Cooper v. Nielsen

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
TOSHIA COOPER, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-10 (ABJ)
)
KIRSTJEN NIELSEN et al., )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

Plaintiff, appearing pro se, filed this action against her former employer, the Federal

Emergency Management Agency (FEMA), under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et. seq., alleging race discrimination, retaliation, hostile work environment,

harassment and wrongful termination. On March 29, 2018, the Court granted defendant’s motion

for partial relief under Federal Rule of Civil Procedure 12(b)(6), dismissed the retaliation claim,

and directed plaintiff to file a revised version of her complaint to clarify the remaining claims and

to “eliminate any retaliation allegations.” Mem. Op. and Order at 5-8, 11 [Dkt. # 19] (Cooper I).

Plaintiff has filed an Amended Complaint “for Harassment, Hostile Work Environment and

Wrongful Termination Discrimination” [Dkt. # 20], and defendant has moved to dismiss or for

summary judgment. See Second Mot. to Dismiss or in the Alternative for Summ. J. [Dkt. # 22].

The Court finds (1) that defendant has advanced legitimate, nondiscriminatory reasons for

the actionable employment decision, which plaintiff has not adequately refuted; and (2) that

plaintiff’s hostile work environment claim is factually unsupported. So, the Court will grant

summary judgment to defendant for the reasons explained more fully below.
 BACKGROUND

Plaintiff is an African American woman who worked for FEMA as a GS-7 legal secretary

from October 22, 2011, to April 19, 2013, when she was terminated. Plaintiff was assigned to

the Office of the Chief Counsel’s Mission Support Division and, beginning in December 2011,

was supervised by Deputy Chief Counsel Ashley Darbo. Working full-time, plaintiff provided

administrative support to various attorneys, see Def.’s Stmt. of Material Facts as to Which There

is No Genuine Dispute (“Def.’s Facts”) ¶ 4 [Dkt. # 23], but it is Darbo’s alleged behavior that

gave rise to this action.

A. Amended Claims

In her two-count Amended Complaint [Dkt. # 20], plaintiff elaborates on the actions

alleged in the initial complaint, including in large part those supporting the dismissed retaliation

claim. Plaintiff summarizes the claims as follows:

Count One: Harassment Discrimination in Violation of Title VII

1. Harassment Claim 1 - On June 5, 2012, Plaintiff’s supervisor
adversely punished the Plaintiff and reduced her one- hour lunch to 30 min
lunch break because she engaged in Protected activity on June 5th and she
suffered adverse isolation and discrimination and was singled out, despite
other employees allowed a one-hour lunch.

2. Harassment Claim 2 - On June 5, 2012, Plaintiff’s supervisor
also falsely adversely informed the Plaintiff that she was not entitled to
two 15-minute breaks because there were no such breaks because she
engaged in Protected activity June 5th and she suffered adverse isolation
and discrimination.

3. Harassment Claim 3 - On June 14, 2012 the next following
week Ms. Darbo continued to punish and harass the Plaintiff and adversely
used the Plaintiff flexible work schedule benefits against her and falsely
accused the Plaintiff of “Gaming the system”, and “Arriving late and
leaving early” and [sic] implication of stealing government hours, because
she engaged in Protected activity on June 5th and she suffered adverse
isolation, humiliation and discrimination[.]

2
 4. Harassment Claim 4 - Letter of Reprimand - On March 7, 2013
the Plaintiff received an adverse Letter of Reprimand for sending an
enveloped package in overnight mail to a judge after she/Plaintiff was
given signed authorization from Ms. Darbo to overnight because the
Plaintiff engaged in Protected activity on June 5th and she suffered
adverse ridicule, isolation and discrimination.

Am. Compl. at 17, 18. And,

Count Three: Hostile Work Environment Discrimination in Violation of
Title VII

1. Hostile Abusive Environment Claim 1 - Plaintiff ordered to
time her work within her weekly work summary. On June 15, 2012 Ms.
Darbo ordered the Plaintiff to time her work assignment as if she was
billing a client in a law firm received from 8 attorneys she supported.
(material adverse action).

2. Hostile Abusive Environment Claim 2 - On April 9, 2013
Plaintiff was brought to tears when enforced to use her personal sick leave
for visiting the FEMA nurse and falsely advised that vising the nurse was
like “going to a personal doctor’s appointment” (material adverse action).

3. Hostile Abusive Environment Claim 3 - Plaintiff was rebelled
against excused absence/administrative leave for visiting the FEMA
nurse. On April 19, 2013 Plaintiff supervisor adversely resisted approving
Plaintiff timesheet, ordering to use her personal sick leave instead and she
cried. Plaintiff engaged in another protective activity and challenged her
supervisor by going to HR to enforce proper administrative leave approval
within Plaintiff’s timesheet for vising the site nurse (material adverse
action).

4. Hostile Abusive Environment Claim 4 - April 19, 2013 Plaintiff
was adversely withheld from her annual performance rating including a
review (immediately after Plaintiff engaged in another protected
opposition re: HR challenge to approve admin. leave for nurse visit)
(material adverse action).

5. Hostile Abusive Environment Claim 5 - April 19, 2013 Plaintiff
was intentionally wrongfully terminated without cause the same day of
opposition to HR on the basis of poor performance without producing
forewarnings of any disciplinary concerns or deficiencies during the
evaluating period of October 2011 thru September 2012 in her work.
(material adverse action)

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Am. Compl. at 18, 20-21 (italics in original); Cf. Cooper I at 2-3 (recounting same

behavior).

Defendant has countered with evidence that Darbo:

• told plaintiff in June 2012 that she could not take two 15-minute breaks
without taking leave but corrected herself a week later after seeking advice
from counsel and “never” prevented plaintiff from taking 15-minute
breaks;

• enforced against plaintiff, as of June 5, 2012, the agency’s 30-minute
lunch break policy by informing plaintiff that if she took a longer lunch
break, she would need to account for it “with leave or time worked
elsewhere in the day”;

• requested on June 15, 2012, that plaintiff provide weekly work reports for
“purposes of monitoring workload and ensuring that work is evenly
distributed” and provided plaintiff a sample report that Darbo prepared for
her supervisor;

• issued the Letter of Reprimand (LOR) to plaintiff on March 7, 2013, for
failing to follow Darbo’s instructions to double check with the requesting
attorney, Scott Dowling, before sending a package by overnight mail;

• told plaintiff, after consulting with other deputies, to use sick leave for a
visit to the agency nurse on April 9, 2013, which took at least an hour. But
after being informed by Human Resources that administrative leave is
typically used for such visits to the nurse, Darbo approved plaintiff’s time
sheet reflecting paid administrative leave, instead of sick leave;

• met on April 19, 2013, with plaintiff and Kelly Stevens from Human
Resources, where they discussed plaintiff’s performance evaluation, and
then informed plaintiff that she was being terminated for performance
deficiencies. At the time of the meeting, Darbo did not have a copy of the
performance evaluation to give plaintiff as she requested, but plaintiff was
provided a copy of the evaluation “a few days later.” Agency policy does
not mandate an in-person performance evaluation or the employee’s
receipt of said evaluation prior to termination;

• discussed performance deficiencies with plaintiff on multiple occasions in
2012 and 2013.

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See Def.’s Facts ¶¶ 5-8, 10-11; 14; 15-18; 19-21; 24; 25-32, citing FEMA’s Report of Investigation

(“ROI”) [Dkt. # 26-1] and Plaintiff’s August 12, 2015 Oral Deposition (“Cooper Dep.”) [Dkt. #

23-1].

B. Termination Decision

Plaintiff’s termination was based upon her “final evaluation for fiscal year 2012”and her

lack of improvement in the first quarter of 2013. Apr. 19, 2013 Termination Letter, ROI 282 [Dkt.

# 26-2]. On separate occasions in 2012, Darbo, Deputy Associate Chief Counsel Jeffrey Mark

Neurauter, and Principal Deputy Leigh Hoburg, to whom Darbo and Neurauter reported, had raised

performance issues with plaintiff concerning “multiple errors” and her need to: follow instructions,

prioritize, stop making decisions about projects “unilaterally,” pay attention to detail, and

communicate effectively. Defs.’ Facts ¶¶ 26-31 (recounting discussions with plaintiff on February

7, July 31, September 24, September 25, and October 31, 2012).

On February 5, 2013, Darbo specifically complained to plaintiff about disorganized file

boxes and informed plaintiff that she “needed to take better care in organizing files.” Defs.’ Facts

¶ 31. One week later, on February 12, 2013, Darbo informed plaintiff again about the need “to

improve her communication and prioritization skills,” and on February 22, 2013, Darbo informed

plaintiff “that she needed to complete a task in a more timely manner and improve her

prioritization.” Id. ¶ 32. On March 12, 2013, following the March 7, 2013 LOR, Darbo informed

plaintiff “that she needed to prioritize projects better and had failed to meet a deadline.” Id.

In the April 19, 2013, termination letter, Darbo informed plaintiff:

[Y]ou failed to meet the critical element of Communication and the
performance goals of being Solution Oriented and Articulate. . . . Your
performance has not improved in the current review period. You have
been counseled regarding your performance and we’ve discussed specific
project issues numerous times, including February 22, 2013, February 5,
2013, December 10, 2012, and November 28, 2012.

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 The work you perform has a direct effect on our ability to meet our
objectives. You were expected to be more attentive to your responsibilities
and responsive to the tasks assigned to you. After noted efforts on your
part, your produced work is not consistently well thought out, solution
oriented, and accurate to the level it needs to be to allow effective
assistance to the Branch or full utilization of your position.

Dkt. # 26-2, ECF pp. 105-06. Darbo closed by informing plaintiff of her right to file a

discrimination complaint and the availability of free counseling through the agency’s Employee

Assistance Program. Id. 283. Plaintiff was given the option of agreeing to a settlement where she

would resign instead of being fired, but she ultimately “elected not to resign and was issued [the]

termination letter.” Def.’s Facts ¶ 24.

LEGAL STANDARD

When, as here, the Court relies on matters outside the pleadings, a Rule 12(b)(6) motion to

dismiss must be treated as one for summary judgment. Fed. R. Civ. P. 12(d). Summary judgment

is appropriate “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). The party seeking

summary judgment bears the “initial responsibility of informing the district court of the basis for

its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal quotation marks omitted). To defeat summary judgment, the non-moving party must

“designate specific facts showing there is a genuine issue for trial.” Id. at 324 (internal quotation

marks omitted).

The mere existence of a factual dispute is insufficient to preclude summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a

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reasonable fact-finder could find for the non-moving party; a fact is only “material” if it is capable

of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236,

1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw

reasonable inferences ‘in the light most favorable to the party opposing the summary judgment

motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States

v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). But where, “after adequate time for

discovery and upon motion,” a plaintiff has not made “a showing sufficient to establish the

existence of an element essential to [her] case, and on which [she] will bear the burden of proof at

trial,” summary judgment “is warranted against” her. Celotex Corp., 477 U.S. at 322.

ANALYSIS

A. Race Discrimination 1

Congress enacted Title VII of the Civil Rights Act of 1964 to implement “the federal

policy of prohibiting wrongful discrimination in the Nation’s workplaces.” Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2522 (2013). The antidiscrimination provision “makes it

unlawful for an employer ‘to discriminate against any individual with respect to [her]

compensation, terms, conditions, or privileges of employment, because of such individual’s

race’” or other protected characteristics. Steele v. Schafer, 535 F.3d 689, 695 (D.C. Cir. 2008),

quoting 42 U.S.C. § 2000e–2(a).

To state a Title VII discrimination claim, the plaintiff need only establish two elements:

that “(i) [she] suffered an adverse employment action (ii) because of [her] race, color, religion,

sex, national origin, age, or disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir.

1
Title VII does not provide an independent claim for “Harassment Discrimination”; therefore,
the Court has liberally construed Count One of the Amended Complaint as plaintiff’s revised race
discrimination claim.
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2008), citing 42 U.S.C. § 2000e–16(a). The claim may be proved by direct or circumstantial

evidence. “Direct evidence of discriminatory intent alone is sufficient to survive summary

judgment.” Robinson v. Red Coats, Inc., 31 F. Supp. 3d 201, 216 (D.D.C. 2014), citing Stone v.

Landis Constr. Corp., 442 Fed. Appx. 568, 569 (D.C. Cir. 2011) (per curiam). Hence, a statement

that itself shows bias in the adverse decision is direct evidence that would generally entitle a

plaintiff to a jury trial. Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011); see

Wilson v. Cox, 753 F.3d 244, 247 (D.C. Cir. 2014) (“A statement that itself shows . . . bias in the

employment decision qualifies as direct evidence.”) (citation and internal quotation marks omitted)

(ellipsis in original).

In the absence of direct evidence, as in this case, a Title VII plaintiff must prove her

discrimination claim through the familiar burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). The evidence must show at the least that plaintiff

has protected status and the challenged employment action resulted in “materially adverse

consequences affecting the terms, conditions, or privileges of employment or future employment

opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v.

Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). A materially adverse consequence has been

described as “‘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.’” Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003), quoting Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742 (1998). Adverse employment actions may “extend beyond readily

quantifiable losses” but “not everything that makes an employee unhappy is an actionable adverse

action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). Even if actionable, an “employer

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may cure an adverse [decision] . . . before [it becomes] the subject of litigation.” Taylor, 350 F.3d

at 1293.

Plaintiff has adduced no evidence from which a reasonable jury could find or infer a

materially adverse consequence from the challenged actions, save her termination. See Cooper I

at 9-10 (dismissing discrimination claim “predicated on such things as restricted breaks, alterations

in plaintiff’s flexible work schedule, or the mandatory weekly work summaries”). Since plaintiff’s

deficient work performance -- about which the record establishes she was told repeatedly – is a

valid reason for her termination, the Court is left with the “one central inquiry” of whether plaintiff

has “produced sufficient evidence for a reasonable jury to find” that the employer’s asserted

nondiscriminatory reason was not the actual reason “and that the employer intentionally

discriminated against the plaintiff on [the] prohibited basis” of race. Adeyemi v. District of

Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008), citing Brady v. Office of Sergeant at Arms, 520

F.3d 490, 495 (D.C. Cir. 2008); see Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1154 (D.C.

Cir. 2004) (“[O]nce the defendant has responded with rebuttal evidence, the factfinder normally

proceeds to the ultimate issue on the merits to determine whether the employer intentionally

discriminated against the plaintiff.”). Plaintiff must “demonstrate by a preponderance of the

evidence that the legitimate reasons offered by the defendant were not its true reasons, but were

rather a pretext for discrimination.” Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507,

1512 (D.C. Cir. 1995).

Plaintiff seems to admit in her deposition testimony that her race had nothing to do with

Darbo’s specific actions leading up to and culminating in her termination. Cooper Dep. at 144-

147, 162. As for the weekly timed work reports, plaintiff admitted that “[p]eople who worked for

Ms. Darbo,” and even Darbo herself, were required to “turn in timed reports” and that perhaps

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weeks had passed without plaintiff having submitted a timed report. Dep. at 144:2-14. Therefore,

Darbo asked plaintiff to turn in “a report that covered the time” periods she had failed to report.

Dep. at 144:11-19. When asked to explain how that request was discriminatory, plaintiff replied:

“I wouldn’t say that that task was discriminatory based on my race[.]” Dep. at 145:5-6. Similarly,

plaintiff testified: “I don’t think the actual letter of reprimand is based on my race.” Dep. at 162:16-

17. And when asked if she “ever hear[d]” Darbo “say anything disparaging about your race” or

“about African-Americans in general,” plaintiff replied “No” to both questions. Dep. at 147:1-9.

Plaintiff adds, however:

I can say that everything Ms. Darbo had me doing that was completely out of
the norm, like the 15-minute breaks that she denied me, like peeking my head
into her office, like giving me a 30-minute lunch limit while other people was
taking an hour, and I was sometimes taking an hour and taking it with Bridget,
by the two hours we spent at Carmine’s together as a team, and you didn't
make me alter that, you didn't make me put in any leave, I find that being
discriminatory based on my race because she was singling me out to do -- not
to give me my 15-minute allotment for my breaks that I was due. And other
people was [sic] able to do it, and she didn't inform them.

Dep. at 145:7-18. Plaintiff points to Darbo’s “body language, her tone, her cutting me off,” which

“then . . . became isolation,” where she “always had to be on guard.” Cooper Dep. 147:3-5. But

these observations do not tie her supervisor’s actions to racial animus, and “petty slights or minor

annoyances that often take place at work and that all employees experience” are not themselves

actionable under Title VII. Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013), quoting

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); see Craig v. District of

Columbia., 74 F. Supp. 3d 349, 375 (D.D.C. 2014) (“Title VII offers no protection against trivial

harms, petty slights, ordinary rudeness, or minor annoyances, and it does not establish a general

civility code for the American workplace.”) (citation and internal quotation marks omitted)).

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 Plaintiff mentions disparate treatment throughout her opposition, and she testified at her

deposition that she “felt” Darbo’s discrete acts were “a racial thing because she didn’t do [the same

things] to the other white staff.” Cooper Dep. 269:5-6. A Title VII plaintiff may establish that the

employer’s asserted reasons were actually a pretext for unlawful discrimination by showing that

she was treated differently from “similarly situated individuals.” Neuren, 43 F.3d at 1514. To

move beyond summary judgment, however, plaintiff must produce evidence “that all of the

relevant aspects of her employment situation were nearly identical to those” of the white

employees she contends were treated more favorably. Id. This entails showing “that [plaintiff]

and the alleged similarly-situated employee ‘were charged with offenses of comparable

seriousness,’ and ‘that all of the relevant aspects of [her] employment situation were nearly

identical to those of the other employee.’” Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109,

1115-16 (D.C. Cir. 2016), quoting Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 301 (D.C.

Cir. 2015) (other citation omitted). “Factors that bear on whether someone is an appropriate

comparator include the similarity of the plaintiff’s and the putative comparator’s job and job duties,

whether they were disciplined by the same supervisor, and, in cases involving discipline, the

similarity of their offenses.” Id. Plaintiff has adduced no evidence of disparate treatment. She

does not identify “the . . . white people” she contends were treated more favorably and the positions

they held. Most importantly, plaintiff testified that she was the only “administrative staff under .

. . Darbo’s supervision,” Cooper Dep. at 88:1-3, thereby rendering her incapable of identifying a

suitable comparator. 2

2
“Bridget,” with whom plaintiff took hour-long lunches, Dep. at 145: 11-12, is identified in the
record as Bridget Powell, an African American secretary who was supervised by Deputy Associate
Chief Counsel Neurauter. Def.’s Facts ¶ 3.
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 In sum, plaintiff’s rebuttal to defendant’s valid, nondiscriminatory reasons for her

termination consists of conclusory statements of discrimination and self-serving conjecture based

largely on discredited allegations about inconsequential matters. So, the Court finds that defendant

is entitled to summary judgment on the race discrimination claim.

B. Hostile Work Environment

Plaintiff’s amended complaint alleges no new facts in support of her racially discriminatory

hostile work environment claim, and her core facts lack “the sort of severe [or] pervasive conduct”

to advance the claim. Cooper I at 10-11; see Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C.

Cir. 2014) (“To prevail” on a hostile work environment claim, a plaintiff “must first show that . .

. she was subjected to discriminatory intimidation, ridicule, and insult that [was] sufficiently severe

or pervasive to alter the conditions of [her] employment and create an abusive working

environment.”) (citations and internal quotation marks omitted, alterations in original)).

Nevertheless, when asked specifically about the alleged hostile work environment and how

Darbo’s actions “prevented [plaintiff] from performing [her] job duties . . . at FEMA,” Cooper

Dep. at 269, plaintiff replied that it “added stress” and “confusion”; she “was always on guard, . .

. felt demeaned . . . excluded . . . harassed and badgered.” Cooper Dep. at 269:1-4. But plaintiff’s

subjective feelings are not enough to defeat summary judgment, and she has not offered any

evidence of “objective severity,” which is “judged from the perspective of a reasonable person in

the plaintiff’s position, considering all the circumstances.” Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 81 (1998); see id. (“Conduct that is not severe or pervasive enough to create an

objectively hostile or abusive work environment—an environment that a reasonable person would

find hostile or abusive—is beyond Title VII's purview.”)

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 Similar to the complainant in Brooks, “[e]ach event [plaintiff] identifies as an example of

abusive conduct fails to add materially to the alleged aura of hostility.” Brooks, 748 F.3d at 1276.

The record establishes that Darbo promptly corrected her positions on (1) the 15-minute break

policy and “never” deprived plaintiff of that time, and (2) the appropriate leave for the nurse’s

visit, which was the only event that “brought [plaintiff] to tears.” Am. Compl. at 9. As for the

remaining events, “selective enforcement of a time and attendance policy [and workplace rules]

does not necessarily indicate conduct giving rise to a hostile work environment claim.” Brooks,

748 F.3d at 1276, citing Bhatti v. Trs. of Bos. Univ., 659 F.3d 64, 74 (1st Cir. 2011). And, absent

evidence of some tangible adverse effect, a supervisor’s “tactless and ill-mannered” behavior is

materially inconsequential. Id. at 1277. Finally, plaintiff not only admitted in her deposition to

the accuracy of the Letter of Reprimand, see Cooper Dep. at 160-63, but testified that she did not

“think” it was “based on [her] race,” Cooper Dep. at 162:16-17. So, the Court finds that defendant

is entitled to summary judgment on the hostile work environment claim as well.

CONCLUSION

For the foregoing reasons, the Court grants defendant’s motion for summary judgment. A

separate Order accompanies this Memorandum Opinion.

AMY BERMAN JACKSON
DATE: March 19, 2019 United States District Judge

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