United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2001 Decided January 11, 2002
No. 01-5036
Sonya G. Stewart,
Appellant
v.
Donald L. Evans, in his official capacity as
Secretary of Commerce, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 00cv01241)
Larry Klayman argued the cause and filed the briefs for
appellant.
Kathleen A. Kane, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Kenneth L. Wainstein, U.S. Attorney at the time the brief
was filed, and Marleigh D. Dover, Attorney.
Before: Ginsburg, Chief Judge, Rogers and Garland,
Circuit Judges.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge: Sonya Stewart, an employee of the
Department of Commerce, sued the Secretary of Commerce
and two departmental employees, alleging that another em-
ployee discriminated against her because of sex by berating
her with profanity in a phone conversation, and that when she
filed a complaint the Department retaliated against her in
various ways, all in violation of Title VII of the Civil Rights
Act of 1964. She also alleged that the two employees illegally
searched her private documents pertaining to the discrimina-
tion complaint, in violation of the Fourth Amendment to the
Constitution of the United States. The district court granted
the defendants' motion to dismiss.
We affirm the judgment of the district court dismissing the
Title VII claims -- sexual harassment and retaliation -- for
the reasons stated in the Memorandum Opinion filed by the
district court and appended hereto. We reverse the judg-
ment of the district court dismissing Stewart's Fourth
Amendment claim, and remand that aspect of the case to the
district court for further proceedings.
I. Background
Sonya Stewart, an employee at the Department of Com-
merce, alleges that Frank DeGeorge, when he was Inspector
General of the Department, berated her with a tirade of
profanity in a telephone conversation on May 3, 1996. Stew-
art reported the incident to an equal employment opportunity
counselor within the Department and eventually filed a for-
mal complaint. Thereafter the Equal Employment Opportuni-
ty Commission investigated the situation, and the Depart-
ment ultimately notified Stewart that her claim had been
rejected.
According to Stewart, between the time she first reported
the incident and the time she received the Department's final
decision, the Acting General Counsel of the Department, Sue
Esserman; the Assistant General Counsel for Administration,
Barbara Fredericks; and the Chief of the Employment Law
Division, Kathleen Taylor, all engaged in various acts of
retaliation against her. Stewart also claims to have kept
detailed notes about the initial incident and the acts of
retaliation, including notes about "strategies for pursuing her
claim." Stewart says she initially kept these notes and
related documents in her office at the Department but later
agreed to give them to John Sopko, Chief Counsel of the
Special Matters Unit, to be kept in part in a safe and in part
in a locked cabinet. Stewart claims she agreed to give Sopko
the documents only upon being assured that no one, including
specifically Fredericks and Taylor, would see them. Freder-
icks and Taylor knew about this arrangement but nonetheless
reviewed the files while Stewart was on sick leave in August,
1998.
In February, 2000 Stewart sued the Department under
Title VII for the abusive comments and the retaliation, and
sued Fredericks and Taylor under the Fourth Amendment
for reading her private papers. The district court granted
the defendants' motions to dismiss the claims. The court
reasoned that the Civil Service Reform Act, 5 U.S.C.
ss 2301-2305, which established a system of administrative
remedies for improper actions by supervisors in the federal
workplace, precludes Stewart from recovering under the
Fourth Amendment for the allegedly illegal search. The
court also ruled that the profane tirade to which she was
allegedly subjected did not constitute sex discrimination, and
that none of the alleged acts of retaliation constituted an
"adverse employment action" under Title VII. Stewart ap-
peals in all respects.
II. Analysis
The Civil Service Reform Act, which identifies certain
prohibited "personnel actions" in the federal civil service and
creates administrative remedies for the benefit of any em-
ployee subjected to such an action, by implication also pre-
cludes an aggrieved employee from suing the Government or
a fellow employee for damages for engaging in such action.
Bush v. Lucas, 462 U.S. 367 (1983). In Bush, the Supreme
Court held that an employee of the federal government may
not recover damages when his superior improperly disciplines
him for exercising his rights under the First Amendment
because "such claims arise out of an employment relationship
that is governed by comprehensive procedural and substan-
tive provisions giving meaningful remedies against the United
States," referring to the CSRA. 462 U.S. at 368. The Court
reasoned that to "creat[e] ... a new judicial remedy for the
constitutional violation at issue" would disrupt the "elaborate
remedial system that has been constructed [by the Congress]
step by step, with careful attention to conflicting policy
considerations." Id. at 388.
Fredericks and Taylor maintain that if the CSRA precludes
a Bivens action based upon an alleged violation of the First
Amendment, then it must similarly preclude Stewart's Bivens
action based upon an alleged violation of the Fourth Amend-
ment. Stewart replies by pointing out that in footnote 28 in
Bush the Court explicitly distinguished a warrantless search
from a violation of the First Amendment: "Not all personnel
actions are covered by this system.... [C]ertain actions by
supervisors against federal employees, such as wiretapping,
warrantless searches, or uncompensated takings, would not
be defined as 'personnel actions' within the statutory
scheme." Id. at 385 n.28. Because, Stewart argues, a war-
rantless search falls outside the condemnation (and, we pre-
sume, the approbation) of the statutory scheme, that scheme
cannot preclude a Bivens action based upon such a search. Cf.
Carlson v. Green, 446 U.S. 14, 20-21 (1980) (holding that the
Federal Tort Claims Act does not preclude actions for viola-
tion of rights under the Constitution).
A district court in this circuit accepted the precise argu-
ment Stewart advances, McGregor v. Greer, 748 F. Supp. 881,
889 (1990), but the Ninth Circuit took the opposite view in
Saul v. United States, 928 F.2d 829, 839 (9th Cir. 1991) ("We
do not think the footnote [in Bush] was meant to decide
whether every allegation that a supervisor has subjected a
federal employee to a warrantless search is barred from
appeal under the CSRA. Read in context, the footnote
indicates only that CSRA remedies, while comprehensive, are
not infinitely so"). We agree with the district court in
McGregor. The disputed footnote in Bush is appended to the
Supreme Court's analysis of the comprehensiveness of the
statutory scheme. The Court held that the CSRA precludes
a Bivens action based upon a violation of an employee's First
Amendment rights because the statute covers such a violation
(regardless whether it provides a remedy for it). By noting
that a warrantless search is not a "personnel action[ ] ...
covered by this system," and stating that such a search does
not fall "within the statutory scheme," Bush virtually compels
the conclusion that the Act does not preclude a Bivens action
for a warrantless search.
Fredericks and Taylor contend that Stewart's lawsuit
should be dismissed even if it is not precluded by the CSRA,
but their arguments are not persuasive. First, the defen-
dants suggest that Stewart must exhaust her remedies under
the CSRA before bringing a Bivens action. This makes no
sense: The reason the CSRA does not preclude Stewart's
lawsuit is precisely that the statute is not concerned with the
conduct of which she complains; we cannot ask Stewart to
exhaust an administrative remedy that does not exist.
Second, the defendants maintain that Stewart lacked a
legitimate expectation of privacy in the places they
searched -- or at least that such an expectation was not
clearly established -- and that the defendants are therefore
shielded from liability by a qualified immunity. But the very
case Fredericks and Taylor cite in support of this proposi-
tion -- O'Connor v. Ortega, 480 U.S. 709 (1987 ) -- precludes
dismissal of Stewart's complaint. O'Connor holds that an
unreasonable search in the workplace violates the Fourth
Amendment, and that the inquiry into reasonableness must
be made on a case-by-case basis. Just as the Court in
O'Connor remanded the matter for further proceedings be-
cause "the record was inadequate for a determination on
motion for summary judgment of the reasonableness of the
search and seizure," 480 U.S. at 727, so must we remand this
case, which did not even get to the summary judgment stage.
Without knowing more about the circumstances surrounding
the search, a court simply cannot assess whether it was
reasonable.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed in part and reversed in part, and the Fourth
Amendment claim is remanded to the district court for fur-
ther proceedings.
So ordered.
APPENDIX
Sonya Stewart, Plaintiff
v.
William Daley, in his official capacity as Secretary
of Commerce, et al., Defendants
OPINION
February 6, 2001
HUVELLE, District Judge.
MEMORANDUM OPINION
Before the Court is defendant's Motion for Judgment on
the Pleadings, plaintiff's Opposition and defendant's Reply.
Having considered the pleadings, the Court concludes that
defendant's motion should be granted and the above com-
plaint shall be dismissed with prejudice on the grounds that
plaintiff has failed to state a cause of action for harassment
and retaliation under Title VII.
FACTUAL BACKGROUND
Ms. Sonya Stewart is employed by the Department of
Commerce (DOC). In May 1996 she was the Director for
Executive Budgeting and Assistance Management in the Of-
fice of the Secretary of Commerce. While there, Ms. Stewart
worked with numerous DOC officials, including Frank De-
George, then the DOC Inspector General. Ms. Stewart alleg-
es that prior to May 3, 1996, Mr. DeGeorge had made
inappropriate sexual advances toward her and invited her out
for drinks. Ms. Stewart also alleges the Mr. DeGeorge
treated other females at DOC in a similar manner.
According to the complaint, on May 3, 1996, Mr. DeGeorge
contacted Ms. Stewart to discuss a disbursement of $141,000
made by the DOC to the Internal Revenue Service pursuant
to a tax levy imposed on a financially troubled federal assis-
tance recipient. During the call, Ms. Stewart alleges that Mr.
DeGeorge used offensive profanities, including the following:
"...you're a fucking idiot...;" "...you are full of shit...;"
"...can't you fucking read...;" "...fuck the goddamn
memo...;" "...just between us girls...;" "...I want to
know where your fucking head was at...;" and "...I don't
have to listen to your fucking bullshit." Mr. DeGeorge also
allegedly said that Ms. Stewart would "rue the day [she] ever
did this to [him]" and that "somebody's going to pay for this."
Complaint, p 14.
On May 8, 1996, Ms. Stewart contacted a DOC Equal
Employment Opportunity counselor regarding her telephone
call with Mr. DeGeorge. On February 26, 1997, the EEOC
began an investigation of Stewart's claim. Ms. Stewart alleg-
es that other DOC officials, specifically Acting General Coun-
sel Sue Esserman, Assistant General Counsel for Administra-
tion Barbara S. Fredericks, and Employment Law Division
Chief Kathleen J. Taylor, slowed the investigation by refusing
to meet with EEOC investigators. The EEOC investigation
was completed on November 18, 1997. Ms. Stewart request-
ed a final agency decision on December 11, 1997. On Sep-
tember 24, 1999, the DOC rejected Ms. Stewart's claim and
issued a formal decision on November 24, 1999.
Ms. Stewart alleges that between May 8, 1996 and Novem-
ber 24, 1999, Esserman, Fredericks and Taylor retaliated
against her for filing her EEO complaint. The alleged acts of
reprisal included: (1) interfering with Ms. Stewart's nomina-
tion for a Presidential Rank Meritorious Award; (2) causing
Ms. Stewart's removal as a recommending member of a
screening panel for candidates for the DOC's Director for
Civil Rights; (3) interfering with Ms. Stewart's appointment
as Acting Deputy Assistant Secretary for Administration; (4)
intentionally creating the appearance that Ms. Stewart was
involved in violations of court orders and obstruction of
justice; (5) falsely implicating Ms. Stewart in wrongdoing
regarding the federal assistance recipient, Cordoba Corpora-
tion; and, (6) refusing to cooperate with the EEOC investiga-
tion of Ms. Stewart's claim.
DISCUSSION
I. Legal Standard
Under Fed. R. Civ. P. 12(c), a motion for judgment on the
pleadings shall be granted if the moving party demonstrates
that "no material fact is in dispute and that it is 'entitled to
judgment as a matter of law.' " Peters v. Nat'l R.R. Passen-
ger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992) (citations
omitted). In considering a motion for judgment on the
pleadings, the Court should "accept as true the allegations in
the opponent's pleadings" and "accord the benefit of all
reasonable inferences to the non-moving party." Haynes-
worth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C. Cir. 1987)
(citations omitted).
II. Legal Analysis
A. Hostile Work Environment Claim
Plaintiff has conceded that her hostile work environment
claim rests solely on the telephone call between herself and
Mr. DeGeorge on May 3, 1996. Plaintiff's Opposition to
Defendants' Motion to Dismiss, at 11-12.1 Therefore, the
allegations of prior sexual advances and inappropriate con-
__________
1 At a hearing before this Court on September 5, 2000, plain-
tiff's counsel made clear that plaintiff was not relying on the
evidence set forth in p 9 of her complaint to make a claim for sexual
harassment. Further, in plaintiff's Opposition to Defendant's Mo-
tion to Dismiss, at 11-12 (filed on June 30, 2000), plaintiff's counsel
stated that plaintiff was seeking damages based on the May 3, 1996
telephone conversation only ("The basis of her claim -- both at the
administrative level and before this Court -- was and remains the
hostile work environment created by DeGeorge as demonstrated by
the abusive and violent and discriminatory language he used against
Ms. Stewart during the May 3, 1996 telephone conversation."). On
the basis of these explicit representations, at the September 5
hearing this Court put plaintiff on clear notice:
The basis of [plaintiff's] lawsuit is May 3rd. They are standing
on the position that that event constitutes sexual harassment.
And if they are wrong as a matter of law or factually, then so
be it. They are not entitled to recover.
Transcript, at 25-26.
duct can serve only as background information, and Ms.
Stewart's claim can only succeed if the telephone call outlined
in her EEO complaint satisfies the requirements of sexual
harassment.
Title VII does not prohibit all forms of workplace harass-
ment, only those directed at discrimination because of sex.
See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80
(1998). Furthermore, workplace harassment does not violate
Title VII merely because the "words used have sexual content
or connotation," but only if members of one sex are disadvan-
taged in the terms or conditions of their employment because
of the harassment. Id. Title VII is not a "general civility
code for the American workplace," id. at 80, nor does it serve
as a remedy for all instances of verbal or physical harass-
ment, for it does not "purge the workplace of vulgarity."
Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir.
1995).
Applying these principles to the facts as set forth by
plaintiff, the Court concludes that Mr. DeGeorge's language
during their telephone conversation cannot reasonably be
construed as having any sexual connotation or having been
motivated by a discriminatory animus. By plaintiff's own
admission, Mr. DeGeorge "reacted angrily concerning a dis-
bursement of approximately $141,000 to the IRS on behalf of
Cordoba." Compl. p 12. There is, however, nothing to sup-
port or corroborate plaintiff's assertion that DeGeorge's inap-
propriate behavior constituted harassment based on Ms.
Stewart's sex. On the contrary, it is undisputed that Mr.
DeGeorge was enraged with plaintiff's handling of the Cordo-
ba matter because of her failure to obtain written approval
for the disbursement from his office. As a result, he used
offensive and inappropriate language while speaking with Ms.
Stewart. However, there is no basis upon which to infer from
the telephone call that Mr. DeGeorge's hostility was motivat-
ed by Ms. Stewart's sex. In Neuren v. Adduci, Mastriani,
Meeks & Schill, the D.C. Circuit held that a supervisor's use
of vulgarity in an employee's performance evaluation was
"obviously grounded in gender-neutral concerns about [plain-
tiff's] interpersonal relations with co-workers, rather than
discriminatory considerations." 43 F.3d 1507, 1513 (D.C. Cir.
1995). Similarly, DeGeorge's use of profanity in the May 3rd
telephone conversation reflected gender-neutral concerns
about Ms. Stewart's mishandling of the Cordoba disburse-
ment, and as noted, Title VII does not provide a cause of
action for "ordinary tribulations of the workplace." Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Even if Mr. DeGeorge's use of profane language could
arguably be characterized as sexual harassment, which it
cannot, a single telephone call is not sufficiently severe and
pervasive to constitute a hostile work environment. The D.C.
Circuit has held that "not all abusive behavior, even when it is
motivated by discriminatory animus, is actionable. Rather a
workplace environment becomes hostile for the purposes of
Title VII only when offensive conduct 'permeate[s] [the work-
place] with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions
of the victim's employment.' " Barbour v. Browner, 181 F.3d
1342, 1347-48 (D.C. Cir. 1999) (quoting Oncale, 523 U.S. 78).
In determining whether harassment rises to this level,
courts should consider the frequency of the harassing con-
duct, its severity, whether it is physically threatening or
humiliating, and whether it unreasonably interferes with an
employee's work performance. Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21-23 (1993). Except in extreme circumstances,
courts have refused to hold that one incident is so severe to
constitute a hostile work environment. See Tatum v. Hyatt
Corp., 918 F. Supp. 5, 7 (D.D.C. 1994) (citations omitted).
Even a few isolated incidents of offensive conduct do not
amount to actionable harassment. See, e.g., Hopkins v. Balti-
more Gas & Electric Co., 77 F.3d 745, 753 (4th Cir. 1996)
(holding that the fact that alleged incidents were spread over
a seven-year period suggested that the harassment was not
sufficiently pervasive to established Title VII liability); Bask-
erville, 50 F.3d at 430 (holding that nine incidents spread over
seven months did not constitute sexual harassment because
the supervisor never touched employee and incidents were
not sufficiently severe or pervasive).
Applying these principles to plaintiff's claim of sexual
harassment, it is clear that plaintiff cannot, as a matter of
law, prove a prima facie case. To maintain a hostile work
environment claim, Ms. Stewart must prove that the discrimi-
natory conduct was "sufficiently severe and pervasive to alter
the conditions of [her] employment and create an abusive
working environment." Harris, 510 U.S. at 23. Ms. Stew-
art's claim amounts to only one isolated incident of alleged
sexual harassment. In Tatum, this court held that an isolat-
ed incident did not so alter the plaintiff's employment condi-
tions as to create a hostile work environment. See 918
F. Supp. at 7. In that case, the plaintiff's co-worker unex-
pectedly wrapped his arms around the plaintiff's neck and
body, rubbed against her as if to simulate sex, made com-
ments about her physical attractiveness, and placed a piece of
ice in plaintiff's skirt pocket. Id. at 6. While the offending
employee's actions were deplorable, the court held that this
incident, without more, did not create a hostile work environ-
ment. Id. at 7.
The harassment complained of here is not nearly as serious
as the incident alleged in Tatum. Mr. DeGeorge did not
physically accost Ms. Stewart. His verbal barrage of profani-
ty was not sexually suggestive in any way or otherwise
related to or caused by plaintiff's gender. Ms. Stewart's
claim of hostile work environment must, therefore, fail for the
alternative reason that the incident complained of is not the
type of severe and pervasive sexual harassment prohibited by
Title VII.
B. Retaliation Claim
Ms. Stewart alleges that the defendant retaliated against
her in violation of Title VII. In order to state a prima facie
case of retaliation, plaintiff must demonstrate: (1) that she
engaged in a statutorily protected activity; (2) that the
employer took an adverse personnel action; and (3) that a
causal connection existed between the two. Brown v. Brody,
199 F.3d 446, 452 (D.C. Cir. 1999). To establish an adverse
personnel action in the absence of diminution of pay or
benefits, plaintiff must show an action with "materially ad-
verse consequences affecting the terms, conditions, or privi-
leges of employment." Id. at 457. An "employment decision
does not rise to the level of an actionable adverse action ...
unless there is a tangible change in the duties or working
conditions constituting a material employment disadvantage."
Walker v. WMATA, 102 F. Supp. 2d 24, 29 (D.D.C. 2000)
(citation omitted); see also Burlington Indus., Inc. v. Ellerth,
118 S. Ct. 2257, 2268-69 (1998) ("A tangible employment
action constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits.").
Plaintiff contends that she suffered six different acts of
retaliation. First, she alleges that Ms. Esserman, Ms. Fred-
ericks, and Ms. Taylor, of the General Counsel's Office,
interfered with and attempted to block her nomination for a
Presidential Rank Meritorious Award. However, Ms. Stew-
art successfully obtained this Award for which she was nomi-
nated. Even if the Court accepts as true Ms. Stewart's
allegation that the members of the General Counsel's Office
attempted to block her nomination and selection for this
award, Title VII does not provide relief for victims of at-
tempted retaliation. Ms. Stewart suffered no adverse em-
ployment action as a result of any interference by Esserman,
Fredericks, and Taylor.
Second, plaintiff alleges that Esserman, Fredericks, and
Taylor caused her removal from a panel established to select
and interview candidates for the position of Director of the
Office of Civil Rights. The D.C. Circuit has held that minor
changes in work-related duties or opportunities do not consti-
tute an actionable injury unless they are accompanied by
some other adverse change in the terms, conditions or privi-
leges of employment. See Brown, 199 F.3d at 457 (holding
that lateral transfer or the denial thereof, without more, does
not constitute an adverse employment action); Mungin v.
Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C Cir. 1997)
("changes in assignments and work-related duties do not
ordinarily constitute adverse employment decisions if unac-
companied by a decrease in salary or work hour changes").
"Mere inconveniences and alteration of job responsibilities
will not rise to the level of adverse action." Childers v.
Slater, 44 F. Supp. 2d 8, 19 (D.D.C. 1999). Even accepting as
true, as we must at this stage, Ms. Stewart's allegation that
her removal from the panel was an act of reprisal, this does
not rise to the level of an adverse employment action as
contemplated by Title VII, because there was no change in
Ms. Stewart's job position, grade, pay, or benefits.
Third, plaintiff claims that Esserman, Fredericks, and Tay-
lor interfered with and delayed her appointment as Acting
Deputy Assistant Secretary for Administration and caused
her responsibilities and duties in that job to be diminished.
Again, however, Ms. Stewart successfully achieved the posi-
tion of Acting Deputy Assistant Secretary. Even if the three
OGC members had succeeded in denying Ms. Stewart this
designation, the D.C. Circuit has held that this type of
temporary designation is not one of the terms, conditions, or
privileges of employment contemplated by Title VII. See
Taylor v. FDIC, 132 F.3d 753, 764 (D.C. Cir. 1997) (interpret-
ing identical language in a Whistleblower Act in light of Title
VII precedent). Because denial of this type of temporary
designation is not an adverse employment action, mere inter-
ference with or delay of such a designation cannot be a
cognizable harm under Title VII. Plaintiff also claims that
the three members of OGC caused her duties and responsibil-
ities as Acting Deputy Assistant Secretary to be diminished.
However, because, according to Taylor, the outright denial of
a temporary position cannot constitute an adverse employ-
ment action, diminished responsibilities in that position can-
not be sufficient to state a claim for retaliation under Title
VII.
Fourth, Ms. Stewart contends that the three OGC mem-
bers intentionally and perfidiously created the appearance
that the plaintiff and her staff were involved in violations of
court orders and obstruction of justice. Plaintiff appears to
allege that her public perception was damaged by the actions
of Esserman, Fredericks, and Taylor. However, this claim is
not pled with particularity. Moreover, this Court has held
that "false accusations without negative employment conse-
quences are not employment decisions actionable under Title
VII." Childers, 44 F. Supp. 2d at 20. Furthermore, public
humiliation or loss of reputation does not constitute an ad-
verse employment action under Title VII. See Spring v.
Sheboygan Area School Dist., 865 F.2d 883, 885 (7th Cir.
1989); Probst v. Reno, 2000 WL 1372872 (N.D. Ill. Sept. 22,
2000); Wanamaker v. Columbian Rope Co., 907 F. Supp. 522,
535 (N.D.N.Y. 1995), aff'd, 108 F.3d 462 (2d Cir. 1998).
Plaintiff has not alleged any adverse employment action
resulting from her being unfairly blamed for violations of
court orders or obstruction of justice which would constitute
retaliation under Title VII.
Fifth, Ms. Stewart alleges that Esserman, Fredericks, Tay-
lor retaliated against her by preparing and publicly issuing a
report on the Cordoba matter that falsely implicated Ms.
Stewart and her staff in wrongdoing. This Court has held
that formal criticisms or reprimands, without additional disci-
plinary action such as a change in grade, salary, or other
benefits, do not constitute adverse employment actions. See
Childers, 44 F. Supp. 2d at 20. Plaintiff has not alleged that
the report of the Cordoba matter in any way affected her job
performance ratings or the conditions of her employment.
Because this report had no effect on Ms. Stewart's pay,
benefits, or privileges, it cannot be considered an adverse
employment action under Title VII.
Finally, Ms. Stewart alleges that Esserman, Fredericks,
and Taylor retaliated against her by refusing to cooperate
with the EEOC investigation of her complaint against Mr.
DeGeorge, resulting in a delay in the issuance of a final
decision on her administrative complaint. The D.C. Circuit
has held that an adverse personnel action under Title VII
must have some negative consequences with respect to the
plaintiff's employment. See Jolly v. Listerman, 672 F.2d 935,
953 (D.C. Cir. 1982); Childers, 44 F. Supp. 2d at 19. There-
fore, this Court has concluded that, because an agency's
failure to issue a final decision on a plaintiff's EEO complaint
within 60 days has no discernable negative consequences for
plaintiff's employment, it is not an actionable adverse action.
Kilpatrick v. Riley, 98 F. Supp. 2d 9, 24 (D.D.C. 2000).
Furthermore, if the agency fails to issue a timely final
decision, plaintiff has the right to file suit in district court
after 180 days from the date of the filing of the administrative
complaint. See id. Like the plaintiff in Kilpatrick, Ms.
Stewart had the option of filing a civil action in district court
if she were dissatisfied with the agency's handling of her
administrative complaint. Moreover, the delay in adjudicat-
ing the complaint had no impact on Ms. Stewart's grade, pay,
or benefits. Therefore, even if the Court assumes that IGC
members refused to cooperate with the EEOC investigation,
this action had no materially adverse consequences for Ms.
Stewart's employment.
CONCLUSION
For the foregoing reasons, the Court concludes that the
plaintiff has failed to establish a prima facie case with respect
to either hostile work environment or retaliation under Title
VII. Accordingly, judgment is entered for the defendant. A
separate order accompanies this Memorandum Opinion.