Gonzalez v. Garland

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CURTIS GONZALEZ,
Plaintiff,
v. Civil Action No. 21-1653 (TSC)
MERRICK GARLAND,
Defendant.
MEMORANDUM OPINION
Plaintiff Curtis Gonzalez is a Mexican-American man who began working for the Federal
Bureau of Investigations (“FBI”) in February 2013 and was indefinitely suspended in August
2020. Compl. ¶¶ 2, 6, ECF No. 1. He alleges he was discriminated and retaliated against by the
FBI in violation of Title VII of the 1964 Civil Rights Act. Id. ¶ 2. Defendant U.S. Attorney
General moves to dismiss this suit or, in the alternative, for summary judgment, arguing that
Plaintiff fails to state a claim upon which relief can be granted. See Def.’s Mot., ECF No 8 at 1-
2. For the following reasons, the court will GRANT Defendant’s Motion to Dismiss.
I. BACKGROUND
The court assumes the truth of the facts alleged for purposes of this motion. Beginning in
2013, Plaintiff served as a special agent (“SA”) in the FBI’s Chicago Field Office, where he
worked in the Counterterrorism Squad CT6. Compl. ¶¶ 5-9. In 2015, the FBI assigned SAs
Ryan Wherfel and Michael Wujciga, both of whom are White men, to CT6. Id. ¶ 9. Around
March or April 2016, CT6 SAs began reporting to Supervisory Special Agent (“SSA”) Benjamin
Beno. Id. ¶¶ 9-10. Assistant Special Agent in Charge (“ASAC”) Christopher Serdinak served as
CT6’s second-level supervisor. See Id. ¶ 29.
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Plaintiff claims that between 2016 and 2019, his coworkers and supervisors engaged in a
variety of discriminatory conduct. On November 16, 2016, Wujciga hung a Nazi flag in
Wherfel’s open office cubicle. Id. ¶¶ 12-18. After taking down the flag, Plaintiff reported the
incident to Beno, who “laughed in response” but said he would look into it. Id. ¶¶ 14-16.
During the same conversation, Plaintiff also reported Wherfel for making sexist and racist
comments toward Intelligence Analyst Tomoyo Nishimori, an Asian American woman. Id. ¶¶
17, 24, 26. Plaintiff claims that Beno knew that Wherfel “continued to frequently and openly
target colleagues who were women and/or Asian American” through at least November 2018,
and that Beno failed to fulfill his duty to report Wherfel’s conduct to the FBI’s Inspection
Division (INSD). Id. ¶¶ 23-29.
On September 26, 2017, Plaintiff learned that SA Jennifer Drager, a White woman, had
accused him of misconduct, and he contemporaneously informed Beno and Serdinak that Drager
had discriminated against and harassed him. Id. ¶¶ 29-30. The FBI Office of General Counsel
treated the employees’ cross-complaints as a single non-delegated investigation, meaning only
the INSD, and not the Chicago Field Office, would conduct the investigation. Id. ¶¶ 31-32.
Plaintiff claims that Beno and Serdinak interrogated him about Drager’s allegations “in
contravention of the requirements for a non-delegated investigation.” Id. ¶¶ 33-35. He alleges
that Drager openly discussed the INSD investigation and Beno left paperwork concerning the
investigation in his office where it could be seen. Id. ¶¶ 42-46. This prompted Plaintiff to report
Beno to supervisors and those overseeing the INSD investigation, including INSD Acting
Director Nancy McNamara, who later became the Office of Professional Responsibility (“OPR”)
Acting Assistant Director. Id. ¶ 69.
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On October 26, 2017, Beno rated Plaintiff’s FY2017 Annual Performance as “Excellent,”
instead of “Outstanding,” although he had earlier told Plaintiff that he was on track to receive an
“Outstanding” rating. Id. ¶¶ 141-44. About a month earlier, Beno had recommended Plaintiff
for an award and recognized him for “continuing to go above and beyond his job duties.” Id. ¶
146.
SSAs Matthew Scott and Sean Wells, White male supervisors within INSD’s Internal
Investigations Section, interviewed Plaintiff around February 7, 2018, and Plaintiff told them
about several instances when Wherfel and Wujciga displayed racist and sexist behavior, but
Beno failed to take action. Id. ¶¶ 47-48. Plaintiff later informed Scott and Wells that SAs
Drager, Wherfel, and Simin Langer were discussing his case without authorization, but Wells
dismissed his concerns. Id. ¶ 56.
On April 29, 2018, Plaintiff was transferred to the human intelligence (“HUMINT”)
squad. Id. ¶ 57. On July 2, 2018 SA Janine Wheeler, Chicago Field Office’s Media Officer,
asked Plaintiff if he would be interested in serving in the newly created position of Latino Media
Representative and asked Plaintiff to attend the Public Affairs Officer Training. Id. ¶¶ 59, 61.
Plaintiff claims the Chicago Field Office’s Undercover Coordinator also asked if he would be
interested in becoming a certified Undercover Employee, but Deputy Special Agent in Charge
Todd Carroll refused to consider him for the Latino Media Representative position, prohibited
him from attending the Public Affairs Officer Training, and rejected his request to become an
Undercover Employee because he had a pending INSD investigation. Id. ¶¶ 62-65. Plaintiff
claims that Carroll’s actions violated the Chicago Field Office’s policy “to treat everyone
involved in the situation equally and impartially until the OPR investigation concluded.” Id. ¶
66.
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On October 10, 2018, OPR issued a proposed 60-day suspension against Plaintiff based
on the INSD investigation, although Plaintiff claims the standard penalty for such misconduct is
30 days. Id. ¶¶ 70-71. OPR then provided the allegations to FBI’s Security Division in the event
they were relevant to Plaintiff’s Top Secret security clearance. Id. ¶ 73. Plaintiff claims that
news regarding the INSD investigation and his proposed suspension spread throughout the
Chicago Field Office. Id. ¶¶ 79-81.
On January 24, 2019, Plaintiff responded to the proposed suspension, denying “the bulk
of the allegations against him.” Id. ¶ 83. On February 12, 2019, OPR issued a final decision
suspending Plaintiff for 60 days. Id. ¶¶ 86, 92. Plaintiff appealed the suspension, which was
sustained on September 27, 2019. Id. ¶ 118.
On May 6, 2019 and January 2, 2020, Plaintiff submitted “Common Household” transfer
requests to move offices with his wife, who was also an FBI agent. Id. ¶¶ 103, 120. The FBI’s
Human Resource Division denied his requests on May 30, 2019 and March 16, 2020. Id. ¶¶ 109,
124.
On August 3, 2020, the FBI revoked Plaintiff’s Top Secret security clearance, allegedly
due to the OPR’s findings. Id. ¶ 132. As a result, the FBI indefinitely suspended Plaintiff on
August 6, 2020. Id. ¶ 133.
On June 5, 2019, Plaintiff contacted an EEO counselor and on July 8, 2019, he filed a
formal complaint of employment discrimination, alleging that the FBI discriminated against him
on the bases of sex, national origin, and reprisal. Id. ¶ 155; First EEO Complaint, ECF No. 8-6.
A final agency decision was not issued for this complaint before Plaintiff filed this case. Def.’s
Statement of Undisputed Facts ¶ 41, ECF No. 8-1. On September 17, 2020, Plaintiff contacted
an EEO counselor again, and on October 23, 2020, he filed a second formal complaint of
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employment discrimination, claiming that the FBI discriminated against him on the bases of
race, sex, national origin, non-sexual harassment, and reprisal. Compl. ¶¶ 132, 156, 169; Second
EEO Complaint, ECF No. 8-8. The FBI EEO office dismissed Plaintiff’s second complaint on
March 22, 2021. Compl. ¶ 156.
II. LEGAL STANDARD
A. Rule 12(b)(6)
“To survive a motion to dismiss, 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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is plausible when it permits the court “to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. at 678 (citation omitted). When considering such
motion, the court must construe the complaint in the light most favorable to the plaintiff. See
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979), aff’d on reh’g, 628 F.2d 199 (D.C.
Cir. 1980) (internal quotations omitted) (“[t]he complaint must be liberally construed in favor of
the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts
alleged”). In employment discrimination cases, although plaintiffs must establish a plausible
claim for relief, they do not need to “plead every fact necessary to establish a prima facie case to
survive a motion to dismiss.” Jones v. Air Line Pilots Ass’n, Int’l, 642 F.3d 1100, 1104 (D.C.
Cir. 2011) (citation omitted).
B. Rule 56
Summary judgment is appropriate when there is no disputed genuine issue of material
fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). A dispute is “genuine” only “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 248 (1986). In considering such motion, the court must view all facts
in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
The moving party bears the “initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits. . .which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323(internal quotations omitted). The nonmoving party, in response, must “go beyond the pleadings
and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal
quotations omitted). “If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50 (citations omitted).
III. ANALYSIS
A. Exhaustion
“Title VII complainants must timely exhaust their administrative remedies before
bringing their claims to court.” Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (internal
quotation marks and citation omitted). The exhaustion process requires two steps. First, within
45 days of the alleged discriminatory act, a complainant must contact an EEO Counselor. 29
C.F.R. § 1614.105(a)(1). Second, if the matter is not resolved informally, the employee must file
a formal complaint of discrimination with the agency. Id. §§ 1614.105(d), 1614.106(a). The
employee may amend the complaint “at any time prior to the conclusion of the investigation to
include issues or claims like or related to those raised in the complaint.” Id. § 1614.106(d).
“For purposes of exhaustion, there are two types of Title VII claims: (1) claims of
discrete retaliatory or discriminatory acts and (2) hostile work environment claims.” Laughlin v.
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Holder, 923 F. Supp. 2d 204, 209 (D.D.C. 2013) (citing Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 110, 115 (2002)). An employee must timely exhaust the administrative process
for each discrete act for which he seeks to bring a claim, which means that discrete
discriminatory acts “are not actionable if time barred, even when they are related to acts alleged
in timely filed charges.” Burkes v. Holder, 953 F. Supp. 2d 167, 173 (D.D.C. 2013) (citing
Morgan, 536 U.S. at 113). “Each discrete discriminatory act starts a new clock for filing charges
alleging that act. The charge, therefore, must be filed within the 45-day time period after the
discrete discriminatory act occurs.” Morgan, 536 U.S. at 113. Hostile work environment claims
are “different in kind from discrete act claims” because “[t]heir very nature involves repeated
conduct.” Id. at 115. “Provided that an act contributing to the claim occurs within the filing
period, the entire time period of the hostile environment may be considered by a court for the
purposes of determining liability.” Id. at 117. That act need not be the last act; subsequent
events “may still be part of the one hostile work environment claim.” Id.
Plaintiff’s Complaint did not provide the date he contacted an EEO Counselor, but the
information is included in Plaintiff’s EEO Complaints, which Defendant attached to its Motion.
Ordinarily, if the court relies on materials other than facts alleged in the complaint, documents
attached as exhibits or incorporated by reference, documents upon which the plaintiff’s
complaint necessarily relies, and facts of which the court may take judicial notice, the motion is
converted to one for summary judgment. Vasser v. McDonald, 228 F. Supp. 3d 1, 9 (D.D.C.
2016). When considering exhaustion, courts have found that relying on administrative orders
and complaints does not convert the motion into one for summary judgment if the documents
“referred to in the complaint, ... are integral to [the plaintiff’s] exhaustion of administrative
remedies, and are public records subject to judicial notice.” Laughlin, 923 F. Supp. 2d at 209;
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see Vasser, 228 F. Supp. 3d at 8; Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Bowe–
Connor v. Shinseki, 845 F.Supp.2d 77, 89 n. 6 (D.D.C. 2012). Accordingly, the court will take
judicial notice of Plaintiff’s EEO Complaints without converting Defendant’s Motion to one for
summary judgment.
1. Security Clearance Revocation and Indefinite Suspension Claims
Defendant does not dispute that Plaintiff’s security clearance and indefinite suspension
claims are timely filed. The FBI revoked Plaintiff’s security clearance on August 3, 2020 and
indefinitely suspended Plaintiff on August 6, 2020. Compl. ¶¶ 132-33. Plaintiff contacted his
EEO counselor regarding the revocation of his security clearance and indefinite suspension on
September 17, 2020, within the required 45-day period. Accordingly, Plaintiff’s security
clearance revocation and indefinite suspension claims were properly exhausted.
2. Transfer Request Claims
The FBI’s Human Resource Division denied Plaintiff’s first spousal transfer request on
May 30, 2019. Id. ¶ 109. Plaintiff first contacted his EEO counselor on June 5, 2019 and
included this claim in his First EEO Complaint. Id. ¶ 155. Consequently, his May 2019 transfer
request claim was timely filed and properly exhausted.
The FBI denied Plaintiff’s second spousal transfer request on March 16, 2020, id. ¶ 124,
approximately six months before he contacted his EEO Counselor regarding his Second EEO
Complaint on September 17, 2020. See Second EEO Complaint. Accordingly, the court will
dismiss Counts 1 (disparate treatment based on race, national origin, and sex) and 3 (disparate
treatment based on retaliation) regarding Plaintiff’s second transfer request claim as untimely
because he did not contact the EEO office within the required 45 days.
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3. Hostile Work Environment Claims
Plaintiff originally alleged that several discrete acts occurred before April 2019, but he
did not contact his EEO counselor until June 5, 2019, outside of the 45-day window. Id. ¶ 155.
Those acts include Beno’s decision to rate Plaintiff “Excellent” rather than “Outstanding” on
October 26, 2017, Carroll’s decision not to appoint Plaintiff as the Latino media representative
on July 2, 2018, and OPR’s decision to suspend Plaintiff for 60 days on February 12, 2019.
Compl. ¶¶ 141, 59-62, 86.
In his opposition, Plaintiff conceded that his complaints about these discrete acts were
untimely filed. He argues however, that “the three untimely discrete acts. . . together with the
additional acts of harassment Plaintiff identified in his Complaint [namely the denial of his
transfer requests], constitute one unlawful employment action, actionable under Title VII” as
hostile work environment claims. Pl.’s Opp’n. at 13. He asserts the same hostile work
environment claims based on race and retaliation in Counts 2 and 4 respectively. See Compl. ¶¶
164, 172-73.
As previously noted, a hostile work environment claim may be timely as long as “an act
contributing to the claim occur[ed] within the filing period,” even if other acts alleged would be
untimely on their own. See Morgan, 536 U.S. at 117. Plaintiff’s hostile work environment
claims include the FBI’s denial of his first transfer request. See Compl. ¶¶ 164, 172. Because
this act occurred less than 45 days from June 5, 2019, the date Plaintiff first contacted an EEO
counselor, Plaintiff may be able to recover for any acts that, along with his first transfer request
denial, “collectively constitute one unlawful employment practice.” See Morgan, 536 U.S. at
117, (internal quotation marks omitted). Consequently, the court will not dismiss Plaintiff’s
hostile work environment claim as untimely.
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B. Failure to State a Claim
Defendant also argues that several of Plaintiff’s claims should be dismissed for failure to
state a claim under Fed.R.Civ.P. 12(b)(6). The court need only consider this argument as to
claims that will not be dismissed for failure to exhaust administrative remedies. This leaves
Plaintiff’s security clearance revocation and indefinite suspension claims, hostile work
environment claims, and first transfer denial claim.
1. Plaintiff’s Security Clearance Revocation and Indefinite Suspension Claims
Defendant argues that Plaintiff’s security clearance and indefinite suspension claims
should be dismissed because Dep’t of Navy v. Egan, 484 U.S. 518 (1988) precludes judicial
review of Title VII claims challenging employment actions based on security-related predictive
judgments. Def.’s Motion at 15 (citing Foote v. Moniz, 751 F.3d 656, 659 (D.C. Cir. 2014);
Rattigan v. Holder, 643 F.3d 975, 985 (D.C. Cir. 2011) (Rattigan I), vacated in part on other
grounds, 689 F.3d 764 (D.C. Cir. 2012) (Rattigan II); Bennett v. Chertoff, 425 F.3d 999, 1002-
1003 (D.C. Cir. 2005); Ryan v. Reno, 168 F.3d 520, 523 (D.C. Cir. 1999)). Plaintiff counters
that he does not challenge his security clearance revocation or his suspension but rather claims
that “Bureau employees acted with retaliatory and/or discriminatory motive in reporting or
referring information that they knew to be false” to the Security Division. Pl.’s Opp’n at 6.
Plaintiff further contends that because the sole act to be evaluated by the court is the
discriminatory and/or retaliatory referral—which occurred before the security clearance
determination—“Egan does not preclude Plaintiff’s Title VII claim (the false security referral
itself) as a matter of law.” Id.The D.C. Circuit has held that “Egan’s absolute bar on judicial review covers only
security clearance-related decisions made by trained Security Division personnel and does not
preclude all review of decisions by other FBI employees who merely report security concerns.”
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Rattigan II, 689 F.3d at 768. The Circuit further found that a “Title VII claim may proceed only
if [the plaintiff] can show that agency employees acted with a retaliatory or discriminatory
motive in reporting or referring information that they knew to be false.” Id. at 771. A plaintiff
seeking to advance a Rattigan-based Title VII claim related to an agency’s revocation of his
security clearance must show that: (1) the agency employee had a discriminatory or retaliatory
motive to report the plaintiff or to refer false information about him, and (2) the reporting
employee knew that the report or referral of information was false. See id. “Motive and
knowing falsity must unite in the same person.” Rattigan v. Holder, 780 F.3d 413, 416 (D.C.
Cir. 2015) (Rattigan III).
Plaintiff’s Complaint lacks factual allegations that would meet the Rattigan requirements.
He claims that OPR provided his October 2018 proposed suspension to the FBI’s Security
Division, but, as a court found in a similar case, “it is not clear from the facts as alleged exactly
when the referral to the security clearance office occurred, much less who, in particular, made
the referral, which is information that is necessary for the court to determine whether or not the
motive and knowing falsity elements ‘unite in the same person.’” Horsey v. U.S. Dep’t of State,
170 F. Supp. 3d 256, 270 (D.D.C. 2016) (dismissing plaintiff’s Rattigan-type Title VII claim
challenging an indefinite suspension). In his opposition, Plaintiff attempted to cure this defect by
asserting new theories regarding the referral: namely that Drager falsely reported that Plaintiff
sexually harassed her and OPR Acting Assistant Director McNamara sent that information to the
Security Division. See Pl.’s Opp’n at 8. But a plaintiff may not amend a complaint by way of
responsive briefing. Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp.
2d 165, 170 (D.D.C. 2003) (quoting Coleman v. Pension Benefit Guar. Corp., 94 F.Supp.2d 18,
24 n.8 (D.D.C. 2000)). And in any event, Plaintiff does not allege that McNamara had a
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discriminatory or retaliatory motive and knowingly submitted a false report which caused
Plaintiff to lose his security clearance. Accordingly, the court will dismiss Counts 1-4 with
respect to Plaintiff’s security clearance revocation and indefinite suspension claims.
2. Plaintiff’s Hostile Work Environment Claims
A hostile work environment exists, for purposes of Title VII, “[w]hen 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 v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and
citation omitted). Although Morgan permits consideration of time-barred acts as part of a hostile
work environment claim, it is not “an open sesame to recovery for time-barred violations.”
Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011). The court must determine: a) whether
the time-barred and timely filed acts are adequately connected to each other (i.e., “all acts which
constitute the claim are part of the same unlawful employment practice,” Morgan, 536 U.S. at
122), and b) whether the acts collectively meet the independent requirements of that claim (i.e.,
are “sufficiently severe or pervasive ...,” Harris, 510 U.S. at 21).
a. Adequately Connected
In Morgan, the Supreme Court affirmed the Ninth Circuit’s holding that acts constitute
the same hostile environment claim if they involve, for example “‘the same type of employment
actions, occurred relatively frequently, and were perpetrated by the same managers.’” Morgan,
536 U.S. at 120 (quoting Morgan v. Nat’l R.R. Passenger Corp., 232 F.3d 1008, 1017 (9th Cir.
2000)); see also id. at 118 (excluding any incident that “had no relation to the [other] acts ... or
for some other reason, such as certain intervening action by the employer, was no longer part of
the same hostile environment claim”). In other words, “acts before and after the limitations
period [that are] so similar in nature, frequency, and severity ... must be considered to be part and
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parcel of the hostile work environment.” Baird, 662 F.3d at 1251 (quoting Wilkie v. Dep’t of
Health & Human Servs., 638 F.3d 944, 951 (8th Cir. 2011)).
In Vickers v. Powell, 493 F.3d 186 (D.C. Cir. 2007), plaintiff alleged that her prior
supervisor engaged in coarse behavior and made sexual and sexist comments, and that her
subsequent supervisor spoke harshly to her while supervising her. Id. at 199. Despite the fact
that the conduct involved different supervisors, was both sexual and non-sexual, and occurred
over a span of eight years before the timely reported events, the Circuit found that the prior
supervisor’s actions reasonably could have been part of same hostile work environment created
by the subsequent supervisor’s actions. Id. at 199-200 (finding that the prior supervisor’s sexual
conduct and the successor’s perpetuation of the environment that condoned such behavior was
not so well-defined that the supervisors’ acts had “no relation” to the successor’s act as required
in Morgan). Relying on Vickers, in Bergbauer v. Mabus, 934 F. Supp. 2d 55, 76 (D.D.C. 2013),
the court found that plaintiff’s untimely filed allegations regarding her supervisor and timely
filed allegations regarding her coworker reasonably could have been part of the same unlawful
employment practice because both acted in ways that were sexual or romantic in nature and they
worked in the same division. The court made this finding despite the fact that the alleged acts
concerned different individuals at different levels of the organization, took place in different
settings (one at a social gathering during an out-of-town work trip and the other at work during
business hours), and involved different frequency (the supervisor incident took place once
whereas incidents involving the coworker occurred several times over an approximately five-
month period). Id.Plaintiff argues that the FBI’s May 30, 2019 denial of his first transfer request is part of
the same unlawful practice as the denial of his second transfer request and a string of alleged
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incidents that occurred between October 2017 and May 2019, including Beno’s suggestion that
Plaintiff resign, Beno’s rating Plaintiff’s performance as “Excellent” instead of “Outstanding,”
Beno’s failure to report that Plaintiff felt threatened by Drager’s husband, who also worked for
the FBI, executive management’s failure to prevent FBI employees from discussing Plaintiff’s
INSD investigation, Carroll’s refusal to consider Plaintiff for the Latino Media Representative
position, and McNamara’s 60-day suspension of Plaintiff. Pl.’s Opp’n at 14-15.
Plaintiff does not allege that these acts involved “the same type of employment actions,
occurred relatively frequently, and were perpetrated by the same managers.” Morgan, 536 U.S.
at 120. Nor does he allege that the employment actions took place in the same division, unlike
Vickers and Bergbauer. For example, Beno’s decision to rate Plaintiff “Excellent” and Carroll’s
decision not to appoint Plaintiff as the Latino media representative took place in the Chicago
Field Office, while OPR’s decision to suspend Plaintiff for 60 days and the Human Resource
Division’s decisions to deny Plaintiff’s transfer requests took place at FBI headquarters in
Washington, D.C. Def.’s Reply at 8. These incidents are mostly different employment actions
(suspension after investigation, failure to promote, denial of transfer, etc.) that occurred during
different time periods, and in different places. In fact, the only repeat employment actions were
Plaintiff’s transfer denials, and those occurred nearly one year apart. See Compl. ¶¶ 109, 124.
Even viewing the facts in the light most favorable to Plaintiff, the court finds that his claims of
events occurring before April 2019 are not sufficiently related to the timely filed transfer request
claim, but the two transfer denials could be reasonably related. Accordingly, the court will
dismiss Plaintiff’s claims relating to events before April 2019 but will not dismiss his claims
arising out of the two transfer requests.
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b. Sufficiently Severe or Pervasive
To determine whether an employer’s actions were “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, a court should consider “all the circumstances, including the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (internal quotation
marks omitted); see also Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (finding
disciplinary actions and sporadic workplace conflicts were not so severe or pervasive to have
changed conditions of plaintiff’s employment because employer’s actions did not focus on
employee’s race, religion, age, or disability, and did not subject plaintiff to tangible workplace
consequences). To constitute “a change in the terms and conditions of employment” the
complained of conduct must be “extreme.” Faragher, 524 U.S. at 788.
As discussed above, Plaintiff’s hostile work environment claim now consists of his two
transfer request denials. He argues that “[a]t this threshold stage, the possibility that these
actions were based on an impermissible consideration, such as Plaintiff’s race, national origin,
gender, and/or protected EEO activity cannot be discounted.” Pl.’s Opp’n. at 16. But he
provides no factual allegations to indicate that the FBI’s denial of his transfer request had
anything to do with his race, national origin, gender, or prior EEO activity. He does not claim
that the FBI’s Human Resource Division made any derogatory comments to him in denying his
transfer request, or any other statements that would indicate that their decision was motivated by
racial or other animus. Consequently, the two transfer denials, which took place one year apart,
appear to be “isolated incidents [that] are not fairly characterized as pervasive.” Laughlin, 923 F.
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Supp. 2d at 220. Plaintiff therefore fails to state a prima facie case of hostile work environment,
because he does not allege that his workplace was so “permeated with discriminatory
intimidation, ridicule, and insult that [it was] sufficiently severe or pervasive to alter the
conditions of [his] employment and create an abusive working environment.” Harris, 510 U.S.
at 21. Therefore, the court will dismiss Plaintiff’s hostile work environment claims (Counts 2
and 4).
3. Plaintiff’s First Transfer Request Denial
Plaintiff’s only remaining claims are Counts 1 and 3, alleging disparate treatment on the
bases of race, national origin, and sex and retaliation in the denial of Plaintiff’s first transfer
request on May 30, 2019. Compl. ¶ 109.
a. Disparate Treatment Based on Race, National Origin, and Sex
The D.C. Circuit recently held in Chambers v. District of Columbia, 35 F.4th 870, 872
(D.C. Cir. 2022) (en banc) 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.” Under that framework, even discriminatory transfer denials that do
not cause a plaintiff “objectively tangible harm” still violate Title VII. See id. at 874–75, 879.
But even post Chambers, courts in this district have dismissed Title VII discrimination claims for
“baldly stating that the alleged employment action adversely affected the terms, conditions, or
privileges of employment without proffering supporting facts or allegations.” Black v. Guzman,
No. CV 22-1873 (BAH), 2023 WL 3055427, at *8 (D.D.C. Apr. 24, 2023) (dismissing plaintiff’s
claims that she was discriminatorily “pulled from” two work events because she failed to provide
details about any impact on her compensation, benefits, and promotion opportunities); see, e.g.,
Garza v. Blinken, No. 21-CV-02770 (APM), 2023 WL 2239352, at *5 (D.D.C. Feb. 27, 2023)
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(finding that a “proposed letter of reprimand” issued to plaintiff failed to state a claim for an
adverse employment action because the “complaint [was] devoid of any facts suggesting that the
proposed letter affected the terms and conditions of [the plaintiff’s] employment,” and instead
merely “assert[ed] in a conclusory manner that the letter of proposed reprimand had a material
effect on the terms and conditions of her employment”) (quotation marks omitted); Brown v.
Mayorkas, No. CV 20-3107 (TJK), 2023 WL 3303862, at *7 (D.D.C. May 8, 2023) (dismissing
discrimination claims regarding transfer because plaintiff “never specifically allege[d] that her
race or sex motivated the [] transfer”).
Here, Plaintiff states in conclusory language that Defendant denied his transfer request
because of his race but does not specifically allege any facts showing how race motivated the
denial. For example, Plaintiff does not claim that his coworkers made demeaning comments
about his race or that Defendant approved transfer requests for his White, similarly situated
coworkers. See Davis v. D.C., 949 F. Supp. 2d 1, 8 (D.D.C. 2013) (finding disparate treatment
occurs when “[t]he employer simply treats some people less favorably than others because of
their race, color, religion, sex, or national origin.”) As in Black and Garza, Plaintiff does not
allege facts suggesting that his transfer request denial affected the terms and conditions of his
employment, such as compensation, benefits, and promotion opportunities. Because
“[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, the court will dismiss Count 1 regarding
Plaintiff’s claim of disparate treatment based on race, national origin, and sex.
b. Disparate Treatment Based on Retaliation
Title VII makes it an “unlawful employment practice for an employer to discriminate
against any of his employees ... because he has opposed any practice made an unlawful
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employment practice by this subchapter, or because 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 plaintiff must plausibly establish that (1)
he engaged in a statutorily protected activity, (2) he 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). An adverse action is one
that “could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). 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 v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (quotation omitted); see
also 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.”). In
Brown, 2023 WL 3303862, at *9, the court dismissed plaintiff’s retaliation claim based on her
transfer because it found that plaintiff contacted the EEO and notified her supervisor of her
protected activity after defendant decided to transfer her and so the protected activity could not
have caused the transfer.
As in Brown, Plaintiff does not allege a causal connection between his protected activity
and the alleged material adverse action. Defendant denied Plaintiff’s transfer request on May 30,
2019, Compl. ¶ 109, and Plaintiff contacted his EEO counselor on June 5, 2019, meaning his
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protected activity postdated the denial. Id. ¶ 155. And Plaintiff’s earlier protected activity
occurred years before the denial. For example, Plaintiff reported his coworkers for hanging a
Nazi flag in 2016, id. ¶¶ 17, 24, 26, and reported his supervisor and coworkers for discussing the
details of his INSD investigation in 2018. Id. ¶¶ 55-56. Thus, the court finds that Plaintiff failed
to state a claim for disparate treatment based on retaliation and will accordingly dismiss Count 3.
IV. CONCLUSION
For the reasons set forth above, the court will GRANT Defendant’s Motion to Dismiss,
ECF No. 8.
Date: September 21, 2023
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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