Arnold v. Norton

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_____________________________
)
ROMELLA ARNOLD, )
)
Plaintiff, )
)
v. ) Civil Action No. 05-1475 (RWR)
)
SALLY JEWELL, )
)
Defendant. )
_____________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiff Romella Arnold, an employee of the United States

Department of the Interior (“DOI”), brings this action against

the Secretary of the DOI1 alleging race, sex, and age

discrimination, retaliation, and hostile work environment, in

violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 633a. At the close of

discovery, the Secretary moved for summary judgment. Because

there is a genuine issue of material fact as to whether Arnold

was discriminated against on the basis of race, sex, and age when

she was laterally transferred to a Title VI position, the

Secretary’s motion will be denied as to this claim. Arnold

failed to exhaust timely her administrative remedies for her

claims that she was discriminated against on the basis of race,

1
Secretary Jewell is substituted as the defendant under
Federal Rule of Civil Procedure 25(d).
 - 2 -

sex, age and retaliation when she was twice accused in September

2002 of money laundering and that she was discriminated against

on the basis of race, sex and retaliation when her former

supervisor deleted a records tracking system and attempted to

transfer Arnold’s job to another office. She also failed to show

that the latter two actions, the 2003 accusations against her of

money laundering, the denial of a travel request, a short work

deadline imposed, a counseling letter issued to her, her office

relocation and re-defined performance standards, and a program

termination were adverse employment actions. Thus, the

Secretary’s motion will be granted as to these disparate

treatment claims. Because Arnold failed to establish a prima

facie case of retaliation and hostile work environment, judgment

will be entered for the Secretary on these claims.

BACKGROUND

Arnold is an African-American woman who was born in 1952.

Compl. ¶ 3. In 1975, Arnold was employed by the DOI as an Equal

Employment Opportunity (“EEO”) Specialist and, for approximately

two years, worked on both Title VI and Title VII programs.

Def.’s Stmt. of Material Facts (“Def.’s Stmt.”) ¶¶ 1, 2. In

1997, Arnold was reassigned to the DOI’s Bureau of Land

Management (“BLM”) where she worked as an EEO Specialist. Id.

¶ 4. The next year, Arnold took on the duties and

responsibilities of the National Student Education Employment
 - 3 -

Program (“NSEEP”) Program Manager, which included running the

Student Temporary Employment Program and the Student in Career

Employment Program (“SCEP”). Id. In 1999, Arnold was promoted

to a GS-13 SCEP Program Manager position, although she continued

to fulfill the duties of the NSEEP Program Manager. Id. ¶ 5;

Pl.’s Resp. to Def.’s Stmt. (“Pl.’s Resp.”) ¶ 5.

“In 2002, Marilyn Johnson was hired as the Assistant

Director for Human Resources for the BLM. In this capacity,

Johnson served as Arnold’s second-level supervisor.” Arnold v.

Salazar, Civil Action No. 09-964 (RWR), 2013 WL 5273369, at *1

(D.D.C. Sept. 19, 2013). Johnson’s duties included overseeing a

funding agreement between BLM and Langston University

(“Langston”). Def.’s Stmt. ¶¶ 15-17. Arnold was involved in the

Langston agreement and alleges that twice in September 2002 and

thrice between July and October 2003, Johnson accused her of

laundering money to Langston. Compl. ¶¶ 16-22; Def.’s Stmt.

¶¶ 18-19, 25. Under Johnson’s leadership, BLM’s partnership with

Langston ultimately was terminated in March 2004. Def.’s Stmt.

¶ 26.

Arnold alleges that on May 8, 2003, Johnson caused her

assistant, Connie Stewart, to send an e-mail to the BLM Field

Committee proposing that the committee adopt the “Lead State

Concept.” Compl. ¶ 25; Def.’s Stmt. ¶ 27. Under the Lead State

Concept, a state would become responsible for the BLM’s student
 - 4 -

recruiting programs, including the SCEP. Id. ¶ 29. Arnold

alleges that if effectuated, the proposal “would have resulted in

a directed reassignment of Plaintiff” to a state office. Compl.

¶ 26. The program functions were never transferred to a state

office. Def.’s Stmt. ¶ 30.

Arnold alleges that she used the Student

Employment/Historically Black College and University (“HBCU”)

Tracking System (“SERTS”), an automated system that was developed

to monitor the recruitment and hiring of students in the HBCU

program, to complete some of her duties. Compl. ¶ 28; Pl.’s

Resp. ¶ 48. In January 2003, Johnson decided to terminate SERTS,

and instructed a subordinate to delete the system. Compl. ¶ 29;

Def.’s Stmt. ¶ 38. After she terminated the system, Johnson

asked Arnold to prepare a program report on July 18, 2003.

Def.’s Stmt. ¶ 52. Johnson gave Arnold only 30 minutes to

complete the report although Arnold alleges that she had to

manually collect the data from other employees because SERTS had

been terminated, which made it more difficult to prepare a

program report. Id.; see also Compl. ¶ 31.

In June 2003, Arnold submitted a travel request to Johnson

to travel on June 12, 2003 to a training that was to begin on

June 16, 2003. Def.’s Stmt. ¶ 54. Johnson denied Arnold’s

request to travel on June 12, but approved Arnold’s travel for

June 15. Id. ¶ 55. Arnold alleges that, as a result of having
 - 5 -

to travel later, she “had to work through the night to ensure

[that] all training materials were in order” before the training

began. Compl. ¶ 35.

During a meeting in late July 2003, Johnson announced that

Dr. Mike Brown, a man who was younger than Arnold, would be

laterally reassigned to the GS-14 position of NSEEP/HBCU Program

Manager. Def.’s Stmt. ¶¶ 56, 59; Compl. ¶ 44. In response to

the announcement, Arnold said “I’ll be dammed [sic].” Def.’s

Stmt. ¶ 57. On August 1, 2003, Johnson issued Arnold a letter of

counseling for “Inappropriate Language and Abusive Behavior,” id.

¶ 58, warning that such behavior “will no longer be tolerated,”

Pl.’s Resp. ¶ 56.

In addition, on August 1, 2003, Johnson reassigned Arnold to

a GS-13 Title VI EEO Specialist position. Def.’s Stmt. ¶ 72.

Following her reassignment, Arnold was given a different office

and different telephone number. Id. ¶ 74. Arnold alleges that

her new office was “considerably smaller than her previous

office.” Compl. ¶ 58. On October 1, 2003, Arnold was given new

performance standards for her Title VI EEO Specialist position,

Def.’s Stmt. ¶ 75, and a position description, both of which

Arnold alleged were “fallacious.” Compl. ¶ 53.

Arnold alleges that throughout her tenure with the DOI, she

engaged in protected EEO activity. For instance, Arnold alleges

that in March 2002, the EEOC’s Federal Sector Programs Director,
 - 6 -

R. Edison Elkins, wrote that she was serving on a committee that

worked with the EEOC to identify problems with BLM’s EEO

practices. See Def. Errata [ECF No. 18], Ex. 9 (Pl.’s Answers to

Objns. to Def.’s 1st Set of Interrogs. & Reqs. for Prod. of Docs.

(“Pl.’s Answers to Interrogs.”) at 18-19).

On August 4, 2003, Arnold contacted an EEO counselor,

complaining of disparate treatment, retaliation, and a hostile

work environment. Comp. ¶ 7. Arnold filed a formal

administrative complaint on October 15, 2003, id. ¶ 8, and

brought suit against the Secretary in July 2005.

The Secretary now moves for summary judgment arguing that

Arnold failed to exhaust her administrative remedies for several

of her disparate treatment and retaliation claims. The Secretary

also argues that Arnold failed to state a disparate treatment,

retaliation, and hostile work environment claim, and that even if

she had, Arnold did not rebut the legitimate, non-discriminatory

reason for the DOI’s employment decisions about Arnold. Arnold

opposes.

DISCUSSION

Summary judgment is properly granted if the “movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A genuine issue “is present in a case where the

‘evidence is such that a reasonable jury could return a verdict
 - 7 -

for the non-moving party,’ a situation separate and distinct from

a case where the evidence is ‘so one-sided that one party must

prevail as a matter of law.’” Dozier-Nix v. District of

Columbia, 851 F. Supp. 2d 163, 166 (D.D.C. 2012) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “‘A

fact is “material” if a dispute over it might affect the outcome

of a suit under governing law.’” United States v. Sci.

Applications Int’l Corp., Civil Action No. 04-1543 (RWR), 2013 WL

3791423, at *4 (D.D.C. July 22, 2013) (quoting Holcomb v. Powell,

433 F.3d 889, 895 (D.C. Cir. 2006)). “In considering a motion

for summary judgment, a court is to draw all justifiable

inferences from the evidence in favor of the nonmovant.”

Hairston v. Boardman, 915 F. Supp. 2d 155, 159 (D.D.C. 2013)

(alterations and internal quotation marks omitted) (quoting

Fields v. Geithner, 840 F. Supp. 2d 128, 133 (D.D.C. 2012)).

I. EXHAUSTION OF ADMINISTRATIVE REMEDIES

A federal employee raising Title VII and ADEA claims must

timely exhaust her administrative remedies before bringing a

civil action. See Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir.

2003); Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir.

1997). Before bringing a Title VII or ADEA claim, a federal

employee must initiate informal contact with an EEO counselor

within 45 days of the alleged discriminatory conduct. 42 U.S.C.
 - 8 -

§ 2000e-16(c); 29 U.S.C. §§ 633a(b), (c)2; 29 C.F.R.

§ 1614.105(a)(1); see also Rann, 346 F.3d at 195 (stating that

under the ADEA, a federal government employee “may invoke the

EEOC’s administrative process, and then sue if dissatisfied with

the results”); Johnson v. Vilsack, 815 F. Supp. 2d 221, 226

(D.D.C. 2011) (stating that “procedures governing discrimination

complaints brought by employees of the federal government under

the ADEA are set forth in 29 C.F.R. Part 1614”).3 The defendant

2
The Secretary incorrectly identifies 29 U.S.C. § 626(d)(1)
as the governing statute. Govt.’s Mem. at 20. However, a
federal government employee’s age discrimination claims are
governed by 29 U.S.C. § 633a, while 29 U.S.C. § 626(d)(1) applies
to non-federal employees. See Forman v. Small, 271 F.3d 285, 296
(D.C. Cir. 2001). Thus, Arnold must have contacted the EEO
counselor within 45 days of the discriminatory conduct, as stated
in 29 C.F.R. Part 1614, rather than within 180 days, as stated in
29 U.S.C. § 626. Additionally, even if the Secretary were
correct that Arnold’s age discrimination claims that were filed
180 days before Arnold initiated informal contact with an EEO
counselor were timed-barred, 180 days before August 4, 2003 is
February 5, 2003, not January 5, 2003, as the Secretary states.
However, because the Secretary miscalculated the date and uses
the incorrect statute, the Secretary argues only that “any
alleged acts that occurred prior to January 5, 2003, are barred
for age discrimination claims.” Def.’s Mem. at 20. Because the
45-day time limit is not jurisdictional, but rather a statute of
limitation defense subject to waiver, see Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982); Johnson v. Vilsack, 815
F. Supp. 2d 221, 227 (D.D.C. 2011), the Secretary waives the
argument that Arnold’s age discrimination claims premised on acts
after January 5, 2003 are time-barred.
3
Alternatively, a federal employee “may bring a claim
directly to federal court so long as, within 180 days of the
allegedly discriminatory act, [she] provides the EEOC with notice
of [her] intent to sue at least 30 days before commencing suit.”
Rann, 346 F.3d at 195 (citing 29 U.S.C. §§ 633a(c), (d)). Arnold
does not allege that she sent a notice of intent to sue to the
EEOC. Accordingly, Arnold’s age discrimination claims are
 - 9 -

bears the burden of proving that the plaintiff failed to exhaust

her administrative remedies. See Colbert v. Potter, 471 F.3d

158, 165 (D.C. Cir. 2006).

Arnold contacted an EEO counselor on August 4, 2003. The

Secretary argues that several of Arnold’s disparate treatment and

retaliation claims are time-barred.4 See Def.’s Mem. at 19-20;

Def.’s Reply at 18. Arnold counters that even though she did not

initiate contact with an EEO counselor within 45 days of the

allegedly discriminatory conduct, all of her claims were timely

exhausted because “[u]nder the continuing violations theory,

Defendant’s discriminatory actions were part of a continuing

pattern of discriminatory and retaliatory activity that were

untimely if she did not consult with an EEO counselor within 45
days of the allegedly discriminatory acts.
4
The Secretary miscalculates May 20, 2003 as the operative
date for determining if Arnold exhausted timely her claim, Def.’s
Mem. at 20. Forty-five days before August 4, 2003, the date
Arnold made initial contact with an EEO counselor, is June 20,
2003. This mistake does not affect the Secretary’s argument that
Arnold’s claims premised on Johnson’s acts before May 20, 2003 --
such as the money laundering accusations in 2002, and Johnson’s
termination of SERTS in January 2003 and attempt to transfer
Arnold’s job to a state office in May 2003 -- are untimely.
There is, however, one allegedly discriminatory act that occurred
in June 2003, more than 45 days before Arnold’s first contact
with an EEO counselor: on June 11, 2003, Johnson denied Arnold’s
travel request. Nevertheless, because the Secretary bears the
burden of establishing that Arnold failed to exhaust timely her
administrative remedies, and the Secretary made no argument that
Arnold’s sex, race, and age discrimination claims premised on the
June conduct is untimely, this claim will not be dismissed as
time barred. See supra n.2 (explaining that the statute of
limitations defense is subject to waiver).
 - 10 -

connected to a timely complaint.” Pl.’s Corrected Opp’n to

Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”) at 44.

The Supreme Court has rejected the continuing violations

theory for discrete discriminatory and retaliatory acts raised in

Title VII claims. See Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 122 (2002). There, the Court “held that ‘a Title VII

plaintiff raising claims of discrete discriminatory or

retaliatory acts must file his charge within’ 45 days of the day

that the act occurred. This is so ‘even when [the discrete

discriminatory acts] are related to acts alleged in timely filed

charges.’” Arnold, 2013 WL 5273369, at *4 (alteration in

original) (quoting Morgan, 536 U.S. at 113, 122). The D.C.

Circuit also applies Morgan in suits alleging age discrimination

in violation of the ADEA. See Law v. Cont’l Airlines Corp.,

Inc., 399 F.3d 330, 333 (D.C. Cir. 2005).

“Each [discrete] incident of discrimination and each

retaliatory adverse employment decision constitutes a separate

actionable ‘unlawful employment practice.’” Morgan, 536 U.S. at

114. Title VII and the ADEA make “all [discriminatory] personnel

actions” affecting federal government employees illegal. See 42

U.S.C. § 2000e-16(a); 29 U.S.C. § 633a. “Discrete acts such as

termination, failure to promote, denial of transfer, or refusal

to hire are easy to identify.” Morgan, 536 U.S. at 114.

Discrete acts also include an employee’s claims that she was
 - 11 -

wrongfully suspended from work, denied training, or falsely

accused of a workplace infraction. See id.

Arnold complains that in September 2002, Johnson twice

accused her of money laundering, instructed a subordinate to

terminate SERTS in January 2003, thereby making it more difficult

to complete her job duties, and tried to transfer Arnold’s job to

a state office by having Stewart send an e-mail on May 8, 2003

regarding the Lead State Concept. Compl. at 6. Each of these

events is easy to identify and had the potential to alter a term

or condition of Arnold’s employment. Moreover, none of these

acts by “[t]heir very nature involves repeated conduct.” Morgan,

536 U.S. at 115. Thus, these are discrete acts. Because Arnold

did not timely initiate informal contact with an EEO counselor

for her claims of intentional discrimination on the basis of

race, sex, and age and retaliation based on Johnson’s allegedly

false accusations in September 2002, and intentional

discrimination on the basis of race and sex and retaliation based

on Johnson causing SERTS to be terminated in January 2003 and

Johnson’s attempt to transfer Arnold’s job to a state office in

May 2003, the Secretary’s motion for summary judgment will be

granted as to these claims. Arnold’s claims of intentional

discrimination on the basis of age based on Johnson’s termination

of SERTS in January 2003 and Johnson’s attempt to transfer

Arnold’s job to a state office in May 2003, as well as Arnold’s
 - 12 -

claims of intentional discrimination on the basis of race, sex,

and age and retaliation for Johnson’s denial of Arnold’s travel

request in June 2003 survive the Secretary’s exhaustion challenge

since the Secretary did not challenge these claims as untimely.

II. DISPARATE TREATMENT

Title VII and ADEA disparate treatment claims are analyzed

under the burden-shifting framework articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Krodel v.

Young, 748 F.2d 701, 705 (D.C. Cir. 1984) (“Courts have generally

applied the tripartite evidentiary scheme developed in the

context of Title VII litigation to suits brought under the

ADEA.”). Under the three-part McDonnell Douglas framework, the

plaintiff has the burden to establish a prima facie case of

discrimination. McDonnell Douglas, 411 U.S. at 802. To make out

a prima facie case of discrimination, “a plaintiff must show

[(1)] that [she] ‘is a member of a protected class,’ [(2)] that

[she] ‘suffered an adverse employment action,’ and [(3)] that

‘the unfavorable action gives rise to an inference of

discrimination.’” Youssef v. FBI, 687 F.3d 397, 401 (D.C. Cir.

2012) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir.

2002)); see also Cuddy v. Carmen, 694 F.2d 853, 857 (D.C. Cir.

1982) (discussing a plaintiff’s initial burden in an ADEA case).

“An ‘adverse employment action’ . . . is ‘a significant change in

employment status, such as hiring, firing, failing to promote,
 - 13 -

reassignment with significantly different responsibilities, or a

decision causing significant change in benefits.’” Taylor v.

Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (quoting Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). “An employee

must ‘experience materially adverse consequences affecting the

terms, conditions, or privileges of employment or future

employment opportunities such that a reasonable trier of fact

could find objectively tangible harm.’” Douglas v. Donovan, 559

F.3d 549, 552 (D.C. Cir. 2009) (alteration omitted) (quoting

Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002)).

If a plaintiff makes out a prima facie case, the burden then

shifts to the employer to “produc[e] a non-discriminatory

explanation for the challenged personnel action.” Ford v. Mabus,

629 F.3d 198, 201 (D.C. Cir. 2010).

If the employer provides a legitimate, non-discriminatory

reason for the action, then the plaintiff must show “that

discriminatory animus was the determining or but-for cause of the

personnel action.” Id. “The plaintiff may satisfy this burden

‘either indirectly by showing the employer’s reason is pretextual

or directly by showing that it was more likely than not that the

employer was motivated by discrimination.’” Id. (quoting Forman

v. Small, 271 F.3d 285, 292 (D.C. Cir. 2001)). One way for a

plaintiff to “show that a reasonable jury could conclude from all

of the evidence that the adverse employment decision was made for
 - 14 -

a discriminatory reason” is to “show[] that the nondiscriminatory

explanation the defendant proffered for its decision was false.”

Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003).

Arnold’s complaint alleges numerous timely exhausted

intentional discrimination claims. Specifically, it alleges that

the Secretary discriminated against her on the basis of age when

Johnson instructed a subordinate to terminate SERTS and tried to

transfer Arnold’s job to a state office. It also alleges that

the Secretary discriminated against Arnold on the basis of race,

sex, and age when Johnson accused Arnold of money laundering in

July and August 2003, denied Arnold’s travel request, set an

unreasonable deadline for Arnold’s work, issued a letter of

counseling to Arnold, reassigned Arnold to the Title VI position,

required Arnold to work under a false position description, moved

Arnold to a smaller office, and did not allow Arnold to retain

her phone number after she was moved to the smaller office. The

Secretary argues that Arnold cannot establish a prima facie case

of intentional discrimination because none of the allegedly

discriminatory actions was an adverse employment action. The

Secretary further argues that even if Arnold could meet her

initial burden, the Secretary has legitimate nondiscriminatory

reasons for her employment decisions.
 - 15 -

A. Termination of SERTS

The Secretary contends that Johnson’s decision to terminate

SERTS is “clearly not an adverse personnel action since it did

not affect the terms and conditions of plaintiff’s employment.”

Def.’s Mem. at 25. Arnold argues that Johnson’s decision to

delete the system “resulted in Arnold having to manually collect

data on a national program.” Pl.’s Opp’n at 37; see also id.,

Ex. 22 (Marilyn H. Johnson EEOC Test. at 87:19-88-4) (Johnson

testifying that after she terminated SERTS, employees had to

manually collect the data they needed from another system).

While changing the method Arnold had to use to track records may

have made it more difficult for Arnold to complete her work

assignments, Arnold offers no evidence, legal authority, or

argument demonstrating that terminating SERTS led to an

objectively tangible harm. Thus, Arnold did not meet her initial

burden to show that terminating SERTS was an adverse employment

action, and judgment will be entered for the Secretary on this

claim.

B. Proposal to transfer student recruitment programs to
state office

The Secretary argues that the proposal to transfer the

student recruitment programs to a state office was never

implemented and “Plaintiff’s speculation of what might or could

have happened if the proposal had been accepted by a state, does

not establish a material adverse action.” Def.’s Mem. at 25.
 - 16 -

Arnold argues that the e-mail proposing that the student

recruitment programs, including the SCEP, be transferred to a

state office caused her to “suffer[] undue stress, anxiety, and

harm at the thought of having to choose between a federal career

of over thirty years and the disruption of a major move to

another location.” Pl.’s Opp’n at 37. However, “purely

subjective injuries,” such as stress and anxiety suffered as a

result of a discriminatory program transfer proposal, “are not

sufficient to establish an adverse employment action for the

purposes of Title VII.” Augustus v. Locke, Civil Action No.

09-1003 (EGS), 2013 WL 1290839, at *9 (D.D.C. Mar. 30, 2013)

(citing Forkkio, 306 F.3d at 1130–31). Because Arnold has not

shown that the proposal to transfer the student recruitment

programs to a state office was an adverse employment action, the

Secretary’s motion will be granted as to this claim.

C. Money laundering accusations

The Secretary argues that Arnold cannot show that Johnson’s

alleged accusations that Arnold was engaging in money laundering

were adverse employment actions. Def.’s Mem. at 22. “[F]alse

accusations without negative employment consequences are not

employment decisions actionable under Title VII.” Mack v.

Strauss, 134 F. Supp. 2d 103, 113 n.6 (D.D.C. 2001) (internal

quotation marks omitted). The Secretary contends that the

alleged verbal accusations caused Arnold no harm, and that Arnold
 - 17 -

admitted as much in her investigative interview. Arnold stated

in the interview that she did not complain about Johnson’s verbal

accusations at the time they happened “because at the time it was

still a verbal accusation” and that Arnold had yet to “‘suffer[]

harm’” or “‘an adverse impact.’” Def.’s Mem. at 22 (quoting

Pl.’s Opp’n, Ex. 1 (Romella J. Arnold Investigative Interview at

121:7-18). Arnold does not address the Secretary’s arguments in

her opposition. “If a party fails to address an argument that is

put forth in a dispositive motion, that argument may be deemed

conceded.” Antoine v. U.S. Bank Nat’l Ass’n, 821 F. Supp. 2d 1,

6 (D.D.C. 2010). Thus, Arnold has conceded that Johnson’s money

laundering accusations were not adverse employment actions, and

the Secretary’s motion for summary judgment will be granted as to

this claim.

D. Denied travel request

While not being able to travel to the training session as

early as Arnold would have liked may have been an inconvenience,

the Secretary argues that denying Arnold’s travel request did not

affect the terms and conditions of Arnold’s employment. Def.’s

Mem. at 26. Arnold asserts that “Johnson’s action forced Arnold

to travel on Sunday[,] June 15, 2003, to Phoenix and then because

of time constraints, Arnold had to work through the night to

ensure all training materials were in order[.]” Pl.’s Opp’n at

15 n.8. However, Arnold makes no legal argument that restricting
 - 18 -

travel and causing an employee to work all night is an adverse

employment action, and thus concedes the Secretary’s argument

that limiting work related travel does not alter the terms or

conditions of her employment or limit her job performance. In

any event, delaying Arnold’s work-related travel “did not have a

materially adverse effect on the terms or conditions of

plaintiff’s employment -- [Arnold] simply carried out [her] work

responsibilities at the time . . . dictated by [her]

supervisor[.]” See Rattigan v. Gonzales, 503 F. Supp. 2d 56, 74

(D.D.C. 2007) (emphasis omitted). Because Arnold has not shown

that denying her request for early travel is an adverse

employment action, the Secretary will be granted judgment on this

claim.

E. Unreasonable deadline

The Secretary argues that Johnson asking Arnold to prepare a

program report in 30 minutes was not an adverse employment

action. Def.’s Mem. at 25. The Secretary provides evidence that

when Arnold told Johnson that she could not deliver the report at

the requested time, Johnson’s only response was that Arnold

should deliver the report to Johnson whenever Arnold could do so.

Def.’s Errata [ECF No. 18], Ex. 5 (Romella Arnold Dep. at

46:5-20). Arnold does not address this argument in her

opposition, and thus concedes the Secretary’s argument that the
 - 19 -

short deadline was not an adverse employment action.

Accordingly, the Secretary is entitled to judgment on this claim.

F. Lateral transfer to Title VI position

Arnold claims that she was discriminated against when she

was laterally reassigned from the GS-13 SCEP Program Manager

position to the GS-13 Title VI EEO Specialist position. Pl.’s

Opp’n at 19-23. The Secretary argues that this lateral transfer

was not an adverse employment action because the transfer did not

involve “a significant change in responsibilities.” Def.’s Mem.

at 29-30.

[A] plaintiff who is made to undertake or who is denied
a lateral transfer -- that is, one in which she suffers
no diminution in pay or benefits -- 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 a reasonable
trier of fact could conclude that the plaintiff has
suffered objectively tangible harm.

Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999), abrogation on

other grounds recognized by Steele v. Schafer, 535 F.3d 689 (D.C.

Cir. 2008). While overseeing the HBCU recruitment program,

Arnold provided “guidance and direction for BLM’s External

(Public) and Internal (DOI) Civil Rights Program,” served “as the

advisor and internal consultant to BLM’s management officials,”

and developed, reviewed and recommended policies and procedures.

See Pl.’s Opp’n, Ex. 45 (Employee Performance Plan and Results

Rep.). In the Title VI position, however, Arnold provides
 - 20 -

evidence that she was vaguely directed to develop the Title VI

program, but was given no program files, directives, guidelines,

or copies of compliance reviews in the position. See Pl.’s

Opp’n, Ex. 45 (Mtg. with R. Arnold (Fri. Oct. 23, 2003)). Arnold

also alleges that, unlike the SCEP position, the Title VI

position did not have any leadership opportunities or promotion

potential. Pl.’s Opp’n at 20-22. Thus, although Arnold’s

reassignment did not involve a decrease in salary or grade level,

Arnold has alleged sufficient facts to create a genuine dispute

concerning whether the reassignment was an adverse employment

action involving materially different job responsibilities and

opportunities.

The Secretary further argues that she had a legitimate,

nondiscriminatory reason for transferring Arnold to the Title VI

EEO Specialist position. The Secretary explains that Arnold was

transferred to the new Title VI position because in May 2003, the

U.S. Civil Rights Commission (“Commission”) issued a report

criticizing “BLM for not having a Civil Rights Specialist to

handle Title VI issues” and concluding that the BLM needed to

establish a Title VI program. Def.’s Mem. at 43 (citing Def.’s

Errata [ECF No. 18], Ex. 10 (Blue Exs. at Ex. 28)). In response

to the Commission’s report, Johnson decided to develop a BLM

Title VI program. Johnson reassigned Arnold to the program

because Arnold had “occupied the position of EEO Specialist
 - 21 -

(Title VI) from 1979 to 1981.” Id. at 44; see also Def.’s Stmt.

¶¶ 1-2.

Arnold argues that the Secretary’s articulated legitimate

nondiscriminatory reason is false because creating the Title VI

program and reassigning Arnold to a position within the program

was contrary to a DOI Directive. On June 13, 2002, the Deputy

Assistant Secretary for Human Resources and Workforce Diversity

sent a memorandum to all of the DOI Bureau and Office Directors

requesting that “[i]n anticipation of some restructuring in the

near future[,]” the Directors “not make any changes to [their]

Equal Opportunity organization, structure, location or

personnel.” Pl.’s Opp’n at 24-25; id. Ex. 41 (Memorandum from J.

Michael Trujillo, Department Asst. Secretary for Human Resources

and Workforce Diversity, DOI, to Bureau and Office Directors

(June 13, 2002)). The Deputy Director of the Office for EEO also

stated that she believed that Johnson’s reassignment of Arnold to

the Title VI position was contrary to the DOI’s then-policy. See

Pl.’s Opp’n at 25; id. Ex. 42 (E-mail from Melodee Stith, to Mike

Trujillo (Aug. 6, 2003, 9:06 a.m.) (“Stith E-mail”) “‘[T]he

trier of fact may deem [Johnson’s failure to follow the DOI’s own

procedures] probative in determining the true motivation behind

the hiring decision of the prospective employer.’” See Salazar

v. Wash. Metro. Transit Auth., 401 F.3d 504, 509 (D.C. Cir. 2005)
 - 22 -

(alteration omitted) (quoting Johnson v. Lehman, 679 F.2d 918,

922 (D.C. Cir. 1982)).

Contrary to the Secretary’s assertion that Johnson was

reasonably addressing a problem that the Commission had

identified, see Def.’s Mem. at 44, Arnold also provides evidence

that the Deputy Director believed that Johnson was “not acting

responsibly” and was “acting arbitrar[ily] and capricious[ly]” in

assigning Arnold to the Title VI position. See Stith E-mail.

Arnold further contends that although she had some prior

experience in Title VI, “it had been over twenty years since

[she] had served in a Title VI program,” and even then she served

at the GS-7 level. Pl.’s Opp’n at 25. As such, Arnold argues

that she lacked the qualification and experience needed to serve

as a Title VI EEO Specialist. Id.

Arnold also provides evidence that Brown had little

experience with the NSEEP position duties, and thus was not

better qualified than she was for the position. See Pl.’s Opp’n

at 33-34; id. Ex. 43 (Mike Brown Dep. at 40:14-25). Although the

Secretary has offered a legitimate nondiscriminatory reason for

transferring Arnold to the Title VI position, Arnold has put

forward sufficient evidence for a reasonable jury to find that

the Secretary’s proffered reason is false and is not the actual

reason she was transferred. Accordingly, summary judgment will

be denied for the Secretary on Arnold’s claim that she was
 - 23 -

transferred to the Title VI position because of intentional

discrimination on the basis of race, sex, and age.

G. Letter of counseling

The Secretary contends that Arnold has not demonstrated that

the letter of counseling for inappropriate behavior and language

was an adverse employment action. “[F]ormal criticism . . . [is

not] necessarily [an] adverse action[]” and it should not be

considered such if it did not “affect[] the [employee’s] grade or

salary.” Brown, 199 F.3d at 457-58; see also Baloch v.

Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008) (finding that a

letter of counseling that “contained no abusive language, but

rather job-related constructive criticism, which can prompt an

employee to improve her performance” was not retaliatory under

the “materially adverse employment action” standard (internal

quotation marks omitted)).

Here, the letter of counseling explained that Arnold’s

language and behavior were unprofessional, discussed the impact

that Arnold’s behavior was having on the work environment, and

cautioned her that similar behavior in the future might result in

disciplinary action. See Def.’s Errata [ECF No. 18], Ex. 10

(Blue Exs. at Ex. 23). Thus, the letter contains only job-

related constructive criticism. Nevertheless, Arnold argues that

the letter of counseling caused adverse employment actions

because the letter was “issued contemporaneous with Johnson’s
 - 24 -

notice to Arnold of Arnold’s reassignment to the non-existent

Title VI position; threatened further disciplinary action; and

most particularly, contained false statements and gross

exaggerations.” Pl.’s Opp’n at 39. However, Arnold provides no

evidence or argument to demonstrate that the letter of counseling

was a consideration in reassigning her to the Title VI position

or that it otherwise caused an adverse employment action. Arnold

also fails to provide evidence to support her assertion that the

letter contained false statements. Because Arnold has not

demonstrated that the letter of counseling was an adverse

employment action, judgment will be entered for the Secretary on

this claim.

F. False position description, smaller office and new
telephone number, BLM-Langston agreement

The Secretary asserts that Arnold has not shown that

presenting Arnold with allegedly false and impractical

performance standards and causing Arnold to move to a smaller

office and giving her a new telephone number were adverse

employment actions. Def.’s Mem. at 37-38. The Secretary further

asserts that Arnold cannot show that Johnson terminating BLM’s

agreement with Langston was an adverse employment action because

terminating the agreement did not affect the terms and conditions

of Arnold’s employment, in part because the agreement was

terminated several months after Arnold was transferred from the

SCEP Program Manager position. Def.’s Mem. at 24. Arnold
 - 25 -

conceded these arguments by failing to address them in her

opposition. Accordingly, judgment will be entered for the

Secretary on Arnold’s claims that she was discriminated against

when she was given allegedly false and impractical performance

standards, when she was moved to a smaller office and not allowed

to retain her old telephone number, and when Johnson terminated

BLM’s agreement with Langston.

III. RETALIATION

Both Title VII and the ADEA make it unlawful for an employer

to retaliate against a federal government employee for engaging

in protected EEO activity. See Forman, 271 F.3d at 297-98. To

establish a prima face case of retaliation, a plaintiff must show

“(1) that [she] engaged in statutorily protected activity;

(2) that [she] suffered a materially adverse action by [her]

employer; and (3) that a causal link connects the two.” Jones v.

Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). “A plaintiff may

show causation through direct evidence or circumstantial

evidence, such as by showing that the employer had knowledge of

the employee’s protected conduct and a close temporal proximity

between the employer’s knowledge and the adverse actions.”

Clayton v. District of Columbia, 931 F. Supp. 2d 192, 202 (D.D.C.

2013). “The cases that accept mere temporal proximity between an

employer’s knowledge of protected activity and an adverse

employment action as sufficient evidence of causality to
 - 26 -

establish a prima facie case uniformly hold that the temporal

proximity must be ‘very close[.]’” Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001). “Although neither the Supreme

Court nor the D.C. Circuit has established a bright-line rule,

‘the cases cited by the Breeden Court seem to suggest that if a

plaintiff relies upon temporal proximity alone to establish

causation, the time span must be under three months.’” Lee v.

Mabus, Civil Action No. 05-1335 (BJR), 2013 WL 3835627, at *11

(D.D.C. July 26, 2013) (quoting Buggs v. Powell, 293 F. Supp. 2d

135, 148 (D.D.C. 2003)).

The Secretary argues that Arnold cannot establish a causal

connection between her protected conduct and her remaining

retaliation claims. In her response to the Secretary’s

interrogatory, Arnold asserted that she was retaliated against

because she engaged in protected conduct through March 12, 2002.5

Arnold alleges that on March 12, 2002, the EEOC’s Federal Sector

5
Arnold also states that she was retaliated against because
in a December 4, 2003 letter to the Secretary, Representative
Albert Wynn “address[ed] the accusation of ‘money laundering’
against [her] and her removal from a critical occupation where
she was most valued and successful,” and because in a June 24,
2004 letter to the Secretary, the president of a company
“address[ed] the continued pattern and practice of racial
discrimination in the DOI.” See Def. Errata [ECF No. 18], Ex. 9
(Pl.’s Answers & Objns. to Def.’s 1st Set of Interrogs. & Reqs.
for Prod. of Docs. at 18-19). Because most of the Secretary’s
allegedly retaliatory conduct pre-dates these letters, that
allegedly retaliatory conduct could not have been in retaliation
for these letters. Arnold, 2013 WL 5273369, at *5 (citing Booth
v. District of Columbia, 701 F. Supp. 2d 73, 79 (D.D.C. 2010)).
 - 27 -

Programs Director wrote that Arnold served on a committee that

worked with the EEOC to identify problems with the BLM’s EEO

practices. See Pl.’s Answers to Interrogs. at 18-19. As a

result of her protected conduct, Arnold claims that she was

retaliated against from January 2003 to October 2003, and in

March 2004.6 Because the allegedly retaliatory conduct occurred

well over ten months after March 2002 -- when Arnold’s purported

protected conduct ended -- temporal proximity between the

protected conduct and retaliatory acts alone cannot establish

causation. Moreover, Arnold did not respond to the Secretary’s

argument that Arnold “has offered no evidence that Ms. Johnson

was aware of [the March 12, 2002] letter or plaintiff’s committee

work in relation to it.” Def.’s Mem. at 21. Thus, this argument

is conceded. Since Arnold has not demonstrated that the temporal

proximity between her protected conduct and the allegedly

retaliatory actions alone is sufficient to establish causation,

6
Specifically, Arnold alleges that she was retaliated
against when Johnson (1) terminated SERTS in January 2003, (2)
directed Stewart to send an e-mail regarding the “Lead State
Concept” on May 8, 2003, (3) denied Arnold’s request to travel in
June 2003, (4) set an unreasonable deadline for Arnold in July
2003, (5) transferred Arnold from the SCEP Program Manager
position to the Title VI position in July 2003, (6) falsely
accused her of money laundering on July 18, 2003 and August 12,
2003, (7) issued a letter of counseling in August 2003, (8) moved
Arnold to a smaller office and did not allow Arnold to keep her
phone number in September 2003, (9) gave Arnold a false position
description for her Title VI EEO specialist position on
October 1, 2003, and (10) terminated BLM’s agreement with
Langston in March 2004. Pl.’s Answers to Interrogs. at 2-14.
 - 28 -

and she does not provide an alternative theory to establish

causation, the Secretary is entitled to judgment as a matter of

law on Arnold’s retaliation claims.7

IV. HOSTILE WORK ENVIRONMENT

“[A] hostile work environment can amount to retaliation

under Title VII.” Hussain v. Nicholson, 435 F.3d 359, 366 (D.C.

Cir. 2006). “To prevail on a retaliatory hostile work

environment claim, ‘a plaintiff must show that her employer

subjected her to 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.’” Ramseur v. Perez, Civil Action No. 13-

0169 (ESH), 2013 WL 4483511, at *6 (D.D.C. Aug. 23, 2013)

(alterations and internal quotation marks omitted) (quoting

Baloch, 550 F.3d at 1201). In determining whether a hostile work

environment exists, courts “‘look[] at all the circumstances,’

7
In her opposition, Arnold also asserts that her “defense
of the affirmative employment agreement with Langston University,
an HBCU” was protected conduct. See Pl.’s Opp’n at 9. Protected
conduct is opposition to an employment practice that violates
Title VII or the ADEA. See 42 U.S.C. § 2000e-3; 29 U.S.C.
§ 623(d)); see also Forman, 271 F.3d at 297-98 (explaining that
42 U.S.C. § 2000e-16 and 29 U.S.C. § 633a bar the forms of
discrimination identified in 42 U.S.C. § 2000e-3 and 29 U.S.C.
§ 623(d)). However, Arnold has not demonstrated that Johnson’s
questions about the DOI’s agreement with Langston or Johnson’s
decision to terminate the agreement are unlawful employment
practices under Title VII and the ADEA. Thus, Arnold has not
shown that retaliation because Arnold defended the BLM-Langston
agreement violates Title VII or the ADEA.
 - 29 -

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) (quoting Harris

v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

Arnold claims that the Secretary subjected her to “a hostile

work environment through acts of retaliatory harassment against

Arnold.” Pl.’s Opp’n at 29. Specifically, Arnold argues that

Johnson’s acts, including making false accusations that Arnold

was laundering money, threatening to transfer Arnold’s position

to a state office, terminating SERTS, issuing a letter of

counseling, and reassigning Arnold to the Title VI position

“constitute a pattern of retaliatory harassment.” Id. at 29-30.

The Secretary argues that these acts were not sufficiently

severe and pervasive to create a hostile work environment.

Def.’s Mem. at 39-40. Arnold counters that Johnson’s repeated

accusations that Arnold was involved in illegal money laundering

are evidence of “Johnson’s agenda . . . to harass and intimidate

Arnold.” Pl.’s Opp’n at 29. Arnold also asserts that Johnson’s

“actions constitute a pattern of retaliatory harassment.” Id. at

30.8 However, Arnold does not confront the Secretary’s argument

8
Arnold also asserts that Johnson made other “material
changes in Arnold’s terms and conditions of employment.” Id.
However, Arnold does not point to any evidence to support this
 - 30 -

that Johnson’s allegedly discriminatory actions were not

sufficiently severe and pervasive to alter the terms or

conditions of Arnold’s employment. For instance, Arnold does not

argue that Johnson’s actions occurred so frequently as to

unreasonably interfere with her work performance. Moreover,

Arnold does not dispute the Secretary’s argument that “during the

time Ms. Johnson was [Arnold’s] supervisor she met or spoke with

Ms. Johnson only about eight times.” Def.’s Mem. at 39. Because

Arnold has not made out a prima facie case of hostile work

environment, judgment will be entered for the Secretary on this

claim.

CONCLUSION AND ORDER

Arnold did not timely exhaust her administrative remedies

for her Title VII and ADEA claims that the Secretary

discriminated and retaliated against her by accusing her of money

laundering in September 2002, and her Title VII claims that the

Secretary discriminated and retaliated against her by instructing

a subordinate to terminate SERTS in January 2003, and causing

Stewart to send an e-mail about the “Lead State Concept” in May

2003. Arnold has demonstrated that there is a disputed issue of

assertion and “[c]onclusory assertions offered without any
factual basis in the record cannot create a genuine dispute
sufficient to survive summary judgment.” Crummey v. Soc. Sec.
Admin., 794 F. Supp. 2d 46, 55 (D.D.C. 2011) (citing Ass’n of
Flight Attendants -- CWA v. U.S. Dep’t of Transp., 564 F.3d 462,
465–66 (D.C. Cir. 2009)).
 - 31 -

material fact regarding whether she was discriminatorily

transferred to the Title VI program, but has failed to establish

a prima facie case for her other intentional discrimination

claims. Arnold also failed to establish a prima facie case for

her timely filed retaliation claims, and did not make out a prima

facie case of hostile work environment. Accordingly, it is

hereby

ORDERED that the Secretary’s motion [17] for summary

judgment be, and hereby is, GRANTED IN PART and DENIED IN PART.

Summary judgment is denied as to Arnold’s claim that she was

discriminated against on the basis of race, sex, and age when she

was transferred to the Title VI EEO Specialist position. Summary

judgment is granted as to Arnold’s other intentional

discrimination claims and her retaliation and hostile work

environment claims. It is further

ORDERED that the parties appear for a scheduling conference

on February 7, 2014 at 12:30 p.m.

SIGNED this 23rd day of December, 2013.

/s/
RICHARD W. ROBERTS
Chief Judge