Stewart, Sonya v. Evans, Donald L.

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

       Argued November 19, 2001   Decided January 11, 2002 

                           No. 01-5036

                        Sonya G. Stewart, 
                            Appellant

                                v.

          Donald L. Evans, in his official capacity as 
                 Secretary of Commerce, et al., 
                            Appellees

          Appeal from the United States District Court 
                  for the District of Columbia 
                         (No. 00cv01241)

     Larry Klayman argued the cause and filed the briefs for 
appellant.

     Kathleen A. Kane, Attorney, U.S. Department of Justice, 
argued the cause for appellees.  With her on the brief were 
Kenneth L. Wainstein, U.S. Attorney at the time the brief 
was filed, and Marleigh D. Dover, Attorney.

     Before:  Ginsburg, Chief Judge, Rogers and Garland, 
Circuit Judges.

     Opinion for the Court filed by Chief Judge Ginsburg.

     Ginsburg, Chief Judge:  Sonya Stewart, an employee of the 
Department of Commerce, sued the Secretary of Commerce 
and two departmental employees, alleging that another em-
ployee discriminated against her because of sex by berating 
her with profanity in a phone conversation, and that when she 
filed a complaint the Department retaliated against her in 
various ways, all in violation of Title VII of the Civil Rights 
Act of 1964.  She also alleged that the two employees illegally 
searched her private documents pertaining to the discrimina-
tion complaint, in violation of the Fourth Amendment to the 
Constitution of the United States.  The district court granted 
the defendants' motion to dismiss.

     We affirm the judgment of the district court dismissing the 
Title VII claims -- sexual harassment and retaliation -- for 
the reasons stated in the Memorandum Opinion filed by the 
district court and appended hereto.  We reverse the judg-
ment of the district court dismissing Stewart's Fourth 
Amendment claim, and remand that aspect of the case to the 
district court for further proceedings.

                          I. Background

     Sonya Stewart, an employee at the Department of Com-
merce, alleges that Frank DeGeorge, when he was Inspector 
General of the Department, berated her with a tirade of 
profanity in a telephone conversation on May 3, 1996.  Stew-
art reported the incident to an equal employment opportunity 
counselor within the Department and eventually filed a for-
mal complaint. Thereafter the Equal Employment Opportuni-
ty Commission investigated the situation, and the Depart-
ment ultimately notified Stewart that her claim had been 
rejected.

     According to Stewart, between the time she first reported 
the incident and the time she received the Department's final 
decision, the Acting General Counsel of the Department, Sue 

Esserman;  the Assistant General Counsel for Administration, 
Barbara Fredericks;  and the Chief of the Employment Law 
Division, Kathleen Taylor, all engaged in various acts of 
retaliation against her.  Stewart also claims to have kept 
detailed notes about the initial incident and the acts of 
retaliation, including notes about "strategies for pursuing her 
claim."  Stewart says she initially kept these notes and 
related documents in her office at the Department but later 
agreed to give them to John Sopko, Chief Counsel of the 
Special Matters Unit, to be kept in part in a safe and in part 
in a locked cabinet.  Stewart claims she agreed to give Sopko 
the documents only upon being assured that no one, including 
specifically Fredericks and Taylor, would see them.  Freder-
icks and Taylor knew about this arrangement but nonetheless 
reviewed the files while Stewart was on sick leave in August, 
1998.

     In February, 2000 Stewart sued the Department under 
Title VII for the abusive comments and the retaliation, and 
sued Fredericks and Taylor under the Fourth Amendment 
for reading her private papers.  The district court granted 
the defendants' motions to dismiss the claims.  The court 
reasoned that the Civil Service Reform Act, 5 U.S.C. 
ss 2301-2305, which established a system of administrative 
remedies for improper actions by supervisors in the federal 
workplace, precludes Stewart from recovering under the 
Fourth Amendment for the allegedly illegal search.  The 
court also ruled that the profane tirade to which she was 
allegedly subjected did not constitute sex discrimination, and 
that none of the alleged acts of retaliation constituted an 
"adverse employment action" under Title VII.  Stewart ap-
peals in all respects.

                           II. Analysis

     The Civil Service Reform Act, which identifies certain 
prohibited "personnel actions" in the federal civil service and 
creates administrative remedies for the benefit of any em-
ployee subjected to such an action, by implication also pre-
cludes an aggrieved employee from suing the Government or 

a fellow employee for damages for engaging in such action.  
Bush v. Lucas, 462 U.S. 367 (1983).  In Bush, the Supreme 
Court held that an employee of the federal government may 
not recover damages when his superior improperly disciplines 
him for exercising his rights under the First Amendment 
because "such claims arise out of an employment relationship 
that is governed by comprehensive procedural and substan-
tive provisions giving meaningful remedies against the United 
States," referring to the CSRA.  462 U.S. at 368.  The Court 
reasoned that to "creat[e] ... a new judicial remedy for the 
constitutional violation at issue" would disrupt the "elaborate 
remedial system that has been constructed [by the Congress] 
step by step, with careful attention to conflicting policy 
considerations."  Id. at 388.

     Fredericks and Taylor maintain that if the CSRA precludes 
a Bivens action based upon an alleged violation of the First 
Amendment, then it must similarly preclude Stewart's Bivens 
action based upon an alleged violation of the Fourth Amend-
ment.  Stewart replies by pointing out that in footnote 28 in 
Bush the Court explicitly distinguished a warrantless search 
from a violation of the First Amendment:  "Not all personnel 
actions are covered by this system....  [C]ertain actions by 
supervisors against federal employees, such as wiretapping, 
warrantless searches, or uncompensated takings, would not 
be defined as 'personnel actions' within the statutory 
scheme."  Id. at 385 n.28.  Because, Stewart argues, a war-
rantless search falls outside the condemnation (and, we pre-
sume, the approbation) of the statutory scheme, that scheme 
cannot preclude a Bivens action based upon such a search. Cf. 
Carlson v. Green, 446 U.S. 14, 20-21 (1980) (holding that the 
Federal Tort Claims Act does not preclude actions for viola-
tion of rights under the Constitution).

     A district court in this circuit accepted the precise argu-
ment Stewart advances, McGregor v. Greer, 748 F. Supp. 881, 
889 (1990), but the Ninth Circuit took the opposite view in 
Saul v. United States, 928 F.2d 829, 839 (9th Cir. 1991) ("We 
do not think the footnote [in Bush] was meant to decide 
whether every allegation that a supervisor has subjected a 
federal employee to a warrantless search is barred from 

appeal under the CSRA.  Read in context, the footnote 
indicates only that CSRA remedies, while comprehensive, are 
not infinitely so").  We agree with the district court in 
McGregor.  The disputed footnote in Bush is appended to the 
Supreme Court's analysis of the comprehensiveness of the 
statutory scheme.  The Court held that the CSRA precludes 
a Bivens action based upon a violation of an employee's First 
Amendment rights because the statute covers such a violation 
(regardless whether it provides a remedy for it).  By noting 
that a warrantless search is not a "personnel action[ ] ... 
covered by this system," and stating that such a search does 
not fall "within the statutory scheme," Bush virtually compels 
the conclusion that the Act does not preclude a Bivens action 
for a warrantless search.

     Fredericks and Taylor contend that Stewart's lawsuit 
should be dismissed even if it is not precluded by the CSRA, 
but their arguments are not persuasive.  First, the defen-
dants suggest that Stewart must exhaust her remedies under 
the CSRA before bringing a Bivens action.  This makes no 
sense:  The reason the CSRA does not preclude Stewart's 
lawsuit is precisely that the statute is not concerned with the 
conduct of which she complains;  we cannot ask Stewart to 
exhaust an administrative remedy that does not exist.

     Second, the defendants maintain that Stewart lacked a 
legitimate expectation of privacy in the places they 
searched -- or at least that such an expectation was not 
clearly established -- and that the defendants are therefore 
shielded from liability by a qualified immunity.  But the very 
case Fredericks and Taylor cite in support of this proposi-
tion -- O'Connor v. Ortega, 480 U.S. 709 (1987 ) -- precludes 
dismissal of Stewart's complaint.  O'Connor holds that an 
unreasonable search in the workplace violates the Fourth 
Amendment, and that the inquiry into reasonableness must 
be made on a case-by-case basis.  Just as the Court in 
O'Connor remanded the matter for further proceedings be-
cause "the record was inadequate for a determination on 
motion for summary judgment of the reasonableness of the 
search and seizure," 480 U.S. at 727, so must we remand this 
case, which did not even get to the summary judgment stage.  

Without knowing more about the circumstances surrounding 
the search, a court simply cannot assess whether it was 
reasonable.

                         III. Conclusion

     For the foregoing reasons, the judgment of the district 
court is affirmed in part and reversed in part, and the Fourth 
Amendment claim is remanded to the district court for fur-
ther proceedings.

                                                                 So ordered.

                             APPENDIX

                     Sonya Stewart, Plaintiff

                                v.

      William Daley, in his official capacity as Secretary 
                 of Commerce, et al., Defendants
                            

                             OPINION 
                         February 6, 2001
                                 

HUVELLE, District Judge.

                        MEMORANDUM OPINION

     Before the Court is defendant's Motion for Judgment on 
the Pleadings, plaintiff's Opposition and defendant's Reply.  
Having considered the pleadings, the Court concludes that 
defendant's motion should be granted and the above com-
plaint shall be dismissed with prejudice on the grounds that 
plaintiff has failed to state a cause of action for harassment 
and retaliation under Title VII.

                        FACTUAL BACKGROUND

     Ms. Sonya Stewart is employed by the Department of 
Commerce (DOC).  In May 1996 she was the Director for 
Executive Budgeting and Assistance Management in the Of-
fice of the Secretary of Commerce.  While there, Ms. Stewart 
worked with numerous DOC officials, including Frank De-
George, then the DOC Inspector General.  Ms. Stewart alleg-
es that prior to May 3, 1996, Mr. DeGeorge had made 
inappropriate sexual advances toward her and invited her out 
for drinks.  Ms. Stewart also alleges the Mr. DeGeorge 
treated other females at DOC in a similar manner.

     According to the complaint, on May 3, 1996, Mr. DeGeorge 
contacted Ms. Stewart to discuss a disbursement of $141,000 
made by the DOC to the Internal Revenue Service pursuant 
to a tax levy imposed on a financially troubled federal assis-
tance recipient.  During the call, Ms. Stewart alleges that Mr. 
DeGeorge used offensive profanities, including the following:  

"...you're a fucking idiot...;"  "...you are full of shit...;"  
"...can't you fucking read...;"  "...fuck the goddamn 
memo...;"  "...just between us girls...;"  "...I want to 
know where your fucking head was at...;"  and "...I don't 
have to listen to your fucking bullshit."  Mr. DeGeorge also 
allegedly said that Ms. Stewart would "rue the day [she] ever 
did this to [him]" and that "somebody's going to pay for this."  
Complaint, p 14.

     On May 8, 1996, Ms. Stewart contacted a DOC Equal 
Employment Opportunity counselor regarding her telephone 
call with Mr. DeGeorge.  On February 26, 1997, the EEOC 
began an investigation of Stewart's claim.  Ms. Stewart alleg-
es that other DOC officials, specifically Acting General Coun-
sel Sue Esserman, Assistant General Counsel for Administra-
tion Barbara S. Fredericks, and Employment Law Division 
Chief Kathleen J. Taylor, slowed the investigation by refusing 
to meet with EEOC investigators.  The EEOC investigation 
was completed on November 18, 1997.  Ms. Stewart request-
ed a final agency decision on December 11, 1997.  On Sep-
tember 24, 1999, the DOC rejected Ms. Stewart's claim and 
issued a formal decision on November 24, 1999.

     Ms. Stewart alleges that between May 8, 1996 and Novem-
ber 24, 1999, Esserman, Fredericks and Taylor retaliated 
against her for filing her EEO complaint.  The alleged acts of 
reprisal included:  (1) interfering with Ms. Stewart's nomina-
tion for a Presidential Rank Meritorious Award;  (2) causing 
Ms. Stewart's removal as a recommending member of a 
screening panel for candidates for the DOC's Director for 
Civil Rights;  (3) interfering with Ms. Stewart's appointment 
as Acting Deputy Assistant Secretary for Administration;  (4) 
intentionally creating the appearance that Ms. Stewart was 
involved in violations of court orders and obstruction of 
justice;  (5) falsely implicating Ms. Stewart in wrongdoing 
regarding the federal assistance recipient, Cordoba Corpora-
tion;  and, (6) refusing to cooperate with the EEOC investiga-
tion of Ms. Stewart's claim.

                            DISCUSSION

I.   Legal Standard

     Under Fed. R. Civ. P. 12(c), a motion for judgment on the 
pleadings shall be granted if the moving party demonstrates 
that "no material fact is in dispute and that it is 'entitled to 
judgment as a matter of law.' "  Peters v. Nat'l R.R. Passen-
ger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992) (citations 
omitted).  In considering a motion for judgment on the 
pleadings, the Court should "accept as true the allegations in 
the opponent's pleadings" and "accord the benefit of all 
reasonable inferences to the non-moving party."  Haynes-
worth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C. Cir. 1987) 
(citations omitted).

II.  Legal Analysis

     A.   Hostile Work Environment Claim
          
     Plaintiff has conceded that her hostile work environment 
claim rests solely on the telephone call between herself and 
Mr. DeGeorge on May 3, 1996.  Plaintiff's Opposition to 
Defendants' Motion to Dismiss, at 11-12.1  Therefore, the 
allegations of prior sexual advances and inappropriate con-
__________
     1  At a hearing before this Court on September 5, 2000, plain-
tiff's counsel made clear that plaintiff was not relying on the 
evidence set forth in p 9 of her complaint to make a claim for sexual 
harassment.  Further, in plaintiff's Opposition to Defendant's Mo-
tion to Dismiss, at 11-12 (filed on June 30, 2000), plaintiff's counsel 
stated that plaintiff was seeking damages based on the May 3, 1996 
telephone conversation only ("The basis of her claim -- both at the 
administrative level and before this Court -- was and remains the 
hostile work environment created by DeGeorge as demonstrated by 
the abusive and violent and discriminatory language he used against 
Ms. Stewart during the May 3, 1996 telephone conversation.").  On 
the basis of these explicit representations, at the September 5 
hearing this Court put plaintiff on clear notice:

     The basis of [plaintiff's] lawsuit is May 3rd.  They are standing 
     on the position that that event constitutes sexual harassment.  
     And if they are wrong as a matter of law or factually, then so 
     be it.  They are not entitled to recover.
Transcript, at 25-26.

duct can serve only as background information, and Ms. 
Stewart's claim can only succeed if the telephone call outlined 
in her EEO complaint satisfies the requirements of sexual 
harassment.

     Title VII does not prohibit all forms of workplace harass-
ment, only those directed at discrimination because of sex.  
See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 
(1998).  Furthermore, workplace harassment does not violate 
Title VII merely because the "words used have sexual content 
or connotation," but only if members of one sex are disadvan-
taged in the terms or conditions of their employment because 
of the harassment.  Id.  Title VII is not a "general civility 
code for the American workplace," id. at 80, nor does it serve 
as a remedy for all instances of verbal or physical harass-
ment, for it does not "purge the workplace of vulgarity."  
Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 
1995).

     Applying these principles to the facts as set forth by 
plaintiff, the Court concludes that Mr. DeGeorge's language 
during their telephone conversation cannot reasonably be 
construed as having any sexual connotation or having been 
motivated by a discriminatory animus.  By plaintiff's own 
admission, Mr. DeGeorge "reacted angrily concerning a dis-
bursement of approximately $141,000 to the IRS on behalf of 
Cordoba."  Compl. p 12.  There is, however, nothing to sup-
port or corroborate plaintiff's assertion that DeGeorge's inap-
propriate behavior constituted harassment based on Ms. 
Stewart's sex.  On the contrary, it is undisputed that Mr. 
DeGeorge was enraged with plaintiff's handling of the Cordo-
ba matter because of her failure to obtain written approval 
for the disbursement from his office.  As a result, he used 
offensive and inappropriate language while speaking with Ms. 
Stewart.  However, there is no basis upon which to infer from 
the telephone call that Mr. DeGeorge's hostility was motivat-
ed by Ms. Stewart's sex.  In Neuren v. Adduci, Mastriani, 
Meeks & Schill, the D.C. Circuit held that a supervisor's use 
of vulgarity in an employee's performance evaluation was 
"obviously grounded in gender-neutral concerns about [plain-
tiff's] interpersonal relations with co-workers, rather than 

discriminatory considerations."  43 F.3d 1507, 1513 (D.C. Cir. 
1995).  Similarly, DeGeorge's use of profanity in the May 3rd 
telephone conversation reflected gender-neutral concerns 
about Ms. Stewart's mishandling of the Cordoba disburse-
ment, and as noted, Title VII does not provide a cause of 
action for "ordinary tribulations of the workplace."  Faragher 
v. City of Boca Raton, 524 U.S. 775, 788 (1998).

     Even if Mr. DeGeorge's use of profane language could 
arguably be characterized as sexual harassment, which it 
cannot, a single telephone call is not sufficiently severe and 
pervasive to constitute a hostile work environment.  The D.C. 
Circuit has held that "not all abusive behavior, even when it is 
motivated by discriminatory animus, is actionable.  Rather a 
workplace environment becomes hostile for the purposes of 
Title VII only when offensive conduct 'permeate[s] [the work-
place] with discriminatory intimidation, ridicule, and insult 
that is sufficiently severe or pervasive to alter the conditions 
of the victim's employment.' "  Barbour v. Browner, 181 F.3d 
1342, 1347-48 (D.C. Cir. 1999) (quoting Oncale, 523 U.S. 78).

     In determining whether harassment rises to this level, 
courts should consider the frequency of the harassing con-
duct, its severity, whether it is physically threatening or 
humiliating, and whether it unreasonably interferes with an 
employee's work performance.  Harris v. Forklift Sys., Inc., 
510 U.S. 17, 21-23 (1993).  Except in extreme circumstances, 
courts have refused to hold that one incident is so severe to 
constitute a hostile work environment.  See Tatum v. Hyatt 
Corp., 918 F. Supp. 5, 7 (D.D.C. 1994) (citations omitted).  
Even a few isolated incidents of offensive conduct do not 
amount to actionable harassment.  See, e.g., Hopkins v. Balti-
more Gas & Electric Co., 77 F.3d 745, 753 (4th Cir. 1996) 
(holding that the fact that alleged incidents were spread over 
a seven-year period suggested that the harassment was not 
sufficiently pervasive to established Title VII liability);  Bask-
erville, 50 F.3d at 430 (holding that nine incidents spread over 
seven months did not constitute sexual harassment because 
the supervisor never touched employee and incidents were 
not sufficiently severe or pervasive).

     Applying these principles to plaintiff's claim of sexual 
harassment, it is clear that plaintiff cannot, as a matter of 
law, prove a prima facie case.  To maintain a hostile work 
environment claim, Ms. Stewart must prove that the discrimi-
natory conduct was "sufficiently severe and pervasive to alter 
the conditions of [her] employment and create an abusive 
working environment."  Harris, 510 U.S. at 23.  Ms. Stew-
art's claim amounts to only one isolated incident of alleged 
sexual harassment.  In Tatum, this court held that an isolat-
ed incident did not so alter the plaintiff's employment condi-
tions as to create a hostile work environment.  See 918 
F. Supp. at 7.  In that case, the plaintiff's co-worker unex-
pectedly wrapped his arms around the plaintiff's neck and 
body, rubbed against her as if to simulate sex, made com-
ments about her physical attractiveness, and placed a piece of 
ice in plaintiff's skirt pocket.  Id. at 6.  While the offending 
employee's actions were deplorable, the court held that this 
incident, without more, did not create a hostile work environ-
ment.  Id. at 7.

     The harassment complained of here is not nearly as serious 
as the incident alleged in Tatum.  Mr. DeGeorge did not 
physically accost Ms. Stewart.  His verbal barrage of profani-
ty was not sexually suggestive in any way or otherwise 
related to or caused by plaintiff's gender.  Ms. Stewart's 
claim of hostile work environment must, therefore, fail for the 
alternative reason that the incident complained of is not the 
type of severe and pervasive sexual harassment prohibited by 
Title VII.

     B. Retaliation Claim

     Ms. Stewart alleges that the defendant retaliated against 
her in violation of Title VII.  In order to state a prima facie 
case of retaliation, plaintiff must demonstrate:  (1) that she 
engaged in a statutorily protected activity;  (2) that the 
employer took an adverse personnel action;  and (3) that a 
causal connection existed between the two.  Brown v. Brody, 
199 F.3d 446, 452 (D.C. Cir. 1999).  To establish an adverse 
personnel action in the absence of diminution of pay or 
benefits, plaintiff must show an action with "materially ad-
verse consequences affecting the terms, conditions, or privi-

leges of employment."  Id. at 457.  An "employment decision 
does not rise to the level of an actionable adverse action ... 
unless there is a tangible change in the duties or working 
conditions constituting a material employment disadvantage."  
Walker v. WMATA, 102 F. Supp. 2d 24, 29 (D.D.C. 2000) 
(citation omitted);  see also Burlington Indus., Inc. v. Ellerth, 
118 S. Ct. 2257, 2268-69 (1998) ("A tangible employment 
action constitutes a significant change in employment status, 
such as hiring, firing, failing to promote, reassignment with 
significantly different responsibilities, or a decision causing a 
significant change in benefits.").

     Plaintiff contends that she suffered six different acts of 
retaliation.  First, she alleges that Ms. Esserman, Ms. Fred-
ericks, and Ms. Taylor, of the General Counsel's Office, 
interfered with and attempted to block her nomination for a 
Presidential Rank Meritorious Award.  However, Ms. Stew-
art successfully obtained this Award for which she was nomi-
nated.  Even if the Court accepts as true Ms. Stewart's 
allegation that the members of the General Counsel's Office 
attempted to block her nomination and selection for this 
award, Title VII does not provide relief for victims of at-
tempted retaliation.  Ms. Stewart suffered no adverse em-
ployment action as a result of any interference by Esserman, 
Fredericks, and Taylor.

     Second, plaintiff alleges that Esserman, Fredericks, and 
Taylor caused her removal from a panel established to select 
and interview candidates for the position of Director of the 
Office of Civil Rights.  The D.C. Circuit has held that minor 
changes in work-related duties or opportunities do not consti-
tute an actionable injury unless they are accompanied by 
some other adverse change in the terms, conditions or privi-
leges of employment.  See Brown, 199 F.3d at 457 (holding 
that lateral transfer or the denial thereof, without more, does 
not constitute an adverse employment action);  Mungin v. 
Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C Cir. 1997) 
("changes in assignments and work-related duties do not 
ordinarily constitute adverse employment decisions if unac-
companied by a decrease in salary or work hour changes").  
"Mere inconveniences and alteration of job responsibilities 
will not rise to the level of adverse action."  Childers v. 

Slater, 44 F. Supp. 2d 8, 19 (D.D.C. 1999).  Even accepting as 
true, as we must at this stage, Ms. Stewart's allegation that 
her removal from the panel was an act of reprisal, this does 
not rise to the level of an adverse employment action as 
contemplated by Title VII, because there was no change in 
Ms. Stewart's job position, grade, pay, or benefits.

     Third, plaintiff claims that Esserman, Fredericks, and Tay-
lor interfered with and delayed her appointment as Acting 
Deputy Assistant Secretary for Administration and caused 
her responsibilities and duties in that job to be diminished.  
Again, however, Ms. Stewart successfully achieved the posi-
tion of Acting Deputy Assistant Secretary.  Even if the three 
OGC members had succeeded in denying Ms. Stewart this 
designation, the D.C. Circuit has held that this type of 
temporary designation is not one of the terms, conditions, or 
privileges of employment contemplated by Title VII.  See 
Taylor v. FDIC, 132 F.3d 753, 764 (D.C. Cir. 1997) (interpret-
ing identical language in a Whistleblower Act in light of Title 
VII precedent).  Because denial of this type of temporary 
designation is not an adverse employment action, mere inter-
ference with or delay of such a designation cannot be a 
cognizable harm under Title VII.  Plaintiff also claims that 
the three members of OGC caused her duties and responsibil-
ities as Acting Deputy Assistant Secretary to be diminished.  
However, because, according to Taylor, the outright denial of 
a temporary position cannot constitute an adverse employ-
ment action, diminished responsibilities in that position can-
not be sufficient to state a claim for retaliation under Title 
VII.

     Fourth, Ms. Stewart contends that the three OGC mem-
bers intentionally and perfidiously created the appearance 
that the plaintiff and her staff were involved in violations of 
court orders and obstruction of justice.  Plaintiff appears to 
allege that her public perception was damaged by the actions 
of Esserman, Fredericks, and Taylor.  However, this claim is 
not pled with particularity.  Moreover, this Court has held 
that "false accusations without negative employment conse-
quences are not employment decisions actionable under Title 
VII."  Childers, 44 F. Supp. 2d at 20.  Furthermore, public 

humiliation or loss of reputation does not constitute an ad-
verse employment action under Title VII.  See Spring v. 
Sheboygan Area School Dist., 865 F.2d 883, 885 (7th Cir. 
1989);  Probst v. Reno, 2000 WL 1372872 (N.D. Ill. Sept. 22, 
2000);  Wanamaker v. Columbian Rope Co., 907 F. Supp. 522, 
535 (N.D.N.Y. 1995), aff'd, 108 F.3d 462 (2d Cir. 1998).  
Plaintiff has not alleged any adverse employment action 
resulting from her being unfairly blamed for violations of 
court orders or obstruction of justice which would constitute 
retaliation under Title VII.

     Fifth, Ms. Stewart alleges that Esserman, Fredericks, Tay-
lor retaliated against her by preparing and publicly issuing a 
report on the Cordoba matter that falsely implicated Ms. 
Stewart and her staff in wrongdoing.  This Court has held 
that formal criticisms or reprimands, without additional disci-
plinary action such as a change in grade, salary, or other 
benefits, do not constitute adverse employment actions.  See 
Childers, 44 F. Supp. 2d at 20.  Plaintiff has not alleged that 
the report of the Cordoba matter in any way affected her job 
performance ratings or the conditions of her employment.  
Because this report had no effect on Ms. Stewart's pay, 
benefits, or privileges, it cannot be considered an adverse 
employment action under Title VII.

     Finally, Ms. Stewart alleges that Esserman, Fredericks, 
and Taylor retaliated against her by refusing to cooperate 
with the EEOC investigation of her complaint against Mr. 
DeGeorge, resulting in a delay in the issuance of a final 
decision on her administrative complaint.  The D.C. Circuit 
has held that an adverse personnel action under Title VII 
must have some negative consequences with respect to the 
plaintiff's employment.  See Jolly v. Listerman, 672 F.2d 935, 
953 (D.C. Cir. 1982);  Childers, 44 F. Supp. 2d at 19.  There-
fore, this Court has concluded that, because an agency's 
failure to issue a final decision on a plaintiff's EEO complaint 
within 60 days has no discernable negative consequences for 
plaintiff's employment, it is not an actionable adverse action.  
Kilpatrick v. Riley, 98 F. Supp. 2d 9, 24 (D.D.C. 2000).  
Furthermore, if the agency fails to issue a timely final 
decision, plaintiff has the right to file suit in district court 
after 180 days from the date of the filing of the administrative 

complaint.  See id.  Like the plaintiff in Kilpatrick, Ms. 
Stewart had the option of filing a civil action in district court 
if she were dissatisfied with the agency's handling of her 
administrative complaint.  Moreover, the delay in adjudicat-
ing the complaint had no impact on Ms. Stewart's grade, pay, 
or benefits.  Therefore, even if the Court assumes that IGC 
members refused to cooperate with the EEOC investigation, 
this action had no materially adverse consequences for Ms. 
Stewart's employment.

                            CONCLUSION

     For the foregoing reasons, the Court concludes that the 
plaintiff has failed to establish a prima facie case with respect 
to either hostile work environment or retaliation under Title 
VII.  Accordingly, judgment is entered for the defendant.  A 
separate order accompanies this Memorandum Opinion.