Kelso v. Wilkie

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FELICIA KELSO,

Plaintiff,

v. Civil Action No. 1:19-cv-0722 (CJN)

DENNIS MCDONOUGH, Secretary, U.S.
Department of Veterans Affairs,

Defendant.

MEMORANDUM OPINION

Felicia Kelso, a former Department of Veterans Affairs employee, alleges that her

supervisors discriminated and retaliated against her in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq. See generally Compl., ECF No. 1. The Secretary moves

for summary judgment. See Mot. for Summ. J., ECF No. 15. For the reasons stated below, the

Court grants the Secretary’s motion.

I. BACKGROUND

Kelso, an African-American woman of Caribbean descent, applied in 2010 to be an

Administrative Specialist in the Department of Veterans Affairs Office of Facilities Programs

and Plans. See Compl. ¶ 7. Kelso alleges that the then-Director of the Programs Project

Management Services, Milan Srskic, originally offered her the position at a GS-9/11 level, which

is a GS-9 position with the potential to be promoted to GS-11. See id. According to Kelso, two

weeks after receiving this initial offer, Carol Gill, a human resources specialist, advised Kelso

that she could not be hired as a GS-9 and proposed that she instead accept “the GS-9 position at a

GS-7 level” with a commitment to attempt to elevate her position to a GS-9 after she started. See

1
Compl. ¶¶ 10–11; Pl.’s Depo. at 27–28. Kelso accepted the GS-7 job later that month believing

that the position would be “corrected” to GS-9 shortly thereafter. Compl. ¶ 13.

Within six months, Kelso began to experience problems with her coworkers. In

September 2010, William Levay, a project manager, allegedly confronted Kelso, accusing her of

giving preferential treatment to one of the three regional offices she was charged with servicing.

Pl.’s Depo. at 35. When Kelso denied the claim, Levay allegedly became visibly angry and

doubled down on his accusations. Compl. ¶ 24. Kelso says that she reminded Levay that he was

not her supervisor. Levay mockingly called Kelso “Sergeant,” seemingly referencing her prior

military service. See Compl. ¶ 26. Kelso took offense. She told Levay that they were not in the

military anymore and that she wanted to be addressed by her name. Pl.’s Depo. at 36.

The following day, Levay approached Kelso and told her that she would be “blackballed”

if she did not heed his warnings against favoritism. See Compl. ¶ 27. Although Kelso

acknowledges that she did not believe Levay used the term “blackballed” as a racial epithet, she

did perceive that his negative attitude toward her was based on her race and gender. Pl.’s Depo.

at 40.

Kelso quickly reported Levay’s behavior to Gill. See Pl’s Resp. to Def’s Interrogs.

(“Kelso Interrogs.”), ECF 15-4, at 1–2. Specifically, Kelso told Gill that Levay had unfairly

threatened her and spoke down to her in a hostile and disrespectful way. See id. She did not,

however, claim that Levay’s actions were a product of racial or sex discrimination. Id. In fact,

she did not recall during her deposition using the word discrimination at all during this

conversation with Gill. Kelso Depo. at 42.

Less than a month after her confrontational interactions with Levay, Kelso asked Srskic,

the then-Director for Programs Project Management Services, to convene an office-wide meeting

2
to finally resolve the tension with Levay. Pl.’s Depo. at 36, 41–43. Rather than bringing down

the temperature on their apparent feud, the meeting only ratcheted up the heat. Levay—who was

apparently caught off guard that the focus of an office-wide meeting was his treatment of

Kelso—became angry and told Kelso that if she would not do what Levay wanted, the

Department did not “need [her] here.” Kelso Interrogs. at 2.

Kelso alleges that, three weeks after this meeting, an open GS-9/11 position listed on the

Department’s human resources website was changed to a GS-9 position—meaning there was no

potential for promotion to GS-11. Comp. ¶ 30. In December 2010, Kelso was promoted to that

GS-9 Administrative Specialist position, a position she held for the remainder of her employment

with the Department. During that time, Kelso believed that, although her job title reflected a GS-

9 position, she was performing the duties of a GS-11.

In December 2011, the Department hired Carla Carter, an African-American woman, as a

GS-11 Staff Assistant. Compl. ¶ 36. Until then, Kelso had been the only female, black, and

Caribbean-American employee in the Construction and Facilities Management Office. See id.

Shortly after Carter joined the office, Kelso emailed Marge Pearce, the Department’s

Chief of Classification, requesting a desk audit concerning her employment level. See December

27, 2021 Email to Marge H. Pearce, ECF No. 18-3, 169. Pearce informed Kelso that a desk audit

could only be initiated by an employee’s supervisor and that the supervisor must explain to

human resources what has changed since the employee’s position was classified. Id. After no

action was taken on Kelso’s request, she emailed Dennis Milsten, who had recently replaced

Srskic as Kelso’s direct supervisor, with the same request. Milsten advised Kelso that she would

not be promoted to GS-11 because she had not reached full performance at GS-9. The next day,

Kelso contacted the Department’s Office of Resolution Management, which handles the VA’s

3
Equal Employment Opportunity (“EEO”) claims. Kelso completed her interview the following

day, in which she claimed that she suffered discrimination because (1) management failed to

reclassify her position to GS-9/11; (2) she had received a performance rating on a position

description that did not reflect her grade and series; and (3) duties were taken from her in an

attempt to downgrade her position. See generally Shakir Decl., ECF No. 15-2.

The following day, Milsten shifted Kelso’s duties regarding certain executive

correspondence to Carter and Kelso’s supply ordering tasks to Janelle Massey, a black woman

who was a GS-7 student trainee. Pl.’s Depo. at 58–60. Kelso claimed that she did not know

Milsten had reassigned these duties, but stated that “out of fairness,” Milsten should have

forewarned her that the duties would be transferred to her coworkers. Pl.’s Depo. at 60–61.

From February 2012 to April 2012, Kelso was involved in a number of interpersonal

disputes with her coworkers, which she claims are evidence of discrimination and retaliation.

Kelso alleges that on February 24, 2012, while she was briefly away from her desk, a Hispanic

student trainee approached Kelso’s desk area and turned down her music. When Kelso reported

the incident to Milsten, he immediately sent out an office-wide email reminding staff to respect

each other’s space. Shakir Decl. 32–33. Three days later, Milsten raised his voice to Kelso in a

condescending tone while discussing her position description and performance plan. Shakir

Decl. at 34.

On March 14, 2012, after Kelso mistakenly sent an email to the regional field offices

instead of circulating it internally, Levay approached her desk and spoke to her in a manner that

made Kelso feel incompetent. Pl.’s Depo. at 64–66. And, on the same day, a black male

coworker told Kelso that he had a dream that she killed people in the office. Pl.’s Depo. at 67.

4
 On April 19, 2012, Carter emailed two co-workers commenting that Kelso “did not lift a

finger” in connection with a certain task and that Carter “should have had her ironing.” Carter

Email, Ex. 7, ECF 15-4. And a week later, Carter allegedly made nasty comments about Kelso

to two co-workers. Pl.’s Depo. at 71–72. Kelso reported each of these incidents to Milsten.

Seven months later, Kelso finally reached her breaking point when Carter threw a manila

file folder at her, hitting her in the chest. After informing Milsten of the incident, Kelso went to

the hospital in an ambulance. Shortly thereafter, Kelso began searching for a new job and, five

months later, found one with the United States Forest Service. Pl.’s Depo. 78.

In 2018—remarkably, more than six years after Kelso had initially complained to the

Department’s Office of Resolution Management—the U.S. Equal Employment Opportunity

Commission affirmed the Department’s 2015 final decision on Kelso’s claims, concluding that

the Department had not engaged in unlawful discrimination or retaliation. Compl. ¶ 5. In 2019,

Kelso commenced this civil action by filing a Complaint alleging four claims under Title VII of

the Civil Rights Act of 1964. Kelso alleges that Defendant subjected her to unlawful

discrimination based on her sex, race, and national origin, see Compl. ¶¶ 67–69; unlawful

retaliation, see Compl. ¶¶ 73–76, and separate claims based on a discriminatory and retaliatory

hostile work environment, see Compl. ¶¶ 70–71.

II. LEGAL STANDARD

To prevail on a motion for summary judgment, a movant must show 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 (1986).

A factual dispute is material if it could alter the outcome of the litigation. See Anderson, 477

U.S. at 248. A dispute of material fact is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Id. The moving party always “bears the initial

5
responsibility of informing the district court of the basis for its motion, and identifying those

portions of the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue

of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When this showing has

been made, the non-moving party bears the burden of setting forth “specific facts showing that

there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

Thus, to avoid summary judgment, the non-movant must present some objective evidence

that would enable the court to find entitlement to relief. “[T]he mere existence of a scintilla of

evidence in support of the [non-movant’s] position will be insufficient; there must be evidence

on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.

“[M]erely colorable or not significantly probative evidence . . . is insufficient.” Potter v. District

of Columbia, 558 F.3d 542, 549 (D.C. Cir. 2009).

III. ANALYSIS

A. Discrete Discrimination Claims

Title VII makes it unlawful for an employer “to discriminate against any individual with

respect to compensation, terms, conditions, or privileges of employment” on the basis of that

individual’s race color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a). Title VII

discrimination claims that lack direct evidence of discrimination are subject to the burden-

shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The plaintiff bears the initial burden of establishing a prima facie case of discrimination. To

make such a showing, a plaintiff must point to evidence demonstrating that: “(1) she is a

member of a protected class; (2) she suffered an adverse employment action; and (3) the

unfavorable action gives rise to an inference of discrimination.” Stella v. Mineta, 284 F.3d 135,

145 (D.C. Cir. 2002). Once an employee has made this showing, the burden shifts to the

6
employer, who bears the burden of identifying “the legitimate, non-discriminatory . . . reason”

for taking the complained of action. Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015).

If the employer provides such a justification, the employee must show that the employer’s

justification is pretextual. Id.

Typically, at summary judgment district courts do not assess the first prong of the

McDonnell Douglas framework. The Court of Appeals has cautioned that such an inquiry is

“usually misplaced.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, (D.C. Cir. 2008). That

is because at summary judgment “employers ordinarily attempt to satisfy the second prong” of

the McDonnell Douglas framework by providing a legitimate explanation for the contested

action, and “they often succeed” at making such a showing. Figueroa v. Pompeo, 923 F.3d

1078, 1086–87 (D.C. Cir. 2019). When an employer satisfies the second prong, a district court’s

“analysis of the prima facie factors at summary judgment become gratuitous, even confusing,”

and fails to “simplify judicial proceedings.” Id.

To avoid this “largely unnecessary sideshow,” Brady, 520 F.3d at 494, the Court of

Appeals in Brady v. Office of the Sergeant at Arms “offered a shortcut” to district courts,

Figueroa, 923 F.3d at 1087. “Where an employee has suffered an adverse employment action

and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district

court need not—and should not—decide whether the plaintiff actually made out a prima facie

case under McDonnell Douglas.” Brady, 520 F.3d at 494. Instead, the court should skip to step

three of McDonnell Douglas and determine whether the employee can point to any evidence that

the employer’s justification for the action was pretextual. Id.

But this “Brady shortcut” has a critical caveat: It “applies only if the parties properly

move past the second [McDonnell Douglas] step.” Figueroa, 923 F.3d at 1087. When, as here,

7
the employer challenges whether an adverse employment action was taken, or when an employer

has not proffered a legitimate, non-discriminatory justification for the adverse employment

action taken, a district court cannot employ the Brady shortcut.1 See Webster v. U.S. Dep’t of

Energy, 267 F. Supp. 3d 246, 258 (D.D.C. 2017) (noting that a summary judgment the prima

facie case inquiry is “not always irrelevant”). In such instances, the court must instead engage in

the sometimes-difficult task of determining whether the employee has made out a prima facie

case of discrimination.

Kelso asserts two discrete discrimination claims. But neither survives step one of the

McDonnell Douglas burden-shifting framework either because (1) Kelso has not demonstrated

that she suffered a materially adverse employment action or because (2) Kelso has not

demonstratred that the claimed actions were taken because of Kelso’s membership in a protected

class.

Kelso’s first discrimination claim involves the September 2010 incidents with Levay. To

briefly recap, during their interactions, Levay accused Kelso of failing to treat the three outside

offices that she was responsible for servicing equally; allegedly spoke to Kelso in a demeaning

way; mockingly called her “Sergeant”; and threatened her, saying that she would be

“blackballed” if she failed to treat the outside offices equally.

These allegations, although demonstrative of a tense and unpleasant office spat between

coworkers, do not qualify as a materially adverse employment action under Title VII. After all,

“not everything that makes an employee unhappy is an actionable adverse employment action.”

1
In this case, the Parties dispute whether Kelso has suffered an adverse employment action, see Def.’s Mot. at 31
(arguing that the claimed adverse employment actions are “insufficient to establish that Plaintiff suffered a
cognizable materially adverse employment action”), and Defendant has not attempted to proffer legitimate
explanation for any potential adverse employment action. Additionally, the Parties filings focus exclusively on step
one of the McDonnell Douglas framework, so that is where the Court will direct its attention.

8
Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). Rather, “an employee suffers an adverse

employment action if he experiences materially adverse consequences affecting the terms,

conditions, or privileges of employment or future employment opportunities such that a

reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,

1131 (D.C. Cir. 2002). Paradigmatic examples of adverse employment actions include “hiring,

firing, failing to promote, reassignment with significantly different responsibilities, or a decision

causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir.

2009) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)).

Kelso does not allege, much less provide evidence demonstrating, that her confrontations

with Levay altered the “terms, conditions, or privileges” of Kelso’s employment. Forkkio, 306

F.3d at 1131. She does not claim that Levay fired, demoted, suspended, disciplined, or otherwise

subject her to an action that impacted her employment status. Kelso has therefore failed to make

a showing that Levay’s actions constitute an adverse employment action.

Further, there is no evidence that Levay acted with hostility to Kelso because of her sex,

race, or national origin. Kelso does not point the Court to anything in the record supporting,

either directly or indirectly, Plaintiff’s allegation that Levay spoke to her in an aggressive and

caustic manner because she is a member of a protected class. This discrimination claim therefore

cannot survive summary judgment.

Kelso’s second discrimination claim, which fairs slightly better but ultimately resolves in

the same manner, centers on her claim that Milsten failed to promote to her. Failing to promote

is a prototypical example of an adverse employment action. See Douglas, 559 F.3d at 552. But

Kelso has again failed to point the Court to any evidence in the record demonstrating that

Milsten did not promote Kelso on account of her race, sex, or national origin. In fact, the limited

9
evidence in the record seems to indicate that Milsten gave ample opportunities to Kelso’s

colleagues in her protected class. For instance, when Milsten took job responsibilities and duties

away from Kelso, he gave them to other African-American women. This cuts against Kelso’s

attempt to establish prima facie discrimination claim. See Oliver-Simon v. Nicholson, 384 F.

Supp. 2d 298 (2005) (finding that Plaintiff established a discriminatory nexus when, despite

meeting the minimum qualifications, she was passed over for multiple job openings that all went

to individuals outside of her protected class). Because there is no additional evidence in the

record to demonstrate that Milsten failed to promote Kelso because of her race, national origin,

or sex, it ultimately proves fatal to this discrimination claim.

Because Kelso has failed to proffer evidence that she suffered an adverse employment

action or that any adverse employment action she might have suffered was the result of sex, race,

or national origin discrimination, the Court grants summary judgment on this claim to the

Secretary.

B. Discriminatory Hostile Work Environment Claim

Title VII makes it unlawful for employers to require “people to work in a discriminatorily

hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). “A hostile

work environment claim is composed of a series of separate acts that collectively constitute one

‘unlawful employment practice.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117

(2002) (quoting 42 U.S.C. § 2000e–5(e)(1)).

For a plaintiff’s claim to survive summary judgment, the Court must be satisfied that a

reasonable juror looking at the evidence could conclude that a plaintiff’s workplace was

“permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of employment and create an abusive environment.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In making this determination, courts look to “the

10
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.” Brooks v.

Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014). Courts apply an “objective standard by

considering whether a reasonable person in a plaintiff’s position would find the conduct

“severely hostile or abusive.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82

(1998). And to be actionable under Title VII, the conduct must be “extreme” and go beyond “the

ordinary tribulations of the workplace, such as sporadic use of abusive language . . . and

occasional teasing.” Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998).

The alleged incidents that form the base of a hostile work environment claim must also

“give rise to an inference of discrimination.” Bryant v. Brownlee, 265 F. Supp. 2d 52, 63

(D.D.C. 2003). This means that when examining a hostile work environment claim courts must

“exclude from consideration personnel decisions that lack a linkage of correlation to the claimed

ground of discrimination.” Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002).

The Secretary argues that he is entitled to summary judgment because (1) Plaintiff’s

allegations of harassment are not sufficiently severe or pervasive to alter the conditions of her

employment, and (2) the alleged incidents forming the basis of the hostile work environment

claim do not give rise to an inference of discrimination. The Court agrees on both fronts.

Kelso bases her discriminatory hostile work environment claim on several interactions,

occurring in two general time periods that are more than 16 months apart. Kelso first points to

her interactions with Levey in September 2010, discussed above. Kelso does not identify any

other instances of hostile or unwanted behavior towards her for more than a year. Then, from

February 2012 to April 2012: (1) a student trainee turned down Kelso’s radio while Kelso was

using the restroom; (2) Milsten raised his voice and spoke condescendingly when addressing a

11
performance issue and her GS-11 promotion; (3) Levay chastised Kelso for sending an email to

the incorrect recipients; (4) a coworker told Kelso that he dreamed that she killed people in the

office; and (5) Carter spoke negatively about Kelso behind her back. And in November 2012,

Carter threw a manila folder at Kelso, hitting her in the chest.

As in many cases, these interactions may be boorish and reflect poorly on the

participants, but they are not sufficiently severe or pervasive to form an actionable Title VII

claim. Instead, the vast majority of Kelso’s claims involve minor personal squabbles with

coworkers. They include disputes over emails, noise coming from Kelso’s cubicle, office gossip,

and Kelso’s boss being condescending during a performance review. These actions represent the

“ordinary tribulations of the workplace,” which are insufficient to make a prima facie hostile

work environment claim. Faragher, 524 U.S. at 788. After all, to be actionable the conduct

complained of “must be extreme to amount to a change in the terms and conditions of

employment.” Id. at 788. This standard is designed to be “sufficiently demanding” so that anti-

discrimination statutes do not become “general civility code[s].” Id. (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).

Even if Kelso could establish that she was subjected to abusive conduct that was

objectively severe or pervasive, she has failed to proffer evidence that the conduct was motivated

by her membership in a protected class. Kelso alleges that she was subjected to a hostile work

environment either because she is African-American, of Caribbean-descent, or a female. Yet she

points to no evidence demonstrating that this is the case. It is well-established that “hostile

behavior, no matter how unjustified or egregious, cannot support a claim of a hostile work

environment unless there exists some linkage between the hostile behavior and the plaintiff’s

12
membership in a protected class.” Na’im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C. 2009).

Kelso has simply failed to show this linkage.

Because Kelso has failed to demonstrate that the actions taken against her were so severe

or pervasive as to alter the conditions of her employment and has also failed to point to evidence

in the record giving rise to an inference of discrimination, the Court will grant Defendant’s

motion for summary judgment on his claim.

C. Retaliatory Hostile Work Environment Claim

For a retaliatory hostile work environment claim to survive summary judgment, a

plaintiff must show that a reasonable juror, taking the evidence in the light most favorable to the

plaintiff, could conclude that (1) she engaged in a “protected EEO activity”; and (2) “a causal

connection between the harassment [she] suffered and [her] involvement in the protected EEO

activity.” Na’im, 626 F. Supp. 2d at 79.

The Parties agree that Kelso satisfies the first element of a retaliatory claim—she

engaged in a protected EEO activity. Yet they disagree about when Kelso first engaged in that

activity. Kelso argues that her September 2010 conversation with Gill, in which she addressed

an interpersonal problem with Levay, constituted a protected activity. See Pl.’s Opp’n at 27.

Defendant argues that because Kelso did not raise a claim of discrimination with Gill during

their September 2010 conversation, Kelso’s first protected EEO activity was not until February

2012, when Plaintiff first contacted the VA’s Office of Resolution Management. See Def’s Mot.

at 25.

Under Title VII, a “protected activity” is an “employee’s opposition to an unlawful

employment practice or . . . an employee’s participation in a discrimination charge, investigation,

or proceeding.” Burton v. Batista, 399 F. Supp. 2d 97, 114 (D.C. 2004). “While no magic words

13
are required” to mark an exchange a protected activity, the employee “must in some way allege

unlawful discrimination.” Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006).

Kelso acknowledges that in her 2010 conversation with Gill, she did not even mention,

much less allege, that Levay’s actions toward her were based on unlawful discrimination. See

Compl. ¶¶ 24–30. To be sure, Kelso insisted that Levay mistreated her by threatening her and

talking to her in a demeaning way. Kelso Interrogs., 1–2. But she made no claims that a reason

for his rude behavior was based on Kelso’s race, sex, national origin, or any other identity

characteristic protected by Title VII. Id. It wasn’t until 2012, when Kelso contacted the VA’s

Office of Resolution Management to discuss the fact that she had not yet been promoted, that

Kelso first raised a discrimination claim. That was the moment that she first engaged in a

protected EEO activity. Any allegedly hostile events occurring prior to Kelso’s February 2012

contact with the Office of Resolution Management cannot be considered as part of Kelso’s

retaliatory hostile work environment claim. Broderick, 437 F.3d at 1232.

When looking at the events that occurred after Kelso’s 2012 complaint to the Office of

Resolution Management, the result is no different than her discriminatory hostile work

environment claim: She has not proffered evidence that her treatment was severe or pervasive.

Harris, 510 U.S. at 21. In fact, Kelso’s retaliatory hostile work environment claims are slightly

weaker than her discriminatory hostile work environment claims because they do not include

Levay’s actions from September of 2010.

And just as Kelso has failed to proffer evidence of a requisite discriminatory nexus

relating to her hostile work environment claim, she has failed to point to record evidence

suggesting that a causal connection exists between protected EEO activity and the alleged

harassment. Indeed, Kelso does not allege, let alone cite to any record evidence, that two of her

14
co-workers—the student trainee who turned down Kelso’s music or the coworker who told her

about his dream—even knew that she had complained to the Department’s Office of Resolution

Management.

Kelso cannot demonstrate that the actions taken against her were so severe or pervasive

as to alter the conditions of her employment and the alleged incidents forming the base of the

hostile work environment claim cannot give rise to an inference of retaliation. Therefore, the

Court will grant Defendant’s motion for summary judgment on this claim.

D. Retaliation Claim

To prevail on a claim of discrete acts of retaliation under Title VII, a plaintiff must show

that “that she engaged in activity protected by Title VII, the employer took adverse action against

her, and the employer took that action because of the employee’s protected conduct.” Walker v.

Johnson, 798 F.3d 1085, 1091–92 (D.C. Cir. 2015). A materially adverse action for the purposes

of retaliation “is one that could conceivably dissuade a reasonable worker from making or

supporting a charge of discrimination.” Newton v. Office of the Architect of the Capitol, 839 F.

Supp. 2d 112, 116 (D.D.C. 2012). Although the “universe of cognizable retaliatory actions is

broader than that of discriminatory actions, as a reasonable worker could be discouraged from

reporting abuse by actions that might not themselves be considered abuse,” Swann v. Officer of

the Architect of Capitol, 73 F. Supp. 3d 20, 26–27 (D.D.C. 2014), it is not so broad as to allow

the federal judiciary to sanction trivial harms or micromanage a supervisor’s decisions.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70–71 (2006). When, as here, there is

no direct evidence of retaliation, the familiar McDonnell Douglas burden-shifting framework

applies. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009).

Since Kelso’s protected activity occurred in February 2012, any alleged retaliatory

actions had to occur after that date to be actionable. The post-February 2012 actions of Kelso’s

15
coworkers—including the student trainee turning down her music, a colleague informing others

of a macabre dream involving Kelso, and Levay chastising Kelso for sending an email to the

wrong group of recipients—were perhaps rude or inappropriate, but none of these alleged actions

“could conceivably dissuade a reasonable worker from making or supporting a charge of

discrimination.” Newton, 839 F. Supp. 2d at 116. And, perhaps more significantly, Kelso cannot

point to any evidence indicating that her coworkers took these actions because she previously

engaged in a protected activity.

Kelso also points to the reassignment of certain work responsibilities in February 2012 as

a potential adverse employment action. In particular, two days after Milsten informed Kelso that

she would not be promoted and one day after Kelso filed her EEO complaint, Milsten reassigned

Kelso’s responsibility for certain executive correspondence to Carter, an African-American

woman who recently transferred into the office as a GS-11 and (Defendant argues) was in need

of additional work. Milstein also transferred the handling of requests for office supplies from

Kelso to Massey, an African-American women employed at a GS-7 level because, Defendant

contends, Milsten believed those clerical duties were appropriate for a lower-grade employee.

Kelso insists that these two changes were materially adverse and therefore actionable.

The Court disagrees. Although a significant change in an employee’s work assignments

is “a classic and widely recognized example of forbidden retaliation,” Burlington, 548 U.S. at 71,

courts in this district have noted that to be considered a significant change the duties assigned

away from the employee must be either a “substantial[]” part for her work, Lee v. Winter, 439 F.

Supp. 2d 82, 85 (D.D.C. 2006), or particularly “prestigious,” Robb v. Vilsack, 2021 WL

3036796, *12 (D.D.C. July 19, 2021). That is because Title VII’s “anti-retaliation provision

protects an individual not from all retaliation, but from retaliation that produces an injury or

16
harm.” Burlington, 548 U.S. at 67. Here, even under “the more lenient standard” for retaliation,

Kelso has failed to demonstrate the reassignment of some of her minor duties constituted an

adverse employment action. Brookens v. Solis, 616 F. Supp. 2d 81, 91 (D.D.C. 2009) (finding

denial of desk audit did not qualify as adverse action under retaliation standard where plaintiff

did not allege any resulting injury or harm).

Because Kelso has failed to demonstrate that she suffered an adverse employment action,

the Court grants summary judgment on Kelso’s discrete retaliation claim to Defendant.

IV. CONCLUSION

For the reasons stated above, the Court grants Defendant’s Motion for Summary

Judgment. A separate order will issue.

DATE: August 30, 2021
CARL J. NICHOLS
United States District Judge

17