Rhodes v. Chertoff

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
SHARON RHODES, )
)
Plaintiff, )
)
v. ) Civ. Action No. 08-1414 (EGS)
)
JANET NAPOLITANO,1 Secretary )
of Department of Homeland )
Security, )
)
Defendant. )
______________________________)

MEMORANDUM OPINION

Plaintiff Sharon Rhodes has brought discrimination and

retaliation claims pursuant to Title VII of the Civil Rights Act

of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., against her

employer, defendant Department of Homeland Security. Pending

before the Court is defendant’s motion to dismiss, or, in the

alternative, to strike the complaint. Upon consideration of the

motion, the response and reply thereto, the applicable law, the

entire record, and for the reasons stated below, the Court GRANTS

IN PART AND DENIES IN PART defendant’s motion to dismiss and

DENIES AS MOOT the motion to strike.

I. BACKGROUND

Plaintiff, an African-American female, has been employed by

1
Pursuant to Federal Rule of Civil Procedure 25(d),
Secretary Napolitano, in her official capacity as the Secretary
of the Department of Homeland Security, is automatically
substituted as the named defendant.
defendant as a Management Analyst in the U.S. Immigration and

Naturalization Service Branch since 1990 or before. Compl. at 1

¶ 2.2 In her complaint, plaintiff alleges that defendant took a

variety of adverse actions against her because of her race, color,

and prior protected activity.3 See Compl. at 3-6 ¶¶ 2, 12, 21-22.

Specifically, plaintiff claims that (1) she was given

undesirable work assignments in 2005 and early 2006, which

included being assigned to work alone inventorying a warehouse

containing “rat and bird feces, water damage, dust particles and

wall to wall furniture and equipment which had been there for more

than 30 years,” Compl. at 1-2 ¶¶ 3, 6; (2) from approximately

January 2006 through August 2006, defendant conducted an

investigation into her alleged misuse of a government vehicle that

culminated with a Letter of Counseling issued in February 2007,4

see Compl. at 2 ¶¶ 6-9; (3) she, along with several other co-

workers, was drug-tested on January 23, 2007, despite the fact

2
Plaintiff’s complaint proceeds by numbering the paragraphs
one through twenty-one and then, on page three, starts again at
paragraph one in listing the allegations for each Title VII
count. For clarity, this Memorandum Opinion includes citations
to both the page of the complaint and the corresponding paragraph
number.
3
In her administrative complaint, plaintiff also checked
the boxes for “age” and “sex.” See Def.’s Ex. 2. Those bases
are not listed in the complaint before this Court, and therefore
are not a part of this action.
4
The complaint also alleges that plaintiff requested
access to vehicle logs to prove that she had abided by the
vehicle sign-out procedures, but was told the logs could not be
located. Compl. at 2 ¶ 8.

2
that personnel in her position were not normally subjected to drug

tests, Compl. at 2 ¶ 11; (4) in late January 2007, her computer,

email address, and work telephone were taken away and were not

returned until April 2007, Compl. at 2-3 ¶¶ 12, 16; and (5)

“[a]fter January” 2007, she stopped receiving work assignments and

was ignored by her co-workers, Compl. at 2 ¶¶ 13-14.

Because of a discrepancy in the record, the date of

plaintiff’s initial contact with the Equal Employment Opportunity

Commission (“EEOC”) is somewhat unclear. The EEOC Intake Form

lists the date of initial contact as March 21, 2007. Pl.’s Ex. D.

However, plaintiff’s administrative complaint, filed on June 26,

2007, lists the date of initial EEOC contact as April 9, 2007 —

the same day that plaintiff’s computer equipment was returned to

her. Def.’s Mem. at 3 & Ex. 2. The EEOC’s official investigation

began on July 13, 2007 and was concluded on September 11, 2007.

Compl. at 3 ¶ 18. Plaintiff sought an EEOC hearing on her

complaint, but on April 16, 2008, at plaintiff’s request, the EEOC

dismissed the hearing request and remanded the case to the agency

for a final decision. Compl. at 3 ¶ 20 & Ex. A. No final action

has been issued. Compl. at 3 ¶ 21.

Plaintiff filed suit in this Court on August 11, 2008,

alleging racial discrimination and retaliation under Title VII.

On February 9, 2009, defendant filed a motion to dismiss or, in

the alternative, to strike the complaint pursuant to Federal Rule

3
of Civil Procedure 11(a) on the basis that it was not signed by

plaintiff or her attorney. Defendant’s motion is now ripe for

decision.

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 8(a), a pleading

stating a claim for relief must contain “‘a short and plain

statement of the claim showing that the pleader is entitled to

relief’” in order to provide to the defendant “fair notice of the

claims against” him. Ciralsky v. CIA, 355 F.3d 661, 669, 670

(D.C. Cir. 2004) (quoting Fed. R. Civ. P. 8(a)); see also Erickson

v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (per curiam).

“[W]hen a complaint adequately states a claim, it may not be

dismissed based on a district court’s assessment that the

plaintiff will fail to find evidentiary support for his

allegations or prove his claim to the satisfaction of the

factfinder.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563

n.8 (2007). In considering a 12(b)(6) motion, the Court must

construe the complaint “liberally in the plaintiff’s favor,”

“accept[ing] as true all of the factual allegations” alleged in

the complaint. Aktieselskabet AF 21. November 2001 v. Fame Jeans

Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (alteration in original)

(quoting Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir.

2008)). Plaintiffs are entitled to “the benefit of all inferences

that can be derived from the facts alleged.” Kowal v. MCI

4
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

On a motion to dismiss for lack of subject-matter

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1),

the plaintiff bears the burden of establishing that the court has

jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992). The court must give the plaintiff’s factual allegations

closer scrutiny when resolving a Rule 12(b)(1) motion than would

be required for a Rule 12(b)(6) motion because subject-matter

jurisdiction focuses on the court’s power to hear the claim.

Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003).

Where necessary to determine whether it has jurisdiction, the

court may consider materials outside the pleadings. Alliance for

Democracy v. Fed. Election Comm’n, 362 F. Supp. 2d 138, 142

(D.D.C. 2005).

III. DISCUSSION

Defendant contends that plaintiff failed to exhaust

administrative remedies for all of the claims in her complaint,

with the exception of any claim arising out of the Letter of

Counseling she received in February 2007. Def.’s Mem. at 6-8.

According to defendant, however, this claim must also be dismissed

because the Letter of Counseling does not qualify as an adverse

employment action and, in view of defendant’s withdrawal of the

letter in August 2007, is moot. Def.’s Mem. at 4-5. Finally,

defendant argues that plaintiff’s retaliation claim must be

5
dismissed because the complaint fails to allege a causal link

between any activity protected under Title VII and a materially

adverse action taken against plaintiff by defendant. Def.’s Mem.

at 8-11. The Court will address each of these issues in turn.

A. Exhaustion of Administrative Remedies

“A federal employee filing a Title VII action must exhaust

his or her administrative remedies before seeking judicial

review.” Brodetski v. Duffey, 199 F.R.D. 14, 18 (D.D.C. 2001)

(citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 832-33 (1976)).

The administrative procedures that must be followed in this regard

are laid out in Title 29 of the Code of Federal Regulations. See

29 C.F.R. §§ 1614.101-110. In particular, an aggrieved federal

employee must initiate contact with an EEOC counselor within

forty-five days of the date of the event believed to be

discriminatory or retaliatory; for personnel actions, contact must

occur within forty-five days of the effective date of the

personnel action. Id. § 1614.105(a)(1). The EEOC counselor must

then conduct a final interview within thirty days of the

employee’s contact with the EEOC. Id. § 1614.105(d).

If the matter remains unresolved within that time frame, the

EEOC counselor is required to notify the employee of her right to

file an administrative complaint within fifteen days of such

notice. Id. An administrative complaint must be signed and

“sufficiently precise,” identifying the aggrieved person and

6
describing the basis for the complaint. Id. § 1614.106(c). The

administrative complaint may be amended at any time prior to the

conclusion of the agency’s “impartial and appropriate”

investigation, which must be conducted and completed by the agency

within 180 days of the filing of the complaint. Id. § 1614.106(d)

& (e)(2). An employee may bring a civil action within 90 days of

the receipt of notice of the EEOC’s final action or 180 days after

the filing of an administrative complaint if a final action has

not been issued. 42 U.S.C. § 2000e-16(c); 29 C.F.R.

§ 1614.407(a)-(b).

As noted above, the date of plaintiff’s initial EEOC contact

is not clear from the record. Assuming, however, that her initial

contact was the earlier date of March 21, 2007 (the date alleged

by plaintiff and indicated on the EEOC intake form), the Letter of

Counseling is the only incident raised in plaintiff’s complaint

before this Court that is clearly covered by the forty-five day

time limit set forth in 29 C.F.R. § 1614.105(a)(1). Moreover, as

defendant points out, plaintiff’s administrative complaint

explicitly relied on the Letter of Counseling as the basis for her

claims. See Def.’s Ex. 2 (“The action that was taken that I

believe was discriminatory is . . . [the] letter of Counseling

titled ‘Misuse of Government Vehicle.’”). Therefore, according to

defendant, only claims arising from the Letter of Counseling have

been properly exhausted.

7
 In her opposition to defendant’s motion, plaintiff argues

that “she did not limit her EEO administrative complaint to the

Letter of Counseling.” Pl.’s Opp’n at 5. Specifically, she

contends that (1) when she filed her administrative complaint she

was “essentially pro se,” and that that complaint should therefore

be construed liberally; and (2) the EEOC counselor’s report set

forth her claims in more detail, and that, viewing her

administrative complaint in conjunction with the EEOC counselor’s

report, “it is clear that Plaintiff filed the claims raised in her

Complaint in a timely fashion.” Pl.’s Opp’n at 5-6.

Plaintiff is correct that, in general, “[a] lenient standard

applies in evaluating whether an aggrieved party’s actions met his

or her administrative exhaustion responsibilities.” Brodetski,

199 F.R.D. at 18. The claims raised in a civil action must

nevertheless be limited to those that are “like or reasonably

related to the allegations of the [administrative complaint] . . .

and growing out of such allegations.” Park v. Howard Univ., 71

F.3d 904, 907 (D.C. Cir. 1995) (quoting Cheek v. W. & S. Life

Ins., Co., 31 F.3d 497, 500 (7th Cir. 1994)); see Ellis v.

Georgetown Univ. Hosp., Civ. No. 08-1174, 2009 WL 1916315, at *3

(D.D.C. July 6, 2009) (“‘A vague or circumscribed EEOC charge will

not satisfy the exhaustion requirement for claims it does not

fairly embrace’” because that would “‘circumvent the EEOC's

investigatory and conciliatory role, as well as deprive the

8
charged party of notice of the charge.’” (quoting Marshall v. Fed.

Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997))). In Park,

the D.C. Circuit explained the rationale for this limitation:

Although it is true that the administrative charge
requirement should not be construed to place a heavy
technical burden on individuals untrained in negotiating
procedural labyrinths, it is also true that the
requirement of some specificity in a charge is not a
mere technicality. A court cannot allow liberal
interpretation of an administrative charge to permit a
litigant to bypass the Title VII administrative process.

Id. (internal citations and quotation marks omitted).

Viewing plaintiff’s administrative complaint with these

principles in mind, the Court concludes that defendant’s

investigation of plaintiff’s allegedly improper use of a

government vehicle is sufficiently “like or reasonably related to”

the allegations in the administrative complaint to be included as

part of her claims before this Court. The administrative

complaint makes clear that the Letter of Counseling was issued as

a result of plaintiff’s alleged misuse of a government vehicle,

and a reasonable inquiry into the substance of her complaint would

have led the agency to the investigation that preceded the Letter

of Counseling. Plaintiff’s administrative complaint was

sufficient to put defendant on notice of these claims, and the

exhaustion standard has therefore been met. See Brodetski, 199

F.R.D. at 19-20 (noting that “courts require only that a[n

administrative] complaint be adequate to put the agency on notice

and that the agency be given an opportunity to respond out of

9
court,” and concluding the plaintiff had met these requirements by

submitting to the agency five detailed letters chronicling

discrete instances of alleged retaliatory employment actions

within the forty-five day time frame).

Plaintiff’s attempt to further expand the scope of her

exhausted claims by reference to the EEOC counselor’s report is

unavailing, however. Plaintiff cites Mills v. Winter, 540 F.

Supp. 2d 178 (D.D.C. 2008), in support of her contention that the

Court may properly look to the report in determining whether

particular discrimination claims have been exhausted. See Pl.’s

Opp’n at 6. The administrative complaint in that case

specifically listed two instances of discrimination, one of which

was generally described as a denial of promotion. Mills, 540 F.

Supp. 2d at 184. In a footnote, the Mills court explained that

although the administrative complaint was “unclear as to what

comprises the second incident underlying plaintiff’s

discrimination and retaliation claims,” the EEOC counselor’s

report revealed the factual basis for the denial-of-promotion

claim. Id. at 184 n.3. The court thus relied on the report only

to “interpret[t] the language of” the administrative complaint.

Id. In other words, the court in Mills did not create an entirely

new claim; it simply clarified an existing claim.

Here, the only “discriminatory action” explicitly listed in

plaintiff’s administrative complaint was the Letter of Counseling.

10
The complaint made reference to a number of other incidents, but

these allegations appeared in the section describing the “harm”

resulting from the Letter of Counseling. See Def.’s Ex. 2. In

particular, plaintiff alleged that as a result of the letter in

February 2007, plaintiff was “removed from [her] office space,

computer taken, and phone privileges eliminated.” Def.’s Ex. 2.

The administrative complaint also states that she was harmed by

the letter because plaintiff’s “associates stopped communicating

with” her and that she “was ostracized from the work environment.”

Def.’s Ex. 2. This, however, is inconsistent with plaintiff’s

civil complaint, which alleges that the confiscation of her work

equipment took place “in late January, 2007.” Compl. at 2 ¶ 12.

Plaintiff’s own complaint therefore forecloses the possibility

that the confiscation of her work equipment was caused by – or

reasonably related to – the Letter of Counseling. The timeline of

events is further clarified by reference to the EEOC counselor’s

report, which (1) confirms the allegation in the civil complaint

that the confiscation of her equipment occurred in January 2007,

and (2) makes clear that other employees had stopped communicating

with plaintiff “since January 2007.”5 See Pl.’s Ex. C.

Accordingly, the Court concludes that, except for the Letter

5
Applying the Mills approach in the instant case actually
works to plaintiff’s detriment, because the EEOC counselor’s
report resolves the conflict between the administrative and civil
complaints by confirming the untimeliness of her EEOC contact.

11
of Counseling, all of the other incidents listed in the

administrative complaint occurred outside the forty-five day time

limit that spanned from early February 2007 through March 21,

2007. Moreover, because these incidents preceded the Letter of

Counseling rather than flowed from the letter, they are

conceptually distinct and cannot be said to have grown out of the

allegations relating to the letter. These incidents are instead

“discrete acts” that were not timely raised before the agency.

See Rattigan v. Gonzales, 503 F. Supp. 2d 56, 68 (D.D.C. 2007)

(“The Title VII exhaustion requirement . . . ‘precludes recovery

for discrete acts of discrimination or retaliation that occur

outside of the statutory time period’ even when the acts ‘are

related to acts alleged in timely filed charges.’” (quoting Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 113 (2002)).6

In sum, the Court concludes that the vehicle investigation

and Letter of Counseling are the only incidents that are “fairly

embraced” within the administrative complaint and upon which a

discrimination or retaliation claim in this Court may proceed.

The remainder of plaintiff’s claims will be dismissed for failure

to exhaust administrative remedies.7

6
The same is true of the allegations in plaintiff’s
complaint relating to (1) the undesirable work assignments she
received in 2005 and 2006, (2) the drug test to which she was
required to submit in January 2007, and (3) the denial of work
assignments “after” January 2007.
7
Although defendant preemptively argues that plaintiff is
not entitled to equitable tolling, plaintiff makes no mention of

12
 B. Plaintiff’s Remaining Discrimination Claims

As a result of the investigation into plaintiff’s alleged

misuse of a government vehicle, plaintiff received and signed a

Letter of Counseling — an official written record memorializing

her misconduct. See Compl. at 2 ¶ 15. The Letter of Counseling

warned plaintiff that future misconduct could result in

disciplinary action, but also noted that the letter’s function was

to “correct . . . [and] deter” and would not be maintained in

plaintiff’s permanent record. Def.’s Ex. 1. On August 8, 2007,

defendant issued a memorandum rescinding the Letter of Counseling

and stating that the letter would be removed from plaintiff’s

employment file. Compl. at 3 ¶¶ 16, 19.

Defendant contends that any discrimination claim based on the

Letter of Counseling must be dismissed for failure to state a

claim, because (1) the withdrawal of the letter renders any claim

based on the incident moot, and (2) the letter does not constitute

an adverse employment action, a required element of a Title VII

claim of discrimination. See Def.’s Mem. at 4. The Court agrees.

Plaintiff makes only one attempt to rebut defendant’s

arguments, claiming that because the letter “has not been expunged

from” plaintiff’s personnel file, it may be used against her at a

later date. Pl.’s Opp’n at 4. But this conclusory assertion is

equitable tolling in her opposition brief. This Court therefore
declines to address the issue.

13
expressly contradicted by plaintiff’s own complaint, in which she

acknowledges that defendant issued a memorandum canceling the

Letter of Counseling and stating that the letter would

“immediately be removed from the Plaintiff’s employee file.”

Compl. at 3 ¶ 19. Plaintiff’s complaint does not allege that the

Letter of Counseling in fact remains in her personnel file, nor

does she provide any support for her contention that a

discrimination claim may proceed where the alleged harm on which

the claim is based has been remedied. To the contrary, the D.C.

Circuit has explicitly held in an analogous circumstance that an

employer may “cure” an adverse employment action before litigation

commences, thus extinguishing any discrimination claim that may

have otherwise been actionable. See Taylor v. Small, 350 F.3d

1286, 1294 (D.C. Cir. 2003) (affirming a grant of summary judgment

in favor of the employer where the plaintiff’s supervisor

“corrected the [erroneous performance] evaluation and paid the

proper bonus before” the plaintiff filed the civil complaint, and

highlighting that the goals of Title VII are served by giving

employers the opportunity to remedy workplace wrongs prior to

litigation).

The Court also agrees with defendant that even if the Letter

of Counseling were a part of plaintiff’s personnel file, the

issuance or existence of the letter does not constitute an adverse

employment action for the purposes of a discrimination claim.

14
Indeed, the caselaw in this Circuit makes clear that a written

warning or admonishment unaccompanied by discipline or any other

change in the terms or conditions of employment does not

constitute an adverse employment action. See, e.g., Brown v.

Brody, 199 F.3d 446, 458 (D.C. Cir. 1999) (affirming the district

court’s conclusion that a letter of admonishment detailing

conflicts between the plaintiff and her supervisors, but

unaccompanied by a change in grade or salary, did not constitute

an adverse employment action; noting that a “thick body of

precedent . . . refutes the notion that formal criticism or poor

performance evaluations are necessarily adverse actions”);

Brodetski, 199 F.R.D. at 21 (holding that a written warning from a

supervisor was not an adverse employment action because there was

“no evidence that the warning affected [the plaintiff’s]

employment position or status”); Walker v. Wash. Metro. Area

Transit Auth., 102 F. Supp. 2d 24, 29 (D.D.C. 2000) (concluding

that a letter of reprimand, later rescinded, was not an adverse

employment action because it did not affect the plaintiff’s grade,

salary, title, duties, benefits, or working hours); see generally

Taylor, 350 F.3d at 1293 (noting that 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’” (quoting Burlington Indus., Inc. v. Ellerth,

15
524 U.S. 742 (1998)). Plaintiff does not allege any facts from

which she could establish that she experienced a “significant

change” in her employment status after the Letter of Counseling

was issued, and she has therefore failed to plead an actionable

discrimination claim based on the letter. For these reasons, the

Court concludes that plaintiff has failed to state a

discrimination claim based on the Letter of Counseling.8

C. Plaintiff’s Remaining Retaliation Claims

To bring an actionable retaliation claim under Title VII, the

plaintiff “must show that (1) she engaged in a statutorily

protected activity; (2) she suffered a materially adverse action

by her employer; and (3) a causal connection existed between the

two.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007).

Defendant argues that any retaliation claim alleged in plaintiff’s

complaint must be dismissed for failure to state a claim, because

plaintiff fails to allege facts from which she could prove that

she suffered any adverse action that was caused by her engagement

in protected activity. Def.’s Mem. at 9-11.

Although it is well established that “‘Title VII plaintiffs

8
The Court similarly concludes that any discrimination
claim based on the investigation that preceded the Letter of
Counseling must also be dismissed for failure to state a claim.
Plaintiff’s complaint makes no allegation from which it could be
established that the investigation resulted in “a significant
change in employment status” such that it could be considered an
adverse employment action for the purposes of a Title VII
discrimination claim.

16
need not plead each element of [a] prima facie case to survive a

motion to dismiss,’” Robinson-Reeder v. Am. Council on Educ., 532

F. Supp. 2d 6, 14 (D.D.C. 2008) (quoting Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 515 (2002)), it is equally true that the

complaint “must allege facts that, if true, would establish the

elements of each claim.” Id. (internal quotation marks omitted);

see also Rattigan, 503 F. Supp. 2d at 75 (“[T]he Court may explore

the plaintiff’s prima facie case at the dismissal stage to

determine ‘whether the plaintiff can ever meet his initial burden

to establish a prima facie case.’” (quoting Rochon v. Ashcroft,

319 F. Supp. 2d 23, 29 (D.D.C. 2004), rev’d on other grounds sub

nom. Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006))). Upon

review of the complaint, the Court concludes that the liberal

pleading standard for a retaliation claim has been met.

1. Protected Activity

To establish a retaliation claim under Title VII, a plaintiff

must allege facts demonstrating that she opposed a Title VII

violation or participated in an investigation of such a violation.

See 42 U.S.C. § 2000e-3 (“It shall be an unlawful employment

practice for an employer to discriminate against any of his

employees . . . because he has opposed any practice made an

unlawful employment practice by this subchapter, or because he has

made a charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing under this

17
subchapter”). Here, plaintiff claims that she has made annual

union complaints based on discrimination and has EEOC contact “on

record” in 2003 and 2004. Compl. at 6 ¶ 21.

Defendant devotes substantial attention to arguing that

because plaintiff has not alleged any retaliatory action

postdating her most recent contact with the EEOC (beginning with

her counseling session in March or April 2007), she cannot raise a

cognizable retaliation claim. In other words, defendant argues

that plaintiff cannot establish a causal link between her filing

of the June 2007 EEOC complaint and any materially adverse action,

because none of the incidents alleged in the complaint took place

after that protected activity. Defendant’s contention is based on

an accurate statement of law, see Ginger v. District of Columbia,

477 F. Supp. 2d 41, 52 (D.D.C. 2007) (“To establish a causal

connection, the adverse connection must take place after the

employee’s protected activity.” (emphasis in original) (citing

Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006))), but a

misreading of plaintiff’s complaint. The retaliation claims in

plaintiff’s complaint are clearly based on her prior EEOC activity

in 2003 and 2004 and her union complaints. See Compl. at 6 ¶ 21.

These allegations are sufficient to establish that she engaged in

prior protected activity.9

9
Although a union complaint is not “categorically
protected” under Title VII’s anti-retaliation provision, it “may
be considered protected activity if it alleges discrimination or

18
 2. Materially Adverse Action

The complaint alleges a number of incidents that plaintiff

claims are adverse actions; namely, the change in her job duties,

the improper-use-of-a-government-vehicle investigation, the drug

test, and the confiscation of her office equipment. See Compl. at

7 ¶ 26. As discussed in Section III.A, however, the only claims

properly before this Court relate to the investigation of her

vehicle use from January to August 2006 and the resulting Letter

of Counseling she received in February 2007.

In Burlington Northern & Santa Fe Railway Co. v. White, 548

U.S. 53, 67 (2006), the Supreme Court made clear that the adverse-

action requirement for a retaliation claim is broader than the

adverse-employment-action prong of a Title VII discrimination

claim. See id. at 64 (“[T]he anti-retaliation provision [of Title

VII], unlike the substantive provision, is not limited to

discriminatory actions that affect the terms and conditions of

employment.”). A plaintiff may satisfy the second prong of a

prima facie case by showing “that a reasonable employee would have

another practice made unlawful under Title VII.” Ramey v.
Potomac Elec. Power Co., 468 F. Supp. 2d 51, 59 (D.D.C. 2006);
cf. Rattigan, 503 F. Supp. 2d at 77 n.7 (noting that “opposition
to an unlawful employment practice qualifies as protected
activity even if it may have occurred outside of the EEO context”
(internal quotation marks omitted) (citing Broderick v.
Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006)). The complaint
meets this standard by claiming that plaintiff has made
“allegations of discrimination . . . in union complaints on an
annual basis since 1995, or earlier.” Compl. at 6 ¶ 21.

19
found the challenged action materially adverse, which in this

context means it well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Id. at 68

(adopting standard articulated by the D.C. Circuit in Rochon, 438

F.3d at 1219) (internal quotation marks omitted).

Taking the facts as alleged by plaintiff as true, she was the

subject of an investigation that spanned many months in which

defendant “failed to find evidence the Plaintiff was, or had ever,

misused a government vehicle.” Compl. at 2 ¶ 10. This

investigation was followed by a Letter of Counseling which,

although it was not maintained in her file or accompanied by a

change in her employment status, threatened her with “more severe

disciplinary actions, up to and including . . . removal from the

Federal Service.” Def.’s Ex. 1. The length and scope of this

investigation and the tone of the Letter of Counseling might have

deterred a reasonable employee from engaging in protected

activity, and the adverse actions alleged in plaintiff’s complaint

therefore meet the “material adversity” standard set forth in

White. See Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C. Cir.

2006) (reversing dismissal of a retaliation claim where plaintiff

alleged “that she was subject to a lengthy investigation” during

which she was prevented from receiving promotions and quality

assignments, and concluding that the claim was not subject to

dismissal “[b]ecause a reasonable jury could find that the

20
prospect of such an investigation could dissuade a reasonable

employee from making or supporting a charge of discrimination”);

Rattigan v. Holder, 604 F. Supp. 2d 33, 52 (D.D.C. 2009)

(rejecting the defendant’s argument that a disciplinary

investigation did not constitute a materially adverse action

because it lacked the necessary “indicia of threat”; explaining

that “whether an action is ‘materially adverse’ is determined by

whether it holds a deterrent prospect of harm, and not by whether

the harm comes to pass or whether any effects are felt in the

present”).

3. Causation

With respect to the causal-link requirement of a prima facie

case, defendants rely on the fact that there is no temporal

proximity between plaintiff’s prior protected activity and the

adverse actions alleged. Def.’s Mem. at 9-10; Mitchell v.

Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985) (explaining that a

causal connection between protected activity and an adverse action

“may be established by showing that the employer had knowledge of

the employee’s protected activity, and that the adverse personnel

action took place shortly after that activity”); see Woodruff v.

Peters, 482 F.3d 521, 529 (D.C. Cir. 2007) (“Temporal proximity

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

two events are ‘very close’ in time . . . .” (quoting Clark County

School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)). This

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argument, however, ignores the fact that “a close temporal

connection is not the only way to prove causation. ‘A plaintiff

may also put forward direct evidence and disregard the presumption

and its time limitations.’” Beckham v. Nat’l R.R. Passenger

Corp., 590 F. Supp. 2d 82, 89 (D.D.C. 2008) (quoting Vance v.

Chao, 496 F. Supp. 2d 182, 186 (D.D.C. 2007)).

Plaintiff alleges that defendant initiated the vehicle

investigation and subsequently issued the Letter of Counseling in

retaliation for her 2003 or 2004 EEOC activity and/or the annual

union complaints she has made. This is sufficient to survive a

motion to dismiss. See Beckham, 590 F. Supp. 2d at 89 (denying

motion to dismiss because the plaintiff “satisfied her burden by

alleging that she was denied benefits because of her opposition to

actions made unlawful by Title VII” (emphasis in original)

(internal quotation marks omitted)); Vance, 496 F. Supp. 2d at 186

(denying motion to dismiss a retaliation claim because “[a]t this

early stage of the proceedings, plaintiff can meet her prima facie

burden of causation simply by alleging that the adverse actions

were caused by her protected activity”).

D. Defendant’s Motion to Strike the Complaint

Defendant moves in the alternative to strike plaintiff’s

complaint pursuant to Federal Rule of Civil Procedure 11(a) on the

basis that the complaint was not signed by either plaintiff or her

counsel. That error was promptly corrected by plaintiff’s

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counsel, as evidenced by the fact that the complaint now appearing

on the electronic docket, see Compl., Docket No. 1, bears the

signature of plaintiff’s counsel. The Court will therefore deny

defendant’s motion to strike as moot.

E. Punitive Damages

Finally, defendant contends that “the request for punitive

damages [in plaintiff’s complaint] should be stricken because an

award of punitive damages is beyond the Court’s jurisdiction to

award.” Def.’s Mem. at 11. Plaintiff does not oppose this

request, nor could she in view of 42 U.S.C. § 1981a(b)(1), which

bars recovery of punitive damages from a government agency in an

intentional employment discrimination suit. Therefore, section

(e) of paragraph 43 on page 8 of the complaint will be struck.

IV. CONCLUSION

For the reasons stated above, the Court GRANTS IN PART AND

DENIES IN PART defendant’s motion to dismiss and DENIES AS MOOT

defendant’s motion to strike the complaint. An appropriate Order

accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan
United States District Judge
September 23, 2009

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