Clinton v. Perry

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RITA CLINTON,

Plaintiff,

v.
No. 19-cv-01674 (DLF)
DAN BROUILLETTE, in his official
capacity as Secretary of the United States
Department of Energy,

Defendant.

MEMORANDUM OPINION

Rita Clinton brings this action against Dan Brouillette in his official capacity as the

Secretary of the United States Department of Energy (“the Department”). 1 She alleges that

while working for the Department she was subjected to a hostile work environment in violation

of Title VII, 42 U.S.C. § 2000e, et seq. (Title VII). Before the Court is the Department’s Motion

to Dismiss or, in the Alternative, for Summary Judgment. 2 Dkt. 9. For the reasons that follow,

the Court will grant the motion.

1
When this suit began, Rick Perry was the Secretary of the Department of Energy. When Dan
Brouillette became the Secretary, he was automatically substituted as the proper defendant. See
Fed. R. Civ. P. 25(d).
2
Also before the Court is Clinton’s Motion for Leave to File Surreply, Dkt. 15, to respond to the
facts and exhibits attached to the Department’s reply, see id. at 2–3; see also Def’s Resp. to Pl.’s
Statement of Material Facts in Dispute, Dkt. 14-1; Def.’s Ex. A, Dkt. 14-2; Def.’s Ex. B, Dkt.
14-3. Because the Court will not consider those materials in ruling on the Department’s motion,
the Court will deny the plaintiff’s request to file a surreply.
I. BACKGROUND

A. Factual Background

From June 2010 to July 20, 2017, the Department of Energy employed Clinton in a

Senior Executive Service position in the Department’s Office of the Chief Human Capital

Officer. 3 See Compl. ¶ 16, Dkt. 1; Def.’s Statement of Material Facts As to Which There is No

Genuine Material Dispute (“Def.’s Statement of Facts”) ¶ 1, Dkt. 9-1. Specifically, Clinton was

the Director of Human Capital Policy and Accountability, and was responsible for “managing

operations, influencing DOE-wide policy and planning related decisions, and exercising full

managerial authority and aggressive integration of all human capital policies.” Id. ¶¶ 1–2.

Clinton’s immediate supervisor was Tonya Mackey, the Deputy Chief Human Capital Officer.

Id. ¶ 3.

In November 2016, Mackey was informed by both her staff and staff in the Department’s

Office of Environment, Health, Safety, and Security that 87 suitability determination cases had

been emailed to Clinton but had not been adjudicated. Id. ¶ 14. This led Mackey to meet with

Clinton and ask her about this backlog, see id. ¶ 15, though the parties dispute whether Clinton

denied receiving the emails in question, compare id., with Pl.’s Response to Def.’s Statement of

Undisputed Material Facts (“Pl.’s Statement of Facts”) ¶ 15, Dkt. 12-1. Mackey chose to further

investigate the issue and requested a search of Clinton’s email account, which the Department’s

Office of the General Counsel approved due to evidence of potential misconduct. See Def.’s

Statement of Facts ¶¶ 16–18.

3
The Court cites to the defendant’s statement of facts if a fact is undisputed. If a fact is disputed,
the Court will indicate as such.

2
 Meanwhile, Clinton expressed interest in being detailed to another office within the

Department of Energy. See id. ¶ 4. In December 2016, Clinton requested a detail to the

Bonneville Power Administration as Human Resources Director, but Mackey told Clinton that

her current role was an essential one, which meant a candidate was needed for Clinton’s current

position before Clinton could be detailed. Id. Mackey instructed Clinton to draft an expression

of interest announcement for a detail to Clinton’s current position that could be shared with

potential candidates. Id. ¶ 8. Mackey also directed Clinton to simultaneously draft an expression

of interest announcement for a vacant position within Clinton’s office. Id. ¶ 10. The parties

dispute whether individuals in Senior Executive Service positions are typically involved in

preparing expression of interest announcements. Compare id. ¶ 9, with Pl.’s Statement of Facts ¶

9. Regardless, Clinton submitted a draft announcement for her position on January 4, 2017,

Def.’s Statement of Facts ¶ 11, and for the vacant position on January 17, 2017, id. ¶ 12.

Mackey edited the drafts and returned both to Clinton on January 24, 2017, and the

announcements were circulated on January 26, 2017 and January 31, 2017. See id. ¶¶ 11–13.

On January 23, 2017, “a government-wide hiring freeze” was issued which mandated that

“no vacant position could be filled or created.” Id. ¶ 5. Positions were not considered vacant if a

candidate for that position “had received an offer of employment prior to noon on January 27,

2017, had accepted the position, and had a designated start date on or before February 22, 2017.”

Id. The parties dispute whether Clinton’s detail request could have been acted upon

notwithstanding the freeze, compare id. ¶¶ 5–7, with Pl.’s Statement of Facts ¶¶ 5–7, but they do

not dispute that Clinton’s detail request was delayed, see Def.’s Statement of Facts ¶ 7; Pl.’s

Statement of Facts ¶ 7.

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 Soon there were several developments within the office that troubled Clinton. One of

Clinton’s employees had been detailed to another office shortly before the hiring freeze went into

effect, Def.’s Statement of Facts ¶¶ 19–20, and Clinton believed the loss of this staffer would

make it more difficult for her to fulfill her responsibilities, see Compl. ¶ 33. Mackey also

questioned Clinton about a recent policy change to the Department’s ePerformance system,

though the parties dispute whether Mackey inaccurately accused Clinton of implementing this

policy and making errors with respect to that implementation. Compare Def.’s Statement of

Facts ¶¶ 22–23, with Pl.’s Statement of Facts. ¶¶ 22–23.

Clinton also expressed frustration with one of her employees participating in a call with

the Office of Personnel Management at the behest of a senior leader within the Office of the

Chief Human Capital Officer. See Def.’s Statement of Facts ¶ 31; Pl.’s Statement of Facts. ¶ 31.

Mackey met with both Clinton and Clinton’s employees to discuss the issue. Def.’s Statement of

Facts ¶ 31. In that meeting, Mackey stressed the importance of open communication but

instructed Clinton that “leadership should be able to go to subordinate employees if they need

assistance.” Id. ¶ 32.

There were also problems with Clinton’s performance plan for FY2017. The parties

dispute whether Clinton or Mackey was responsible for developing Clinton’s performance plan.

Compare Def.’s Statement of Facts ¶ 27, with Pl.’s Statement of Facts ¶ 27. But they do not

dispute that on March 20, 2017, Mackey asked Clinton to send her Clinton’s draft performance

plan, that Clinton did so, and that Mackey returned the plan to Clinton with edits. Def.’s

Statement of Facts ¶¶ 28–29. Mackey also asked Clinton to input the plan into the Department’s

electronic performance management system, but Clinton did not do so. Id. ¶ 30.

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 On April 20, 2017, Clinton received a Notice of Proposed Removal based on a lack of

candor charge that stemmed from the investigation into the suitability determination backlog.

See id. ¶¶ 24, 38–39. Clinton was escorted out of the office by security at noon that day. Id.

The parties dispute whether the Department has a regular practice of escorting employees out of

the office following the issuance of a Notice of Proposed Removal. Compare id. ¶ 26, with Pl.’s

Statement of Facts ¶¶ 25–26.

Clinton’s removal from federal service became effective on July 20, 2017. Def.’s

Statement of Facts ¶ 43. On July 26, 2017 she submitted an affidavit to the District of

Columbia’s Department of Employment Services in support of her claim for unemployment

benefits. See id. ¶ 33. Her affidavit indicated that the reason she had been removed from her

position at the Department of Energy was “misconduct – ‘lack of candor,’” id. ¶ 34, and

Clinton’s unemployment claim was eventually denied as a result, see id. ¶ 36.

Prior to being issued her Notice of Proposed Removal, Clinton had contacted an Equal

Employment Opportunity (EEO) counselor, and on April 17, 2017, she filed a formal EEO

complaint alleging unlawful discrimination and harassment in retaliation for prior EEO activity,

and on the basis of her age, race, and sex. See id. ¶¶ 47–48. After completing an investigation

into Clinton’s claims, the Department of Energy issued a final decision on March 12, 2019

concluding that Clinton was not entitled to any relief because the record did not “show by a

preponderance of the evidence that [Clinton] was subjected to discrimination and/or harassment

based on age, race, and/or sex or that she was subjected to retaliation based on her prior EEO

activity.” 4 Id. ¶ 54.

4
Clinton amended her EEO complaint to include her removal from federal service, but that issue
was dismissed from Clinton’s EEO complaint on May 16, 2018, Def.’s Statement of Facts ¶ 52,

5
 B. Procedural History

Clinton filed this action on June 7, 2019. See Compl. In her complaint, Clinton asserts

three hostile work environment claims under Title VII, alleging that she was subjected to a

hostile work environment on the basis of her sex, her race, and as retaliation for prior EEO

activity. See id. at 7–10. On December 12, 2019, the Department filed this motion to dismiss or,

in the alternative, for summary judgment. See Dkt. 9.

II. LEGAL STANDARDS

Rule 12(d) provides that “[i]f, on a motion under Rule 12(b)(6) …, matters outside the

pleadings are presented to and not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). Here, both parties have submitted

materials outside of the pleadings. See, e.g., Pl’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s

Opp’n”) at 1–3, 4, 7–8, Dkt. 12 (stating that the Department’s motion should be treated as one

for summary judgment and referencing materials outside the pleadings); Pl.’s Mot. for Leave to

File Surreply at 4–5 (contending “[i]t is axiomatic” that the Department’s motion should be

treated as one for summary judgment). “Accordingly, the Court will review Defendant’s entire

motion under the summary judgment standard, because ‘the defendant’s motion was in the

alternative for summary judgment and … the parties had the opportunity to submit and submitted

materials in support and in opposition.’” Conant v. Wells Fargo Bank, N.A., 24 F. Supp. 3d 1, 11

(D.D.C. 2014) (quoting Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1273 n.5 (D.C.

Cir. 1997) (alterations omitted)).

and is the basis of a separate action, see Clinton v. Perry, No. 18-cv-991 (D.D.C. filed Apr. 26,
2018). As a result, Clinton’s ultimate removal from federal service is not relevant to the claims
here.

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 Under Rule 56, summary judgment is appropriate if the moving party “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). A “material” fact is one that could affect the outcome of the lawsuit. See id. at 248;

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is “genuine” if a reasonable

jury could determine that the evidence warrants a verdict for the nonmoving party. See Liberty

Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. In reviewing the record, the court “must

draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,

150 (2000). A party “opposing summary judgment” must “substantiate [its allegations] with

evidence” that “a reasonable jury could credit in support of each essential element of [its]

claims.” Grimes v. District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015). The moving party is

entitled to summary judgment if the opposing party “fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III. ANALYSIS

To establish a discriminatory or retaliatory hostile work environment claim, Clinton must

show that the Department subjected her “to ‘discriminatory intimidation, ridicule, and insult’ that

is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create

an abusive working environment.’” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir.

2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); see also Bergbauer v.

Mabus, 934 F. Supp. 2d 55, 79, 82–83 (D.D.C. 2013) (collecting cases establishing that “the

same legal standard” applies to discriminatory and retaliatory hostile work environment claims).

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In assessing a hostile work environment claim, courts examine “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, 550 F.3d at 1201. Title VII is not a

“general civility code”; the conduct “must be extreme [enough] to amount to a change in the

terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) (internal quotation marks omitted); see also Baloch, 550 F.3d at 1201. The conditions

must be both “objectively and subjectively hostile, meaning that a reasonable person would find

[the work environment] hostile or abusive, and that the victim must subjectively perceive the

environment to be abusive.” Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 237 (D.C.

Cir. 2018) (internal quotation marks omitted).

Clinton bases her hostile work environment claims on the following incidents, all of

which took place over a few months: (1) “the delay and denial of a detail [o]pportunity”; (2) “an

investigation of [Clinton’s] email account without [her] knowledge”; (3) her “staff employee

being detailed away to a different office . . . without [Clinton]’s consent”; (4) Mackey’s

“baseless allegations” that Clinton had made mistakes in implementing a policy change

regarding the Department’s ePerformance system; (5) her escort out of the office “in the middle

of the day, after receiving a notice of proposed removal”; (6) Mackey requiring Clinton “to

prepare an expression of interest announcement for her detail”; (7) the Department’s “failure to

provide [Clinton] with performance standards and a performance plan for FY2017”; (8) the

March 2017 meeting in which Mackey “undermin[ed] [Clinton]’s ability to manage her

employees”; and (9) the Department “preventing [Clinton]’s unemployment claim from being

processed.” See Pl.’s Opp’n at 2.

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 Far from “the kind of ‘extreme’ conditions that this Court and the Supreme Court have

found to constitute a hostile work environment,” Hill, 897 F.3d at 237, most of Clinton’s

complaints—including those about the delay and denial of her detail, her employee being

detailed elsewhere, being asked to prepare an announcement for her own detail, and feeling

undermined by supervisors during a meeting in front of her employees—are “ordinary

tribulations of the workplace.” See Faragher, 524 U.S. at 788 (internal quotation marks

omitted); see also Rattigan v. Gonzales, 503 F. Supp. 2d 56, 81 (D.D.C. 2007) (denials of

“requests for additional resources despite an increased workload” were insufficient for hostile

work environment claim); Veitch v. England, 471 F.3d 124, 130–31 (D.C. Cir. 2006) (failure to

promote, the assignment of unappealing duties, and criticisms by supervisor were insufficient for

hostile work environment claim). Clinton insists that her supervisors scrutinized her work

“excessive[ly]” and made “baseless” criticisms about it. Pl.’s Opp’n at 2, 19. For example,

Clinton claims she was questioned about a policy change to the Department’s ePerformance

system “in a manner which indicated . . . that Clinton had implemented the change and indicated

that Clinton had made an error.” Id. at 12. But the Department denies accusing Clinton of

implementing these changes and says she was “simply asked . . . for more information” about

them. See Def.’s Mem. in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J. at 15,

Dkt. 9. Even crediting Clinton’s account of the events, as the Court must, this conduct was not

sufficiently severe or pervasive to give rise to support a hostile work environment claim. Nor

has Clinton shown that the Department’s investigation was tied to any discriminatory or

retaliatory act. 5

5
Clinton has introduced evidence that the Department was aware of her race, sex, and prior EEO
activity, see, e.g., Pl.’s Opp’n at 11–12, 27, but that awareness, without more, does not transform

9
 Clinton relies heavily on Coulibaly v. Kerry to support her hostile work environment

claim, but in that case an employee presented substantiated evidence of constant questioning and

criticism from supervisors for over a year. 213 F. Supp. 3d 93, 148–50 (D.D.C. 2016). Here,

Clinton has not adequately substantiated her claim that it was improper for the Department to

investigate an allegation of potential misconduct. See Def.’s Ex. 10 at 3, Dkt. 9-11. Román v.

Castro, 149 F. Supp. 3d 157, 169 (D.D.C. 2016) (“Legitimately investigating an employee for

suspected misconduct is generally not grounds for a hostile work environment claim.”). And

Clinton’s comparison of her work environment at the Department to that in Ashraf-Hassan v.

Embassy of France in United States is also inapt. See 999 F. Supp. 2d 106 (D.D.C. 2013).

There, the plaintiff’s supervisors referred to the plaintiff by a racial epithet, required her to fulfill

other employees’ responsibilities, did not permit her to participate in organizational events, and

took away her access to an office and email account. See id. at 113–15 .

Clinton further contends that she was “singled out” by Mackey’s requirement that Clinton

generate the initial draft of her own performance plan and standards for FY2017. According to

Clinton, the Department’s policies required supervisors “to develop performance plans in

consultation with senior executives” like Clinton. Pl.’s Opp’n at 16–17 (emphasis in original). It

the Department’s actions into the type of discriminatory intimidation, ridicule, or insult “that a
reasonable person would find hostile or abusive,” see Harris, 510 U.S. at 21; see also Nurriddin
v. Goldin, 382 F. Supp. 2d 79, 107 (D.D.C. 2005) (“[M]any bosses are harsh, unjust, and rude, it
is therefore important in hostile work environment cases to exclude from consideration personnel
decisions that lack a linkage of correlation to the claimed ground of discrimination.”) (internal
quotation marks omitted). While Clinton emphasizes that the Department’s Deputy EEO
Director told her that one of her supervisors was “very upset” that she had filed her April 2017
EEO complaint, see Pl.’s Ex. K at 6, Dkt. 13-27; Pl.’s Opp’n at 27, those comments were made
after all but two of the incidents about which Clinton complains, see Pl.’s Facts ¶¶ 12–15, 19,
21–22, 28–29, 31–32, and for the reasons stated here, neither of those two incidents, alone or
together, are sufficient to state a hostile work environment claim.

10
is not at all apparent that “in consultation with senior executives” required Clinton’s supervisors

to prepare the first draft of her performance plan, see Def.’s Statement of Facts ¶ 27; Pl.’s

Statement of Facts ¶ 27. But even if it did, asking Clinton to generate a first draft of her own

performance plan for her supervisor to review, edit, and approve, does not rise to the level of

“severe and pervasive” conduct necessary to support a hostile work environment claim. See

Baloch, 550 F.3d at 1201 (internal quotation marks omitted).

Clinton expresses frustration about being escorted out of the office after receiving her

Notice of Proposed Removal “at noon, rather than at the end of the day,” because an escort at the

end of the day would have been less embarrassing and in accordance with the Department’s

regular practice. See Pl.’s Opp’n at 30–31. But again, even if true, the embarrassment attendant

upon her escort out of the workplace falls short of the “discriminatory intimidation, ridicule, and

insult” necessary to give rise to a hostile work environment claim. Baloch, 550 F.3d at 1201

(internal quotation marks omitted).

Finally, Clinton laments that she could not receive unemployment benefits as a result of

the Department leveling a lack of candor charge against her, see Pl.’s Statement of Facts at ¶ 39,

but this denial of unemployment benefits occurred after she was no longer employed at the

Department of Energy, see Def.’s Statement of Facts ¶¶ 37–42. Consequently, the denial of her

claim could not possibly “alter the conditions of [Clinton]’s employment.” Baloch, 550 F.3d at

1201 (internal quotation marks omitted).

Considering the totality of the circumstances—and viewing the evidence in the light most

favorable to Clinton—as the Court must, a reasonable jury could not find that the Department

acted with discriminatory intent, see Lester v. Natsios, 290 F. Supp. 2d 11, 31–32 (D.D.C. 2003),

or that it subjected Clinton “to discriminatory intimidation, ridicule, and insult that is sufficiently

11
severe or pervasive to alter the conditions of the victim’s employment and create an abusive

working environment,” Baloch, 550 F.3d at 1201 (quotations and citation omitted). This

conclusion is consistent with D.C. Circuit cases involving more challenging workplace

conditions. See, e.g, id. at 1195, 1201 (affirming grant of summary judgment to the defendant

where hostile work environment claim was based on allegations of poor performance reviews,

several letters of counseling and reprimand, leave restrictions, two proposed suspensions, and

several verbal altercations, including one in which a supervisor threatened to have the plaintiff

“arrested, led out of the building in handcuffs, and jailed”); George v. Leavitt, 407 F.3d 405,

408–09, 416–17 (D.C. Cir. 2005) (affirming grant of summary judgment to defendant where

claim was based on, among other things, “several confrontations” in which different employees

told the female black plaintiff to “go back to where she came from,” the plaintiff was “assigned

to various clerical duties that the white male engineers were never required to do,” and the

plaintiff’s supervisor recommended that she be fired (alteration adopted)); see also Nurriddin v.

Bolden, 674 F. Supp. 2d 64, 93–94 (D.D.C. 2009) (plaintiff failed to state a claim for relief

where his claim was based on allegations that management “passed over [the plaintiff] for

performance awards, lowered his performance evaluations, unfairly reprimanded and criticized

him, made disparaging remarks about his EEO complaints, closely scrutinized his work, . . . and

engaged in a series of discussions to end his eligibility for workers’ compensation and to

terminate his employment at NASA, before finally firing him” (internal quotation marks

omitted)). Accordingly, Clinton’s hostile work environment claims fail as a matter of law.

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 CONCLUSION

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

judgment. A separate order consistent with this decision accompanies this memorandum

opinion.

________________________
DABNEY L. FRIEDRICH
United States District Judge
August 18, 2020

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