UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARIA JONES,
Plaintiff,
v.
Civil Action No. 20-0472 (CKK)
JENNIFER GRANHOLM, Secretary of the
United States Department of Energy,
Defendant. 1
MEMORANDUM OPINION
(June 21, 2021)
Plaintiff Maria Jones brings this action pro se against Jennifer Granholm, in her official
capacity as the Secretary of the U.S. Department of Energy (the “Defendant” or “Department”),
pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.
Plaintiff alleges that Department management created a hostile work environment and retaliated
against her in response to formal and informal complaints she filed with the Office of Equal
Employment Opportunity (“EEO”) in 2010. Pending before the Court is Defendant’s [11] Motion
to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6).
Upon consideration of the pleadings, the relevant legal authorities, and the record as a
whole, 2 the Court GRANTS IN PART and DENIES IN PART Defendant’s [11] Motion to
1
By operation of Federal Rule of Civil Procedure 25(d), the Secretary of Energy, as former Secretary Danny
Brouillette’s successor, has been “automatically substituted as a party.”
2
This Memorandum Opinion focuses on the following documents:
• Pl.’s Compl., ECF No. 1;
• Def.’s Mem. of P&A in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mot..”), ECF No. 11;
• Pl.’s Opp’n to Def.’s Mot. to Dismiss and to Amend My Compl. (“Pl.’s Opp’n”), ECF No. 16;
• Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Def.’s Reply”), ECF No. 22; and
• Pl.’s Note in Resp. to Def. (“Pl.’s Sur-Reply”), ECF No. 24.
In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of
assistance in rendering a decision. See LCvR 7(f).
1
Dismiss. Specifically, the Court will GRANT Defendant’s request to dismiss Plaintiff’s discrete
retaliation claims, respectively predicated on Plaintiff’s removal from the Department’s “COOP”
emergency response team, the denial of Plaintiff’s requested detail assignment, and Plaintiff’s
proposed removal from federal service. The Court, however, will DENY Defendant’s request to
dismiss Plaintiff’s remaining retaliation claims predicated on Plaintiff’s September 13, 2010
Counseling Memorandum, her negative 2010 performance review, and her January 5, 2011
Performance Improvement Plan. Next, the Court will DENY Defendant’s request to dismiss
Plaintiff’s claim for a retaliatory hostile work environment. Finally, the Court will DISMISS
Plaintiff’s race discrimination and disability claims, as Plaintiff has not provided a plain and
concise statement of those claims sufficient to satisfy Federal Rule of Civil Procedure 8.
I. BACKGROUND
A. Factual Background
Plaintiff is an African American woman who began working for the Department of Energy
in 1987, as a GS-5 Secretary in the International Statistics Branch. Compl. ¶ 5. 3 In 1989, Plaintiff
was hired by the Office of Budget and Management Division, Naval Petroleum and Oil Share
Reserves (“NPOSR”), Office of Fossil Energy (“FE”), as a GS-6 Secretary. Id. Plaintiff was then
later promoted to a GS-12 Program Analyst position within NPOSR, and also earned a Bachelor’s
of Science in Accounting during this time period. Id. In 2003, the Department transferred Plaintiff
to the Office of Budget and Financial Management (“OBFM”), where she served as a GS-12
Program Analyst, working on “budget execution, budget formulation, contracts, [and]
3
On April 13, 2020, Plaintiff filed an “Amendment to [her] Complaint” to correct a typographical error in
the title of her original complaint. Am. to Compl., ECF No. 4, at 1. This amendment does not impose any
substantive changes to Plaintiff’s original complaint and the Court, therefore, cites to Plaintiff’s original
complaint (“Compl.”), see Compl., ECF No. 1, as the operative pleading throughout this Memorandum
Opinion.
2
procurement.” Id. ¶ 6. At OBFM, Plaintiff served under the supervision of Mr. Charles Roy, the
Director of OBFM until 2009, his successor, Ms. Edna Thomas, and Mr. Robert Pafe, Plaintiff’s
immediate supervisor. Id. ¶ 8. In her present complaint, Plaintiff describes a complex web of
alleged discrimination, harassment, and retaliation that she experienced at OBFM under these
supervisors. See Pl.’s Opp’n, ECF No. 16, at 9.
To begin, Plaintiff alleges that she was subjected to racial discrimination during her tenure
within OBFM. Plaintiff alleges that while Mr. Roy was the Director of OBFM, Plaintiff “was the
only African-American assigned to [the] office under the supervision of Mr. Roy and Mr. Pafe,”
both of whom are white. Compl. ¶ 8. When “working under the supervision of Mr. Roy and Mr.
Pafe,” Plaintiff “was embarrassed and humiliated by her managers, because they isolated her from
her white co-workers.” Id. ¶ 9. For example, Plaintiff alleges that Mr. Roy and Mr. Pafe “relocated
all white staff members to another location and left [Plaintiff] in an empty office setting” by herself,
without “equipment, files, furniture, [or] supplies.” Id. ¶ 10. Moreover, Ms. Thomas, who became
the OBFM Director in 2010, allegedly used “racial slurs” when referring to employees, including
calling one staff member a “House Nigger.” Id. ¶ 12. Furthermore, Plaintiff alleges that multiple
of her white colleagues were delinquent in their work or openly insubordinate to the OBFM
supervisors, yet did not receive any disciplinary sanctions. See id. ¶¶ 51–56.
Plaintiff also presents numerous allegations regarding the retaliatory treatment she received
at OBFM after filing multiple EEO complaints. On June 4, 2010, Plaintiff filed an informal EEO
complaint regarding improper references to a prior EEO settlement allegedly included within one
of her OBFM performance reviews. See June 4, 2010 EEO Compl., ECF No. 11-1, at 3, 5–7.
Plaintiff alleges that Ms. Thomas learned of this EEO complaint and, on July 19, 2010, sent
Plaintiff an “inappropriate” and “harassing” email referencing the informal EEO complaint. See
3
Compl. ¶ 12. Through this July 19, 2010 email, Ms. Thomas also removed Plaintiff from the
OBFM “COOP” team—a group within OBFM assembled to ensure continued operations during
office emergencies—and asked Plaintiff to return her work-issued phone. Id. ¶ 13. Only a few
days after Plaintiff’s removal from the COOP team, however, both Ms. Thomas and Mr. Pafe
informed Plaintiff that she was “on track to meet expectations” for her Fiscal Year (“FY”) 2010
mid-year performance evaluation. Id. ¶ 14.
On July 26, 2010, Plaintiff filed a formal EEO complaint that specifically asserted
harassment allegations against Ms. Thomas. See July 26, 2010 EEO Compl., ECF No. 11-1, at 9–
17. In response to this new EEO complaint, Mr. Pafe allegedly “started harassing and retaliating
against Plaintiff.” Compl. ¶ 16. On September 13, 2010, for example, Mr. Pafe sent Plaintiff a
“Counseling Memorandum,” which claimed that her performance had “adversely affected the
productivity of [the] office.” Counseling Mem., ECF No. 1-2, at 17. According to Plaintiff, the
negative events listed in the Counseling Memorandum were factually incorrect and fabricated in
order to retaliate against her for her prior EEO activity. Compl. ¶¶ 17–26. In particular, Plaintiff
claims that she was counseled for not completing an assignment that she had actually completed,
id. ¶ 19, for not submitting comments to the Chief Financial Officer regarding a memorandum
when she did in fact submit comments to the document, id. ¶ 23, and was “sabotage[d]” by Mr.
Pafe when he required her to work from a “large spreadsheet in PDF format,” as opposed to excel,
so that she “[w]ould miss the deadline” to complete an assignment, id. ¶ 24. Moreover, the
allegedly “false information” listed in the September 13, 2010 Counseling Memorandum was not
included in Plaintiff’s mid-year performance evaluation, which Mr. Pafe and Ms. Thomas had each
signed in July and August 2010, respectively. Id. ¶¶ 18, 21.
4
Next, Plaintiff contends that Mr. Pafe and Ms. Thomas continued to retaliate against her by
giving Plaintiff a “Fails to Meet Expectation” rating on her final Fiscal Year (“FY”) 2010
performance evaluation. Id. ¶ 27. Plaintiff received this “adverse” performance review on
December 1, 2010, after she returned from a period of medical leave. Id. ¶¶ 27–28. And then on
December 2, 2010, Mr. Pafe denied Plaintiff’s medical request to telework, citing to Plaintiff’s
poor FY 2010 performance review as support for his denial. Id. ¶ 30; see Dec. 2, 2010 Email, ECF
No. 1-2, at 45 (stating Plaintiff was “not eligible for medical flexplace because of [her] rating”).
Plaintiff relatedly alleges that, shortly after her return from medical leave, the Department held a
fire drill that required her to “walk down four flights of stairs.” Compl. ¶ 31. This physical
exertion was difficult for Plaintiff given her medical condition, and Plaintiff alleges that Mr. Pafe
“laughed” at Plaintiff’s struggles during the fire drill. Id.
Plaintiff also alleges that the retaliation from her OBFM supervisors continued into 2011.
On January 5, 2011, Mr. Pafe placed Plaintiff on a Performance Improvement Plan (“PIP”), which
afforded her a 120-day period within which to improve her work product. Id. ¶ 28. The very next
day, Plaintiff filed an amendment to her pending EEO complaint from July 26, 2010, to complain
about her newly issued PIP. See Jan. 6, 2011 EEO Compl., ECF No. 11-1, at 18–21. According
to Plaintiff, the PIP was yet another form of retaliation, as the PIP was “fabricated” and contained
numerous factual inaccuracies. Compl. ¶¶ 32–36. Nonetheless, on May 11, 2011, Mr. Pafe notified
Plaintiff that “she was going to get fired,” id. ¶ 37, and two days later, Mr. Pafe informed Plaintiff
that she had failed the PIP, id. ¶ 38. On August 3, 2011, Plaintiff requested permission to accept a
90-day detail assignment with the Office of Procurement, in an attempt to secure a new position
outside of OBFM. Id. ¶ 48. Mr. Pafe, however, denied this requested detail assignment, allegedly
in furtherance of his desire to “remove . . . Plaintiff from federal service.” Id.
5
Then, on August 25, 2011, Mr. Pafe issued Plaintiff a memorandum titled “Proposal to
Remove for Unacceptable Performance.” Id. ¶ 39. This memorandum stated that Plaintiff was to
be terminated because of her “failure to perform at a meets expectations level on [her] budget
formulation, execution performance elements, and [Plaintiff’s] failure to display initiative, effort
and commitment towards completing assignments in a timely manner while maintaining the
integrity of the organization.” Aug. 25, 2011 Mem., ECF No. 1-2, at 51. Plaintiff again alleges
that many of the statements in the removal proposal were “not true,” Compl. ¶ 39, and that Mr.
Pafe “plac[ed] nonfactual statements in documents to bolster his adverse documents,” id. ¶ 47.
Plaintiff, however, eventually resigned from her position at OBFM on February 16, 2012, one day
prior to the effective date of her removal, in order to “preserve [her] retirement benefits.” Pl.’s
Opp’n at 9.
B. Procedural History
Throughout the course of her alleged mistreatment at OBFM, Plaintiff engaged in parallel
administrative proceedings that are relevant to the resolution of Defendant’s [11] Motion to
Dismiss. The Court will describe those proceedings below.
1. Arbitration & MSPB Proceedings
At the conclusion of Plaintiff’s January 5, 2011 PIP, the Department proposed to remove
Plaintiff for “unacceptable performance,” effective February 17, 2012. Aug. 25, 2011 Mem., ECF
No. 1-2, at 50; Pl.’s Opp’n at 5. In providing Plaintiff with the removal decision, the Department
informed her that she had the right to either appeal the proposed removal to the Merit Systems
Protection Board (“MSPB” or the “Board”) or to challenge the proposal through the negotiated
grievance procedure provided by her collective bargaining agreement. See Jones v. Merit Sys.
Prot. Bd., 589 F. App’x 972, 973 (Fed. Cir. 2014); see also 5 U.S.C. § 7121(e)(1). Plaintiff
6
ultimately elected to challenge the Department’s removal decision through the negotiated
grievance procedure, with the stipulated issue before the arbitrator phrased as: “Whether or not the
[Department] provided [Plaintiff] with a reasonable opportunity to improve performance before
removing her from Federal Service,” and if not, “what shall the remedy be?” Pl.’s Opp’n at 5; see
also Jones, 589 F. App’x at 973. On November 3, 2012, the arbitrator issued a decision that denied
Plaintiff’s grievance, finding that the Department had given Plaintiff a reasonable opportunity to
improve her performance and that the Department’s decision to remove Plaintiff from federal
service was not unreasonable. Jones, 589 F. App’x at 973–74.
On December 2, 2012, following her adverse arbitration ruling, Plaintiff decided to file an
additional appeal of her removal, this time with the MSPB. Id. at 974. An MSPB administrative
judge (“AJ”), however, issued an order in February 2013, finding that the MSPB lacked
jurisdiction over Plaintiff’s appeal because Plaintiff had already filed an arbitral grievance
regarding her removal and, pursuant to 5 U.S.C. § 7121(e)(1), “an employee challenging an
adverse action [is required] to choose between” an applicable grievance procedure or an appeal to
the MSPB, but cannot pursue both. Jones, 589 F. App’x at 974. The Board later affirmed the AJ’s
jurisdictional finding, explaining that Plaintiff’s MSPB appeal “raised only a challenge to her
removal, which was precluded under 5 U.S.C. § 7121(e)(1).” Jones, 589 F. App’x at 974. The
Board further explained that, although Plaintiff’s collective bargaining agreement allowed for
retaliation grievances, Plaintiff “did not raise [an] EEO retaliation claim in the proceeding before
the arbitrator.” Id. at 976. Finally, on November 13, 2018, the Federal Circuit affirmed the Board’s
jurisdictional rulings dismissing Plaintiff’s MSPB appeals. See id. at 975.
7
2. EEOC Proceedings
Apart from her grievance proceeding and appeal to the MSPB, Plaintiff also submitted
separate EEO complaints against the Department. As discussed above, Plaintiff first filed an
informal EEO complaint on June 4, 2010, when she perceived that her OBFM supervisors were
making inappropriate references to a previous EEO complaint that had been resolved by settlement
agreement. See June 4, 2010 EEO Compl., ECF No. 11-1, at 3, 5–7. Then, on July 26, 2010,
Plaintiff filed a formal EEO complaint for retaliation in the form of “harassment” and a “hostile
work environment.” July 26, 2010 EEO Compl., ECF No. 11-1, at 9. Plaintiff’s July 26, 2010
EEO complaint specifically complained of Ms. Thomas’s July 19, 2010 decision to remove
Plaintiff from the OBFM “COOP” team, allegedly in retaliation for Plaintiff’s informal EEO
complaint filed in June 2010. Id. at 12. Plaintiff later filed an amended version of her formal EEO
complaint on January 6, 2011, again claiming that she was subjected to a “hostile work
environment” and “retaliation in the form of harassment.” Jan. 6, 2011 EEO Am. Compl., ECF
No. 11-1, at 20. In her amendment, Plaintiff complained that Mr. Pafe and Ms. Thomas retaliated
against her for “filing an EEO complaint,” and specifically identified her “negative [FY 2010]
performance appraisal,” her January 5, 2011 PIP, and her September 13, 2010 “Counseling
Memorandum” as retaliatory adverse employment actions taken against her. Id. at 18. In her
January 6, 2011 EEO amendment, Plaintiff also checked the complaint box for “disability,”
although Plaintiff did not specifically reference any disability in her narrative description. Id. at
20.
On February 1, 2011, the Department acknowledged receipt of Plaintiff’s amended EEO
complaint and accepted Plaintiff’s allegations of harassment and a hostile work environment in
retaliation for her “prior EEO activity.” See Am. Not. of Acceptance, ECF No. 11-2, at 2. The
8
Department’s notice also acknowledged eight alleged adverse actions for investigation, including
Ms. Thomas’s decision to remove Plaintiff from the COOP team, Plaintiff’s negative FY 2010
performance review, Plaintiff’s September 13, 2010 Counseling Memorandum, and Plaintiff’s
January 5, 2011 PIP. See id. at 3. On July 26, 2011, the Department informed Plaintiff that the
investigation of her complaint had been completed and that she had the right to request a hearing
before an EEOC administrative judge. See Not. of Hr’g, ECF No. 11-3, at 2. Plaintiff subsequently
requested such a hearing on her complaint, see id. at 4, which eventually occurred, after substantial
delay, in February 2018, see Apr. 5, 2018 EEOC Dec., ECF No. 11-4, at 5. On April 5, 2018, the
assigned EEOC administrative judge issued a decision in favor of the Department, denying each
of Plaintiff’s employment discrimination claims. See id.; Nov. 22, 2019 EEOC Decision, ECF
No. 1-1, at 3. The Department then subsequently adopted the administrative judge’s findings in
its final order, concluding that Plaintiff “failed to prove that the [Department] subjected her to
discrimination as alleged.” Nov. 22, 2019 EEOC Decision, ECF No. 1-1, at 3. On November 22,
2019, the EEOC issued its final decision, affirming the Department’s final order and informing
Plaintiff that she had the right to file a civil action against the Department within ninety days of
receipt. See id. at 5, 6.
3. Present Action
Plaintiff, proceeding pro se, commenced this present action on February 19, 2020,
exercising her right to file a civil action within ninety days of the EEOC’s final decision on
November 22, 2019. Plaintiff’s pro se pleadings are not a model of clarity. In her complaint,
however, Plaintiff does include a section entitled “Causes of Action,” which alleges that she
suffered a “hostile work environment” and “harassment in the form of retaliation.” Id. at 20.
Plaintiff’s complaint also makes allegations of disparate racial treatment. See id. at 2, 20–21.
9
Finally, Plaintiff’s complaint includes a passing reference to a “deni[al] of reasonable
accommodations” at OBFM for Plaintiff’s medical condition. See id. at 2. Collectively, the Court
broadly reads these allegations as an attempt to assert four separate claims, respectively for: (1)
retaliation, (2) a hostile work environment, (3) race discrimination, and (4) a disability-based
claim. See disc. infra at § III (discussing comprehensively the contours of Plaintiff’s pro se
allegations and purported claims).
On August 31, 2020, Defendant filed its pending [11] Motion to Dismiss, asserting that
Plaintiff’s pleadings should be dismissed for failure to state a claim upon which relief can be
granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). The parties have now completed
briefing on Defendant’s Motion and, accordingly, Defendant’s Motion is ripe for this Court’s
review.
II. LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a), “in order
to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Rule 12(b)(6) provides a
vehicle for parties to challenge the sufficiency of a complaint on the grounds that it “fail[s] to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Although “detailed factual
allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, a plaintiff must
furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (internal citations omitted). Rather, a complaint must contain
sufficient factual allegations that if accepted as true, “state a claim to relief that is plausible on its
face.” Id. at 570.
10
A claim has “facial plausibility when the plaintiff pleads factual content that allows a court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). When considering a Rule 12(b)(6) motion
to dismiss, a court must construe the complaint in a light most favorable to the plaintiff and must
accept as true all reasonable factual inferences drawn from the plaintiff’s well-pleaded factual
allegations. Owens v. BNP Paribas, S.A., 897 F.3d 266, 272 (D.C. Cir. 2018). Where, as here, an
action is brought by a pro se plaintiff, the Court must take particular care to construe the plaintiff’s
filings liberally for such complaints are held “to less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–21 (1972); see Richardson v. United
States, 193 F.3d 545, 548 (D.C. Cir. 1999).
III. DISCUSSION
For the reasons set forth herein, the Court will GRANT Defendant’s motion to dismiss
Plaintiff’s discrete retaliation claims predicated on Plaintiff’s removal from the Department’s
“COOP” emergency response team, the denial of Plaintiff’s requested detail assignment, and
Plaintiff’s proposed removal from federal service. The Court, however, will DENY Defendant’s
motion to dismiss Plaintiff’s remaining retaliation claims, predicated on Plaintiff’s September 13,
2010 Counseling Memorandum, her negative FY 2010 performance review, and her January 5,
2011 Performance Improvement Plan. Next, the Court will DENY Defendant’s motion to dismiss
Plaintiff’s claim for a retaliatory hostile work environment. Finally, the Court will DISMISS
Plaintiff’s race discrimination and disability claims, as Plaintiff has not provided a plain and
concise statement of those claims sufficient to satisfy Federal Rule of Civil Procedure 8.
A. Retaliation
Plaintiff first asserts a Title VII retaliation claim against Defendant. See Compl. at 2, 20;
Pl.’s Opp’n at 8–9. To state a claim for retaliation under Title VII, a plaintiff must demonstrate
11
that: (1) she engaged in a statutorily protected activity, (2) the employer took an adverse
employment action, and (3) there is a causal relationship between the protected activity and the
adverse employment action. Baird v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015). Moreover,
the adverse actions alleged must be “‘material’—i.e., ‘harmful to the point that [it] could well
dissuade a reasonable worker from making or supporting a charge of discrimination.’” Id. (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
In this case, Plaintiff alleges that her OBFM supervisors subjected her to multiple adverse
actions in retaliation for Plaintiff’s EEO complaints in June and July of 2010. See Compl. ¶¶ 12,
16. Specifically, Plaintiff identifies six allegedly retaliatory adverse employment actions:
(1) Plaintiff’s June 2010 removal from the “COOP” team,
(2) Plaintiff’s September 13, 2010 Counseling Memorandum,
(3) Plaintiff’s negative FY 2010 performance review,
(4) Plaintiff’s January 5, 2011 PIP,
(5) the denial of Plaintiff’s August 3, 2011 requested detail assignment, and
(6) Plaintiff’s proposed removal from federal service on August 25, 2011.
See Pl.’s Opp’n at 2; Compl. ¶¶ 12–48. Defendant does not challenge that Plaintiff’s EEO
complaints constituted “protected activity” under Title VII. See 42 U.S.C. § 2000e–3(a); Walker
v. Mattis, 319 F. Supp. 3d 267, 271 (D.D.C. 2018) (“Filing a complaint of discrimination, as
Plaintiff did here, plainly constitutes protected activity.”). Instead, Defendant asserts multiple
reasons why Plaintiff’s six alleged “adverse actions” cannot support a viable retaliation claim
under Title VII. See Def.’s Mot. at 14–24. The Court will address each of these arguments in turn.
12
1. Exhaustion
To begin, Defendant raises an exhaustion challenge against certain of Plaintiff’s retaliation
claims. “Exhaustion is an essential element of [a] Title VII” claim. Poole v. United States Gov't
Publ’g Off., 258 F. Supp. 3d 193, 199 (D.D.C. 2017) (quotation omitted). Generally, exhaustion
“means filing an administrative charge with the EEOC and allowing the agency time to act on the
charge before commencing litigation.” Haynes v. D.C. Water & Sewer Auth., 924 F.3d 519, 526
(D.C. Cir. 2019) (cleaned up). “Exhaustion is required in order to give federal agencies an
opportunity to handle matters internally whenever possible to ensure that the federal courts are
burdened only when reasonably necessary.” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). The
“untimely exhaustion of administrative remedies is an affirmative defense, [which] the defendant
bears the responsibility of pleading and proving.” Bowden v. United States, 106 F.3d 433, 437
(D.C. Cir. 1997) (citation omitted). A motion to dismiss for “failure to exhaust administrative
remedies is properly addressed under [Rule] 12(b)(6).” Hicklin v. McDonald, 110 F. Supp. 3d 16,
18 (D.D.C. 2015).
In its present motion, Defendant contends that Plaintiff has failed to administratively
exhaust her retaliation claims predicated on (1) the August 3, 2011 denial of Plaintiff’s request for
a detail assignment, and (2) the August 25, 2011 proposal to remove Plaintiff from federal service.
See Def.’s Mot. at 14–19; Compl. ¶¶ 39, 48. For the reasons set forth below, the Court agrees with
Defendant and concludes that these retaliation claims must be DISMISSED for failure to exhaust.
a. August 3, 2011 Detail Denial
Defendant’s first exhaustion challenge pertains to the allegedly retaliatory denial of a detail
assignment Plaintiff requested in August 2011. Specifically, Plaintiff alleges that on August 3,
2011, the Office of Procurement offered her a 90-day detail assignment, which might have resulted
13
in a permanent job offer. See Compl. ¶ 48. According to Plaintiff, however, Mr. Pafe and Ms.
Thomas, refused Plaintiff’s request to accept the detail assignment, in retaliation for Plaintiff’s
prior EEO complaints. Id.; see also Pl.’s Opp’n at 10. Defendant now argues that Plaintiff failed
to exhaust her retaliation claim based on this alleged denial of Plaintiff’s August 2011 detail
request. See Compl. ¶ 48; Pl.’s Opp’n at 2. For the reasons set forth below, the Court agrees.
As an initial matter, Plaintiff did not complain of her August 2011 detail denial in any of
the administrative proceedings that preceded this civil action. First, Plaintiff filed her predicate
EEO complaints on June 4, 2010 and July 26, 2010, with a final amendment on January 6, 2011.
See disc. supra at § I.B.2. Each of these EEO complaints pre-dated Plaintiff’s August 2011 detail
request denial and, logically, none of these EEO complaints could have raised Plaintiff’s denied
detail request as an adverse employment action. Next, the Court does not find that Plaintiff raised
her August 2011 detail denial in either her contractual grievance arbitration, or in any of her
proceedings before the MSPB. See Jones v. Merit Sys. Prot. Bd., 589 F. App’x 972, 973 (Fed. Cir.
2014) (explaining that Plaintiff only raised issues regarding her removal from federal service
before the arbitrator and the MSPB). In short, Plaintiff simply did not raise the denial of her August
2011 detail request as an adverse action in any of the administrative proceedings preceding her
action before this Court. Notably, Plaintiff’s opposition brief does not directly contest her failure
to raise the August 2011 detail denial in an administrative proceeding. See Pl.’s Opp’n at 10. As
such, the Court finds that Plaintiff has failed to administratively exhaust this specific retaliation
claim.
Here, it bears mentioning that a minority of courts in this jurisdiction “have found that
separate exhaustion for subsequent . . . retaliatory acts is not required if they are ‘of a like kind to
the retaliatory acts alleged in [a prior] EEOC charge[.]’” Moran v. Barr, No. CV 18-1986 (CKK),
14
2020 WL 4286825, at *10 (D.D.C. July 27, 2020) (emphasis added) (quoting Mount v. Johnson,
36 F. Supp. 3d 74, 85 (D.D.C. 2014)). Under such an approach, Plaintiff would not necessarily
need to specifically exhaust her denied detail request claim, if it was sufficiently related to her
earlier-filed EEO claims. This minority view, however, is in direct tension with the Supreme
Court’s holding that under Title VII “each retaliatory adverse employment decision constitutes a
separate actionable ‘unlawful employment practice,’” Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 114 (2002), and the majority of courts in this jurisdiction now require plaintiffs to exhaust
each discrete claim of retaliation, see Moran, 2020 WL 4286825, at *10 (collecting cases).
Nonetheless, the D.C. Circuit has not yet addressed this issue, leaving the minority view at least
partially in effect. See, e.g., Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (explaining that it
“need not decide whether Morgan” now requires individualized exhaustion of discrete claims).
Regardless, even the minority approach to exhaustion would not save Plaintiff from her
failure to raise her denied detail claim administratively. For a non-exhausted charge to be
considered “reasonably related” to an earlier filed charge under the minority view of exhaustion,
“it must at a minimum . . . arise from the administrative investigation that can reasonably be
expected to follow” the original charge. Payne, 619 F.3d at 65. Here, however, the Department
concluded its investigation of Plaintiff’s EEO complaints on July 26, 2011, before Plaintiff even
learned of the detail assignment on August 3, 2011. See Not. of Hr’g, ECF No. 11-3, at 2. As
such, Plaintiff’s complaint regarding her denied detail assignment could not have arisen during the
Department’s investigation into Plaintiff’s prior EEO complaints. See, e.g., Payne, 619 F.3d at 65
(Claims “concerning the retaliatory conduct that took place in January 2008 could not possibly
have ‘arisen from the administrative investigation’ that followed the EEO complaints . . . filed . . .
in 2004 . . . because the administrative investigation of those complaints ended in September
15
2007[.]”). Even under the minority view, therefore, Plaintiff did not properly exhaust her
retaliation claim predicated on her denied request for detail assignment in August 2011.
For the reasons set forth above, the Court concludes that Plaintiff did not exhaust her
retaliation claim based on her August 3, 2011 detail assignment denial. See Compl. ¶ 48; Pl.’s
Opp’n at 2. Accordingly, the Court will DISMISS that claim for failure to exhaust.
b. August 25, 2011 Proposed Removal
Defendant also argues that Plaintiff failed to exhaust her claim that the Department
retaliated against her in August 2011 when Plaintiff’s supervisors proposed removing her from
federal service. See Compl. ¶ 39; Pl.’s Opp’n at 2. Here again, this alleged adverse action occurred
in August 2011, well after Plaintiff’s EEO complaints in June and July of 2010, and logically could
not have been raised therein. Moreover, as with the August 3, 2011 detail denial, Plaintiff’s
proposed removal on August 25, 2011 post-dated the Department’s investigation into Plaintiff’s
EEO complaints, which concluded on July 26, 2011. For these reasons, the Court finds no basis
to hold that Plaintiff exhausted her retaliatory removal claim through the traditional EEO process.
Plaintiff did, however, challenge her proposed removal first through a negotiated grievance
procedure under her collective bargaining agreement and then later before the Merit System
Protection Board. See disc. supra at § I.B.1. Nonetheless, Plaintiff still failed—for multiple
reasons—to properly exhaust her retaliatory removal claim through these administrative channels.
The first of these reasons is that Plaintiff never raised a retaliatory removal claim in her grievance
proceeding before the arbitrator. Instead, “[t]he only stipulated issue that was before the arbitrator
was[:] ‘Whether or not the Department of Energy provided [Plaintiff] with a reasonable
opportunity to improve performance before removing her from Federal Service?” and, “If not,
what shall the remedy be?” Pl.’s Opp’n at 5. Therefore, Plaintiff’s claim that her August 2011
16
proposed removal was retaliatory never arose during her grievance arbitration. See Jones v. Merit
Sys. Prot. Bd., 589 F. App’x 972, 976 (Fed. Cir. 2014) (“The record reflects that [Plaintiff’s]
governing collective bargaining agreement allowed for claims of discrimination to be raised in the
course of a grievance proceeding. . . . [W]e affirm the Board’s finding that [Plaintiff] did not raise
her EEO retaliation claim in the proceeding before the arbitrator . . . . ”); see id. (noting that
Plaintiff stated, “My case that was heard before the arbitrator did not address retaliation”). For
this reason alone, Plaintiff failed to properly exhaust her retaliatory removal claim through the
appropriate administrative channels.
Next, even if Plaintiff had raised a retaliatory removal claim during her grievance
proceeding, she failed to properly follow that administrative channel to its conclusion. Simply
put, “[a]n employee who pursues [her] claims under the negotiated grievance procedure . . . may
reach federal court only after appealing the final decision in the grievance process to the EEOC.”
Koch v. Walter, 934 F. Supp. 2d 261, 269 (D.D.C. 2013) (citing Johnson v. Peterson, 996 F.2d 397,
400–01 (D.C. Cir. 1993)); see also 5 U.S.C. § 7121(d). Here, the assigned arbitrator “issued a
decision on November 3, 2012, which denied [Plaintiff’s] grievance.” Jones, 589 F. App’x at 973.
Thereafter, however, Plaintiff did not appeal this adverse arbitral decision up to the EEOC, but
instead appealed the arbitral decision before the MSPB. Id. Consequently, Plaintiff’s grievance
never reached the EEOC to complete the full administrative channel required before filing a civil
action in the district court. See Koch, 934 F. Supp. 2d at 268–69. This shortcoming represents
another failure by Plaintiff to exhaust her claim regarding her removal from federal service before
filing a civil action before this Court.
Finally, Plaintiff’s subsequent administrative proceedings before the MSPB also failed to
properly exhaust her retaliatory removal claim. To start, Plaintiff’s initial decision to challenge
17
her proposed removal through a contractual grievance procedure foreclosed her ability to
subsequently challenge that same removal decision through the MSPB. See 5 U.S.C. § 7121(e)(1)
(“Matters covered under sections 4303 and 7512 of this title which also fall within the coverage
of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised
either under the appellate procedures of [the MSPB] or under the negotiated grievance procedure,
but not both.”) (emphasis added). Plaintiff’s initial decision to challenge her proposed removal
through a grievance procedure was “irrevocable.” Koch, 934 F. Supp. 2d at 268. And indeed, the
MSPB dismissed Plaintiff’s challenge to her proposed removal under 5 U.S.C. § 7121(e)(1)
because Plaintiff “had earlier elected to pursue such challenge through [her] negotiated grievance
procedures.” Jones, 589 F. App’x at 974. Furthermore, even if Plaintiff could have exhausted her
retaliatory removal claim through her MSPB proceedings, the Board concluded that she did not
raise any involuntary retirement claim therein. See id. Consequently, Plaintiff’s administrative
proceedings through the MSPB did not properly exhaust the retaliatory removal claim she now
presents to this Court.
For the reasons set forth above, the Court concludes that Plaintiff did not exhaust her
retaliation claim based on the Department’s August 25, 2011 proposal to remove her from federal
service. See Compl. ¶ 39; Pl.’s Opp’n at 2. Accordingly, the Court will DISMISS this claim for
failure to exhaust as well.
c. Equitable Considerations
In the Title VII context, “administrative exhaustion requirements are not jurisdictional.”
Niskey v. Kelly, 859 F.3d 1, 7 (D.C. Cir. 2017); see also Artis v. Bernanke, 630 F.3d 1031, 1034 n.4
(D.C. Cir. 2011). Therefore, “an employee who missteps in the [exhaustion] process may avoid
dismissal if [s]he qualifies for equitable relief . . . by demonstrating good cause for the procedural
18
failure.” Niskey, 859 F.3d at 7; see also Rahimi v. Weinstein, 271 F. Supp. 3d 98, 102–03 (D.D.C.
2017) (“The administrative exhaustion requirement in Title VII cases may be excused for equitable
reasons . . . ”). Once a defendant has met its burden of asserting a viable exhaustion defense,
however, the plaintiff must offer countervailing facts “supporting equitable avoidance of the
defense.” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).
Here, the Court concludes that equitable considerations do not absolve Plaintiff of her
failure to exhaust her retaliation claims based upon her denied detail request and proposed removal
from federal service. To begin, Plaintiff does not assert nor does the record reflect that Defendant
took “active steps to prevent the plaintiff” from presenting these claims administratively. Currier
v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1367 (D.C. Cir. 1998). To the contrary,
Plaintiff has demonstrated her ability to file multiple EEO complaints, see disc. supra at § I.B.2,
invoke contractual grievance procedures, and file claims before the MSPB, see disc. supra at §
I.B.1. And notably, Plaintiff has also shown her ability to amend a pending EEO complaint to
reflect subsequent instances of alleged wrongdoing. See Jan. 6, 2011 EEO Am. Compl., ECF No.
11-1, at 18–21. Yet, despite this capacity, Plaintiff did not raise a retaliation claim based upon
either her August 3, 2011 detail denial or her August 25, 2011 proposed removal, at the
administrative level. Accordingly, these retaliation claims were not part of the EEO proceeding
that ultimately resulted in the present action before this Court. See Nov. 22, 2019 EEOC Decision,
ECF No. 1-1, at 1–2 (listing the “issues presented”). For these reasons, the Court finds that
equitable considerations do not excuse Plaintiff’s failure to exhaust her retaliation claims based
upon her denied detail request and proposed removal from federal service.
19
2. Materially Adverse Actions
Beyond its exhaustion defense, Defendant also argues that certain of Plaintiff’s alleged
“adverse actions” were not “materially” adverse. See Def.’s Mot. at 19–23. “An employee fails
to state a retaliation claim if she has not alleged a materially adverse action.” Tyes-Williams v.
Whitaker, 361 F. Supp. 3d 1, 12 (D.D.C. 2019). For the purposes of a Title VII retaliation claim,
an employment action is “materially” adverse where it “well might have ‘dissuaded a reasonable
worker from making or supporting a charge of discrimination.’” Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir.
2006)). Importantly, “the D.C. Circuit has indicated that work-related retaliation must have
‘tangible job consequences’ in order to qualify as materially adverse.” Wesley v. Georgetown Univ.,
No. CV 18-1539 (BAH), 2018 WL 5777396, at *5 (D.D.C. Nov. 2, 2018) (quoting Taylor v. Solis,
571 F.3d 1313, 1321 (D.C. Cir. 2009)). Ultimately, “‘the significance of any given act of
retaliation’ and therefore its potential to deter discrimination complaints, ‘will often depend on the
particular circumstances.’” Wesley, 2018 WL 5777396, at *6 (quoting Burlington N., 548 U.S. at
69)).
In its present motion, Defendant argues that three of Plaintiff’s allegedly adverse
employment actions are not “materially” adverse: (1) Plaintiff’s June 2010 removal from the
“COOP” team, (2) the September 13, 2010 Counseling Memorandum, and (3) Plaintiff’s negative
FY 2010 performance review. See Def.’s Mot. at 21–22. 4 The Court will address each of these
alleged adverse actions below.
4
Defendant also contends that Plaintiff’s August 3, 2011 detail assignment denial was not a “materially”
adverse employment action. See Def.’s Mot. at 22–23. The Court need not reach this argument, however,
because it has already concluded that Plaintiff failed to exhaust this retaliation claim. See disc. supra at §
III.A.1.a.
20
a. July 2010 COOP Team Removal
Defendant first challenges the materiality of Plaintiff’s allegedly retaliatory removal from
the OBFM “COOP” team in July 2010. In certain circumstances, “[c]hanges in position and title,
including lateral transfers, can be considered adverse employment actions when employees suffer
‘materially adverse consequences [for] the terms, conditions, or privileges’ of employment.”
Coakley-Simelton v. Georgetown Univ., No. 18-CV-2014 (DLF), 2020 WL 4569423, at *12
(D.D.C. Aug. 7, 2020) (quoting Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003)). But a
change in job responsibility is not “materially adverse” where the employee did not experience
“objectively tangible harm,” Wiley v. Glassman, 511 F.3d 151, 157 (D.C. Cir. 2007) (quotation
omitted), and assertions of such harm must not be “unduly speculative,” Bridgeforth v. Jewell, 721
F.3d 661, 663 (D.C. Cir. 2013) (quotation omitted).
Here, the Court concludes that Plaintiff’s allegations regarding her removal from the COOP
team are simply too sparse and speculative to plausibly demonstrate tangible harm. In her
complaint, Plaintiff asserts that on July 19, 2010, Ms. Thomas removed Plaintiff “as the
procurement person for COOP” and requested that Plaintiff turn in her Blackberry device. Compl.
¶ 13. Ms. Thomas allegedly removed Plaintiff from the COOP team to retaliate against Plaintiff
for her informal EEO complaint in June 2010. Id. Plaintiff, however, provides almost no factual
allegations at all regarding the COOP team or its role within the Department. Instead, Plaintiff
describes the COOP team simply as “a team that was assembled in case of emergencies.” Id.
Moreover, Plaintiff fails to provide any details regarding her own responsibilities on the COOP
team or, importantly, how her removal from the COOP team affected her responsibilities and status
at OBFM. See Hornsby v. Watt, 217 F. Supp. 3d 58, 65 (D.D.C. 2016) (explaining that a
reassignment is material where is involves “significantly different responsibilities” or “significant
21
changes in benefits”) (quoting Bridgeforth, 721 F.3d at 663). Absent any such factual allegations,
there is no basis to conclude that Plaintiff’s removal from the COOP team plausibly constituted a
materially adverse employment action. See, e.g., Hornsby, 217 F. Supp. 3d at 67 (dismissing
retaliation claim at the pleading stage where plaintiff failed to allege facts that showed objectively
tangible harm); Wesley, 2018 WL 5777396, at *7 (same). Accordingly, the Court will DISMISS
Plaintiff’s retaliation claim based on her removal from the COOP team.
b. September 2010 Counseling Memorandum
Defendant next challenges the materiality of the “Counseling Memorandum” Plaintiff
received on September 13, 2010, allegedly in retaliation for her prior EEO complaints. Compl. ¶
17. In Baloch v. Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008), the D.C. Circuit found that an
employer-issued “letter of counseling” that contained “job-related constructive criticism” did not
constitute a materially adverse action sufficient to support a retaliation claim. Id. at 1199; see also
Hyson v. Architect of Capitol, 802 F. Supp. 2d 84, 102 (D.D.C. 2011) (“A letter of counseling . . .
if not abusive in tone or language or a predicate for a more tangible form of adverse action, will
rarely constitute materially adverse action under Title VII.”). Nonetheless, a counseling
memorandum may be materially adverse where it contains “abusive language,” Locks v. Lew, 200
F. Supp. 3d 254, 263 (D.D.C. 2016), or where it leads “to consequences like ineligibility for job
benefits like promotion, transfer to a favorable location, or an advantageous increase in
responsibilities,” Gilliard v. Gruenberg, 302 F. Supp. 3d 257, 283 (D.D.C. 2018).
At the motion to dismiss stage, Plaintiff has provided just enough factual allegations to
plausibly allege that the September 13, 2010 Counseling Memorandum was materially adverse.
Specifically, Plaintiff alleges that the Counseling Memorandum was “fabricated” and included
numerous negative reports about her work product that were factually inaccurate. See Compl. ¶¶
22
17–23. Plaintiff further contends that “[a]ll the language in the Counseling Memorandum was
demeaning” and was “emotionally exhausting.” Pl.’s Opp’n at 17. 5 Plaintiff also alleges that some
of the factually inaccurate statements from her Counseling Memorandum were later used to
support her removal from federal service. See Compl. ¶ 39; Pl.’s Opp’n at 17–18. Moreover,
Plaintiff asserts that the Counseling Memorandum “was a major factor” in her not receiving a
“performance bonus, raises, and promotions.” Pl.’s Opp’n at 18. While these factual allegations
may be disproven on summary judgment, the Court accepts them as true at the pleading stage and,
moreover, construes these allegations liberally because of Plaintiff’s pro se status. See Richardson,
193 F.3d at 548. Taken together, these allegations are sufficient to plausibly allege that Plaintiff
suffered objectively tangible harm from her Counseling Memorandum, such that it constituted a
materially adverse employment action under Title VII. The Court, therefore, DENIES
Defendant’s motion to dismiss Plaintiff’s retaliation claim based on her September 13, 2010
Counseling Memorandum.
c. FY 2010 Performance Evaluation
Finally, Defendant argues that Plaintiff’s negative FY 2010 performance evaluation was
not a materially adverse employment action. See Def.’s Mot. at 22. “Performance evaluations can
qualify as materially adverse actions only when they concretely affect the employee’s ‘position,
grade level, salary, or promotion opportunities.’” Tyes-Williams v. Whitaker, 361 F. Supp. 3d 1,
13 (D.D.C. 2019) (quoting Taylor, 571 F.3d at 1321). For example, a performance evaluation may
be “materially adverse” where it is “attached to financial harms.” Baloch, 550 F.3d at 1199.
Plaintiff alleges that her OBFM supervisors completed her FY 2010 performance
evaluation on October 29, 2010, and that her “final performance rating was adverse” in retaliation
5
When adjudicating Defendant’s current motion to dismiss, the Court reads “all of the plaintiff’s filings
together,” in light of her pro se status. Richardson v. United States 193 F.3d 545, 548 (D.C. Cir. 1999).
23
for her prior EEO complaints. Compl. ¶ 27. Plaintiff’s FY 2010 evaluation stated that she “Fail[ed]
to Meet Expectations.” Id. ¶ 32. Plaintiff also alleges that in December 2010, she requested to
telework because of a diagnosed medical condition, but that Mr. Pafe denied her request
specifically “because of [Plaintiff’s] final FY 2010 performance rating.” Id. ¶ 30. Moreover,
Plaintiff alleges that when Mr. Pafe subsequently proposed her removal in August 2011, he relied
on Plaintiff’s negative FY 2010 performance evaluation as a justification for the decision. See id.
¶ 40. Similarly, Plaintiff contends that her FY 2010 performance evaluation placed her job “in
jeopardy.” Pl.’s Opp’n at 18. Construing Plaintiff’s pro se pleadings liberally at the motion to
dismiss stage, the Court concludes that Plaintiff has plausibly alleged that her negative FY 2010
performance evaluation adversely impacted her position at OBFM and, ultimately served as a basis
for her removal. The Court, therefore, DENIES Defendant’s motion to dismiss Plaintiff’s
retaliation claim based on her FY 2010 performance evaluation.
3. Causal Connection With Protected Activity
Defendant’s last challenge to Plaintiff’s retaliation claim turns on the causal connection
between Plaintiff’s alleged adverse actions and her protected activity, i.e., Plaintiff’s EEO
complaints. See Def.’s Mot. at 23–24; Def.’s Reply at 4. A necessary element of any prima facie
retaliation claim is a causal link between the protected activity at issue and the adverse actions
alleged. Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012). Courts consider this question
of causality by applying the “traditional principles of but-for causation.” Univ. of Tex.
Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). Here, Defendant argues that neither
Plaintiff’s September 13, 2010 Counseling Memorandum nor Plaintiff’s January 5, 2011
Performance Improvement Plan are plausibly connected to her prior EEO Complaints. See Def.’s
Mot. at 23–24; Def.’s Reply at 4.
24
The Court disagrees on both fronts. To begin, Plaintiff alleges that following her informal
EEO complaint on June 4, 2010, Ms. Thomas sent Plaintiff an email on July 19, 2010, stating:
It is always everyone’s fault except yours. You are always being harassed. You
have this need to claim you are being harassed and to try to pretend that everyone
is against you, when everyone can see that this is not true.
Compl. ¶ 13. In response to this email, Plaintiff filed a formal EEO complaint on July 26, 2010,
specifically referencing Ms. Thomas’s comments. Then less than two months later, on September
13, 2010, Plaintiff received her Counseling Memorandum from Ms. Thomas and Mr. Pafe, which
Plaintiff alleges was fabricated and retaliatory. Id. ¶ 17. Given Ms. Thomas’s apparent displeasure
with Plaintiff’s EEO activity, and the relatively close temporal proximity between Plaintiff’s July
26, 2010 EEO complaint and her September 13, 2010 Counseling Memorandum, the Court finds
a plausible causal link between the two events. See, e.g., Pratt v. Pompeo, 318 F. Supp. 3d 34, 40
(D.D.C. 2018) (finding a temporal gap of “two months” independently sufficient to plausibly show
causality at the pleading stage).
With regards to Plaintiff’s January 5, 2011 PIP, Defendant argues that the “time gap” of
over five months between the PIP and Plaintiff’s EEO complaints “is far too long to permit an
inference of causation.” Def.’s Mot. at 23. As a general matter, Defendant is correct that a gap of
five months between the protected activity and the adverse action is usually too long to
independently raise a presumption of causation. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273–74 (2001) (approving cases that found three and four-month periods too far removed to
establish a causal link). But “a close temporal connection is not the only way to prove causation,”
Beckham v. Nat'l R.R. Passenger Corp., 590 F. Supp. 2d 82, 89 (D.D.C. 2008), as a plaintiff may
also affirmatively demonstrate causality through direct evidence, see Touvian v. District of
Columbia, 330 F. Supp. 3d 246, 255 (D.D.C. 2018) (“A plaintiff who has direct evidence need not
rely on such an inference based on temporal proximity.”).
25
Here, at the motion to dismiss stage, Plaintiff has provided enough factual allegations to
affirmatively demonstrate a plausible connection between her EEO complaints and her January 5,
2011 PIP. To begin, the Court again acknowledges Ms. Thomas’s July 2010 email to Plaintiff,
which directly displays a displeasure with Plaintiff’s prior EEO activity. See Compl. ¶ 13.
Moreover, Plaintiff alleges that the foundation of her PIP rested on falsified “incidents” of poor
performance, id. ¶ 29, which were inconsistent with her prior performance appraisals that pre-
dated her EEO complains in 2010, id. ¶ 7. Plaintiff also alleges that her direct supervisor Mr. Pafe
began to harass Plaintiff following her July 26, 2010 EEO complaint against Ms. Thomas, id. ¶ 16,
and then unnecessarily “micromanaged” Plaintiff during her probationary PIP period at the
beginning of 2011, id. ¶ 45. Taken together, these allegations are sufficient at the motion to dismiss
stage to demonstrate a plausible causal link between Plaintiff’s prior EEO activity and her January
5, 2011 PIP.
For the reasons set forth above, the Court DENIES Defendant’s motion to dismiss
Plaintiff’s retaliation claims on causality grounds. While Defendant may continue to challenge the
factual basis for causality later in these proceedings, Plaintiff’s causality allegations ultimately
“face[] a low hurdle at the motion to dismiss stage.” Winston v. Clough, 712 F. Supp. 2d 1, 11
(D.D.C. 2011); see also Menoken v. McGettigan, 273 F. Supp. 3d 188, 200–01 (D.D.C. 2017), aff’d
sub nom. Menoken v. Pon, No. 17-5228, 2018 WL 2383278 (D.C. Cir. May 9, 2018) (“[C]ourts in
this district have sustained complaints at the Rule 12(b)(6) stage when the plaintiff has merely
alleged that he or she was subjected to an adverse action ‘because of’ protected activity.”). As
explained above, Plaintiff has cleared this low bar for causality at the pleading stage.
26
****
In sum, the Court GRANTS IN PART and DENIES IN PART Defendant’s motion to
dismiss Plaintiff’s Title VII retaliation claim. Specifically, the Court GRANTS Defendant’s
request to dismiss Plaintiff’s claims for retaliation based on her August 3, 2011 denied detail
assignment and Plaintiff’s August 25, 2011 proposed removal, for failure to exhaust those claims
administratively. The Court also GRANTS Defendant’s request to dismiss Plaintiff’s retaliation
claim based upon Plaintiff’s July 2010 removal from the “COOP” team, because Plaintiff has not
plausibly alleged that this removal was a “materially adverse” employment action. The Court,
however, DENIES all Defendant’s remaining arguments for the dismissal of Plaintiff’s retaliation
claim. As such, Plaintiff’s claims for retaliation based on her September 13, 2010 Counseling
Memorandum, her FY 2010 performance review, and her January 5, 2011 Performance
Improvement Plan survive Defendant’s [11] Motion to Dismiss.
B. Hostile Work Environment
In her complaint, Plaintiff also asserts a claim for a “hostile work environment.” Compl.
at 20. Although Plaintiff ambiguously references “discrimination” in her pleadings, Plaintiff
frames her hostile work environment claim as a form of retaliation in response to her EEO
complaints. See, e.g., id. at 21 (“In violation of Title VII, the Department discriminated against
Plaintiff because she made a charge of employment discrimination.”). In its motion, the
Department reads Plaintiff’s complaint to assert only a retaliatory hostile work environment claim,
see Def.’s Mot. at 24–26, and Plaintiff does not object to this characterization in her opposition
brief, see, e.g., Pl.’s Opp’n at 2 (“I was also subjected to a hostile work environment and was
subjected to harassment in the form of retaliation, after I amended my pending complaint to include
27
Ms. Edna Thomas.”). The Court agrees with this reading of Plaintiff’s complaint and will,
therefore, evaluate Plaintiff’s hostile work environment claim as one based upon retaliation.
“To prevail on a hostile environment claim based on previous participation in protected
activity, a plaintiff must show that [s]he was subjected to retaliatory intimidation that was
sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive
working environment.” Jimenez v. McAleenan, 395 F. Supp. 3d 22, 36 (D.D.C. 2019) (internal
quotations and citations omitted). “Severity and pervasiveness are determined by reference to ‘all
the circumstances,’ including ‘the frequency of the [retaliatory] conduct; . . . whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Baird v. Gotbaum, 792 F.3d 166, 169 (D.C.
Cir. 2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). At bottom, the alleged
“conduct must be extreme” to “ensure that Title VII does not become a general civility code”
requiring courts to regulate “the ordinary tribulations of the workplace.” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998) (internal quotation marks and citations omitted).
In its motion to dismiss, Defendant raises two arguments against Plaintiff’s retaliatory
hostile work environment claim. First, Defendant argues that Plaintiff improperly “relies upon the
same alleged adverse actions that support her discrete retaliation claims to support her hostile work
environment claim.” Def.’s Mot. at 25. At the pleading stage, this initial argument does not merit
dismissal. The D.C. Circuit has explained:
[W]e find no authority for the idea that particular acts cannot as a matter of law
simultaneously support different types of Title VII claims, and of course, plaintiffs
are free to plead alternative theories of harm that might stem from the same
allegedly harmful conduct. Thus, although a plaintiff may not combine discrete acts
to form a hostile work environment claim without meeting the required hostile work
environment standard, neither can a court dismiss a hostile work environment claim
merely because it contains discrete acts that the plaintiff claims (correctly or
incorrectly) are actionable on their own.
28
Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir. 2011). Put otherwise, a plaintiff may support a
hostile work environment claim by referencing discrete acts which also support individual
retaliation claims. See Gilliard v. Gruenberg, 302 F. Supp. 3d 257, 280 (D.D.C. 2018) (“Ms.
Gilliard’s hostile work environment claim is likewise not doomed by the fact that she earlier
asserted some of the allegations as discrete Title VII claims.”). The Court, therefore, will not
dismiss Plaintiff’s hostile work environment at the motion to dismiss stage simply because it relies
upon adverse actions also used to support discrete retaliation claims elsewhere in her complaint.
Next, Defendant contends more generally that Plaintiff’s hostile work environment
allegations “fall well short of showing that [her] workplace was so abusive so as to alter the
conditions of her employment.” Def.’s Mot. at 25. But again, the Court is unpersuaded by this
argument at the pleading stage, where the Court must “accept as true all of the complaint’s factual
allegations and draw all reasonable inferences in favor of the plaintiff[].” Owens v. BNP Paribas,
S.A., 897 F.3d 266, 272 (D.C. Cir. 2018). In her complaint, Plaintiff alleges that following her
EEO complaints in June and July of 2010, she suffered a series of harmful retaliatory actions at
the hands of her supervisors. For example, Plaintiff alleges that after her June 2010 EEO
complaint, Ms. Thomas sent her a harassing email that complained about Plaintiff’s EEO activity
and removed Plaintiff from the office’s “COOP” team. Compl. ¶ 13. Then, shortly after Plaintiff
filed her July 2010 EEO complaint, Plaintiff’s supervisors issued a counseling memorandum to
Plaintiff, which they allegedly “fabricated” by including multiple false statements regarding
Plaintiff’s work performance. See id. ¶¶ 17–23. Similarly, Plaintiff received a negative
performance review in October 2010, which was also allegedly inaccurate, see id. ¶ 27, and was
later used to deny Plaintiff’s request for medical leave, see id. ¶ 30.
29
Furthermore, Plaintiff alleges that during the Fall of 2010 Mr. Pafe attempted to “sabotage”
her work product by manipulating electronic files, see id. ¶ 24, and, on one occasion, Mr. Pafe
“laughed in [Plaintiff’s] face” as she struggled to complete an office fire drill due to her pre-
existing medical condition, id. ¶ 31. Then, in January 2011, Mr. Pafe placed Plaintiff on a
Performance Improvement Plan, which allegedly contained more intentionally incorrect
statements regarding Plaintiff’s work performance. See id. ¶¶ 32–36. Mr. Pafe ultimately
proposed Plaintiff’s removal in August 2011, allegedly supporting that decision with additional
misstatements regarding Plaintiff’s work performance. See, e.g., id. ¶¶ 46–47. Taken together,
these allegations, accepted as true at the pleading stage, plausibly establish a severe and pervasive
hostile work environment caused by Plaintiff’s EEO complaints. See, e.g., Behrens v. Tillerson,
264 F. Supp. 3d 273, 280 (D.D.C. 2017) (denying motion to dismiss retaliatory hostile work
environment at the pleading stage); Teliska v. Napolitano, 826 F. Supp. 2d 94, 99 (D.D.C. 2011)
(same and noting relatively low pleading standard for Title VII retaliation claims).
For the reasons set forth above, the Court will DENY Defendant’s motion to dismiss
Plaintiff’s retaliatory hostile work environment claim at the pleading stage. 6
6
Because Defendant does not raise a specific exhaustion challenge to Plaintiff’s hostile work environment
claim, the Court need not address Plaintiff’s exhaustion of her hostile work environment claim. See Bowden
v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (explaining that the defendant bears the burden of
pleading exhaustion as an affirmative defense). Nonetheless, the Court notes that Plaintiff did raise a hostile
work environment claim in her EEO complaint. See Jan. 6, 2011 Am. Compl., ECF No. 11-1, at 18–21.
Moreover, “[b]ecause the exhaustion requirement on a hostile work environment claim is less stringent than
for stand-alone claims of discrimination and retaliation, a plaintiff need only have filed an administrative
complaint alleging some of the claims that [support] the hostile work environment claim.” Jimenez v.
McAleenan, 395 F. Supp. 3d 22, 34 (D.D.C. 2019) (internal quotations and citations omitted). “Thus, a
plaintiff may incorporate non-exhausted allegations into a hostile work environment claim so long as some
allegations were exhausted and all of the allegations together form one hostile environment claim.” Id.
30
C. Race Discrimination and Disability Allegations
In addition to her retaliation claims, Plaintiff’s complaint also includes allegations of racial
discrimination, see Compl. ¶¶ 10, 12, 50–56, and allegations regarding the denial of “reasonable
accommodations” for Plaintiff’s medical condition, see id. at 2. Plaintiff further asserts in her
opposition brief that “[she] was subjected to race discrimination,” Pl.’s Opp’n at 2, and also
contends that her “inability to be able to obtain reasonable accommodations” at OBFM “caused
[her] physical and mental pain,” id. at 16. Defendant argues, however, that while Plaintiff
“mentions discrimination and discusses white comparators,” her complaint does not assert a formal
race discrimination claim. Def.’s Mot. at 20 n.8. Similarly, Defendant does not read Plaintiff’s
pleadings to assert a formal disability claim. Id. at 15 n.7.
The Court agrees with Defendant that Plaintiff’s pleadings do not provide adequate notice
of either a race discrimination or a disability-based claim. “While pro se litigants are held to less
stringent standards than lawyers for pleading purposes even pro se litigants must comply with the
Federal Rules of Civil Procedure, including Rule 8(a)[.]” Paul v. Gov’t of the District of Columbia,
317 F. Supp. 3d 66, 74 (D.D.C. 2018), aff’d sub nom. Paul v. Gov’t of Columbia, No. 18-7097,
2019 WL 1239848 (D.C. Cir. Mar. 14, 2019) (internal quotations and citations omitted). Rule 8(a)
requires, at a minimum, “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a). “The purpose of the minimum standard of Rule 8 is to give
fair notice to the defendants of the claim being asserted, sufficient to prepare a responsive answer,
to prepare an adequate defense and to determine whether the doctrine of res judicata applies.”
Satterlee v. Comm’r of Internal Revenue, 195 F. Supp. 3d 327, 334 (D.D.C. 2016). Enforcing the
requirements of Rule 8(a) “is largely a matter for the trial court’s discretion.” Ciralsky v. CIA, 355
F.3d 661, 669 (D.C. Cir. 2004).
31
The Court concludes that Plaintiff’s race discrimination allegations do not satisfy Rule 8(a).
To state a viable race discrimination claim under Title VII, a plaintiff must allege that she “suffered
an adverse employment action (2) because of [her] race[.]” Horsey v. United States Dep’t of State,
387 F. Supp. 3d 97, 105 (D.D.C. 2019), aff’d, 805 F. App’x 10 (D.C. Cir. 2020). “[F]or an adverse
employment action to be taken ‘because of’ the plaintiff’s protected status, ‘discrimination must
be a motivating factor in . . . [the] adverse employment action.’” Id. (quoting Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 370 (2013)). Even a generous reading of Plaintiff’s pleadings
fails to provide concise notice of such a claim. To start, Plaintiff’s complaint does not formally
assert a race discrimination claim under Title VII. Instead, the “Causes of Action” section within
Plaintiff’s complaint focuses expressly on allegations of harassment and retaliation. See Compl.
at 20–21. And therein, even Plaintiff’s passing reference to “discrimination” arises specifically
within the context of retaliatory conduct. See, e.g., id. at 21 (“In violation of Title VII, the
Department discriminated against the Plaintiff because she made a charge of employment
discrimination.”) (emphasis added).
Furthermore, the race-based allegations scattered throughout Plaintiff’s pleadings are
untethered to a discernable theory of race discrimination under Title VII. As an initial matter, a
number of Plaintiff’s race-based allegations, such as the allegation that Ms. Thomas referred to
another OBFM employee as a “House Nigger,” id. ¶ 12, or Mr. Pafe’s alleged harassment of
another African American employee named Miranda Johnson, id. ¶ 56, do not apply directly to
Plaintiff herself. Moreover, it is not clear from the pleadings, how Plaintiff’s race-based
allegations are connected to any of the adverse actions she raises. See Horsey, 387 F. Supp. 3d at
107 (explaining that race discrimination claim must allege that some adverse action occurred
“because of” the employee’s race). For example, Plaintiff alleges that her former supervisor Mr.
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Roy “isolated” Plaintiff from her white co-workers at OBFM, see id. ¶¶ 9–10, but none of
Plaintiff’s allegations connect this race-based allegation to any of the alleged adverse employment
action mentioned in her complaint. The same holds true for Plaintiff’s allegations regarding white
comparators. See id. ¶¶ 52–56. Although these race-based allegations about disparate treatment
received by white employees at OBFM could be relevant to a race discrimination claim, Plaintiff’s
pleadings still fail to provide notice of the adverse actions she suffered specifically because of her
race. As noted above, Plaintiff’s pleadings connect her alleged adverse actions to her EEO
complaints and, consequently, sound in retaliation. See id. at 20–21 (setting forth “Causes of
Action”). In short, Plaintiff’s pleadings are too vague and imprecise to provide adequate notice of
a formal race discrimination claim under Rule 8.
Next, the Court finds that Plaintiff’s disability-based allegations similarly fail to provide
adequate notice of a viable claim under Rule 8(a). In her complaint, Plaintiff alleges with
generality that she was “denied reasonable accommodations because of a performance rating that
was issued as part of a campaign to retaliate and harass.” Compl. at 2. Plaintiff then later alleges
that in the Fall of 2010, she requested to work from home due to her “medical condition,” but that
the Department denied that request. Id. ¶ 30. Plaintiff’s opposition brief also references her
inability “to obtain reasonable accommodations for [a] serious illness.” Id. at 16.
These allegations are simply too vague to provide adequate notice of a disability-based
claim under Rule 8(a). Here again, the “Causes of Action” section in Plaintiff’s complaint makes
no reference to Plaintiff’s purported disability, nor does it reference a claim based upon a denied
workplace accommodation. See Compl. at 20–21. And to the extent Plaintiff is seeking relief
under the Rehabilitation Act, see, e.g., Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016)
(explaining the applicability of the Rehabilitation Act to federal agencies), she fails to invoke the
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statute anywhere in her complaint and does not make such a claim clear in her opposition brief.
Moreover, it is also unclear from Plaintiff’s pleadings what “medical condition” she is relying
upon to support her disability-based claim. See Congress v. District of Columbia, 324 F. Supp. 3d
164, 169 (D.D.C. 2018) (“To state a claim [under the Rehabilitation Act], a plaintiff must allege .
. . that she has a disability as defined in the ADA or Rehabilitation Act . . . ”). The absence of such
foundational allegations prohibitively obscures any disability-based claim Plaintiff might be
attempting to raise in her current pleadings.
For the reasons set forth above, the Court concludes that, even when construing Plaintiff’s
pro se pleadings broadly, Plaintiff’s race discrimination and disability allegations fail to plainly
and concisely state a claim that satisfies the basic notice requirements of Rule 8(a). See Ciralsky,
355 F.3d at 669. Accordingly, the Court will DISMISS Plaintiff’s purported race discrimination
and disability-based claims WITHOUT PREJUDICE. Finally, the Court notes that Plaintiff’s
opposition brief makes a passing request to amend her pleadings, in the event that “the Court is
confused” about their contents. Pl.’s Opp’n at 2. Plaintiff, however, did not file a separate motion
for leave under Rule 15(a). In violation of this Court’s local rules, Plaintiff also failed to attach
any proposed amended complaint for the Court to consider. See Local Civil Rule 7(i) (“A motion
for leave to file an amended pleading shall be accompanied by an original of the proposed pleading
as amended.”). Given the lack of clarity regarding Plaintiff’s request for an amendment, the Court
will exercise its discretion and DENY Plaintiff leave to amend at this juncture. See Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (“[T]he grant or denial of leave to amend is
committed to a district court’s discretion.”). Nonetheless, in light of Plaintiff’s pro se status, the
Court denies her request for leave to amend her complaint WITHOUT PREJUDICE. If Plaintiff
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attempts to amend her pleadings in the future, she should file a separate motion for leave under
Federal Rule of Civil Procedure 15(a) and comply with Local Civil Rule 7(i).
IV. CONCLUSION
For the reasons provided herein, the Court shall GRANT IN PART and DENY IN PART
Defendant’s [11] Motion to Dismiss. The Court GRANTS Defendant’s motion to dismiss
Plaintiff’s discrete retaliation claims predicated on Plaintiff’s removal from the Department’s
“COOP” emergency response team, the denial of Plaintiff’s requested detail assignment, and
Plaintiff’s proposed removal from federal service. The Court, however, DENIES Defendant’s
motion to dismiss Plaintiff’s remaining retaliation claims predicated on Plaintiff’s September 13,
2010 Counseling Memorandum, her negative 2010 performance review, and her January 5, 2011
Performance Improvement Plan. Next, the Court DENIES Defendant’s motion to dismiss
Plaintiff’s claim for a retaliatory hostile work environment.
Finally, the Court DISMISSES Plaintiff’s race discrimination and disability claims, as
Plaintiff has not provided a plain and concise statement of those claims as required by Federal
Rule of Civil Procedure 8. Plaintiff’s request to amend her complaint to address its vagueness is
DENIED WITHOUT PREJUDICE. An appropriate Order accompanies this Memorandum
Opinion.
SO ORDERED.
Date: June 21, 2021
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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