Barnes v. Lloyd J. Austin, III

• Court: District Court, District of Columbia
• Decided: March 24, 2026
• Docket: Civil Action No. 2023-0932
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARY BARNES,

Plaintiff,

v. Civil Action No. 23-cv-932 (TSC)

PETER HEGSETH, Secretary of Defense, et al.,

Defendants.

MEMORANDUM OPINION

On April 5, 2023, Plaintiff Mary Barnes filed this case against the Department of Defense

and the Secretary of Defense (collectively, “the Department”), alleging, inter alia, violations of

Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act

(“ADEA”) based on the Department’s failure to increase her pay grade. Compl. ¶¶ 32–41, ECF

No. 1. The court granted Defendants’ first Motion to Dismiss, Defs.’ Mot. to Dismiss, ECF No.

16-1, but gave Plaintiff leave to amend the Complaint. Mem. Op. at 8, ECF No. 22. Plaintiff then

filed an Amended Complaint, reasserting her Title VII and ADEA claims. Am. Compl., ECF. No.

24. Defendants have now filed a Renewed Motion to Dismiss, ECF No. 25 (“Defs.’ Renewed

Mot.”). Upon consideration of the pleadings and the record, and for the reasons stated herein, the

court will GRANT in part and DENY in part Defendants’ Renewed Motion to Dismiss.

I. BACKGROUND

As set forth in the court’s prior Opinion, Plaintiff is a sixty-six-year-old African American

woman who served as a civilian employee in federal government for over thirty-eight years. Am.

Compl. ¶¶ 5–7. Throughout the relevant period, Plaintiff worked in the Department of Defense

1 and, in 2021, retired as the Chief of Accounts Payable in the Financial Management Division of

the Chief Financial Officer (“CFO”). Id. ¶¶ 6, 10. According to Plaintiff, from 2011 through her

retirement, she “endured a continuing pattern of harassment, an on-going hostile work

environment[,] and continuing discrimination,” as well as “on-going retaliation . . . due to [her]

EO’s activities.” Id. ¶¶ 10–11. Specifically, Plaintiff alleges that despite her consistent

outstanding performance reviews and repeated advocacy for a pay level increase, she and six other

minority or female supervisors in the Financial Management Division remained graded on the

General Schedule (“GS”) pay scale as GS13s, while the hundreds of other CFO supervisors worked

at the GS14 level. Id. ¶¶ 9, 12, 15.

Beginning in 2015, Plaintiff questioned CFO management about why she and the other

GS13 supervisors in the Financial Management Division were not classified as GS14s. Id. ¶¶ 17–

18. In 2019, after management failed to take any action, Plaintiff and the other supervisors in the

Division emailed the agency Director to “voice concerns regarding the lack of pay equality

amongst CFO supervisors.” Id. ¶¶ 18–20. The Director appointed his Chief of Staff to the inquiry,

who initially provided Plaintiff and the others conflicting information regarding the

appropriateness of their classifications but who eventually directed them to submit a desk audit.

Id. ¶ 22. On March 11, 2021, “after Plaintiff’s position was classified as equivalent to a GS14

level, Supervisory Financial Specialist,” “Defendant refused to upgrade Plaintiff’s position from

GS13 to GS14” and “refused to increase Plaintiff’s pay accordingly.” Id. ¶ 25. Thereafter,

Defendants continued to refuse to promote Plaintiff “from March 24, 2021, through May 13,

2021.” Id. ¶ 27.

2 According to Plaintiff, “[t]his whole process culminated” when she and the other GS13

supervisors met with “General B” 1 on May 13, 2021. Id. ¶ 28. That meeting included

“summarizations and discussions” about prior events surrounding the complaining supervisors’

GS13 classifications. Id. ¶ 29. In particular, the attendees addressed: (1) how they learned they

were “qualified for the higher pay grade (GS14)” from the individual who performed their desk

audits; (2) the fact that the CFO Chief refused to upgrade their positions, despite knowing they

qualified for a higher pay grade; and (3) how management provided inconsistent information

regarding internal reviews of Plaintiff’s and the other GS13 supervisors’ positions, as well as

conflicting information regarding whether desk audits were valid grounds to justify pay grade

increases, all despite email evidence that the supervisors were working at a GS14 level and that

desk audits were valid grounds for increases. 2 Id. ¶¶ 29, 31, 36. Eventually, agency leadership

informed Plaintiff that although she and the other aggrieved supervisors were technically working

at the GS14 level, they would not be upgraded “because the Defendant no longer acknowledged

desk audits as a means for upgrades/accretion of duties.” Id. ¶ 36.

Thereafter, Plaintiff emailed the new agency Director, who “did not take any actions to

remedy Plaintiff’s situation.” Id. ¶ 37. Consequently, Plaintiff filed a formal complaint with the

Equal Employment Opportunity (“EEO”) Counselor on June 24, 2021, regarding “Defendant’s

refusal to upgrade” her position and pay. Id. ¶ 38. She also contacted the Office of the Inspector

1 The Amended Complaint refers to individuals by pseudonyms for “security reasons.” 2 Plaintiff also repeatedly references a “Duty to Act Pledge” in her Amended Complaint but fails to explain its relevance beyond explaining that all managers and supervisors were required to sign it, that it was ultimately the reason the aggrieved supervisors met with General B, and that leadership failed to uphold it. Am. Compl. ¶¶ 34–35, 37.

3 General, who informed Plaintiff that they wanted to meet but who nonetheless “failed to follow up

with Plaintiff concerning Plaintiff’s EO complaint.” Id. ¶ 39.

Dissatisfied with her administrative remedies, Plaintiff filed this lawsuit on April 5, 2023,

alleging, inter alia, race discrimination through disparate treatment under Title VII, sex

discrimination through disparate treatment under Title VII, age discrimination under the ADEA,

and retaliation under Title VII. Compl. ¶¶ 32–75. The court dismissed Plaintiff’s initial

Complaint, finding that because Plaintiff waited until June 24, 2021, to contact the EEO, she failed

to exhaust her discrimination claims insofar as they were based on alleged discriminatory conduct

that occurred before May 10, 2021. Mem. Op. at 4–5. As for conduct occurring thereafter, the

court determined that Plaintiff’s Complaint failed to sufficiently state a discrimination claim

because she did not “allege that Defendant’s refusal to upgrade her position was based on her race,

sex, or age” and otherwise “fail[ed] to specify when she learned” of white, male, or younger

employees who received a GS14 classification. Id. at 5–6.

With regard to her retaliation claim, the court concluded that Plaintiff failed to sufficiently

allege a causal nexus between her protected activities and leadership’s refusal to increase her pay

grade because (1) the Department failed to upgrade her before she filed her EEO complaint, and

(2) Plaintiff did not specify whether she complained about her discriminatory treatment in her

previous informal complaints to her supervisors. Id. at 7–8. Despite these shortcomings, the court

granted Plaintiff leave to amend. Id. at 8. On April 28, 2025, Plaintiff filed her Amended

Complaint, which realleged the above claims and incorporated new factual allegations regarding

her meeting with General B. See Am. Compl. ¶ 29. The Department then filed its Renewed

Motion to Dismiss for failure to state a claim, Fed. R. Civ. P. 12(b)(6). Defs.’ Renewed Mot. at 1.

II. LEGAL STANDARD

4 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff

must plead “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged,” id., which entitles the pleader the “right to relief

above the speculative level,” Twombly, 550 U.S. at 555. The court presumes the truth of the

complaint’s factual allegations under Rule 12(b)(6), Sparrow v. United Air Lines, Inc., 216 F.3d

1111, 1113 (D.C. Cir. 2000), but need not “‘accept as true a legal conclusion couched as a factual

allegation,’” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478

U.S. 265, 286 (1986)), nor “inferences [that] are unsupported by the facts set out in the complaint,”

id. (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

III. ANALYSIS

A. Race, Sex, and Age Discrimination Claims

Defendants contend that Plaintiff’s Amended Complaint fails to plausibly allege that any

acts occurring within the requisite exhaustion period “were caused by her race, sex, or age.” Defs.’

Renewed Mot. at 6. The court agrees, but only with regard to Plaintiff’s race and age

discrimination claims.

“Under Title VII [and] the ADEA . . . the two essential elements of a discrimination claim

are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff’s race,

color, religion, sex, national origin, age, or disability.” Baloch v. Kempthorne, 550 F.3d 1191,

1196 (D.C. Cir. 2008). The “sole question” in “most employment discrimination cases that reach

federal court . . . is whether the action occurred because of discrimination.” Id. “Though the initial

burden of pleading the because of element is not onerous,” Keith v. Gov’t Accountability Off., No.

5 21-cv-2010, 2022 WL 3715776, at *3 (D.D.C. Aug. 29, 2022) (internal quotations and citation

omitted), a plaintiff must allege some facts that demonstrate their race, sex, or age “was the reason

for defendant’s actions and cannot merely invoke” their race, sex, or age “in the course of a claim’s

narrative.” Doe #1 v. Am. Fed’n of Gov’t Emps., 554 F. Supp. 3d 75, 102 (D.D.C. 2021) (cleaned

up).

At the outset, the court notes that Plaintiff’s amendments to her original Complaint largely

focus on the various topics discussed at the May 13, 2021, meeting with General B. Am. Compl.

¶ 29. These amendments, however, do not alter the court’s prior conclusion that conduct occurring

before May 10, 2021, cannot form the basis for Plaintiff’s discrimination claims because Plaintiff

failed to contact the EEO Counselor until June 24, 2021, despite her having “reason to believe that

she had been the victim of discrimination as early as 2015.” Mem. Op. at 4. While the court

questions whether any conduct occurring on or after May 10, 2021, qualifies as an independent

“adverse employment action,” Baloch, 550 F.3d at 1196, Defendants do not challenge Plaintiff’s

Amended Complaint with regard to this element in their Renewed Motion to Dismiss. 3 See Defs.’

Renewed Mot. at 6–8. Thus, any such argument is deemed waived. See Pub. Citizen Health Rsch.

Grp. v. Nat’l Insts. of Health, 209 F. Supp. 2d 37, 43–44 (D.D.C. 2002).

As to the causation element, the court previously determined that Plaintiff failed to “allege

that Defendant’s refusal to upgrade her position was based on her race, sex, or age,” Mem. Op. at

3 Defendants challenge Plaintiff’s pleadings regarding this element in their Reply by asserting that Plaintiff failed to allege that any GS14 billets were available during the requisite timeframe for exhausted conduct. See Defs.’ Reply at 2, ECF No. 28. Because Defendants raised this argument for the first time in its Reply, however, the court will not consider it. See Lewis v. District of Columbia, 791 F. Supp. 2d 136, 139 n.4 (D.D.C. 2011) (“[I]t is a well-settled prudential doctrine that courts generally will not entertain new arguments first raised in a reply brief.”) (quoting Aleutian Pribilof Islands Ass’n v. Kempthorne, 537 F. Supp. 2d 1, 12 n.5 (D.D.C. 2008)).

6 5, and “[t]hreadbare recitals of the elements” of the causes of action or “mere conclusory

statements” would not suffice, Iqbal, 556 U.S. at 678; see Am. Compl. ¶¶ 40–49 (race

discrimination), 50–59 (sex discrimination), 60–67 (age discrimination). Nonetheless, as the court

observed, Mem. Op. at 5–6, Plaintiff may also allege causation “by showing ‘that she was treated

differently from similarly situated employees who are not part of the protected class.’” Brown v.

Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014) (quoting George v. Leavitt, 407 F.3d 405, 412

(D.C. Cir. 2005)); Barot v. Aldon Mgmt., No. 18-cv-140, 2023 WL 6199075, at *6 (D.D.C. Sept.

22, 2023) (applying “Title VII’s framework to ADEA claims, including the standards for

evaluating comparator evidence”).

In her Amended Complaint, Plaintiff again proffers comparator evidence by identifying

other employees outside her claimed protected classes who were paid at the GS14 level. See Am.

Compl. ¶¶ 47, 57, 65. Of the two younger women she identified as classified at the GS14 level,

one woman, whom Plaintiff asserts is white, served as Plaintiff’s supervisor, undermining any

inference that she was “similarly situated.” See Martin v. Locke, 659 F. Supp. 2d 140, 147 (D.D.C.

2009) (noting that an employee was not similarly situated to her manager). As to the other younger

woman, the Amended Complaint merely states that she was “a previous FMD GS14 supervisor

that worked at headquarters and returned to [the Financial Management Division] to occupy one

of the newly created GS14 positions.” Am. Compl. ¶ 65. This does not plausibly allege that

Plaintiff was “similarly situated” in any “relevant respects” except that they worked in the same

division within the Department. Joyner v. Morrison & Foerster LLP, 140 F.4th 523, 533 (D.C.

Cir. 2025). Plaintiff also alleges, however, that her supervisor’s husband was hired as a GS13

supervisor in the Financial Management Division but “was paid what a GS14 supervisor earned

walking in the door,” despite being new to the federal workforce. Am. Compl. ¶ 57. This

7 allegation, taken with Plaintiff’s assertion that she was qualified for a higher pay grade, provides

just enough information to plausibly infer that Plaintiff’s purported differential treatment was

motivated by her gender. See Dickerson v. D.C., 315 F. Supp. 3d 446, 454–55 (D.D.C. 2018)

(determining that an African American plaintiff stated a section 1981 claim when he alleged that

“a white woman with less education and experience than [him] was selected to fill his position”);

cf. Joyner, 140 F.4th at 532 (upholding the district court’s dismissal where the plaintiff had only

alleged that “he and his comparators were attorneys working at the same law firm”).

Consequently, the court will grant Defendants’ motion except with regard to Plaintiff’s sex

discrimination claim.

B. Retaliation Claim

“Title VII prohibits employers from retaliating against an employee ‘because he has

opposed any practice made an unlawful employment practice by this subchapter, or because he

has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,

or heading under this subchapter.’” Tucker v. Johnson, 211 F. Supp. 3d 95, 103 (D.D.C. 2016)

(quoting 42 U.S.C. § 2000e-3(a)). A plaintiff alleging a Title VII claim for retaliation must allege

“that (1) [she] engaged in protected activity; (2) [she] was subjected to an adverse employment

action; and (3) there was a causal link between the protected activity and the adverse action.”

Baird v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015) (internal quotations and citation omitted).

“While it is true that not every complaint garners its maker protection under Title VII, a complaint

is protected conduct if it ‘in some way allege[s] unlawful discrimination, not just frustrated

ambition.’” Tucker, 211 F. Supp. 3d at 104 (quoting Broderick v. Donaldson, 437 F.3d 1226, 1232

(D.C. Cir. 2006)).

8 As the court previously explained, any actions taken by the Department prior to June 24,

2021, when Plaintiff complained to an EEO counselor, could not have been in retaliation for

Plaintiff’s EEO complaint. See Mem. Op. at 7. Plaintiff asserts that the Department retaliated

against her for her prior EEO activities, but the only factual allegation that occurred after her EEO

complaint is that the Office of the Inspector General “wanted to meet with Plaintiff” but “failed to

follow up” with her. Am. Compl. ¶ 39. This will not suffice. See Holmes v. Washington Metro.

Area Transit Auth., 723 F. Supp. 3d 1, 19 (D.D.C. 2024) (“An employer’s ‘alleged failure to

investigate alone does not make up a tangible, affirmative legally cognizable adverse action.’”

(quoting Runkle v. Gonzales, 391 F. Supp. 2d 210, 223 (D.D.C. 2005)).

With regard to Plaintiff’s informal complaints to leadership before her EEO complaint,

Plaintiff again fails to allege that she “complained before 2021 of any type of discrimination when

she spoke to her supervisors regarding her GS classification and bonus pay.” Mem. Op. at 7.

Though she states that she made prior complaints to management regarding her grade increase to

GS13 in 2013, Am. Compl. ¶¶ 13, 32, “questioned why” she and minority and female GS13

supervisors in the Financial Management Division were not GS14s in her 2015 meeting with the

CFO Chief, id. ¶ 17, and, in 2019, emailed her supervisors about the “equality” of the Department’s

GS scale assignments, id. ¶ 18, such inquiries are not the type of “clear[] complain[t] about

discriminatory treatment” required to make out a retaliation claim, Peters v. D.C., 873 F. Supp. 2d

158, 202 (D.D.C. 2012). Absent specific, prior complaints of unlawful discrimination, the court

will dismiss Plaintiff’s retaliation claim.

C. Leave to Amend

Plaintiff seeks leave to file a Second Amended Complaint if the court dismisses her

Amended Complaint so that she may identify more individuals for her comparator allegations

9 through “limited discovery.” See Pl.’s Opp’n at 11–13. As noted above, the court dismisses her

age and race discrimination claims as well as her retaliation claim. It will therefore deny as moot

Plaintiff’s request insofar as she seeks to amend her sex discrimination claims. While the court is

inclined to also deny Plaintiff’s request to amend her remaining claims for failure to cure the

deficiencies that the court identified in its prior Opinion, see Hajjar-Nejad v. George Washington

Univ., 873 F. Supp. 2d 1, 11–12 (D.D.C. 2012) (collecting cases), it will nonetheless grant

Plaintiff’s request, including permitting limited discovery, so that she may: (1) bolster her

comparator allegations by providing further information on how she was similarly situated to her

comparators; and (2) clearly articulate whether and to what extent she expressly complained of

discrimination in her prior informal complaints to management. See Fed. R. Civ. P. 15(a)(2)

(directing courts to grant leave to amend “freely . . . when justice so requires”).

IV. CONCLUSION

For the foregoing reasons, the court will GRANT Defendants’ Renewed Motion to Dismiss

in regard to Counts I, III, and IV and DENY Defendants’ Renewed Motion to Dismiss with respect

to Count II. A separate order will accompany this Opinion.

Date: March 24, 2026

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge