WISE v. FERRIERO
ORDER denying 27 Defendant's Motion to Dismiss or in the Alternative for Summary Judgment. Defendant shall file an Answer on or before February 16, 2012. Signed by Judge James E. Boasberg on 2/3/2012. (lcjeb2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 10-1899 (JEB)
DAVID S. FERRIERO,
Archivist of the United States National
Archives and Records Administration,
MEMORANDUM OPINION AND ORDER
Plaintiff Marlon Wise is a black employee of the U.S. National Archives and Records
Administration. He contends in this lawsuit that NARA discriminated against him on the basis
of race and retaliated against him for engaging in protected activity through a series of incidents
that took place over the course of nearly five years. Defendant David Ferriero, the Archivist of
NARA, has now filed a Motion to Dismiss or in the Alternative for Summary Judgment. Much
of the Motion concerns discrete claims that the Court determines — and Wise concedes — were
not raised in his Second Amended Complaint. The Court finds, however, that the two causes of
action that Plaintiff has in fact brought in this case — a discrimination-based hostile-workenvironment claim and a retaliation-based hostile-work-environment claim — do survive the
According to Plaintiff’s Second Amended Complaint, which the Court must credit at this
stage, Wise has been employed by NARA since October 2001. Second Am. Compl., ¶ 4. The
events at issue in this case began in 2006 when Carlton Barnes, a black supervisor who was not
then in Wise’s chain of command, called him “a punk ass nigger” in the presence of Clarence
Simmons, the white supervisor of both Wise and Barnes. See id., ¶ 6. Simmons did not address
Barnes’s use of the racial slur. See id., ¶ 8. Wise subsequently reported the incident to
Simmons’s supervisor, Doris Hamburg, and after Hamburg too failed to address the episode, he
reported it to her supervisor, Michael Kurtz. See id. No one took action. See id.
After “Barnes learned that . . . Wise had reported the name calling incident to his
supervisors,” he twice sought to have Wise disciplined relating to “phony allegations of wrongdoing.” Id., ¶ 9. The Human Resources department declined to discipline Wise, but did not
admonish Barnes for having made allegedly false accusations. See id.
“The following year,” Wise applied for promotions to two vacant positions in his work
unit. See id., ¶ 10. After discovering that Wise was seeking these promotions, Barnes
purportedly told Simmons that he “would rather resign his position with the federal government
than to see [Wise] promoted.” Id. Barnes was subsequently transferred to a new position and
thereby became the selecting official for both of the vacancies Wise had applied to fill. See id., ¶
11. Although he contends that he was “the most experienced applicant and the employee with
the most . . . Outstanding evaluations,” Wise was not selected for either position. See id.
By virtue of this transfer, Barnes also became Wise’s direct supervisor. See id., ¶ 13.
Upon learning that Barnes was to supervise him, Wise went to Kurtz seeking a transfer “on five
or six occasions and also attended an outside mediation session to address his workplace
concerns.” Id. Kurtz, along with Hamburg, who was also present, refused to offer him a
transfer. See id.
Once Barnes officially became Wise’s supervisor, the situation did not improve. Barnes,
Wise alleges, continued to harass him and was “repeatedly rude, impolite and otherwise hostile
toward Plaintiff.” Id., ¶ 12. In October 2008, Barnes arranged for every full-time permanent
employee in his office except for Wise to receive two full days of training. See id., ¶ 15. Wise
also suggests that he was expected to meet higher standards of production than other employees,
see id., ¶ 17, and alludes to “other incidents of denial of training, denial of access to computers
which he had frequently used for work before he protested the name calling incident, and other
denials of opportunities to advance his career.” Id., ¶ 22.
Wise also sought help from numerous individuals. He wrote letters to Simmons, his
Congresswoman, and his union complaining of the harassment he believed he was suffering at
Barnes’s hands. See id., ¶¶ 14, 17. He contacted and requested assistance from, among others,
the current Archivist, two former Archivists, NARA’s Chief of Staff, and the Director of
NARA’s EEO office. See id., ¶ 23. These officials, however, “either denied that Plaintiff had a
valid EEO claim . . . and/or mislead [sic] Plaintiff as to the proper administrative process to file
an EEO claim and/or ignored Plaintiff’s requests to address his EEO claims.” Id., ¶ 25. He
ultimately received some relief from the HR department, which agreed to temporarily detail
Wise away from Barnes’s supervision. See id., ¶ 19. Wise, however, was informed that HR
would not be addressing Barnes’s use of the racial epithet, which it wrote off as a “cultural
thing.” Id., ¶ 18.
Though Wise is no longer working under Barnes, he remains Wise’s supervisor of record
because the detail is only temporary. See id., ¶ 19. The opportunities for educational and career
growth he had in his permanent position, moreover, are not available to him in the detail. See
id., ¶ 20. He also claims that even since being detailed he has not received performance ratings
or monetary awards he deserves. See id., ¶ 21.
In September 2009, Plaintiff, continuing his efforts to obtain redress from supervisory
officials, attempted to deliver a letter expressing his concerns to the office of the then-Acting
Archivist, Adrianne Thomas. See id., ¶ 33. After being told that Thomas was unavailable, he
returned to his office. Id. About an hour later he tried again with the same result. See id. He
then received a call from Kevin McCoy, who stated that he “was not to try to see, meet or give
Ms. Thomas any letters. In fact, the staff in Ms. Thomas’ area did not want [him] to come back
to the fourth floor and if [he] did there would be actions taken against him.” Id., ¶ 34 (alterations
in original). He was later summoned to the Branch Chief’s office and given formal notice that he
would face disciplinary action if he were to approach Thomas’s office again because “Thomas,
who is white, and her staff . . . felt threatened by him.” Id., ¶ 35.
Most recently, Wise contends that in 2010 Barnes wrongly omitted him from a list of
employees who were to receive cash awards for their work on a project. See id., ¶ 37. Wise did
ultimately receive the cash award, but only after having brought the issue to the attention of the
EEO Office. See id., ¶ 37. He maintains that he was nevertheless harmed by having “missed the
award ceremony and the positive recognition from co-workers and managers such participation
in the ceremony would have provided him.” Id.
Wise first contacted an EEO counselor on September 23, 2009, and he filed a formal
complaint of discrimination on November 12, 2009. See id., ¶ 41. This complaint “assert[ed]
discrimination on the basis of race and identifie[d] facts describing retaliation . . . and
referencing the hostility he faces in the workplace.” Id. NARA dismissed all claims brought
therein, and Wise appealed the agency’s decision to the EEOC. See id. The EEOC rendered its
decision on August 5, 2010. Id. Wise filed a Complaint, which has since been twice amended,
initiating the instant action on November 4, 2010. On December 6, 2010, Wise again initiated
contact with NARA’s EEO Office and subsequently filed a second formal complaint of
discrimination. See id., ¶ 42. In this one, Wise “asserted both race and retaliation as bases for
the unlawful treatment resulting in a hostile work environment.” Id. NARA’s EEO Office again
dismissed Wise’s complaint.
Ferriero has now filed a Motion to Dismiss or in the Alternative for Summary Judgment.
The request for summary judgment relates only to the failure to exhaust discrete claims and
whether the denial of an award was an adverse employment action. See Reply at 9. As these
issues are ultimately moot, see Section III, infra, the Court need focus only on the standard under
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a
complaint fails to “state a claim upon which relief can be granted.” In evaluating Defendant’s
Motion to Dismiss, the Court must “treat the complaint's factual allegations as true . . . and must
grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens
Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Although the notice pleading rules are “not meant to impose a great burden on a
plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and “detailed factual
allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Though a plaintiff may survive a 12(b)(6) motion even if “recovery is very remote
and unlikely,” Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)),
the facts alleged in the complaint “must be enough to raise a right to relief above the speculative
level.” Id. at 555. The Court need not accept as true, moreover, “a legal conclusion couched as a
factual allegation,” nor an inference unsupported by the facts set forth in the Complaint.
Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986) (internal quotation marks omitted).
At first glance, this case appears to pose numerous questions relating to the exhaustion of
administrative remedies and whether certain incidents qualify as actionable adverse employment
actions. See generally Mot. at 8-26. Indeed, Ferriero’s Motion devotes twenty-three of twentysix pages to argument that is premised on his reading of Wise’s Complaint as raising numerous
discrete discrimination claims stemming from many of the incidents detailed therein. This is not
an unreasonable reading of Wise’s admittedly ambiguous pleading. The Second Amended
Complaint contains two counts, titled “Adverse Employment Actions Taken Against Plaintiff on
the Basis of Race” and “Adverse Employment Actions Taken Against Plaintiff on the Basis of
Retaliation.” Second Am. Compl. at 11. Both state that “[t]he unlawful actions taken against
Plaintiff, resulting in the creation of a hostile work environment and interference with career
opportunities which, if uncorrected, will continue causing harm, were committed,” respectively,
“because of Mr. Wise’s race” and “because of Mr. Wise’s participation in protected activities.”
Any uncertainty as to whether Wise intended with this language to bring both discrete
discrimination and retaliation claims based on individual events and hostile-work-environment
claims or just the latter is dispelled by his Opposition. Wise there abjures the various discrete
claims Ferriero believed his Complaint had raised and argues solely in support of his hostilework-environment theory. He explicitly characterizes his Complaint as raising “two claims of
hostile work environment,” Opp. at 25, one based on a discrimination theory and the other on a
retaliation theory, and he sets out and applies the hostile-work-environment standard. See id. at
14-25. In addition, his exhaustion argument clearly concerns only the hostile-work-environment
theory. See id. at 25-29. The Court therefore finds that only hostile-work-environment claims
— one premised on discrimination, the other on retaliation — are presented in this case. To the
extent Plaintiff might later attempt to resuscitate additional claims, however, the Court considers
such arguments to be waived. See Iweala v. Operational Technologies Servs., Inc., 634 F. Supp.
2d 73, 80 (D.D.C. 2009) (“It is well understood in this Circuit that when a plaintiff files an
opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a
court may treat those arguments that the plaintiff failed to address as conceded.”).
This drastically simplifies matters. Ferriero concedes that Wise’s hostile-workenvironment claims were “timely and fully exhausted.” Mot. at 21. He also clearly states that
his alternative Motion for Summary Judgment does not concern the hostile-work-environment
claims, and he thus moves only to dismiss them under Rule 12(b)(6). See id. at 7-9. All that
remains for the Court to decide, then, is whether, as a matter of law, the allegations contained in
the Second Amended Complaint suffice to sustain the two hostile-work-environment claims.
Title VII makes it unlawful for an employer “to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a), or “because he
has made a charge . . . or participated in any manner in an investigation” of employment
discrimination. 42 U.S.C. § 2000e-3(a). The Supreme Court has held that these provisions make
it unlawful for an employer to “requir[e] people to work in a discriminatorily hostile or abusive
environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A hostile work environment
can amount to either discrimination or retaliation under Title VII. See, e.g., Harris v. Wackenhut
Servs., Inc., 419 Fed. Appx. 1, 1 (D.C. Cir. 2001) (discrimination); Singletary v. District of
Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003) (retaliation). Wise has made both claims, alleging
that he was subjected to a hostile work environment both because of his race and because of his
protected activity. See Second Am. Compl. at 11.
To prevail on a hostile-work-environment claim under either a discrimination or a
retaliation theory, “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 v. Kempthorne,
550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris, 510 U.S. at 12). “To determine whether a
hostile work environment exists, the court looks to the totality of the circumstances, including
the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it
interferes with an employee’s work performance.” Id. at 1201 (citing Faragher v. City of Boca
Raton, 524 U.S. 775, 787-88 (1998)). “The Supreme Court has made it clear that ‘conduct must
be extreme to amount to a change in the terms and conditions of employment.’” George v.
Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005) (quoting Faragher, 524 U.S. at 788). By adhering to
these standards, the Court thereby “ensure[s] that Title VII does not become a general civility
code” that involves courts in policing “the ordinary tribulations of the workplace.” Faragher,
524 U.S. at 788 (citation and internal quotation marks omitted).
The incidents Wise claims created a hostile work environment are laid out in detail in
Section I, supra. Ferriero contends that even accepting the veracity of Wise’s allegations and
construing the Second Amended Complaint in the light most favorable to him, he has not
established that he was subjected to a hostile work environment. See Mot. at 21-23; Reply at 58. Wise, on the other hand, maintains that he has pled facts that satisfy the hostile-workenvironment standard. Alternatively, Wise’s attorney, Gary Brown, has submitted a Rule 56(f)
Declaration in which he attests that he needs additional discovery in order to “establish facts
which support Mr. Wise’s claim of a hostile work environment.” Mot. Attachment (Decl. of
Attorney Gary T. Brown), ¶ 3.
While additional discovery certainly might assist Wise in establishing elements of his
claim —for example, that the hostile work environment was in fact motivated by discrimination
and/or retaliation — it would not help him to counter the challenge raised by Ferriero here. The
Supreme Court has stated that “if the victim does not subjectively perceive the environment to be
abusive, the conduct has not actually altered the conditions of the victim's employment, and there
is no Title VII violation.” Harris, 510 U.S. at 21-22. Conduct that Wise did not know about,
therefore, cannot not be used to establish that he was subjected to a hostile work environment.
See Hutchinson v. Holder, --- F. Supp. 2d ---, 2011 WL 4537878, at *15 (D.D.C. 2011); Weger
v. City of Ladue, 500 F.3d 710, 736 (8th Cir. 2007); Burnett v. Tyco Corp., 203 F.3d 980, 981
(6th Cir. 2000). Discovery, accordingly, could not help Wise to demonstrate its existence.
The Court finds, nevertheless, that the allegations contained in his Second Amended
Complaint, considered, as they must be, in the light most favorable to Wise, could suffice to
establish that he was made to endure a hostile work environment. Although Ferriero is correct
that a single “utterance of an epithet” does not constitute a hostile work environment, see Harris,
510 U.S. at 21-22; Hunter v. District of Columbia, 797 F. Supp. 2d 86, 94 (D.D.C. 2011);
DeLoatch v. Harris Teeter, Inc., 797 F. Supp. 2d 48, 62 (D.D.C. 2011), the racial slur was the
beginning, not the sum total, of the episodes Wise claims constituted a hostile work environment.
In addition to vague allegations concerning continuous harassment, he has identified myriad
incidents ranging from threats of discipline based on false accusations to being singled out and
excluded from trainings and award ceremonies and denied promotions. Although they took
place over the course of a few years, Wise could provide evidence supporting these allegations
sufficient for a reasonable jury to find that the purported harassment was both severe and
pervasive. Cf. Holmes-Martin v. Leavitt, 569 F. Supp. 2d 184, 193 (D.D.C. 2008) (denying
motion to dismiss hostile-work-environment claim because plaintiff “alleged some conduct in
support of her claim” and noting that plaintiff must plead facts that “support,” not “establish,”
Ferriero’s contention that Wise is simply “attempt[ing] to use the hostile work
environment theory to pursue discrimination and retaliation claims based upon discrete
incidents,” Reply at 8, moreover, relies on a theory expressly rejected by the D.C. Circuit’s
recent decision in Baird v. Gotbaum, 662 F.3d 1246 (D.C. Cir. 2011). See Mot. at 22 (citing
Baird v. Snowbarger, 744 F. Supp. 2d 279 (D.D.C. 2010), the very decision Baird v. Gotbaum
vacated in relevant part). In that case, the court clarified that episodes that may well give rise to
individual Title VII claims can also combine to form a hostile-work-environment claim:
[W]e find no authority for the idea that particular acts cannot as a
matter of law simultaneously support different types of Title VII
claims, and of course, plaintiffs are free to plead alternative
theories of harm that might stem from the same allegedly harmful
conduct. Thus, although a plaintiff may not combine discrete acts
to form a hostile work environment claim without meeting the
required hostile work environment standard, neither can a court
dismiss a hostile work environment claim merely because it
contains discrete acts that the plaintiff claims (correctly or
incorrectly) are actionable on their own.
Id. at 1252. Incidents like the agency’s failure to promote Wise, therefore, cannot be excluded
from his hostile-work-environment claim simply because they may well have formed the basis of
distinct Title VII claims.
At the end of the day, Wise’s Second Amended Complaint clears the Motion-to-Dismiss
hurdle, if not by much. His allegations must ultimately be supported by record evidence, and he
will need to show that Barnes, who is also black, was actually motivated by Plaintiff’s race or his
protected activity in order to withstand future dispositive motions. The Court cannot conclude at
this juncture, however, that his hostile-work-environment claims should be dismissed.
For the foregoing reasons, the Court ORDERS that:
1. Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment is
2. Defendant shall file an Answer on or before February 16, 2012.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: February 3, 2012