CHATMAN v. ERVIN
MEMORANDUM OPINION re 41 Order on Motion to Dismiss and for Summary Judgment. Signed by Judge James E. Boasberg on 10/15/2020. (lcjeb1)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 17-1826 (JEB)
SONNY PERDUE, SECRETARY,
DEPARTMENT OF AGRICULTURE,
Pro se Plaintiff Nadine M. Chatman, a Black woman over the age of 40, held a
temporary-employment position at the United States Department of Agriculture from 2011 to
2015. Unhappy with the environment there and the agency’s refusal to extend her stint, she
brought this suit alleging a hodgepodge of discriminatory and retaliatory actions by her various
supervisors in violation of Title VII and the Age Discrimination in Employment Act. She further
contends that she was subjected to a hostile workplace at USDA, and that she is entitled to relief
on several common-law tort claims.
Defendant Sonny Perdue, Secretary of Agriculture, now moves for summary judgment,
contending that no reasonable jury could find that Plaintiff suffered discrimination or retaliation
or experienced a hostile environment, and that the Court lacks jurisdiction to consider her
remaining claims. Agreeing that her accumulation of perceived slights is both legally
insufficient and factually unsupported, the Court will grant Defendant’s Motion.
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A. Factual Background
In assessing motions for summary judgment, courts must set out the facts in the light
most favorable to the non-moving party. Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
A principal mechanism is the comparison of the parties’ statements of disputed or undisputed
material facts. See Fed. R. Civ. P. 56(c); LCvR 7(h)(1). While Chatman here challenges many
of the Government’s facts, her “Statement Regarding Disputed Issues” is entirely devoid of the
record citations that Federal Rule 56(c)(1) requires. See ECF No. 38 (Pl. Opp.) at 2–3.
Similarly, her more general statement of facts contains few citations and digresses to various
topics bearing little relevance to her legal claims. Id. at 3–11. Although the Court will not
“accept facts that do not cite support from the record or conclusions masquerading as facts,”
Johnson v. Wash. Metro. Area Transit Auth., 314 F. Supp. 3d 215, 216 (D.D.C. 2018), it
nevertheless endeavors here to set out the facts in the light most favorable to Plaintiff. A brief
overview will suffice, as more details about the specific incidents underlying her claims — to the
extent the Court can discern them — appear in the Analysis. See infra Section III.
Chatman began working at USDA in October 2011 as a temporary employee with a set
term of up to four years. See ECF No. 35 (Def. SMF), ¶¶ 2, 5–6; ECF No. 39 (Def. Reply),
Exh. 2 (Documents) at ECF p. 8 (5/8/14 EEO Investigative Report). After starting as a Program
Specialist in the agency’s Equal Employment Opportunity Conflict Office, she was reassigned in
October 2012 to the Corporate Services Division (CSD) in the Office of the Assistant Secretary
for Civil Rights (OASCR), where she remained until the expiration of her appointment in
September 2015. See Def. SMF, ¶¶ 1–2, 10. In that role, Plaintiff informed aggrieved
individuals of their rights and obligations under equal-employment laws, performed complaint
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intake, and attempted to effect informal resolutions between the individuals and the agency. See
ECF No. 35 (MSJ), Exh. 16 (Documents) at ECF pp. 71–73 (Chatman EEO Affidavit); U.S.
Equal Emp’t Opportunity Comm’n, Equal Employment Opportunity Pre-Complaint Processing
(Feb. 20, 2020), https://bit.ly/3lnsCl4.
According to Chatman, her work environment became increasingly hostile beginning in
February 2013, when her first-level supervisor, Barbara Moore, implied that she was mentally
disabled and made a handful of other comments that Plaintiff found intimidating and harassing.
See Pl. Opp., Exh. 12 (5/7/13 EEO Complaint) at ECF p. 32; MSJ, Exh. J (11/6/19 Chatman
Depo.) at 36–37, 41, 43–44. That same month, her fourth-level supervisor, Joe Leonard, accused
a group of employees including Plaintiff of stealing and hiding EEO complaint files. See Def.
Reply, Exh. 2 at ECF pp. 2–3 (Jackson EEO Affidavit); 5/8/14 EEO Investigative Report at ECF
pp. 20, 22; Def. SMF, ¶ 12. She also points to an undefined “relationship” between Leonard and
Candace Glover — who supervised Plaintiff in her final year of employment, see Def. SMF,
¶ 11; Def. Reply, Exh. 1 (Documents) at ECF p. 23 (Glover EEO Affidavit) — as well as a
“sexually charged” culture within OASCR that further contributed to a hostile working
environment. See Pl. Opp. at 20, 34–35; Chatman EEO Affidavit at ECF p. 54.
Aggrieved by these and other incidents, Chatman states that she filed her first EEO
complaint in April 2013 (though Defendant suggests her initial filing did not actually come until
May). Compare Pl. Opp. at 23; 11/6/19 Chatman Depo. at 82, with MSJ at 3; 5/8/14 EEO
Investigative Report at ECF p. 39. As the perceived transgressions accumulated over the ensuing
two years, Plaintiff was not shy about registering her unhappiness, filing a host of additional
EEO complaints alleging discrimination, retaliation, and harassment, along with an August 2014
complaint with the Office of Special Counsel regarding poor management and insufficient
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oversight within OASCR. See MSJ at 2–5 (citing seven EEO complaints); Chatman EEO
Affidavit at ECF p. 100; id. at pp. 144–49 (final OSC report).
Chatman’s situation, however, did not improve. She contends that management began
attempting to reassign her in mid-2013, pointing in particular to one proposed transfer to another
division within USDA, though no reassignment ultimately occurred. See Def. Reply, Exh. 1 at
ECF p. 154 (3/15/16 Chatman Depo.); 5/8/14 EEO Investigative Report at ECF pp. 195, 200; Pl.
Opp. at 22–24. She also indicates that her 2014 performance-evaluation rating was suddenly
adjusted from “Outstanding” to the lower level of “Superior.” MSJ, Exh. L (2014 Performance
Appraisal) at ECF pp. 2–3; id., Exh. 14 (2014/2015 Report of Investigation) at 116–17. Further,
she objects to the process surrounding her 2015 application — and ultimate non-selection — for
a permanent position as an equal-employment specialist within OASCR. See Glover EEO
Affidavit at ECF p. 44; Pl. Opp. at 30–31.
Chatman’s employment at USDA concluded on September 29, 2015, pursuant to the
terms of her initial appointment. See Def. SMF, ¶ 17.
B. Procedural Background
As a result of the aforementioned episodes — as well as a series of others, which the
Court will describe in due course — Plaintiff brought suit in this Court on September 7, 2017,
filing an Amended Complaint on July 2, 2018. See ECF No. 1 (Compl.); ECF No. 15 (Am.
Compl.). Although somewhat difficult to decipher, as it touches on an abundance of incidents
with varying degrees of relevance, her pleading chiefly asserts discrimination based on race, sex,
and age; retaliation for her protected activity; and a hostile work environment. See Am. Compl.
at 30–40. Discovery complete, the agency now moves for summary judgment, as well as to
dismiss several of Plaintiff’s claims for lack of jurisdiction.
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Summary judgment may be granted if “the movant shows that 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, 477 U.S. 242, 247–48 (1986); Holcomb v. Powell,
433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at
895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion”
by “citing to particular parts of materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
When a motion for summary judgment is under consideration, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty
Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary
judgment, the court must “eschew making credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). The non-moving party’s opposition,
however, must consist of more than mere unsupported allegations or denials and must be
supported by affidavits, declarations, or other competent evidence, setting forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The non-movant, in other words, is required to provide
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evidence that would permit a reasonable jury to find in her favor. See Laningham v. U.S. Navy,
813 F.2d 1236, 1242 (D.C. Cir. 1987).
Separately, and in addition, Defendant moves to dismiss several of Plaintiff’s claims
under Rule 12(b)(1). In considering such a motion, a 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)). It is the plaintiff,
however, who bears the burden of proving that the court has subject-matter jurisdiction to hear
her claims. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S.
Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). The court has an “affirmative obligation to
ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001).
Plaintiff’s Amended Complaint asserts several common-law torts, along with causes of
action under Title VII and the Age Discrimination in Employment Act. See Am. Compl. at 30–
40; Pl. Opp. at 1–2. It is not immediately apparent from this lengthy pleading and her
convoluted Opposition to Defendant’s Motion, however, which particular incidents give rise to
which of her various claims. Indeed, at times, the Court is left guessing as to what Chatman
maintains even occurred. It will nevertheless do its best to plod through each category of claims.
It begins with Plaintiff’s common-law counts, then turns to her more fundamental allegations of
discrimination and retaliation, and concludes with her contention that she was subjected to a
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A. Common-Law Claims
The Court can make short work of Plaintiff’s common-law allegations. No merits
analysis is required, as each is barred by sovereign immunity, appeared only in summaryjudgment briefing, or both.
The Court begins with Chatman’s claim that her various supervisors defamed her in
several contexts over the course of her four-year stint at USDA. For instance, she points to
comments from Leonard in a February 2013 meeting relating to an alleged theft of EEO files, a
remark by Moore a month later calling her “obviously limited,” and sworn statements by
Leonard and another agency employee before the OSC in September 2014. See Pl. Opp. at 11–
12, 15–17; Am. Compl. at 37–38; see also Rodney A. Smolla, 1 Law of Defamation § 1:11 (2d
ed. 2020) (explaining that “libel is defamation by written or printed words, . . . while slander
consists of communication of a defamatory statement by spoken words”).
The Federal Tort Claims Act provides “[t]he exclusive remedy for torts committed by
Government employees in the scope of their employment.” Wilson v. U.S. Dep’t of Transp., 759
F. Supp. 2d 55, 64 (D.D.C. 2011). The Court, accordingly, construes Plaintiff’s defamation
claim as arising under the FTCA, which works as a limited waiver of the federal government’s
sovereign immunity. See Sloan v. U.S. Dep’t of Housing & Urban Dev., 236 F.3d 756, 759
(D.C. Cir. 2001). Although the Act waives the Government’s immunity with respect to some
torts, it expressly exempts from such waiver certain intentional torts, including libel and slander.
Jackson v. United States, 857 F. Supp. 2d 158, 161 (D.D.C. 2012) (citing 28 U.S.C. § 2680(h));
see also Millbrook v. United States, 569 U.S. 50, 52 (2013) (discussing FTCA intentional-tort
exception). “In other words, both the United States and federal employees acting within the
scope of their duties are immune from common law actions for libel and slander.” Simpkins v.
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Dist. of Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997). Plaintiff’s “defamation claim
against the United States,” therefore, “is barred.” Gardner v. United States, 213 F.3d 735, 737
n.1 (D.C. Cir. 2000); see also, e.g., James v. United States, 48 F. Supp. 3d 58, 64 (D.D.C. 2014)
(dismissing defamation claim against United States as barred by sovereign immunity).
Relatedly, USDA seems to believe that Plaintiff asserts a distinct claim of “fraud” based
on unspecified conduct. See MSJ at 2, 8. That understanding comes as a surprise to the Court,
as the Amended Complaint did not plead, and her Opposition nowhere mentions, any count
based on fraud. Even had she articulated such a claim, however, it would go nowhere, as the
FTCA similarly “exempts fraud and misrepresentation from [its] general waiver of sovereign
immunity.” Maxberry v. Dep’t of the Army, 952 F. Supp. 2d 48, 52 (D.D.C. 2013) (citing 28
U.S.C. § 2680(h)); see also Bell v. United States, 301 F. Supp. 3d 159, 164–65 (D.D.C. 2018)
Finally, Plaintiff’s Opposition appears to assert an invasion-of-privacy claim based on
allegations that another USDA employee improperly accessed and viewed her EEO complaints
nearly two-dozen times. See Pl. Opp. at 1–2, 37–38. Although Chatman briefly mentions the
alleged conduct giving rise to this theory in her Amended Complaint, see Am. Compl. at 21, 24,
that document does not plead an independent count of invasion of privacy. It is well established
that a plaintiff cannot broaden her complaint in a summary-judgment opposition brief, much less
amend it to advance a new count entirely. Taylor v. Mills, 892 F. Supp. 2d 124, 137–38 (D.D.C.
2012); Jo v. District of Columbia, 582 F. Supp. 2d 51, 64 (D.D.C. 2008). In any event, even if
the Court could consider this claim, Plaintiff nowhere contends that she exhausted it at the
administrative level, as required for any claim brought pursuant to the FTCA. See 28 U.S.C.
§ 2675(a) (requiring plaintiff to have “presented the claim” to appropriate federal agency);
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Simpkins, 108 F.3d at 371 (explaining that “FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative remedies”) (quoting McNeil v. United States,
508 U.S. 106, 113 (1993)); see also Stoddard v. U.S. Parole Comm’n, 900 F. Supp. 2d 38, 41–42
(D.D.C. 2012) (citing GAF Corp. v. United States, 818 F.2d 901, 919 (D.C. Cir. 1987))
(explaining that plaintiff “bears the burden of proving exhaustion,” which is jurisdictional
prerequisite to bringing FTCA suit); Peavey v. United States, 846 F. Supp. 2d 10, 17 (D.D.C.
2012) (dismissing FTCA claim where plaintiff neither pled nor argued that he had exhausted
The Court, therefore, will dismiss Chatman’s common-law claims.
B. Discrete Discrimination and Retaliation Claims
1. Legal Framework
As the gravamen of her suit, Chatman alleges specific incidents of discrimination and
retaliation under both Title VII and the ADEA. See Am. Compl. at 1. As relevant here, the
former prohibits personnel actions based on race and sex, see 42 U.S.C. § 2000e–16(a), and the
latter protects individuals 40 and older from age discrimination. See 29 U.S.C. § 633a(a). Both
statutes forbid retaliation against employees who engage in protected activity, such as filing an
EEO complaint. See Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008).
In weighing a discrete discrimination or retaliation claim under either of these laws, the
Court must follow the three-part burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–05 (1973). See Stoe v. Barr, 960 F.3d 627, 639 (D.C. Cir.
2020) (applying framework to Title VII claims); Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir.
2010) (applying framework to ADEA claims). Under that familiar framework, the plaintiff must
first establish a prima facie case of discrimination or retaliation. McDonnell Douglas, 411 U.S.
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at 802 (discrimination claim); Durant v. Dist. of Columbia Gov’t, 875 F.3d 685, 696–97 (D.C.
Cir. 2017) (retaliation claim). To clear that hurdle, she need only show that “(1) she is a member
of a protected class” or, in the retaliation context, that she “engaged in statutorily protected
activity”; “(2) she suffered an adverse employment action; and (3) the unfavorable action gives
rise to an inference of discrimination” or, in the case of retaliation, “that a causal link connects
the [protected activity and the adverse action].” Czekalski, 475 F.3d at 364 (internal quotation
marks and citation omitted); Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009).
For discrimination claims, a defendant may rebut a plaintiff’s prima facie showing with
evidence of a “legitimate, nondiscriminatory reason” for its action. Stoe, 960 F.3d at 639
(quoting Holcomb, 433 F.3d at 896). If the employer succeeds, the burden then shifts back to the
plaintiff, who must show that “the legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000) (quoting Tex. Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 253
(1981)). When, however, “an employee has suffered an adverse employment action and an
employer has asserted a legitimate, non-discriminatory reason for the decision, the district court
need not — and should not — decide whether the plaintiff actually made out a prima facie case
under McDonnell Douglas.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008). The Court’s sole task in such cases is to “resolve one central question: Has the employee
produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated
against the employee on the basis of race, color, religion, sex, or national origin?” Id.; see
Evans v. Sebelius, 716 F.3d 617, 620 (D.C. Cir. 2013) (explaining that courts evaluate this
question “in light of the total circumstances of the case,” including “the plaintiff’s prima facie
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case”) (quoting Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012)). To defeat
summary judgment, moreover, the plaintiff must “present enough evidence to allow a
reasonable trier of fact to conclude that the employer’s proffered explanation is unworthy of
credence.” Desmond v. Mukasey, 530 F.3d 944, 962 (D.C. Cir. 2008) (internal quotation marks
and citation omitted).
Similarly, for retaliation claims, “the defendant’s rebuttal may take the form of a ‘nonretaliatory explanation’ for its action.” Moss v. Hayden, No. 18-470, 2020 WL 4001467, at *3
(D.D.C. July 15, 2020) (quoting Jones, 557 F.3d at 678). As in the discrimination context, if the
plaintiff has suffered an adverse employment action and the defendant has asserted a legitimate,
non-retaliatory reason for its decision, the Court simply considers whether the plaintiff “has
produced sufficient evidence for a reasonable jury to find that [the defendant’s] asserted reasons
for each action were mere pretexts for illegal retaliation.” Alford v. Def. Intel. Agency, 908 F.
Supp. 2d 164, 172 (D.D.C. 2012) (citing Brady, 520 F.3d at 494); see also id. (explaining that
Brady’s “streamlined framework applies to retaliation claims”).
The Court first turns to a question that ordinarily should not be difficult — namely, which
decisions and actions does Plaintiff allege were the result of unlawful discrimination or
retaliation? Unfortunately, Chatman has not made things easy. The “disparate treatment” count
in her Amended Complaint sounds simple enough, stating that she was “harassed” by several
supervisors, had her “telework privileges” temporarily revoked, and that two other employees
“were given the opportunity to extend their employment” after their temporary appointments
concluded. See Am. Compl. at 4, 30, 32 (capitalization altered). Similarly, Plaintiff’s
“retaliation” count alleges only a single instance of a supervisor’s accusing her of stealing
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complaint files. Id. at 33 (capitalization altered). Other sections of the Amended Complaint,
however, appear to assert numerous additional instances of discrimination — though not
explicitly based on race, sex, or age — and retaliation. Chatman’s Opposition expands on some
of these claims, ignores others, and introduces several new incidents entirely.
While the Court will not address incidents that appear nowhere in the Amended
Complaint, out of an abundance of caution and mindful that “[c]ourts must construe pro se
filings liberally,” Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), it will err on
the side of overinclusivity and endeavor to cover each of the instances of disparate treatment and
retaliation that the Amended Complaint seemingly attempts to raise (and that Plaintiff has not
now abandoned). It begins with the claim that Chatman’s non-selection for an open Equal
Employment Specialist position in 2015 constituted both discrimination and retaliation, before
addressing a series of other allegations of discrimination and retaliation based on her protected
characteristics and activity.
a. 2015 Non-Selection
Chatman alleges that she was discriminated against based on age, and retaliated against
for her protected activity, “when she was not selected for a position of Equal Employment
Specialist in 2015.” Am. Compl. at 40. Her Opposition adds that this non-selection was also
based on sex discrimination. See Pl. Opp. at 30–31. Whether the Court considers this latter
basis is immaterial, as Plaintiff cannot establish that Defendant’s legitimate, non-discriminatory,
non-retaliatory explanation for her non-selection was pretextual.
As previously mentioned, Chatman held a temporary appointment scheduled to conclude
on September 29, 2015. See Def. SMF, ¶¶ 6–8. With that date approaching, she applied for an
open, permanent position as an Equal-Employment Specialist within OASCR and was
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interviewed on September 2, 2015. See Pl. Opp. at 30; id., Exh. 21 (EEO Specialist Position
Summary) at ECF p. 1. Along with nearly 200 other applicants, however, she ultimately was not
selected. See Glover EEO Affidavit at ECF pp. 41, 44. Plaintiff cried foul, protesting that
decision in an EEO complaint and now here. See MSJ at 5 n.4
Although the parties do not directly address this question, the Court begins by concluding
that the adverse-action requirement is satisfied, given that selection would have entitled Chatman
to permanent employment, a marked elevation from her soon-to-expire temporary position. See
Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (“An ‘adverse employment action’ is ‘a
significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing significant change in
benefits.’”) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)); Benjamin v.
Duncan, 694 F. Supp. 2d 1, 6 (D.D.C. 2010) (determining that plaintiff’s non-selection for
position was adverse employment action); Gaskins v. McIntyre, No. 18-997, 2019 WL 451349,
at *1 (D.D.C. Feb. 5, 2019) (finding that failure to hire for permanent position following
expiration of temporary employment was adverse employment action).
Turning to the next step, the Court concludes that the Government has articulated a
“legitimate, nondiscriminatory,” “non-retaliatory” reason for Plaintiff’s non-selection — namely,
that she was ineligible for the merit-promotion list from which candidates were ultimately
selected. Holcomb, 433 F.3d at 896; Jones, 557 F.3d at 678. At the outset of the hiring process,
the agency sorted applicants into three groups: candidates applying under competitive meritpromotion procedures (77 individuals), candidates applying under non-competitive hiring
procedures (40 individuals), and external candidates (82 individuals). See Glover EEO Affidavit
at ECF pp. 41, 44–45; EEO Specialist Position Summary at ECF pp. 1–2 (listing non-
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competitive and merit-promotion candidates as of September 16, 2015). Plaintiff’s name
appeared on the “non-competitive” list because she “did not qualify” for merit promotion, see
Glover EEO Affidavit at ECF pp. 44–45, 47–48 — presumably because of her temporary
appointment. See U.S. Dep’t of Agriculture, Departmental Regulation: Merit Promotion and
Internal Placement (July 22, 2015), https://bit.ly/33ie7IW (explaining that, in general, “only
career or career-conditional status . . . employees may be considered for positions which are to
be filled under merit promotion authority”). After a three-member panel interviewed 79
candidates — including Plaintiff herself — from the merit-promotion and non-competitive lists,
it elected to conduct second-round interviews only for individuals on the merit-promotion list.
See Glover EEO Affidavit at ECF pp. 42, 44. As the selecting official explained, because there
were “many qualified applicants” in that group, it was unnecessary to consider individuals —
such as Plaintiff — who did not have merit-promotion status. Id. at ECF pp. 41–42, 45; see also
id. at ECF p. 42 (explaining that non-competitive applicants “were not considered further”
because “there were a significant number of qualified status applicants”). The two individuals
ultimately selected for the positions were drawn from the merit-promotion list. Id. at ECF
With that explanation established, the Court turns to the “one central question”
remaining: has Plaintiff “produced sufficient evidence for a reasonable jury to find that [her]
employer’s asserted non-discriminatory reason” for her non-selection “was not the actual reason
and that the employer intentionally discriminated against [her]” based on her protected
characteristics? Brady, 520 F.3d at 494; see also Alford, 908 F. Supp. 2d at 172–73 (same for
retaliation). As an initial matter, the Court notes that Chatman never addresses USDA’s nondiscriminatory, non-retaliatory explanation for her non-selection in any fashion. Nowhere does
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she contend that the agency could not limit its focus to the merit-promotion list, or that she
should have been included on it. Indeed, she never even mentions such list, despite Defendant’s
having highlighted the subject in its brief. See MSJ at 17–18. Plaintiff, instead, appears to
mount several distinct rebuttals. None gets off the ground.
First, she takes issue with the composition of the three-member interview panel, arguing
that one member, Crystal Gist, was “not eligible to participate in the interview process” because
she was then a temporary employee. See Pl. Opp. at 7, 30; Glover EEO Affidavit at ECF p. 42
(describing three-member interview panel). Even assuming that this is correct, in no way does
Gist’s participation suggest that the agency’s decision to select from the merit-promotion list
“was not the actual reason for” the non-selection, much less that the “actual reason” was based
on discrimination or retaliation. Gilbert v. Napolitano, 670 F.3d 258, 261 (D.C. Cir. 2012)
(quoting Brady, 520 F.3d at 496 n.4); see also Johnson, 314 F. Supp. 3d at 220 (holding that
employer’s violation of internal policy was insufficient “to support the conclusion that its
explanation for the challenged employment action is pretextual”) (quoting Fischbach v. D.C.
Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)). Similarly, Plaintiff’s contention that the
interview process was “tainted” and “illegal” because Gist helped interview the two individuals
ultimately selected for the openings, see Pl. Opp. at 31, and her unsupported claim that the
process was “rigged” for “preselected” candidates, id., in no way suggest discrimination or
retaliation against Chatman.
Plaintiff next posits, without any explanation, that OASCR managers “discriminated
against [her] when they allowed . . . Gist to appear on the Selection Panel.” Id. at 32–33. But
this conclusory, citation-less assertion of discrimination (untethered to any protected
characteristics) does not suffice to survive a summary-judgment motion. See Anderson, 477
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U.S. at 252 (explaining that non-moving party must come forward with more than “a scintilla of
evidence in support of [her] position”). Nowhere does Chatman present any evidence that Gist’s
presence on the panel affected her in any negative fashion, or that the act of placing Gist there
somehow constituted discrimination against Plaintiff. Gist, it might be added, is a Black woman
over 40, just like Plaintiff. See Pl. Opp. at 1, 7.
Although Plaintiff does not expressly contend that the selection panel itself discriminated
against her, it bears noting that one candidate ultimately selected was a Black woman, and the
other was a Black man over 40. Id. at 43. The fact that each of the selected individuals
exhibited one of the two characteristics on which Plaintiff asserts discrimination — female and
over 40 — “cuts strongly against any inference of discrimination.” Jenkins v. District of
Columbia, 281 F. Supp. 3d 77, 85 (D.D.C. 2017) (quoting Murray v. Gilmore, 406 F.3d 708, 715
(D.C. Cir. 2005)) (explaining that fact that contested position was filled by members of same
race as plaintiff casts doubt upon allegation that non-selection was discriminatory). In addition,
Chatman never attempts to demonstrate that she was “significantly better qualified for the job”
than either selectee. Holcomb, 433 F.3d at 897.
Finally, all Plaintiff has to say about retaliation is her single-sentence assertion that she
“was not selected because of her previous EEO activity.” Pl. Opp. at 31. Much like her
discrimination claim, this “naked, conclusory allegation of retaliatory motive” cannot establish
“that Defendant’s asserted reasons were in fact pretexts for unlawful retaliation.” Alford, 908 F.
Supp. 2d at 174. She presents no evidence that the agency’s decision to select from among the
qualified merit-promotion candidates — as opposed to from the non-competitive list on which
she appeared — had anything to do with her at all, much less her prior protected activity.
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In sum, because Chatman does not generate an inference that her non-selection involved
discrimination based on her protected characteristics or retaliation for her protected activity, she
cannot establish a material issue of triable fact.
b. Other Discrimination Claims
The remaining instances of alleged discrimination each require considerably less
discussion, as Plaintiff declines now to assert any with much vigor.
Non-Extension of Temporary Employment
The Court begins with Chatman’s temporary appointment, which commenced on October
3, 2011, for a term not to extend beyond September 29, 2015. See Def. SMF, ¶¶ 5–8; MSJ, Exh.
B (10/3/11 Offer Letter) at ECF p. 2; 5 C.F.R. § 213.3102(r) (stating that appointments such as
Plaintiff’s “may not exceed 4 years”). A generous reading of her Amended Complaint suggests
that it alleges discrimination based on USDA’s refusal to extend her employment after such
temporary appointment concluded. See Am. Compl. at 23, 32. Yet Plaintiff does not now
appear to press this claim, as her Opposition forbears from advancing any contention of
discrimination surrounding the natural lapse of her employment term and its non-extension.
Even taking the Amended Complaint on its own terms, the claim goes nowhere, as
Chatman never alleges that she sought any such extension (let alone presents evidence to that
effect). Although the Amended Complaint and Opposition gesture at the employment history of
Leila Levi — a former temporary employee who ultimately did obtain a permanent position at
USDA, id. at 23; Pl. Opp. at 9 — Plaintiff has done nothing to show that she and Levi are
“similarly situated,” as required to establish that she was not rehired for discriminatory reasons.
See Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015) (requiring plaintiff
to “demonstrate that ‘all of the relevant aspects of [her] employment situation were nearly
Case 1:17-cv-01826-JEB Document 42 Filed 10/15/20 Page 18 of 31
identical to those of the [similarly situated] employee’”) (quoting Holbrook v. Reno, 196 F.3d
255, 261 (D.C. Cir. 1999)). Unlike Chatman, Levi was a lawyer who independently applied for
and obtained a permanent role in the agency’s Office of General Counsel. See MSJ, Exh. 16 at
ECF p. 20 (6/11/16 EEO Investigative Report). Nor do her references to Candace Glover, whom
Plaintiff briefly alleges received “preferential treatment” from USDA higher-ups, gain traction.
See Pl. Opp. at 34. Chatman nowhere suggests that any differential treatment was based on
protected characteristics, never contends that the alleged conduct deprived her of any particular
opportunity at USDA, and declines to demonstrate that she and Glover were similarly situated.
For these reasons, Plaintiff cannot now cobble together a discrimination claim on the
basis of any non-extension, nor can she repackage her failed non-selection claim in such form.
Although the Amended Complaint appears to allege discrimination based on age, sex,
and race because she had her “telework privileges taken away” for a brief period in early 2013,
see Am. Compl. at 4, 32, her Opposition devotes only a single sentence to the issue in the context
of her hostile-work-environment claim. See Pl. Opp. at 20. Because Chatman no longer appears
to contend that this episode constituted a discrete act of discrimination, and provides no detail
surrounding the alleged teleworking revocation or evidence of disparate treatment, any such
claim cannot withstand Defendant’s Motion. See Grimes v. District of Columbia, 794 F.3d 83,
94 (D.C. Cir. 2015) (explaining that plaintiff opposing summary judgment must “identify
evidence that a reasonable jury could credit in support of each essential element of her claims”).
Perceived Mental Disability
Finally, and somewhat puzzlingly, the Amended Complaint and Opposition appear to
assert an ill-defined claim of “perceived mental disability.” Am. Compl. at 20 (capitalization
Case 1:17-cv-01826-JEB Document 42 Filed 10/15/20 Page 19 of 31
altered); Pl. Opp. at 1, 27; see also MSJ at 13 (stating that Plaintiff’s protected classes include,
“if applicable, physical/mental disability”). Plaintiff, however, invokes only Title VII and the
ADEA, neither of which protects against discrimination based on real or perceived disabilities.
As best the Court can tell, by “perceived mental disability,” Chatman refers to a supervisor’s
February 2013 comment to a co-worker that Plaintiff was “obviously limited.” 5/8/14 EEO
Investigative Report at ECF p. 70; see Am. Compl. at 20; Pl. Opp. at 27. As Plaintiff appears to
lump this comment in with her hostile-work-environment allegations, see Pl. Opp. at 17, and
never contends that it amounts to discrimination based on her race, sex, or age, the Court will
address it later in that context.
c. Other Retaliation Claims
Next up are the various instances in which Plaintiff maintains she experienced retaliation
for her protected activity. As with her discrimination claims, none survives Defendant’s Motion.
2014 Performance Evaluation
First, Chatman focuses on her 2014 performance evaluation, which her supervisor
changed from an initial rating of “Outstanding” to merely “Superior.” 2014 Performance
Appraisal at ECF pp. 2–3; Pl. Opp. at 38–39. She contends that this revision constituted
retaliation for her prior protected activity. See Pl. Opp. at 38; Am. Compl. at 21–22 (referencing
OSC complaint filed in August 2014).
As in the discrimination context, a “threshold question” for Plaintiff’s retaliation claim is
whether she has established the requisite “adverse action.” Dreiband v. Nielsen, 319 F. Supp. 3d
314, 321 (D.D.C. 2018); see Baloch, 550 F.3d at 1196–99 (rejecting discrimination and
retaliation claims for failure to demonstrate adverse action). “‘Adverse actions’ in the retaliation
context encompass a broader sweep of actions than those in a pure discrimination claim.”
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Baloch, 550 F.3d at 1198 n.4. For a claim of retaliation, “an action is adverse if it would have
‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”
Crowley v. Vilsack, 236 F. Supp. 3d 326, 330 (D.D.C. 2017) (quoting Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Chatman cannot clear this initial hurdle. In the D.C. Circuit, a “thick body of
precedent . . . refutes the notion that formal criticism or poor performance evaluations are
necessarily adverse actions.” Brown v. Brody, 199 F.3d 446, 458 (D.C. Cir. 1999). Rather,
“performance reviews typically constitute adverse actions only when attached to financial
harms.” Baloch, 550 F.3d at 1199; see also Taylor, 892 F. Supp. 2d at 142 (explaining that “a
performance evaluation must normally affect tangible job opportunities or benefits” in order to
rise to adverse action); Burns v. Wash. Metro. Area Transit Auth., 918 F. Supp. 2d 35, 41
(D.D.C. 2013) (similar). Here, however, Plaintiff has presented no evidence that she suffered
any kind of “tangible financial harm” from the 2014 evaluation. Taylor, 892 F. Supp. 2d at 142.
Indeed, her “Superior” evaluation can hardly be deemed negative. Because there were “no
objectively discernible consequences resulting from the performance appraisal, the appraisal
itself cannot constitute a materially adverse employment action as a matter of law.” Alford, 908
F. Supp. 2d at 171.
Even assuming Chatman could clear the adverse-action bar, she has done nothing to rebut
Defendant’s legitimate, non-retaliatory reason for the rating change. As her immediate
supervisor explained, following Plaintiff’s initial evaluation in November 2014, upper-level
management determined that reviewers were distributing too many “Outstanding” ratings. See
2014/2015 Report of Investigation at 116. As a result, “all managers needed to go back and
reevaluate their ratings,” and some of the formerly “Outstanding” marks — including Plaintiff’s
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— were lowered to “Superior.” Id. at 116–17. Chatman has presented no evidence that she was
inappropriately singled out, or that there existed any connection between her protected activity
several months earlier and the “Superior” rating — which, after all, is the same rating she
received the year prior. See MSJ, Exh. I (Documents) at ECF pp. 2–3 (2013 Performance
Appraisal); see also Iyoha v. Architect of Capitol, 927 F.3d 561, 574 (D.C. Cir. 2019)
(explaining that, at summary judgment, “[m]ere temporal proximity is not sufficient” to discredit
defendant’s proffered non-retaliatory explanation for challenged action).
The Court also notes that Plaintiff repeatedly claims that her 2015 performance
evaluation — which once again judged her “Superior,” see MSJ, Exh. I at ECF p. 10 (2015
Performance Appraisal) — was fraudulent, concluding from the fact that she neither sat for nor
signed such evaluation that the document was “fabricated.” See Pl. Opp. at 1, 3, 9, 38–39, 42.
She never bothers to explain, however, how this alleged fabrication relates to any of her claims,
or how it constitutes discrimination or retaliation.
Leonard’s “Amnesty” Comments
Similarly unavailing is Plaintiff’s contention that Leonard retaliated against her in a staff
meeting on February 22, 2013, when he addressed a group of CSD employees regarding a
collection of missing EEO complaint files. Id. at 17. According to Chatman, Leonard accused
meeting attendees of hiding the files and offered amnesty to the staff if they were returned. See
5/8/14 EEO Investigative Report at ECF p. 20; Pl. Opp. at 17. Plaintiff believes that these
comments were directed at her and were driven by her “previous EEO activity.” See Pl. Opp. at
17. The Amended Complaint’s retaliation count cursorily alludes to similar comments by
another supervisor, Barbara Moore, see Am. Compl. at 33, but her Opposition does not discuss
them in the context of either discrimination or retaliation.
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As an initial matter, it is not clear what protected activity forms the basis for this
retaliation claim. The identified episode predates her first EEO complaint by several months,
and although she served as a witness supporting two of her colleagues’ own complaints, she
never clarifies when that occurred. See Pl. Opp. at 23. In any event, once more, Plaintiff has not
established an adverse action. While she may object to the methods Leonard deployed to recover
the missing files, it is well established that “sporadic verbal altercations or disagreements do not
qualify as adverse actions for purposes of retaliation claims.” Baloch, 550 F.3d at 1199. After
all, “not everything that makes an employee unhappy is an actionable adverse action.”
Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013); see also Burlington N., 548 U.S. at 68
(“We speak of material adversity because we believe it is important to separate significant from
trivial harms.”). As relevant here, Plaintiff “does not demonstrate any tangible harm associated
with” Leonard’s comments, nor does she “explain how such an incident would have ‘dissuade[d]
a reasonable worker from making or supporting a charge of discrimination.’” Alford, 908 F.
Supp. 2d at 171 (quoting Burlington N., 548 U.S. at 57). Likewise, she has not produced
evidence showing that Leonard’s comments “could affect [her] position, grade level, salary, or
promotion opportunities.” Baloch, 550 F.3d at 1199. As a result, the Court cannot find that this
episode amounts to an adverse action for purposes of Plaintiff’s retaliation claim.
Chatman further contends that she suffered retaliation when her supervisors allegedly
attempted to transfer her out of CSD to another USDA division. See Pl. Opp. at 22–24 (citing
various attempted transfers). According to Plaintiff, these efforts occurred because she
supported two colleagues’ EEO complaints and filed her own in April 2013. Id. at 23. The
parties address the various attempted reassignments only briefly, and neither sheds much light on
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the facts surrounding them. According to the agency, at least one potential transfer in mid-2013
— to a civil-rights division within the Farm Service Agency (another component of USDA) —
would have provided the very remedy Plaintiff had requested in an EEO complaint — namely,
obtaining supervisors other than Moore and Leonard. See MSJ at 15; 5/8/14 EEO Investigative
Report at ECF p. 177; see also id. at p. 78 (Plaintiff requesting “[t]ransfer out from under Ms.
Moore’s supervision and OASCR”). It was only when Chatman herself expressed opposition to
such transfer that it did not proceed. See 5/8/14 EEO Investigative Report at ECF pp. 195, 200;
see also Am. Compl. at 16 (Plaintiff stating that she “expressed she was not interested” in FSA
transfer “and as a result she was not reassigned”).
The Court need not belabor the details (or bemoan the lack thereof), however, for as
Plaintiff admits, she was never reassigned at all. See Am. Compl. at 16; 3/15/16 Chatman Depo.
at ECF p. 154. Although an actual transfer may (but need not) constitute a materially adverse
action, the mere fact that her supervisors considered or took preliminary steps toward potentially
reassigning her does not suffice. See Peterson v. Utah Dep’t of Corr., 301 F.3d 1182, 1190 (10th
Cir. 2002) (holding that unsuccessful attempt to transfer employee was not materially adverse
action to support retaliation claim); Albert v. Perdue, No. 17-1572, 2019 WL 4575526, at *9
(D.D.C. Sept. 20, 2019) (finding that potential transfer that “never materialized” was not adverse
action); cf. Arnold v. Jewell, 6 F. Supp. 3d 101, 111–12 (D.D.C. 2013) (similar, but for
disparate-treatment claim). Nor does Plaintiff endeavor to explain how management’s alleged
“attempt[s] at reassigning her,” Pl. Opp. at 23, caused her “tangible harm” or “would have
‘dissuade[d] a reasonable worker from making or supporting a charge of discrimination.’”
Alford, 908 F. Supp. 2d at 171 (quoting Burlington N., 548 U.S. at 57). Chatman, moreover,
does not even attempt to establish that the potential reassignments would have resulted in either
Case 1:17-cv-01826-JEB Document 42 Filed 10/15/20 Page 24 of 31
“significantly diminished responsibilities” or a loss in seniority coupled with a resulting
reduction of tangible benefits, as required to establish an adverse action underlying this type of
retaliation claim. See Sledge v. District of Columbia, 63 F. Supp. 3d 1, 21 (D.D.C. 2014)
(explaining that determination of whether or not reassignment is materially adverse action
depends on “compar[ing] the position the plaintiff held before the transfer to the one [she] holds
afterwards”) (quoting Pardo–Kronemann v. Donovan, 601 F.3d 599, 607 (D.C. Cir. 2010)).
Once again, therefore, this component of Plaintiff’s retaliation claim cannot withstand
In her Opposition, Plaintiff contends that following the May 2015 public release of an
OSC report based on her complaint alleging mismanagement and inefficiency within OASCR,
one of her supervisors told two staffers “that their names were mentioned in the . . . report and
encouraged them to file EEO complaints against [Plaintiff].” Pl. Opp. at 34; see also id. at 41.
Chatman, however, declines to provide any evidentiary support or record citation in support of
this naked allegation, and she does not point to any complaints that were ultimately filed. The
Court cannot credit such unsupported assertions at summary judgment.
Next, her Opposition accuses Defendant of “retaliating against her by not processing her
[EEO] Complaint in a timely manner.” Id. at 40. But the EEO complaint at issue, Plaintiff
makes clear, was filed on April 4, 2020. Id. Regardless of the merit of this charge, she cannot
assert it here, as it necessarily was not encompassed within her Amended Complaint filed nearly
two years earlier on July 2, 2018. See Am. Compl. at 1. Plaintiff has not supplemented that
pleading, and she cannot broaden or amend it in her Opposition. Jo, 582 F. Supp. 2d at 64.
Although her Amended Complaint contends that “she was discriminated against” when an
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OASCR supervisor “deliberately delayed the processing of her [May 22, 2013, EEO] complaint
by more than 200 days,” Am. Compl. at 25, her Opposition never mentions this assertion, much
less attempts to support it.
The Opposition also appears to argue that Leila Levi, agency counsel on Plaintiff’s 2019
MSPB appeal, violated her “privacy rights” by allegedly continuing to work on the appeal after
Levi’s temporary appointment had expired. See Pl. Opp. at 39–40. Thankfully, the Court need
not attempt to decipher precisely how Chatman believes such conduct constituted “ongoing
retaliation,” id. at 39 (capitalization altered), for it postdates the Amended Complaint by more
than a year. As above, the Court cannot now consider this new instance of alleged retaliation.
Finally, Plaintiff briefly contends that she “could have competed” for a higher-paying,
GS-14 position that became available in 2016 had she been made a permanent employee in 2015.
Id. at 42. She attributes the denial of that opportunity to retaliation. Id. But this contention
simply recycles her failed non-selection claim in slightly different packaging. The result remains
The Court, accordingly, will enter judgment for USDA on Chatman’s discrete
discrimination and retaliation claims.
C. Hostile Work Environment
With the finish line finally in sight, the Court looks at Plaintiff’s contention that the
agency violated Title VII (and perhaps the ADEA) by creating a hostile work environment. See
Am. Compl. at 35–37. In support, she broadly asserts that she experienced constant
“harassment,” pointing to an array of incidents throughout her stint at USDA. See Pl. Opp. at
17–29. As will soon become clear, none of these occurrences, taken either individually or
collectively, establishes a triable issue of fact on her hostile-environment claim.
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An office becomes “hostile” for the purposes of Title VII only if the allegedly offensive
conduct “permeate[s] [the workplace] with discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create
an abusive work environment.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 21–22 (1993) (citation
and internal quotation marks omitted). In evaluating such a claim, 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.” Baloch, 550
F.3d at 1201. 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 v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998); then quoting B. Lindemann & D.
Kadue, Sexual Harassment in Employment Law 175 (1992)).
At times, Plaintiff’s Opposition reads more like a laundry list of grievances and perceived
slights suffered at the hands of her various supervisors than an attempt to set out a coherent
hostile-environment claim. The Court, nonetheless, has waded through her brief — and the
record, as the majority of her assertions lack accompanying citations — and sets out the
following alleged incidents on which she seems to primarily base her claim:
In February 2013, Leonard accused a group of CSD employees including Plaintiff of
hiding EEO complaint files and offered amnesty if the files were returned, statements
which Moore generally reiterated. See Jackson EEO Affidavit at ECF p. 3; 5/8/14 EEO
Investigative Report at ECF pp. 20, 22; Pl. Opp. at 17, 28;
In February 2013, Moore told another employee that Plaintiff was “obviously limited”;
angrily informed Plaintiff that she was not to assist in training a co-worker; and told
Plaintiff something to the effect of, “[Y]ou don’t belong here,” in apparent reference to
OASCR. See 5/7/13 EEO Complaint at ECF p. 32; 11/6/19 Chatman Depo. at 36–37, 41,
43–44; Pl. Opp. at 17;
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In March 2013, Moore required Plaintiff to attend a three-day “Legal Sufficiency Review
Training,” which covered various procedures relating to EEO complaint processing. See
5/8/14 EEO Investigative Report at ECF pp. 72–73, 173–74;
In September 2014, Winona Scott, one of Plaintiff’s former supervisors, issued a sworn
OSC statement that she “suspect[ed] that” individuals including Plaintiff “may have
intentionally delayed the processing of EEO . . . complaints.” In his own statement,
Leonard stated that he “suspect[ed] that” Plaintiff and another individual “may have
intentionally hid complaint files.” Pl. Opp., Exh. 23 (Leonard OIG Statement) at 4; id.,
Exh. 24 (Scott OIG Statement) at ECF p. 6;
Glover sent private text messages to a co-worker regarding Plaintiff, which included the
following: “She’s been an artful [sic] employee from what I hear”; “No one wants
anything to do with her”; “She just wants to complain”; and “[S]he’s a complaining
Smurf who doesn’t like to work.” MSJ, Exh. 15 (Documents) at ECF p. 49 (2/10/16 EEO
Complaint); Pl. Opp., Exh. 17 (Glover Text Messages) at ECF pp. 1–2;
Glover used profanity in the office and was “moody and highly critical,” and Moore
made condescending comments toward Plaintiff “[o]n more than one occasion.” Pl. Opp.
at 21, 25, 29; and
Plaintiff had to put together her own work station because CSD was short on supplies.
Id. at 21–22.
These incidents, however, are largely “isolated, typical workplace occurrences.” Moss,
2020 WL 4001467, at *11. Even viewing the evidence in the light most favorable to Plaintiff, it
is a far cry from satisfying the “demanding standard for a hostile work environment claim”
under federal law. Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011) (citation and
internal quotation marks omitted).
First, the various episodes Chatman documents do not rise to the level of “severe or
pervasive” abuse. “Although many employees may wish it were otherwise, Title VII sets a high
bar for the types of behavior that create a hostile workplace.” Jenkins, 281 F. Supp. 3d at 87.
For instance, disagreements between a plaintiff and her supervisors are generally to be expected
in a workplace. See Singh v. U.S. House of Representatives, 300 F. Supp. 2d 48, 56 (D.D.C.
2004) (“Criticisms of a subordinate’s work and expressions of disapproval (even loud
Case 1:17-cv-01826-JEB Document 42 Filed 10/15/20 Page 28 of 31
expressions of disapproval) are the kinds of normal strains that can occur in any office
setting . . . .”); Holmes-Martin v. Sebelius, 693 F. Supp. 2d 141, 165 (D.D.C. 2010) (rejecting
hostile-work-environment claim when plaintiff provided insufficient evidence that public
criticism of job performance, supervisor’s imposition of unreasonable deadlines and
requirements, and exclusion from meetings “rose beyond the level of ordinary workplace
conflicts”). “[C]ourts typically do not find . . . ‘work-related actions by supervisors’ to be
sufficient for a hostile work environment claim.” Munro v. LaHood, 839 F. Supp. 2d 354, 366
(D.D.C. 2012) (citation omitted). In addition, the few isolated comments from supervisors about
which Plaintiff complains — none of which was “accompanied by physical threats, abusive or
offensive language[,] or any other characteristics of ‘extreme conduct,’” Lewis v. District of
Columbia, 653 F. Supp. 2d 64, 82 (D.D.C. 2009) (citation omitted) — do not exhibit the
requisite severity and offensiveness. While some of the detailed incidents “may well have been
unpleasant,” they “simply do not reveal a pattern of behavior that is either sufficiently severe or
pervasive” to alter the conditions of her employment and create an abusive working
environment. Aldrich v. Burwell, 197 F. Supp. 3d 124, 137 (D.D.C. 2016).
Even more fundamentally, Plaintiff “seems to ignore the requirement that, in order to
violate Title VII, the ‘intimidation, ridicule, [or] insult’ must be discriminatory” or retaliatory —
that is, because of her race, sex, age, or protected activity. Jenkins, 281 F. Supp. 3d at 88
(emphasis omitted) (quoting Peters v. District of Columbia, 873 F. Supp. 2d 158, 188–89
(D.D.C. 2012)); see also Hutchinson v. Holder, 815 F. Supp. 2d 303, 323 (D.D.C. 2011).
“[H]ostile behavior, no matter how unjustified or egregious, cannot support a claim of hostile
work environment unless there exists some linkage between the hostile behavior and the
plaintiff’s membership in a protected class.” Na’im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C.
Case 1:17-cv-01826-JEB Document 42 Filed 10/15/20 Page 29 of 31
2009); see also Baloch, 550 F.3d at 1201 (upholding summary judgment on hostile-environment
claim when “none of the comments or actions directed at [plaintiff] expressly focused on his
race, religion, age, or disability”); Chaple v. Johnson, 453 F. Supp. 2d 63, 73–74 (D.D.C. 2006)
(“It must be clear that the hostile work environment was the result of discrimination based on a
protected status.”) (citation omitted). “There is an evidentiary component to this principle:
evidence that bears no connection to the plaintiff's protected status cannot support a hostile work
environment claim.” Mason v. Geithner, 811 F. Supp. 2d 128, 179 (D.D.C. 2011).
Here, Chatman makes essentially no attempt to establish that the aforementioned
episodes were related to her race, sex, age, or protected activity, let alone present evidence to that
effect. Indeed, the individuals about whom Plaintiff generally complains largely share her
protected characteristics: Moore, Scott, and Glover are all Black women (with the former two
over 40), and Leonard is a Black man over 40. See Pl. Opp. at 3–4, 6. The only comment or
action that even arguably relates to any of her protected characteristics is Glover’s calling her a
“Smurf” — a term Plaintiff contends carries racist connotations, id. at 25–26 — in a private
message to a co-worker. But Chatman only learned of such comment after she left the agency,
see MSJ, Exh. E (2/14/18 Chatman Depo.) at 35, and “[c]onduct that [she] did not know
about . . . cannot be used to establish that she was subjected to a hostile work environment.”
Hutchinson, 815 F. Supp. 2d at 321. In any event, this “[i]solated incident,” even if interpreted
as she believes, does “not create harassment severe or pervasive enough to constitute an
actionable hostile work environment.” Hyson v. Architect of Capitol, 802 F. Supp. 2d 84, 104–
05 (D.D.C. 2011); see also Na’im, 626 F. Supp. 2d at 74 (explaining that although plaintiff had
described several statements touching on race, she “has offered no evidence indicating that these
statements were frequent, widely disseminated or otherwise pervasive”). Because Plaintiff
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cannot show a “correlation to the claimed ground[s] of discrimination” or protected activity, she
thus presents no issue of triable fact on this count. Jenkins, 281 F. Supp. 3d at 88 (alteration in
original) (quoting Bryant v. Brownlee, 265 F. Supp. 2d 52, 63 (D.D.C. 2003)).
Finally, Chatman tacks on a claim that she confusingly styles as “sexual harassment of a
third party.” Pl. Opp. at 2, 34 (capitalization altered). In reality, her contention seems to be that
an alleged “relationship” between Glover and Leonard somehow amounted to sexual harassment
that in turn created a hostile work environment. Id. at 35–37. In support, she highlights a 2013
“drinks and cigars” outing between the two individuals; a “joke” Glover played on Leonard by
pretending to resign on his birthday; and the fact that Glover occasionally accompanied Leonard
on business travel. Id. at 34–35; Chatman EEO Affidavit at ECF pp. 55–56, 188–89. It is
unclear how any of these incidents amount to harassment, as Plaintiff points to no inappropriate
workplace comments, lewd behavior, or even direct evidence of the romantic or sexual
relationship that she implies may have existed — and that both Glover and Leonard deny. See
6/11/16 EEO Investigative Report at ECF p. 1; Glover EEO Affidavit at ECF p. 23.
In any event, and more urgently, Chatman never demonstrates how the complained-of
conduct affected her, as she does not suggest that she experienced any harassment personally.
Instead, she seems to argue that Leonard’s undefined relationship with Glover, and the alleged
“preferential treatment” he afforded her, “caused for a hostile work environment because
Candace Glover was now wielding power.” Pl. Opp. at 34–35. But the Court has already
explained why Plaintiff’s Glover-related evidence does not nearly rise to the level of severe or
pervasive abuse. To the extent she contends, more broadly, that OASCR maintained a “sexually
charged” atmosphere, id. at 20, such conclusory assertions devoid of specific evidentiary support
will not do at summary judgment. See Aldrich, 197 F. Supp. 3d at 137–38 (determining that
Case 1:17-cv-01826-JEB Document 42 Filed 10/15/20 Page 31 of 31
“allegedly ‘rude, hostile, and otherwise demeaning treatment’ . . . is too vague and conclusory to
meaningfully contribute to” plaintiff’s hostile-environment claim); Brady v. Livingood, 456 F.
Supp. 2d 1, 10–11 (D.D.C. 2006) (rejecting claim where plaintiff described hostile work
environment in “broad, generalized terms”), aff’d sub nom. Brady v. Office of Sergeant at Arms,
520 F.3d 490 (D.C. Cir. 2008).
Put simply, the actions and incidents to which Plaintiff points do not approach the high
bar for a hostile work environment. Judgment will thus be entered on this claim as well.
For the foregoing reasons, the Court will issue a contemporaneous Order granting
Defendant’s Motion on all counts.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 15, 2020
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