United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 1, 2011 Decided December 13, 2011
No. 10-5421
RHONDA N. BAIRD,
APPELLANT
v.
JOSHUA GOTBAUM, DIRECTOR,
PENSION BENEFIT GUARANTY CORPORATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01091)
Rhonda Baird, appearing pro se, argued the cause and
filed the briefs for appellant.
Michelle Lo, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Ronald C. Machen
Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: ROGERS and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
2
WILLIAMS, Senior Circuit Judge: Appellant Rhonda N.
Baird, an African-American female attorney in the Office of
the Chief Counsel of the Pension Benefit Guaranty
Corporation (“PBGC”), filed suit in district court against the
PBGC, claiming employment discrimination and retaliation in
violation of Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e. The district court dismissed all her claims under
FED. R. CIV. P. 12(b)(6). Baird v. Snowbarger, 744 F. Supp.
2d 279 (D.D.C. 2010). We discuss only those that she
appeals. They fall into two categories: first, claims of race
and gender discrimination (Counts III and V), and of unlawful
retaliation (Count I), arising out of four discrete episodes;
second, a claim of a retaliatory hostile work environment
(Count II) arising not only out of the four discrete episodes
but also out of various other events as to which she raised
claims that were time-barred (apart from their potential role in
her hostile environment claim).
As always, of course, the allegations of plaintiff’s
complaint are presumed true, and all reasonable factual
inferences must be drawn in her favor. Maljack Prods., Inc. v.
Motion Picture Ass’n of Am., 52 F.3d 373, 375 (D.C. Cir.
1995). To the extent that the Supreme Court’s decisions in
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009), and
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), may
qualify these principles, the qualifications are not pertinent to
the issues immediately before us.
We affirm the district court’s dismissal of the claims that
rely on the four discrete episodes standing alone but vacate
and remand as to the claim of retaliatory hostile work
environment.
3
* * *
Discrete episodes claims. The four discrete episodes are
the following: (1) In a dispute within the PBGC over the
agency’s scan of its email system, some fellow workers
circulated emails calling Baird “psychotic.” (2) The Human
Resources Department singled out Baird in securing her
signature acknowledging receipt of an email-related office
memorandum. (3) PBGC litigation counsel Raymond Forster
sent an email to several employees advising “the 11th floor
OGC [Office of General Counsel] staff in the area of
conference room 11E to use caution about what they say in
halls or open offices,” for “[c]ertain people who will be in
11E have a way of twisting and publicizing their litigation
induced hallucinations.” (4) One Ruben Moreno had shouted
and pounded the table at Baird while she deposed him during
a proceeding involving Equal Employment Opportunity
complaints. See Baird, 744 F. Supp. 2d at 283-85.
In dismissing the claims arising out of these events, the
district court relied on the absence of “an adverse employment
action.” See, e.g., Stella v. Mineta, 284 F.3d 135, 145 (D.C.
Cir. 2002). For discrimination claims, an action must, to
qualify, be “a significant change in employment status, such
as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing
significant change in benefits.” Douglas v. Donovan, 559
F.3d 549, 552 (D.C. Cir. 2009). An employee must
“experience[] 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.” Id. In the retaliation
context the “adverse action” concept has a broader meaning.
There, actions giving rise to claims are “not limited to
discriminatory actions that affect the terms and conditions of
employment,” Burlington N. & Santa Fe Ry. Co. v. White, 548
4
U.S. 53, 64 (2006), but reach any harm that “well might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination,” id. at 68. See Baird, 744 F. Supp.
2d at 290-91, 292. The district court found that Baird’s
allegations fell short of these threshold requirements, as to
both discrimination and retaliation.
Plaintiff’s claims here are relatively unusual in that she
does not assert that discriminatory intention brought about the
underlying acts (what we’ve called the discrete episodes), and
even as to retaliation she soft-pedals her claim of retaliatory
intent. Rather, she argues that such discriminatory and
retaliatory intent caused the PBGC’s failure to respond to her
complaints about them and to take corrective action against
the employees who, as she sees it, had traduced or abused her.
Thus the case is in important respects like Rochon v.
Gonzales, 438 F.3d 1211 (D.C. Cir. 2006), where the plaintiff
(an FBI agent) alleged that the FBI had received credible
death threats against himself and his wife, made by an inmate
in a federal prison, and that the FBI, out of discriminatory and
retaliatory motives, had failed to investigate or take any steps
to protect him. Id. at 1213-14. There was no suggestion that
the FBI was responsible for the threatening inmate’s behavior,
but (focusing on the retaliation) we found that allegations of
an unlawfully motivated failure to investigate the threat or to
protect the Rochons were sufficient to survive a motion under
Rule 12(b)(6). Id. at 1219-20.
Of course death threats are extreme, but we think the
Rochon principle may be generalized, though slightly
differently with respect to discrimination and retaliation.
Stated in a form most favorable to plaintiff, a claim of
discriminatory or retaliatory failure to remediate may be
sufficient if the uncorrected action would (if it were
discriminatory or retaliatory) be of enough significance to
qualify as an adverse action (under the relevant standard).
5
As to discrimination, the district court concluded that,
even if unlawfully motivated, the actions taken by the PBGC
would not rise to the level of “adverse employment actions,”
because they “would not effect a ‘significant change’ in
plaintiff’s employment status,” Baird, 744 F. Supp. 2d at 291
(emphasis in original), and “[did] not rise to the level of
objectively tangible harm,” id. We agree. Indeed, each of the
four discrete episodes seems (at worst) akin to the sort of
“public humiliation or loss of reputation” that we have
consistently classified as falling below the requirements for an
adverse employment action. We found in Stewart v. Evans,
275 F.3d 1126, 1135-36 (D.C. Cir. 2002), for instance, that in
the absence of accompanying effects on salary or other
elements of employment status, plaintiff’s claim that
supervisors “intentionally and perfidiously created the
appearance that the plaintiff and her staff were involved in
violations of court orders and obstruction of justice” did not
amount to an adverse employment action. See also, e.g.,
Taylor v. Small, 350 F.3d 1286, 1292-93 (D.C. Cir. 2003)
(supervisor’s delays in completing plaintiff’s performance
evaluations and placement of plaintiff on Performance
Improvement Plan were not adverse employment actions).
Baird seeks to take the case out of the class of garden-
variety workplace tension by pointing to the PBGC’s
Workplace Rules, which provide not only a code of civility
among employees but also mechanisms for remediation of
breaches. She argues passionately that the Rules are among
the “terms, conditions, or privileges of employment” with
respect to which Title VII affords protection, see 42 U.S.C.
§ 2000e-2(a)(1), evidently supposing that anything in that
category ipso facto meets the adverse action test for unlawful
discrimination. But “not everything that makes an employee
unhappy is an actionable adverse action,” Douglas, 559 F.3d
at 552, and the many workplace slights that we have in other
cases found to fall below the requisite threshold all related to
6
conditions of employment. Although necessary for her
discrimination claims, merely being such a condition in itself
is plainly not sufficient.
In a slight variation of this argument Baird points to
Hishon v. King & Spalding, 467 U.S. 69 (1984), where the
Court held sufficient to withstand dismissal plaintiff’s
allegations that a law firm discriminatorily breached its
contractual promise to consider an associate for partnership.
Because the firm’s promise was a “term” or “condition” of the
associate’s employment, indeed “a key contractual provision
which induced [the plaintiff] to accept employment,” id. at 74-
75, it was no defense for the firm to say that admission to
partnership was not itself a term or condition of employment.
Id. at 73-78. Baird of course does not face the technical
obstacle that Hishon did—that of demonstrating the existence
of any employment-related benefit in the first place; the
behavior of which she complains indubitably had the requisite
relation to employment for purposes of coverage by Title VII.
But that is of no help to her in meeting the adverse action test,
as the slights to which she objects are hardly in the same
category as failing to consider one for advancement to
partnership.
Baird’s retaliation claims arising from the four discrete
episodes differ from her discrimination claims only in that the
concept of adverse action is somewhat broader and in that
Rochon is directly applicable. The district court found that
none of the acts, or the failure to remedy them, was sufficient
under the controlling standard. Baird, 744 F. Supp. 2d at 293,
294. Again, we agree. We do not believe that the PBGC’s
failure to remedy the various critiques and epithets to which
Baird’s fellow employees subjected her would have persuaded
a reasonable employee to refrain from making or supporting
charges of discrimination. See Baloch v. Kempthorne, 550
F.3d 1191, 1199 (D.C. Cir. 2008) (“sporadic verbal
7
altercations or disagreements do not qualify as adverse actions
for purposes of retaliation claims”).
Accordingly, as to all four discrete episodes, we affirm
the district court’s dismissal of Baird’s claims of race and
gender discrimination and of unlawful retaliation.
Retaliatory hostile work environment. To prevail on a
hostile work environment claim, “a plaintiff must show that
his employer subjected him to ‘discriminatory intimidation,
ridicule, and insult’ that is ‘sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment.’” Baloch, 550 F.3d at 1201
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
We have previously found that “a hostile work environment
can amount to retaliation under Title VII” if the conduct meets
that standard. See Hussain v. Nicholson, 435 F.3d 359, 366
(D.C. Cir. 2006); see also Singletary v. District of Columbia,
351 F.3d 519, 526 (D.C. Cir. 2003). In evaluating Baird’s
retaliatory hostile work environment claim, the district court
analyzed the four discrete episodes and concluded that Baird
“[could not] satisfy [the Harris] test, because none of the acts
that she alleges, whether considered alone or cumulatively,
meets ‘the demanding standards’ for a hostile work
environment claim.” Baird, 744 F. Supp. 2d at 295 (quoting
Sewell v. Chao, 532 F. Supp. 2d 126, 141-42 (D.D.C. 2008)).
Baird argues on appeal that the district court erred in
excluding two categories of acts from her hostile work
environment claim: (1) actions as to which she filed
complaints with the Equal Employment Opportunity
Commission but which were time-barred, and (2) the
underlying conduct that the PBGC allegedly failed to
investigate and remedy. We discuss each in turn.
8
(1) Time-barred acts. As we explained in Singletary v.
District of Columbia, the Supreme Court has made clear that
“‘discrete discriminatory acts’ . . . ‘are not actionable if time
barred, even when they are related to acts alleged in timely
filed charges.’” 351 F.3d at 526 (quoting Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). “But
‘[h]ostile environment claims . . . are different in kind from
discrete acts’ because ‘[t]heir very nature involves repeated
conduct.’” Id. (alterations in original) (quoting Morgan, 536
U.S. at 115). “Such a claim . . . ‘is comprised of a series of
separate acts that collectively constitute one unlawful
employment practice,’” and accordingly “are subject to a
different limitations rule . . . . ‘Provided that an act
contributing to the claim occurs within the filing period, the
entire time period of the hostile environment may be
considered by a court for the purposes of determining
liability.’” Id. at 526-27 (quoting Morgan, 536 U.S. at 117).
The Morgan principle is not, however, an open sesame to
recovery for time-barred violations. Both incidents barred by
the statute of limitations and ones not barred can qualify as
“part of the same actionable hostile environment claim” only
if they are adequately linked into a coherent hostile
environment claim—if, for example, they “involve[] the same
type of employment actions, occur[] relatively frequently, and
[are] perpetrated by the same managers.” Morgan, 536 U.S.
at 120-21. See also id. at 118 (excluding any incident that
“had no relation to the [other] acts . . . or for some other
reason, such as certain intervening action by the employer,
was no longer part of the same hostile environment claim”);
Wilkie v. Dep’t of Health & Human Servs., 638 F.3d 944, 951
(8th Cir. 2011) (“[A]cts before and after the limitations period
[that are] so similar in nature, frequency, and severity . . .
must be considered to be part and parcel of the hostile work
environment . . . .” (alterations and emphasis in original));
Wheaton v. N. Oakland Med. Ctr., 130 Fed. App’x 773, 787
9
(6th Cir. 2005) (Morgan requires inquiry into whether
incidents “occurring outside the statutory period are
sufficiently related to those incidents occurring within the
statutory period as to form one continuous hostile work
environment.” (emphasis in original)). These formulations are
at best only rather general, but neither the Supreme Court nor
any circuit seems yet to have offered anything more
illuminating.
Baird is clearly correct that the district court erred to the
extent that it categorically excluded her time-barred
complaints in considering the hostile work environment claim,
thus failing to employ the Morgan analysis, including, of
course, a determination of which acts exhibit the relationship
necessary to be considered “part of the same actionable hostile
environment claim.”
(2) Underlying acts. Baird additionally argues that the
district court erred in considering only the PBGC’s alleged
failures to investigate various Workplace Rules violations,
and not the underlying, uninvestigated conduct itself (without
conceding that the latter must have been retaliatory itself in
order for her allegations to state a claim). See Baird, 744 F.
Supp. 2d at 294. The district court did so because, in its view,
Baird failed to “allege that this underlying behavior (as
opposed to defendant’s response to this behavior) was due to
[her] race, sex, or activity protected under Title VII.” Id.
(citing Franklin v. Potter, 600 F. Supp. 2d 38, 76 (D.D.C.
2009); Na’im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C.
2009)).
But allegations of retaliatory intent are plainly present at
least as to some of the underlying acts. For example, the
complaint very plainly attributes the emails suggesting
psychosis to an intent to retaliate. First Amended Complaint
¶ 26. Moreover, the complaint’s retaliatory environment
10
claim explicitly incorporates all prior allegations by reference,
id. ¶ 66, and then says that “[t]he harassment and hostile work
environment including PBGC’s failure to take appropriate
corrective action was so severe and/or pervasive that it altered
the terms and conditions of Plaintiff’s employment and
created a very abusive atmosphere,” id. ¶ 68 (emphasis
added). Given that this whole count is directed entirely to
retaliation, this language clearly asserts retaliatory purpose as
to the underlying acts. We take no position as to the ultimate
adequacy of the complaint under Iqbal and similar cases, but
the categorical exclusion of the underlying acts was error.
Baird also raises a closely related argument. The district
court suggested that a “plaintiff cannot rely on the discrete
acts upon which she bases her discrimination and retaliation
claims to support her hostile work environment claim.”
Baird, 744 F. Supp. 2d at 295; see also id. at 295-96
(“Because plaintiff’s allegedly hostile events are the very
employment actions she claims are retaliatory, she cannot so
easily bootstrap allegedly retaliatory incidents into a broader
hostile work environment claim.” (quoting Franklin, 600 F.
Supp. 2d at 76, with alterations)).
The district court and the cases on which it relies are
correct to the extent they simply mean that acts giving rise to
a hostile work environment claim must collectively meet the
independent requirements of that claim (i.e., be “sufficiently
severe or pervasive . . . ,” Harris, 510 U.S. at 21), and must be
adequately connected to each other (i.e., “all acts which
constitute the claim are part of the same unlawful employment
practice,” Morgan, 536 U.S. at 122), as opposed to being an
array of unrelated discriminatory or retaliatory acts. But we
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
11
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.
In this connection, finally, we note an argument of the
PBGC, invoking a footnote in the district court’s opinion, that
“Baird ‘[did] not attempt to segregate those events she claims
constitute a hostile work environment from discrete acts of
discrimination and/or retaliation.’” Appellee’s Br. 42
(quoting Baird, 744 F. Supp. 2d at 294 n.10). Although
absence of segregation in the complaint doubtless complicates
the court’s task, the complication can presumably be cured by
insistence on suitably targeted briefing, and is not an
independent ground for excluding time-barred claims from the
hostile work environment analysis under Rule 12(b)(6).
We therefore vacate the district court’s dismissal of
Baird’s retaliatory hostile work environment claim and
remand for a determination of which, if any, acts should have
been included under Morgan (and of course whether those
acts satisfy Morgan). We express no opinion on whether the
PBGC’s motion to dismiss is ultimately meritorious or
whether further proceedings involving discovery, etc., are
appropriate.
* * *
For the foregoing reasons, we conclude that the district
court correctly dismissed for failure to state a claim all the
specific-act claims of discrimination and retaliation (Counts I,
III, and V). As to the claim of retaliatory hostile work
environment (Count II), we find that the district court
12
incorrectly excluded from its analysis acts by the PBGC that
may have supported the claim. The judgment of the district
court is therefore affirmed in part, vacated in part, and
remanded.
So ordered.