Gordon v. Johnson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JACQUELINE GORDON,

Plaintiff,
v. Civil Action No. 14-917 (JEB)
ELAINE DUKE, Acting Secretary,
U.S. DEPARTMENT OF
HOMELAND SECURITY,

Defendant.

MEMORANDUM OPINION

Over the past decade, pro se Plaintiff Jacqueline Gordon, an employee of the Federal

Emergency Management Agency, has filed a series of unsuccessful discrimination complaints

with the Equal Employment Opportunity Commission. Plaintiff then brought this suit, alleging

principally that her EEOC complaints triggered numerous incidents of retaliatory conduct,

including behavior among her co-workers that created a hostile work environment. Defendant

now moves to dismiss the Complaint or, alternatively, for summary judgment. The Court will

grant Defendant’s Motion to Dismiss as to several counts; as to the remainder, it concludes that

the undisputed facts also favor judgment for the Government.

I. Background

Gordon, a black woman over 40 years of age, was at all relevant times employed by

FEMA, a component of the Department of Homeland Security. See Def. MSJ, Exh. 3 (Affidavit

of Jacqueline Gordon) at 1, 8. In this suit, she reprises a long-running dispute with her employer.

Before turning to the facts at issue in this Complaint, the Court will recount the somewhat-

involved procedural history of the case.

1

A. Procedural History

As the reader will readily see, Gordon’s disenchantment with FEMA is hardly of recent

vintage. In September 2004, she filed a complaint with the EEOC alleging discrimination based

on gender, race, color, and age, as well as retaliation for prior protected activity. Gordon v.

Beers, 972 F. Supp. 2d 28, 31 (D.D.C. 2013). The EEOC found in favor of the Agency. Id.

Plaintiff believed that her EEO complaint had triggered retaliatory conduct, as well as treatment

by her colleagues and supervisors that constituted a hostile work environment. In response, she

filed a second complaint before the EEOC in January of 2007. Id. This later complaint, she

alleged, resulted in an increasingly hostile work environment. Id. Once again, the EEOC

resolved the matter in favor of DHS, and Plaintiff then brought suit (Civil Case No. 09-2211)

against the Agency in November 2009. Id. at 32-33.

In May 2011, this Court dismissed several counts of retaliation for which Plaintiff had

failed to exhaust her administrative remedies. Gordon v. Napolitano, 786 F. Supp. 2d 82, 84-85

(D.D.C. 2011). After allowing discovery on the remaining claims, the Court granted summary

judgment for DHS in September 2013, finding that Plaintiff had failed to make out a prima facie

case of retaliation and that she had cited no record evidence supporting a hostile work

environment. Beers, 972 F. Supp. 2d at 31.

Undeterred, Gordon filed a third EEO complaint in 2012. See Def. MSJ, Exh. 5 (2012

EEO Compl.). This one fared no better than the first two, as the EEOC deemed her complaint

unfounded. Id., Exh. 4 (Final Agency Decision) at 8. Plaintiff then filed this second pro se suit

on May 29, 2014, making essentially the same claims based on a new set of workplace

grievances. DHS once again moved to dismiss or for summary judgment on August 22, 2014,

see ECF No. 8, and the Court ordered Plaintiff to respond by September 12, 2014, warning that it

2

would otherwise grant the Motion and enter judgment against her. See ECF No. 9. Even after

the Court granted Gordon an extension until October 14, 2014, see Minute Order of September

12, 2014, she declined to respond. Pursuant to Local Rule 7(b), as it read at the time, the Court

then granted DHS’s Motion as conceded on October 21, 2014. See Minute Order. Nearly three

months later, Plaintiff moved for reconsideration. See ECF No. 13. In her 160-page submission,

she gave no basis for her motion — e.g., excusable neglect or new evidence — nor did she

include briefing responsive to DHS’s dispositive Motion. Instead, she attached many exhibits, a

statement of material facts, and bullet-point pages that accused the Court of corruption,

misconduct, and tampering with mail. The Court thus denied reconsideration, and Plaintiff

appealed.

In June 2017, the D.C. Circuit, apparently treating the appeal as relating to summary

judgment, remanded the case for further proceedings in light of an intervening case, Winston &

Strawn, LLP v. McLean, 843 F.3d 503 (D.C. Cir. 2016). See Gordon v. Kelly, No. 15-5084

(D.C. Cir. June 2013, 2017) (per curiam). Per Winston, a district court cannot treat motions for

summary judgment as conceded for want of opposition. Id. at 508. Rather, the court must

“satisf[y] itself that the record and any undisputed facts justify granting summary judgment.” Id.

at 507. The D.C. Circuit expressly reaffirmed, however, that a district court may “consider [a]

fact undisputed if it has not been properly supported or addressed as required by Rule 56(c).” Id.

at 507 (citing Fed. R. Civ. P. 56(e)(2)). Rule 56(c), in turn, requires that any non-moving party

support disputed facts by citing particular parts of the record, such as depositions, documents, or

affidavits, or otherwise show that materials cited establish a genuine dispute of fact.

At the time that this Court initially considered Defendant’s Motion for Summary

Judgment, Plaintiff fell far short of Rule 56(c)’s requirements. She had made no effort to submit

3

a counterstatement of material facts, as required by Local Rule 7(h)(1). Nor had she supported

the allegations in her Complaint with record citations or otherwise disputed Defendant’s factual

assertions. Even after receiving a month-long extension to address DHS’s Motion, Plaintiff

wholly failed to respond. Although Gordon later submitted a counterstatement of facts, she did

so nearly three months after the Court had granted summary judgment in favor of DHS, as part

of her Motion for Reconsideration.

After the D.C. Circuit remanded the case, this Court asked the parties for supplemental

briefing on whether to treat Defendant’s factual assertions as undisputed. See Minute Order of

July 7, 2017. In other words, the Court inquired whether it should rule on the Motion for

Summary Judgment as the record stood in October 2014 or whether it was required to look at

subsequent filings. Plaintiff responded with a four-page Motion for Relief, which rehashed

conclusory allegations from the Complaint. See ECF No. 23. She offered no argument as to

whether this Court should treat Defendant’s facts as undisputed nor any attempt to reopen the

record.

Although Winston precludes the Court from treating Defendant’s Motion as conceded,

the decision did nothing to upset a district court’s settled authority to treat facts as undisputed,

even when a party belatedly challenges them. See 843 F.3d at 507 (“[A] court must be able to

evaluate an inadequately supported assertion of material fact and deem it not materially disputed,

such that summary judgment is warranted in whole or in part.”) (quoting Grimes v. Dist.

Columbia, 794 F.3d 83, 92 (D.C. Cir. 2015)). Rather, the D.C. Circuit has long held that a

district court may exercise its discretion to “implement[] a scheduling order at the beginning of

[a case] and insist[] on its reasonable observance during litigation.” Jackson v. Finnegan,

Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 152 (D.C. Cir. 1996). In Jackson, for

4

instance, the district court denied a party’s motion to supplement his statement of material facts

in dispute, which consisted of “five one-sentence entries” and was “devoid of citations to the

record.” Id. at 148-49. Instead, the district court deemed the defendant’s recitation of the facts

“uncontroverted” and thus granted summary judgment in its favor. Id. at 149. The D.C. Circuit

affirmed, citing the court’s “prerogative to manage its docket, and its discretion to determine

how best to accomplish this goal.” Id. at 151.

At the time this Court granted summary judgment, Plaintiff had similarly failed to adhere

to the Court’s scheduling order or dispute Defendant’s facts. That the D.C. Circuit has since

remanded the case so that this Court can apply the correct legal standard does nothing to change

the facts as they existed at that time. “On remand, the decision whether to hear new evidence is

within the discretion of the trial court.” Carter Jones Lumber Co. v. LTV Steel Co., 237 F.3d

745, 751 (6th Cir. 2001); see also Modern Elec., Inc. v. Ideal Electronic Sec. Co., Inc., 145 F.3d

395, 397 (D.C. Cir. 1998) (holding district court did not abuse its discretion by denying request

to reopen the record); Otero v. Mesa Cty. Valley Sch. Dist. No. 51, 628 F.2d 1271 (10th Cir.

1980) (holding district court did not err by refusing to reopen the record when appellate court

“did not remand with directions to reopen the case”). The Court therefore considers the record

as it stood in October 2014 and treats Defendant’s statement of facts as undisputed for purposes

of summary judgment. See Federal Rule of Civil Procedure 56(e)(2).

B. Factual History

This case picks up where Gordon’s first suit left off. She again alleges that her

supervisors and co-workers retaliated against her for filing her 2004 and 2007 EEO complaints.

See Compl., ¶ 4. Principally, Plaintiff claims that her supervisors denied her a merited

promotion. Id., ¶ 5. In DHS, as with most government agencies, an employee’s pay is pegged to

5

the “General Schedule” or GS Scale, which classifies all positions and the appropriate pay. See

Def. MSJ, Exh. 6 (Affidavit of Ryan Batten), ¶ 33. At all times relevant, Plaintiff was an

employee at the GS-5 level, meaning she provided clerical and technical work in support of

management. See Compl., Exh. 2 at 12 (“Request for Upgrade of Program Support Assistant

Jacqueline Gordon”). In May 2011, Gordon requested a promotion to the GS-6 scale. Id. (At

times, the record indicates she also sought a promotion to GS-9, a classification reserved for

program analysts who substantively evaluate the effectiveness of government programs or

policies. See Batten Aff., ¶ 42.)

Plaintiff sought reclassification by way of an “accretion of duty” promotion. Id. An

employee may receive such a promotion when her position should be “reclassified at a higher

grade,” such as when “duties and responsibilities of the position have increased over a period of

time.” Wiley v. Glassman, 511 F.3d 151, 156 (D.C. Cir. 2007) (internal quotation marks

omitted). To that end, Gordon requested a “desk audit,” which “allows an employee to have her

duties independently reviewed by a human resource specialist. If the audit reveals her

responsibilities are at a higher level than her position is graded, she is promoted to the higher

level.” Chambers v. Burwell, 824 F.3d 141, 142 (D.C. Cir. 2016).

The desk audit revealed that Plaintiff’s responsibilities were indeed commensurate with

her current grade level (the GS-5 scale) and recommended against the requested promotion. See

Compl., Exh. 2 at 12. DHS therefore denied the step increase in August 2012. See Def. MSJ,

Exh. 1 (Affidavit of Eric Leckey), ¶¶ 42, 44. Plaintiff contested the Agency’s decision and (at

least before the EEOC) alleged several irregularities in the process, including 1) an undue delay

receiving the results of her desk audit, and 2) the receipt of a yearly performance evaluation from

an improper official. See 2012 EEO Compl. at 6-7. Plaintiff, moreover, claimed that she had

6

suffered several other retaliatory incidents, including an improper transfer from the Washington

Design Center to Crystal City, Virginia. Id. Finally, the Complaint alleges “[u]nlawful

[h]arassment” from her co-workers and supervisors. See Compl., ¶ 10.

Gordon also tacks on a claim for “Federal Law Whistleblower Retaliation,” which the

Court construes as a claim under the Whistleblower Protection Act. Perhaps alternatively, she

attributes the Agency’s actions to direct discrimination, not just retaliation, based on her race and

age. See Id. The Complaint also makes a passing reference to the Equal Pay Act and

discrimination on the basis of national origin.

II. Legal Standard

The Government first argues that this Court should dismiss Plaintiff’s Whistleblower

Protection Act challenge under Federal Rule of Civil Procedure 12(b)(1). To survive such a

motion, Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to

hear her claims. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 & n.3 (2006); Arpaio v.

Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). A court has an “affirmative obligation to ensure that it

is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of

Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Additionally, unlike with a motion to

dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding

whether to grant a motion to dismiss for lack of jurisdiction. . . .” Jerome Stevens Pharm., Inc. v.

FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Venetian Casino Resort, L.L.C. v.

E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005).

Turning to Plaintiff’s Equal Pay Act challenge, the Court considers whether she properly

stated a claim under Federal Rule of Civil Procedure 12(b)(6). That Rule provides for the

dismissal of an action where a complaint fails to “state a claim upon which relief can be

7

granted.” Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted).

For the remaining claims, the Government argues that the Court should treat its Motion

as one for summary judgment under Rule 56. Summary judgment may be granted if “the movant

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

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is

“material” if it is capable of affecting the substantive outcome of the litigation. See Liberty

Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris,

550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895.

III. Analysis

“Courts must construe pro se filings liberally.” Richardson v. United States, 193 F.3d

545, 548 (D.C. Cir. 1999). In that vein, this Court teases out claims under 1) the Whistleblower

Protection Act, 2) the Equal Pay Act, and 3) Title VII of the Civil Rights Act of 1964 and the

Age Discrimination in Employment Act. It addresses each in turn.

A. Whistleblower Protection Act

Plaintiff captions one count of her Complaint “Federal Law Whistleblower Protection.”

Compl., ¶ 6. Granting her the benefit of the doubt, the Court treats this claim as brought under

the relevant federal whistleblower law, the Whistleblower Protection Act, Pub. L. No. 101-12,

8

103 Stat. 16 (1989). The Court must nevertheless dismiss it for lack of subject-matter

jurisdiction.

The Whistleblower Protection Act provides “most federal agency employees with

protection against agency reprisals for whistleblowing activity, such as disclosing illegal

conduct.” Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002) (citing 5 U.S.C. § 2302(b)(8)).

For an employee to avail herself of those protections, however, she must first exhaust certain

administrative procedures. Specifically, an employee who alleges that she was the victim of a

“prohibited personnel action,” including reprisal for whistleblowing, “must first bring her claim”

to the Office of Special Counsel. Id. (citing 5 U.S.C. § 1214); see also Weber v. United States,

209 F.3d 756, 758 (D.C. Cir. 2000) (describing whistleblower-protection procedures under Title

5). The OSC will investigate the complaint, and if it finds any such prohibited personnel action,

will report its findings to the Merit Service Protection Board. Stella, 284 F.3d at 141. If the

OSC finds no agency wrongdoing, then the employee herself may bring an action before the

MSPB. Id. (citing 5 U.S.C. §§ 1214(a)(3); 1221). Even then, the MSPB’s final decision is

appealable to the Federal Circuit. Id. (citing 5 U.S.C. § 7703). “Under no circumstances does the

WPA grant the District Court jurisdiction to entertain a whistleblower cause of action brought

directly before it in the first instance.” Id.

In this case, Gordon’s suit founders at the first step. The Court sees no evidence that she

first brought her claim to the Office of Special Counsel or that she made any effort to do so.

This Court accordingly lacks jurisdiction over this whistleblower challenge and dismisses the

claim under Rule 12(b)(1).

9

B. Equal Pay Act

At the outset of her Complaint, Plaintiff alleges broadly that she faced discrimination

“based on race, color, national origin, sex, age (Over 40), Equal Pay Act, Retaliation, and

Reprisal for prior EEO proceedings and activities.” Compl. at 1. Despite this drive-by reference

to the Equal Pay Act, she never again invokes the statute, nor does she allege any behavior that

might constitute a violation thereof. Even construing Plaintiff’s pro se Complaint liberally, the

Court can detect no allegations that would state a claim cognizable by this statute.

Under the Equal Pay Act, no employer may discriminate against an employee on the

basis of sex. See 29 U.S.C. § 206(d). As the plain text makes clear, the Act applies to pay

disparities stemming from sex discrimination. “Pay disparities due to other reasons, by contrast,

are not actionable.” Kangethe v. Dist. of Columbia, 953 F. Supp. 2d 194, 203 (D.D.C. 2013).

Yet Gordon never alleges discrimination based on her sex, outside of her aforementioned

catchall reference to discrimination based on “race, color, national origin, sex, [and] age.”

Compl. at 1. Although Plaintiff claims she was denied “equal pay for equal work performed in

the same workplace,” she expressly identifies her “report of illegal activity [as] a motivating

factor in [D]efendant’s unlawful practices and unpaid wages.” Compl., ¶ 7 (emphasis added).

Later, she adds that her “race, black[,] and age[,] 59 years old, were motivating factors in the

denial of promotion and unpaid wages for equal pay for equal work.” Id., ¶ 10. Plaintiff never

once alleges that her sex motivated Defendant to pay her less or that there were men doing

similar work at FEMA who were paid more.

As a result, the Court finds that Plaintiff’s allegation of unequal pay is best treated as part

of her Title VII claims, rather than as a freestanding Equal Pay Act claim. To the extent Gordon

10

did intend to bring a separate count under the latter statute, the Court dismisses it under Rule

12(b)(6) for failure to state a claim.

C. Title VII/ADEA Claims

The Court now reaches the crux of Gordon’s Complaint: the Agency’s purported

retaliatory and discriminatory actions. Plaintiff alleges principally that her employer retaliated

against her for “participating in EEO proceedings and activities.” Compl., ¶ 10. Specifically,

she claims that Defendant declined to promote her or increase her grade level, improperly

transferred her worksite, and harassed and bullied her, all because she had reported “illegal

activity” — namely, by filing EEO Complaints. Id., ¶¶ 6-7.

While her Complaint is somewhat opaque, Gordon seems to alternatively suggest that she

also suffered direct discrimination “based on race, color, national origin, sex, [or] age.” Id. at 1.

Although Plaintiff later implies that her race and age were “motivating factors” in Defendant’s

above conduct, id., ¶ 10, she never again attributes any illegal activity to her sex or national

origin. The Court will thus not consider these latter two bases of alleged discrimination. (The

Government also contends that Gordon failed to exhaust her national-origin claim. But because

Plaintiff makes no freestanding allegations of discrimination based on “national origin,” her

problem is failure to state a claim, not failure to exhaust it.)

Turning to the merits, Title VII prohibits an employer from retaliating against an

employee “because [the employee] has opposed any practice made an unlawful employment

practice” under the statute. See 42 U.S.C. § 2000e-3(a). Similarly, the statute makes it unlawful

for an employer to “discriminate against any individual . . . because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The ADEA adds age

discrimination to the mix. See 29 U.S.C. § 623. In cases like this one, in which there is no direct

11

evidence of retaliation or discrimination, the Court must begin with the familiar three-part

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

05 (1973). See McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012). Under this

framework, the plaintiff has the initial burden of establishing by a preponderance of the evidence

a prima facie case of retaliation or discrimination.

To clear that hurdle as to retaliation, a plaintiff must plead: “(1) that he opposed a

practice made unlawful by Title VII; (2) that the employer took a materially adverse action

against him; and (3) that the employer took the action ‘because’ the employee opposed the

practice.” Harris v. D.C. Water & Sewer Auth., 701 F.3d 65, 68 (D.C. Cir. 2015) (quoting

McGrath v. Clinton, 666 F.3d 1377, 1379-80 (D.C. Cir. 2012)). But when the defendant offers a

legitimate, non-retaliatory reason for its decision, the 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, it simply looks at

whether the employee has produced sufficient evidence for a reasonable jury to conclude that the

asserted non-retaliatory or non-discriminatory justification for the action is a pretext for

retaliation. Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010).

In this case, the Court will assume that Plaintiff means to allege that Defendant’s

complained-of behavior constituted both retaliation and direct discrimination. In addition, there

is no dispute that Gordon engaged in protected activity by filing EEO Complaints. As to

transgressions, Plaintiff alleges principally that Defendant denied her an accretion-of-duties

promotion (and thereby denied “equal pay” for her “equal work”). See Compl., ¶¶ 7, 10. She

also suggests that FEMA improperly transferred her to its Crystal City office and tolerated a

hostile work environment. The Court takes each accusation in turn.

12

1. Accretion-of-Duties Promotion

“[A] refusal to promote is a materially adverse action.” Taylor v. Solis, 571 F.3d 1313,

1321 (D.C. Cir. 2013); see also Wiley, 511 F.3d at 127 (considering whether plaintiff was denied

an “accretion of duty” promotion “as a result of illegal discrimination or retaliation”). The

Government, however, offers a legitimate explanation for its denial of Plaintiff’s promotion:

quite simply, “she was not assigned, and did not complete duties, at the GS-9 level.” Def. MSJ,

Statement of Facts, ¶ 14. Although the Government references the GS-9 level (perhaps by error),

the record, including Plaintiff’s own exhibits, shows a promotion to the GS-6 level was similarly

inappropriate. The desk audit (or independent review) revealed that Gordon’s work largely

included “the management of forms, reports, and directives,” and reported “no substantial

changes in [her] position that warrant an upgrade to the GS-06 level.” Compl., Exh. 1. When a

“desk audit indicate[s] that the job was in fact” a GS-5 position, the audit qualifies as a

“nondiscriminatory (and nonretaliatory) reason for the denial.” Montgomery v. Chao, 546 F.3d

703, 707 (D.C. Cir. 2008).

Before the EEO, Plaintiff also alleged certain irregularities in the promotion process,

including 1) a delayed desk audit, and 2) receipt of a yearly evaluation from an improper official.

See 2012 EEO Compl. at 2-3. Although her Complaint makes no mention of those actions,

Plaintiff does attach email chains referencing both disputed decisions. See Compl., Exh. 1. In

an abundance of caution, the Court thus addresses the allegations.

To begin, the Court doubts that either claim, standing alone, would constitute a materially

adverse action for Title VII purposes. In any event, the Government once again offers neutral

explanations for its actions. First, Plaintiff’s desk audit became delayed after she failed to follow

the correct procedures for requesting one. See SOF, ¶ 13. In an affidavit, her supervisor avers

13

that he twice returned paperwork to Plaintiff to ensure it was properly filled out. See Leckey

Aff., ¶ 37. So too with Gordon’s allegation that an improper agency employee, Tammi Hines,

was the one who rated her during her year-end evaluation. The Government explains that Hines

rated Plaintiff because at the time, “Hines served as Plaintiff’s supervisor.” SOF, ¶ 1. As the

Deputy Privacy Officer, Hines acted as Plaintiff’s supervisor “by way of delegation” from the

Agency’s Chief Administrative Officer. See Leckey Aff., ¶ 53. In such a position, Hines had

every reason to complete the yearly performance review.

Plaintiff has offered no timely evidence to impugn any of the Government’s alleged non-

discriminatory motives. “Without such evidence, [she] cannot prove that the failed promotion

was a pretext for either discrimination or retaliation.” Wiley, 511 F.3d at 156.

2. Lateral Transfer

The same is true for Gordon’s lateral transfer from the Washington Design Center to the

Crystal City, Virginia, office. In her 2012 EEO complaint, Plaintiff alleged that the Agency

improperly transferred her in retaliation for protected activities. See 2012 EEO Compl. at 7.

Although her Complaint before this Court neglects to mention any lateral transfer, her attached

documents do include emails referencing the transfer. See Compl., Exh. 1. Once again, the

Court will construe the pleadings liberally and treat the lateral transfer as among those

“retaliatory actions” charged in the Complaint.

The D.C. Circuit recently affirmed that at least some lateral transfers (or denials thereof)

“can certainly be actionable under Title VII.” Ortiz-Diaz v. HUD, No. 15-5008, 2017 WL

3559454, at *4 (D.C. Cir. Aug. 11, 2017). Even if this transfer so qualified, however, the

Government once again offers an undisputed and non-discriminatory explanation for the action.

Crystal City had long been Plaintiff’s base of operation, and she received a temporary transfer to

14

the Washington Design Center only after lodging a harassment complaint against her supervisor,

Hines. See Leckey Aff., ¶ 60. On March 8, 2012, however, an administrative inquiry

determined that such complaint was “frivolous” and “could not be substantiated.” Id. Her

supervisor therefore concluded Plaintiff should return to the FEMA Privacy Office in Crystal

City, where all other employees were located. Id. Such a legitimate business interest defeats

Gordon’s claim in this case,

3. Hostile Work Environment

In next alleging the existence of a “Hostile Work Environment,” Gordon claims that she

endured “intense [b]ullying” by co-workers. See Compl., ¶¶ 6, 10. To prevail on such a claim, a

plaintiff must demonstrate that she was a member of a protected class and faced “discriminatory

intimidation, ridicule, and insult” that was “sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment.” Ayissi-

Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (quoting Harris v. Forklift Systems,

Inc., 510 U.S. 17, 21 (1993)). In evaluating a hostile-work-environment claim, the Court “looks

to the totality of the circumstances, including the frequency of the discriminatory conduct, its

severity, its offensiveness, and whether it interferes with an employee’s work performance.”

Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (citing Faragher v. City of Boca

Raton, 524 U.S. 775, 787-88 (1998)). By adhering to these standards, the Court thereby

“ensure[s] that [employment-discrimination law] does not become a general civility code” that

involves courts in policing “the ordinary tribulations of the workplace.” Faragher, 524 U.S. at

788 (citations and internal quotation marks omitted).

Gordon here makes a sweeping accusation of “[h]arassment for over a long period of

time that eventually le[d] up to [her] being physically assaulted while on duty at work.” Compl.

15

at 5. The Complaint offers no more particulars, but the Court assumes that the assault Plaintiff

refers to is a September 16, 2011, incident with her supervisor, Hines. According to Gordon’s

EEO complaint, Hines “[c]ornered [her] in a small Conference Room located at Crystal City, VA

and beg[a]n to harass [her] for reporting them.” 2012 EEO Compl. at 7. In an incident report

attached to the Complaint, Gordon alleged that after the “forced meeting,” Hines confronted her

in her office and physically blocked the doorway to prevent her exit. See Compl., Exh. 1.

The Government fills in the details of the September 16, 2011, incident. In its undisputed

account, Plaintiff “got upset when she was directed to make changes on a document that was to

be given to a high-level agency official.” SOF, ¶ 23. In an affidavit, Hines averred that the

September 16, 2011, meeting was a “walk through” discussion of a major presentation. See Def.

MSJ, Exh. 5 (Affidavit of Tammi Hines), ¶ 62. Hines apparently asked Plaintiff to input minor

changes to the presentation, as discussed during the meeting. Id. Gordon resisted, arguing the

task fell outside her job description. Id. After the meeting, Hines stopped by Plaintiff’s office

“to ask if she understood the task and if she had any questions.” Id.

Treating these as undisputed facts, Plaintiff’s allegations fall far short of establishing

“discriminatory intimidation, ridicule and insult” that is “sufficient severe or pervasive to alter

the conditions of the victim’s employment and create an abusive working environment.” Harris,

510 U.S. at 21 (citation and internal quotation marks omitted). Rather, her dispute with a

supervisor falls within “the ordinary tribulations of the workplace.” Faragher, 525 U.S. at 788

(internal quotation marks omitted). This is true even if the Court considered Plaintiff’s

allegations as accurate.

The Complaint is silent as to other instances of bullying or harassment, and Plaintiff’s

223 pages of supporting documents make scant reference to specific incidents. In its Motion for

16

Summary Judgment, DHS generously addresses allegations in Plaintiff’s 2012 EEO complaint,

including: 1) a co-worker shouting at her in an angry voice, 2) being told, “Nobody likes you”;

and 3) A co-worker screaming at Plaintiff about the scope of her job duties. See Def. MSJ at 27.

Plaintiff’s Complaint, however, never alludes to those allegations, nor does it incorporate or

reference her 2012 EEO complaint. The allegations, accordingly, are not properly before this

Court. In any event, even considered in toto, they amount at most to “a few isolated incidents of

offensive conduct.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002). The “cumulative

effect of many de minimus harms” still does not amount to a hostile work environment. Dudley

v. Wash. Metro. Area Transit Auth., 924 F. Supp. 2d 141, 172 (D.D.C. 2013).

In addition, if Plaintiff had effectively alleged treatment that rose to the level of a hostile

work environment, her claim would still fail for want of a causal nexus between her protected

status or activity and the alleged mistreatment. Title VII does not ban all workplace hostility;

instead, it makes employers liable only when hostility is directed at a protected class or those

engaging in protected activities. Put another way, “the plaintiff must establish a causal

connection between the harassment and her protected activity [or status] to succeed on the

claim.” Lewis v. District of Columbia, 653 F. Supp. 2d 64, 81 (D.D.C. 2009). “There is an

evidentiary component to this principle: evidence that bears no connection to the plaintiff’s

protected status cannot support a hostile work environment claim.” Mason v. Geithner, 811

F. Supp. 2d 128, 179 (D.D.C. 2011) (internal citations omitted).

Here, Gordon has provided no evidence supporting her conclusory allegations that the

Agency treated her poorly in retaliation for her protected activity or because of her race or age.

Based on the evidence proffered – or, more precisely, the lack thereof – and drawing all

reasonable inferences in favor of Plaintiff, the Court finds that she has failed to raise a genuine

17

dispute of fact regarding a hostile work environment. In these circumstances, the Court must

grant Defendant’s Motion with respect to that claim as well.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s Motion to Dismiss without

prejudice with respect to the Whistleblower Protection Act claim for failure to exhaust

administrative remedies. It will also dismiss without prejudice Plaintiff’s Equal Pay Act claim

for failure to state a claim upon which relief can be granted. Finally, it will grant Defendant’s

Motion for Summary Judgment as to the retaliation and discrimination claims. A

contemporaneous Order so stating will issue this day.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge

Date: August 24, 2017

18