Brown v. Wolf

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REGINA BROWN,
Plaintiff,
v. Civil Action No. 20-3107 (TJK)
ALEJANDRO MAYORKAS,
Defendant.
MEMORANDUM OPINION AND ORDER
Regina Brown, a black woman, sued the Secretary of the Department of Homeland
Security, or DHS, under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963
for various discriminatory actions she allegedly experienced while employed by DHS. Defendant
moves to dismiss all but one of Brown’s claims for failure to state a claim. Defendant argues that
Brown insufficiently alleged most of her disparate-treatment, retaliation, and disparate-impact
claims under Title VII, and her sex-based pay-discrimination claim under the Equal Pay Act. For
the below reasons, the Court will grant Defendant’s partial motion to dismiss.
I. Background
According to the operative complaint, Defendant violated Title VII and the Equal Pay Act
during Brown’s tenure as a Management and Program Analyst (“program manager”) at U.S.
Immigration and Customs Enforcement (“ICE”), a component of DHS. See ECF No. 20
(“Compl.”) ¶¶ 1, 7, 37–40. Brown claims: (A) disparate treatment based on her sex or race;
(B) retaliation for engaging in protected activity; (C) disparate impact based on sex or race; and
(D) sex-based pay discrimination. Id. ¶¶ 37–40. Below, the Court addresses the relevant
allegations supporting each claim.
A. Disparate-Treatment Claims
Brown alleges that Defendant unlawfully carried out three employment actions based on
Brown’s race or sex. In 2018, Brown served as program manager for the Border Enforcement
Analytics Program (“BEAP”) at ICE. Compl. ¶ 19. The first unlawful employment action, Brown
says, occurred in March 2018 when Brown’s supervisors “forcibly reassigned” her from BEAP to
another ICE program known as FALCON. Id. ¶ 22. As part of the transfer, she had to hand over
her BEAP responsibilities to two white, male special agents, Benjamin Teed and Evan
Campanella. Id. And at her new FALCON post, she took on the duties of a co-worker two pay
grades (“GS” levels) her junior. Id. ¶¶ 22, 33.
Second, Brown claims Defendant overlooked her for a position once she had transferred to
FALCON. Compl. ¶ 34. In August 2018, the unit chief announced that Campanella, not Brown,
would immediately assume the role of acting section chief over the combined BEAP and FALCON
programs, now renamed RAVEn.1 Id. ¶ 25. Brown alleges, however, that she was “more qualified
for the promotions received by the white males,” including Campanella’s promotion, and she
“desired to be promoted to [those] positions.” Id. ¶ 34.
Third, Brown points to her second lateral transfer, this time from FALCON to
HSINET/SharePoint, another ICE program. Compl. ¶¶ 26–29. Because of his promotion,
Campanella had essentially become Brown’s acting first-line supervisor at FALCON. Id. ¶ 25.
Thus, within a week of Campanella’s promotion, acting section chief of HSINET/SharePoint
Matthew Grant “proposed” that Brown transition to HSINET/SharePoint, where she would
continue to work as a program manager. Id. ¶ 26. This would place Brown outside Campanella’s
supervision. Id. Then, in September 2018, Grant “requested that [Brown] agree to be reassigned”
1
For simplicity, the Court will refer to this position as “acting section chief.”
2
to HSINET/SharePoint because of an “impending retirement,” id. ¶ 27, stating in an email that
“the decision was his [meaning Grant’s] to make,” id. ¶ 28. In Brown’s view, she faced the “threat
of, or the involuntary ‘choice’ to either work under the purview of [Special Agent] Campanella or
transfer to a less prestigious and less desirable position for the second time in less than a year.”
Id. ¶ 33. So she “reluctantly agreed” to transfer. Id. ¶¶ 28–29. HSINET/SharePoint was then
headed by Special Agent Dave Bearon, a white man. Compl. ¶ 29.
Brown calls these three events—(1) her first transfer from BEAP to FALCON, (2) her non-
selection for acting section chief, and (3) her second transfer from FALCON to HSINET/
SharePoint—“humiliating and damaging” to her professional reputation and “discriminatory.”
Compl. ¶ 33.
B. Retaliation Claims
Brown’s retaliation claims rely on the same employment actions discussed above, all of
which she says came about because she had engaged in a statutorily protected activity. Brown
explains that she engaged in protected activity when she sought to “oppos[e]” Defendant’s
allegedly unlawful discrimination by filing an “EEO complaint” with the Equal Employment
Opportunity Commission (“EEOC”). See Compl. ¶¶ 20, 37. She alleges she “exercised her right
to file an EEO complaint” on February 13, 2018. See id. ¶ 20. That is, it appears she made initial
contact with the EEOC on that date, but she does not specifically allege that she filed the actual
EEO complaint on that date. In any event, the next day, she alleges that she notified her boss,
Section Chief Christopher Bracken, that she had started the EEO-complaint process. Id. ¶ 21. And
within hours, she alleges, Bracken emailed Brown that she would be transferred: “[W]e plan to
have you lateral into the Program Manager duties for the Falcon Role.” Id. Defendant then
transferred Brown from BEAP to FALCON on March 20, 2018. Id. ¶ 22. Brown concludes this
transfer was “retaliatory.” Id. ¶¶ 21, 33.
3
But the Complaint leaves out important context reflected in Brown’s own EEO complaint.2
ECF No. 13-3 at 4–7. There, Brown wrote that, on February 8, 2018, Bracken had “informed
[Brown]” that she “was being removed” from her program-manager post with BEAP. Id. at 7.
Indeed, Brown’s impending transfer was the basis of her EEO action. Id. So the email she
received from Bracken a week later explaining that Defendant planned “to have [her] lateral,” was
not the first time she had been informed of those plans. See Compl. ¶ 21. They were launched no
later than February 8, 2018—before Brown contacted the EEOC and notified Bracken that she had
begun the EEO complaint process.
Besides her transfer from BEAP to FALCON, Brown claims that her non-selection to
acting section chief and later transfer from FALCON to HSINET/SharePoint were also
“retaliatory,” Compl. ¶ 32, based on her EEO engagement. She also explains that Defendant
retaliated against her by excluding her from meetings, high-level briefings, and significant
correspondence related to certain programs, such as FALCON and RAVEn. Id. ¶ 33.
C. Disparate-Impact Claim
Next, Brown raises a disparate-impact claim. Central to that claim is a distinction between
two employee classifications within DHS: 0300 and 1811. Brown’s program-manager position
fell under the 0300 classification. Compl. ¶ 12. Such positions “require knowledge of the
2
When, as here, a complaint “makes specific reference to [an] EEO Complaint . . . [,] the court
may consider the EEO Complaint without converting the defendant’s motion to dismiss into a
motion for summary judgment.” Hudson v. Children’s Nat. Med. Ctr., 645 F. Supp. 2d 1, 5 n.5
(D.D.C. 2009). Even had Brown not specifically incorporated by reference her EEO complaint,
Brown’s complaint refers to her “EEO complaint,” and that document is central to her retaliation
claims. Compl. ¶¶ 20, 21, 36. Thus, the Court may consider it. See Spence v. Wolf, No. 19-cv-
2919 (TJK), 2020 WL 6075727, at *4 n.4 (D.D.C. Oct. 15, 2020) (“On a motion to dismiss for
failure to state a claim, a defendant may submit an indisputably authentic copy of a document
referred to in the complaint and central to the plaintiff’s claim even though the plaintiff did not
incorporate the document by reference or attach it to the complaint.” (citation omitted)). For all
these reasons, and because Brown has not challenged the EEO complaint’s veracity, see generally
ECF No. 15; ECF No. 24, the Court now considers it.
4
substantive nature of agency programs and activities, agency missions, policies, and objectives,
management principles and processes, and the analytical and evaluative methods and techniques
for assessing program development or execution and improving organizational effectiveness and
efficiency.” Id. ¶ 30. By contrast, Campanella, Teed, and Bearon were classified under 1811. Id.
¶ 29. 1811 employees are “criminal investigators assigned to case work and investigating criminal
activity for Homeland Security Investigation[s].” Id. ¶ 12.
Brown’s theory for disparate impact rests on Defendant’s alleged “discriminatory practice”
of “promoting or providing temporary duty assignments to 1811s into lead program manager and
supervisory roles in lieu of more qualified 300 series employees,” which disadvantages minority
and female employees. Compl. ¶ 13. In particular, Brown says ICE often puts 1811 employees,
who are overwhelmingly white men, into positions that should be filled by 0300 employees, who
are mainly minority women. Id. ¶¶ 13–15, 17–18. She adds that ICE writes up supervisory
positions for 1811s contrary to their “assigned duties,” which precludes 0300 employees from
consideration. See id. ¶¶ 13, 17. To support this “systemic problem,” as she calls it, Brown
highlights statistics showing that higher GS levels comprise more white men than lower GS levels
and that 1811 positions are mainly filled by white men. Id. ¶¶ 14–15. These disparities, she
alleges, support the inference that minority women’s promotion opportunities are fewer than white
men’s. Id. She concludes that “these policies and practices have a disparate impact that is
discriminatory in effect upon minorities and female employees.” Id. ¶ 13.
D. Sex-Based Pay Discrimination Claims
Finally, Brown alleges she received less pay than her male colleagues. In particular, she
alleges that when she transferred from BEAP to FALCON, the two men, Teed and Campanella,
who overtook her BEAP job “would be compensated an additional 25% salary.” Compl. ¶ 23.
5
She alleges a similar pay disparity occurred at HSINET/SharePoint, where she alleged “she would
receive 25% less in income” than Bearon. Id. ¶ 29.
Brown explains that 1811 employees—like Teed, Campanella, and Bearon—are eligible
for law enforcement availability pay (“LEAP”), a form of “a premium pay afforded to law
enforcement officers or criminal investigators for work or the availability to work substantial
amounts of ‘unscheduled’ work conducting[] or managing investigations related to alleged or
suspected criminal violations of Federal laws.” Compl. ¶¶ 16, 23, 29. And LEAP “entitles the
1811 series to an additional 25% of their original salary.” Id. ¶ 16.
The issue, as Brown sees it, flows again from Defendant’s “misuse of job classification.”
Compl. ¶ 16. She alleges that “Defendant misclassifies headquarters positions by temporarily
assigning, permanently assigning, or promoting employees in the 1811 series into positions where
the duties do not involve performing investigations related to specific acts of illegal or unlawful
activity” or “do not require the use of arrest authority.” Id. ¶ 17. Because of this misclassification,
the positions 1811 employees assume “negate[] the need for the ‘substantial hours’ requirement to
claim [LEAP].” Id. ¶ 18. As a result, 1811 employees, Brown alleges, can work “8-hour
workday[s] while collecting availability pay for conducting the same or substantially equal work
as their non-1811 counterparts.” Id. And as applied here, Brown says she performed the “same
duties” as Campanella and Teed, id. ¶ 23, and had “the same role and responsibilities” as Bearon,
id. ¶ 29, but still suffered a pay disparity.
* * *
Defendant now partially moves to dismiss under Federal Rule of Civil Procedure 12(b)(6),
arguing that Brown has failed to state a claim for disparate treatment (except for claims arising out
6
of Brown’s transfer to FALCON), retaliation, disparate impact, and sex-based pay discrimination.
See ECF No. 22. Brown opposes that motion. ECF No. 24.
II. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff’s
complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted).
“[D]etailed factual allegations” are unnecessary to survive a motion to dismiss, id., but a complaint
“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Upon review, a court must “accept as true all of the factual allegations contained in the complaint,”
Atherton v. District of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009) (quotation omitted), but it
need not adopt “inferences that are unsupported by the facts set out in the complaint,” Bowe-
Connor v. Shinseki, 845 F. Supp. 2d 77, 84 (D.D.C. 2012).
III. Analysis
Defendant moves to dismiss all but one of Brown’s Title VII claims as well as her sex-
based pay-discrimination claim for failure to state a claim under Rule 12(b)(6). The Court agrees
and will grant Defendant’s motion.
A. Title VII Claims
1. Brown Fails to State a Disparate-Treatment Claim for the Challenged
Actions
Among other things, Title VII prohibits employment discrimination based on race, color,
or sex. 42 U.S.C. § 2000e-2(a)(1). Its “primary objective” is “to achieve equality of employment
opportunities and remove barriers that have operated in the past to favor an identifiable group of
white employees over other employees.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 417
7
(1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429–30 (1971)). To establish a
disparate-treatment claim under Title VII, a plaintiff must allege that (1) she is a member of a
protected class, (2) she suffered an adverse employment action, and (3) that action implies
discrimination. See Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002).
Brown’s complaint advances three claims for disparate treatment, alleging that Defendant
violated Title VII when it: (1) transferred Brown from BEAP to FALCON; (2) passed Brown over
for promotion to acting section chief in favor of a white, male employee; and (3) later transferred
Brown to HSINET/SharePoint. Defendant moves to dismiss only the second and third of these
claims. ECF No. 22-1 at 10–11. Both claims fail to state a disparate-treatment claim, so the Court
will dismiss them.
a. Non-Selection for Acting Section Chief
Defendant first takes aim at Brown’s contention that it discriminated against her when it
elevated Campanella, a white man, instead of Brown, to the acting-section-chief position. Compl.
¶¶ 25, 32. Brown claims that at “all relevant times, [she] continued to be qualified to fulfill the
requirements of th[is] position[], and desired to be promoted to th[is] position[]” and that “her
qualifications were plainly superior” to Campanella’s. Id. ¶ 34. Among other reasons, Defendant
argues these allegations are deficient because Brown failed to allege that she conveyed her interest
in being selected for the position to her superiors or was qualified for it. ECF No. 22-1 at 12.
To establish a prima facie case for a discrimination claim based on non-hiring or non-
promotion, a plaintiff must show that she (1) applied for, (2) was qualified for, and (3) was rejected
from (4) an available position. Greer v. Bd. of Trs. of Univ. of the D.C., 113 F. Supp. 3d 297, 310
(D.D.C. 2015) (citing Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 650–61 (D.C. Cir.
2003)). If a plaintiff could not formally apply for a position because it was “never opened . . . to
competition,” a plaintiff may satisfy her burden by showing that she had shown interest in taking
8
on the position. See Cones v. Shalala, 199 F.3d 512, 518 (D.C. Cir. 2000). Ultimately, what
matters is that a plaintiff makes “every reasonable attempt to convey [her] interest in the job to the
employer.” Id. (quoting EEOC v. Metal Service Co., 892 F.2d 341, 348 (3d Cir. 1990)).
Granted, to survive a motion to dismiss, a plaintiff need not make out a prima facie case of
discrimination. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000). But a
plaintiff must still allege “facts that, if true, would establish the elements of each claim.” Greer,
113 F. Supp. 3d at 310. Thus, “the Court may explore the plaintiff’s prima facie case at the
dismissal stage to determine whether the plaintiff can ever meet [her] initial burden to establish a
prima facie case for Title VII discrimination.” Tressler v. Nat’l R.R. Passenger Corp., 819 F.
Supp. 2d 1, 5 (D.D.C. 2011) (quotation omitted); see, e.g., Greer, 113 F. Supp. 3d at 310(dismissing case under Rule 12(b)(6) when the plaintiff did “not allege that he applied for the
positions given to the individuals identified in his amended complaint”).
Brown has failed to state a claim for her non-selection for the acting-section-chief position
for two reasons. First, she did not allege that she showed interest in the position. Second, she did
not allege she was qualified for it.3
On the former deficiency, Brown argues that she could not have applied to the position
because section chief positions are “typically reserved for the 1811 series” and because “[a]cting
3
Beyond the acting-section-chief position, Brown generally suggests Defendant passed her over
for other “positions” or “promotions.” See Compl. ¶¶ 12, 24, 34. For instance, Brown mentions
once that she was “denied” the “opportunity to become the National Program Manager for
FALCON.” Id. ¶ 32. But that lone reference and her other bare allegations about “positions” and
“promotions” fail to adequately state a claim for non-selection because, without more, they do not
come close to alleging all the facts that are ultimately required to support such a discrimination
theory. See Greer, 113 F. Supp. 3d at 310. Brown also references the section-chief position of
the “CPI-BEAP” program. Compl. ¶ 9. But as Defendant previously explained, such a claim is
“time-barred” for failure to exhaust. ECF No. 13-2 at 13–14. In any event, Brown concedes that
discussion is only “background evidence.” Compl. ¶¶ 9, 11. Thus, the Court focuses only on the
acting-section-chief position to analyze Brown’s discrimination claim based on non-selection.
9
positions are not competed out for selection.” ECF No. 24 at 10. But in that case, a plaintiff must
still allege that she “made every reasonable attempt to convey [her] interest in the job to the
employer.” Cones, 199 F.3d at 518; see also Greer, 113 F. Supp. 3d at 310–11. Brown has not
alleged that she made her supervisors (or anyone) aware of her interest in the acting-section-chief
position. She explains only that “[a]t all relevant times” she was “qualified” for and “desired to
be promoted to” that position. Compl. ¶ 34. She does not even imply that she communicated these
views to Defendant and that her efforts failed. The mere desire for a position cannot pass for a
demonstrated interest. Thus, she has failed to state a claim for disparate treatment based on her
non-selection to acting section chief.
On the latter deficiency, Brown reasons that certain unspecified headquarters positions
“should be classified in the 0300-job classification” based on the required duties and
responsibilities. Compl. ¶ 17. But she does not identify those duties or responsibilities or provide
any facts from which to infer the duties of an acting section chief. Further, Brown’s only
description of her potential qualifications is her statement that “[a]s a Program Manager she had
responsibility for handling all aspects of [BEAP], including the business model, budget, [and]
contracts.” Id. ¶ 19. At most, these facts show Brown’s qualifications to be program manager.
But the complaint lacks any allegations from which the Court could conclude that Brown’s
experience as program manager qualified her for acting section chief, a separate role. Thus, Brown
has failed to state a claim for disparate treatment based on her non-selection to acting section chief.
b. Transfer to HSINET/SharePoint
Defendant next challenges Brown’s allegation that Defendant discriminated against her
when it transferred her from FALCON to HSINET/SharePoint, a “less prestigious and less
desirable” program. Compl. ¶ 33. Defendant argues that Brown has failed to allege that this was
an adverse employment action because she transferred to HSINET/SharePoint voluntarily, and
10
regardless, that no alleged facts support the view that Defendant transferred her because of her
membership in a protected class. ECF No. 22-1 at 16–17.
Recall that, to make a claim for a disparate treatment, a plaintiff must show she “suffered
an adverse employment action.” See Stella, 284 F.3d at 145. In Brown v. Brody, the D.C. Circuit
had held that “a plaintiff who is made to undertake or who is denied a lateral transfer . . . does not
suffer an actionable injury unless there are some other materially adverse consequences affecting
the terms, conditions, or privileges of her employment or her future employment opportunities
such that . . . the plaintiff has suffered objectively tangible harm.” 199 F.3d 446, 457 (D.C. Cir.
1999). But since the parties’ briefing, the Circuit overruled that holding in Chambers v. District
of Columbia, 35 F.4th 870, 872, 882 (D.C. Cir. 2022) (en banc). There, it held that “an employer
that transfers an employee or denies an employee’s transfer request because of the employee’s
race, color, religion, sex, or national origin violates Title VII by discriminating against the
employee with respect to the terms, conditions, or privileges of employment.” Id. at 872. Under
that new framework, even “garden-variety” discriminatory transfers—that is, transfers that do not
cause a plaintiff “objectively tangible harm”—still violate Title VII. See id. at 874–75, 879. Thus,
to allege an “adverse employment action” in support of a disparate-treatment claim, it is enough
for a plaintiff to allege that a discriminatory involuntary transfer occurred. This change in law
does not save Brown’s HSINET/SharePoint-transfer claim, however, because it still has two
defects.
First, the complaint does not allege that Defendant forced her to transfer from FALCON to
HSINET/SharePoint. Instead, it says Grant first “proposed” that transfer and later “requested that
[Brown] agree” to that transfer because of an “impending retirement.” Compl. ¶¶ 26–27. Brown
says that “her only option was to either work under the supervision of Mr. Campanella or work
11
with a new Special Agent.” Id. ¶ 28. She later called it an “involuntary ‘choice.’” Id. ¶ 33. But
in the end, though “reluctantly,” Brown “agreed.” Id. ¶¶ 28, 29.
Voluntary employment decisions cannot generally give rise to claims of discrimination
under Title VII.4 See, e.g., Aliotta v. Bair, 614 F.3d 556, 567 (D.C. Cir. 2010) (employees who
accepted a buyout did not suffer adverse employment action).5 But when a plaintiff retires or
resigns, she can rely on the “constructive discharge” doctrine “to overcome the presumption of
voluntariness and demonstrate she suffered an adverse employment action by showing the
resignation or retirement was, in fact, not voluntary.” Id. at 566. A constructive discharge,
however, “does not occur when an employee leaves an unpleasant but objectively tolerable job
because alternatives have become more attractive, even if the employer’s misbehavior creates the
unpleasantness or its largesse affirmatively increases the appeal of the employee’s alternatives.”
Stewart v. White, 61 F. Supp. 3d 118, 132 (D.D.C. 2014) (quotation omitted) (alteration adopted);
Leeth v. Athens/Limestone Hosp., Inc., No. 5:7-cv-956 (SLB), 2010 WL 11562097, at *13 (N.D.
Ala. Mar. 23, 2010) (“The law is clear that an employee’s voluntary choice between two options,
4
Chambers did not alter the threshold requirement that, to state a cognizable claim for Title VII
discrimination based on an employment transfer, the transfer must be involuntary. Brown dealt
with an “involuntary” transfer. See 199 F.3d at 455; Chambers, 35 F.4th at 872 (characterizing
Brown as reaching “forced acceptance[s] of a job transfer” (emphasis added)). Thus, Brown’s
requirement that a plaintiff show “objectively tangible harm” for a transfer-based disparate-
treatment claim presupposes an involuntary transfer. 199 F.3d at 457. Indeed, the Court is
unaware of any case in which a voluntary transfer gave rise to a sufficiently pleaded discrimination
claim. Instead, before Chambers, courts regularly applied Brown to involuntary transfers. See,
e.g., Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 844 (D.C. Cir. 2001); Sharpe v. Bair, 580
F. Supp. 2d 123, 131–32 (D.D.C. 2008). So even after Chambers, to allege a Title VII
discrimination claim based on a transfer, a plaintiff must still first allege it was, in fact, involuntary.
5 See also Sercer v. Holder, 104 F. Supp. 3d 746, 751 (E.D. Va. 2015) (“Whether Plaintiff’s
decision to transfer was based on [her new post’s] appeal or her frustration with [her old post] is
ultimately irrelevant to her claim that this voluntary transfer was somehow an unlawful adverse
employment action due to sex discrimination.”).
12
albeit unpleasant choices, is not an adverse employment action for which her employer may be
accountable.”).
A plaintiff might theoretically apply the constructive-discharge doctrine to a transfer by
alleging a “constructive involuntary transfer.” See, e.g., Peters v. District of Columbia, 873 F.
Supp. 2d 158, 204 (D.D.C. 2012).6 But here, Brown does not allege any such “constructive
involuntary transfer” theory. To start, Brown alleges no facts from which the Court could conclude
that Brown lacked a choice to decline Grant’s transfer request. The closest she comes is her
allegation that she agreed to transfer to HSINET/SharePoint “reluctantly” and her unadorned
assertion that she made an “involuntary ‘choice.’” Compl. ¶¶ 29, 33. But the alleged “involuntary
‘choice’” was that of either “work[ing] under the supervision of Mr. Campanella” or with “a new
Special Agent.” Id. ¶¶ 28, 33. Evidently, she disliked the former and preferred—and chose—the
latter “option.” Id. ¶ 28. These facts, as alleged, reveal only that Brown left “an unpleasant but
objectively tolerable job because alternatives . . . become more attractive.” Stewart, 61 F. Supp.
3d at 132. That is not enough to state a claim that she faced a constructive involuntary transfer.
Second, even if Brown’s transfer were involuntary, Brown still alleges no facts suggesting
that unlawful discrimination motivated Defendant’s decision to transfer her to
HSINET/SharePoint. “[A]t the motion to dismiss stage, ‘there is a very low bar for alleging an
inference of discrimination.’” Azzam v. District of Columbia, No. 19-cv-3365 (TSC), 2022 WL
4182187, at *6 (D.D.C. Sept. 13, 2022) (citation omitted). But there is a “bar” all the same. See
6
See also, e.g., Hooper v. State of Md., Dep’t of Hum. Res., 45 F.3d 426, 1995 WL 8043, at *5
(4th Cir. 1995) (“[A] constructive discharge theory is the only legal theory upon which Hooper
could show that his request to be transferred was involuntary.”); Brown v. Potter, 516 F. App’x
563, 565 (6th Cir. 2013) (“[The plaintiff] transferred . . . voluntarily, and she offers no support for
a forced-transfer theory of liability.”).
13
id. (detailing the “sufficient ‘factual heft’” in plaintiffs’ allegations that supported an “inference
that [the challenged] actions were discriminatory”).
Brown concludes generally that “Defendant’s reasons for transferring [Brown] on multiple
occasions and not promoting [Brown] were motivated by her sex and race.” Compl. ¶ 37. But
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678. And Brown never specifically alleges that her
race or sex motivated the HSINET/SharePoint transfer. Grant, who said that “the decision [to
transfer Brown to HSINET/SharePoint] was his to make,” asked Brown to do so on account of an
“impending retirement.” Compl. ¶¶ 27–28. Brown says this was a “guise” of some kind, although
she never says what the “guise” concealed. See id. ¶ 27. Even construing that remark generously
as an accusation of improper animus, it is no more than a restatement of an element of Brown’s
claim. The mere fact that Grant is a white man, Compl. ¶ 27, does not “give[] rise to an inference
of discrimination.” See Stella, 284 F.3d at 145. Without more, Brown has not stated a disparate-
treatment claim based on her transfer to HSINET/SharePoint.
2. Brown Fails to State a Retaliation Claim
Defendant also moves to dismiss Brown’s Title VII retaliation claims because Brown has
not sufficiently alleged any causal link between any alleged adverse action and Brown’s protected
activities, and because Defendant’s supposed retaliatory actions were not materially adverse. ECF
No. 22-1 at 17–20.
Title VII makes it an “unlawful employment practice for an employer to discriminate
against any of his employees . . . because [s]he has opposed any practice made an unlawful
employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a). To survive a motion to dismiss, a claim for retaliation under Title VII must
14
contain sufficient factual matter, accepted as true, to plausibly establish that (1) the plaintiff
engaged in a statutorily protected activity; (2) the plaintiff suffered a materially adverse action;
and (3) there is a causal connection between the two. See Taylor v. Small, 350 F.3d 1286, 1292
(D.C. Cir. 2003); Holcomb v. Powell, 433 F.3d 889, 902–03 (D.C. Cir. 2006).
For the second prong, Title VII’s antiretaliation “provision covers those (and only those)
employer actions that would have been materially adverse to a reasonable employee or job
applicant.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). An adverse action
is one that “could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Id. Such actions “encompass a broader sweep of actions than those in a pure
discrimination claim” because “[r]etaliation claims are ‘not limited to discriminatory actions that
affect the terms and conditions of employment’ and may extend to harms that are not workplace-
related or employment-related so long as ‘a reasonable employee would have found the challenged
action materially adverse.’” Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008)
(quoting Burlington, 548 U.S. at 64, 68).7 And a “court must dismiss a retaliation claim where the
plaintiff has not alleged facts that could plausibly constitute a materially adverse action.” Redding
v. Mattis, 327 F. Supp. 3d 136, 144 (D.D.C. 2018), aff’d sub nom. Redding v. Austin, No. 21-5100,
2022 WL 625727 (D.C. Cir. Mar. 1, 2022) (per curiam).
For the third prong, a plaintiff may establish a causal connection “by showing that the
employer had knowledge of the employee’s protected activity, and that the [retaliatory] personnel
action took place shortly after that activity.” Cones, 199 F.3d at 521 (quotation omitted). When
an adverse action occurs “very close” to protected action, a court may infer causation, but courts
7
This remains so after Chambers, where the Circuit clarified that its rejection of the “objectively
tangible harm” requirement under Title VII’s antidiscrimination provision is “fully consistent”
with existing law on Title VII’s antiretaliation provision. See 35 F.4th at 876–78.
15
are less inclined to do so when there is a long delay. See Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273–74 (2001) (citing approvingly cases finding temporal proximity of three and four
months insufficient to show a causal connection); Jones v. D.C. Water & Sewer Auth., 922 F. Supp.
2d 37, 42 (D.D.C. 2013) (“[T]his Circuit has generally found that a two- or three-month gap
between the protected activity and the adverse employment action does not establish the temporal
proximity needed to prove causation.”) (collecting cases). Even at the pleading stage, courts will
dismiss a retaliation claim where the plaintiff “rel[ies] exclusively on temporal proximity to
establish causation” and “does not advance any factual allegations in support of his retaliation
claim” that allow a court “to infer that the alleged sequence of events was ‘very close.’” Maestre
v. SDH Servs. E., LLC, No. 18-cv-2494 (RC), 2019 WL 7037484, at *7 (D.D.C. Dec. 20, 2019)
(citation omitted); see, e.g., Jones, 922 F. Supp. 2d at 42 (“As [the statutorily protected] comments
may have been voiced many months before [the plaintiff’s] termination—and as no additional facts
allege a causal link—Plaintiff’s Complaint does not establish an inference of causation.”).
Brown alleges that, on February 13, 2018, she initiated an EEO complaint and, the next
day, after emailing Bracken to notify him of this, Brown received an email from Bracken, stating,
“[W]e plan to have you lateral into the Program Manager duties for the Falcon Role.” Compl.
¶¶ 20–21. Within a month, Defendant transferred Brown to FALCON, after which it promoted
Campanella to acting section chief. Id. ¶¶ 22–23, 25. Later, Defendant transferred Brown to
HSINET/SharePoint. Id. ¶¶ 28–29. She alleges that both transfers to “less prestigious and less
desirable” positions and her non-selection to acting section chief were “retaliatory.” Id. ¶¶ 33, 37.
Brown also contends that Defendant retaliated against her by “intentionally exclud[ing]” her from
“meetings, high level briefings, and any significant correspondence related to those programs
classified as ‘law enforcement systems’ such as FALCON.” Id. ¶ 33.
16
Those allegations do not state a retaliation claim. The complaint suggests that Brown’s
engagement with the EEO process was the statutorily protected activity on which all her retaliation
claims rest. See Compl. ¶ 36; Richardson v. Gutierrez, 477 F. Supp. 2d 22, 27 (D.D.C. 2007) (“It
is well settled that Title VII protects informal, as well as formal, complaints of discrimination.”).
Thus, the Court examines the relationships between that activity and the claimed materially
adverse action.
First, her retaliation claim based on her transfer from BEAP to FALCON must fail because,
given the undisputed timing of events, there could not be any causal link between that transfer and
her EEO complaint. When Brown notified Bracken on February 14 that she had begun the EEO-
complaint process, Compl. ¶ 21, she had already been told almost a week beforehand that
Defendant planned to transfer her, see ECF No. 13-3 at 7. Indeed, she alleges she had been
program manager at BEAP only “[p]rior to February 8, 2018,” confirming some change to her
employment status as of that date. Compl. ¶ 19 (emphasis added). Thus, Brown’s engagement
with the EEOC—and notifying Bracken of that fact on February 14—postdated Defendant’s
decision to transfer Brown and so could not have caused the resulting transfer. Cf. Carter v.
Greenspan, 304 F. Supp. 2d 13, 30 (D.D.C. 2004) (“Because [Plaintiff’s] supervisors’
dissatisfaction with his performance and their intentions to terminate him predated his protected
activity, his retaliatory discharge claim is illogical and must be dismissed.”).
Brown’s retaliation claim based on her second transfer from FALCON to
HSINET/SharePoint fails too because she has not alleged facts implying that this transfer
constituted a materially adverse action. “A ‘lateral transfer’—that is, a transfer involving ‘no
diminution in pay and benefits’—may qualify as a materially adverse employment action if it
‘result[s] in materially adverse consequences affecting the terms, conditions, or privileges of the
17
plaintiff’s employment.’” Mamantov v. Jackson, 898 F. Supp. 2d 121, 128 (D.D.C. 2012) (citation
omitted). A “reassignment of duties may be materially adverse if it places the employee in a
position with ‘less responsibility and fewer opportunities for compensation and advancement,’ or
results in the ‘loss of supervisory responsibilities.’” Id. at 128–29 (citation omitted). But if “a
plaintiff provides only expressions of subjective dissatisfaction with her new position and fails to
allege that the transfer had any objectively adverse consequences, she has failed to show that her
lateral transfer was materially adverse.” Craig v. District of Columbia, 74 F. Supp. 3d 349, 376
(D.D.C. 2014). For instance, one court dismissed a plaintiff’s transfer-based retaliation claim
because the plaintiff did “not sufficiently describe any adverse effects” that resulted from the
transfer. See Brooks-Miller v. England, 357 F. Supp. 2d 197, 203–04 (D.D.C. 2004). The plaintiff
there had alleged that her transfer “diminished her future promotional opportunities” and “further
reminded plaintiff that promotions and / or awards are not based upon merit and / or
qualifications.” Id. at 203 (alterations adopted). But the court held these “mere assertion[s]” were
not enough because the plaintiff “fail[ed] to note any changes in employment status, necessary
skills, job functions, or compensation levels.” Id. at 203–04. Thus, the court was “left with no
plausible explanation as to why the plaintiff consider[ed] [her transfer] to be an adverse
employment decision, or why such transfer would diminish her promotional opportunities.” Id. at
204.
Here, too, Brown has failed to allege facts that would show, as a matter of law, that her
transfer to HSINET/SharePoint was “adverse.” She alleges that she held the position of “Program
Manager” “during the time period that is the subject matter of the present litigation.” Compl. ¶ 8.
Although different substantive priorities no doubt accompany different programs, Brown alleges
no facts implying that “materially adverse consequences,” Mamantov, 898 F. Supp. 2d at 128
18
(quotation omitted), or “any changes in employment status, necessary skills, job functions, or
compensation levels,” Brooks-Miller, 357 F. Supp. 2d at 204, also accompanied her transfer. In
one sentence, subsuming both her transfers, Brown alleges only that they were to “less prestigious
and less desirable” positions and that they were “humiliating and damaging to [her] professional
reputation.” Compl. ¶ 33. But these “mere assertion[s]” do not “sufficiently describe any adverse
effects of her transfer.” Brooks-Miller, 357 F. Supp. 2d at 203. Instead, her allegations are just
“expressions of subjective dissatisfaction with her new position[s] and fail[] to allege that the
transfer[s] had any objectively adverse consequences.”8 Craig, 74 F. Supp. 3d at 376. Thus, as
Brown “has not alleged facts that could plausibly constitute a materially adverse action,” the Court
must dismiss her retaliation claim based on her HSINET/SharePoint transfer. See Redding, 327 F.
Supp. 3d at 144 (D.D.C. 2018).9
Finally, Brown’s retaliation claim based on her non-selection to acting section chief also
fails. Most obviously, Defendant could not retaliate against Brown by failing to consider her for
that position because there is no allegation that Brown ever made Defendant aware that she was
interested in it. See supra Section III.A.1.a; cf. Gilliard v. Gruenberg, 302 F. Supp. 3d 257, 285
n.5 (D.D.C. 2018) (rejecting retaliation claim based on non-selection when the plaintiff “removed
her own name from consideration for the position, [so] no reasonable jury could infer a causal link
8
Brown’s voluntary agreement to transfer to HSINET/SharePoint also defeats any finding that this
action was “adverse.” See Compl. ¶ 28; supra Section III.A.1.b; see also Ramos v. Lynch, 267 F.
Supp. 3d 39, 50 (D.D.C. 2017) (dismissing retaliation claim based on voluntary transfer because
the voluntariness “cast doubt on whether [the transfer] would qualify as an adverse employment
action, and it certainly undermine[d] [the plaintiff’s] claim that the transfer was somehow caused
by defendant in retaliation for her protected activity”).
9
For the same reasons, Brown’s transfer from BEAP to FALCON also could not adequately allege
a claim for retaliation, assuming she could overcome the causation hurdle, which she has not.
19
between [the plaintiff’s] protected activity and the [defendant’s] nonselection of [the plaintiff] for
th[e] position”).
Brown’s retaliation claims based on her transfer to HSINET/SharePoint and non-selection
to acting section chief also fail because, as alleged, those actions were too far removed from
Brown’s alleged statutorily protected activity. The non-selection occurred in August 2018 and the
HSINET/SharePoint transfer in September 2018—respectively, over six and seven months after
Brown notified Bracken that she had begun the EEO process. Compl. ¶¶ 21, 25, 29. Alone, those
gaps are too long to imply causation and support a retaliation claim. See Breeden, 532 U.S. at273–74; Jones, 922 F. Supp. 2d at 42. Thus, she must “advance . . . factual allegations in support
of [her] retaliation claim[s]” that permit the Court “to infer that the alleged sequence[s] of events
[were] ‘very close.’” Maestre, 2019 WL 7037484, at *7 (citation omitted). But Brown alleges no
other facts suggesting that these two alleged retaliatory actions stem from Brown’s EEO
engagement or any other statutorily protected activity. See Jones, 922 F. Supp. 2d at 42–43
(dismissing without prejudice a retaliation claim that appeared to depend on a monthslong
temporal gap and for which “no additional facts allege a causal link”). Relatedly, although Brown
states generally that she was excluded from meetings, high-level briefings, and significant
correspondence, Compl. ¶ 33, she does not allege a causal link between these exclusionary acts
and any statutorily protected activity. She does not even allege when these actions occurred, so it
is impossible for the Court to infer any causal link. See, e.g., Jones, 922 F. Supp. 2d at 42–43;
Maestre, 2019 WL 7037484, at *7. In sum, the Court finds that Brown has failed to plead any
20
claim for retaliation and will grant Defendant’s motion to dismiss the complaint’s retaliation
claims.10
3. Brown Fails to State a Disparate-Impact Claim
Defendant next argues that Brown’s claim for disparate impact under Title VII fails.
Brown alleges that Defendant’s hiring and promotion policies and practices improperly reserve
certain positions for 1811 series employees, thereby excluding minority women, like Brown, from
opportunities for advancement and consideration for supervisory positions. See Compl. ¶¶ 13–18.
But Brown has not alleged sufficient facts to support her claim that Defendant’s promotion policies
caused a disparate impact on members of a protected class.
Discrimination by disparate impact occurs when an employment practice is facially neutral
in its treatment of similarly situated groups but, in fact, “fall[s] more harshly on one group than
another.” See Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (quotation omitted). Unlike a
claim for disparate treatment, to support a successful disparate-impact claim a plaintiff need not
show any “subjective intent to discriminate.” Id. (quotation omitted). A plaintiff need only (1)
identify a specific employment practice that (2) caused a disparate impact on one of the prohibited
bases in 42 U.S.C. § 2000e-2(k). See Lewis v. City of Chicago, 560 U.S. 205, 212 (2010). “The
requirement to identify the employment practice or practices responsible for the shortfall guards
against holding employers liable for the myriad of innocent causes that may lead to statistical
imbalances in a given workforce.” Davis v. District of Columbia, 925 F.3d 1240, 1249 (D.C. Cir.
2019) (cleaned up). At the pleading stage, a “plaintiff is not required to prove that the employment
10
In opposing Defendant’s motion to dismiss, Brown tries to supplement her complaint’s
retaliation allegations by citing a “memo.” ECF No. 24 at 11; ECF No. 24-1. But Brown may not
now introduce and rely on that memorandum because it “is well settled law that a plaintiff cannot
amend [her] complaint by the briefs in opposition to a motion to dismiss.” Kingman Park Civic
Ass’n v. Gray, 27 F. Supp. 3d 142, 160 n.7 (D.D.C. 2014). And Brown concedes this memorandum
was “not included in [the] Amended Complaint.” ECF No. 24 at 11 n.2.
21
practice caused a disparate impact,” but “only needs to make allegations that state a ‘cognizable
claim.’” Young v. Covington & Burling LLP, 736 F. Supp. 2d 151, 161 (D.D.C. 2010) (quoting
Lewis, 560 U.S. at 212). It is, however, “not enough to simply allege that there is a disparate
impact on workers, or point to a generalized policy that leads to such an impact.” Menoken v.
McGettigan, 273 F. Supp. 3d 188, 199 (D.D.C. 2017) (quoting Smith v. City of Jackson, 544 U.S.
228, 241 (2005)), aff’d sub nom. Menoken v. Pon, No. 17-5228, 2018 WL 2383278 (D.C. Cir. May
9, 2018).
Generally, to survive a motion to dismiss, a disparate-impact claim must therefore show a
disparity with statistical evidence. See Krodel v. Young, 748 F.2d 701, 709 (D.C. Cir. 1984)
(“Statistical evidence is crucial in disparate impact cases, where plaintiffs must show that specific
employment practices select applicants in a racial pattern significantly different from that of the
pool of applicants.” (cleaned up)). A lack of statistical data at the motion-to-dismiss stage is not
necessarily fatal, but a plaintiff must still indicate in the complaint that she will later be able to
provide some sort of statistical evidence to survive a motion to dismiss. Compare Jianqing Wu v.
Special Counsel, No. 14-7159, 2015 WL 10761295, at *2 (D.C. Cir. Dec. 22, 2015) (per curiam)
(affirming case dismissal because plaintiff had no statistical evidence and did not “hint that
he . . . [could] obtain” any), with Menoken, 273 F. Supp. 3d at 199–200 (denying motion to dismiss
disparate-impact claim with no statistical evidence and noting “Plaintiff will now have to . . . come
forward with the necessary statistical evidence”).
Defendant first argues that Brown fails to identify a specific employment practice or set of
practices. ECF No. 22-1 at 22. Here, the Court sides with Brown. She alleges that the
“discriminatory practice by Headquarters of the Defendant of promoting or providing temporary
duty assignments to 1811s into lead program manager and supervisory roles in lieu of more
22
qualified 300 series employees is a systemic problem.” Compl. ¶13. Brown later identifies the
specific supervisory and managerial positions subject to this practice: “program managers, section
chief, unit chief, DAD, etc.” Id. ¶ 31. These positions are allegedly “written up for 1811s and
because of this [0300 series employees] are not eligible to apply.” Id. ¶ 13. This, in turn, creates
a “career ladder for 1811’s but none for 300 series employees,” which has resulted in a “disparate
impact . . . upon minorities and female employees.” Id. Thus, Brown has alleged a specific
promotion practice.
Second, Defendant argues that Brown fails to establish a race- or sex-based statistical
disparity among the supervisory positions she identifies. On this point, Defendant is correct.
Brown alleges facts from which, she maintains, the Court can infer that “underrepresented
females, specifically minority females lack promotion opportunity.” Compl. ¶ 15. For support,
she alleges that she personally had to transfer her duties with FALCON to two white, male 1811
employees, and that Campanella, also a white, male 1811 employee, was later promoted to acting
section chief despite Brown’s superior qualifications. Id. ¶¶ 22–25, 34. For statistical support,
Brown points to Defendant’s 2018 report that shows that men made up 54.10% of ICE employees
at GS-12 and below, 79.69% of ICE employees at GS-13 and GS-14, and 68.85% of the permanent
“SES”11 workforce. Id. ¶ 14. The report also reveals that white employees made up 52.46% of
the ICE workforce at or below GS-12, while white employees make up 62.01% of the workforce
at GS-13 and GS-14. Id. Similarly, the complaint alleges, men make up 86.88% of the 1811
workforce, of which 71.27% are white, id. ¶ 15, while more minority women (like Brown) make
up the non-1811 employee workforce, id. ¶¶ 31–32.
11
The Court assumes this refers to Senior Executive Service. See Executive Opportunities, DHS
(Feb. 2, 2022), https://www.dhs.gov/homeland-security-careers/senior-executive-service-develop
ment.
23
These allegations—and the data Brown provides—are insufficient. Although at this stage
extensive statistical evidence of a disparity is not required, Brown must still provide information
to plausibly show that a statistical disparity exists among the group of people affected by the
challenged practice. See Jianqing Wu, 2015 WL 10761295, at *1. Yet Brown fails to allege any
statistical disparity among the specific positions that are the subject of the allegedly discriminatory
practice she identifies. She does not allege, statistically or otherwise, any race- or sex-based
disparities among the program-manager, section-chief, unit-chief, or DAD ranks. She does not
say how many of those positions exist or their holders’ races and sexes. Brown’s personal
observation of Campanella’s promotion, while perhaps relevant in the larger context of statistical
disparities, cannot standing alone support a disparate-impact claim. See Boykin v. Fenty, 650 F.
App’x 42, 44 (D.C. Cir. 2016) (“[I]ndividual . . . experiences say nothing” about whether a policy
has a disparate impact on a protected class as a whole.).
As for the statistics she does provide, Brown’s complaint fails to adequately establish a
causal link between them and the alleged discriminatory policy. True, the statistics reveal that
there are more white men among the higher GS levels at ICE and that 1811 series employees are
predominantly white men overall. But it does not then follow that Defendant’s challenged
promotion policy related to managerial and supervisory positions caused that disparity, rather than
the “myriad of innocent causes that may lead to statistical imbalances in [Defendant’s] workforce.”
See Davis, 925 F.3d at 1249 (quotation omitted). For these reasons, Brown has not alleged that
Defendant’s policy for promotions has a disparate impact on protected classes to which she
belongs, so she has failed to state a claim for disparate impact.
24
B. Brown Fails to State an Equal Pay Act Claim
Last, Defendant moves to dismiss Brown’s Equal Pay Act claim because she failed to
allege that she performed equally skilled work under substantially similar working conditions as
her male colleagues who she alleges were paid more. ECF No. 22-1 at 25–27. The Court agrees.
To plead an Equal Pay Act violation, plaintiffs must state facts plausibly showing that
(1) they were doing substantially equal work on a job, the performance of which required
substantially equal skill, effort, and responsibility as jobs held by members of the opposite sex;
(2) the job was performed under similar working conditions; and (3) they were paid at a lower
wage than members of the opposite sex doing equal work. Savignac v. Jones Day, 486 F. Supp.
3d 14, 30 (D.D.C. 2020); see also Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
As to the first element, for Brown to sufficiently allege that she was “doing substantially
equal work” as her comparators, she must allege “she worked as many hours or otherwise worked
as hard as those who were paid more than she was.” Savignac, 486 F. Supp. 3d at 31 (quotation
omitted). She has not. Instead, she alleges only that, in March 2018, she transferred her BEAP
responsibilities to Teed and Campanella who went on to “conduct[] the same duties” as Brown but
received an additional 25% of their base salary. Compl. ¶ 23. Similarly, Brown alleges, in
September 2018, she transitioned to HSINET/SharePoint where she took on the “same role and
responsibilities” as a male colleague, Bearon, but received 25% less pay because of Bearon’s
LEAP. Id. ¶ 29.
Crucially, Brown glosses over LEAP—the very reason her male counterparts received 25%
more. LEAP is a form of congressionally authorized supplementary pay available to criminal
investigators for “unscheduled” work in “excess of a 40 hour work week.” 5 U.S.C. § 5545a(b);
see also Compl. ¶ 16 (“Eligibility for [LEAP] is limited to criminal investigators who are properly
classified in the GS-1811 series.”). For criminal investigators to receive LEAP, they must work
25
an annual average of two or more hours of “unscheduled duty” per workday. 5 U.S.C. § 5545a(d).
“[U]nscheduled duty” refers to “hours of duty a criminal investigator works, or is determined to
be available for work, that are not--(A) part of the 40 hours in the basic work week of the
investigator; or (B) overtime hours paid under section 5542.” Id. § 5545a(a)(3). Applicable
regulations refer to this as the “[s]ubstantial hours requirement.” 5 C.F.R. § 550.183(a). And
criminal investigators must provide an “annual certification to the head of the agency attesting that
the investigator currently meets, and is expected to continue to meet during the upcoming 1-year
period, the substantial hours requirement in § 550.183.” Id. § 550.184(b).
Teed, Campanella, and Bearon each received 25% more pay than Brown because, in
addition to the program-manager positions they held, and unlike Brown, they were 1811
employees. See Compl. ¶¶ 23, 29. To receive LEAP based on their 1811 classifications, Teed,
Campanella, and Bearon necessarily had to work or be “available to work” an annual average of
two or more hours of “unscheduled duty” per workday, and attest to those facts. 5 U.S.C.
§ 5545a(d); 5 C.F.R. § 550.184(b). Otherwise, they would not have received LEAP. See 5 C.F.R.
§ 550.183(a) (entitling criminal investigators to LEAP “only if” the substantial-hours requirement
is met).12 Brown nowhere alleges that she, too, worked or was “determined to be available [to]
work” an annual average of two or more hours of “unscheduled duty” per workday. 5 U.S.C.
§ 5545a(d); see 5 C.F.R. § 550.184(b). In fact, she includes no allegations at all about the number
of hours she worked or how many hours she worked relative to Teed, Campanella, and Bearon.
12
To conclude otherwise, the Court would have to infer that Brown’s male counterparts somehow
circumvented LEAP’s statutory requirements yet still received the extra pay. But Brown makes
no such claim. And the Court need not adopt that inference, which is “unsupported by the facts
set out in the complaint.” Bowe-Connor, 845 F. Supp. 2d at 84; see also Long v. Safeway, Inc.,
842 F. Supp. 2d 141, 144 (D.D.C. 2012) (requiring only “giving [the plaintiff] the benefit of every
reasonable inference drawn from the well-pleaded facts and allegations in the complaint”
(emphasis added)), aff’d, 483 F. App’x 576 (D.C. Cir. 2012).
26
She has therefore failed to allege that she worked the same number of hours as required to allege
that she performed substantially equal work as her male comparators. See Savignac, 486 F. Supp.
3d at 31. Thus, she has failed to state an Equal Pay Act claim.
In her opposition, Brown reemphasizes the complaint’s allegation that “misclassification
of the 1811 series at headquarters results in the criminal investigator working a typical 8-hour
workday while collecting availability pay for conducting the same or substantially equal work as
their non-1811 counterparts.” Compl. ¶ 18; ECF No. 24 at 17. She also alleges that the “nature
of the duties and responsibilities of these headquarters[] positions negates the need for the
‘substantial hours’ requirement to claim availability pay.” Compl. ¶ 18; ECF No. 24 at 17. These
allegations do not save her claim. After all, the substantial hours requirement is statutorily
mandated. And in any event, unscheduled duty is measured annually. See 5 U.S.C. § 5545a(d)(2).
So criminal investigators may work 8-hour days while assigned to certain temporary positions and
then later complete their required unscheduled duty during the rest of the year or in other ways.
Brown’s allegation that the substantial-hours requirement has been “negated” as to any criminal
investigators—let alone as to the comparators she identifies—thus finds no support. And even if
it did, “there is a difference between alleging that a plaintiff and her comparators’ jobs require
‘equal . . . effort’ and alleging that the plaintiff and her comparators, in fact, performed
‘substantially equal work.’” Savignac, 486 F. Supp. 3d at 31.
Brown also repeats the complaint’s allegations that “headquarters positions” assigned to
1811 employees “do not require the use of arrest authority” and that the 1811 employees are
misclassified “into positions where the duties do not involve performing investigations related to
specific acts of illegal or unlawful activity.” Compl. ¶ 17; ECF No. 24 at 16–17. These allegations
mistakenly assume that LEAP applies only to those who actually perform investigations. LEAP
27
applies to “criminal investigators.” 5 U.S.C. § 5545a(b). Section § 5545a(a)(2) defines “criminal
investigator” by incorporating the definition for “law enforcement officer” provided in Section
5541(3), which itself incorporates the definition in Section 8331(20). Section 8331(20) then
defines a law enforcement officer as an “employee, the duties of whose position are primarily the
investigation, apprehension, or detention of individuals suspected or convicted of offenses against
the criminal laws of the United States, including an employee engaged in this activity who is
transferred to a supervisory or administrative position.” 5 U.S.C. § 8331(20) (emphasis added).
Teed, Campanella, and Bearon were special agents reassigned to such supervisory and
administrative positions. Compl. ¶¶ 22, 29. As a result, there is no reason to question that they
were eligible for LEAP while in those roles.
Brown has accordingly failed to state a claim under the Equal Pay Act because she has not
alleged that she performed substantially similar work as Teed, Campanella, or Bearon. See
Savignac, 486 F. Supp. 3d at 31. Thus, the Court will dismiss her Equal Pay Act claim.
IV. Conclusion and Order
For all these reasons, it is hereby ORDERED that Defendant’s Partial Motion to Dismiss,
ECF No. 22, is GRANTED. It is further ORDERED that Plaintiff’s amended complaint, ECF
No. 20, is DISMISSED WITHOUT PREJUDICE IN PART, except insofar as it pleads a
disparate-treatment claim based on Plaintiff’s transfer from BEAP to FALCON.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: May 8, 2023
28