BURKES v. HOLDER et al

Filing 16

MEMORANDUM AND OPINION. Signed by Judge Emmet G. Sullivan on July 15, 2013. (lcegs4)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
RICHARD W. BURKES,
)
)
Plaintiff,
)
)
v.
) Civil No. 12-321 (EGS)
)
ERIC HOLDER JR., Attorney General )
Of the United States,1
)
)
Defendant.
)
___________________________________)

MEMORANDUM OPINION
Plaintiff Richard Burkes brings this action seeking damages
for alleged violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (“Title VII”) based on
plaintiff’s race, hostile work environment and retaliation for
protected activity.

Defendant filed a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing
plaintiff failed to exhaust his administrative remedies and
failed to state a claim on which relief can be granted.

Upon

consideration of the motion, the entire record herein, and for

1

Plaintiff originally named Robert S. Mueller III, Director of
the Federal Bureau of Investigation, as a defendant in this
matter, but has since agreed to dismiss him from the case.
Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 11-12.
Plaintiff has also voluntarily agreed to dismiss Count IV of his
complaint, which alleges a violation of 42 U.S.C. § 1983. Id.
Accordingly, defendant Mueller and plaintiff’s Section 1983
claims are DISMISSED.

the reasons stated below, the motion to dismiss will be GRANTED
IN PART AND DENIED IN PART.
I. BACKGROUND
A. Plaintiff’s Complaints to Management in Late 2009 and
Early 2010; Plaintiff Observes Stuffed Monkey Hanging
from Eraser Board in February 2010.
Plaintiff has been employed by the FBI since March 1988,
and has served as a Lead Program Analyst within the Records
Management Division since June 2008.

Compl. ¶ 13.

In late 2009

and again in early 2010, Mr. Burkes made complaints to the
Department of Justice Office of Inspector General and Bradley
Creamer, his Shift Supervisor, of differential treatment of
White employees and African American employees.

Id. ¶ 14.

He

also reported security violations involving contractors,
specifically, that Contract Manager Jackie Cox was involved in
security violations.

Id. ¶ 15.

Ms. Cox is a friend of Mr.

Creamer’s, and plaintiff alleges that Creamer told Cox that the
plaintiff had complained about her activity, and that she should
“try to get something” on the plaintiff.

Id.

Ms. Cox was

eventually terminated as a result of plaintiff’s complaint.

Id.

¶ 17.
On February 17, 2010, the plaintiff witnessed a stuffed
monkey hanging by its neck on an eraser board in a public work
area within the office, which was allegedly hung by Mr. Creamer.
Id. ¶ 18.

Mr. Burkes immediately complained to a supervisor and
2

the Department of Justice’s Office of Inspector General, and
informed them both that he believed the display was
discriminatory.

Id. ¶ 19.

Plaintiff alleged Mr. Creamer took

the toy monkey down, but then placed the monkey in an overhead
bin in his cubicle, where employees could still see it, for
eight additional days. Compl. ¶ 26; Def.’s Mot. to Dismiss at
Ex. A-8 (EEOC Report of Counseling by R. Burkes).
B. EEOC Complaint Process
Plaintiff made initial contact with the agency’s Equal
Employment Opportunity office (“EEOC”) on April 6, 2010.
¶ 27, Def.’s Mot. to Dismiss at Ex. A-8.

Compl.

He alleged that “on

2/17/10, [he] believed he was discriminated against based on his
race (Black) and age (40) when he saw a toy monkey hanging by a
noose on a bulletin board located in the management seating area
of the Document Conversion Laboratory.”

Id.

Plaintiff

submitted an official Complaint to the EEOC on April 21, 2010,
alleging race discrimination and age discrimination.2

Compl. ¶

28, Def.’s Mot. to Dismiss Ex. A-2.
On May 21, 2010, plaintiff requested that his EEO Complaint
be amended to include reprisal.

Compl. ¶ 28.

Plaintiff

asserted that in late 2009 and early 2010, he complained to his
supervisors and to the Office of Inspector General about the
2

Plaintiff’s EEO Complaint also included a charge of age
discrimination. However, he abandoned that claim at the
administrative level and does not raise it in this case.
3

“discriminatory and retaliatory treatment and hostile work
environment he was experiencing.”

Id. ¶¶ 60, 62.

Specifically,

plaintiff alleged that “[o]n September 7, 2009, [he] complained
about race discrimination in the workplace and other wrongs
witnessed,” and on February 3, 2010, he notified managers that
“contractors may be working with expired clearances.”

Def.’s

Mot. to Dismiss, Ex. E, (Letter from EEOC to D. Rucker, July 13,
2010).

He stated that shortly after these incidents management

was watching and documenting his every move.

Id.

On July 13,

2010, the EEO sent a letter informing plaintiff, through
counsel, that his request to amend the Complaint was denied.
Id.

The letter states, in relevant part, “[Mr. Burkes] has

failed to state a claim of reprisal as a protected basis, since
he did not indicate that the alleged retaliatory acts were
connected to prior participation in EEO activity or any prior
opposition to unlawful discrimination.

Therefore, reprisal will

not be accepted as a basis in this complaint.”

Id.

On October 5, 2010, the Agency notified plaintiff of the
result of the EEO investigation, and advised that he had thirty
days to appeal.

He did so on October 13, 2010.

30; Def.’s Mot. to Dismiss Ex. F, G.

Compl. ¶¶ 29-

The Department of Justice

issued a Final Agency Decision on November 28, 2011.
Mot. to Dismiss Ex. H.

Def.’s

The agency found Mr. Burkes’ claim was

untimely because he did not make initial contact with the EEOC
4

within 45 days of the February 17, 2010 incident, as required by
29 C.F.R. § 1614.105(a).

Id.

The EEOC further determined that

even if the claim was timely, the record did not support a claim
of a hostile work environment on the merits.

Id.

C. Events Occurring After EEOC Charge Was Filed
Plaintiff alleged that he was subjected to a number of
discriminatory and retaliatory acts after he filed his EEOC
Complaint: (1) in mid to late 2010 he was temporarily assigned
to FBI headquarters; (2) in November 2010 he received an
undeserved low performance appraisal; (3) in December 2010, he
was transferred back to Winchester, Virginia; (4) in late 2010,
he was falsely accused of sleeping on duty; (5) at an
unspecified time in 2010, he was denied the opportunity to
attend a training, while two white employees were permitted to
attend; (6) in early 2011, his supervisor threatened to place
him on a performance improvement plan; (7) in early 2011, his
supervisor stated plaintiff “needed to man up and apologize” for
making complaints and “embarrassing DocLab;” and (8) plaintiff’s
supervisor has been targeting and scrutinizing plaintiff’s work
“in a manner not experienced by plaintiff prior to complaining.”
Compl. ¶¶ 31-40.
Plaintiff did not file an EEOC Complaint regarding any of
these allegations.

He also did not seek to amend his

administrative complaint to add any of these allegations except
5

the last one: management was retaliating against him by watching
him and documenting his every move.

See Section I.B, supra.

Plaintiff filed this action on February 28, 2012.
Defendants subsequently moved to dismiss.

The motion is ripe

for resolution by the Court.
II.

STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint.
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

Browning

A complaint

must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (internal quotation marks and citations omitted).
While detailed factual allegations are not necessary, plaintiff
must plead enough facts “to raise a right to relief above the
speculative level.”

Id.

When ruling on a Rule 12(b)(6) motion, the Court may
consider “the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).3

3

Defendant attaches several exhibits to the Motion to Dismiss,
and the plaintiff does not object to their attachment. The
6

The Court must construe the complaint liberally in plaintiff’s
favor and grant plaintiff the benefit of all reasonable
inferences deriving from the complaint.

Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

However, the Court

must not accept plaintiff’s inferences that are “unsupported by
the facts set out in the complaint.”

Id.

“[O]nly a complaint

that states a plausible claim for relief survives a motion to
dismiss.”

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

III. DISCUSSION
A. Exhaustion of Administrative Remedies
Before bringing any suit under Title VII, an aggrieved
party is required to timely exhaust his administrative remedies.
Hamilton v. Geithner, 666 F.3d 1344, 1349 (D.C. Cir. 2012).
Under 29 C.F.R. § 1614.105(a)(1), an employee of the federal
government who believes he has been subject to discrimination is
required to first “initiate contact” with an EEO counselor
within forty-five days of the allegedly discriminatory action.
If the matter is not resolved informally, then the employee may
file a formal complaint of discrimination with the agency.

Id.

Court considers the charge of discrimination, the correspondence
relating to plaintiff’s attempts to amend his administrative
complaint, and the right to sue letter, which it may do without
converting the motion to dismiss into the motion for summary
judgment. See, e.g., Williams v. Chu, 641 F. Supp. 2d 31, 34-35
(D.D.C. 2009); Gustave-Schmidt, 226 F. Supp. 2d at 196. The
remaining documents, which relate to the substance of
plaintiff’s claim regarding the hanging monkey, will not be
considered by the Court at the motion to dismiss stage.
7

§§ 1614.105(d), 1614.106(a).

The employee may amend the

complaint “at any time prior to the conclusion of the
investigation to include issues or claims like or related to
those raised in the complaint.”

Id. § 1614.106(d).

A complainant may file a civil action within 90 days of
receiving a final decision from the agency or after a complaint
has been pending before the EEOC for at least 180 days.
U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407.

See 42

A Title VII lawsuit

is “limited in scope to claims that are like or reasonably
related to the allegations” of the administrative complaint.
Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)
(internal citations omitted).

In other words, the claims “must

arise from the administrative investigation that can reasonably
be expected to follow the charge of discrimination.”

Id.

“For purposes of exhaustion, there are two types of Title
VII claims:

(1) claims of discrete retaliatory or

discriminatory acts and (2) hostile work environment claims.”
McLaughlin v. Holder, Civil No. 11-1869, 2013 U.S. Dist. LEXIS
19718, *12-13 (Feb. 14, 2013) (citing Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 110, 115 (2002)).

An employee must

timely exhaust the administrative process for each discrete act
for which he seeks to bring a claim.

Discrete discriminatory

acts “are not actionable if time barred, even when they are
related to acts alleged in timely filed charges.
8

Each discrete

discriminatory act starts a new clock for filing charges
alleging that act.

The charge, therefore, must be filed within

the [45]-day time period after the discrete discriminatory act
occurs.”

Morgan, 536 U.S. at 113.

The law regarding exhaustion

of retaliation claims is less clear in this Circuit, as some
judges on this court have declined to require separate
exhaustion for retaliation claims that arise after a plaintiff
has filed an administrative complaint if they are related to the
timely filed charges.

See Nguyen v. Winter, 895 F. Supp. 2d

158, 183-84 (D.D.C. 2012) (collecting cases).

At a minimum,

however, claims of each retaliatory act must be administratively
exhausted “unless they were (1) related to the claims in the
initial administrative complaint, and (2) specified in that
complaint to be of an ongoing and continuous nature.” Id. at
184(citations omitted).
Hostile work environment claims, on the other hand, are
“different in kind from discrete act claims” because “[t]heir
very nature involves repeated conduct.”
115.

Morgan, 536 U.S. at

Accordingly, “[p]rovided that an act contributing to the

claim occurs within the filing period, the entire time period of
the hostile environment may be considered by a court for the
purposes of determining liability.”

Id. at 117.

And that act

need not be the last act; subsequent events “may still be part
of the one hostile work environment claim.” Id.
9

1. Plaintiff’s Race Discrimination Claims Must be
Dismissed
Plaintiff first contacted his EEOC counselor on April 6,
2010.

Any discrete acts of discrimination arising more than

forty-five days earlier than this date (i.e. February 20, 2010)
were not exhausted.

Moreover, given that Plaintiff never

initiated EEO proceedings regarding any acts of discrimination
arising after April 6, 2010, any discrete acts of discrimination
arising after that date are not exhausted. See Morgan, 536 U.S.
at 113 (“[e]ach discrete discriminatory act starts a new clock
for filing charges alleging that act.”).

Consequently, the only

claim which plaintiff arguably exhausted is the claim regarding
the hanging monkey.

Even assuming plaintiff exhausted this

claim, however, it would not survive as a race discrimination
claim.

When asserting a race discrimination claim under Title

VII, the plaintiff must allege two essential elements:

1) that

the plaintiff suffered an adverse employment action, and 2) that
the adverse employment action was the result of plaintiff’s
race. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir.
2008).

Here, plaintiff cannot satisfy the first element,

because the presence of a hanging monkey does not constitute an
adverse employment action.

See, e.g., Taylor v. Small, 350 F.3d

1286, 1293 (D.C. Cir. 2003) (defining an adverse employment
action as “a significant change in employment status, such as

10

hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing
significant change in benefits.”)(citations omitted).
Accordingly, plaintiff’s race discrimination claim is dismissed.
2. Plaintiff’s Retaliation Claims
In Count II of his complaint, Mr. Burkes claims that the
defendants have retaliated against him.

Compl. ¶¶ 59-79.

Reading the complaint in the light most favorable to the
Plaintiff, he alleges that he experienced retaliation occurring
at two separate time periods:
EEOC complaint.

before and after he filed his

Id. ¶¶ 13-16, 31-41.

Defendants argue that

none of the retaliation claims have been exhausted, and
therefore all must be dismissed.

Def.’s Mot. at 18-20.

The

Court considers Plaintiff’s claims in turn.
First, plaintiff alleges that management retaliated against
him in late 2009 and early 2010.

Plaintiff attempted to amend

his EEOC complaint in May 2010 to add this retaliation claim.
Specifically, Plaintiff alleged that he had complained to his
supervisor about race discrimination and security breaches in
late 2009 and early 2010, and after making those complaints,
management began watching and documenting his every move.
Section I.B supra.

See

As set forth above, the agency notified

plaintiff and his counsel in July 2010 that it did not accept
his retaliation claim for filing; accordingly, it was not
11

considered at the agency level. There is no evidence that
plaintiff challenged the agency’s decision not to accept this
claim for investigation, or that he filed any additional
complaints of retaliation.

Accordingly, because plaintiff did

not exhaust his retaliation claim before filing the instant
civil action, it must be dismissed.

See, e.g., Silver v.

Leavitt, Case No. 05-968, 2006 U.S. Dist. LEXIS 12949, at *29-30
(D.D.C. March 13, 2006) (dismissing some of plaintiff’s claims
for failure to exhaust because the claims were not accepted for
investigation at the administrative level). Robinson v. Chao,
403 F. Supp. 2d 24, 31 (D.D.C. 2005) (same).4
Citing Zipes v. Trans World Airlines, Plaintiff contends
that he should not be penalized for the EEOC’s rejection of his
request to amend his EEOC complaint.

Opp’n at 6-7.

In Zipes,

the Supreme Court held that the exhaustion requirement is not
jurisdictional prerequisite to suit in federal court, but a
4

Plaintiff does not argue that he should have been permitted to
amend his administrative complaint because his retaliation claim
was “like or related” to his claim regarding the stuffed monkey.
See 29 C.F.R. § 1614.106(d). Nor could he. “A new claim is
like or related to a pending claim if it could reasonably been
expected to grow out of the original complaint during the
investigation.” Weber v. Battista, 494 F.3d 179, 183 (D.C. Cir.
2007)(citations omitted). Here, plaintiff’s alleged claim of
retaliation – that management was watching his every move –
shares no factual similarity with his claim of discrimination
regarding the hanging monkey. See, e.g., Bell v. Donley, 724 F.
Supp. 2d 1, 12 (D.D.C. 2010) (amended claims not “like or
related to” original claims where they shared no factual
similarity save the fact that they were “all allegedly
violations of Title VII.”).
12

requirement that, like a statute of limitations, is subject to
the narrow exceptions of waiver, estoppel and equitable tolling.
455 U.S. 385, 393 (1982).

The court’s equitable power to toll

the statute of limitations is exercised only in “extraordinary
and carefully circumscribed instances,” and it is plaintiff’s
burden to show that such circumstances apply.

Mondy v. Sec’y of

Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988); Gantt v. Mabus, 857
F. Supp. 2d 120, 128 (D.D.C. 2012).

Plaintiff has stated no

facts and made no argument that this Court should find such
extraordinary circumstances exist; therefore, he has not carried
his burden.
Second, plaintiff alleges that management retaliated
against him after he filed his administrative complaint, from
mid-2010 to 2011. Compl. ¶¶ 31-40. Plaintiff did not file a
separate EEOC charge regarding any of these acts, nor did he
attempt to amend his April 2010 charge to include them.
Accordingly, they do not meet Morgan’s requirement that a Title
VII plaintiff must timely exhaust administrative remedies for
each discrete act alleged.

Morgan, 536 U.S. at 110.

As set forth above, some judges on this court do not
require separate exhaustion for retaliation claims which postdate an administrative complaint, so long as each subsequent
retaliatory act is “(1) related to the claims in the initial
administrative complaint, and (2) specified in that complaint to
13

be of an ongoing and continuous nature.” Nyguen, 895 F. Supp. 2d
at 184 (citations omitted).

Even this more lenient exhaustion

requirement, however, is not met here.

Plaintiff does not argue

that his allegations of retaliation – denial of training
opportunities, receipt of a low performance evaluation, etc. bear a factual or legal relationship to his allegations of
discrimination regarding the hanging monkey, nor does he argue
that the administrative investigation could have reasonably been
expected to include such incidents.

Accordingly, because

Plaintiff’s retaliation claims first raised in his complaint to
this Court are not “like or related” to the discrimination claim
regarding the stuffed monkey which he raised at the
administrative level, Weber v. Battista, 494 F.3d at 183, they
cannot be considered exhausted.

Accordingly, plaintiff’s

retaliation claims must be dismissed as untimely.
3. Hostile Work Environment Claims: Reprisal and Race
In Count III of his Complaint, Plaintiff asserts hostile
work environment claims based on retaliation and on race.
Compl. ¶ 82.

Defendant asserts that his hostile work

environment claims must be dismissed for failure to exhaust.
With respect to the hostile work environment claims based on
reprisal, the Court agrees.
It is true that a hostile work environment can amount to
retaliation under Title VII.

See Hussain v. Nicholson, 435 F.3d
14

359, 366 (D.C. Cir. 2006) (citations omitted).

In order to

state a claim of hostile work environment based on retaliation,
plaintiff must allege that he engaged in statutorily protected
activity, and that his employer subjected him to discriminatory
“intimidation, ridicule, and insult” of such “severity or
pervasiveness as to alter the conditions of his working
environment” to retaliate against him for doing so.
(citations omitted).

Id.

In order to exhaust his hostile work

environment claim, a plaintiff must contact the EEOC within 45
days of “an act contributing to” the hostile work environment.
See Morgan, 536 U.S. at 117.
Mr. Burke alleges that he participated in two incidents of
statutorily protected activity: 1) complaining “in late 2009 and
again in early 2010,” about “security violations” and
“differential treatment of White Employees and African American
employees,” Compl. ¶ 14, and 2) filing an EEOC complaint
regarding the hanging monkey in April 2010.

Compl. ¶ 27.

He

contacted the EEOC in May 2010 and attempted to amend his
discrimination complaint to add a retaliation claim that after
his complaints about security violations and differential
treatment, management was watching and documenting his every
move.

Def.’s Mot. to Dismiss, Ex. E, (Letter from EEOC to D.

Rucker, July 13, 2010).

However, as discussed above, there was

15

nothing improper about the agency’s denial of the request to
amend; thus, he failed to exhaust that claim.
Although Plaintiff’s Complaint alleges he was subject to
several other retaliatory acts, there is no evidence that he
contacted the EEOC within 45 days of any of Defendant’s other
allegedly retaliatory acts in response to his protected
activity.

See Supra at I.C, III.A.2, (discussing Compl. ¶¶ 31-

40), see also Pl.’s Opp’n at 3, 10-11.

Indeed, according to the

record before the Court, he did not contact the EEOC regarding
any of these claims, at any time.

See Id.

Accordingly, because

he did not exhaust his administrative remedies with respect to
any of the acts he alleges are a part of his retaliatory hostile
work environment, this claim must be dismissed.

See 29 C.F.R. §

1614.105(a)(1).
Plaintiff also alleges a hostile work environment claim
based on race in Count III of his Complaint.

He alleges that

the repeated display of the monkey, both hanging by a noose and
otherwise on display or visible, constituted a racially hostile
work environment.
Opp’n at 2-3, 7-9.

Compl. ¶¶ 18-19, 23, 25-26, see also Pl.’s
He also asserts that the employer’s actions

after he filed his EEO complaint – receipt of an undeserved low
performance appraisal, denial of training opportunities, etc. –
contributed to a racially hostile workplace environment.
¶¶ 81-82, 86, 88.
16

Compl.

Defendant asserts that Mr. Burkes’ racially hostile
workplace claim should be dismissed because he did not contact
the EEO within 45 days of first witnessing the monkey hanging by
a noose, on February 17, 2010.

Rather, he contacted the EEO 48

days thereafter, on April 6, 2010.

Mot. to Dismiss at 14-17.

This is too narrow a view of plaintiff’s hostile work
environment claim.

As set forth in the Complaint, plaintiff

asserts that on February 17, 2010, he saw the monkey hanging by
its neck in a public work area and on an eraser board, which was
hung by Bradley Creamer, a white supervisor in plaintiff’s chain
of command.

Compl. ¶¶ 18, 21.

Plaintiff alleges that the

monkey was not only present on February 17, but also for eight
days thereafter.

Specifically, he asserts that the monkey “was

eventually moved from the eraser board to Mr. Creamer’s overhead
work bin in his cubicle workstation.
visible.”

The monkey remained

Id. 26; see also Pl.’s Opp’n at 6 (“the offensive and

derogatory display was not removed on the same day [plaintiff
first saw it] but was merely relocated and continued to be
visible for at least another week.”).5

5

Indeed, plaintiff attempted to amend his EEO complaint to
include the continuing presence of the monkey. See Def.’s Mot.
to Dismiss at Ex. D, June 10, 2013 letter from Plaintiff’s
counsel to EEOC (describing hostile work environment claim to
include “whether plaintiff was . . . subjected to a hostile
work environment when his employer allowed the monkey that had
been hung by the neck from a noose to remain in open view in the
work place for 8 days after Complainant and others complained to
17

A hostile work environment claim, by “its very nature
involves repeated conduct . . . and [is] based on the cumulative
effect of individual acts.”

Morgan, 536 U.S. at 115.

The claim

may be timely as long as “an act contributing to the claim
occur[ed] within the filing period.” Id. at 117.

When, as here,

a plaintiff alleges that he was exposed to racist and offensive
symbols over a period of time, courts have looked to the end of
that period for the purposes of determining when a claim is
exhausted.

See, e.g., Watson v. CEVA Logistics, 619 F.3d 936,

943-44 (8th Cir. 2010) (rejecting arguments that employees had
to articulate with absolute precision the number of times they
saw the racist graffiti, and that the court must analyze each
viewing as a separate instance of harassment; “graffiti remains
visible until the employer acts to remove it . . . [employees]
mere awareness of its ongoing presence . . . could contribute to
a hostile work environment.”) (citation omitted); Whorton v.

management about the monkey.”). The EEO refused to accept the
requested amendment on the grounds that it “does not state
additional discrete incidents appropriate for acceptance as
separate issues.” Id. Ex. E, July 13, 2010 letter from EEOC to
Plaintiff’s counsel. This is irrelevant to a hostile work
environment claim, however, which by definition is not based on
discrete incidents giving rise to separate issues, but on “the
repeated nature of the harassment or its intensity . . . the
unlawful employment practice therefore cannot be said to occur
on any particular day. It occurs over a series of days . . .
and, in direct contrast to discrete acts, a single act of
harassment may not be actionable on its own.” Morgan, 536 U.S.
at 115 (citations omitted).
18

Wash. Metro. Area Transit Auth., Case No. 11-1291, 2013 U.S.
Dist. LEXIS 23500, *38-39 (D.D.C. Feb. 21, 2013) (for purposes
of exhaustion, hostile work environment claim premised on
continuous presence of sexually explicit materials in workplace
ends “at the conclusion of [plaintiff’s] exposure” to such
materials).
Burkes’ claim here includes sustained exposure to the
monkey, which concluded at least a week after February 17, 2010,
and therefore within 45 days of April 6, 2010, the day Burkes
first contacted an EEO counselor.

Accordingly, Burkes may be

able to recover for any acts that, along with the display of the
monkey, “collectively constitute one unlawful employment
practice.”

See Morgan, 536 U.S. at 117.

The Court therefore

will not dismiss Burkes’ hostile work environment based on race
as untimely.
B. Failure to State a Claim
A hostile work environment exists “when the workplace is
permeated with discriminatory intimidation, ridicule and insult
that is sufficiently severe and pervasive to alter the
conditions of the victim’s employment and create an abusive
working environment.”

Harris v. Forklift Sys., Inc., 510 U.S.

17, 21 (1993) (citations omitted).

Although Morgan permits

consideration of time barred acts as part of a hostile work
environment claim, not all time barred act will be included.
19

“Both incidents barred by the statute of limitations and ones
not barred can qualify as part of the same actionable hostile
environment claim only if they are adequately linked into a
coherent hostile environment claim – if, for example, they
involve the same type of employment actions, occur relatively
frequently, and are perpetrated by the same managers.”

Baird v.

Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011)(citations
omitted).
In this case, it is undisputed the plaintiff only exhausted
the allegations relating to the stuffed monkey.

Nevertheless,

reading the complaint in the light most favorable to him, he
also appears to allege that a series of subsequent events
between mid-2010 and 2011 also contributed to the race-based
hostile work environment he experienced.
82, 84, 86, 88.

Compl. ¶¶ 31-40, 81-

Accordingly, the Court must determine whether

these concededly unexhausted acts are adequately connected to
each other and to the allegations regarding the monkey to
qualify as part of plaintiff’s hostile work environment claim.
1. Adequately Connected
Neither the Supreme Court nor this Circuit has offered a
precise formulation for determining whether a series of separate
acts are “part of the same unlawful employment practice” or
rather “an array of unrelated discriminatory or retaliatory
acts.”

Baird, 662 F.3d 1252 (citations omitted).
20

Acts which

“involve the same type of employment actions, occur relatively
frequently, and are perpetrated by the same managers,” may form
a continuous hostile work environment, as are acts outside the
statute of limitations that are “similar in nature, frequency
and severity” to the acts within the limitations period.

Id. at

1251 (quoting Morgan, 536 U.S. at 120-21 (alterations omitted));
see also Wilkie v. Dep’t of Health & Human Servs., 638 F.3d 944,
951 (8th Cir. 2011)).

It will not “always be necessary for the

component-acts comprising a hostile work environment to be
identical or to take the same form; however, there must be a
‘common thread’ among them.” Mason v. Geithner, 811 F. Supp. 2d
128, 178 (D.D.C. 2011).
In this case, the Court is unable to find that that the
plaintiff has plausibly alleged the acts occurring outside the
statute of limitations are part of his race based hostile work
environment claim.

In his complaint, Mr. Burkes identifies nine

acts occurring outside the statute of limitations, ranging from
a temporary assignment to FBI headquarters to an undeserved low
performance appraisal to being falsely accused of sleeping on
duty to denial of a request to attend training.
40.

Compl. ¶¶ 31-

These actions are not similar to one another or to the

display of the hanging monkey.

Plaintiff does not identify the

individual or individuals who took most of these alleged
actions, therefore, the Court cannot infer they were perpetrated
21

by the same managers.

In short, the Complaint does not present

any “common thread” among the timely and time-barred acts.
More problematic still is plaintiff’s complete failure, in
his brief, to address these otherwise time-barred acts as part
of his race-based hostile work environment claim.

In the motion

to dismiss, Defendant clearly argues that both of plaintiff’s
hostile work environment claims – based on race and retaliation
– must be dismissed for failure to exhaust and failure to state
a claim.

Def.’s Mot. at 14-18, 20-21.

In his Opposition,

plaintiff does not address the time-barred allegations in the
context of his race based hostile work environment claims.
Notably, he argues that all of the time-barred allegations
(transfer, poor performance evaluation, sleeping on duty, denial
of training, etc.) should be included in his retaliation based
hostile work environment claim, but he only addresses the
allegations regarding the monkey as part of his race based
hostile work environment claim.

Compare Pl.’s Opp’n at 7-9

(discussing race based hostile work environment claim and only
addressing allegations relating to the monkey) and Id. at 10-11
(discussing retaliatory hostile work environment claim and
addressing all time-barred allegations).

Where, as here,

plaintiff “has made no attempt – none – to crystallize for the
Court how these disparate acts could be seen by a trier of fact
as sufficiently related to coalesce into a single hostile work
22

environment,” the Court cannot conclude that the acts regarding
the monkey are plausibly connected to his allegations regarding
subsequent, time-barred acts.

Mason, 811 F. Supp. 2d at 179;

cf. Laughlin v. Holder, 2103 U.S. Dist. LEXIS 19718, *42
(finding time-barred acts adequately connected to timely acts
“because [plaintiff] has put forward a plausible theory tying
the acts of her hostile work environment claim together.”).
2. Sufficiently Severe or Pervasive
For the reasons set forth above, the Court finds that
plaintiff’s race based hostile work environment claim is limited
to his allegations regarding the display of the monkey.

The

defendant argues that the allegations regarding the monkey are
not sufficiently severe or pervasive to state a claim.
Mot. at 20-21, Def.’s Reply at 6-9.

Def.’s

Plaintiff responds that

“the continual display of (1) a monkey and (2) a monkey hanging
by its neck in a noose-like fashion” are so egregious and
abusive that, standing alone, they can create a hostile work
environment.

Pl.’s Opp’n at 9.

There is no “magic number” that gives rise to an actionable
hostile work environment claim.

Harris, 510 U.S. at 23 (“[W]e

can say that whether an environment is ‘hostile’ or ‘abusive’
can be determined only by looking at all the circumstances.”).
Generally, the more severe the conduct, the fewer occurrences
necessary to create a hostile work environment.
23

See Ayissi-Etoh

v. Fannie Mae, 712 F.3d 572, 579 (D.C. Cir. 2013) (“the test set
forth by the Supreme Court [in Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998)] is whether the alleged conduct is
“sufficiently severe or pervasive” — written in the disjunctive
— not whether the conduct is "sufficiently severe and
pervasive.” A single, sufficiently severe incident, then, may
suffice to create a hostile work environment.”) (Kavanaugh, J.,
concurring); Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir.
2002) (in “extreme circumstances,” one incident may be
sufficiently severe to constitute a hostile work environment).
At the motion to dismiss stage, plaintiff has satisfied his
burden of alleging that the display of the monkey hanging by its
neck created a hostile work environment.

In this case, the

monkey hanging from its neck was prominently displayed “in a
public work area and on an eraser board,” Compl. ¶ 18, where it
presumably was viewed by everyone who entered the area.
Furthermore, it was only removed after the plaintiff complained.
“The implication of this that had the plaintiff[] remained
silent, it would have been on display indefinitely.”

Williams

v. New York City Housing Auth., 154 F. Supp. 2d 820, 823
(S.D.N.Y. 2001).

Indeed, in this case, despite plaintiff’s

complaint, the monkey remained in the office – at the
supervisor’s desk where it remained visible – even after the
plaintiff complained.

Compl. ¶ 26.
24

In terms of severity, “perhaps no single act can more
quickly alter the conditions of employment than the use of an
unambiguously racial epithet . . . by a supervisor.”

Ayissi-

Etoh, 712 F.3d at 577 (quoting Rodgers v. Western-Southern Life
Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)).

In this case, both

of the physical displays alleged to be perpetrated by a
supervisor - a monkey and a noose – are powerful symbols of
racism and violence against African Americans.

“Given the

history of racial stereotypes against African-Americans and the
prevalent one of African-Americans as animals or monkeys, it is
a reasonable – perhaps even an obvious – conclusion that the use
of monkey imagery is intended as a racial insult where no benign
explanation for the imagery appears.”

Jones v. UPS Ground

Freight, 683 F.3d 1283, 1297 (11th Cir. 2012) (citations
omitted).

Likewise, “the noose is among the most repugnant of

all racist symbols, because it is itself an instrument of
violence,” specifically “this nation’s opprobrious legacy of
violence against African-Americans.”
at 824.

Williams, 154 F. Supp. 2d

Combining these two symbols – a monkey and a noose –

gives rise to a plausible inference of a hostile workplace
environment as relates to plaintiff as an African-American.
Accordingly, at the motion to dismiss stage, plaintiff has pled
“sufficient factual matter” to proceed to discovery on his racebased hostile work environment claim.
25

IV.

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss
will be granted in part and denied in part.

Mr. Burkes’ race

discrimination and retaliation claims will be DISMISSED for
failure to exhaust administrative remedies; Mr. Burkes’
retaliation based hostile work environment claim will be
DISMISSED for the same reason.

Mr. Burkes’ race based hostile

work environment claim based on the presence of a stuffed
monkey, first hanging from its neck by an eraser board and
subsequently visible in a supervisor’s cubicle, may go forward;
Defendant’s motion to dismiss this claim is therefore DENIED.
separate order accompanies this memorandum opinion.
Signed:

Emmet G. Sullivan
United States District Judge
July 15, 2013

26

A