UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
ELIZABETH RODRIGUEZ, )
)
Plaintiffs, )
) Case No. 12-CV-434 (EGS)
v. )
)
SHAUN DONOVAN, Secretary )
United States Department of )
Housing and Urban Development )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
Plaintiff Elizabeth Rodriguez, proceeding pro se, brings
this action seeking damages for alleged violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”) and the Age Discrimination in Employment Act, 29
U.S.C. § 633a (“ADEA”) based on plaintiff’s ethic background and
her age. Defendant Shaun Donovan, the Secretary of the United
States Department of Housing and Urban Development (“HUD”) moved
to dismiss. Upon consideration of the motion, the entire record
herein, and for the reasons stated below, the motion to dismiss
will be GRANTED.
I. BACKGROUND
Plaintiff filed her complaint in this Court on March 20,
2012, attaching a copy of a December 21, 2011 Final Agency
Decision regarding her EEO complaint against HUD. ECF No. 1.
Plaintiff alleges that she is a 58-year-old Mexican-American
woman. In the Complaint, plaintiff states that she does not
agree with the Final Agency Decision. She alleges that she
suffered discrimination in the form of verbal abuse, was
subjected to retaliation, her work products were unfairly
criticized, and her professional reputation was tarnished.
These actions, plaintiff alleges, caused a mental and physical
toll. The alleged discrimination and mistreatment appear to
arise from plaintiff’s disagreement as to whether her supervisor
Makia Smith-Thomas was qualified to be her supervisor. The
complaint fails to allege specific causes of action or to
specify which parts of the Final Agency Decision plaintiff seeks
to challenge and why. The complaint also fails to set forth the
grounds for the court’s jurisdiction. Because plaintiff is
proceeding pro se, the Court has considered the allegations in
the Final Agency Decision as incorporated within plaintiff’s
complaint.
On May 21, 2012, defendant moved to dismiss plaintiff’s
complaint for failure to state a claim under Rule 12(b)(6). ECF
No. 3. In the motion, defendant appears to construe plaintiff’s
complaint broadly and also incorporates claims made by plaintiff
in the Final Agency Decision. Nonetheless, defendant argues
that plaintiff has failed to exhaust administrative remedies as
to her retaliation claims. Defendant further argues that even
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if plaintiff had exhausted administrative remedies, plaintiff’s
opposition to her supervisor is not protected activity.
Defendant also contends that plaintiff’s disparate treatment
claims fail because plaintiff was not the subject of an adverse
employment decision and she was not similarly situated to the
person she alleges was treated fairly. Finally, defendant
argues that plaintiff cannot maintain a claim for hostile work
environment as a result of one alleged incident.
On June 29, 2012, the Court issued a so-called Fox/Neal
Order, advising plaintiff of her obligation to respond to
defendant’s motion to dismiss. ECF No. 4. The Court advised
plaintiff that Local Civil Rule 7(b) required her to “file a
memorandum of points and authorities in opposition to the
motion.” Id. at 1. Plaintiff was further advised that if “such
a memorandum is not filed within the prescribed time, the Court
may treat the motion as conceded.” Id. The Court directed
plaintiff to respond to the motion to dismiss by no later than
July 23, 2012.
On July 23, 2012, plaintiff filed a brief response to
defendant’s motion to dismiss. ECF No. 5. Plaintiff
essentially reiterates her claim that she was subjected to
retaliation and mistreatment, including that her work product
was criticized, and that she was required to report to Ms.
Smith-Thomas even though Ms. Smith-Thomas allegedly did not
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treat plaintiff well. Plaintiff stated that she “does not trust
HUD’s Equal Opportunity Office” and chose to go directly to this
Court with her claims instead. Plaintiff also stated that she
was seeking legal counsel “who can adequately address this
case.”
On August 9, 2012, defendant filed a reply in further
support of its motion to dismiss. ECF No. 8. Defendant argued
that plaintiff had conceded all of defendant’s arguments by
failing to respond to them and that its motion to dismiss should
be granted.
On January 11, 2013, the Court held a status conference to
address plaintiff’s efforts to obtain counsel. Plaintiff stated
that she had been speaking with an attorney but was unsure
whether she would proceed with that attorney. The Court advised
plaintiff that if she intended to obtain counsel, counsel would
be required to enter an appearance in this case by no later than
January 25, 2013, or the Court would proceed to decide the
motion to dismiss as it was currently briefed. On January 25,
2013, plaintiff contacted the Court via telephone and confirmed
that counsel would not be entering an appearance on her behalf.
Plaintiff did not indicate that she wished to file any
additional briefing.
The motion to dismiss is now ripe for the Court’s decision.
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II. STANDARD OF REVIEW
An action will be dismissed where the complaint fails to
state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002). To avoid dismissal, a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice
of what the claim is and the grounds upon which it rests.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citations omitted). “Only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing
Twombly, 550 U.S. at 556); see also Voinche v. Obama, 744 F.
Supp. 2d 165, 170–71 (D.D.C. 2010).
A pro se plaintiff's complaint will be held to “less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)); see also Koch v. Schapiro, 699
F. Supp. 2d 3, 7 (D.D.C. 2010). But even a pro se complaint
“must plead factual matter that permits the court to infer more
than the mere possibility of misconduct.” Jones v. Horne, 634
F.3d 588, 596 (D.C. Cir. 2011) (internal citations and quotation
marks omitted). Moreover, “[a] pro se complaint, like any
other, must present a claim upon which relief can be granted.”
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Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981). Even
with the liberality afforded pro se complaints, the district
court “need not accept inferences unsupported by the facts
alleged in the complaint or legal conclusions cast in the form
of factual allegations.” Kaemmerling v. Lappin, 553 F.3d 669,
677 (D.C. Cir. 2008) (quotation marks omitted).
III. DISCUSSION
“It is well understood in this Circuit that when a
plaintiff files an opposition to a motion . . . addressing only
certain arguments raised by the defendant, a court may treat
those arguments that the plaintiff failed to address as
conceded.” McMillan v. Wash. Met. Area Transit Auth., --- F.
Supp. 2d ----, 2012 WL 4845641, at *3 (Oct. 12, 2012) (citing
Howard v. Locke, 729 F. Supp. 85, 87 (D.D.C. 2010)). In her
opposition to defendant’s motion to dismiss, plaintiff fails to
address defendant’s arguments that plaintiff failed to exhaust
administrative remedies and that she failed to state a claim as
to disparate treatment and hostile work environment. Defendant
argues that these arguments have thus been conceded. Although
the Court agrees, the Court will address each argument in turn
in view of the fact that plaintiff is proceeding pro se.
A. Retaliation Under Title VII and ADEA
In her complaint, plaintiff alleges that she “was subjected
to retaliation.” In its motion to dismiss, defendant argues
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that plaintiff has failed to exhaust any retaliation claims
because they were not properly raised below. Specifically,
defendant notes that the Final Agency Decision states that
plaintiff raised the following three claims, none of which
allege retaliation:
1) Your requests for personal development and training
have been denied;
2) You have been subjected to verbal harassment and a
hostile work environment; and
3) Management has continuously denied your requests to
move to a quiet environment.
Final Agency Decision at 1. 1 Defendant argues that because these
claims do not allege retaliation, and because plaintiff provided
no evidence of challenging the administrative framing of her
claims, she has failed to exhaust administrative remedies under
Title VII. Def.’s Mot. to Dismiss at 7-8 (citing Robinson v.
Chao, 403 F. Supp. 2d 24, 31 (D.D.C. 2005) (plaintiff did not
exhaust administrative remedies that agency did not accept for
investigation); McKeithan v. Boarman, 803 F. Supp. 2d 63, 68-69
(D.D.C. 2011) (failure to respond to framing of the issues
arguably supports a finding that plaintiff failed to exhaust
administrative remedies for claims not approved by EEO)).
Similarly, defendant argues that plaintiff failed to
exhaust her retaliation claims under the ADEA, which requires
1
The Final Agency decision is attached to plaintiff’s complaint
and was docketed as ECF No. 1. The Final Agency Decision begins
on page 7 of the Complaint.
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that plaintiff either file an administrative claim or sue
directly in federal court within 180 days, as long as she gives
the EEOC a 30-day notice of intent to sue. Mot. to Dismiss at 9
(citing 29 U.S.C. § 633a(c), (d)). Defendant argues that
failure to follow either approach bars plaintiff’s claims. Id.
(citing Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003)).
Defendant contends that plaintiff failed to exhaust the
retaliation claims under the ADEA because she did not file an
administrative claim and because there is no allegation that she
provided the EEOC with notice of intent to sue.
Plaintiff’s opposition fails to respond to the exhaustion
issue except to state that plaintiff “does not trust HUD’s Equal
Opportunity Office and chose to go directly” to this Court to
pursue her discrimination claims. Pl.’s Opp. at 3.
Accordingly, the Court finds that plaintiff has failed to
exhaust administrative remedies as to her retaliation claims
under both Title VII and the ADEA. 2
2
Defendant argues, and the Court agrees, that even if plaintiff
had exhausted her retaliation claims, the underlying activity is
not protected by Title VII or the ADEA. Specifically, plaintiff
appears to allege that she was retaliated against because she
opposed Ms. Smith-Thomas as her supervisor, which she believed
as the result of a poor management decision. FAD at 9-10.
Title VII and the ADEA protect opposition to unlawful
discrimination practices, not to disagreements over management
style. See Kelly v. Mills, 677 F. Supp. 2d 206, 221 (D.D.C.
2010).
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B. Disparate Treatment Claims
1. Claims Prior to September 11, 2010
Defendant makes several arguments in support of dismissal
of plaintiff’s disparate treatment claims. Defendant first
argues that plaintiff has failed to exhaust administrative
remedies for certain disparate treatment claims under both the
ADEA and Title VII because she did not contact an EEO counselor
within 45 days of each alleged discriminatory event. See 42
U.S.C. § 2000e-16(c) (Title VII); 29 C.F.R. § 1614.105(a)(1)
(ADEA). With respect to the ADEA disparate treatment claim,
defendant argues that plaintiff failed to pursue the alternative
option of bringing a federal court action within 180 days and
providing the EEOC with a 30-day notice of intent to sue. 29
U.S.C. § 633a(c), (d). The Final Agency Decision states that
plaintiff contacted an EEO counselor on October 26, 2010. FAD
at 1. Defendant argues, therefore, that all allegations of
disparate treatment concerning denials of training and
development before September 11, 2010 are outside of the 45-day
limitations period. Mot. to Dismiss at 7. In its motion,
defendant lists three discrete claims outside of the 45-day time
period that are arguably time barred: 1) a 2007 denial of a
training opportunity to work with Senior Analyst Curt Bandle; 2)
a January 2008 conversation between plaintiff and a supervisor
in which plaintiff stated that she had been hired “as a Budget
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Analyst” but was being used as “a clerk typist;” and 3) training
and development opportunities allegedly provided to Ms. Smith-
Thomas in 2009 that none of the other staff members received.
In her opposition to the motion to dismiss, plaintiff does
not challenge defendant’s arguments that plaintiff did not
exhaust administrative remedies as to the disparate treatment
claims occurring before September 11, 2010. She does not
provide any evidence, for example, that she did bring those
claims before an EEO counselor prior to September 11, 2010. Nor
does plaintiff make any allegations about those alleged
instances of disparate treatment. Plaintiff also fails to
provide any equitable defenses for her failure to exhaust such
claims. The Court finds, therefore, that plaintiff failed to
exhaust administrative remedies under both the ADEA and Title
VII for disparate treatment claims occurring before September
11, 2010.
2. Claims After September 11, 2010
Defendant alleges that the only three possible events
constituting disparate treatment claims in the Final Agency
Decision within the 45-day limitations period are disapprovals
of three training programs. Defendant notes, however, that is
unclear from the Final Agency Decision whether approval was
denied for these programs before or after September 11, 2010.
Construing the complaint and attached Final Agency Decision in
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the light most favorable to the plaintiff, the Court will
consider those claims to have occurred after September 11, 2010.
The issue here is whether the disapprovals of training
programs can state a claim for discrimination. To establish a
prima facie case of discrimination under Title VII and the ADEA,
a plaintiff 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. Nguyen v. Mabus, --- F. Supp. 2d ----, 2012 WL
4475670, at *7 (D.D.C. Sept. 30, 2012) (citing Wiley v.
Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)). However, “an
employment discrimination plaintiff is not required to plead
every fact necessary to establish a prima facie case to survive
a motion to dismiss.” Jones v. Airline Pilots Ass’n, Int’l, 642
F.3d 1100, 1104 (D.C. Cir. 2011) (citing Swierkiewicz v. Sorema,
N.A., 534 U.S. 506, 508 (2002)). A plaintiff must, however,
plead sufficient facts to show a plausible entitlement to
relief. Spaeth v. Georgetown Univ., 839 F. Supp. 2d 57, 62-63
(D.D.C. 2012) (citing Fennell v. AARP, 770 F. Supp. 2d 118, 127
(D.D.C. 2011)). The “two essential elements for a
discrimination claim are that (i) the plaintiff suffered an
adverse employment action (ii) because of [her] race, color,
religion, sex, or national origin.” Id.
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Defendant argues these alleged denials of training
opportunities do not constitute “adverse employment action.”
Defendant argues that plaintiff has failed to allege, or even
suggest that any of the disapprovals of training actually hurt
her job performance or otherwise materially changed her
employment conditions, status, or benefits. Rather, defendant
argues, plaintiff merely speculates that she was at a
“disadvantage because [she] can now be reprimanded for not
knowing [her job] at the GS-12 level.” FAD at 2. Defendant
argues that denials of “training, experience, and promotional
advancement opportunities” that are “vague and speculative” do
not rise to the level of adverse action. Dorns v. Geithner, 692
F. Supp. 2d 119, 133 (D.D.C. 2010).
Plaintiff does not address any denial of training
opportunities in her complaint or in her opposition to
defendant’s motion to dismiss. The Court has reviewed the
information in the Final Agency Decision regarding the denial of
the three training opportunities and found that it does not
support an allegation of an adverse employment action.
Specifically, the FAD includes plaintiff’s allegation that a
supervisor told her which classes she needed to take but that
those classes were not approved. FAD at 3. There are no
allegations that plaintiff suffered an adverse employment action
as a result of the denial of training. Moreover, the Final
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Agency Decision indicates that plaintiff received more training
than any other comparators in her office. FAD at 10 (indicating
that plaintiff had attended 16 training programs between 2007-
2011; others in the office had attended 7 to 13 training
courses).
Accordingly, the Court finds that plaintiff has failed to
state a claim for discrimination as a result of the denial of
three training courses.
C. Hostile Work Environment
Defendant alleges that plaintiff’s allegation that she was
subjected to a hostile work environment also fails because she
only describes one incident. For there to be a hostile work
environment, the “workplace [must be] permeated with
discriminatory intimidation, ridicule, and insult” and the
behavior must be “sufficiently severe or pervasive [such that
it] alter[s] the conditions of the victim’s employment and
create[s] an abusive working environment.” Harris v. Forklift
Systems, 510 U.S. 17, 21 (1993). A “single incident” is
generally not severe or pervasive enough to be a hostile work
environment. Clark County School Dist. v. Breeden, 532 U.S.
268, 271 (2001). In Stewart v. Evans, this Circuit found that
an abusive and profane verbal tirade did not create a hostile
work environment because the “supervisor’s verbal barrage of
profanity was not sexually suggestive in any way or otherwise
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related to or caused by plaintiff’s gender.” 275 F.3d 1126,
1134 (D.C. Cir. 2002).
Here, plaintiff’s allegation of a hostile work environment
arises from an incident in September 2010 after plaintiff
indicated she wanted to move her desk away from Ms. Smith-
Thomas. The Final Agency decision describes the conversation:
[Plaintiff] alleged that when [plaintiff], Ms. Smith-
Thomas, and Mr. Reid met in his office, Ms. Smith-
Thomas became livid and pointed her index finger at
[plaintiff] and stated in an angry voice, “You mean
you’re not woman enough to tell me to my face that I
talk too much.” [Plaintiff] stated that Ms. Smith-
Thomas stated, “You never did like me; you’re just
like everyone else in the office.” [Plaintiff]
alleged that Mr. Reid sat there and did nothing to
stop Ms. Smith-Thomas or require her to exercise a
sense of decorum.
FAD at 3. Nothing about this incident suggests it arose from
plaintiff’s ethnic background or her age. Moreover, even if it
had, this single incident is insufficient to create a hostile
work environment. In response to defendant’s motion, plaintiff
only argues that “[i]n addition to the discrimination, plaintiff
was subjected to verbal abuse with the Director present!” Pl.’s
Opp. at 3. Plaintiff does not respond to defendant’s argument
that the single incident was not based on her age or gender, and
that the single incident cannot constitute a hostile work
environment. Accordingly, plaintiff’s claim for hostile work
environment will be dismissed.
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IV. CONCLUSION
For the reasons stated above, the Court finds that
plaintiff’s complaint alleging discrimination in violation of
Title VII and the ADEA should be dismissed. Accordingly,
defendant’s motion is GRANTED. An appropriate Order accompanies
this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
February 12, 2013
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