GOMEZ v. MCDONOUGH

Filing 16

MEMORANDUM OPINION regarding the defendant's 11 Motion to Dismiss. Signed by Chief Judge Beryl A. Howell on May 10, 2022. (lcbah2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RENÉ GOMEZ,
Plaintiff,

Civil Action No. 21-cv-1685 (BAH)

v.

Chief Judge Beryl A. Howell

DENIS MCDONOUGH, in his official
capacity as Secretary, U.S. Department of
Veterans Affairs,
Defendant.

MEMORANDUM OPINION
Plaintiff René Gomez, a Mexican-American male and an Emergency Management
Specialist at the U.S. Department of Veterans Affairs (“VA”), brings this action against Denis
McDonough, in his official capacity as Secretary of Veterans Affairs, under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that he has experienced racial
discrimination and a hostile work environment and faced retaliation for engaging in protected
activity during his employment with the VA. Compl. ¶¶ 1-2, 23-24, ECF No. 1. According to
plaintiff, among other alleged incidents, he was told “negative and harmful comments about his
cultural heritage, including his clothing and name;” he “received a lower than justified
performance rating;” and he was “denied the opportunity to swap shifts in the manner and
practice of his coworkers.” Pl.’s Mem. Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”), at 10,
ECF No. 12-1. Defendant has moved to dismiss the Complaint, under Federal Rule of Civil
Procedure 12(b)(6), for failure to state a claim. Def.’s Mot. to Dismiss Pl.’s Compl. (“Def.’s

1

Mot.”), ECF No. 11; Def.’s Mem. Supp. Mot. to Dismiss Pl.’s Compl. (“Def.’s Mem.”), at 5-6,
ECF No. 11. 1 For the reasons explained below, defendant’s motion is granted.
I.

BACKGROUND
Summarized below is the factual and procedural history relevant to resolving the instant

motion.
A.

Factual Background

This litigation stems largely from interactions between plaintiff and his first- and secondlevel supervisors at the Office of Security Preparedness in the VA’s Integrated Operations Center
in Washington D.C. that occurred over a two-year period, from May 2016 to May 2018, when
plaintiff claims to have been his unit’s “only Mexican-American/Latino employee.” Compl. ¶¶
22-23, 28, 115.
On May 9, 2016, plaintiff received a routine performance review from his new,
immediate supervisor, Nicole Julaton, an African-American female, qualifying his performance
for the October 2015-May 2016 period as “Fully Successful,” which represented a downgrade
from prior reviews rating his performance as “Excellent” or “Outstanding.” Id. ¶¶ 25-26, 29-30.
Dissatisfied with this performance appraisal, plaintiff contacted Julaton to discuss his rating, but
Julaton responded she was “too busy” to discuss the review with him. Id. ¶ 33. Plaintiff was
thereafter also unable to discuss the performance review with his “second line supervisor,”
William Flinter, a White male and director of the VA’s Integrated Operations Center, who did
not respond to plaintiff’s emails soliciting feedback. Id. ¶¶ 27, 34.

Although the motion to dismiss itself does not specify under which of the Federal Rules of Civil Procedure
defendant seeks relief, see generally Def.’s Mot., briefing in support of this motion to dismiss makes clear that the
basis is pursuant to Rule 12(b)(6), see Def.’s Mem. at 5-6.

1

2

Two days later, on May 11, 2016, plaintiff went to Flinter’s office to discuss “an
important email he had received from the Department of Health and Human Services [“HHS”],”
id. ¶ 35, apparently bypassing Julaton, his first-level supervisor. Flinter allegedly greeted
plaintiff with the phrase “What’s up, José?,” which “upset and offended” plaintiff, whose first
name is René and is “the only Mexican-American/Latino employee” in his office. Id. ¶¶ 35-37.
According to plaintiff, when he explained the HHS email, Flinter “became angry[,] . . . raised his
voice” and “complain[ed] that [plaintiff] does not need to come to his office every ten minutes,”
id. ¶ 38, though plaintiff provides no further detail about whether Flinter’s reaction derived from
plaintiff bypassing his first-line supervisor. Following this exchange, plaintiff “felt
uncomfortable and avoided going to Mr. Flinter’s office when possible.” Id. ¶ 40. Plaintiff does
not allege he was ever called by a name other than his own by Flinter or any other colleague
outside of this single instance.
Several weeks later, on May 28, 2016, Flinter allegedly emailed plaintiff “scold[ing] him
for [a] time entry” and indicating that plaintiff had submitted more “time cards” than he was
“scheduled for and authorized to claim” over the previous pay period. Id. ¶¶ 43-44. Plaintiff
responded to Flinter that he had been approved to work those additional hours, after which
plaintiff asserts that Flinter “admitted that [plaintiff] was correct and had documented his hours
appropriately.” Id. ¶¶ 45-46. Despite Flinter’s apparently prompt acknowledgement of his error
and resolution of this dispute favorably to plaintiff, plaintiff nonetheless informed Flinter’s firstline supervisor of Flinter’s email and requested guidance, to which email request plaintiff
received no response. Id. ¶ 47.
The next month, on June 24, 2016, Flinter summoned plaintiff to his office. Id. ¶ 48.
According to plaintiff, during the ensuing conversation, Flinter instructed plaintiff “not to speak”

3

to Rebecca Graves, a fellow Emergency Management Specialist, whom plaintiff had apparently
“upset” after he “instructed her on how to perform certain functions that she had been doing
incorrectly” and had earlier complained to Julaton about plaintiff. Id. ¶¶ 48-50, 91. 2 Flinter also
“snapped at [plaintiff] and told him to tuck in his shirt.” Id. ¶ 51. At that time, plaintiff was
wearing, as he had “often” done before, a “Guayabera shirt, a button down, collared shirt
common in Latino culture, which has a flared bottom and is designed not to be tucked in.” Id. ¶¶
52-53. A dress code policy issued by Flinter months earlier “required men to tuck their shirts in
at all times,” even though the VA’s dress code policy only directed employees to wear “business
attire.” Id. ¶ 56. Plaintiff alleges that he had “frequently seen white male employees wear
untucked polo shirts in the office[] who ha[d] not been directed to tuck their shirts in.” Id. ¶ 57.
Citing the more permissive VA-wide dress code policy, plaintiff responded to Flinter that “he
would not tuck the shirt in” and explained the shirt’s “cultural significance” as a piece “designed
to be worn as an outer-garment, not tucked in.” Id. ¶¶ 54-55. Following plaintiff’s explanation,
Flinter later told plaintiff that “he did not have a problem with the way [he] dressed.” Id. ¶ 59.
Plaintiff does not allege that he thereafter stopped wearing Guayabera shirts to work or that he
was ever formally censured for failing to comply with any dress code policy.
Plaintiff further complains about various scheduling decisions made in September and
October 2016. Specifically, he alleges that Flinter denied his request to “swap shifts” with two
of his colleagues due to concerns that the requested swap would “cause[] uncertainty in the
schedule,” id. ¶¶ 60-61; that Julaton devised a schedule allowing two White officers “to work

Apparently, Graves’s complaints about plaintiff continued since plaintiff alleges that about six months
later, on December 18, 2016, plaintiff emailed Julaton multiple times to discuss “complaints being made about him
by Ms. Graves,” but Julaton did not respond to these emails. Compl. ¶ 90. Plaintiff does not specify whether
Graves’s complaints stemmed from the June 2016 instance in which plaintiff corrected her or other interactions
Graves had with plaintiff.

2

4

significantly fewer night shifts” than non-White employees, including plaintiff, id. ¶¶ 62-66; and
that Julaton denied one of plaintiff’s leave requests without justification “other than to say it did
not comport with the . . . schedule,” id. ¶¶ 67-68.
On September 30, 2016, plaintiff contacted the VA’s Equal Employment Opportunity
Office (“EEO”) and filed an informal complaint naming both Flinter and Julaton as “Responsible
Management Officials.” Id. ¶¶ 10, 70. Plaintiff avers that he thereafter “actively and openly
participat[ed] in the [EEO] process at every step.” Id. ¶¶ 135-136. At various dates in October
2016, Flinter and Julaton denied a string of additional requests that plaintiff made to switch shifts
with coworkers, id. ¶¶ 75-76; for paid leave, id. ¶¶ 73-74; and for compensatory time after he
covered a sick colleague’s shift (although he was compensated with overtime pay for covering
that shift), id. ¶¶ 78-84. In addition, plaintiff complains that, on October 2, 2016, his supervisors
“did not allow [him] an adequate amount of time to recover when he transitioned from [a] night
shift to day shift . . . which is typically allowed for other” employees who cover a night shift. Id.
¶¶ 71-72.
About two months later, on December 7, 2016, plaintiff avers that Julaton issued his
“2017 Performance Plan Review” in a “public area of the office[] with multiple other employees
present and within earshot,” which he describes as an “unprofessional and inappropriate setting.”
Id. ¶¶ 85-86. According to plaintiff, Julaton “allowed all other employees to receive their
appraisals privately in her office.” Id. ¶ 87. The next day, on December 8, 2016, Julaton
informed plaintiff and another employee that they were not allowed to use “unassigned
computers and desks” in the rear area of the office. Id. ¶ 88. Plaintiff contradictorily avers that
Julaton gave this instruction “without explaining why,” id., but that upon asking for a reason,
Julaton explained “that the computers were only for Watch Officers assigned to those desks,” id.

5

¶ 89. Then, on January 4, 2017, plaintiff learned that Flinter had selected a White colleague for a
new “GS-13 level position that would act similar to a supervisor” in plaintiff’s unit during the
night shift. Id. ¶ 92. Plaintiff asserts that he “was denied the opportunity to seek” this new
supervisory role, “which would have been a promotion for him, because . . . Flinter did not post
the position openly for others to apply,” and instead “privately chose” one of plaintiff’s two
White colleagues “without competition.” Id. ¶¶ 93-94.
Later that year, on September 10, 2017, plaintiff claims that Bobby Small, the Operations
Branch Chief for VA’s Integrated Operations Center, ordered him to empty “a dumpster full of
trash” while in the presence of three other employees at a conference room. Id. ¶¶ 105-106.
When plaintiff refused to empty the dumpster, Small allegedly responded: “I will remember
this.” Id. ¶ 108. As the “only Latino . . . [o]fficer,” plaintiff complains that Small’s command to
empty the dumpster “in front of his colleagues made [him] feel that he was being singled-out,
humiliated, and disrespected by a supervisor . . . and threatened for not performing a demeaning
task.” Id. ¶ 110. About ten months after this interaction, on May 7, 2018, Small allegedly
ordered two of plaintiff’s colleagues “not to answer any phone calls from” plaintiff while they
were at an offsite event and plaintiff remained at the office, which plaintiff asserts “isolated and
ostracized him from his team[] and threatened his ability to perform his job effectively.” Id. ¶¶
113-114. Finally, plaintiff alleges that, on May 24, 2018, Small ordered one of plaintiff’s
colleagues to “instruct [plaintiff] on the expected quality of a work assignment” that plaintiff was
“regularly” tasked with editing. Id. ¶¶ 115-117.
B.

Administrative and Procedural Background

As noted, plaintiff made an initial contact with the VA’s EEO on September 30, 2016.
Id. ¶ 10. Plaintiff thereafter filed, on November 2, 2016, a formal complaint with the EEO
alleging racial discrimination, hostile work environment, and reprisal for protected activity. Id. ¶
6

11; see also Def.’s Mem. at 4. On January 25 and March 20, 2017, plaintiff filed two
amendments to his complaint, both of which amendments the EEO accepted for investigation.
Compl. ¶ 12. Following investigation of his EEO complaint and his receipt of the EEO’s Report
of Investigation—the outcome of which is not specified in the record—plaintiff requested, on
August 23, 2017, a hearing before the U.S. Equal Employment Opportunity Commission
(“EEOC”). Id. ¶ 13.
Two years later, on October 16, 2019, an EEOC Administrative Judge issued a decision
rejecting each of plaintiff’s claims and entering summary judgment in favor of the VA. Id. ¶ 16;
see also Pl.’s Opp’n, Ex. C, Oct. 16, 2019 EEOC Decision (“EEOC Decision”), ECF No. 12-4.
The EEOC Decision concluded, upon review of plaintiff’s allegations of discrimination between
May 9, 2016 and March 2, 2017, EEOC Decision at 3-4, that plaintiff “fail[ed] to present a prima
facie case of discrimination and harassment” and that he had likewise “fail[ed] to demonstrate a
nexus between . . . allegedly discriminatory actions and any of his protected bases,” id. at 10.
The EEOC Decision found “not one shred of actual evidence, other than [plaintiff’s] bare
assertions, conclusory allegations, and self-serving statements, that the alleged discriminatory
actions were based on” plaintiff’s race or national origin. Id. at 13; see also id. at 10 (noting
record was “devoid of any indication, beyond [plaintiff’s] bare assertions, that discriminatory
motives animated any of the [VA’s] actions in this case or that the [VA’s] articulated reasons for
any of its actions are pretextual”). The VA adopted this EEOC Decision as its Final Order
regarding plaintiff’s EEO complaint on October 22, 2019. Compl. ¶ 18. Plaintiff then appealed
this Final Order to the EEOC’s Office of Federal Operations, which, on March 25, 2021,
affirmed the VA’s determination that plaintiff had not been subjected to discrimination. Id. ¶ 19;

7

see Jerry V. v. McDonough, EEOC DOC 2020001260, 2021 WL 1239495, (E.E.O.C. Mar. 25,
2021). 3
On June 23, 2021, plaintiff filed this lawsuit, see Compl. at 1, asserting three claims: (1)
racial discrimination based on plaintiff’s “Mexican-American/Latino descent,” id. ¶¶ 118-133
(Count I); (2) retaliation for initiating protected EEO activity on September 30, 2016, id. ¶¶ 134140 (Count II); and (3) a hostile work environment as a result of both his race and in retaliation
for plaintiff’s decision to initiate EEO proceedings, id. ¶¶ 141-152 (Count III). After a series of
extension requests from both parties prolonged the briefing for dispositive motions, see Min.
Orders (Aug. 26, 2021, Oct. 5, 2021, and Dec. 13, 2021), defendant’s motion to dismiss is now
ripe for resolution.
II.

LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the

“complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Wood v. Moss, 572 U.S. 744, 757–58 (2014) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). A facially plausible claim pleads facts that are not “‘merely
consistent with’ a defendant’s liability” but that “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)); see also Rudder v. Williams,
666 F.3d 790, 794 (D.C. Cir. 2012). In deciding a motion under Rule 12(b)(6), the court must
consider the whole complaint, accepting all factual allegations as true, “even if doubtful in fact.”
Twombly, 550 U.S. at 555. Courts do not, however, “assume the truth of legal conclusions, nor

The EEOC “randomly assigned a pseudonym replacing [plaintiff’s] name for . . . purposes” of publishing
its final decision affirming the administrative judge’s rejection of all the claims plaintiff presented in his EEO
complaint. Def.’s Mem. at 5 n.2.
3

8

do [they] ‘accept inferences that are unsupported by the facts set out in the complaint.’” Arpaio
v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting Islamic Am. Relief Agency v. Gonzales, 477
F.3d 728, 732 (D.C. Cir. 2007)). “In determining whether a complaint fails to state a claim,” a
court “may consider only the facts alleged in the complaint, any documents either attached to or
incorporated in the complaint and matters of which [courts] may take judicial notice.” Trudeau
v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006) (quoting EEOC v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624–25 (D.C. Cir. 1997)).
III.

DISCUSSION
Defendant seeks dismissal of this action on grounds that: (1) plaintiff failed to exhaust

administrative remedies as to his allegations regarding three instances of Small’s conduct in
2017 and 2018, Def.’s Mem. at 7-9; (2) the allegations conceded to be administratively
exhausted are not sufficiently adverse to sustain Title VII liability for either racial discrimination
or retaliation, id. at 9-15; and (3) plaintiff’s allegations “fail to rise to the level of severe or
pervasive conduct to constitute a hostile work environment as a matter of law,” Def.’s Mot. at 1;
see also Def.’s Mem. at 15-17. Each of these arguments is addressed in turn.
A.

Failure to Exhaust Administrative Remedies

According to defendant, plaintiff’s Complaint “contains several allegations that were not
presented to the [VA] for investigation and thus were not exhausted . . . and should be dismissed
as untimely.” Def.’s Mem. at 8. Specifically, defendant asserts that plaintiff failed to exhaust
his claims as they relate to plaintiff’s three alleged interactions with Operations Branch Chief
Bobby Small between September 10, 2017 and May 24, 2018, see id.; Def.’s Reply Supp. Mot.
to Dismiss (“Def.’s Reply”), at 1, ECF No. 14, when plaintiff claims that Small: (1) ordered him
to empty a dumpster in front of colleagues, Compl. ¶¶ 105-110; (2) instructed two colleagues not
to answer plaintiff’s calls while they participated at an offsite event and plaintiff was at the
9

office, id. ¶¶ 111-114; and (3) directed another colleague to instruct plaintiff on the expected
quality of an assignment that plaintiff was often tasked with preparing, id. ¶¶ 115-117.
Exhaustion of administrative remedies in the Title VII context is not a jurisdictional
requirement, but an affirmative defense that the defendant “bears the burden of pleading and
proving.” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). “As with other
affirmative defenses, the defendant may seek dismissal under Rule 12(b)(6) if the facts that give
rise to the exhaustion defense are clear from the face of the complaint.” Green v. Haaland, No.
21-cv-329 (RDM), 2022 WL 898864, at *3 (D.D.C. Mar. 28, 2022) (cleaned up); see also Blue v.
Jackson, 860 F. Supp. 2d 67, 72 (D.D.C. 2012) (“[A] 12(b)(6) motion to dismiss . . . is the
appropriate vehicle to challenge an alleged failure to exhaust administrative remedies under Title
VII.” (internal citations omitted)).
In evaluating such an exhaustion defense, a court can consider “the facts alleged in the
complaint, any documents either attached to or incorporated in the complaint and matters of
which a court may take judicial notice,” Horsey v. U.S. Dep’t of State, 170 F. Supp. 3d 256, 265
(D.D.C. 2016) (quoting Bowe-Connor v. Shinseki, 845 F. Supp. 2d 77, 85 (D.D.C. 2012)),
“without converting the motion into one for summary judgment,” Banneker Ventures, LLC v.
Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015). See also Vasser v. McDonald, 228 F. Supp. 3d
1, 9-10 (D.D.C. 2016) (“In the context of exhaustion, courts [may] rely upon administrative
orders and . . . complaints without converting the motion into one for summary judgment when
the documents . . . are integral to [the] exhaustion of administrative remedies.” (internal citations
omitted)). Defendant is correct that, assuming as true the allegations set forth in the
Complaint—including the administrative records referenced therein—plaintiff failed to
administratively exhaust his claims involving Bobby Small.

10

“Before a federal employee can file suit against a federal agency for violation of Title
VII, the employee must run a gauntlet of agency procedures and deadlines to administratively
exhaust his . . . claims.” Crawford v. Duke, 867 F.3d 103, 105 (D.C. Cir. 2017); see also 42
U.S.C. § 2000e-16(c). The exhaustion requirement “serves the important purposes of giving the
charged party notice of the claim and narrowing the issues for prompt adjudication and
decision,” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (cleaned up), and it
“ensure[s] that the federal courts are burdened only when reasonably necessary,” Brown v.
Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). The EEOC has issued detailed procedures to govern the
administrative resolution of employment discrimination claims against federal agencies under
Title VII. See 42 U.S.C. § 2000e-16(b); 29 C.F.R. § 1614.105. As relevant here, these
procedures require at the outset that employees “who believe they have been discriminated
against . . . must consult a[n] [EEO] Counselor prior to filing a complaint in order to try to
informally resolve the matter.” 29 C.F.R. § 1614.105(a). This initial contact with an EEO
Counselor must take place “within 45 days of the date of the matter alleged to be
discriminatory.” Id. § 1614.105(a)(1). After requesting an administrative hearing, an employee
may seek to amend his complaint by filing “a motion with the administrative judge . . . to include
issues or claims like or related to those raised in the complaint.” Id. § 1614.106(d).
When an employee alleges he experienced a “discrete retaliatory or discriminatory act,”
the exhaustion inquiry focuses on that particular act. Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 110 (2002). “[D]iscrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed [administrative] charges.” Id. at 113. In
other words, a “‘Title VII plaintiff must timely exhaust administrative remedies for each discrete
act alleged,’ even if the acts are related.” Mount v. Johnson, 36 F. Supp. 3d 74, 84 (D.D.C.

11

2014) (Brown Jackson, J.) (quoting Laughlin v. Holder, 923 F. Supp. 2d 204, 209 (D.D.C.
2013)) (emphasis in original). By contrast, a hostile work environment claim is subject to a less
stringent exhaustion requirement. Given that the “very nature” of a hostile work environment
claim “involves repeated conduct,” the unlawful employment practice “cannot be said to occur
on any particular day.” Morgan, 536 U.S. at 115. For this reason, if “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” regardless of whether the act was administratively exhausted. Id. at 117.
Here, as evident from the Complaint and documents referenced therein, plaintiff did not
exhaust the available administrative remedies as to the three discrete actions that Small allegedly
took against him between September 10, 2017 and May 24, 2018 for purposes of his
discrimination and retaliation claims. As defendant explains and is reflected in the EEOC
administrative decisions referenced in the Complaint, “the [VA] accepted 19 instances of . . .
alleged discrimination as actionable, allegations which occurred between May 9, 2016 and
March 2, 2017.” Def.’s Mem. at 8; see also Gomez, 2021 WL 1239495, at *1 (E.E.O.C. Mar. 25,
2021); EEOC Decision at 3-4. Indeed, plaintiff alleges that he last successfully amended his
EEO complaint on March 20, 2017, see Compl. ¶ 12—almost six months before plaintiff’s first
alleged incident with Small in September 2017, see id. ¶¶ 105-110.
Neither the Complaint nor underlying administrative decisions indicate that plaintiff
consulted an EEO counselor within 45 days of any of the three alleged incidents with Small.
These incidents—i.e., Small’s directives (1) that plaintiff empty a dumpster, id. ¶¶ 105-110; (2)
that two colleagues ignore plaintiff’s calls, id. ¶¶ 111-114; and (3) that another colleague remind
plaintiff about the expected quality of a work assignment, id. ¶¶ 115-117—nevertheless each
amounted to a “discrete retaliatory or discriminatory act” that “start[ed] a new clock for filing

12

charges alleging that act” before an EEO counselor. Morgan, 536 U.S. at 110, 113. This
required plaintiff, as a threshold matter, to seek EEO counseling after each alleged incident of
discrimination or retaliation with Small. See Mount, 36 F. Supp. 3d at 84; 29 C.F.R. §
1614.105(a). Defendant is correct that plaintiff nowhere suggests that he sought such counseling
within the requisite 45 days or at any other time. See Def.’s Mem. at 8; Def.’s Reply at 1. 4
Consequently, plaintiff failed administratively to exhaust his allegations about Small to the
extent his discrimination and retaliation claims are predicated on those allegations. See Mount,
36 F. Supp. at 84 (noting majority rule in this District that “a plaintiff alleging discrete acts of
discrimination or retaliation—including those filed after an administrative complaint—must
exhaust his administrative remedies with respect to the later occurring incidents even if they are
related to the claims in the administrative complaint”); accord Hunter v. District of Columbia,
797 F. Supp. 2d 86, 95 (D.D.C. 2011) (“Courts in this district have applied Morgan in holding
that a plaintiff must exhaust his administrative remedies with respect to distinct acts that

4
Plaintiff attempts to counter defendant’s exhaustion defense stating that, “before an administrative judge
was assigned” to his case in June 2018, he “contacted the Agency EEO office and the EEOC [via email] seeking to
amend his claims” and add allegations regarding Small—which request plaintiff acknowledges was ineffective since
the EEOC Decision only accounted for his allegations in the May 9, 2016 to March, 2, 2017 period. Pl.’s Opp’n at
7-9. Plaintiff has attached the purported June 2018 emails seeking amendment of his administrative claims to his
memorandum in opposition to the motion to dismiss. See Pl.’s Opp’n, Exs. A & B, June 2018 Emails and
Attachment from Plaintiff to EEO (“June 2018 Emails”), ECF Nos. 12-2, 12-3. The Complaint fails to reference
this alleged June 2018 effort to amend his claims or the emails attached to plaintiff’s opposition brief; as such,
consideration of this extraneous material in resolving the instant motion to dismiss would require the Court to treat
the motion as one for summary judgment. See FED. R. CIV. P. 12(D) (“If, on a motion under Rule 12(b)(6) . . .
matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.”). Reliance on any materials beyond the pleadings is unnecessary here, and thus
the instant motion need not be converted into one for summary judgment, because the Complaint, including
referenced administrative decisions, make plain—and plaintiff does not contest—that plaintiff failed to fulfill the
threshold exhaustion requirement of reporting the three incidents involving Small to an EEO counselor within the
mandated 45-day period. See Harvey v. Colvin, 13-cv-1957 (RMC), 2015 WL 4078223, at *6 (D.D.C. July 1, 2015)
(“The law of this Circuit makes clear that conversion of a motion to dismiss to one for summary judgment is only
required when the district court “refers to materials outside the pleadings in resolving a 12(b)(6) motion.” (quoting
Kim v. U.S., 632 F.3d 713, 719 (D.C. Cir. 2011)); see also Deegan v. Strategic Azimuth LLC, 768 F. Supp. 2d 107,
112 (D.D.C. 2011) (Lamberth, C.J.) (excluding consideration of “Non-Disclosure Agreements” attached to
plaintiff’s opposition to motion to dismiss and accordingly not treating 12(b)(6) motion as one for summary
judgment).

13

occurred after the filing of an administrative charge.”). These allegations about Small may thus
not be considered in assessing Count I (Discrimination) and Count II (Retaliation) of the
Complaint. 5
Plaintiff’s allegations about Small are also time barred for purposes of the hostile work
environment claim asserted in Count III. As noted above, because “[t]heir very nature involves
repeated conduct,” hostile environment claims are “different in kind from discrete acts” and thus
“the entire time period of the hostile environment may be considered by a court for . . . purposes
of determining liability.” Morgan, 536 U.S. at 115, 117. The D.C. Circuit has emphasized,
however, that this more lenient approach to administrative exhaustion of hostile environment
claims announced in Morgan “is not . . . an open sesame to recovery for time-barred violations.”
Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011). Incidents that have been
administratively exhausted and those that have not “can qualify as ‘part of the same actionable
hostile environment claim’ only if they are adequately linked into a coherent hostile environment
claim” such that, “for example, they ‘involve the same type of employment actions, occur
relatively frequently, and are perpetrated by the same managers.’” Id. (quoting Morgan, 536
U.S. at 120-121) (emphasis added).
Plaintiff asserts that his unexhausted allegations about Small meet this standard, arguing
they are “another three acts of hostility perpetrated by a higher-level manager which follow[] on
the heels of the dates of the already-accepted claims in this matter.” Pl.’s Opp’n at 8. Not so.
The three incidents with Small that occurred between September 2017 and May 2018 involved a
different manager, completely different types of conduct, and did not occur frequently or
repeatedly.
As discussed infra n.7, even assuming the allegations about Small were administratively exhausted and
true, plaintiff has failed to show that any adverse employment action was associated with the alleged conduct.

5

14

At the outset, the incidents that the EEO accepted for investigation and were addressed in
the EEOC Decision only involved interactions between plaintiff and his first- and second-line
supervisors, Julaton and Flinter. See EEOC Decision at 3-4. Neither the VA’s EEO nor the
EEOC examined any allegation involving Small. See id. Moreover, the incidents with Julaton
and Flinter considered in the administrative process mainly entailed comments that plaintiff
interpreted as insensitive to his culture and ethnic heritage, Compl. ¶¶ 35-37, 51-57;
disagreements about the contents and delivery of plaintiff’s routine performance reviews, id. ¶¶
25-26, 29-30, 85-87; and denials of plaintiff’s requests for leave and to switch shifts with
coworkers, see, e.g., id. ¶¶ 60-68, 71-72, 75-76, 78-84. These allegations share little in common,
if anything, with plaintiff’s claim that, in the span of about eight months, Small—who plaintiff
does not even allege was one of his immediate supervisors—once ordered him to empty a
dumpster in others’ presence, id. ¶¶ 105-106, and months later directed colleagues attending an
off-site meeting not to answer plaintiff’s calls from the work-site, id. ¶¶ 113-114, and then to
provide him with unsolicited guidance as to the expected quality of his work-product, id. ¶¶ 115117. The allegations pertaining to Small thus not only implicate different subjects but are also
entirely different in kind and frequency from those relating to Julaton and Flinter, and as such
cannot be “adequately linked into a coherent hostile environment claim.” Gotbaum, 662 F.3d at
1251. Accordingly, the three unexhausted allegations about Small will be disregarded in
evaluating Count III (Hostile Work Environment) of plaintiff’s Complaint.
B.

Discrimination and Retaliation (Counts I and II)

Defendant contends that Count 1 (Discrimination) and Count II (Retaliation) of plaintiff’s
complaint must be dismissed because “the allegedly discriminatory or retaliatory conduct that
[plaintiff] has administratively exhausted . . . [is] not sufficiently adverse for Title VII liability.”
Def.’s Mem. at 9.
15

“[T]o present a viable claim of employment discrimination under Title VII, a plaintiff
must show that he suffered an adverse employment action.” Douglas v. Donovan, 559 F.3d 549,
551-552 (D.C. Cir. 2009). An adverse employment action sufficient to sustain a Title VII
discrimination claim must amount to 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.’” Id. at 552 (quoting Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998)). The adverse action must be so significant that it “affect[s] the terms,
conditions, or privileges of employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible harm.” Id. (citations omitted). The
Supreme Court has recognized that, in most cases, an adverse employment action “inflicts direct
economic harm.” Burlington Indus., Inc., 524 U.S. at 762 (emphasis added). This threshold
requirement prevents courts from being weighed down with “frivolous suits over insignificant
slights,” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001), since “not everything that
makes an employee unhappy is an actionable adverse action,” Douglas, 559 F.3d at 552; see also
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (explaining that Title VII
“does not set forth a general civility code for the American workplace” (internal citations
omitted)).
A retaliation claim under Title VII similarly requires a plaintiff to allege that the
employer took a “materially adverse action” against him. See Allen v. Johnson, 795 F.3d 34, 3839 (D.C. Cir. 2015). In the retaliation context, however, “the ‘adverse action’ concept has a
broader meaning.” Gotbaum, 662 F.3d at 1249. “[A]ctions giving rise to [retaliation] claims are
not limited to discriminatory actions that affect the terms and conditions of employment, but
reach any harm that well might have dissuaded a reasonable worker from making or supporting a

16

charge of discrimination.” Id. (citations omitted). Still, Title VII protects individuals “not from
all retaliation, but from retaliation that produces an injury or harm.”’ Burlington N., 548 U.S. at
67; see also Hornsby v. Watt, No. 17-5001, 2017 U.S. App. LEXIS 22849, at *5-6 (D.C. Cir.
Nov. 14, 2017) (observing that both Title VII discrimination and retaliation “require an inquiry
into whether a plaintiff has suffered objectively tangible harm,” and that “while the scope of
actions covered by Title VII’s substantive provision and its anti-retaliation provisions differ, the
magnitude of harm that plaintiff must suffer does not’” (quoting Hornsby v. Watt, 217 F. Supp.
3d 58, 66 (D.D.C. 2016)). Work-related retaliation must therefore have “tangible job
consequences” to qualify as materially adverse. Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir.
2009) (quoting Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008)). Actions that
result in objectively tangible harm are certainly more likely to dissuade a reasonable worker from
pursuing a claim that “petty slights, minor annoyances, and simple lack of good manners.”
Burlington N., 548 U.S. at 68. Notwithstanding how genuinely upset plaintiff may have been by
instances of his supervisors’ conduct, his exhausted allegations fall short of the threshold adverse
action requirement necessary to state a claim for both discrimination and retaliation under Title
VII.
Citing no authority from this Circuit or elsewhere, plaintiff asserts that, for purposes of
his racial discrimination claim, he “has suffered a tangible and objective harm as direct result of
[d]efendant’s unlawful conduct” by: (1) receiving “a lower than justified performance rating;”
(2) being “forced to receive a performance evaluation in a public space in front of other
employees, which was humiliating;” (3) being “denied the opportunity to swap shifts in the
manner and practice of his coworkers;” (4) being “forced to work night shifts while [W]hite
workers received the lion’s share of day shifts;” (5) being “subjected to negative and harmful

17

comments about his cultural heritage, including his clothing and his name;” and (6) being
“prevented from competing for a role that was awarded to a less experienced coworker.” Pl.’s
Opp’n at 10. None of these actions, however, resulted in a “significant change in benefits” for
plaintiff, see Douglas, 559 F.3d at 552, nor amount to a “significant change in [plaintiff’s]
employment status” because they are not comparable to firing, reassigning, or failing to promote,
see id.
Despite claiming that he “was denied the opportunity to seek the Lead Watch Officer
position, which would have been a promotion for him, because . . . Flinter did not post the
position openly for others to apply,” Compl. ¶ 93, plaintiff does not allege that the VA “was
required to advertise the position, . . . to accept applications for the position [or] . . . to advertise
the position but chose not to due to [plaintiff’s] race and protected activity,” Def.’s Reply at 5.
Indeed, plaintiff acknowledges that, “[t]o state a claim for discrimination relative to an
employer’s failure to promote,” he was required to allege, among other things, that “he applied
for and was qualified for a job for which the employer was seeking applicants.” Pl.’s Opp’n at
11 (citing Ramseur v. Perez, 80 F. Supp. 3d 58, 66 (D.D.C. 2015)) (emphasis added). Plaintiff
has made no such allegation here. While he may be disappointed that another employee was
selected Lead Watch Officer, that disappointment—without more—does not amount to an
actionable adverse employment action.
Moreover, plaintiff’s criticisms of his performance review process—that he received a
lower than justified performance rating and Julaton conducted one of his performance reviews in
public—are likewise not cognizable as adverse actions under Title VII because plaintiff does not
allege they affected his “grade or salary,” Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003),
or otherwise resulted in “objectively tangible harm,” Douglas, 559 F.3d at 552; see also id.

18

(“[P]erformance evaluations ordinarily are not actionable under Title VII.”). The “lower than
justified performance rating” that plaintiff takes issue with, Pl.’s Opp’n at 10, is one that
qualified him as “Fully Successful” rather than “Excellent” or “Outstanding” as in prior
appraisals, Compl. ¶¶ 29-31. Plaintiff identifies no tangible harm flowing from this positive,
though not the highest, performance evaluation. In any event, what tangible harm could stem
from an indisputably positive performance review finding that an employee is “Fully Successful”
in the execution of his duties would be difficult to discern. Cf. Taylor, 350 F.3d at 1292-93
(concluding that even placement of plaintiff on “Performance Improvement Plan” was not an
adverse employment action).
Plaintiff’s assertion that he was “humiliated” by Julaton’s decision to provide his 2017
Performance Plan Review in a public setting fares no better. See Pl.’s Opp’n at 10; see also
Compl. ¶¶ 85-87. Time and again, the D.C. Circuit has stressed that “public humiliation or loss
of reputation” do not give rise to actionable adverse employment actions. Gotbaum, 662 F.3d at
1249; see also Stewart v. Evans, 275 F.3d 1126, 1135-26 (D.C. Cir. 2002). Flinter’s calling of
plaintiff by another name (José) on one occasion, Compl. ¶ 35, and directive that plaintiff tuck in
his Guayabera shirt, id. ¶¶ 51-52—remarks which plaintiff reasonably could have considered
culturally insensitive or disrespectful—similarly do not qualify as adverse actions. See Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“[S]imple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment.” (internal citations omitted)); Jones v. Bush, 160 F. Supp.
3d 325, 346 (D.D.C. 2016) (“[A]cts of disrespect or rudeness are nothing like the ultimate
employment decisions typically deemed adverse.”). Indeed, after plaintiff refused to tuck in his
Guayabera shirt, and explained the shirt’s cultural significance and how it is worn to Flinter,

19

Compl. ¶¶ 54-55, Flinter told him that “he did not have a problem with the way [he] dressed,” id.
¶ 59, suggesting that his supervisor learned from the incident.
Finally, plaintiff is no more successful in establishing that his supervisors’ sporadic
denial of requests for leave and to swap shifts with his colleagues, see Compl. ¶¶ 60, 67, 75, 100,
comprise an adverse employment action. While these occasionally denied requests may have
represented an inconvenience, plaintiff has not alleged that they generated a “significant change”
in his pay, benefits, or other terms of employment. See Douglas, 559 F.3d at 552; Grube v. Lau
Indus., 257 F.3d 723, 728 (7th Cir. 2001) (holding change in working hours did not amount to
adverse employment action where change was unaccompanied by modification in pay, title, or
significantly diminished job responsibilities); cf. Ginger v. District of Columbia, 527 F.3d 1340,
1343-44 (D.C. Cir. 2008) (holding that plaintiffs’ transfer from a permanent shift schedule to a
rotating shift schedule constituted an adverse employment action). Plaintiff’s allegation that
Julaton allowed White employees to “work significantly fewer night shifts than” plaintiff and
other non-White employees also fails as an adverse action on a similar basis. Compl. ¶¶ 63-66.
Other than averring that he “faced difficulty with his sleep schedule and daily activities because
of the frequent night shifts,” id. ¶ 66, plaintiff makes no effort to explain how working a higher
number of night shifts than his peers amounted to a significant change in his employment status
or caused objectively tangible harm. See Freedman v. MCI Telecommunications Corp., 255 F.3d
840, 848 (D.C. Cir. 2001) (noting that “assignment to a less desirable task does not create
liability under Title VII unless it results in a diminution in pay or benefits or affects such things
as future employment opportunities” so that plaintiff suffers “objectively tangible harm”). 6

Plaintiff alleges that, from August 2015 to May 2016, one of his White colleagues, Kevin Carter, was
scheduled to work 88 day shifts and 46 night shifts (134 shifts total). Compl. ¶ 64. Presumably for that same
period, plaintiff asserts he was scheduled to work 39 day shifts and 80 night shifts (119 shifts total). Id. ¶ 65.
Carter’s schedule—requiring him to work 15 additional shifts in the same period—appears, by the asserted numbers,
6

20

Notably, plaintiff does not even allege that he requested to be placed on less night shifts and that
those requests were denied, or that he even expressed dissatisfaction to his supervisors about his
night shift schedule. See, e.g., Compl. ¶ 71 (only complaining that, on October 2, 2016, Julaton
“did not allow [plaintiff] an adequate amount of time to recover when he transitioned from night
shift to day shift”). Plaintiff therefore has no actionable Title VII discrimination claim based on
any of this conduct.
Turning to plaintiff’s retaliation claim, he avers that the VA retaliated against him after
he initiated EEO activity in September 2016 by: (1) denying him the opportunity to compete for
the Lead Watch Officer position; (2) incidentally denying his use of leave and ability to
coordinate shift changes with coworkers; and (3) conducting his 2017 Performance Plan Review
in a public setting. Compl. ¶ 137. Defendant correctly counters, however, that these “incidents,
even under a more broad ‘materially adverse action’ standard, do not meet the requisite level
surpassing that of ‘petty slights, minor annoyances, and simple lack of good manners.’” Def.’s
Reply 4-5 (quoting Burlington N., 548 U.S. at 67-68).
As discussed above in connection with the discrimination claim, plaintiff alleges no facts
showing that these purported retaliatory acts “resulted in tangible, objective harm such that these
actions were materially adverse” or “affect[ed] any benefits or terms of [plaintiff’s]
employment.” Wesley v. Georgetown Univ., No. 18-1539 (BAH), 2018 WL 5777396, at *7
(D.D.C. Nov. 2, 2018); see also Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013)
(defining materially adverse actions as those that demonstrate an objectively tangible harm);
Wiley v. Glassman, 511 F.3d 151, 161 (D.C. Cir. 2007) (“Actionable retaliation claims are

to be more demanding than that of plaintiff. These metrics undercut plaintiff’s claim that Julaton provided Carter,
who on plaintiff’s admission was required to work more than him, with “preferable treatment” in the schedule as a
general matter. Id. ¶ 62.

21

limited to those where an employer causes material adversity, not trivial harms.” (citations
omitted)). 7 For instance, the only purported harm that plaintiff ascertains regarding any of these
incidents—the “damage [to] his reputation amongst his peers” that followed from Julaton’s
alleged “public discussion of his performance appraisal,” Compl. ¶ 137—is neither significant
nor tangible. See Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015) (“[T]he question is
whether . . . retaliation caused a significant, tangible harm.”); Baloch, 550 F.3d at 1199
(“[P]erformance reviews typically constitute adverse actions only when attached to financial
harms.” (emphasis added)). Plaintiff has thus not met his burden to establish that these actions
were materially adverse as required to state a retaliation claim under Title VII.
Accordingly, defendant’s motion to dismiss Count I (Discrimination) and Count II
(Retaliation) of plaintiff’s Complaint for failure to allege a sufficiently adverse employment
action must be granted.
C.

Hostile Work Environment (Count III)

Lastly, defendant seeks dismissal of plaintiff’s claim in Count III, alleging a hostile work
environment based on plaintiff’s race and participation in protected EEO activity. Def.’s Mem.
15-17; Def.’s Reply at 6. Dismissal of this count is also warranted.
A hostile work environment is one “permeated with discriminatory intimidation, ridicule,
and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To determine “whether an
actionable hostile work environment claim exists,” courts must look “to all the circumstances,

7
Even if administratively exhausted, which they were not, as discussed supra in Part III.A, plaintiff’s three
alleged incidents involving Small—i.e., Small’s directives (1) that plaintiff empty a dumpster, Compl. ¶¶ 105-110;
(2) that two colleagues ignore plaintiff’s calls, id. ¶¶ 111-114; and (3) that another colleague remind plaintiff about
the expected quality of a work assignment, id. ¶¶ 115-117—would fail on the same basis that they are insufficiently
adverse to maintain either a discrimination or retaliation claim under Title VII.

22

including the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Morgan, 536 U.S. at 116 (internal citations omitted). A
plaintiff fails to establish a hostile work environment claim if the alleged conduct “is not severe
or pervasive enough to create an objectively hostile or abusive work environment.” Harris, 510
U.S. at 21. Dismissal is thus appropriate when a complaint lacks allegations of behavior “so
objectively offensive as to alter the conditions of [his] employment.” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
Plaintiff alleges that the VA created a hostile work environment by: (1) giving him a
lower than justified performance rating; (2) delivering his performance evaluation in public; (3)
denying requests for leave and to swap shifts; (4) subjecting him to “negative and hurtful
comments” regarding his cultural heritage with regards to his clothing and being called “José;”
and (5) not allowing him to compete for the Lead Watch Officer position. Compl. ¶ 143.
Nothing about these allegations, taken in isolation or together, is sufficiently pervasive or
adverse to give rise to a hostile work environment claim. See Harris, 510 U.S. at 21; but see
Menoken v. Dhillon, 975 F.3d 1, 7 (D.C. Cir. 2020) (finding that plaintiff stated claim for
retaliatory hostile work environment by alleging her “employer’s deliberate attempts” to
interfere with plaintiff’s “finances and access to healthcare”). Rather, plaintiff’s hostile work
environment claim “is essentially an amalgamation of disparate treatment claims” and courts
“have been reluctant to transform such allegations into a cause of action for hostile work
environment.” Wade v. District of Columbia, 780 F. Supp. 2d 1, 19 (D.D.C. 2011); see also Bell
v. Gonzales, 398 F. Supp. 2d 78, 92 (D.D.C. 2005) (“Occasional instances of less favorable
treatment involving ordinary daily workplace decisions are not sufficient to establish a hostile

23

work environment.”). Although a hostile environment claim by its “very nature involves
repeated conduct,” Morgan, 536 U.S. at 115, plaintiff’s hostile environment claim is not
premised on repeated conduct but largely on discrete acts. 8
To begin, plaintiff fails to allege the sort of “deeply offensive” discriminatory comments
or conduct that, combined with other allegations of interference and denied privileges, might
state a hostile work environment claim. For instance, the D.C. Circuit has upheld a plaintiff’s
hostile work environment claim based on the use of a “deeply offensive racial epithet” together
with another racially offensive comment, the denial of a raise, and plaintiff’s documented
medical leave as the result of workplace stress. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572,
577 (D.C. Cir. 2013) (per curiam); see also Wise v. Ferriero, 842 F. Supp. 2d 120 (D.D.C. 2012)
(holding that plaintiff adequately stated hostile work environment claim by alleging threats of
discipline based on false accusations of misconduct, denials of promotion, exclusion from
trainings, and a manager’s use of a “uniquely offensive” and severe racist epithet). Here, the
only possibly derogatory comment alleged in reference to plaintiff’s race or national origin—the
instance in which Flinter greeted plaintiff as “José,” instead of René, Compl. ¶ 35 —is not
comparable to a racial epithet, could have been “a simple mistake” lacking any discriminatory
animus, Def.’s Reply at 6, and in any event was an isolated incident that did not reoccur.
8
The D.C. Circuit has recognized a “special type” of “retaliatory hostile work environment claim” that may
be established “by alleging a series of individual acts that may not be actionable on their own but become actionable
due to their cumulative effect.” Menoken, 975 F.3d at 5-6 (internal citations omitted). These acts, however, must be
“adequately linked such that they form a coherent hostile environment claim” and still be “of such severity or
pervasiveness as to alter the conditions of employment and create an abusive working environment.” Id. at 6
(internal citations omitted). Although the Complaint asserts a hostile work environment claim based on both racial
discrimination and retaliation for filing an EEO complaint, see Compl. ¶¶ 142, 144, plaintiff does not argue that his
allegations are alternatively actionable under the distinct parameters of this “special type” of retaliatory hostile work
environment claim. Pl.’s Opp’n at 12 (only noting that “[t]o state a claim for a hostile work environment, a plaintiff
must allege conduct that would not occur but for the protected characteristic, that is attributable to management, and
that is sufficiently severe or pervasive to alter the employment relationship”). Regardless, plaintiff would be unable
to move forward even under this special type of claim because, as discussed above and infra, he does not allege
conduct that was severe or pervasive enough to change the conditions of his employment. See Menoken, 975 F.3d at
6.

24

Plaintiff’s other allegations in support of his hostile work environment claim—his receipt
of a lower performance rating, the public delivery of his annual performance review, several
denied requests for leave and to swap shifts, and his non-selection for the Lead Watch Officer
role—are simply not “objectively offensive as to alter the conditions” of plaintiff’s employment.
Oncale, 523 U.S. at 81; see also Harris, 510 U.S. at 21 (“Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work environment—an environment that a
reasonable person would find hostile or abusive—is beyond Title VII’s purview.”). To the
contrary, these allegations entail ordinary actions taken by supervisors at the workplace. In this
District, such “work-related actions by supervisors” are typically not found sufficient to state a
hostile work environment claim. Wade, 780 F. Supp. 2d at 19; see also Outlaw v. Johnson, 49 F.
Supp. 3d 88, 92 (D.D.C. 2014) (dismissing hostile work environment count “referring only to
promotion denials, a subjective performance review, and being hired at a lower grade than
Caucasian employees”); Laughlin v. Holder, 923 F. Supp. 2d 204, 219-220, 221 (D.D.C. 2013)
(deeming insufficient allegations of denied promotions and bonuses, interference with efforts to
carry out certain job duties, and pressure to retire); Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94
(D.D.C. 2009) (“[T]he removal of important assignments, lowered performance evaluations, and
close scrutiny of assignments by management [cannot] be characterized as sufficiently
intimidating or offensive in an ordinary workplace context.”); Bell, 398 F. Supp. 2d at 92
(finding that plaintiff’s exclusion from informal chain of command, close monitoring of work,
missed opportunities for teaching, travel, and high-profile assignments, and reassignment to
another unit did not amount to a hostile work environment because “they cannot fairly be labeled
abusive or offensive”). Plaintiff has therefore failed to state a claim for hostile work
environment and defendant’s motion to dismiss must also be granted as to Count III.

25

IV.

CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss for failure to state a claim is

granted. An order consistent with this Memorandum Opinion will be entered
contemporaneously.
Date: May 10, 2022

__________________________
BERYL A. HOWELL
Chief Judge

26