Wright v. Sessions

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ANGELA WRIGHT,

Plaintiff,

v.

MERRICK B. GARLAND, in his Civ. Action No. 17-1081
official capacity as Attorney (EGS/GMH)
General of the United States,
U.S. Department of Justice, 1

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff Angela Wright (“Ms. Wright”) has sued Defendant

Merrick B. Garland in his official capacity as Attorney General

of the United States (“Defendant”) under Title VII of the Civil

Rights Act, 42 U.S.C. § 2000e et seq. See Compl., ECF No. 1. She

alleges sexual harassment, gender discrimination, and

retaliation for engaging in protected Equal Employment

Opportunity (“EEO”) activity during her six years as a Detention

1 Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, the current Attorney General of the United States,
Merrick B. Garland, is substituted as Defendant for the former
Attorney General of the United States, William P. Barr. See Fed.
R. Civ. P. 25(d).
1
Enforcement Officer with the U.S. Marshals Service (“Marshals

Service” or “Agency”) at the Department of Justice. See id.

Pending before the Court is Defendant’s Motion to Dismiss

or, in the Alternative, for Summary Judgment, see Def.’s Mot.

Dismiss or, in Alternative, Summ. J., ECF No. 23; and Ms.

Wright’s request for discovery pursuant to Rule 56(d), see Pl.’s

Opp’n Def.’s Mot. Dismiss, or, in Alternative, Summ. J., ECF No.

27 at 41-42. 2

Magistrate Judge Harvey issued a Report and Recommendation

(“R. & R.”) recommending that this Court grant in part and deny

in part Defendant’s Motion to Dismiss or, in the Alternative,

for Summary Judgment. See R. & R., ECF No. 47 at 1. Magistrate

Judge Harvey also recommended that this Court deny Ms. Wright’s

request for discovery pursuant to Rule 56(d) as moot. See id. at

2. Ms. Wright raises several objections to Magistrate Judge

Harvey’s R. & R. See generally Pl.’s Objs. Magistrate Judge’s R.

& R. (“Pl.’s Objs.”), ECF No. 52.

Upon careful consideration of the R. & R., the objections

and opposition thereto, the applicable law, and the entire

record herein, the Court hereby ADOPTS Magistrate Judge Harvey’s

R. & R., see ECF No. 47; GRANTS IN PART and DENIES IN PART

2 When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of
the filed documents.
2
Defendant’s Motion to Dismiss or, in the Alternative, for

Summary Judgment, see ECF No. 23; and DENIES Ms. Wright’s

request for discovery pursuant to Rule 56(d), see ECF No. 27 at

41-42.

II. Background 3

A. Factual

Ms. Wright began working as a Detention Enforcement Officer

with the Marshals Service on January 16, 2010. Def.’s Reply

Counter-Statement of Disputed Facts (“SOMF”), ECF No. 45-1 ¶ 1.

At that time, she was assigned to work at the District of

Columbia Superior Court (“D.C. Superior Court”). Id. ¶ 2.

On June 13, 2012, 4 Ms. Wright filed a complaint (the “June

2012 EEO Claim”) with the Office of Equal Employment Opportunity

for the Marshals Service (“EEO”). Id. ¶ 3. She made allegations

against the following individuals: Supervisory Detention

Enforcement Officer Eric Clark (“Supervisory Officer Clark”),

Supervisory Detention Enforcement Officer William Coleman

(“Supervisory Officer Coleman”), Supervisory Deputy U.S. Marshal

David Grogan (“Supervisory Deputy Grogan”), Supervisory Deputy

U.S. Marshal John Waters (“Supervisory Deputy Waters”),

3 The Background section closely tracks Magistrate Judge
Harvey’s R. & R. See R. & R., ECF No. 47 at 2-16.
4 Although the complaint is dated May 1, 2012, it was not filed

with the EEO Office until June 13, 2012. See ECF No. 23-4 at 2,
4.
3
Assistant Chief Deputy U.S. Marshal Terry Fred (“Assistant Chief

Deputy Fred”), Assistant Chief Deputy U.S. Marshal James Cyphers

(“Assistant Chief Deputy Cyphers”), and Chief Deputy U.S.

Marshal James Brooks(“Chief Deputy Brooks”). See ECF No. 23-4 at

2 (June 2012 EEO Claim).

The Agency accepted the following allegations and issues

for further investigation:

Whether [Ms. Wright] was discriminated against
based on sex (female), disability (carpel
tunnel syndrome) and parental status (single
parent) and subjected to sexual harassment and
a hostile work environment since May 1, 2012.
Examples of the sexual harassment/hostile work
environment include, but are not limited to
the following:

1. [Supervisory Officer Clark] asked [Ms.
Wright] for sexual favors, called and visited
[her] work post, and physically brushed his
body against [her];
2. [Supervisory Officer Clark] threatened to
change [Ms. Wright]’s work hours if she did
not give in to his sexual advances. [Ms.
Wright] alleges her status as a single parent
was a factor in this threat;
3. [Supervisory Officer Clark] commented to
District management that [Ms. Wright] is not
capable of performing her job and is
frequently off from work due to injury,
therefore, [she] should perform secretarial
duties; and
4. On June 13, 2012, [Supervisory Officer
Clark] attempted to have the Assistant Chief
Deputy place [Ms. Wright] on leave
restrictions.
5. Whether [Ms. Wright] was subjected to
reprisal (for filing the instant complaint)
and a hostile work environment since June 13,
2012, when district management officials:

4
 a) continually changed [her] work
assignment;
b) told other district employees
about [her] performance evaluation
rating;
c) again requested [her] be placed
on leave restriction;
d) questioned district employees
concerning [her] whereabouts and
lunch breaks;
e) discussed [her] leave, workman’s
compensation injury and other
personal business to and/or in front
of other district employees;
f) requested specific information
concerning [her] doctor
appointments; and
g) ordered [her] to be relieved from
her post and enter the cellblock for
meeting although [she] is on light
duty and had been instructed not to
enter the cellblock for safety
reasons.

SOMF, ECF No. 45-1 ¶ 4 (quoting ECF No. 23-4 at 4-6 (September

2012 EEO Acceptance Letter)).

On January 25, 2013, Ms. Wright amended her June 2012 EEO

Claim. See ECF No. 23-4 at 10 n.3 (2012 EEO Claim Investigation

Report)). This amendment added two allegations to the EEO

investigation:

Whether [Ms. Wright] was subjected to reprisal
(for filing the initial complaint) when:
(a) On November 8, 2012, [Ms. Wright] was
informed that her work hours were changed from
6:00 a.m. - 2:30 p.m. to 6:30 a.m. - 3:00 p.m.;
and
(b) On November 21, 2012, [Ms. Wright] was
informed by the supervisory deputy that she
has to report her arrival time, breaks, when
she departs for and returns from the bathroom,
as well as when she leaves for the day.

5
SOMF, ECF No. 45-1 ¶ 6 (citing ECF No. 23-4 at 10 (2012 EEO

Claim Investigation Report)).

Following this investigation, Ms. Wright sought a hearing

before an Administrative Judge on the Equal Employment

Opportunity Commission (“EEOC”). Id. ¶ 7. On February 25, 2015,

the EEOC held the requested hearing and heard testimony from Ms.

Wright and various employees at the Marshals Service. Id. ¶¶ 7-

8. The Administrative Judge issued his final decision on May 11,

2015, finding that Ms. Wright had failed to establish a claim of

sexual harassment, discrimination, retaliation, or hostile work

environment in violation of Title VII. Id. ¶ 9 (citing ECF No.

23-4 at 16-37 (May 2015 Decision)). The EEOC entered its final

order accepting the Administrative Judge’s decision and

informing Ms. Wright of her appeal rights on June 15, 2015. Id.

¶¶ 11-12.

In August 2013, while the investigation concerning the June

2012 EEO Claim was pending, Ms. Wright was temporarily

reassigned from the D.C. Superior Court to the U.S. District

Court for the District of Columbia. Id. ¶ 36. She was then

reassigned back to the D.C. Superior Court and moved to the

evening shift in April 2014. Id. ¶¶ 37-39. Chief Deputy U.S.

Marshal Charlotta Allen-Brown (“Chief Deputy Allen-Brown”)

assigned Ms. Wright to two supervisors: Supervisory Officer

6
Clark and Supervisory Deputy Waters. Compl., ECF No. 1 ¶¶ 17,

18, 23. Chief Deputy Allen-Brown instructed Assistant Chief

Deputy U.S. Marshal Todd Singleton (“Assistant Chief Deputy

Singleton”) to refer Ms. Wright to the Marshals Service’s

Employee Assistance Program (“EAP”). SOMF, ECF No. 45-1 ¶¶ 31-

32. Chief Deputy Allen-Brown testified that the Agency referred

Ms. Wright to the EAP because she was “very stressed out” over

being returned to D.C. Superior Court because people there “did

not like her,” she had “family issues,” and the transfer back

was “not in compliance with [an] alleged agreement that she had

previously entered with Headquarters senior management and the

Office of General Counsel.” ECF No. 23-5 at 10. Supervisory

Deputy Waters issued a memorandum to Ms. Wright on April 8,

2014, stating that her “participation in the EAP program is

mandatory, not voluntary.” Id. at 48. Chief Deputy Allen-Brown

and Assistant Chief Deputy Singleton later testified that the

EAP is voluntary and that neither intended the referral to be

mandatory. See SOMF, ECF No. 45-1 ¶¶ 33-35.

On April 28, 2014, Ms. Wright filed another complaint with

the Marshals Service’s EEO Office (the “April 2014 EEO Claim”).

Id. ¶ 13 (citing ECF No. 23-4 at 52). The Agency accepted the

following allegations for investigation:

(a) In a memorandum dated April 8, 2014, [Ms.
Wright] received notice that she had been

7
 referred to and directed to participate in the
Employee Assistance Program;
(b) On April 4, 2014, [Ms. Wright] learned
that her detail to the U.S. District Court was
ending that she was being returned to her duty
station at the D.C. Superior Court and
assigned to work the evening shift.

Id. ¶ 14 (citing ECF No. 23-4 at 54-55 (June 2014 EEO Letter)).

On June 30, 2014, Ms. Wright filed a third complaint with

the Marshals Service’s EEO Office (the “June 2014 EEO Claim”).

Id. ¶ 15. She alleged discrimination based on race, retaliation,

and a retaliatory hostile work environment. Id. ¶ 17. On October

28, 2014, the Agency accepted two incidents for investigation:

(a) On May 27, 2014, [Ms. Wright] learned she
was the only Detention Enforcement Officer
required to report to two different
supervisors.
(b) On May 6, 2014, her supervisor addressed
her in a hostile manner and stated she had
been watching [Ms. Wright] for a couple hours.

Id. ¶¶ 15-16 (quoting ECF No. 23-6 at 4-5 (October 2014 EEO

Letter)).

On August 4, 2014, Ms. Wright filed a fourth complaint with

the Marshals Service’s EEO Office (the “August 2014 EEO Claim”).

Id. ¶ 18. The Agency accepted the following claim for

investigation: “[w]hether [Ms. Wright] was subjected to reprisal

discrimination . . . when, on July 18, 2014, she learned she was

not to attend the August 2014 Basic Deputy United States Marshal

[training]. . . . [Ms. Wright] further alleged her non-selection

was a direct result of conversations she had in meetings with

8
her Chief Deputy” and “her previous EEO activity.” ECF No. 23-4

at 59 (August 2014 EEO Letter).

The Agency consolidated the April 2014 EEO Claim, June 2014

EEO Claim, and August 2014 EEO Claim (the “Consolidated 2014 EEO

Claim”). Id. ¶¶ 22-23.

Then, on December 26, 2014, Ms. Wright filed a fifth

complaint (the “December 2014 EEO Claim”). Id. ¶ 25. The Agency

determined it would investigate whether she “was subjected to

reprisal (filed prior EEO complaints) when, on December 5, 2014,

she learned she was not selected by her District for a slot in

the upcoming class of candidates for the Deputy U.S. Marshal

position (Vacancy Announcement Admit. 15 Number 11-001)

scheduled to begin on January 21, 2015.” Id. ¶ 26 (citing ECF

No. 23-6 at 33 (February 2015 EEO Letter)).

While the EEO Office conducted its investigations, Ms.

Wright “was engaged in a physical confrontation” with a prisoner

on June 8, 2015 and, as required, reported using force greater

than a minor restraint. Id. ¶ 58. The Marshals Service Internal

Affairs Office conducted a review and closed the submission.

Id.; ECF No. 35-2 at 33. On June 17, 2015, upon direction from

the Office of Professional Responsibility, Assistant Chief

Deputy U.S. Marshal Jacob Green placed Ms. Wright on limited

duty and confiscated her credentials, badge, and firearm. SOMF,

ECF No. 45-1 ¶¶ 60-61.

9
 On July 30, 2015, Ms. Wright filed a sixth complaint (the

“July 2015 EEO Claim”), alleging reprisal discrimination for her

placement on limited duty and the confiscation of her badge,

credentials, and firearm. Id. ¶ 28. The Agency accepted the

claim for investigation. Id. ¶ 29 (citing ECF No. 23-7 at 48-49

(August 2015 EEO Letter)). Ms. Wright’s union representative

also initiated a “Step One Grievance” pursuant to the collective

bargaining agreement. Id. at 38.

Meanwhile, the EEO Office completed its investigation into

the Consolidated 2014 EEO Claim and issued its report on January

30, 2015. ECF No. 23-6 at 24-26. On February 2, 2015, Ms. Wright

sought a hearing before an EEOC Administrative Judge for the

Consolidated 2014 EEO Claim. Id. at 29.

Similarly, Ms. Wright requested a hearing when the EEO

Office completed its investigations of the December 2014 EEO

Claim and the July 2015 EEO Claim. SOMF, ECF No. 45-1 ¶¶ 27, 30.

But before an Administrative Judge conducted either of those

hearings, Ms. Wright filed this action, and the EEO Office

dismissed her hearing requests. Id.

B. Procedural

On June 28, 2018, Defendant filed its Motion to Dismiss or,

in the Alternative, for Summary Judgment. See Def.’s Mot.

Dismiss or, in Alternative, Summ. J., ECF No. 23. Ms. Wright

filed her brief in opposition to Defendant’s Motion on August

10
10, 2018. See Pl.’s Opp’n Def.’s Mot. Dismiss, or, in

Alternative, Summ. J., ECF No. 27. In that brief, she requested

discovery pursuant to Rule 56(d). See id. at 41-42. Defendant

filed its reply brief on February 7, 2019. See Def.’s Reply in

Supp. of Mot. J. Pleadings or, in Alternative, Summ. J., ECF No.

45.

The Court referred the case to a magistrate judge for full

case management, and the case was randomly assigned to

Magistrate Judge Harvey. See Docket for Civ. Action No. 17-1081.

On June 8, 2020, Magistrate Judge Harvey issued his R. & R.

recommending that the Court grant in part and deny in part

Defendant’s Motion to Dismiss or, in the Alternative, for

Summary Judgment, see R. & R., ECF No. 47 at 1; and that the

Court deny Ms. Wright’s Rule 56(d) discovery request as moot,

see id. at 2.

On August 21, 2020, Ms. Wright filed her objections to

Magistrate Judge Harvey’s R. & R. See Pl.’s Objs., ECF No. 52.

Defendant filed a response on September 18, 2020. See Def.’s

Resp. Pl.’s Objs. Magistrate’s R. & R. (“Def.’s Opp’n”), ECF No.

54. The motions are now ripe and ready for adjudication.

11
III. Legal Standard

A. Objections to a Magistrate Judge’s Report and
Recommendation

Pursuant to Federal Rule of Civil Procedure 72(b), a party

may file specific written objections once a magistrate judge has

entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).

A district court “may accept, reject, or modify the recommended

disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §

636(b)(1)(C) (“A judge of the court may accept, reject, or

modify, in whole or in part, the findings or recommendations

made by the magistrate judge.”). A district court “must

determine de novo any part of the magistrate judge’s disposition

that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

“If, however, the party makes only conclusory or general

objections, or simply reiterates his original arguments, the

Court reviews the [R. & R.] only for clear error.” Houlahan v.

Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013) (citation and

internal quotation marks omitted). “Under the clearly erroneous

standard, the magistrate judge’s decision is entitled to great

deference” and “is clearly erroneous only if on the entire

evidence the court is left with the definite and firm conviction

that a mistake has been committed.” Buie v. Dist. of Columbia,

No. CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12,

12
2019) (internal quotation marks omitted) (quoting Graham v.

Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009)).

Objections must “specifically identify the portions of the

proposed findings and recommendations to which objection is made

and the basis for the objection.” LCvR 72.3(b). “[O]bjections

which merely rehash an argument presented and considered by the

magistrate judge are not ‘properly objected to’ and are

therefore not entitled to de novo review.” Shurtleff v. EPA, 991

F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.

08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)). The

Court reviews Ms. Wright’s objections de novo.

13
 B. Rule 56 Motion for Summary Judgment 5

Federal Rule of Civil Procedure 56 provides that summary

judgment motions must be granted if “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, 250 (1986). The moving party

bears the initial burden “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

5 Magistrate Judge Harvey noted that “Defendant’s motion is
brought pursuant to Rule 12(b)(6), for failure to state a claim
upon which relief may be granted; Rule 12(c), for judgment on
the pleadings; and Rule 56, for summary judgment,” R. &. R., ECF
No. 47 at 16 n.16 (citing ECF No. 23 at 1); but that the
Defendant did not identify which arguments should be addressed
under which rule, id. He noted that both Ms. Wright and the
Defendant had complied with Federal Rule of Civil Procedure 56
and with the local rules of the court and that Ms. Wright
responded to the motion as if it were one for summary judgment
by, among other things, responding to the Defendant’s statement
of facts. See ECF No. 26. Accordingly, Magistrate Judge Harvey
evaluated the motion as one for summary judgment. Neither party
objected to Magistrate Judge Harvey’s approach. See generally
Pl.’s Objs., ECF No. 52; Def.’s Opp’n, ECF No. 54. Accordingly,
this Court will treat the motion as one for summary judgment. Cf.
Panarello v. Zinke, 254 F. Supp. 3d 85, 96 n.3 (D.D.C. 2017)
(treating the defendant’s combined motion to dismiss and motion
for summary judgment as a motion for summary judgment “to the
extent necessary”), aff’d sub nom. Panarello v. Bernhardt, 788
F. App’x 18 (D.C. Cir. 2019).
14
(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be

discharged by ‘showing’ . . . that there is an absence of

evidence to support the nonmoving party’s case.” Celotex, 477

U.S. at 325.

A party opposing a summary judgment motion must show that a

genuine factual issue exists by “(A) citing to particular parts

of materials in the record . . . or (B) showing that the

materials cited do not establish the absence . . . of a genuine

dispute.” Fed. R. Civ. P. 56(c). Any factual assertions in the

moving party’s affidavits will be accepted as true unless the

opposing party submits his own affidavits or other documentary

evidence contradicting the assertion. See Neal v. Kelly, 963

F.2d 453, 456 (D.C. Cir. 1992). However, “the inferences to be

drawn from the underlying facts . . . must be viewed in the

light most favorable to the party opposing the motion.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986) (citation and internal quotation marks

omitted).

C. Rule 56(d) Motion for Discovery

Under Federal Rule of Civil Procedure 56(d), a non-moving

party may ask the court to stay the consideration of summary

judgment. See Fed. R. Civ. P. 56(d). A court may defer

considering a motion for summary judgment, deny the motion, or

allow time for the non-movant to take discovery if that party

15
“shows by affidavit or declaration that, for specified reasons,

it cannot present facts essential to justify its opposition.”

Id. The criteria of a Rule 56(d) declaration are that:

(1) It must outline the particular facts the
non-movant intends to discover and describe
why those facts are necessary to the
litigation, (2) it must explain why the non-
movant could not produce the facts in
opposition to the motion for summary
judgment; and (3) it must show the information
is in fact discoverable.

U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19,

26–27 (D.C. Cir. 2014) (citing Convertino v. DOJ, 684 F.3d 93,

99-100 (D.C. Cir. 2012)). A Rule 56(d) motion for discovery

“should be granted almost as a matter of course unless the non-

moving party has not diligently pursued discovery of the

evidence.” Convertino, 684 F.3d at 99.

IV. Analysis

A. Magistrate Judge Harvey Correctly Granted Summary
Judgment on Ms. Wright’s Retaliation Claims

Title VII makes it unlawful for an employer to retaliate

against an employee because the employee engaged in protected

activity and asserted her Title VII rights. See 42 U.S.C. §

2000e-3(a); Jeffries v. Barr, 965 F.3d 843, 860 (D.C. Cir.

2020). Where, as here, the plaintiff has no direct evidence of

retaliation, she must proceed under the burden-shifting

framework set out in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). See Iyoha v. Architect of the Capitol, 927 F.3d 561,

16
574 (D.C. Cir. 2019). This framework requires that the plaintiff

first plead her prima facie case. See McDonnell Douglas, 411

U.S. at 802. In other words, she must establish: “‘(1) that

[s]he engaged in statutorily protected activity; (2) that [s]he

suffered a materially adverse action by h[er] employer; and (3)

that a causal link connects the two.’” Iyoha, 927 F.3d at 574

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

If the employee makes out a prima facie case, then the burden

shifts to the employer to “‘articulate some legitimate,

nondiscriminatory reason’ for its action.” Jeffries, 965 F.3d at

859 (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248,

252-53 (1981)). If the employer carries its burden, “the burden-

shifting framework disappears,” and the Court considers “whether

a reasonable jury could infer retaliation from all the evidence,

which includes not only the prima facie case but also the

evidence the plaintiff offers to attack the employer’s proffered

explanation for its action and other evidence of retaliation.”

Jones, 557 F.3d at 677 (alterations, citation, and internal

quotation marks omitted).

As relevant here, “only a retaliatory act that is

‘materially adverse’ to the plaintiff is actionable.” Chambers

v. Dist. of Columbia, 35 F.4th 870, 876 (D.C. Cir. 2022) (citing

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006)), judgment entered, No. 19-7098, 2022 WL 2255692 (D.C.

17
Cir. June 23, 2022). Courts determine whether an action is

materially adverse using an objective standard, see id.; that

is, “the employer’s actions must be harmful to the point that

they could well dissuade a reasonable worker from making or

supporting a charge of discrimination,” White, 548 U.S. at 57.

Materially adverse actions are thus “objectively tangible

harm[s],” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir.

2002); and not “those petty slights or minor annoyances that

often take place at work and that all employees experience,”

White, 548 U.S. at 58.

Magistrate Judge Harvey recommended that the Court dismiss

two of Ms. Wright’s retaliation claims: (1) her referral to the

EAP and (2) her assignment to two supervisors. See R. & R., ECF

No. 47 at 58, 61. Specifically, Magistrate Judge Harvey

concluded that Ms. Wright failed to establish that these

incidents constitute materially adverse employment actions. See

id.

Ms. Wright objects to this portion of the R. & R. See Pl.’s

Objs., ECF No. 52 at 1-3. For the reasons below, the Court

agrees with Magistrate Judge Harvey’s recommendation as to each

retaliation claim.

18
 1. Ms. Wright’s Referral to the EAP Was Not Materially
Adverse

Ms. Wright objects to Magistrate Judge Harvey’s conclusion

that referral to an EAP is not an adverse employment action “as

a matter of law.” Id. at 1. She asserts that the Court should

“allow the claim based on the record adduced so far and further

allow the matter to be explored in discovery.” Id. The Court

rejects Ms. Wright’s characterization of the R. & R. At no point

does Magistrate Judge Harvey conclude that an EAP referral is

not an adverse employment action as a matter of law. See

generally R. & R., ECF No. 47 at 58-61. Rather, Magistrate Judge

Harvey considered the uncontested facts, canvassed the caselaw

concerning EAP referrals in the context of retaliation claims,

and determined that “where, as here, a plaintiff fails to

identify ‘any consequences whatsoever’ from an EAP referral, . .

. the referral does not constitute an adverse employment

action.” Id. at 60 (quoting Hyson v. Architect of Capitol, 802

F. Supp. 2d 84, 103 (D.D.C. 2011)). In other words, the factual

record does not support Ms. Wright’s prima facie case. See

Iyoha, 927 F.3d at 574.

In her briefing, Ms. Wright offers three reasons why the

Court should reject the R. & R. See Pl.’s Objs., ECF No. 52 at

2. First, she contends that the EAP referral was an adverse

action because it “occurred at the same time as the other

19
retaliatory acts that have survived.” Id. Defendant rejects

“[t]his excessively broad interpretation of the meaning of

‘adverse action’” as “not supported by the law.” Def.’s Opp’n,

ECF No. 54 at 2. Indeed, Ms. Wright cites no caselaw to support

her position that contemporaneous acts need not be independently

materially adverse acts. See generally Pl.s’ Objs., ECF No. 52

at 2.

The Court agrees with Defendant that Ms. Wright’s temporal

proximity argument does not provide a basis to reject the R. &

R. See Def.’s Opp’n, ECF No. 54 at 2. In both her April 2014

Claim 6 and her federal Complaint, Ms. Wright alleged that the

EAP referral was a discrete act of retaliation. See ECF No. 23-4

at 52 (April 2014 EEO Claim); id. at 54 (Agency’s framing of

April 2014 EEO Claim); Compl., ECF No. 1 ¶¶ 24-26, 53-56.

Therefore, her “retaliation claim may proceed only under the

theory that [she] experienced a discrete, materially adverse

retaliatory action.” Ali v. D.C. Gov’t, 810 F. Supp. 2d 78, 90

n.16 (D.D.C. 2011) (citing Nurriddin v. Bolden, 674 F. Supp. 2d

6 As Magistrate Judge Harvey explained in his R. & R., “[t]he
Agency’s June 2014 EEO Letter framing the issues from the April
2014 EEO Claim for investigation . . . identifies only two
discrete acts occurring on two specific dates—Plaintiff’s
referral to the EAP on April 8, 2014, and her assignment to the
evening shift on April 4, 2014—as the basis for Plaintiff’s
charge of discrimination. . . . Plaintiff has pointed to no
evidence that she objected to the Agency’s framing of her
claim.” R. & R., ECF No. 47 at 43 (citing, among other cases,
Beaver v. McHugh, 840 F. Supp. 2d 161, 170 (D.D.C. 2012)).
20
64, 94 (D.D.C. 2009)). Ms. Wright must establish that the EAP

referral was materially adverse and cannot bootstrap this claim

into a new theory of retaliation at this stage in the

proceedings. See Dist. of Columbia v. Barrie, 741 F. Supp. 2d

250, 263 (D.D.C. 2010) (“It is well established that a party may

not amend its complaint or broaden its claims through summary

judgment briefing.”).

Second, Ms. Wright argues that her referral to the EAP was

materially adverse because she has shown that Defendant’s claim

that “the EAP referral was ‘voluntary,’ not mandatory, was

plainly wrong.” Pl.’s Objs., ECF No. 52 at 2. As Defendant

points out, see Def.’s Opp’n, ECF No. 54 at 2-3; this argument

ignores that Magistrate Judge Harvey determined that generally

“even a mandatory referral to an EAP is not an adverse

employment action,” R. & R., ECF No. 47 at 60 (collecting

cases). The Court agrees with this analysis. “[T]he weight of

authority indicates that referral to an EAP does not constitute

an adverse employment action under Title VII.” Ndzerre v. Wash.

Metro. Area Transit Auth., 275 F. Supp. 3d 159, 166 (D.D.C.

2017). The caselaw does not turn on whether participation in the

EAP is voluntary or mandatory. See, e.g., Pope v. W. Tidewater

Cmty. Servs. Bd., No. 2:21-CV-449, 2022 WL 3162193, at *13-14

(E.D. Va. Aug. 8, 2022); King v. Fulton Cnty., No. 1:08-CV-

03729TWTGGB, 2010 WL 2978072, at *7 (N.D. Ga. June 28, 2010),

21
report and recommendation adopted, No. 1:08-CV-3729-TWT, 2010 WL

2977968 (N.D. Ga. July 23, 2010); Robinson v. Fulton Cnty., No.

CIVA 105CV-2250-RWS, 2008 WL 78711, at *13 (N.D. Ga. Jan. 4,

2008); Pierce-Daniels v. Potter, No. 01 C 3789, 2003 WL

22532821, at *14 (N.D. Ill. Nov. 7, 2003). Rather, it turns on

whether other adverse consequences accompany the EAP referral.

See, e.g., Mitchell v. GE Healthcare, No. 04-CV-353, 2007 WL

601759, at *15 (E.D. Wis. Feb. 23, 2007) (“[R]eferral to the

Employee Assistance Program with the mandatory leave of absence

may qualify as an adverse employment action.”). Even a mandatory

EAP referral, without more, is simply a “minor annoyance[].”

White, 548 U.S. at 68. Here, Ms. Wright does not allege that she

suffered any other consequences when she was referred to the

Marshals Service’s EAP. See generally Pl.’s Objs., ECF No. 52.

The Court therefore determines that the undisputed facts support

Magistrate Judge Harvey’s conclusion that the EAP referral was

not materially adverse.

Third, Ms. Wright claims that the EAP referral was

materially adverse because “[D]efendant was acutely aware of

[her] concerns about the retaliatory environment” at the time of

the referral. Pl.’s Objs., ECF No. 52 at 2. She cites testimony

from Chief Deputy Allen-Brown acknowledging that she “was

referred to the EAP because [she] was ‘very stressed out’” due

to her transfer to D.C. Superior Court “because people there

22
‘did not like her,’ she had ‘family issues,’ and the transfer

back was ‘not in compliance with [an] alleged agreement that she

had previously entered with Headquarters senior management and

the Office of General Counsel.’” Id. (quoting R. & R., ECF No.

47 at 6-7 (quoting ECF No. 23-5 at 10)). Defendant offers no

response to this argument. See generally Def.’s Opp’n, ECF No.

54 at 2-3. Still, the Court finds no error in the R. & R as Ms.

Wright cites no caselaw to support her argument, nor does she

distinguish the cases upon which the Magistrate Judge Harvey

relied to conclude that the EAP referral was not materially

adverse.

Finally, Ms. Wright states that the Court should reject

Magistrate Judge Harvey’s recommendation because “[i]t is

subjectively and objectively reasonable [under the

circumstances] to interpret a mandatory referral to this type of

program as retaliation for being a complaining victim.” Pl.’s

Objs., ECF No. 52 at 2. She cites no legal authority for this

proposition. See id. As the Court explained supra, referral to

an EAP without additional consequences, as here, is not an

objectively and materially adverse action. See R. & R., ECF No.

47 at 58-61 (collecting cases).

Accordingly, the Court agrees with Magistrate Judge Harvey

that Ms. Wright’s referral to the EAP was not a materially

adverse action; ADOPTS that portion of the R. & R., see ECF No.

23
47; and GRANTS Defendant’s Motion for Summary Judgment on the

issue, see ECF No. 23.

2. Ms. Wright’s Assignment to Two Supervisors Was Not
Materially Adverse

Ms. Wright also objects to Magistrate Judge Harvey’s

conclusion that her assignment to two supervisors was not

materially adverse. See Pl.’s Objs., ECF No. 52 at 2-3. She

argues that the R. & R. “disregards” the record evidence that

she felt “it was embarrassing, humiliating[,] and stressful”;

and she “felt singled out [that she] had to answer to two

supervisors via one would approve something and the other would

disapprove it.” Id. (quoting ECF No. 23-6 at 9). She also

explains that this assignment “was unprecedented for someone of

plaintiff’s rank” and discusses the identity of her two

supervisors as evidence that the action was adverse. Id.

Defendant, citing persuasive authority, asserts that this

evidence is not sufficient to establish that the assignment was

materially adverse. See Def.’s Opp’n, ECF No. 54 at 4-5 (citing

Casey v. Mabus, 878 F. Supp. 2d 175, 186 (D.D.C. 2012); Booth v.

Dist. of Columbia, 701 F. Supp. 2d 73, 80 (D.D.C. 2010)).

The Court is unpersuaded by Ms. Wright’s arguments. First,

feelings of embarrassment and of being singled out do not make

an action materially adverse. The Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) has made clear

24
that “‘purely subjective injuries,’ such as dissatisfaction with

a reassignment, public humiliation, or loss of reputation, are

not adverse actions.” Holcomb v. Powell, 433 F.3d 889, 902 (D.C.

Cir. 2006); see also Casey, 878 F. Supp. 2d at 186 (“[E]nduring

‘public humiliation’ or ‘loss of reputation’ in the workplace—

though unfortunate—cannot form the basis of a Title VII

claim.”).

Second, increased supervision is not a materially adverse

employment action. See Halcomb v. Off. of Senate Sergeant-at-

Arms of U.S. Senate, 563 F. Supp. 2d 228, 241-42 (D.D.C. 2008)

(collecting cases), aff’d sub nom. Halcomb v. Off. of Senate

Sergeant-at-Arms, 368 F. App’x 150 (D.C. Cir. 2010). Courts are

“near unanimous in concluding that close scrutiny, monitoring,

or tracking . . . simply does not rise to the level of a

materially adverse retaliatory action sufficient to survive a

motion to dismiss.” Aldrich v. Burwell, 197 F. Supp. 3d 124,

132-33 (D.D.C. 2016) (collecting cases). Moreover, the

possibility of being subjected to “conflicting directives . . .

constitutes a ‘minor annoyance’ that many employees have endured

in the workplace.” Clarkson v. SEPTA, 700 F. App’x 111, 115 (3d

Cir. 2017).

Third, Ms. Wright’s reference to the identity of her two

supervisors—both of whom were subjects in her June 2012 EEO

claim—does not alter the Court’s analysis here. In his R. & R.,

25
Magistrate Judge Harvey considered three separate events that

Ms. Wright alleged were retaliatory:

1. In April 2014, upon her return to D.C.
Superior Court, [Ms. Wright] was assigned two
supervisors (Event 17);
2. In April 2014, Deputy Chief Allen-Brown
assigned Supervisory Officer Clark as [Ms.
Wright]’s direct supervisor (Event 18); and
3. In April 2014, Deputy Chief Allen-Brown
assigned Supervisory Deputy Waters as one of
[Ms. Wright]’s supervisors (Event 20).

R. & R., ECF No. 47 at 54. Magistrate Judge Harvey then examined

each of these events and concluded that Ms. Wright’s assignment

to Supervisory Officer Clark and her assignment to Supervisory

Deputy Waters were both materially adverse. See id. at 56-57. By

contrast, Magistrate Judge Harvey determined that the fact that

Ms. Wright was assigned to two supervisors, regardless of their

identity, was not similarly materially adverse.

The Court therefore concludes that Ms. Wright’s assignment

to two supervisors was not a materially adverse action; ADOPTS

that portion of the R. & R., see ECF No. 47; and GRANTS

Defendant’s Motion for Summary Judgment on the issue, see ECF

No. 23.

B. Magistrate Judge Harvey Correctly Determined that the
Gender Discrimination and Retaliation Claims Ms. Wright
Raised in Paragraphs 5-13 of the Complaint Were Untimely
or Not Exhausted

A plaintiff must first timely exhaust her administrative

remedies with the relevant administrative agency before bringing

26
her claims to federal court. Smith v. Lynch, 106 F. Supp. 3d 20,

41 (D.D.C. 2015) (citing Payne v. Salazar, 619 F.3d 56, 65 (D.C.

Cir. 2010)). Title VII requires “‘[a]n aggrieved person [to]

initiate contact with [an EEO] Counselor within 45 days of the

date of the matter alleged to be discriminatory.’” Tyes-Williams

v. Whitaker, 361 F. Supp. 3d 1, 10–11 (D.D.C. 2019) (quoting 29

C.F.R. § 1614.105(a)(1)). If the parties are unable to resolve

the matter informally, the employee may file a formal complaint

“with the agency that allegedly discriminated against the

complainant.” 29 C.F.R. § 1614.106(a); Briscoe v. Kerry, 111 F.

Supp. 3d 46, 53 (D.D.C. 2015) (quoting 29 C.F.R. §§ 1614.105(d),

1614.106(a)). The employee must file a formal complaint to

exhaust her administrative remedies. See Blue v. Jackson, 860 F.

Supp. 2d 67, 73 (D.D.C. 2012) (citing Hamilton v. Geithner, 666

F.3d 1344, 1350 (D.C. Cir. 2012)). She then “may file a civil

action after the agency issues an adverse final decision or 180

days elapse without a decision, whichever happens first.” Id.

(citing 42 U.S.C. § 2000e–16(c)). If the agency issues a final

decision, the employee may file a civil action but must do so

within 90 days. See Smith, 106 F. Supp. 3d at 42 (citing 42

U.S.C. § 2000e–16(c)).

The exhaustion doctrine also limits the scope of a

plaintiff’s civil action based on what she alleged in her

administrative claim. See Williams v. Spencer, 883 F. Supp. 2d

27
165, 173 (D.D.C. 2012). Specifically, “[t]he theories of

discrimination in [a] plaintiff’s lawsuit are limited to the

theories contained in the [administrative EEO complaint] [s]he

filed.” Ponce v. Billington, 652 F. Supp. 2d 71, 74 (D.D.C.

2009) (first and second alterations in original) (quoting

Marcelus, 540 F. Supp. 2d at 236). That is, her “claims ‘must

arise from the administrative investigation that can reasonably

be expected to follow the charge of discrimination.’” Buitrago

v. Dist. of Columbia, No. 18-CV-261(EGS), 2020 WL 1033343, at *5

(D.D.C. Mar. 3, 2020) (quoting Park v. Howard Univ., 71 F.3d

904, 907 (D.C. Cir. 1995)). “‘[A]llowing a complaint to

encompass allegations outside the ambit of the predicate EEOC

charge would circumvent the EEOC’s investigatory and

conciliatory role, as well as deprive the charged party of

notice of the charge, as surely as would an initial failure to

file a timely EEOC charge.’” Marshall v. Fed. Exp. Corp., 130

F.3d 1095, 1098 (D.C. Cir. 1997) (quoting Schnellbaecher v.

Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir. 1989)).

Ms. Wright objects that Magistrate Judge Harvey

misconstrued her gender discrimination and retaliation claims

and therefore improperly dismissed them. See Pl.’s Objs., ECF

No. 52 at 3-4. She asserts that Magistrate Judge Harvey “relied

on the defendant’s unilateral and crimped characterization of”

paragraphs 5-13 of the Complaint as “discrete acts,” thereby

28
“miss[ing] the fact that the allegations giving rise to those

claims show a[] pattern of discrimination that continued

throughout plaintiff’s tenure—including the period post-dating

the filing of her EEOC claim in 2012.” Id.

The Court agrees with Defendant that Magistrate Judge

Harvey correctly “conducted his own analysis of the record,

including the EEO administrative documents, to determine the

scope and content of the claims.” Def.’s Opp’n, ECF No. 54 at 5.

Ms. Wright alleges the following in the relevant paragraphs of

the Complaint:

5. “[I]n August 2010 and continuing,
[Supervisory Officer] Clark, subjected her
to vulgar and sexually explicit language
concerning Mr. Clark’s sexual desires for
Ms. Wright; unwarranted sexual advances;
and unwanted sexually-oriented touching”;
6. “In August 2010, [Supervisory Officer]
Clark asked Ms. Wright to come to his room
to study and to have dinner with him”;
7. “Since 2010 and continuing, Mr. Clark asked
Ms. Wright for sexual favors, visited Ms.
Wright’s work post unnecessarily, and
physically brushed up against Ms. Wright”;
8. “Since 2010 and continuing, [Supervisory
Officer] Clark threatened to change Ms.
Wright’s work hours if she did not give in
to his sexual advances”;
9. “Since 2010 and continuing, [Supervisory
Officer] Clark commented to Agency
management that Ms. Wright is not capable
of performing her job, is frequently off
work due to injury and should therefore be
given secretarial duties”;
11. “On June 13, 2012, [Supervisory Officer]
Clark attempted to have Ms. Wright placed
on leave restriction by the Assistant Chief
Deputy”;

29
 12. “On June 13, 2012 and continuing, Agency
managers continually changed Ms. Wright’s
work assignments; told other USMS
employees about Ms. Wright’s performance
evaluation rating; questioned USMS
employees concerning Ms. Wright’s
whereabouts and lunch breaks; discussed
Ms. Wright’s leave, worker’s compensation
injury and other personal business to or
in front of other USMS employees; requested
specific information concerning Ms.
Wright’s doctor appointments; and ordered
Ms. Wright to be relieved from her post and
enter the cellblock for a meeting although
she was on light duty and had been
instructed not to enter the cellblock for
safety reasons”;
13. “On November 8, 2012, Ms. Wright was
informed that her work hours were changed.
Ms. Wright was then informed on November
21, 2012 by the supervisory deputy that she
was to report her arrival time, breaks,
when she departed for and returned from the
bathroom, as well as when she left for the
day.”

Compl., ECF No. 1 ¶¶ 5-9, 11-13. Ms. Wright raised gender

discrimination and retaliation claims with respect to all of

these allegations. See id. ¶¶ 46-58.

To survive Defendant’s Motion, Ms. Wright needed to raise

the allegations in paragraphs 5-13 of the Complaint in an EEO

claim. See Buitrago, 2020 WL 1033343, at *5. The Court finds

that she made all but one of these allegations in her June 2012

EEO Claim. See ECF No. 23-4 at 4-5 (September 2012 EEO Letter),

9-10 (2012 EEO Claim Investigation Report), 17-36 (May 2015

Decision). Nevertheless, the Court concludes that Ms. Wright’s

gender discrimination and retaliation claims are untimely or not

30
exhausted and that the legal theory she advances in her briefing

does not change this conclusion.

First, Ms. Wright’s gender discrimination claim is

untimely. Ms. Wright alleged gender discrimination with respect

to the allegations in paragraphs 5 and 7-11 in her June 2012 EEO

Claim. See ECF No. 23-4 at 4-5 (September 2012 EEO Letter), 9-10

(2012 EEO Claim Investigation Report), 17-36 (May 2015

Decision). The administrative documents never discuss these

allegations as part of a “pattern” of allegedly discriminatory

acts. See id. At each stage, these allegations are described as

discrete discriminatory acts. See id. But even if Ms. Wright had

alleged a pattern of discrimination in the administrative

proceedings, the Agency would not have had notice that the

pattern continued after she filed her 2012 EEO Claim because she

did not allege any gender-based claims in her January 2013

amendment or in any of her later EEO claims. See generally ECF

No. 23-4. This pleading failure is fatal to Ms. Wright’s

objection because the allegations in the June 2012 EEO Claim are

untimely. That is because Ms. Wright filed the Complaint after

the statutory deadline for doing so. See 42 U.S.C. § 2000e–16(c)

(complainant must file a civil action within 90 days of

receiving a final administrative decision); ECF No. 23-4 at 17-

36 (May 11, 2015 Decision); Compl., ECF No. 1 (filed June 6,

2017). Ms. Wright offers no reason why this analysis and

31
conclusion are incorrect, and the Court sees none. Because the

allegations in paragraphs 5 and 7-11 are untimely, Ms. Wright’s

objection cannot resuscitate her gender discrimination claim.

Second, Ms. Wright’s gender-based retaliation claim is

untimely. Ms. Wright alleged gender-based retaliation with

respect to the allegations in paragraphs 12 and 13 in her June

2012 EEO Claim. See ECF No. 23-4 at 5 (September 2012 EEO

Letter), 10 (2012 EEO Claim Investigation Report), 17-36 (May

2015 Decision). Those allegations are untimely because Ms.

Wright filed the Complaint on June 6, 2017—more than two years

after the Agency issued its final decision and well past the 90-

day deadline for filing a civil action. See 42 U.S.C. § 2000e–

16(c) (complainant must file a civil action within 90 days of

receiving a final administrative decision); ECF No. 23-4 at 17-

36 (May 11, 2015 Decision); Compl., ECF No. 1 (filed June 6,

2017). Ms. Wright’s argument that she alleged a “pattern” of

retaliatory acts does not save her claim. The record does not

show that she ever raised this theory; rather, her allegations

of retaliation are described as discrete retaliatory acts. See

generally ECF No. 23-4. Moreover, because Ms. Wright did not

allege any gender-based claims in any of her later EEO claims,

see id.; the Agency did not have notice of any retaliation

continuing beyond November 2012, see Buitrago, 2020 WL 1033343,

32
at *5. Ms. Wright’s objection as to paragraphs 12 and 13 is

therefore unsuccessful.

Third, Ms. Wright’s allegation in paragraph 6 of the

Complaint was not exhausted. Ms. Wright did not raise this

allegation at any point in any of her EEO claims. See generally

ECF No. 23-4. In fact, the administrative record suggests that

she only made this allegation at the February 25, 2015 hearing

before the EEOC Administrative Judge. See ECF No. 23-4 at 20

(“In her affidavit as well as her earlier submissions for the

case, [Ms. Wright] never mentioned any dinner with [Supervisory

Officer] Clark or studying with him.”). Contrary to Ms. Wright’s

arguments, see Pl.’s Objs., ECF No. 52 at 3-4; this did not give

the Agency sufficient notice because the Agency had no

“opportunity to fully investigate and resolve [her] claim,”

Vance v. O’Rourke, No. 18-cv-00577, 2019 WL 914010, at *6

(D.D.C. Feb. 22, 2019). This allegation has not been exhausted.

Cf. Blue, 860 F. Supp. 2d at 73; Beaver, 840 F. Supp. 2d at 170

(“[T]he complainant has failed to exhaust his or her

administrative remedies with respect to claims not approved by

the EEO.”).

Accordingly, the Court concludes that Ms. Wright’s gender-

based discrimination and retaliation claims are untimely as to

paragraphs 5 and 7-13 of the Complaint and unexhausted as to

paragraph 6; ADOPTS that portion of the R. & R., see ECF No. 47;

33
and GRANTS Defendant’s Motion for Summary Judgment on the issue,

see ECF No. 23.

C. Magistrate Judge Harvey Correctly Concluded That Ms.
Wright’s Hostile Work Environment Claims Are Untimely

Finally, Ms. Wright objects to Magistrate Judge Harvey’s

recommendation that the Court dismiss her hostile work

environment claims as untimely on the ground that the R. & R.

“misapprehends the nature of [her] hostile work environment

claims and the case law speaking to them.” See Pl.’s Objs., ECF

No. 52 at 4. She first argues that Magistrate Judge Harvey

should have “examine[d] all of the circumstances, including the

frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive

---.” Id. (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 116 (2002)). This argument misconstrues Morgan and the

related caselaw. A court must “examine all of the circumstances”

to determine “whether an environment is ‘hostile.’” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 23 (1993). This test is not

relevant to the court’s timeliness analysis. See Morgan, 536

U.S. at 116-17. Instead, a hostile work environment claim is

timely so long as “an act contributing to the claim occurs

within the filing period,” id. at 117; and “the employee

exhaust[s] administrative remedies with respect to at least one

34
act occurring within the [relevant] time period,” Achagzai v.

Broad. Bd. of Governors, 170 F. Supp. 3d 164, 176 (D.D.C. 2016).

Ms. Wright next argues that Magistrate Judge Harvey should

have applied the “like or related to” test. See Pl.’s Objs., ECF

No. 52 at 4. 7 This test allows employees to sue for claims that

are “‘like or reasonably related to the allegations of the

administrative charge . . . , notwithstanding the failure to

otherwise exhaust administrative remedies.’” Howard v. Kerry, 85

F. Supp. 3d 428, 435 (D.D.C. 2015) (quoting Bell v. Donley, 724

F. Supp. 2d 1, 8 (D.D.C. 2010)). 8 An unfiled claim is “like or

reasonably related to” a previously filed claim “if it ‘could

have reasonably been expected to grow out of the original

complaint.’” Bell, 724 F. Supp. 2d at 8–9 (quoting Weber v.

Battista, 494 F.3d 179, 183 (D.C. Cir. 2007)). Claims “are not

7 Since Magistrate Judge Harvey considered whether Ms. Wright’s
untimely retaliation claims could be considered as part of a
retaliatory hostile work environment claim, see R. & R., ECF No.
47 at 45-52; the Court determines that Ms. Wright’s objection
applies only to the analysis of her gender-based hostile work
environment claim.
8 Although courts in the district are split as to whether this

test applies to discrete acts of discrimination and retaliation,
see Hicklin v. McDonald, 110 F. Supp. 3d 16, 19-20 (citing
Morgan, 536 U.S. at 114); “it is settled that [hostile work
environment] claims ‘like or reasonably related to the
allegations of the administrative charge may be pursued . . . ,
notwithstanding the failure to otherwise exhaust administrative
remedies,” Bell, 724 F. Supp. 2d at 8 (alteration, citation, and
internal quotation marks omitted); see also Morgan, 536 U.S. at
115 (“Hostile environment claims are different in kind from
discrete acts.”).
35
‘related’ simply because they arise out of the same incident.”

Id. at 9. Rather, qualifying claims “must arise from the

administrative investigation that can reasonably be expected to

follow the charge of discrimination.” Park, 71 F.3d at 907

(citation and internal quotation marks omitted). This “serves

the important purpose of giving the charged party notice of the

claim and ‘narrow[ing] the issue for prompt adjudication and

decision.’” Id. (quoting Laffey v. Nw. Airlines, Inc., 567 F.2d

429, 472 n.325 (D.C. Cir. 1976)).

The Court agrees with Magistrate Judge Harvey’s assessment

that Ms. Wright has not exhausted her gender-based hostile work

environment claim. See R. & R., ECF No. 47 at 42. Ms. Wright

alleged discrimination on the basis of gender in her June 2012

EEO Claim. See ECF No. 23-4 at 2 (June 2012 EEO Claim). She did

not indicate that she was complaining about gender-based

discrimination in any other EEO claim. See Williams, 883 F.

Supp. 2d at 174 (“The EEOC charge form makes it easy for an

employee to identify the nature of the alleged wrongdoing by

simply checking the labeled boxes that are provided. When an

employee is uncertain which type of discrimination has occurred,

she need only describe it in the text of the charge form.”

(citation and internal quotation marks omitted)). A plaintiff

may not “pursue new categories of discrimination or retaliation

in litigation based on a different type of discrimination [than

36
she] raised before the agency.” Bell, 724 F. Supp. 2d at 9. As a

result, Ms. Wright’s decision to plead gender-based

discrimination in her June 2012 EEO Claim and not in any

subsequent EEO claim means that the allegations in the June 2012

EEO Claim are the only claims that could be construed as a

gender-based hostile work environment charge. There are no other

claims that are “like or reasonably related to” those

allegations. See, e.g., Howard, 85 F. Supp. 3d at 435–36

(dismissing plaintiff’s gender-based hostile work environment

claim because her EEO complaint did not allege gender-based

discrimination). The Court therefore concludes that Ms. Wright’s

gender-based hostile work environment claim is untimely as to

the allegations in the June 2012 EEO Claim and unexhausted as to

any other allegations.

Accordingly, the Court ADOPTS this portion of the R. & R.,

see ECF No. 47; and GRANTS Defendant’s Motion for Summary

Judgment on Ms. Wright’s hostile work environment claims, see

ECF No. 23.

V. Conclusion

For the foregoing reasons, the Court ADOPTS Magistrate

Judge Harvey’s R. & R., see ECF No. 47; GRANTS IN PART and

DENIES IN PART Defendant’s Motion to Dismiss or, in the

Alternative, for Summary Judgment, see ECF No. 23; and DENIES

37
Plaintiff’s request for discovery pursuant to Rule 56(d), see

ECF No. 27 at 41-42.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
December 12, 2022

38