Miles v. Clinton

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_________________________________________
)
SHIRLEY M. MILES, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-2092 (ESH)
)
JOHN F. KERRY, in his official capacity as )
Secretary of State, )
)
Defendant. )
_________________________________________ )

MEMORANDUM OPINION

Plaintiff Shirley M. Miles is an African-American female who was formerly the head of

an entity known as “Internal Review and Operations Research” (“IROR”) in the Department of

State’s Bureau of Overseas Buildings Operations (“OBO”). She brings this action against John

F. Kerry, in his official capacity as Secretary of State (“Defendant”), alleging race

discrimination, sex discrimination and retaliation in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-16. (Second Amended Compl. ¶¶ 37-59, Aug. 7, 2012 (“2d Am.

Compl.”).) Defendant has filed a motion for summary judgment. (Def.’s Mot. for Summ. J.,

Oct. 16, 2012 (“Def.’s Mot.”).) For the reasons stated herein, defendant’s motion will be granted

in part and denied in part.1

1
In ruling on defendant’s motion for summary judgment, the Court has considered the
following: Defendant’s Memorandum of Points and Authorities in Support of its Motion for
Summary Judgment, Oct. 16, 2012 (“Def’s Mem.”) [ECF No. 21]; Defendant’s Statement of
Material Facts Not In Genuine Dispute, Oct. 16, 2012 (“Def.’s Facts”) [ECF No. 21];
Defendant’s Exhibits in Support of Defendant’s Motion for Summary Judgment, Oct. 17, 2013
(“Def.’s Ex.”) [ECF No. 22-1 to 22-5]; Plaintiff’s Opposition to Defendant’s Motion for
Summary Judgment, Feb. 25, 2013 (“Pl.’s Opp.”) [ECF No. 29]; Plaintiff’s Response to
 BACKGROUND

I. FACTS

OBO is the State Department bureau responsible for building and maintaining facilities

overseas for the conduct of U.S. diplomacy, including embassies and consulates, office buildings

and residences. (Def.’s Facts ¶¶ 1, 4.) OBO first hired plaintiff in September 2002 as a

“nonsupervisory management analyst” in its “Management Support Division” (“MSD”). (Id. ¶

4.) In January 2003, then-OBO Director, General Charles Williams, selected plaintiff to head

IROR, an entity he had created in 2001 to conduct internal reviews that would provide him with

“independent assessments of programs, operations and personnel matters.” (Id. ¶¶ 2, 5 (internal

quotations omitted).) External reviews of OBO were carried out by the State Department’s

Office of Inspector General (“State OIG”) and the Government Accountability Office (“GAO”).

(Id. ¶ 3.) For the duration of Williams’ tenure as OBO Director, plaintiff reported directly to

him, as did the heads of two “divisions,” the “Information Resource Management Division”

(“IRM”) and the “Management Support Division” (“MSD”). (Id. ¶ 5.)

Plaintiff was initially the only person assigned to IROR, but she was given the authority

to hire staff, which she did. (Def.’s Facts ¶ 4; Pl.’s Facts ¶ 4.) During this period plaintiff’s “job

title” and “position description” changed twice. First, upon her move to IROR, her job title

Defendant’s Statement of Material Facts Not In Genuine Dispute and Plaintiff’s Statement of
Genuine Issues, Feb. 25, 2013 (“Pl.’s Resp.” (pp. 1-25) and “Pl.’s Facts” (pp. 25-36) [ECF No.
29-1]); Plaintiff’s Exhibits in Support of Opposition to Summary Judgment (Exhibits 1-35), Feb.
25, 2013 (“Pl.’s Ex.”) [ECF Nos. 29-2 to 29-6]; the Declarations of Shirley Miles (“Miles’
Decl.”), Jane Loyer (“Loyer Decl.”) and Shawnee Wright (“Wright Decl.”) [ECF Nos. 29-7 to
29-9]; Deposition Transcripts from Isaias Alba (“Alba Dep.”), Shirley Miles (“Miles Dep.”) Jurg
Hochuli (“Hochuli Dep.”), Richard Shinnick (“Shinnick Dep.”) and Ramsey Stallman (“Stallman
Dep.”) [ECF No. 29-10 to 29-15]; Defendant’s Reply In Support of Motion for Summary
Judgment, May 7, 2013 (“Def.’s Reply”) [ECF No. 34]; Defendant’s Response to Plaintiff’s
Statement of Genuine Issues, May 7, 2013 (“Def.’s Resp.”) [ECF No. 34-1]; and Defendant’s
Exhibits to Reply (Exhibits 51-53) (“Def.’s Ex.”) [ECF No. 34-2].
2
changed to “program analyst,” and she was assigned a new position description. (Def.’s Facts ¶¶

5, 6; Pl.’s Facts ¶ 3.) Then, in July 2006, her job title changed to “supervisory program analyst,”

and her position description was revised. (Def.’s Facts ¶ 7.) Despite differences among her

various job titles and position descriptions, each position plaintiff held was classified as GS-14,

with no promotion potential. (Id. ¶¶ 4-7.)

The events that precipitated the current litigation began in January 2008, when Richard

Shinnick replaced Williams as OBO Director and State OIG initiated its first inspection of OBO

in 15 years. (Id. ¶ 8.) State OIG “conducts periodic inspections of State bureaus to determine

whether they are achieving departmental policy objectives, efficiently managing resources, and

implementing adequate controls to guard against waste, fraud or abuse.” (Id.) The OIG’s final

report, which was released in August 2008, identified several problems with OBO’s “unorthodox

and overly complex” organizational structure, noting the fact that two divisions (MSD and IRM)

reported directly to the OBO Director instead of to an “executive director” or “principal deputy

assistant secretary.” (Def. Ex. 3, at 5 (“OIG Report”) 2; Def.’s Facts ¶¶ 9-10.) The OIG Report

also found fault with the Williams’s management style, the “secretive” nature of IROR’s work,

and “inaccuracies” in IROR’s work product, and recommended that OBO “develop a mission

statement and formal operating procedures for the conduct of [IROR’s] activities” and “provide

[IROR] office personnel with the requisite training to perform its oversight function.” 3 (OIG

Report at 6-7; Def.’s Facts ¶¶ 11-13.)

2
The OIG Report erroneously stated that the “Human Resources Division” (“HR”) also reported
directly to the OBO Director. (Def.’s Facts ¶ 10; Pl.’s Resp. ¶ 10.)
3
Plaintiff disputes the accuracy of OIG’s conclusions, but not that the language appears in the
OIG Report. (Pl.’s Resp. ¶¶ 9-12.)
3
 After receiving the 2008 OIG Report, OBO Director Shinnick made several changes that

affected IROR and plaintiff. (Def.’s Facts ¶¶ 17-21.) First, Shinnick decided that IROR would

no longer report directly to him. (Id. ¶ 20.) He consulted with the head of the Resource

Management Division (“RM”), Jorg Hochuli asking him where he thought IROR should be

moved. (Id.; Def.’s Ex. 12.) Hochuli recommended that IROR be moved into RM,4 explaining

his reasoning in a memo to Shinnick:

Per your question as to where the Internal Review and Operations
Research (IROR) entity would best fit within OBO organizational structure. I
believe that RM is the logical office to assume [the IROR] function. Historically,
the Resource Management Office (RM) has had such a function within the Policy
and Programming Division (RM/P). RM/P is currently overseeing the Federal
Managers’ Financial Integrity Act (FMFIA) management controls audit. With
[its] financial audit program, and more recently the Department’s increased
emphasis on A-123 Internal Controls on Financial Transactions, the Financial
Management Division (RM/FM) is also heavily involved in such internal review
functions.

Accordingly, I would recommend that the IROR function be placed in the
RM office with reporting responsibilities through the RM Managing Director.
This realignment in no way prevents the Director from requesting audits and
reviews to be performed through a tasking to the RM office. It would also allow
for the synergy as RM is also responsible for coordination of OIG and GAO
audits, responding to stakeholders[‘] requests for information, performing
financial audits overseas, FMFIA management controls reviews, A-123 reviews,
and interfacing with Charleston on the Department’s audited Financial
Statements.

Within RM, the IROR function will report to the Deputy Managing
Director, allowing it to perform reviews throughout the organization as well as
within RM.

(Def.’s Ex. 12, at 1-2.) Shinnick followed Hochuli’s recommendation and moved IROR into RM

and directed plaintiff to report to RM’s deputy managing director, Ramsay Stallman. (Def.’s

4
Hochuli’s actually believed that IROR should continue to report to the OBO Director to
maintain its independence, but Shinnick had already rejected that option. (Pl.’s Resp. ¶ 20; Pl.’s
Facts ¶ 17.)
4
Facts ¶¶ 20-21.) At the same time as he moved IROR, Shinnick moved the two divisions that

had been directly reporting to him, MSD and IRM, under a newly created “Office of the

Executive Director.” 5 (Id. ¶ 18.) Shinnick also made several non-structural changes that

affected plaintiff. He “cut back on the number and size of weekly meetings,” discontinuing the

“top team” meetings that the former OBO Director had held each Friday afternoon and informing

plaintiff and the division heads that they were no longer required to attend project performance

review, cross-cutting and senior staff meetings.6 (Id. ¶ 19.)

Although the changes described above took effect in August 2008 or shortly thereafter,

OBO did not submit its request for approval of the structural changes to the State Department’s

Bureau of Human Resources (“State HR”) until January 29, 2009.7 (Def.’s Ex. 19 & Pl.’s Ex. 98;

Def.’s Facts ¶¶ 22, 26.) By that time, OBO had decided to propose that IROR be reclassified as

5
At the time these changes took place, the head of one division (IRM) was Robert Clarke, a
white male; and the head of the other division (MSD) was Roberto Coquis, a Hispanic male.
Both Clarke and Coquis were GS-15’s. (Def.’s Facts ¶ 18; Pl.’s Resp. ¶ 18.) Shinnick also
moved OBO’s Human Resources Division (“HR”) under the Office of the Executive Director.
The head of HR was Carmen Montgomery, an African-American female. (Def.’s Facts ¶ 18.)
6
Although at the time plaintiff expressed her approval of IROR’s move into RM, she now
maintains that she did so only because it “was a done deal” and that she was trying “to make it
work.” (Pl.’s Resp. ¶ 21 (quoting Miles Dep. at 135-37).)
7
At the same time, OBO sought approval to change its “organizational structure nomenclature to
match” the rest of the State Department. (Def.’s Exs. 19-20.) As applied to OBO, that meant
that the Bureau (OBO), was headed by a Director (Shinnick), under which there are Directorates
(e.g., RM), which are headed by a Deputy Director (e.g., Hochuli), followed by Offices (e.g.,
RM/P or the “Office of the Executive Director”), which are headed by Office Directors (e.g.,
Alba), followed by Divisions, Branches, Sections (all headed by Chiefs) and then Staff, which is
headed by a Supervisor. (Def.’s Ex. 20; Pl.’s Ex. 31.) Also, by that time, IROR’s name had
changed to “Internal Reviews” (“IR”), but the Court will follow the parties’ lead and continue to
refer to it as IROR, although it should be noted that it is referred to as IR in several exhibits
which have been quoted herein.
8
Several of plaintiff’s exhibits are duplicates of defendant’s exhibits. Where that is the case, the
first citation will include both exhibit numbers, but thereafter the Court will cite only to
defendant’s exhibit number.
5
a “division” that would report to the Office of the Executive Director. (Def.’s Ex. 19.) IROR

did not meet the State Department’s requirements to be classified as a “division,” so OBO also

requested a waiver of those rules as applied to IROR. (Def.’s Ex. 19; Def.’s Facts ¶¶ 23; Pl.’s

Facts ¶ 13.) In seeking the waiver, OBO described IROR as “a separate functional group within

OBO for eight years,” which “should remain a distinct entity, because it has an oversight

function within the bureau; it conducts independent and objective reviews and analysis of the

Bureau’s operations,” and “[[i]n order to conduct much of the research, it often interacts with

Bureau senior management, which is best facilitated by a Division status and by a Division

Chief.” (Def.’s Ex. 19, at 3; Def.’s Facts ¶ 26; Pl.’s Facts ¶ 13.)

On February 11, 2009, State HR notified OBO that, after reviewing OBO’s “final

realignment organization charts” and the “waiver requests,” it had concluded that “[IROR]

should be organized as a Staff, not a division.” (Def.’s Ex. 20 & Pl.’s Ex. 11, at 1-2; Def.’s Facts

¶¶ 27, 50.) State HR further “recommend[ed] that the IR Staff be placed with the RM Office of

Policy and Program Analysis [RM/P] or with the RM Deputy Director [Hochuli]” because

“[p]lacement with the Executive Director is inappropriate due to a conflict of interest when

reviewing HR, Management Support [MSD], or IRM operations.” (Def.’s Ex. 20, at 2; Def.’s

Facts ¶¶ 27, 50; Pl.’s Facts ¶ 14.)

Although neither Shinnick nor Hochuli believed there would have been an unavoidable

conflict of interest if IROR reported directly to the Executive Director (Pl.’s Facts ¶¶ 15-16),

Hochuli decided that, effective March 2, 2009, IROR would be incorporated into RM/P as a

Staff. (Def.’s Ex. 21 & Pl.’s Ex. 8; Def.’s Facts ¶ 28.) With IROR part of RM/P, plaintiff would

report to RM/P’s Director, Isaias (“Cy”) Alba. (Def.’s Facts ¶ 28.) On February 23, 2009,

Hochuli sent a memo to plaintiff, Alba, and Stallman, who by then had moved into the position
6
of Executive Director, notifying them of his decision to move IROR into RM/P and asking

plaintiff to “work with [Stallman] and [Alba] to ensure a smooth transition.” (Def.’s Ex. 21.) In

that memo, Hochuli explained his decision as follows:

Following [State HR’s] recommendation, I have decided to incorporate IROR into
RM/P. Further since RM/P has an OMS [office support staff], the office support
position currently in IR will be reassigned to the EX Director which does not
currently have an OMS and needs the support.

(Id.) That same day, plaintiff sent a memo to Hochuli questioning his decision and explaining

the reasons for her objection to moving IROR into RM/P:

I am not comfortable at this time to work for CY Alba. An important reason is
that my talented staff has been in constant upheaval now for over a year. . . .

My staff has been very rattled by all the unexpected changes. . . . Additionally,
there is the added worry of the delicate situation with CY’s dubious reputation for
managing women working for him. CY is known to be openly critical of IR. I
need to wait out the results of the desk audit. These constant changes in my
program put my promotion in great jeopardy. I want to stay put for now. . . .

You mentioned in your memo that placement in the EX is inappropriate due to
conflict of interest when reviewing HR, MSD, or IRM operations. IR is the
bureau’s oversight apparatus in [] reviews and analysis. Most importantly, there
is an inherent conflict of interest with IR being placed under RM period. IR
should report directly to the head of the bureau as it was previously.

I am requesting that IR be placed back under the Director of OBO.

(Pl.’s Ex. 34, at 1-2.) The move took effect as contemplated on March 2, 2009. (Def.’s Facts ¶

28.) On March 5, 2009, Hochuli sent a memorandum to plaintiff which stated:

This is in response to your memo dated February 23, 2009. Although I understand
your concerns, the realignment is for legitimate business reasons and is moving
forward as planned. The realignment of IR to RM/P is effective March 2, 2009.

I appreciate your cooperation in making this move a success. Please note that
failure to move as requested may result in disciplinary action. I trust that such
action will not be necessary, however.

(Pl.’s Ex. 13, at 22.)
7
 During the same time period as OBO was making organizational changes, plaintiff was

seeking a promotion to GS-15, which she believed that former OBO Director Williams had

promised her. (Def.’s Facts ¶¶ 35-49; Pl.’s Resp. ¶¶ 35-49.) Plaintiff was pursuing two possible

avenues to obtain her promotion. (Pl.’s Facts ¶¶ 8-10; Def.’s Resp. ¶¶ 8-10.) First, she was

working with Stallman and others on a proposal for the reorganization of IROR, which would

make the head of IROR a GS-15 position.9 (Def.’s Ex. 38 & Pl.’s Ex. 3, at 1-2; Pl.’s Facts ¶¶ 8-

12.) That proposal was finalized and submitted to the classification staff at State HR for review

on October 28, 2008. (Def.’s Facts ¶ 38, at 1.) According to Stallman, plaintiff would have to

“compete” for the new GS-15 position against other applicants because the position description

was based on “projected,” not current duties. (Id.) At the same time, plaintiff requested a “desk

audit,” to see whether the work she was already doing entitled her to a GS-15 classification

based on an “accretion of duties.” (Def.’s Ex. 17; Def.’s Facts ¶ 48; Pl.’s Resp. ¶ 48.) Once

plaintiff confirmed that she wanted to pursue a desk audit, the IROR reorganization proposal was

put on hold. Plaintiff’s request for a desk audit was forwarded to State HR on February 5, 2009,

but the desk audit did not commence until after IROR’s move into RM/P. (Def.’s Ex. 47; Def.’s

Facts ¶¶ 48, 49.) When it was finally completed in the late summer of 2009, the desk audit

results did not support reclassification of plaintiff’s position to GS-15. (Def.’s Facts ¶ 51.)

Following IROR’s move into RM/P, plaintiff’s job changed in a number of ways. First,

Alba decided that a new position description was needed for plaintiff now that IROR was part of

RM/P. (Def.’s Facts ¶ 53.) On July 30, 2009, he submitted his proposed position description

9
OBO previously submitted a request to reorganize IROR and to reclassify plaintiff’s position as
a GS-15 in November 2007. (Def.’s Facts ¶ 38, at 1.) Upon its initial review, the classification
staff at State HR concluded that the request was not supportable. (Id.) Before a final decision
issued, Shinnick withdrew the request as it was did not reflect IROR’s move into RM. (Id.)
8
(“PD”) to State HR for review (Def.’s Ex. 40), and on November 5, 2009, State HR gave its

approval of the PD. (Def.’s Ex. 42; Def.’s Facts ¶ 53; Pl.’s Resp. ¶ 53; Pl.’s Facts ¶ 36.)

Plaintiff only learned that her position description had been changed on December 2, 2009, when

she received a “Notification of Personnel Action” email. (Pl.’s Ex. 20.) Although the new PD

made no change to plaintiff’s GS-14 grade level, it differed from the prior PD in the following

ways: (1) in “Major Duties and Responsibilities,” the new PD stated that IROR’s reviews and

analyses would be assigned by the RM/P Office Director (Alba); (2) in “Organizational Setting,”

the new PD stated that plaintiff’s position “is accountable to a GS-15 position,” whereas her

previous PD reflected that she reported to a “SES or higher level position,” and (3) in

“Supervisory/Managerial Authority Exercised,” the new PD specified that Alba was responsible

for approving decisions regarding IROR staffing levels, resource allocation, and the

methodologies for achieving work goals and objectives. (Pl.’s Resp. ¶¶ 53-56; Pl.’s Facts ¶¶ 36-

39.) The changed position description took effect on December 6, 2009.

Alba also took several actions that plaintiff perceived as unfair and unwarranted. For

example, he assigned work directly to one of plaintiff’s subordinates, Ken Feng (Asian male),

rather than assigning the work to IROR and letting plaintiff decide to whom it should be

assigned. (Pl.’s Ex. 16.) Later, on October 21, 2009, Alba notified plaintiff that her

“supervisory and COR responsibilities” over Feng were being removed based on Feng’s

allegations, as described by Alba, that plaintiff “attempted to bully him into making a false

statement, that [she] engaged in retaliation against him, and that the supervisor/employee

relationship between the two of [them] has deteriorated to such an unacceptable level that he can

no longer continue to work effectively.” (Pl.’s Ex. 27, att. 1.) In her annual performance

reviews, Alba rated plaintiff as “Fully Satisfactory,” yet prior to IROR’s move into RM/P,
9
plaintiff consistently earned performance appraisals at the “Outstanding” level, including one

from Shinnick for the eight month time period in 2008 that he supervised her. (Def.’s Ex. 24 &

Pl.’s Ex. 17; Miles Decl. ¶ 6) When Alba provided plaintiff with her performance review for

2009, she questioned how he could provide her with a review having never given her work

elements or a mid-year review. (Pl.’s Ex. 29, att. 1.) Alba also directed plaintiff not to contact

certain offices and individuals without his “specific authorization” even though she believed that

such contacts were required by her position description.” (Pl.’s Ex. 29.)

Finally, after the move into RM/P, IROR’s workload declined to the point where there

was not enough work to keep plaintiff or her staff busy.10 (Def.’s Facts ¶ 59; Pl.’s Resp. ¶ 59;

Pl.’s Facts ¶¶ 26-28.) The parties dispute precisely how many reviews or audits IROR

performed prior to and after the move into RM/P, but agree that the overall number significantly

declined. (Def.’s Facts ¶ 59; Pl.’s Resp. ¶ 59; Pl.’s Facts ¶ 26.) Plaintiff began complaining

about the lack of work shortly after IROR’s move to RM/P. (Pl.’s Facts ¶ 31.) She complained

to both Hochuli and Alba and, eventually, to the new OBO Director, Adam Namm. (Pl.’s Facts

¶ 31; Pl.’s Ex. 16.) Over the next several years, plaintiff repeatedly requested, without success,

additional work and suggested projects for IROR. (Pl.’s Exs. 16 & 28, att. 2; Pl.’s Facts ¶ 31.)

When vacancies developed within IROR, plaintiff requested, but was not given, permission to

fill them. (Pl.’s Facts ¶¶ 31; Def.’s Resp. ¶ 31.) By 2011, IROR had only two employees other

than plaintiff, even though there was a staff ceiling of eight. (Pl.’s Facts ¶ 32.)

In the fall of 2010, State OIG began its “Compliance Follow-up Review” of OBO. (Pl.’s

Ex. 26 (“OIG Compliance Report”); Def.’s Facts ¶ 57.) The OIG’s Compliance Report, which
10
The parties agree that neither Shinnick, Hochuli, nor Stallman anticipated this decline (Pl.’s
Facts ¶¶ 10-12), but disagree as to why it occurred. (See Pl.’s Facts ¶¶ 26-29; Def.’s Resp. ¶¶
26-29.)
10
was issued in May 2011, concluded that OBO “was substantially in compliance with the

recommendations in the [OIG Report]” and that “[i]nternal reorganization and changes in senior

leadership have improved interactions between OBO and Department of State entities and other

agencies.” (OIG Compliance Report at 1.) With respect to IROR, the reviewers interviewed

Alba, Hochuli, Stallman, Feng and Warrington “Pete” Brown, another IROR staff member.

(Pl.’s Facts ¶ 41; Pl.’s Ex. 35.) Based on those interviews, they included the following

observations in their report:

According to OBO and the IR director, the workload in IR is insufficient and
uneven; consequently, staff is not always fully employed. The OIG notes that
given recent U.S. Government Accountability Office reviews of OBO’s activities,
OBO’s overseas financial review program, the OIG’s OBO inspection and this
compliance follow-up review, the need for internal IR reviews has apparently
diminished.

At the same time, OBO told the OIG [review] team that other analysts in the
Office of Policy and Program Analysis [RM/P] are sometimes overworked as a
result of staffing shortages. To balance the workload more effectively, on
occasion, the IR staff has been assigned non-internal review work.

(OIG Compliance Report at 9-10.) The report’s recommendation was that OBO “should abolish

the separate internal review function and assign its staff members to other [OBO] offices in order

to distribute the workload more equally among all the analysts.” (OIG Compliance Review at

10; Def.’s Facts ¶¶ 57, 60; Pl.’s Resp. ¶¶ 57-60.) In July 2011, OBO notified State OIG that it

“agrees with [its] observation that, given the recent U.S. Government Accountability Office

reviews of OBO’s activities, OBO’s financial review program, and the OIG’s OBO inspection

and Compliance Follow-up Review, the need for internal IR reviews is limited” and, thus “agrees

with OIG’s recommendation to abolish [IROR].” (Def.’s Ex. 50 & Pl.’s Ex. 24, at 1; Def.’s

Facts ¶ 61; Pl.’s Resp. ¶ 61; Pl.’s Facts ¶ 40.) In November 2011, plaintiff was reassigned to a

non-supervisory GS-14 position as a “senior management and program analyst” within RM/P.
11
(Def.’s Ex. 44; Def.’s Facts ¶ 61; Pl.’s Facts ¶¶ 40, 54.) In January of 2012, IROR was officially

abolished.

II. PROCEDURAL HISTORY

On February 25, 2009, two days after she learned that IROR would be moved into RM/P,

plaintiff initiated EEO counseling. (Pl.’s Ex. 13; Def.’s Facts ¶ 62; Pl.’s Facts ¶¶ 57-59.) The

report completed by the EEO Counselor indicates that the immediate impetus for the counseling

was an exchange that plaintiff had with Shinnick on February 24, 2009, during which he

“publicly bullied” her. (Pl.’s Ex. 13.) According to the EEO report, plaintiff believed that she

was being harassed and otherwise discriminated against by Shinnick and others because she was

a “female in a predominately male work environment.” (Id.) She told the counselor that she was

“uncomfortable with her chain of command, all males, as she feels these individuals support Mr.

Shinnick’s actions.” (Id.) The EEO report also states that plaintiff complained that she had been

“promised” a promotion to GS-15 within OBO but that “her chain-of-command is not honoring

that promise.” (Id.) Plaintiff told the counselor that the relief she sought was a promotion to GS-

15 and to “[h]alt plans to move her to report to Isaias Alba.” (Id.)

In an attempt to informally resolve plaintiff’s complaint, the EEO counselor met with

Stallman, Shinnick and Montgomery, but not Hochuli or Alba. (Id.; Def.’s Facts ¶ 63.) During

these discussions, the EEO counselor was made aware of OBO’s recent reorganizations, the

possibility that IROR would be assigned a new GS-15 position, and plaintiff’s ongoing desk

audit. (Pl.’s Ex. 13.) After plaintiff received the March 5, 2009 memo from Hochuli, she

provided a copy to the EEO counselor and “expressed concern that the memo was a retaliatory

move due to her pending discrimination complaint.” (Id.) Based on her discussions with

plaintiff and others, the EEO counselor concluded that informal resolution of plaintiff’s
12
complaint was not possible. (Id.) She issued her final report, along with a notice to plaintiff that

she had the right to file a formal discrimination complaint. (Id.; Def.’s Facts ¶ 64.) The notice

stated that the EEO counselor had investigated the allegation of “hostile work environment

harassment based on the fact that [plaintiff] is female in a predominately male work

environment,” and that the March 5, 2009 letter from Hochuli, citing possible disciplinary action,

was “an effort to retaliate against her as a result of her pending discrimination complaint,” and

included boilerplate language advising her that she “must limit any formal EEO complaint . . . to

those matters you discussed with me, or to like or related matters (that is, matters which are

directly related to those matters or which are unmistakably derived from those matters discussed

with me).” (Pl.’s Ex. 13.)

On March 25, 2009, plaintiff filed a formal complaint of discrimination with the State

Department’s Office of Civil Rights, alleging, inter alia, that she had “been subjected to a hostile

work environment and harassed based on the fact that I am a female and of black origin in a

predominately male work environment”; that she was “uncomfortable with her chain of

command who are all males, and feel these individuals support Mr. Shinnick’s actions against

me and have a bias against women as co-equals”; that she had been “place[d] several rungs down

the pecking order”; and that she had been “the only black female in senior management who

reported directly to Shinnick, but [she] was demoted and humiliated.” (Pl.’s Ex. 14; Def.’s Facts

¶ 65; Pl.’s Facts ¶¶ 61-62.) The relief she requested included “[i]mmediate removal of [IROR]

from under RM and placed back under the new Director of OBO.” (Pl.’s Ex. 14.)

On April 10, 2009, the State Department’s Office of Civil Rights sent plaintiff a letter

advising her that it had “identified the following specific allegations for investigation”: (1) race

and sex discrimination based upon the removal of her duties and responsibilities; (2) race and sex
13
discrimination based upon the denial of a promotion; and (3) race and sex discrimination and

reprisal based on a hostile work environment. (Pl.’s Ex. 15; Pl.’s Facts 65.)

In October 2009, plaintiff requested a hearing before the EEOC on her pending

complaint. (Pl.’s Facts ¶ 66.) On November 6, 2009, January 13, 2010, and April 1, 2010,

plaintiff asked the administrative law judge assigned to her case to amend her complaint to add

new claims of discrimination and reprisal that were “like or related to” her pending claims. (Pls.’

Exs. 27-29; Pl.’s Facts ¶ 66.) Plaintiff sought to include claims relating to the following: (1) the

October 22, 2009 removal of her “supervisory and COR responsibilities” over her subordinate

Feng; (2) IROR’s “not receiving assignments from her supervisor, Isaias Alba”; (3) her “not

being given work elements, a performance plan or a mid-year review”; (4) her “not being

allowed to recruit and hire staff for her office”; (5) her new PD, which was issued “without her

knowledge” and “d[id] not appear to support [her] grade”; (6) her March 10, 2010 performance

appraisal that rated her as “fully successful,” although “she ha[d] not been given work elements,

a performance plan or a mid-year review for the rating period (March 2, 2009 – December 31,

2009)” and she “ha[d] not been given assignments by her supervisor”; (8) her supervisor’s

refusal “to allow her to fill vacancies in her office”; and (9) her supervisor’s directive that she

“not to contact certain offices and individuals without his ‘specific authorization’ which

contact[s] are required by her Position Description.” (Pl.’s Exs. 27-29.)

On July 19, 2011, after learning of OBO’s decision to abolish IROR, plaintiff initiated a

second round of EEO counseling, claiming that the decision to abolish IROR was another act of

race or sex discrimination or retaliation. (Def.’s Ex. 47.) Plaintiff further claimed that “[p]rior to

the decision to abolish her work unit, . . . management engaged in a pattern of discriminatory

behavior by prohibiting her office from conducting management controls reviews” and by
14
“fail[ing] to provide her office with adequate work, even when sufficient work was available.”

(Id. at 2.) As a remedy, plaintiff sought for IROR “to be retained and/or reconstituted, permitted

to fully staff-up, and given meaningful job assignments” and that “IR report directly to the

Deputy Director of OBO, rather than the current management chain.” (Id. at 3.) The counselor

contacted Hochuli and Alba. (Id. at 4.) Hochuli responded to the counselor’s inquiry by

providing a copy of the OIG Compliance Report and his July 15, 2011 memo accepting the

recommendation to abolish OBO. (Id.) Alba responded that he considered Hochuli’s response

to be the official OBO response. (Id.)

Plaintiff filed her initial complaint in federal court on December 9, 2010, claiming race

discrimination (Count I), sex discrimination (Count II), race plus sex discrimination (Count III),

and retaliation (Count IV), each claim based on “one or more” allegedly discriminatory or

retaliatory actions that occurred between August 2008 and December 2010. (Compl., Dec. 9,

2010 [ECF No. 1].) She has since amended her complaint twice, each time with defendant’s

consent, to add actions that occurred after December 2010 and to withdraw the claim that she

had been denied a promised promotion to a GS-15 grade position. (See First Am. Compl., Sept.

21, 2011; 2d Am. Compl., Aug. 7, 2012).

As amended, plaintiff’s complaint alleges that she was discriminated against on the basis

of her race or sex or both when defendant

reassigned her to a new GS-14 Position Description; placed several layers of
supervision between her and the OBO Director; removed plaintiff’s job duties,
including some of her supervisory duties; reclassified her as ‘staff’; failed to give
IROR adequate work; prevented plaintiff from filling vacancies in IROR;
prohibited her from attending senior management meetings; transferred the work
of IROR to a former subordinate of plaintiff’s; reassigned plaintiff’s
administrative assistant; denied plaintiff deserved cash awards; mischaracterized
plaintiff’s performance in her annual appraisals; removed privileges associated
with being a senior manager; and harmed her opportunities for future promotion[,]
15
 . . . and abolished IROR (now called “IR”), along with plaintiff’s position as head
of that group, and reassigned her to a non-supervisory Senior Analyst position.

(2d Am. Compl. ¶¶ 38, 44, 50.) The complaint alleges that she was retaliated against for

engaging in protected activity when defendant

removed plaintiff’s materially significant job duties, including some of her
supervisory duties; failed to give IROR adequate work; prevented plaintiff from
filling vacancies in IROR; transferred the work of IROR to a former subordinate
of plaintiff’s; failed to give plaintiff work elements, a performance plan, or a mid-
year review; prevented plaintiff from carrying out her job duties; []
mischaracterized plaintiff’s performance in her annual appraisals[,] . . . [and]
abolished IROR (now called “IR”), along with plaintiff’s position as head of that
group, and reassigned her to a non-supervisory Senior Analyst position.

(2d Am. Compl. ¶ 56.)

After the completion of discovery, defendant filed the pending motion for summary

judgment.

ANALYSIS

A district court may grant summary judgment only 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

“material fact is one that ‘might affect the outcome of the suit under governing law.’” Talavera

v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (quoting Anderson v. Liberty Lobby, 477 U.S. at

248). For a dispute about a material fact to be “genuine,” the evidence must be such that “a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477

U.S. at 248. In ruling on a motion for summary judgment, a court must “view all facts and draw

all reasonable inferences in favor of the nonmoving party.” Brosseau v. Haugen, 543 U.S. 194,

195 n.2 (2004); Youngberg v. March, 676 F.3d 1114, 1117 (D.C. Cir. 2012). A court should

16
grant summary judgment only if “no reasonable jury could reach a verdict in [the non-moving

party’s] favor.” Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009).

Based on plaintiff’s response to defendant’s motion for summary judgment, it appears

that the contested issues are whether defendant is entitled to summary judgment on (1) plaintiff’s

discrimination claims that relate to the realignment of IROR into RM/P and the abolishment of

IROR; (2) plaintiff’s retaliation claims that relate to the abolishment of IROR; and (3) plaintiff’s

retaliatory hostile work environment claim.11 (Pl.’s Opp. at 21, 28, 35-36.) Defendant argues

that it is entitled to summary judgment on plaintiff’s discrimination claims because: (1) plaintiff

failed to administratively exhaust any claim based on the realignment of IROR into RM/P; (2)

the realignment of IROR into RM/P was not an “adverse employment action”; and (3) the

realignment of IROR into RM/P, the abolishment of IROR and the reassignment of plaintiff to a

non-supervisory position description were all actions taken for legitimate, non-discriminatory

reasons that plaintiff cannot show are pretextual. Defendant argues that it is entitled to summary

judgment on plaintiff’s retaliation claims because (1) the abolishment of IROR and the

reassignment of plaintiff to a non-supervisory position description were actions taken for

legitimate, non-retaliatory reasons that plaintiff cannot show are pretextual; and (2) plaintiff’s

retaliatory hostile work environment fails because it was raised for the first time in her response

to defendant’s motion for summary judgment and, even if considered, would fail on the merits.

I. EXHAUSTION OF ADMINISTRATIVE REMEDIES

Before bringing suit under Title VII, a plaintiff must timely exhaust her administrative

remedies. See 42 U.S.C. § 2000e–16(c); Harris v. Gonzales, 488 F.3d 442, 443 (D.C. Cir. 2007).

11
As explained herein, the issues before the Court have narrowed because plaintiff does not
contest that defendant is entitled to summary judgment on certain claims, see infra notes 12, 14,
16, while defendant does not rebut certain of plaintiff’s arguments. See infra note 13.
17
For a federal employee, administrative exhaustion requires the employee to seek informal pre-

complaint counseling “within 45 days of the allegedly discriminatory act” “in order to try to

informally resolve the matter,” and to limit any subsequent formal EEO complaint to “only the

claims raised in pre-complaint counseling (or issues or claims like or related to issues or claims

raised in pre-complaint counseling).” See 29 C.F.R. §1614.105(a)(1) & (b)(1). Relying on this

rule, defendant argues that even though plaintiff sought informal counseling within 45 days of

the decision to realign IROR into RM/P (indeed, she made her first EEO contact only 2 days

after she learned of the planned move), she failed to exhaust her discrimination claims based on

that action because she failed to specifically identify it as an allegedly discriminatory act during

informal counseling.12 In the alternative, defendant argues that plaintiff failed at least to exhaust

her race discrimination claims because during that same informal counseling session, she

identified only sex, not race, as the type of discrimination she believed she had experienced.13

Neither argument is persuasive. First, the exhaustion cases cited by defendant (see Def.

Mem. at 10) are not dispositive as they are all cases where informal counseling was untimely or

12
Defendant also argues that plaintiff failed to exhaust her claims based on IROR’s move into
RM (standing alone), plaintiff’s exclusion from senior staff meetings, the failure to nominate
plaintiff for a cash award, and the reassignment of her administrative assistant because those
actions that occurred more than 45 days prior to February 25, 2009, her first EEO contact.
(Def.’s Mem. at 9.) Plaintiff does not respond to this argument, thereby conceding that she failed
to exhaust and that defendant is entitled to summary judgment on these claims.
13
Initially, defendant also argued that plaintiff never sought informal counseling as to her claims
based on the direct assignment of work to her subordinate Feng, the prohibition on her
communicating with the State Office of Strategic Planning and her year-end performance
appraisals. (Def.’s Mem. at 10.) Plaintiff countered that informal counseling was not required
because these claims were “like or related to” claims in her pending EEO complaint and her
counsel had followed the proper procedures to amend her complaint to add these claims. (Pl.’s
Opp. at 21.) Defendant has failed to rebut this argument, which is supported by the evidence.
(See Pls.’ Exs. 27-29.) Thus, the Court concludes that these claims were exhausted. However,
defendant is entitled to summary judgment on other grounds. See infra note 14.
18
did not occur at all. See, e.g., Greer v. Paulson, 505 F.3d 1306, 1316-17 (D.C. Cir. 2007) (no

exhaustion of termination claim due to failure to meet with EEO counselor within 45 days). Nor

is this a case where the claims were not raised in the employee’s formal administrative

complaint. Rather, defendant seeks to prevent plaintiff from bringing claims based solely on her

failure to expressly identify during informal counseling the precise action or legal theory that she

thereafter raised in her formal EEO complaint and in her district court complaint.

The purpose of informal EEO counseling is “clear from the text of the regulation:

Counseling is designed to enable the agency and its employee ‘to try to informally resolve the

matter’ before an administrative charge is filed.” Artis v. Bernanke, 630 F.3d 1031, 1034 (D.C.

Cir. 2011) (quoting 12 C.F.R. § 268.104(a) (comparable informal counseling requirement for

Federal Reserve employees”)); see also Blackmon–Malloy v. United States Capitol Police Bd.,

575 F.3d 699, 711–12 (D.C. Cir. 2009) (“[U]nlike agency exhaustion in other contexts, the

purposes of counseling and mediation are not to compile a record for judicial review but instead

simply to afford the employee and the employing office an opportunity to explore and possibly

resolve the employee’s claims informally.”) “Where counseling produces sufficient information

to enable the agency to investigate the claim, that purpose has been served.” Artis, 630 F.3d at

1035 (internal quotations omitted). “To hold otherwise would turn the informal counseling

requirement into a trap for unwary counselees rather than a step toward remediation, and it

would violate the principle that ‘Title VII’s exhaustion requirement should not be read to create

useless procedural technicalities.’” Id. (quoting President v. Vance, 627 F.2d 353, 362 (D.C. Cir.

1980)).

The informal counseling process initiated by plaintiff on February 25, 2009, was

sufficient to achieve this purpose. Plaintiff, like most employees, was not represented by counsel
19
during the informal counseling process and was thus dependent on the EEO counselor to both

accurately report and fully investigate her claims. In this instance, although plaintiff did not

expressly state that she believed the decision to move IROR into RM/P was itself a

discriminatory action, it is evident that the IROR realignment was part of the problem she

brought to the EEO counselor’s attention. As reflected in the EEO counselor’s report, the relief

plaintiff sought for the perceived discrimination was a “promotion to GS-15” and to “[h]alt plans

to move her to report to Isaias Alba.” (Pl.’s Ex. 13.) The report also indicates that when the

counselor met with Stallman, he explained that “OBO had been going through a reorganization

over the past several months, the result of a change in senior leadership and a recent IG

inspection of the Bureau.” (Id.) Stallman also provided the counselor with an email from

plaintiff to him in which she stated: “if Jurg dislikes me so much that he cannot have me working

for him, you should give me the promotion I have earned and I will begin to look elsewhere for a

position.” (Id.)

Similarly, although plaintiff failed to identify “race” as a possible basis for her

discrimination claim during informal counseling, that failure did not undermine the informal

counseling process as there was no direct evidence of sex or race discrimination for the

counselor to investigate. In addition, there is no legal authority supporting defendant’s argument

that employees must differentiate between ideologically distinct categories of discrimination

during informal counseling. Although that principle been applied to a plaintiff’s formal

administrative complaint, see, e.g., Bell v. Donley, 724 F. Supp. 2d 1, 9 (D.D.C. 2010) (plaintiff

cannot administratively exhaust a claim of race discrimination by bringing a formal

administrative complaint for sex discrimination based on the same underlying action); Oliver v.

Napolitano, 729 F. Supp. 2d 291, 298–99 (D.D.C. 2010), aff’d, No. 11–5163, 2011 WL 6759576
20
(D.C. Cir. Dec. 8, 2011), there appears to be “no authority suggesting that the same level of

exactitude is required at the informal counseling stage.” See Youssef v. Holder, 881 F. Supp. 2d

93, 104 (D.D.C. 2012) (no failure to exhaust national origin discrimination claim where informal

counseling covered retaliation claim based on same underlying action and both claims were

raised in formal complaint).

The point of informal counseling is for an employee to “raise his concerns ‘in a manner

that lends itself to potential resolution.’” Youssef , 881 F. Supp. 2d at 104 (quoting Artis v.

Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998)). Plaintiff easily “satisfied this lenient

standard,” id., and, thus, she has exhausted her administrative remedies with respect to her race

and sex discrimination claims based on the realignment of IROR into RM/P.

II. DISCRIMINATION CLAIMS

Defendant argues that it is entitled to summary judgment on plaintiff’s discrimination

claims because (1) the realignment of IROR into RM/P was not an “adverse employment

action,” and (2) the realignment of IROR into RM/P, the abolishment of IROR, and the

assignment of plaintiff to a non-supervisory PD were all actions that were taken for legitimate,

non-discriminatory reasons that plaintiff cannot show are pretextual.

A. Adverse Employment Action

“In order to present a viable claim of employment discrimination under Title VII, a

plaintiff must show he suffered an adverse employment action.” Douglas v. Donovan, 559 F.3d

549, 551-52 (D.C. Cir. 2009). An “’adverse employment action’ is ‘a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing significant change in benefits.’” Id. at 552

(quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (other internal quotations

21
omitted). A plaintiff may demonstrate that she has suffered an adverse employment action by

showing that she “‘experienced 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.’” Id. (quoting Forkkio v. Powell, 306 F.3d 1127, 1131

(D.C. Cir. 2002)). “‘[P]urely subjective injuries’ such as dissatisfaction with a reassignment, or

public humiliation or loss of reputation are not adverse actions.” Holcomb v. Powell, 433 F.3d

889, 902 (D.C. Cir. 2006) (quoting Forkkio, 306 F.3d at 1130-31); Russell v. Principi, 257 F.3d

815, 818 (D.C. Cir. 2001) (“not everything that makes an employee unhappy is an actionable

adverse action”). But a “’reassignment with significantly different responsibilities’ . . .

generally indicates an adverse action.” Forkkio, 306 F.3d at 1131 (quoting Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

Defendant argues that IROR’s realignment into RM/P does not qualify as an “adverse

employment action” because “other than a change in her reporting relationship, [plaintiff’s]

position remained substantially the same when she moved into RM and then RM/P. Her salary

and benefits did not change, she continued to supervise the IROR staff, and IROR staff

continued to perform any internal reviews that were requested by OBO officials.” (Def. Mem. at

14.)14 Plaintiff does not dispute that a change in reporting relationship, standing alone, would

not constitute an adverse employment action, but she disputes defendant’s characterization of the

14
Defendant also argues that several other actions do not qualify as “adverse employment
actions”: the mischaracterization of plaintiff’s work in her annual performance appraisal; directly
assigning work to plaintiff’s subordinate Feng; and prohibiting plaintiff from communicating
with the State Office of Strategic Planning. (Def. Mem. at 26-29.) Plaintiff failed to respond to
these arguments, thereby conceding that defendant is entitled to summary judgment on plaintiff’s
discrimination claims based on these actions.
22
evidence, asserting that it is “indisputable that [her] job duties and responsibilities were

diminished when she and IROR were moved under RM/P.”15 (Pl.’s Opp. at 25.)

As plaintiff rightly points out that “[w]hether a particular reassignment of duties

constitutes an adverse action for purposes of Title VII is generally a jury question.” (Pl.’s Opp.

at 25 (quoting Czekalski v. Peters, 475 F.3d 360, 365 (D.C. Cir. 2007)). Moreover, in deciding

whether defendant should prevail, the question for the Court is not whether plaintiff’s view of the

evidence is “indisputable,” but rather whether a reasonable jury could find that the move into

RM/P effected a “reassignment with significantly different responsibilities.” Even though on

paper there was no immediate change in plaintiff’s job description, there is ample evidence

supporting her contention that the move into RM/P resulted in a significant diminishment of her

job duties. First, it is undisputed that the move into RM/P placed several additional layers of

supervision between her and the OBO Director. In addition, the undisputed evidence supports

her allegations that the move resulted in the removal of some of her job duties, including some of

her supervisory duties, she was reclassified as “staff,” IROR was not given adequate work, and

she was not allowed to fill vacancies in IROR. Finally, Alba did rewrite plaintiff’s PD, allegedly

without her knowledge, and that the plain language of the new PD supports plaintiff’s view that

she had diminished supervisory responsibility following IROR’s placement into RM/P. Thus,

viewing the evidence in the light most favorable to the plaintiff, the Court concludes that the

question whether IROR’s realignment constituted an “adverse employment action” cannot be

resolved on summary judgment.

15
Plaintiff does not try to argue that the move to RM by itself was an adverse employment
action. Even if she did, that claim was not exhausted. See supra note12.
23
 B. Discriminatory Motive

“In a Title VII disparate-treatment suit where an employee has suffered an adverse

employment action and an employer has asserted a legitimate, non-discriminatory reason for the

decision, . . . the district court must resolve one central question: Has the employee produced

sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory

reason was not the actual reason and that the employer intentionally discriminated against the

employee on the basis of race, color, religion, sex, or national origin?” Brady v. Sergeant at

Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). That is, does the “employee’s evidence creates a

material dispute on the ultimate issue of [discrimination] either directly by [showing] that a

discriminatory reason more likely motivated the employer or indirectly by showing that the

employer's proffered explanation is unworthy of credence.’” Jones v. Bernanke, 557 F.3d 670,

679 (D.C. Cir. 2009). “In assessing the legitimacy of the proffered reason and the ultimate

question of discrimination, the court looks to (1) the plaintiff's prima facie case; (2) any evidence

the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any

further evidence of discrimination that may be available to the plaintiff ... or any contrary

evidence that may be available to the employer.” Grosdidier v. Broadcasting Bd. of Governors,

709 F.3d 19, 25 (D.C. Cir. 2013)

Defendant has proffered legitimate, non-discriminatory reasons for the decisions to (1)

realign IROR into RM/P; and (2) to abolish IROR and reassign plaintiff to a non-supervisory

position description in November 2011.16 Plaintiff asserts that these reasons are pretextual. The

16
Defendant also proffers legitimate, non-discriminatory reasons for a number of other actions
(see Def.’s Mem. at 27-29), which plaintiff does not challenge as pretextual. Accordingly,
defendant is entitled to summary judgment on plaintiff’s claims based on those actions: the
reassignment of plaintiff’s administrative assistant; the direct assignment of work to Ken Feng
24
“central question” is thus whether plaintiff has produced evidence sufficient for a jury to find

“’that the defendant’s explanation is unworthy of credence’” and that a jury could “’reasonably

infer from the falsity of the explanation that the employer is dissembling to cover up a

discriminatory purpose.’” Primas v. District of Columbia, 719 F.3d 693, 697 (D.C. Cir. 2013)

(quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000)).

A plaintiff may try to show that the employer’s stated reason for the employment action

was not the actual reason in a variety of ways, including evidence “that the employer treated

other employees of a different race, color, religion, sex, or national origin more favorably in the

same factual circumstances,” “that the employer is making up or lying about the underlying facts

that formed the predicate for the employment decision,” of “changes and inconsistencies in the

stated reasons for the adverse action,” of an “employer’s failure to follow established procedures

or criteria,” of “the employer’s generally negative treatment of minority employees,”; or of

“discriminatory statements by the decisionmaker.” Brady, 520 F.3d at 495 & n.3; see Czekalski

v. Peters, 475 F.3d 360, 366 (D.C. Cir.2007) (“[O]ne way for a plaintiff to show that an adverse

employment decision was made for a discriminatory reason is to ‘show[] that the

nondiscriminatory explanation the defendant proffered for its decision was false.’” (quoting

Lathram v. Snow, 336 F.3d 1085, 1089 (D.C. Cir. 2003)). “If the employer’s stated belief about

the underlying facts is reasonable in light of the evidence, however, there ordinarily is no basis

for permitting a jury to conclude that the employer is lying about the underlying facts.” Brady,

520 F.3d at 495; see George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005) (“[A]n employer’s

and his subsequent removal from plaintiff’s supervision; the refusal to allow plaintiff to hire
staff; annual performance appraisals rating plaintiff as “fully successful,” instead of
“outstanding”; the failure to provide a mid-year review; plaintiff’s exclusion from meetings; and
barring plaintiff from communicating with the Strategic Planning and Programming Office.
(Def. Mem. at 27-29.)
25
action may be justified by a reasonable belief in the validity of the reason given even though that

reason may turn out to be false.”); Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C.

Cir. 1996) (employer prevails if it “honestly believes in the reasons it offers”).

1. IROR’s Realignment in RM/P

Defendant’s proffered legitimate, non-discriminatory reason for the decision to move

IROR into RM/P is that the move occurred “in large part” because of “State HR’s review of

OBO’s reorganization plan” and State HR’s determination that to avoid a conflict of interest

when reviewing the IRM, MSD and HR Divisions, all of whom reported to Director of the

Executive Office, IROR should either report directly to RM Director Hochuli or be placed in

RM/P. (Def. Mem. at 16.) Defendant acknowledges, as it must, that there were additional

reasons given by Hochuli at the time the decision was made – that Hochuli decided to put IROR

into RM/P because of RM/P’s “traditional role” in conducting reviews and because he did not

believe that he had sufficient time to adequately supervise IROR. (Id.; see Def.’s Facts ¶ 28

(“Hochuli decided that IROR should be incorporated into RM/P rather than report directly to him

because RM/P had historically done similar work, IROR had operated in an isolated manner, and

he wanted IROR to have day-to-day supervision, which he would have not have the time to

devote given his existing responsibilities.”).

Plaintiff contends that defendant’s stated reasons for IROR’s realignment are pretextual

because they are “false.” To demonstrate falsity, she correctly points out that there is evidence

that “contradict[s] the claim that IROR was moved under RM/P due to a conflict of interest” and

that undermines defendant’s claim that IROR and RM/P historically did similar work. (Pl.’s

Opp. at 22.) On the conflict of interest point, that evidence includes: (1) Shinnick’s testimony

during his deposition that he did not believe there was a conflict of interest in having IROR
26
reporting to the Executive Director (Shinnick Dep. at 55-56); (2) Hochuli’s testimony that

conflicts could arise with either placement, but that he could have avoided any actual conflicts no

matter where IROR was placed simply by having the Inspector General handle the review

(Hochuli Dep. at 77-83); and (3) Alba’s testimony that RM/P was responsible for drafting and

updating OBO’s policies and procedures (Alba Dep. at 12), which plaintiff attests were routinely

reviewed by IROR. (Miles Decl. ¶ 12.) On plaintiff’s contention that IROR and RM/P have not

historically performed similar work, the strongest evidence supporting plaintiff is that both

Hochuli and Alba were unable to identify any reviews conducted by RM/P other than a few

“workload studies” (Hochuli Dep. at 83-84; Alba Dep. at 21-23), which plaintiff asserts were not

comparable to IROR’s in-depth reviews. (Miles Decl. ¶ 13.)

Certainly, not all the evidence supports plaintiff’s view. For example, Hochuli testified

that there would also have been more of an “appearance” of a conflict if IROR were reporting to

the Executive Director. (Id. at 78-79.) Nonetheless, viewing the evidence in the light most

favorable to the plaintiff, the Court concludes that it is for the jury to decide if the proffered

reasons for moving IROR into RM/P were the actual reasons for that decision or if defendant had

some other non-discriminatory reason for its actions. See Primas, 2013 WL 3108668, at *4

(denying summary judgment but pointing out that “a jury could reasonably view the evidence

differently and conclude that [the defendant] is telling the truth or, even if not, that she had some

other non-discriminatory reason for her actions”). In addition, summary judgment is not

appropriate “in a case that hinges on the answer to a question that itself hinges on credibility

determinations more appropriately made from a jury’s box than a judge’s bench.” Id. Here, one

of the critical questions is whether Hochuli is telling the truth when he says he moved IROR into

RM/P because of the OIG report and RM/P’s related work, even if he was mistaken as to the
27
underlying facts. Under these circumstances, though plaintiff’s evidence is far from

overwhelming, it is enough to preclude summary judgment.

2. Abolishment of IROR

Defendant’s proffered legitimate, non-discriminatory reason for the decision to abolish

IROR and reassign plaintiff to a non-supervisory position description is that “OBO abolished

IROR as a separate function based on OIG’s recommendation,” which in turn was based on

OIG’s finding that “IROR’s workload [was] ‘insufficient and uneven,’ resulting in staff ‘not

always fully employed,’ whereas other RM/P staffers were ‘sometimes overworked as a result of

the staff shortages.’” (Def. Mem. at 19 (quoting OIG Compliance Report at 9-10).) Defendant

further explains that the need for IROR’s internal reviews had decreased because outside reviews

had increased and “Hochuli did not see a need to impose yet another layer of reviews that would

further tax OBO staff’s time and resources” while RM/P’s non-IROR employees . . . were

stretched during 2010 reviewing and updating a large number of OBO policies and

procedures.”17 (Def. Mem. at 20.)

Plaintiff contends that these reasons are pretextual, relying on evidence that the only

reason IROR lacked work was that Alba and Hochuli refused to authorize it to do anything, even

after plaintiff’s repeated requests, that arguably contradicts the claim that RM/P was overworked,

and that the OIG’s conclusions were not truly “independent,” but rather based primarily on what

Hochuli, Alba, and Stallman told the OIG reviewers during their interviews. Based on this

contrary evidence, the Court cannot grant summary judgment on plaintiff’s discrimination claims

that are based on the decision to abolish IROR and assign plaintiff to a non-supervisory position.

17
Defendant relies on the same rationale for the reassignment of plaintiff to a non-supervisory
position description.
28
III. RETALIATION CLAIMS

Plaintiff claims that defendant unlawfully retaliated against her after she filed her initial

administrative complaint by subjecting her to discrete acts of retaliation and by subjecting her to

a retaliatory hostile work environment. For different reasons, defendant argues that it is entitled

to summary judgment on both claims.

Title VII “prohibits employer retaliation when an employee . . . ‘has made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under

this subchapter.” Grosdidier, 709 F.3d at 23 (quoting 42 U.S.C. § 2000e–3(a)). Title VII’s ban

on retaliation applies to federal employers through § 2000e–16. See Taylor v. Solis, 571 F.3d

1313, 1320 (D.C. Cir. 2009). “To sustain a prima facie case of unlawful retaliation, [a plaintiff]

must show that the [defendant] took materially adverse action against him because he

participated in protected activity.” Bridgeforth v. Jewell, No. 12-5015, 2013 WL 3305711, at *2

(D.C. Cir. July 2, 2013) (citing McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012)).

Title VII’s retaliation provision is broader than the substantive antidiscrimination provisions in

that it is “not limited to discriminatory actions that affect the terms and conditions of

employment,” but rather “prohibits any employer action that ‘well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.’” Thompson v. North

American Stainless, LP, 131 S. Ct. 863, 868 (2011) (quoting Burlington N. & S.F.R. Co. v.

White, 548 U.S. 53, 64, 68 (2006)). However, unlike discrimination claims, Title VII retaliation

claims ultimately require proof that the desire to retaliate was the “but-for” cause of the

challenged action. See University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct.

2517, 2533 (2013).

29
 A. Abolishment of IROR

Defendant argues that it is entitled to summary judgment on plaintiff’s retaliation claim

based on the abolishment of IROR and the subsequent assignment of plaintiff to a non-

supervisory position because (1) plaintiff “cannot state a prima facie case” as to causation and

(2) the decision was made for legitimate, non-retaliatory reasons that plaintiff cannot show are

pretextual. (Def. Mem. at 22-23.) Once a defendant proffers a legitimate, non-retaliatory

explanation for a materially adverse action, as it has here, the question whether plaintiff has

stated a prima facie case effectively evaporates, and the only question for the court on summary

judgment is “’whether a reasonable jury could infer . . . retaliation from all the evidence.’”

Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010) (quoting Jones v. Bernanke,

557 F.3d at 678).

Although plaintiff’s discrimination and retaliation claims based on the abolishment of

IROR are distinct and ultimately require proof of different facts, defendant’s argument for

summary judgment is the same. (Def. Mem. at 23 (“plaintiff cannot show that OBO’s reason for

abolishing IROR was a pretext for retaliation for the same reasons that she cannot show that it

was a pretext for discrimination”).) Having already decided that there is sufficient evidence of

pretext to allow plaintiff’s discrimination claim based on the abolishment of IROR to proceed,

the same is necessarily true for her retaliation claim. Accordingly, defendant is not entitled to

summary judgment on this retaliation claim.

B. Retaliatory Hostile Work Environment

In plaintiff’s opposition to defendant’s motion for summary judgment she argues that in

addition to discrete acts of retaliation, she was subjected to a series of actions that “cumulatively

amounted to a retaliatory hostile work environment.” (Pl.’s Opp. at 37.) The actions plaintiff

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identifies as creating a retaliatory hostile work environment after IROR’s move into RM/P

include (1) that “she was reassigned to a new GS-14 PD with diminished supervisory

responsibilies” ; (2) that “[a]fter having previously handled many complex reviews and audits,

[plaintiff] and her staff were given almost no new work to perform for over two years”; (3) that

“Alba undermined [plaintiff’s] supervisory authority, going so far as to reassign one of her

subordinates without even discussing it first with her”; (4) that she “received baseless annual

performance appraisals at the ‘Fully Satisfactory’ level, whereas she had routinely received

‘Outstanding’ ratings previously”; and (5) that “IROR was abolished and [plaintiff] was stripped

of all supervisory responsibility.” (Id.) In its reply, defendant argues that plaintiff should not be

allowed to pursue this claim because it was “raised for the first time” in plaintiff’s opposition to

defendant’s motion for summary judgment and that “[t]he summary judgment stage is far too late

in the day for [plaintiff] to inject a new claim into this case.” (Def.’s Reply at 22.) In the

alternative, defendant argues that even if plaintiff were permitted to raise a claim for a retaliatory

hostile work environment “at this juncture,” it would fail “as a matter of law.” (Def.’s Reply at

22.)

Although the Court does not have the benefit of plaintiff’s response to these arguments,

none is needed. On both points, defendant’s analysis is correct. To bring a claim for a

retaliatory hostile work environment, a plaintiff must allege that the employer subjected him to

“[retaliatory] intimidation, ridicule, and insult’ of such ‘sever[ity] or pervasive[ness] [as] to alter

the conditions of [his] employment and create an abusive working environment.’” See Hussain

v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006) (quoting Harris v. Forklift Sys., Inc., 510 U.S.

17, 21 (1993)); Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008); Singletary v.

District of Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003). First, it is clear that the plaintiff’s
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complaint does not include a claim based on a retaliatory hostile work environment. The

complaint includes only a single retaliation claim, which alleges that plaintiff was subjected to

“one or more materially adverse actions” that “were based on reprisal and were taken . . . as

pretexts to retaliation.” (2d Am. Compl. ¶¶ 56-57.) Nowhere in the complaint does it state that

plaintiff believed she was subjected to a retaliatory “hostile work environment.” Nor does the

complaint allege that “the workplace [was] permeated with [retaliatory] 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” or facts that would support such a

finding. Given plaintiff’s failure to plead a retaliatory hostile work environment claim in her

complaint (even after amending it two times), she may not raise it for the first time in response to

a motion for summary judgment. See Taylor v. Mills, 892 F. Supp. 2d 124, 137 (D.D.C. 2012).

Even if plaintiff could include a retaliatory hostile work environment claim at this late

date, defendant would be entitled to summary judgment. “To determine whether a hostile work

environment exists, the court looks to the totality of the circumstances, including the frequency

of the discriminatory [or retaliatory] conduct, its severity, its offensiveness, and whether it

interferes with an employee’s work performance.” Baloch, 550 F.3d at 1201 (citing Faragher v.

City of Boca Raton, 534 U.S. 775, 787-88 (1998)). Given plaintiff’s claims, a reasonable jury

could not, as a matter of law, conclude that plaintiff’s “workplace [was] permeated with

[retaliatory] 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.” Rather, the

acts of which plaintiff complains are primarily “work-related actions by supervisors” that “courts

have generally rejected [as a basis for] hostile work environment claims.” Grosdidier v. Chmn.,

Bd. of Broadcasting Governors, 774 F. Supp. 2d 76, 110-11 (D.D.C. 2011), aff’d, 709 F.3d 19
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(D.C. Cir. 2013); see Brooks v. Grundmann, 851 F. Supp. 2d 1, 5-6 (D.D.C. 2012) (no retaliatory

hostile work environment based on assignment of work to plaintiff that she believed was beneath

her qualifications, negative performance reviews, and being yelled at by supervisor); Douglas-

Slade v. LaHood, 793 F. Supp. 2d 82, 101 (D.D.C. 2011) (no retaliatory hostile work

environment based on disagreement with supervisor’s management style); Hendricks v. Paulson,

520 F. Supp. 2d 65, 95-100 (D.D.C. 2007) (no retaliatory hostile work environment based on

criticizing plaintiff in performance reviews and micromanaging her”). Accordingly, defendant is

entitled to summary judgment on plaintiff’s retaliatory hostile work environment claim on the

grounds that it is both untimely and without merit.

CONCLUSION

For the reasons stated above, defendant’s motion for summary judgment is granted in part

and denied in part as follows:

(1) Summary judgment is granted as to plaintiff’s claims based on the following actions:

IROR’s move into RM (standing alone); plaintiff’s exclusion from senior staff meetings; the

failure to nominate plaintiff for a cash award; the reassignment of plaintiff’s administrative

assistant; plaintiff’s annual performance appraisals; the direct assignment of work to plaintiff’s

subordinate; the prohibition on plaintiff communicating with the State Office of Strategic

Planning; the refusal to allow plaintiff to hire staff; and the failure to provide a mid-year review.

(2) Summary judgment is granted as to plaintiff’s retaliatory hostile work environment

claim.

(3) Summary judgment is denied as to the remainder of plaintiff’s claims, specifically her

discrimination claims based on the realignment of IROR into RM/P, and her discrimination and

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retaliation claim based on the abolishment of IROR and her assignment to a non-supervisory

position description.

A separate Order accompanies this Memorandum Opinion.

/s/
ELLEN SEGAL HUVELLE
United States District Judge

Date: August 21, 2013

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