts II and III (titled “Count II – Diminished Duties Retaliation”
and “Count III – Retaliation”) make no mention of her non-selection, stating instead that retaliation was based on the
other alleged adverse actions specified in those Counts. See ECF No. 1 at 10-14. In fact, nowhere in the Complaint
(even outside of the section listing the three Counts) does Ms. Kline reference retaliation specifically in connection
with non-selection. See generally ECF No. 1. Therefore, Ms. Kline has not actually brought a claim for retaliation
based on non-selection for the GS-13 position. Although the summary judgment standard requires the Court to draw
all reasonable inferences in Ms. Kline’s favor, it does not permit her to make arguments about a Count that does not
10
there was a legitimate, non-discriminatory reason for deciding not to hire Ms. Kline for the
position. Specifically, defendant states that Mr. Hickman had more experience with the Federal
Register and was highly recommended by his previous supervisor at the Federal Register.
Because he had worked for the Federal Register for five years prior to joining OPM, he had the
proficiency and skills that would be important to the Management position. Additionally, Mr.
Hickman’s previous position at OPM put him in charge of managing the RIS, which was
important for the open position.
Once the defendant puts forth a legitimate, non-discriminatory reason for an adverse
action, it is the plaintiff’s responsibility to show that the stated rationale for the adverse action is
mere pretext. Ms. Kline alleges that her position involved significantly more responsibility for
the RIS and regulatory work than defendant admits. Even assuming for the purposes of summary
judgment that a jury believes Ms. Kline and finds that she did do more than just assist the
Regulatory Team, she still cannot show that defendant’s decision was based (even in part) on her
sex or her age. All she can prove is that the person ultimately selected was a male in his twenties.
Although comparator evidence is one way to help prove a discrimination claim, Ms. Kline’s
allegations (even if believed) are insufficient to prove that defendant chose Mr. Hickman over
Ms. Kline based on sex or age. In defendant’s opinion, Mr. Hickman was more qualified than
Ms. Kline, and the Court is not authorized to “become ‘a super-personnel department that
exist. Federal Rule of Civil Procedure 8(e) states that pleadings “must be construed so as to do justice.” Because this
case has already progressed to the summary judgment stage and discovery is already closed, it would be extremely
unjust for this Court to infer the existence of a retaliation claim that was never alleged—Ms. Kline could have
alleged this claim in her initial Complaint or in an Amended Complaint, but she did not. See Dickerson v. SecTek,
Inc., 238 F. Supp. 2d 66, 85-86 (D.D.C. 2002) (“[I]n opposing defendants’ motion for summary judgment, plaintiffs
have sought to broaden [their discrimination] claim, asserting that . . . [plaintiff] engaged in unlawful retaliation[.]
An opposition to a summary judgment motion is not the place for a plaintiff to raise new claims. Plaintiffs had the
opportunity to make a retaliation claim in their initial complaint [but] chose not to do so. Accordingly, the Court will
not consider that claim at this stage.”). This case has progressed too far for Ms. Kline to start making arguments
about a claim that she did not properly plead.
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reexamines an entity’s business decisions.’” Barbour v. Browner, 181 F.3d 1342, 1346 (D.C.
Cir. 1999) (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)); see also
Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir 2008) (explaining that a
plaintiff can only challenge an employer’s “qualifications-based explanation” for hiring someone
else “if the plaintiff was significantly better qualified for the job” than the person ultimately
chosen). Neither Title VII nor the ADEA permits the Court to “second guess an employer’s
personnel decision absent [a] demonstrably discriminatory motive.” Fischbach v. D.C. Dep’t of
Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996). No such “demonstrably discriminatory
motive” exists here. Additionally, even if the Court were to find that Ms. Kline was more
qualified than Mr. Hickman, all that matters is that her employer believed Mr. Hickman was
more qualified. Ms. Kline cannot show that defendant’s belief was ingenuine, and therefore her
comparator evidence is insufficient.
Ms. Kline argues that the GS-13 position should have been filled two years earlier when
it first became vacant—at which time Mr. Hickman would not have been qualified—and thus
defendant violated the Administrative Procedure Act (“APA”). Even assuming that defendant did
commit an administrative violation, Ms. Kline’s Complaint does not assert an APA claim.
Therefore, in order for an APA violation to be relevant, Ms. Kline would have to show that the
delay was specifically engineered to deny her the position based on her age and/or sex. Ms. Kline
has not brought forth even a shred of evidence that this was the case, making the question of
whether defendant acted improperly by waiting two years to fill the position irrelevant. Ms.
Kline also argues that because Mr. Hickman’s GS-12 position description did not include
responsibility for managing the RIS, giving him that responsibility was a violation of OPM
regulations. Again, such a violation is only relevant if Ms. Kline can establish that defendant
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gave him this responsibility in order to prevent Ms. Kline from ultimately getting the GS-13
position based on her sex and age, which she cannot do. Therefore, even if Mr. Hickman’s GS-
12 responsibilities did constitute an APA violation, such a violation is not relevant to this case. 4
Although the Court recognizes that there is rarely a “smoking gun” in age or sex
discrimination cases, Ms. Kline still needs something more than what she has presented. For
example, Ms. Kline has brought forth no evidence that anyone at work made negative comments
about her age or sex, she cannot demonstrate that OPM has a pattern of hiring men over women
or hiring younger employees over older employees, and discovery did not uncover any testimony
or documentary evidence suggesting that defendant made the selection based on sex or age.5
Discrimination claims typically rely on circumstantial evidence, but Ms. Kline has failed to
present even that. Her argument is essentially, “I am female, and I am over 40. My employer
selected a younger male over me for the GS-13 position. Therefore, my employer must have
made this decision based on my sex and age.” What is missing here is the link between the
adverse action and her age and/or sex—without that link, no reasonable jury could find
discrimination.
Ms. Kline argues that the link is Mr. Hickman’s age and sex, but that alone is not enough.
To hold otherwise would be to say that any time an employer hires a male applicant, the female
applicant who was not hired does not need to present a single other piece of evidence in order to
make out a successful Title VII claim. To hold otherwise would be to say that any time an
4
Ms. Kline asks the Court to “disqualif[y]” Mr. Hickman’s GS-12 responsibilities for managing the RIS. ECF No.
35 at 5. Again, whether OPM committed an administrative violation is not relevant if Ms. Kline cannot show that
the violation was committed to facilitate discrimination. The Court’s only responsibility here is to determine
whether Ms. Kline can establish an ADEA or a Title VII violation, and “disqualifying” Mr. Hickman’s GS-12
responsibilities (assuming that Ms. Kline uses “disqualifying” to mean “ignoring”) would be improper.
5
To be clear, the Court is not saying that Ms. Kline would necessarily need to show these precise facts in order to
prevail on her discrimination claim; rather, these are merely some examples of the types of evidence that are usually
helpful to a plaintiff in establishing a discrimination claim.
13
employer hires a younger applicant, the applicant over 40 who was not hired does not need to
present a single other piece of evidence in order to make out a successful ADEA claim. Such a
holding would not be in accordance with Title VII, the ADEA, or the summary judgment
standard. Therefore, in determining that Ms. Kline’s discrimination claim fails as a matter of law,
the Court is not merely weighing the evidence. Rather, the Court has determined that there is no
evidence to be weighed, as Ms. Kline has not alleged any actual evidence of sex or age
discrimination sufficient to support her claim. Because no material facts relevant to her
discrimination claims are in dispute, the Court will grant defendant’s motion for summary
judgment on Count I.
II. THE COURT WILL GRANT SUMMARY JUDGMENT FOR THE DEFENSE ON
COUNT TWO.
Defendant is entitled to summary judgment on Count II, which alleges that defendant
diminished Ms. Kline’s duties in retaliation for her prior EEO activity. Specifically, Ms. Kline
alleges that OPM diminished her responsibility for reviewing all Federal Register notices to only
“routine” notices, followed by the elimination of all her regulatory duties. Defendant argues that
being assigned only to routine Federal Register notices or being removed from regulatory work
altogether is not an adverse action, and thus Ms. Kline cannot show retaliation. The Court agrees
with this argument.
Although the simplified McDonnell Douglas burden-shifting framework usually means
that Courts do not analyze whether the plaintiff has established a prima facie case, this is not
entirely true when the employer disputes whether the complained-of action constitutes an
adverse action or when there is clearly no adverse action at all. See Nurriddin v. Bolden, 40 F.
Supp. 3d 104, 119 (D.D.C. 2014), aff’d, 818 F.3d 751 (D.C. Cir. 2016); Webster v. DOE, 2020
14
U.S. Dist. LEXIS 41543, at *13 (D.D.C. March 10, 2020) (citing Nurriddin). Just because a case
has progressed to the summary judgment stage does not mean that the prima facie elements are
irrelevant. See, e.g., Waggel v. George Wash. Univ., 2020 U.S. App. LEXIS 14749, at *19 (D.C.
Cir. May 8, 2020) (granting summary judgment for the defense on claims that “fail[ed] to satisfy
one or more elements of the prima facie case” without analyzing the defendant’s stated rationale
or the plaintiff’s arguments about pretext).6 The continued need to determine whether an adverse
action exists at the summary judgment stage can be best understood when viewing the
McDonnell Douglas burden-shifting standard in the following way: Once the employer asserts a
legitimate rationale for the adverse action, it is the plaintiff’s responsibility to show that the
legitimate rationale is mere pretext and that the adverse action was taken for retaliatory reasons.
Therefore, although the Court is not technically assessing whether the plaintiff stated a
successful prima facie case, the Court is still looking to see if the plaintiff can establish a link
between the adverse action and a retaliatory animus. See Lathram v. Snow, 336 F.3d 1085, 1088
(D.C. Cir. 2003) (explaining that a plaintiff cannot “survive summary judgment” without
showing “that a reasonable jury could conclude from all of the evidence that the adverse
[action]” was taken for an unlawful purpose) (emphasis added). It follows that without a legally
cognizable adverse action, there can be no link between an adverse action and a retaliatory
animus, and without that link, there can be no successful retaliation claim at all.
In the retaliation context, an adverse action must “produce[] an injury or harm” that is
material in nature. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)
(finding that a thirty-seven day unpaid suspension was an adverse action even though the
plaintiff ultimately received backpay, as she was initially left unsure if she would receive pay for
6
Although the claims dismissed due to a lack of any adverse action were brought under the Family and Medical
Leave Act, the same McDonnell Douglas burden-shifting standard still applied.
15
that time).7 An adverse action must do more than merely “make[] an employee unhappy.”
Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013). The distinction between “material
adversity” and “trivial harms” is critical to this analysis. Burlington Northern, 548 U.S. at 64, 67-
68. If the injury is not severe enough to “dissuade[] a reasonable worker from” engaging in
protected activity based on an objective standard, then it is not an adverse action for the purposes
of a retaliation claim. Id. at 57. The Court must examine the specific facts of the particular case
at issue, as “[c]ontext matters” when assessing adverse actions. Id. at 69.
A change of duties constituting an adverse action generally needs to involve a materially
significant change. A reassignment or denial of assignment that does not affect an employee’s
pay and benefits may still constitute an adverse employment action if it negatively affects future
opportunities. Id.; see also Brewer v. Holder, 20 F. Supp. 3d 4, 21-22 (D.D.C. 2013) (finding that
one of the plaintiffs failed to establish an adverse action in part because she could not show that
the denial of an assignment that she wanted or her “assignment to insignificant tasks” adversely
affected her future advancement). If a change in assignment results in “significantly different and
diminished” supervisory and programmatic responsibilities, that could still constitute an adverse
employment action. Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (finding that the
plaintiff’s reassignment could constitute an adverse action because he went from supervising 960
employees to fewer than 10); see also Brewer, 20 F. Supp. 3d at 21-22 (finding that a change in
one of the plaintiff’s duties was an adverse action specifically because there was “a genuine
dispute of fact as to whether Brewer’s supervisory duties decreased as a result of his
reassignment” to a new location). Generally, however, a change in responsibilities does not
7
The standard for an adverse action alleged as part of a retaliation claim is broader than the standard for an adverse
action alleged as part of a discrimination claim. See Burlington Northern, 548 U.S. at 63 (explaining that adverse
retaliatory actions—unlike adverse discriminatory actions—can occur outside of the workplace).
16
constitute an adverse action if there is not a materially “substantive change or . . . increase in . . .
workload.” Taylor v. Small, 350 F.3d 1286, 1296 (D.C. Cir. 2003) (making this finding
specifically in the retaliation context).8
Although Ms. Kline may be unhappy about no longer having regulatory assignments, that
does not make OPM’s decision an adverse action. She was not demoted to a lower position or
even reassigned to a different position, and she was not forced to change locations. It also does
not appear that her ultimate workload was significantly reduced, nor does it appear that her
workload was increased so as to be more burdensome. She has not alleged a diminishment of any
supervisory duties, and her pay was not lowered. Aside from the fact that she wanted to continue
doing regulatory work, Ms. Kline has failed to present any evidence that this decision had any
negative impacts whatsoever. Additionally, she has not alleged that this change could have any
negative effects on her future employment prospects or on any other aspect of her life.
Interestingly, Ms. Kline’s opposition fails to make any mention of defendant’s argument that
Count II does not allege an adverse action. See generally ECF No. 35.
Although the issue of whether “a particular reassignment of duties constitutes an adverse
action . . . is generally a jury question,” Czekalski, 475 F.3d at 365, that is not true when the
plaintiff has failed to establish that a reasonable juror could find in her favor on this issue. There
is simply no evidence that a reasonable employee in her position would have refrained from
engaging in protected activity based on this allegation. Because mere dissatisfaction with a
change in the type of assignments available is insufficient to satisfy the adverse action
requirement as a matter of law, Ms. Kline has failed to establish that there was any adverse
8
Although this decision was issued prior to Burlington Northern, the Supreme Court specified in Burlington
Northern that the D.C. Circuit had already been applying the correct standard when assessing adverse actions in the
retaliation context. 548 U.S. at 67-68.
17
action that could serve as the basis for her retaliation claim. Therefore, even when drawing all
inferences in Ms. Kline’s favor, no reasonable juror could find a link between an adverse action
and a retaliatory animus, meaning that summary judgment for the defense on Count II is
warranted.
III. THE COURT WILL GRANT SUMMARY JUDGMENT FOR THE DEFENSE ON
COUNT THREE.
Defendant is entitled to summary judgment on Count III, which alleges that defendant
retaliated against Ms. Kline by: (1) issuing her a counseling memorandum; (2) issuing her an
official reprimand; and (3) issuing her a paid suspension. The Court, however, finds that none of
these alleged actions are legally adverse, and Ms. Kline thus has no adverse action on which to
base her retaliation claim. If there is no adverse action, then no reasonable juror could find a link
between an adverse action and a retaliatory animus, meaning that her claim fails as a matter of
law. Therefore, the Court must grant defendant’s summary judgment motion with respect to
Count III. As previously explained in this Memorandum Opinion, even though this case has
reached the summary judgment stage, it is still proper for the Court to analyze whether Ms. Kline
has alleged an adverse action. The same standard for an adverse action that the Court detailed in
its analysis of Count II also applies to Count III.
A. The Counseling Memorandum is Not an Adverse Action.
Courts in this jurisdiction have generally held that counseling memoranda are not adverse
actions. See, e.g., Stewart, 275 F.3d at 1136 (explaining that the D.C. Circuit has always held
that even in the retaliation context, “formal criticisms or reprimands, without additional
disciplinary action such as a change in grade, salary, or other benefits, do not constitute adverse
18
employment actions”)9; Baloch, 550 F.3d at 1199 (finding that a counseling memorandum
without abusive language is not an adverse action); Bowe-Connor v. Shinseki, 845 F. Supp. 2d
77, 92 (D.D.C. 2012) (“As a general matter, in the D.C. Circuit, counseling letters and other
forms of disciplinary actions do not constitute adverse employment actions, even under the more
permissive standard for an ‘adverse action’ for retaliation claims.”). Essentially, if a counseling
memorandum is not abusive and is not used as a basis for a subsequent adverse action, then that
counseling memorandum is typically not an adverse action. See, e.g., Jimenez v. McAleen, 395 F.
Supp. 3d 22, 39 (D.D.C. 2019) (finding that a non-abusive counseling email did not constitute an
adverse action even under the lower standard for a retaliatory adverse action); Webster v. DOE,
2020 U.S. Dist. LEXIS 41543, at *17-20 (D.D.C. March 10, 2020) (explaining that a counseling
memorandum with no direct impact on the employer’s decisions about future pay or promotions
was not an adverse action for the purposes of discrimination or retaliation).
The counseling memorandum in this case did not contain abusive language, nor was it
used as a basis for lowering Ms. Kline’s pay, demoting her, etc. She has not alleged that this
counseling memorandum will have any negative effects on her employment or on any other
aspect of her life. As a matter of law, an objective, reasonable worker would not refrain from
engaging in protected activity based on this reprimand. Therefore, the counseling memorandum
in this case does not constitute an adverse action even in the retaliation context, meaning that Ms.
Kline has failed to establish a legally cognizable basis for her retaliation claim. Even when
drawing all reasonable inferences in Ms. Kline’s favor, no reasonable jury could find that this
specific counseling memorandum constitutes an adverse action, and thus no reasonable jury
9
Although this decision was issued prior to Burlington Northern, the Supreme Court specified in Burlington
Northern that the D.C. Circuit had already been applying the correct standard when assessing adverse actions in the
retaliation context. 548 U.S. at 67-68.
19
could find a link between an adverse action and a retaliatory animus. Even upon consideration of
her arguments that this memorandum was issued for retaliatory reasons, her claim cannot
succeed as a matter of law, and the Court must grant defendant’s summary judgment motion with
respect to this issue.
B. The Official Reprimand is Not an Adverse Action.
Courts in this jurisdiction have generally held that reprimands are not adverse actions,
even in the retaliation context. See, e.g., Stewart, 275 F.3d at 1136 (explaining that the D.C.
Circuit has always held that even in the retaliation context, “formal criticisms or reprimands,
without additional disciplinary action such as a change in grade, salary, or other benefits, do not
constitute adverse employment actions”)10; Bowe-Connor, 845 F. Supp. 2d at 92 (“As a general
matter, in the D.C. Circuit, counseling letters and other forms of disciplinary actions do not
constitute adverse employment actions, even under the more permissive standard for an ‘adverse
action’ for retaliation claims.”). If a letter of reprimand contains no abusive language and is not
used as a basis for another adverse action, then the letter of reprimand is usually not adverse. See,
e.g., Baloch, 550 F.3d at 1199 (finding that a letter of reprimand without abusive language is not
an adverse action even in the retaliation context); Walker v. District of Columbia, 279 F. Supp.
3d 246, 267-68 (D.D.C. 2017) (finding that a written reprimand containing no abusive language
and having no effect on the employee’s pay, grade, or working conditions was not an adverse
action for the purposes of a retaliation claim).
The official reprimand in this case did not contain abusive language, nor was it used as a
basis for lowering her pay, demoting her, etc. As a matter of law, no objectively reasonable
10
Although this decision was issued prior to Burlington Northern, the Supreme Court specified in Burlington
Northern that the D.C. Circuit had already been applying the correct standard when assessing adverse actions in the
retaliation context. 548 U.S. at 67-68.
20
worker would refrain from engaging in protected activity based on this reprimand. Therefore, the
official reprimand in this case does not constitute an adverse action, meaning that Ms. Kline has
failed to establish a basis for her retaliation claim. Even when drawing all inferences in Ms.
Kline’s favor, no reasonable jury could find a link between an adverse action and a retaliatory
animus, as no adverse action exists. Therefore, even upon consideration of her arguments that
this official reprimand was issued for retaliatory reasons, her claim cannot succeed as a matter of
law, and the Court must grant defendant’s summary judgment motion with respect to this issue.
C. The Suspension is Not an Adverse Action.
Although the D.C. Circuit does not appear to have spoken directly on this issue, the D.C.
District Court as well as courts in other jurisdictions have found that brief, paid suspensions are
not adverse actions, even under the lower retaliation standard. For example, in Harper v. Potter,
the D.C. District Court found that in the retaliation context, a seven-day suspension that “did not
involve actual time away from work or any loss of pay” was not materially adverse, and thus the
plaintiff had not established a prima facie case of retaliation. 456 F. Supp. 2d 25, 26 (D.D.C.
2006). Similarly, the Western District of Michigan found that even in light of the Supreme
Court’s ruling in Burlington Northern, a two-day suspension with pay did not constitute an
adverse employment action for retaliation purposes. Helmi v. Solvay Pharms., Inc., 2006 U.S.
Dist. LEXIS 84562, at *35-36, 38-39, 45-46 (W.D. Mich. Nov. 21, 2006); see also
Teklehaimanot v. Park Ctr., Inc., 804 F. Supp. 2d 886, 904-05 (N.D. Ind. 2011) (finding that a
paid suspension pending an investigation was not an adverse action for the purposes of
retaliation); Solomon v. Phila. Newspapers, Inc., 2008 U.S. Dist. LEXIS 41978, at *50-51
(E.D.P.A. May 21, 2008) (finding that even in light of Burlington Northern, a “nine-day
suspension with full pay and benefits . . . would not have dissuaded a reasonable employee from
21
making or supporting a charge of discrimination” and thus the suspension was not an adverse
action for retaliation purposes). Essentially, if a suspension is brief, does not result in lost wages,
and is not used to justify subsequent adverse actions, then the suspension is generally not an
adverse action, as a reasonable worker would not refrain from engaging in protected activity
based on that type of disciplinary action.
The Court finds that Ms. Kline’s suspension is not an adverse action. It is uncertain
whether Ms. Kline was suspended for one or two days—defendant claims that she was only
suspended for one day (Saturday, May 30, 2009), while Ms. Kline argues that the wording of the
suspension order was unclear and thus the suspension may have extended through Sunday, May
31, 2009. Because the Court must make all inferences in the plaintiff’s favor, the Court will
assume that this was a two-day suspension. Either way, however, the suspension was still
extremely brief, and she was not kept out of the office on workday. Not only was this suspension
brief, but because she was a Monday-Friday employee, she admits that her pay was not
decreased, see ECF No. 44, meaning that she was deprived of neither the ultimate nor the
immediate use of her wages. Furthermore, Ms. Kline has not alleged that this suspension was the
basis for any subsequent adverse action.11
Essentially, a reasonable employee would not refrain from engaging in protected activity
based on a one-time, one-weekend suspension that did not result in loss of wages. Therefore, the
11
Ms. Kline asserts in her response to an Order of the Court for supplemental information that this suspension
negatively impacted her 2009 performance appraisal, which in turn prevented her from earning a monetary bonus.
ECF No. 44. This argument does not change the Court’s determination for two reasons. First, Ms. Kline does not
argue that the suspension was the direct cause of her inability to receive a bonus—rather, she makes an attenuated
argument that the suspension impacted her performance appraisal (which is not an adverse action), and then that
performance appraisal impacted the decision not to award her a bonus. Second, and more importantly, this is the first
time that Ms. Kline has raised the issue about a bonus, which she admits in her response. Not a single filing prior to
ECF No. 44 even used the word “bonus,” making any argument that the suspension was in some way connected to a
bonus decision irrelevant. Ms. Kline suggests reopening discovery so that she can present evidence about this bonus,
but full discovery was already completed in 2017, and the Court will not reopen discovery simply because Ms. Kline
would now like to add a new claim that she had ample opportunity to present before.
22
Court finds that the suspension in this case was not materially adverse, meaning that Ms. Kline
has failed to establish a retaliation claim as a matter of law. Even when drawing all inferences in
Ms. Kline’s favor, no reasonable juror could find that this specific suspension constitutes an
adverse action, and thus no reasonable juror could find a link between an adverse action and a
retaliatory animus. Therefore, even upon consideration of her arguments that this suspension was
issued for retaliatory reasons, her claim cannot succeed, and the Court must grant defendant’s
summary judgment motion with respect to this issue.
IV. TO THE EXTENT THAT MS. KLINE HAS STATED A CLAIM FOR HOSTILE
WORK ENVIRONMENT, THE COURT WILL GRANT SUMMARY JUDGMENT FOR
THE DEFENSE. 12
To the extent that Ms. Kline has actually alleged a hostile work environment claim,
defendant is entitled to summary judgment. Ms. Kline states in her opposition:
In light of the repeated unwarranted disciplinary actions against her, and the
issuance of a poor performance appraisal that the EEOC found was due to
retaliation, Kline submits OPM created a hostile work environment. Kline further
submits that because the EEOC found during the same relevant time frame that
OPM retaliated against her for engaging in protected activity . . . a reasonable jury
could also find that OPM created a hostile work environment by issuing
unwarranted disciplinary actions in an attempt to lay a foundation for terminating
Kline’s employment.
ECF No. 35 at 20. For the reasons previously explained in this Memorandum Opinion, however,
the Court has determined that defendant is entitled to summary judgment on Ms. Kline’s other
claims. Ms. Kline’s entire hostile work environment claim thus rests on the EEOC’s previous
12
Although Ms. Kline uses “Hostile Work Environment” as a heading in the “Factual Allegations” section of her
Complaint, no specific Count actually alleges a hostile work environment claim. See generally ECF No. 1. This
means that there is technically no hostile work environment claim for the Court to analyze; however, unlike with the
nonexistent claim described in Footnote 3, Ms. Kline did at least use this phrase as a heading in her Complaint.
Therefore, even though the Court does not believe that Ms. Kline properly stated a hostile work environment claim,
the Court will still analyze the issue, as it is easily disposed of.
23
finding that OPM retaliated against her in the past. Quite simply, this is insufficient to prove a
hostile work environment claim. The standard for a hostile work environment claim is extremely
high, meaning that “a few isolated incidents of offensive conduct do not amount to actionable
harassment.” Stewart, 275 F.3d at 1134. A plaintiff can only succeed on this type of claim if she
proves that “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’
that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.’” Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank,
FSB, 477 U.S. at 65, 67). The EEOC’s determination that the OPM retaliated against her in the
past is plainly insufficient to meet this standard.
Furthermore, even if the underlying allegations from Ms. Kline’s other claims were
considered, courts in this jurisdiction have been clear that the actions Ms. Kline complains of do
not amount to creation of a hostile work environment. For example, in Bonnette v. Shinseki, the
Court rejected a hostile work environment claim based on a written reprimand. See 907 F. Supp.
2d 54, 81 (D.D.C. 2012). In Holmes-Martin v. Sebelius, the Court rejected a hostile work
environment claim based on public criticism, reduced responsibilities, exclusion from meetings,
and unrealistic deadlines. 693 F. Supp. 2d 141, 165 (D.D.C. 2010). In Nurriddin, the Court
rejected a hostile work environment claim based on the plaintiff’s supervisor making disparaging
remarks about his EEO complaints and attempting to end his eligibility for workers’
compensation. 674 F. Supp. 2d at 93-95. If these allegations were found to be insufficient, then
Ms. Kline’s allegations must also be insufficient, even when all reasonable inferences are made
in her favor. Therefore, because no reasonable juror could find that Ms. Kline was subjected to a
hostile work environment as a matter of law, the Court must dismiss any such allegation. In
24
making this determination, the Court is not weighing the evidence—rather, the Court has found
that there is no evidence to be weighed.
CONCLUSION
Based on the foregoing, the Court will GRANT defendant’s motion for summary
judgment (ECF No. 34).
It will be ORDERED that this case is DISMISSED with prejudice.
A separate Order accompanies this Memorandum Opinion.
Date: May 23, 2020 ssss/s/ Royce C. Lamberthsssssss
Royce C. Lamberth
United States District Court Judge
25