Augustus v. Locke

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
DEBRA AUGUSTUS, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1003 (EGS)
)
GARY LOCKE, Secretary, )
U.S. Department of Commerce, )
)
Defendant. )
)
______________________________)

MEMORANDUM OPINION

Plaintiff, Debra Augustus, an employee of the Office of

Facilities Management (“OFM”) of the United States Department of

Commerce (“DOC”) brings this action against the DOC alleging

discrimination on the basis of her sex and race and retaliation

for complaining of her discriminatory treatment in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et

seq. (“Title VII”). Defendant John E. Bryson, Secretary of

Commerce, has filed a motion for summary judgment, essentially

arguing that there are no material issues of fact and that

judgment should be entered on behalf of defendant. Upon

consideration of the motion, the responses and replies thereto,

the applicable law, the entire record, and for the reasons set

forth below, the Court hereby GRANTS Defendant's Motion for

Summary Judgment.
I. Factual Allegations and Procedural Background

A. Factual Background1

Ms. Augustus is an African-American female who was hired as

an Equipment Facilities Services Assistant in the OFM in June or

July of 2004. See Am. Compl. ¶ 5, 6. Her rank is ZS-IV, which

is the rough equivalent of a GS-8 rank. See Am. Compl. ¶ 6;

Def.’s Statement of Material Facts Not in Dispute (“Def.’s SMF”)

¶ 2. Her annual salary is approximately $52,000. Am. Compl. ¶

6. During the relevant period, Patricia McNutt, Chief of the

Office of Space and Building Management, was her direct

supervisor. Def.’s SMF ¶ 4; Plaintiff's Statement of Material

Facts in Dispute (“Plaintiff's SMF”) ¶ 3. Ms. McNutt is a white

female whose rank is ZA-IV. Def.’s SMF ¶ 4.

As an Equipment Facilities Services Assistant, it is part of

Ms. Augustus’ responsibilities to answer phone calls to the room

reservations line and coordinate room reservations. See Def.’s

SMF ¶ 24; Def.’s Motion for Summary Judgment (“MSJ”) Ex. A.,

Deposition of Debra Augustus (“Augustus Dep.”) at 75:18-20. Ms.

Augustus is also responsible for providing conference room

activity reports and keeping track of lobby and auditorium
1
Ms. Augustus filed a Statement of Material Facts in Dispute
in support of her Memorandum of Law in Opposition to Defendant’s
Motion for Summary Judgment, but does not specifically discuss or
dispute a number of facts that Defendant asserts are not in
dispute. See Def.’s Reply at 3-4. Because “the court may assume
that facts identified by the moving party in its statement of
material facts are admitted, unless such a fact is controverted
in the statement of genuine issues filed in opposition to the
motion,” LCvR 7(h)(1), and because Plaintiff has not controverted
these specific facts, the Court relies on the Defendant’s
Statement of Material Facts with respect to these issues.

2
reports. Augustus Dep. at 80:13-17. In addition, she provides

administrative services, supports the staff, and is involved in

evaluating data for finances. Id. at 226:1-7. In November 2007,

Ms. Augustus received a pay increase based on her performance.

Def.’s SMF ¶ 7.

1. Assignment of COTR Duties and Proposed Pay
Increase

On or about December 17, 2007, Ms. Augustus was assigned the

duties of Contracting Officer Technical Representative (“COTR”)

for the cafeteria contract. See Am. Compl. ¶ 7; Def.’s SMF ¶ 8;

Plaintiff’s SMF ¶ 10. Her COTR responsibilities are “extensive”

and include, inter alia, performing inspections twice daily,

monitoring employees for health code compliance, inventory

maintenance, data entry, processing employees and vendors,

renewing DOC identifications, and modifying contracts. Am.

Compl. ¶ 9. Ms. Augustus devotes approximately 45 to 50 percent

of her time to her COTR duties. Id. ¶ 10. Ms. Augustus’COTR

duties are collateral; she is expected to continue to perform her

primary responsibilities in addition to her COTR

responsibilities. Am. Compl. ¶ 7; Def.’s SMF ¶ 9; Def.’s MSJ,

Ex. 3, Interrogatory Responses of Debra Augustus at 5. Ms.

Augustus was aware that her new duties could be an opportunity

for advancement, but she also knew that they did not guarantee a

promotion or pay increase. Def.’s SMF ¶¶ 8, 11; Augustus Dep. at

3
48-24-49:21, 54:1-8; see also Def.’s MSJ, Ex. B., Decl. of Kelly

Spence (“Spence Decl.”) ¶ 6.2

At some point after Ms. Augustus was made the COTR for the

cafeteria contract, she discussed the possibility of a pay raise

with her supervisor, Patricia McNutt. Am. Compl. ¶ 11; Def.’s

SMF ¶ 11; Augustus Inter. at 6. To that end, in February 2008,

Ms. McNutt and Doug Elznic, Plaintiff's second line supervisor,

contacted Human Resources and were given two options: (1) they

could rewrite her position description and re-advertise the

position so Ms. Augustus could compete for it; or (2) perform a

desk audit. Def.’s SMF ¶ 12.

Ms. Augustus alleges that while her supervisors were trying

to find ways to promote her, a number of discriminatory events

occurred. During a conversation between Ms. McNutt and Mr.

Elznic about a potential pay increase, Mr. Elznic purportedly

questioned her ability to handle the position. Am. Compl. ¶ 12;

Plaintiff’s SMF ¶ 16. She also alleges that Fred Fanning, her

third-line supervisor, was considering a suggestion by Ms. McNutt

to re-advertise her position as a ZA-II position, but ultimately

chose not to because she would likely have been promoted as a

result. Am. Compl. ¶ 13; Plaintiff’s SMF ¶ 17. Finally, at a

2
According to Ms. Augustus, the previous COTR for the
cafeteria contract was a white male with a rank of GS-12, and the
back-up COTR was a with male with a rank of GS-11. Both earned
salaries of approximately $75,000. Am. Compl. ¶ 8. However
both had different positions with different job duties and
neither was given a pay increase after being assigned COTR
duties. See Def.’s MSJ at 16; Def.’s MSJ, Ex. D, Decl. of
Douglas Elznic (“Elznic Decl.”) at 3-5.

4
meeting in February 2008 that she did not attend, Ms. Augustus

alleges that Mr. Elznic’s assistant suggested that she should not

get a raise, and that Mr. Fanning purportedly told other managers

that they should “cross all of [their] t’s” because she was

filing a “case against the department.” Am. Compl. ¶¶ 15, 16;

Plaintiff’s SMF ¶ 19.

2. The Desk Audit and First EEO Complaint

On March 3, 2008, Mr. Elznic told Ms. Augustus he had

requested a desk audit for her position. Def.’s SMF ¶ 13;

Augustus Dep,. at 58:16-23; Elznic Decl. at 5. Dionne Jones, a

Human Resources Specialist, conducted a desk audit of her

position; Ms. Augustus’ administrative and COTR responsibilities

were considered as part of the desk audit. Def.’s SMF ¶ 14;

Augustus Dep. at 224:5-225:20; Def.’s MSG, Ex. G at 3. On April

29, 2008, Ms. McNutt, who was not involved in performing the desk

audit or the final decision, informed Ms. Augustus that the desk

audit had been completed and that there was no resultant change

in her grade level. Def.’s SMF ¶ 15; Augustus Dep. at 159:10-13.

The next day, Ms. Augustus was sent a final classification

determination of her position pursuant to the desk audit. Def.’s

SMF ¶ 16. According to the determination, her position title and

classification were incorrect; however, the resulting

reclassification would not result in a change in her grade or

pay. Def.’s SMF ¶ 16; Am. Compl. ¶ 17. Ms. Augustus had the

opportunity to appeal the decision to the Agency and the Office

5
of Personnel Management; however, she did not appeal. Def.’s

MSJ, Ex. G at 1; Def.’s SMF ¶ 16; Augustus Dep. 223:6-19.

Ms. Augustus' position was officially reclassified from

Facility Management and Administrative Assistant, ZS-301-IV, to

Facilities Services Assistant, ZS-1603-IV on June 22, 2008.

Def.’s SMF ¶ 17. Her position was at the full performance level,

which meant that she could not be promoted to a higher

classification without competing for another open position. Id.;

Spence Decl. ¶¶ 2, 3. After she did not receive a promotion as a

result of the desk audit, Ms. Augustus filed an EEO complaint on

June 23, 2008 (No. 08-51-00148), alleging discrimination on the

basis of her sex and race. Am. Compl. ¶ 20; Plaintiff’s Opp’n,

Ex. 1, Decl. of Debra Augustus (“Augustus Decl.”) ¶ 24. Ms.

McNutt was not named as the discriminating official in the

complaint. Def.’s MSJ at 1, 6.

3. Allegations of Retaliation

Ms. Augustus alleges that after she filed her EEO complaint,

Ms. McNutt began “retaliating against her by scrutinizing her

work and threatening” her, which caused her severe stress and

anxiety, and made her feel upset, uneasy, uncomfortable, and

intimidated. Am. Compl. ¶ 21; Augustus Decl. ¶¶ 26, 28. In

addition, beginning at this time Ms. McNutt also purportedly

singled her out by reminding her that she was on the pay for

performance program, and that her ability to secure promotions or

pay increases was tied to her performance. Am. Compl. ¶ 22.

6
 Despite this alleged retaliation, Ms. Augustus received a

positive yearly review, a 3.3% performance pay increase, and a

$2,000 bonus in November 2008. Def.’s SMF ¶ 18. And the

following month, Ms. McNutt asked her to apply for a Management

Analyst position that had recently been advertised because she

could not be promoted in her current position. Def.’s SMF ¶ 19.

Shortly thereafter Larry Hess, Ms. Augustus’ second line

supervisor, met with her to inquire whether she submitted an

application. Id.; Augustus Dep. at 66:24-67:25, 220:12-24. Ms.

Augustus did not apply for the position. Plaintiff’s SMF ¶ 20.

On March 31, 2009, Ms. McNutt arrived at work and could not

find Ms. Augustus. None of her co-workers knew her whereabouts

and Ms. Augustus did not have a two-way radio, which she usually

carried, with her. Def.’s SMF ¶ 24. When Ms. Augustus returned

to her desk, Ms. McNutt told her that she needed to be seated at

her desk from 7:45 a.m. to 9:00 a.m. daily to answer room

reservation calls, which was part of her primary

responsibilities. Id. If she needed to leave her desk, she was

instructed to leave a note on Ms. McNutt's office door. Id. Ms.

Augustus contends that there were two other employees available

to answer the phone, and that neither of these employees was

required to leave a note before leaving their desk. Am. Compl. ¶

25.

The situation escalated on the morning of May 19, 2008. Ms.

Augustus was away from her desk attending to her COTR duties; she

had not left a note for McNutt explaining where she was, as she

7
had been instructed to do on March 31, 2009. Am. Compl. ¶ 29;

Def.’s SMF ¶ 29. Though Ms. Augustus was often away from her

desk in the morning, she had only left a note "one or two times."

Augustus Dep. at 111:5-112:10. That morning, Ms. McNutt

contacted Human Resources about Ms. Augustus’ failure to leave a

note and was told that she could either place her on Absent

Without Official Leave (“AWOL”) status or take a disciplinary

action, such as issuing a Letter of Warning or oral counseling.3

Def.’s SMF ¶ 30; Def.’s MSJ, Ex. C, Decl. Of April Lane (“Lane

Decl.”) at 8. Ms. McNutt chose the former and charged Ms.

Augustus with 45 minutes of AWOL (which equals approximately

$25). Def.’s SMF ¶ 30; Plaintiff’s SMF ¶ 41; Def.’s MSJ at 8.

In addition to the foregoing, Ms. Augustus alleges a number

of other incidents with Ms. McNutt that purportedly made her life

more difficult. These include: (1) an e-mail in March or April

2009 to other employees asking if they wanted a larger workspace

that she was not included on because she already had a larger

workspace than other employees, Am. Compl. ¶ 28; Def.’s SMF ¶ 22;

(2) a March 26, 2009 threat to transfer her COTR duties to

another employee and re-assignment to an out-of-office detail,

Am. Compl. ¶ 24; (3) an April 1, 2009 meeting that Ms. McNutt

failed to inform her of, Am. Compl. ¶ 26; (4) an April 1, 2009

search of her cubicle when she was not present in an attempt to

harass and intimidate her, Plaintiff’s SMF ¶ 48; (5) a comment to

3
AWOL is not a disciplinary action, but rather an issue of
pay. See Lane Decl. at 8.

8
another employee that Ms. Augustus "thinks she knows everything,"

Am. Compl. ¶ 27; and (6) a comment to Plaintiff that the reason

she had not received a raise was because management has the

impression that she gossips, Plaintiff’s SMF ¶ 41.

Ms. Augustus filed a second EEO complaint alleging a hostile

work environment and retaliation on June 15, 2009 (No.

09-51-00510).4 Am. Compl. ¶ 30.

B. Procedural History

Plaintiff filed a complaint in this Court on May 29, 2009,

alleging discrimination on the basis of sex and race and

retaliation. Defendant filed a motion to dismiss, or in the

alternative, for summary judgment on August 24, 2009 based on Ms.

Augustus’ failure to exhaust, which this Court granted in part

and denied in part. See Augustus v. Locke, 699 F. Supp. 2d 65

(D.D.C. 2010). The Court found that allegations relating to

Agency Complaint No. 08-51-00148 had been properly exhausted

because Ms. Augustus cooperated with the EEO investigation,

withdrew her complaint, and filed suit more than 180 days after

she withdrew from the administrative proceeding. Id. at 71-72.

The Court held that Ms. Augustus’ allegations relating to Agency

Complaint No. 09-51-00510 had not been properly exhausted at the

time she filed suit, because the Agency had yet to take final
4
On March 30, 2010, Ms. Augustus filed a third agency
complaint (No. 10-51-00191) alleging disparate treatment and a
hostile work environment in retaliation for prior EEO activity.
Although exhausted at the Agency level, Ms. Augustus did not
raise these claims in her complaint or amended complaint. In
fact, she raises them for the first time in her Opposition.
These claims are discussed in Section IV-C infra.

9
action. Id. 72-73. Plaintiff then properly exhausted those

claims and filed an Amended Complaint on August 18, 2010.

III. Standard of Review

Summary judgment is appropriate in situations where the

moving party has shown that there are no genuine issues of

material fact and the moving party is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of

Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). That a factual

dispute exists is not sufficient to bar summary judgment, rather,

the dispute must be regarding a “material fact.” See Fed. R.

Civ. P. 56(a). For the purposes of summary judgment, “[a] fact

is material if it ‘might affect the outcome of the suit under the

governing law,’ and a dispute about a material fact is genuine

‘if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d

689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, 477

U.S. 242, 248 (1986)). Moreover, the factual dispute must be

“genuine,” such that there is sufficient admissible evidence for

a reasonable trier of fact to find for the non-moving party.

Anderson, 477 U.S. at 255. The moving party bears the burden of

demonstrating the absence of any genuine issues of material fact.

See Celotex, 477 U.S. at 323.

The non-moving party's opposition, however, must consist of

more than mere unsupported allegations or denials; rather, it

10
must be supported by affidavits, deposition testimony,

documentary evidence, declarations, or other competent evidence

setting forth specific facts showing that there is a genuine

issue for trial. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S.

at 324. “[A]lthough summary judgment must be approached with

special caution in discrimination cases, a plaintiff is not

relieved of [her] obligation to support [her] allegations by

affidavits or other competent evidence showing that there is a

genuine issue for trial.” Adair v. Solis, 742 F. Supp. 2d 40, 50

(D.D.C. 2010) (aff'd 473 F. App'x 1 (D.C. Cir. 2012)) (internal

quotation marks and citations omitted). Indeed, the “mere

existence of a scintilla of evidence in support of the

[non-movant]’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the

[non-movant].” Anderson, 477 U.S. at 252.

In determining whether there is a genuine issue of material

fact, the Court must view all facts in the light most favorable

to the non-moving party, see Matsushita Elec. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Keyes v. Dist. of Columbia, 372

F.3d 434, 436 (D.C. Cir. 2004), and draw all justifiable

inferences in favor of the non-moving party, see Anderson, 477

U.S. at 255. At bottom, the district court's task is to

determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Id.

11
at 251-252. As a result, the non-moving party must “do more than

simply show that there is some metaphysical doubt as to the

material facts.” Matsushita, 475 U.S. at 586. “If the evidence

is merely colorable, or is not sufficiently probative,” summary

judgment is warranted. Anderson, 477 U.S. at 249-50 (internal

quotation marks and citations omitted).

IV. Discussion

In the absence of any direct evidence of discrimination, Ms.

Augustus’ Title VII claims are evaluated pursuant to the

burden-shifting framework articulated in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). First, the plaintiff must

establish a prima facie case of discrimination or retaliation by

a preponderance of the evidence. The burden then shifts to the

defendant to articulate a “legitimate, nondiscriminatory reason”

for the allegedly discriminatory or retaliatory employment

conduct. See McDonnell Douglas, 411 U.S. at 802-804; Wiley v.

Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007). The defendant

“need not persuade the court that it was actually motivated by

the proffered reasons. It is sufficient if the defendant’s

evidence raises a genuine issue of fact as to whether it

discriminated against the plaintiff.” Tex. Dep't of Cmty.

Affairs v. Burdine, 450 U.S. 248, 254 (1981) (internal citations

and quotation marks omitted). Finally, a plaintiff “must be

afforded the opportunity to prove” that the defendant’s proffered

nondiscriminatory reason for the alleged actions “was not its

12
true reason, but was a pretext for discrimination.” Barnette v.

Chertoff, 453 F.3d 513, 516 (D.C. Cir. 2006) (internal quotation

marks omitted). At all times, the burden of persuasion remains

with the plaintiff. Burdine, 450 U.S. at 253.

Title VII makes it unlawful for an employer to “fail or

refuse to hire or discharge any individual, or otherwise to

discriminate against any individual with respect to [her]

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1) (2006). In order to

establish unlawful discrimination, Ms. Augustus must show that:

“(1) she is a member of a protected class; (2) she suffered an

adverse employment action; and (3) the unfavorable action gives

rise to an inference of discrimination.” Wiley, 511 F.3d at 155.

To qualify as an adverse employment action, an “employee must

experience materially adverse consequences affecting the terms,

conditions, or privileges of employment or future employment

opportunities such that a responsible trier of fact could find

objectively tangible harm.” Douglas v. Preston, 559 F.3d 549,

552 (D.C. Cir. 2009).

Under Title VII, an employer is also prohibited from

discriminating against an employee who has opposed a practice

proscribed by Title VII or because she “has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this [subchapter].”

42 U.S.C. § 2000e-3(a) (2006). In order to state a prima facie

13
case of retaliation, Augustus must show that “(1) [s]he engaged

in statutorily protected activity; (2) that [s]he suffered a

material 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] ‘materially adverse’ action for purposes

of a retaliation claim is one that ‘could well dissuade a

reasonable worker from making or supporting a charge of

discrimination.’” Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C.

Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 57 (2006)).

At the summary judgment stage, once the defendant has

offered a legitimate, non-discriminatory reason for the alleged

adverse employment action, “the district court need not -- and

should not -- decide whether the plaintiff actually made out a

prima facie case under McDonnell Douglas.” Brady v. Office of

Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Instead,

the sole inquiry before the Court becomes whether the plaintiff

has “produced sufficient evidence for a reasonable jury to find

that the employer’s asserted non-discriminatory reason was not

the actual reason that the employer intentionally discriminated

against the [plaintiff] on [a prohibited basis].” Id.; see also

Jones, 557 F.3d at 678. Essentially, the McDonnell Douglas

burden-shifting analysis is no longer applied and the only

remaining issue is whether the employer discriminated against the

plaintiff. However, “the Court still first must determine

14
whether plaintiff has suffered an adverse employment action.”

Adesalu v. Copps, 606 F. Supp. 2d 97, 103 (D.D.C. 2009) (citing

Brady, 520 F.3d at 494).

In seeking summary judgment, Defendant principally attacks

Ms. Augustus’ ability to establish a prima facie case.

Specifically, Defendant argues that most of her allegations do

not amount to an adverse employment action, and that even those

that could arguably be construed as an employment action of any

kind are simply not the types of adverse action that are

actionable under Title VII. According to the Defendant, this is

fatal to plaintiff’s claims of disparate treatment and

retaliation. See Def.’s MSJ at 13-17, 21-22.

A. First EEO Complaint

In her first EEO complaint, Ms. Augustus alleged: (1)

failure to promote or increase pay after being assigned the

duties of COTR for the cafeteria contract; (2) Mr. Elznic’s

questioning of her ability to handle the COTR position in early

2008; (3) Mr. Fanning’s decision not to re-advertise her

position; and (4) the failure of Human Resources to properly

consider her COTR duties in her March 2008 desk audit.

Essentially, these allegations amount to a claim for failure to

promote.

The Court finds that Ms. Augustus has established that she

suffered an adverse employment action when she was not promoted

after being assigned COTR duties. “An ‘adverse employment

action’ within the meaning of McDonnell Douglas is ‘a significant

15
change in employment status, such as hiring, firing, failing to

promote, 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). A failure to promote constitutes an adverse

employment action even in situations where “any alleged harm is

speculative.” Douglas, 559 F.3d at 553. Moreover, in this

Circuit, a decision not to competitively advertise a position is

an adverse employment action, regardless of whether Ms. Augustus

“would have received the position but for the discrimination.”

Id. at 552 (citing Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir.

2000)).

Defendant asserts that Ms. Augustus was not promoted because

COTR duties are “collateral” and that the assignment of these

duties did not result in a significant change in her employment

status because she continued to receive pay increases in the

following years. See Def.’s MSJ at 16. Moreover, Defendant

notes that at the time Ms. Augustus accepted the assignment of

COTR duties, she knew that a pay raise or promotion was not

guaranteed. There were only two ways she could receive a

promotion -- she could compete for her position if it was re-

advertised or a desk audit could be conducted to see if a

promotion was warranted based on her job duties. Id. at 5;

Augustus Dep. at 42:4-46:23. Though Ms. Augustus’ position was

not re-advertised, a desk audit in March 2008 established that

16
her position was incorrectly classified though her grade and pay

were correct.5 See Def.’s MSJ at 5-6; 16-17. Nothing in the

record suggests that there was anything improper or

discriminatory about the way that this desk audit was conducted,

and despite Ms. Augustus’ contrary allegations, her COTR duties

were considered in determining her whether her position

classification was correct. See Augustus Dep. at 224:5-225:20.

The Court finds that Defendant has proffered legitimate,

non-discriminatory reasons as to why Ms. Augustus was not

promoted. See Montgomery v. Chao, 495 F. Supp. 2d 2, 12-13

(D.D.C. 2007) (aff'd 546 F.3d 703 (D.C. Cir. 2008)) (finding that

defendant had proffered a legitimate, non-discriminatory reason

for failure to promote after plaintiff’s accretion of COTR duties

because the results of a desk audit confirmed that plaintiff’s

position was properly classified); see also Brookens v. Solis,

616 F. Supp. 2d 81, 93-94 (D.D.C. 2009) (concluding that

defendant had met its burden of producing a legitimate,

non-discriminatory reason for selection of one applicant over

another by showing that the plaintiff did not have the

appropriate qualifications for the job). Moreover, as the

Defendant points out, Ms. Augustus received pay increases and

merit bonuses while allegedly being denied a promotion. See

Def.’s MSJ at 25. Accordingly, Ms. Augustus now bears the burden

of showing that “a reasonable jury could conclude from all of the

5
Plaintiff’s position changed from ZS-301-IV to ZS-1603-IV;
she was still in the ZS-IV grade. See Def.’s SMF 16, 17.

17
evidence that the adverse employment decision was made for a

discriminatory reason.” Lathram v. Snow, 336 F.3d 1085, 1088

(D.C. Cir. 2003).

A plaintiff can establish an inference of discrimination “by

demonstrating that she was treated differently from similarly

situated employees who are not part of the protected class.”

George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005). To that

end, Ms. Augustus contends that both of her predecessors in the

role of COTR for the cafeteria contract were white men who were

ranked higher and paid more. See Am. Compl. ¶ 8; Plaintiff’s

Opp'n at 20. However, in order to establish that her

predecessors were similarly situated, Ms. Augustus must show that

“all of the relevant aspects of her employment situation were

nearly identical” to theirs. Neuren v. Adduci, Mastriani, Meeks

& Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995) (internal quotation

marks omitted); Smith v. Jackson, 539 F. Supp. 2d 116, 135

(D.D.C. 2008). The Court finds that Ms. Augustus has failed to

do that here. The evidence presented by Defendant establishes

that both of these men “held different positions with different

job duties” than Ms. Augustus, and that neither of them were

“given a pay increase after being assigned COTR duties.” Def.’s

MSJ at 18; Elznic Decl. at 3-5. The fact that both of her

predecessors had different classifications, salaries, and job

descriptions at the time they were given COTR responsibilities

for the cafeteria contract defeats Ms. Augustus’ argument that

18
they were similarly situated. See Barbour v. Browner, 181 F.3d

1342, 1345-46 (D.C. Cir. 1999) (finding that two EPA employees

with different ranks were not similarly situated even though some

of their responsibilities were overlapping); Montgomery v. Chou,

546 F.3d 703, 707 (D.C. Cir. 2008) (deciding that employees who

did not have the same position as plaintiff and who did not

receive promotions on the basis of assignment of COTR duties were

not similarly situated to plaintiff); Bennett v. Solis, 729 F.

Supp. 2d 54, 62 (D.D.C. 2010) (concluding that plaintiff was not

similarly situated to a comparator employee who had a different

rank, even though they had been subjected to similar treatment).

Absent some evidence that other employees with her classification

and salary received a promotion or pay increase solely on the

basis of assignment of COTR duties, no reasonable jury could

conclude that Ms. Augustus’ non-promotion was the result of

unlawful discrimination.6 See Bundy v. Jackson, 641 F.2d 934,

951 (D.C. Cir. 1981) (holding that where a plaintiff alleges that
6
A plaintiff can also demonstrate pretext by offering
“evidence of discriminatory statements or attitudes on the part
of the employer.” Aka v. Washington Hosp. Ctr., 156 F.3d 1284,
1289 (D.C. Cir. 1998). Ms. Augustus attempts to do so by
asserting that Ms. McNutt told her that Mr. Fanning decided not
to re-advertise her position because he found out that she would
likely receive a promotion as a result. See Am. Compl. ¶ 13.
The only support Ms. Augustus offers for this allegation is her
own declaration. See Augustus Decl. ¶ 17. Defendant has
countered this allegation by showing that re-advertising her
position was but one method by which Ms. Augustus could receive a
promotion or pay increase. See Def.’s MSJ at 5. This sort of
conclusory, unsupported allegation is not sufficient to create a
material issue of fact. See Short v. Chertoff, 555 F. Supp. 2d
166, 173 (D.D.C. 2008) (“Mere speculation that discriminatory
animus motivated the defendant’s decision does not create a
genuine issue of fact for the jury”).

19
she was denied an increase in pay and grade, the relevant inquiry

is whether a similarly-situated person outside the plaintiff's

protected class requested and received the same kind of promotion

or increase under similar circumstances).

B. Second EEO Complaint

In her second EEO complaint, Ms. Augustus alleged that she

suffered from discrimination and retaliation for filing of her

first EEO complaint. Ms. Augustus alleges generally that after

she filed her complaint, Ms. McNutt began to question her duties

daily and regularly reminded her that she was on the pay for

performance plan. She also alleges the following specific

instances of discrimination or retaliation, all involving Ms.

McNutt: (1) a March 2009 threat to give her COTR duties to

another employee; (2) a March 2009 instruction to be seated at

her desk every morning from 7:45 a.m. to 9:00 a.m. and to leave a

note on Ms. McNutt’s door if she needed to leave for any reason;

(3) an April 2009 meeting that Ms. McNutt failed to inform her

of; (4) an April 2009 refusal to allow her to move to a larger

workspace; and (5) a charge of 45 minutes of AWOL time in May

2009 for being away from her desk and failing to leave a note.

Defendant challenges several of these allegedly

discriminatory acts on the grounds that they are not sufficiently

adverse under governing law for disparate treatment or

retaliation. Of these, the only action that Defendant concedes

could arguably be construed as “materially adverse” for the

purposes of Title VII is the 45 minutes of AWOL that Ms. Augustus

20
was charged with in May 2009. See Def.’s MJS at 15. The Court

agrees that Ms. Augustus has not made the requisite showing with

respect to most of the challenged actions, and that these

allegedly discriminatory actions did not cause a “significant

change in employment status” or “materially adverse consequences

affecting the terms, conditions, or privileges of employment.”

Douglas, 559 F.3d at 552 (internal quotation marks omitted).

This is true even with respect to those allegations that Ms.

Augustus has raised to support her retaliation claim, for which

“the concept of an adverse employment action is somewhat

broader.” Baird v. Gotbaum, 662 F.3d 1246, 1250 (D.C. Cir.

2011). The purportedly discriminatory incidents Ms. Augustus

alleges are simply not of the type that would “dissuade a

reasonable worker from making or supporting a charge of

discrimination.” Gaujacq, 601 F.3d at 577 (quoting Burlington

Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57

(2006)).

Where, as here, a plaintiff asks the Court to find

discrimination on the basis of “employment actions that do not

obviously result in a significant change in employment status,”

the plaintiff “must go the further step of demonstrating how the

decision nonetheless caused an objectively tangible harm.”

Douglas, 559 F.3d at 553. Ms. Augustus has alleged that she

suffered from stress and anxiety as a result of the

discrimination and retaliation she was subjected to; however,

such “purely subjective injuries” are not sufficient to establish

21
an adverse employment action for the purposes of Title VII. See

Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002)

(describing dissatisfaction, humiliation, and loss of reputation

as subjective injuries that do not amount to adverse employment

actions). Moreover, as the Defendant has indicated, the only

employment actions Ms. Augustus experienced during the entire

period that she was purportedly subject to disparate treatment

and retaliation were positive performance reviews and pay for

performance pay increases and one 45 minute AWOL charge. See

Def.’s MSJ at 25 (noting that plaintiff received pay for

performance increases and bonuses in 2008, 2009, and 2010).

In addition to her failure to allege tangible harm, none of

Ms. Augustus’ allegations amount to an adverse employment action

for the purposes of discrimination or retaliation. Ms. Augustus’

allegations that Ms. McNutt began to question her COTR duties and

remind her that she was on the pay for performance plan did not

affect the terms or conditions of her employment. See Bryant v.

Brownlee, 265 F. Supp. 2d 52, 61 (D.D.C. 2003) (“plaintiff’s

allegations . . . that her performance was criticized do not rise

to the level of [an] adverse employment action[]” for the

purposes of Title VII discrimination); Hunter v. Clinton, 653 F.

Supp. 2d 115, 122-123 (D.D.C. 2009) (finding that plaintiff’s

complaints of increased scrutiny were not an adverse employment

action for the purposes of discrimination or retaliation and

noting that these allegations were akin to a poor performance

evaluation). Nor are Ms. Augustus’ allegations that Ms. McNutt

22
threatened her after she filed her first EEO complaint of the

type that would “dissuade a reasonable employee” from bringing a

charge of discrimination. In the absence of any evidence of the

specific threats that she received, Ms. Augustus’ vague

allegations that she was threatened are insufficient to meet her

burden of proving a prima facie case. Relying on Supreme Court

precedent, the D.C. Circuit held in Baloch v. Kempthorne that

precisely this kind of treatment, consisting of “job-related”

criticism and “sporadic verbal altercations or disagreements,”

does not rise to the level of an adverse employment action in the

retaliation context. 550 F.3d 1191, 1199 (D.C. Cir. 2008).

Similarly, the fact that Ms. Augustus was required to sit at her

desk from 7:45 a.m. to 9:00 a.m. every morning does not

constitute an adverse employment action. See Baloch, 550 F.3d at

1198 (concluding that a requirement that a physician certify the

health problem and date of treatment each time plaintiff

submitted a request for sick leave was not materially adverse).

While the Court does not doubt that Ms. Augustus experienced

stress and anxiety as a result of these alleged incidents, in the

absence of an adverse employment action, Title VII does not

establish “a general civility code for the American workplace.”

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80

(1998).

The only allegation that Ms. Augustus made in her second EEO

complaint that could arguably be construed as an adverse

employment action is that she was charged with 45 minutes of AWOL

23
in May 2009 for being away from her desk before 9:00 a.m. As a

result of the AWOL charge, Ms. Augustus lost approximately $25.

See Def.’s Reply at 6. However, even with her strongest

allegation, Ms. Augustus has alleged a mere trivial harm, not an

adverse employment action, and certainly not the kind of action

that requires action by this Court. See Harper v. Potter, 456 F.

Supp. 2d 25, 29 (D.D.C. 2006) (holding that a seven day

suspension, while disciplinary in nature, was not an adverse

employment action because plaintiff was able to return to the

same job with the same pay status); Douglas-Slade v. Lahood, 793

F. Supp. 2d 82, 99 (D.D.C. 2011) (finding that “placement on AWOL

status for one day cannot sustain plaintiff's retaliation

claim”).

Even if the Court were to find that the 45 minutes of AWOL

constituted an adverse employment action, the defendant has

proffered a legitimate, non-discriminatory reason for Ms.

McNutt’s disciplinary action. According to Agency policy,

employees are responsible for following directives from

supervisors, and are not to disregard them. See Def.’s SMF ¶ 25;

Lane Decl. at 4. Ms. Augustus did exactly that when she was away

from her desk and did not leave a note on the morning of May 19,

2009, and she was charged with AWOL only after Ms. McNutt

consulted with Human Resources. See Augustus Dep. 75:18-76:21;

Def.’s SMF 26. Ms. Augustus has not offered any evidence to

show that these legitimate, non-discriminatory reason were

pretextual.

24
 In addition to the insufficient evidence of retaliation, the

passage of time between the filing of her administrative charge

and the first allegedly retaliatory action undermines any causal

link between the two. In this Circuit, “temporal proximity can

indeed support an inference of causation, but only where the two

events are very close in time.” Hamilton v. Geithner, 666 F.3d

1344, 1357 (D.C. Cir. 2012) (quoting Woodruff v. Peters, 482 F.3d

521, 529 (D.C. Cir. 2007)). Here, Ms. Augustus filed her first

administrative complaint in June 2008 at which time Ms. McNutt

became aware of her EEO activity. The first allegedly

retaliatory action was in March 2009, a gap of nine months.7 See

Am. Compl. ¶¶ 20, 24. While there exists no bright-line rule as

to the amount of time that is sufficient to prove a causal link,

the Court finds that nine months, especially under the

circumstances alleged, is too lengthy to establish an inference

of causation. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.

268, 273-74 (2001) (citing cases in which three and four month

intervals were not sufficient to establish causation); compare

Stone-Clark v. Blackhawk, Inc., 460 F. Supp. 2d 91, 97-98 (D.D.C.

2006) (finding that a one month interval between plaintiff's

protected activity and the alleged retaliation was sufficient to

give rise to an inference of causation).

7
Because Ms. Augustus did not exhaust the claims from her
third administrative charge, filed in 2010, the Court will not
consider the allegedly retaliatory actions that occurred after
the filing of her second administrative charge in June 2009. See
Section IV-C infra.

25
 C. Failure to Exhaust

Ms. Augustus has raised several new allegations for the

first time in her opposition to defendant's motion for summary

judgment. Most of these allegations relate to Ms. Augustus’

responsibilities as the COTR for the cafeteria contract. First,

Ms. Augustus alleges that on June 2, 2009, October 30, 2009 and

March 29, 2010, Ms. McNutt scheduled and attended meetings

relevant to the cafeteria contract without her. See Plaintiff’s

SMF ¶¶ 29, 30, 34. The following month, Ms. Augustus alleges

that Ms. McNutt refused her request for chef shoes to use while

she was working in the cafeteria. Id. ¶¶ 36, 37. After a fall

in the cafeteria on August 12, 2009, her second line supervisor

approved the request. Id. ¶ 38. On October 5, 2009, Ms. McNutt

purportedly instructed Ms. Augustus to stop inspecting food and

taking food temperatures, both of which were an integral part of

her COTR duties. Id. ¶¶ 21, 22. A few weeks later, on October

30, 2009, Ms. McNutt showed the Contracting Officer for the

cafeteria contract Plaintiff’s position description and

subsequently restricted Ms. Augustus’ ability to inspect food.

Id. ¶¶ 25, 26; Plaintiff’s Opposition Ex. 3, Decl. of Kathleen

McGrath (“McGrath Decl.”) at 3. Finally, on May 21, 2010, Ms.

McNutt e-mailed the Contracting Officer regarding the equipment

fund for the cafeteria. Plaintiff’s SMF ¶ 33. All of this was

contrary to the rules governing the cafeteria contract. McGrath

Decl. at 3-4. In addition to these allegations regarding her

26
responsibilities, Ms. Augustus alleges that Ms. McNutt retaliated

against her during the evaluation process. Plaintiff’s SMF ¶¶

62, 63. In her Opposition, Ms. Augustus argues that these

allegations support her hostile work environment claim.

Under Title VII, a plaintiff “must timely exhaust [her]

administrative remedies before bringing [her] claims to court."

Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (internal

quotation marks and citations omitted); 42 U.S.C. § 2000e-16(c).

A complainant claims are deemed exhausted for the purposes of

bringing suit in a district court “within 90 days of receipt of

the final action . . . if no appeal has been filed” or “after 180

days from the date of . . . if an appeal has not been filed and a

final action has not been taken.” 29 C.F.R. § 1604.407(a)-(b).

A final agency decision on Ms. Augustus’ third complaint was

issued in November 2011. See Def.’s Reply at 15. Ms. Augustus

did not amend her complaint in September 2010, after 180 days had

passed from the filing of her third agency complaint with no

action, and did not seek judicial review of these claims within

90 days of the final agency decision. See Def.’s Reply at 15.

Instead, she raises them here for the first time. Other courts

in this District have applied Title VII’s filing requirements

strictly, and have dismissed suits “for missing the deadline by

even one day.” Wiley v. Johnson, 436 F. Supp. 2d 91, 96 (D.D.C.

2006); see also Smith v. Dalton, 971 F. Supp. 1, 3-4 (D.D.C.

1997) (dismissing a suit for filing a complaint 91 days after

27
final agency decision); Bass v. Bair, 514 F. Supp. 2d 96, 99

(D.D.C. 2007) (two days late).

However, the 90 day window operates like a statute of

limitations, not a jurisdictional bar and is therefore “subject

to waiver, estoppel, and equitable tolling” in “extraordinary and

carefully circumscribed circumstances.” Mondy v. Sec'y of the

Army, 845 F.2d 1051, 1054-57 (D.C. Cir. 1988). No such basis

exists here, especially because Ms. Augustus was well aware of

the exhaustion requirements as a result of the dismissal without

prejudice of her retaliation claim for failing to properly

exhaust that claim. See Augustus v. Locke, 699 F. Supp. 2d 65

(D.D.C. 2010). Indeed, she filed her third agency complaint

after this Court instructed her of her obligations to exhaust her

administrative remedies. The Court therefore grants summary

judgment with prejudice with respect to these claims because

plaintiff is now time-barred from raising them in an amended

complaint or in a new action.

D. Hostile Work Environment

Plaintiff does not explicitly raise a claim of hostile work

environment in her amended complaint. However, because some of

her allegations could be interpreted as raising a claim for a

hostile work environment, Defendant argues that her claims, if

raised, would fail. A workplace is actionably hostile when it is

“permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions

28
of the victim's employment and create an abusive working

environment.” Oncale, 523 U.S. at 78 (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993)).

To establish a claim of a hostile work environment, a

plaintiff must demonstrate that: (1) she is a member of a

protected class; (2) she was subject to unwelcome harassment; (3)

the harassment occurred as a result of plaintiff's protected

status; (4) the harassment affected a term, condition, or

privilege of employment; and (5) the employer knew or should have

known of the harassment in question but nonetheless failed to

take steps to prevent the harassment or afford plaintiff prompt

remedial action. See Jones v. GlaxoSmithKline, LLC, 755 F. Supp.

2d 138, 149 (D.D.C. 2010). In making a determination, the Court

must consider the totality of circumstances, including the

frequency, severity, and offensiveness of the alleged

discriminatory conduct, and whether such alleged conduct

interfered with the plaintiff's work. Baloch, 550 F.3d at 1201.

If the working environment alleges is not one that a “reasonable

person would find hostile or abusive” then it is “beyond Title

VII’s purview.” Oncale, 523 U.S. at 81 (quoting Harris, 510 U.S.

at 21).

As far as the Court can discern, Ms. Augustus cites to the

allegations she made in support of her discrimination and

retaliation claims to support her hostile work environment claim.

See Plaintiff’s Opp'n at 22. Moreover, she alleges that all of

the claims that she raised in her third agency complaint

29
establish a hostile work environment. See Plaintiff’s Opp’n at

22. While Ms. Augustus did raise a claim of a hostile work

environment in her third agency complaint, because those claims

were not properly exhausted, she cannot rely on those allegations

now in trying to establish that she suffered a hostile work

environment. See Section IV-C supra.

None of Ms. Augustus’ properly exhausted allegations are of

the type that can support a claim for a hostile work environment.

See Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (“a

few isolated incidents of offensive conduct do not amount to

actionable harassment”); Singh v. U.S. House of Representatives,

300 F. Supp. 2d 48, 54-57 (D.D.C. 2004) (finding that plaintiff

had not established a hostile work environment where she had

alleged that her employer humiliated her at meetings, screamed at

her, told her to “shut up and sit down,” and treated her in a

hyper-critical manner, even though the treatment may have been

disrespectful and unfair). Ms. Augustus’ allegations regarding

the requirements that she be at her desk in the morning and that

she was not allowed to move to a larger workspace similarly fail

because “complaints over undesirable job responsibilities and

office arrangements do not support a hostile work environment.”

Hussain v. Gutierrez, 593 F. Supp. 2d 1, 7 (D.D.C. 2008).

In light of the demanding standard for establishing a

hostile work environment, the Court finds that Ms. Augustus has

failed to meet it. Ms. Augustus has alleged a handful of events

that purportedly occurred over a year-long period. At most, Ms.

30
Augustus’ allegations amount to the “ordinary tribulations of the

workplace,” which is not the type of claim that Title VII was

intended to remedy. Faragher v. City of Boca Raton, 524 U.S.

775, 788 (1998); see also Rhone v. United States Capital Police,

865 F. Supp. 2d 65, 71-72 (D.D.C. 2012). Indeed, as Plaintiff’s

own record reflects, the working environment may have been

frustrating and dysfunctional, but this was equally true for

plaintiff as it was for her coworkers. See Plaintiff’s Opp’n Ex.

2 at 2-3; Plaintiff’s Opp’n Ex. 5 at 2; Plaintiff’s Opp’n Ex. 6

at 3-5. Therefore, the Court grants summary judgment to the

extent that Ms. Augustus has raised a claim of hostile work

environment.

V. Conclusion

For the reasons set forth above, the Court grants

defendant's motion for summary judgment. An appropriate order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: EMMET G. SULLIVAN
UNITES STATES DISTRICT JUDGE
March 30, 2013

31