UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CORETTE BYRD,
Plaintiff,
v. Civil Action No. 22-3746 (TSC)
XAVIER BECERRA,
Defendant.
MEMORANDUM OPINION
Plaintiff Corette Byrd, a former employee of the Bureau of Primary Health Care
(“BPHC”), a division within the U.S. Department of Health and Human Services (“HHS”),
brought this action against Xavier Becerra, in his official capacity as HHS Secretary, pursuant to
Title VII of the Civil Rights Act of 1964, alleging that BPHC discriminated against her based on
her race. Defendant moved to dismiss Counts I and II, and to limit Plaintiff’s eligibility to
receive back pay on the grounds that she voluntarily resigned from her position.
Having considered the record and the parties’ briefing, the court will GRANT in part and
DENY in part Defendant’s Motion.
I. BACKGROUND
Plaintiff worked at BPHC as a Senior Advisor until she resigned in March 2021. Am.
Compl., ECF No. 13 at 2, 11. She was the only Black Senior Advisor while she was employed at
BPHC. Id. at 2.
Plaintiff alleges that, from around November 2019 until she resigned, her supervisors
reassigned about 95% of her duties to her White colleagues, including her leadership of the
Ending HIV Epidemic Initiative. Id. at 2–3. She also claims that she was not given “any new
Page 1 of 17 work” while the White Senior Advisors were given valuable, “career enhancing” opportunities.
Id. at 3. Plaintiff claims that in May 2020 she received a special assignment to “lead and develop
the National Hypertension Initiative,” which was cut short due to an “overwhelming, urgent
amount of work back at BPHC.” Id. at 4. When she returned to BPHC, however, she was
“barely provided with . . . any assignments at all,” and the assignments she did receive she had to
“beg” for and were “busy work.” Id. at 4–5. Her White colleagues, “almost all of whom had
less experience than” she did, “began receiving special assignments and projects, details, and
other opportunities,” and “did not have to beg . . . for new assignments.” Id. at 5–6. After
Plaintiff “asked [her supervisor] for work several times,” she was assigned to “develop and lead
the transition work for the new administration.” Id. at 5. But after Plaintiff spent “several
months” developing transition materials, her supervisor assigned a White Senior Advisor to the
Health Resources and Services Administration’s (“HRSA”) Office of the Administrator to
support the transition. Id. at 7.
In December 2020, Plaintiff applied for a vacant Supervisory Public Health Analyst
position. Id. at 8. She was interviewed for the position, but one of her less qualified White
colleagues was eventually selected. Id. at 8, 10. While waiting to hear back regarding the
position, Plaintiff had her 2020 performance review, in which she received a 4 out of 5 rating for
“achiev[ing] more than expected results.” Id. at 8. Because she received a 4 rather than a 5,
however, Plaintiff was denied a pay increase and was given a lower bonus. Id. at 9. She claims
her supervisors “did not rate any white Senior Advisors lower than [her] for this performance
period.” Id. at 10. Plaintiff challenged her performance rating, but her second line supervisor,
who “had not assigned [Plaintiff] any work 90 days prior to the end of year performance
review,” said that “the write up and rating reflect[ed]” the quality of Plaintiff’s work. Id. at 9.
Page 2 of 17 On March 10, 2021, two days before she resigned, Plaintiff made initial contact with an
Equal Employment Opportunity (“EEO”) Counselor. Id. at 2. The Equal Employment
Opportunity Commission (“EEOC”) issued a Final Agency Decision on her complaint on
September 20, 2022. Id. On December 16, 2022, Plaintiff filed this action. On April 26, 2023,
the court granted Plaintiff’s Motion to File an Amended Complaint. Min. Order, April 26, 2023.
Plaintiff seeks compensatory damages, “back pay as if [Plaintiff] had been promoted, plus
interest,” Plaintiff’s “retroactive within grade increase and back pay, plus interest,” a revised
performance rating and accompanying cash bonus, an injunction prohibiting “further
discriminati[on] against Plaintiff,” and attorney’s fees and costs. Am. Compl. at 14.
Defendant filed a Partial Motion to Dismiss Count I and II and to limit Plaintiff’s
eligibility to recover back pay. Partial Mot. to Dismiss Am. Compl., ECF No. 14; see Mem. in
Supp., ECF No. 14-1 (“Motion”). Defendant argues that (1) Plaintiff did not exhaust her
administrative remedies in Count I because she did not make initial contact with her EEO
Counselor within 45 days of the allegedly discriminatory acts, Mot. at 8–11, (2) Plaintiff failed to
state a claim in Count I or Count II, id. at 11–21, and (3) Plaintiff’s ability to recover back pay
should be limited to the date of her resignation because she did not plead that she was
constructively discharged, id. at 21–24.
In opposition, Plaintiff contends that she exhausted Count I because it is a hostile work
environment claim, and therefore only one of the alleged acts needed to occur within 45 days of
her initial contact with her EEO Counselor. Mem. in Opp’n, ECF No. 15 at 6–7 (“Opp’n”).
Plaintiff also argues that her allegations allow the court to draw a reasonable inference of
discrimination for Counts I and II and that denying Plaintiff career opportunities by reassignment
constitutes an adverse employment action. Id. at 8–11, 14–15.
Page 3 of 17 On February 5, 2024, the court granted Defendant’s Motion, ECF Nos. 17, 18. But on
March 7, 2024, the court sua sponte vacated its Memorandum Opinion and Order to reconsider
its decision. Min. Order, Mar. 7, 2024; see Fed. R. Civ. P. 54(b) (providing that any decision
“that adjudicates fewer than all the claims . . . does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a judgment adjudicating all the
claims.”).
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). “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) (citation omitted). In other words, 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. (citation omitted).
In deciding a motion to dismiss, the court presumes the truth of the factual allegations in
the complaint and affords the plaintiff “every favorable inference that may be drawn from the
allegations of fact.” Laughlin v. Holder, 923 F. Supp. 2d 204, 208–09 (D.D.C. 2013) (citing
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The court does not, however, “accept as true ‘a
legal conclusion couched as a factual allegation,’ nor inferences that are unsupported by the facts
set out in the complaint.” Id. at 209 (citation omitted).
Page 4 of 17 III. ANALYSIS
A. Legal Framework
i. Exhaustion
To bring a civil action under Title VII, a plaintiff must first “timely exhaust . . .
administrative remedies.” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). To
exhaust administrative remedies, “[a]n aggrieved person must initiate contact with [an EEO]
Counselor within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R.
§ 1614.105(a)(1). This exhaustion requirement is “akin to a statute of limitations.” Stewart v.
Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003). Thus, although exhaustion is not a “jurisdictional
bar,” the court “must still address” it at the outset. Id. “Because untimely exhaustion of
administrative remedies is an affirmative defense, the defendant bears the burden of pleading and
proving it.” Bowden, 106 F.3d at 437 (citation omitted). “If the defendant meets its burden, the
plaintiff then bears the burden of pleading and proving facts supporting equitable avoidance of
the defense.” Id. (citation omitted).
Claims involving discrete act claims and hostile work environment have different
exhaustion requirements. See, e.g., Coleman-Adebayo v. Leavitt, 326 F. Supp. 2d 132, 137–38
(D.D.C. 2004). Accordingly, the court must identify which type of claim is at issue before
deciding whether it was exhausted.
A claim pleads discrete acts of discrimination if it alleges “incidents that were different in
kind, involved different individuals, and occurred at different times.” Est. of Rudder v. Vilsack,
10 F. Supp. 3d 190, 197 (D.D.C. 2014). To plead a hostile work environment claim, a complaint
must allege “‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.’” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Page 5 of 17 Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “[T]he removal of important assignments, lowered
performance evaluations, and close scrutiny of assignments by management” are not
“sufficiently intimidating or offensive in an ordinary workplace context” to support a hostile
work environment claim, especially when they are not close in time. Nurriddin v. Bolden, 674
F. Supp. 2d 64, 94 (D.D.C. 2009). And “a plaintiff may not combine discrete acts to form a
hostile work environment claim without meeting the required hostile work environment
standard.” Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir. 2011) (“Baird I”).
Where an employee alleges discrete acts, “[e]ach discrete discriminatory act starts a new
clock for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002). In other words, only discrete acts that occurred within 45 days of when the plaintiff
contacted an EEO Counselor are exhausted. See id. “[D]iscrete discriminatory acts are not
actionable if time barred,” even when they relate to acts that were exhausted within the
applicable limitations period. Id. And the continuing violations doctrine—a principle of
equitable tolling that allows a court to find a claim was brought timely “so long as one act falls
within the charge filing period”—does not apply to discrete acts claims. Id. at 114.
ii. Inference of discrimination
Title VII prohibits “discrimination based on race, color, religion, sex, or national origin”
in “[a]ll personnel actions affecting employees or applicants for employment . . . in executive
agencies” of the United States. 42 U.S.C. § 2000e-16(a). “[T]he two essential elements of a
discrimination claim” under Title VII “are that (i) the plaintiff suffered an adverse employment
action,” Baloch, 550 F.3d at 1196, and (ii) “the motive to discriminate was one of the employer’s
motives,” Univ. of Tenn. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 343 (2013).
Page 6 of 17 “Courts in this Circuit ‘have consistently recognized the ease with which a plaintiff
claiming employment discrimination can survive . . . a motion to dismiss.” McNair v. District of
Columbia, 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (quoting Fennell v. AARP, 770 F. Supp. 2d
118, 127 (D.D.C. 2011)). “Though the ‘initial burden’ of pleading the ‘because of’ element is
‘not onerous,’” Keith v. U.S. Gov’t Accountability Off., No. 21-cv-2010, 2022 WL 3715776,
at *3 (D.D.C. Aug. 29, 2022) (citation omitted; formatting modified), “plaintiff must ‘allege
some facts that demonstrate . . . race was the reason for defendant’s actions,’” Doe #1 v. Am.
Fed’n of Gov’t Emps., 554 F. Supp. 3d 75, 102 (D.D.C. 2021) (citation omitted). One way that a
plaintiff may plead an inference of discrimination is “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) (citation omitted). To do so, the plaintiff “must
allege some facts to ground a reasonable inference that [she] was in fact similarly situated to
comparator employees.” Keith, 2022 WL 3715776, at *3. The plaintiff does not need to
“nam[e] comparators,” or allege “specifics” at the motion to dismiss stage. Jbari v. District of
Columbia, 304 F. Supp. 3d 201, 209 (D.D.C. 2018) (citation omitted).
iii. Adverse employment action
Defendant contends that the court should apply the “personnel action” definition from
Babb v. Wilkie, 589 U.S. 399, 406 (2020), in determining whether Plaintiff alleged an adverse
employment action. Mot. at 18–21. In Babb, the Supreme Court interpreted the federal sector
provision of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 633a(a), and concluded that “age must be a but-for cause of discrimination—that is, of
differential treatment—but not necessarily a but-for cause of a personnel action itself.” Babb,
589 U.S. at 406. In interpreting the term “personnel action,” Babb explained that “the ADEA
Page 7 of 17 does not define” the term, but “its meaning is easy to understand.” Id. at 405. The Court
incorporated the statutory definition of “personnel action” from the Civil Service Reform Act of
1978 (“CSRA”), which “broadly defines a ‘personnel action’ to include most employment-
related decisions, such as appointment, promotion, work assignment, compensation, and
performance reviews.” Id. (citing 5 U.S.C. § 2302(a)(2)(A)). The only appellate courts to
consider whether Babb applies to § 2000e-16—Title VII’s federal sector provision—have
concluded that it does. Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193, 1198–1205 (11th
Cir. 2021) (applying Babb’s causation holding to § 2000e-16(a)); Huff v. Buttigieg, 42 F.4th 638,
645–46 (7th Cir. 2022) (same).
In interpreting Title VII’s private sector provision, however, the D.C. Circuit has held
that all a plaintiff need establish under Title VII’s “plain text” is “that an employer has
discriminated against an employee with respect to that employee’s ‘terms, conditions, or
privileges of employment’ because of a protected characteristic”—no proof of “objectively
tangible harm” is required. Chambers v. District of Columbia, 35 F.4th 870, 874–75 (D.C. Cir.
2022) (en banc). Chambers held that “terms, conditions, or privileges of employment” include
“the transfer of an employee to a new role, unit, or location,” and that the phrase “evinced an
intent to strike at the entire spectrum of disparate treatment in employment.” Id. at 874
(formatting modified). The Court noted that “the phrase is not without limits”—it may not
include “de minimis harms.” Id. at 874–75. In so holding, Chambers expressly overruled the
Circuit’s decision in Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999), which interpreted
§ 2000e-16. Chambers, 35 F.4th at 875 (“Brown’s approach is clearly mistaken.”). The Court
ruled that, rather than “terms, conditions, or privileges of employment,” id. at 873, § 2000e-16(a)
prohibits discrimination in “personnel actions affecting employees.” Babb, 992 F.3d at 1198.
Page 8 of 17 For the reasons set forth below, however, the court need not decide whether to apply
Babb’s definition of “personnel action” or Chambers’ definition of “terms, conditions, or
privileges of employment” here.
B. Count I
Defendant first moves to dismiss Count I on the grounds that Plaintiff failed to exhaust
her administrative remedies, plead an inference of discrimination, and plead an adverse
employment action.
Defendant argues that Count I pleads discrete acts of discrimination, whereas Plaintiff
contends for the first time in her opposition that Count I pleads a hostile work environment.
Compare Mot. at 8–9, with Opp’n at 6–7.
Count I alleges discrete acts of discrimination, not a hostile work environment. The
words “hostile work environment” do not appear in the Amended Complaint at all. Moreover,
Count I states that “Defendant violated Title VII when it removed her substantive duties because
of her race, beginning in 2019 and continuing through the duration of her employment,”
specifically that Plaintiff’s supervisor assigned a coworker to take over her transition work, while
another coworker was given “the authority to manage and assign work” to the Senior Advisors,
despite having less experience than Plaintiff. Am. Compl. at 11–12. Although Plaintiff pleads
these acts were “different in kind,” she concedes they occurred over the course of approximately
two years and involved Plaintiff’s supervisor and several different coworkers. See Est. of
Rudder, 10 F. Supp. 3d at 197.
Count I alleges only removal of substantive duties, which is not the kind of “intimidation,
ridicule, and insult,” of the severity or pervasiveness necessary to state a hostile work
Page 9 of 17 environment claim. See Baloch, 550 F.3d at 1201. Indeed, “the removal of important
assignments,” especially when not close in time, cannot support a hostile work environment
claim. Nurriddin, 674 F. Supp. 2d at 94. And, as in Baloch, none of the alleged “actions
directed at [Plaintiff] expressly focused on [her] race,” nor are her claims of harm supported by
“evidence of tangible workplace consequences, whether financial, physical, or professional.”
Baloch, 550 F.3d at 1201. Instead, Plaintiff alleges that these acts caused “pain and suffering,
emotional distress, [and] mental anguish.” Am. Compl. at 12. Plaintiff also notes that she lost
“future . . . wages,” but fails to give any information as to how or why the loss of her substantive
duties caused future lost wages. See id.
Plaintiff argues that Count I states a hostile work environment claim because it “involves
a continuing series of the same type of employment actions, which occurred relatively frequently
and were perpetrated by the same managers.” Opp’n at 7–8. But Plaintiff makes no such
assertion in her Amended Complaint. She identifies only one example of a “continuing series of
the same type of employment actions,” in her opposition brief, id. at 7, and the Amended
Complaint identifies two examples, which allegedly took take place over the course of
approximately two years. Am. Compl. at 11 (“Defendant violated Title VII when it removed her
substantive duties because of her race, beginning in 2019 and continuing through the duration of
her employment”); id. (Plaintiff’s “last working day . . . was March 12, 2021.”). Moreover,
frequency and type of conduct are only two of the relevant considerations in determining a
hostile work environment. “Severity and pervasiveness are determined by reference to ‘all the
circumstances,’ 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.’” Baird v. Gotbaum, 792 F.3d 166, 169 (D.C.
Page 10 of 17 Cir. 2015) (“Baird II”) (citation omitted). Simply alleging more than one instance of the same
kind of conduct does not render Count I a hostile work environment claim.
Plaintiff first contacted her EEO Counselor on March 10, 2021. Am. Compl. at 2. Thus,
to meet the exhaustion requirement, a discrete act must have occurred on or after January 24,
2021—45 days prior—and been named in the EEO Charge. See Morgan, 536 U.S. at 113. As
Defendant points out, the only discrete act in Count I that could possibly be within this
timeframe is Plaintiff’s allegation that her supervisor assigned a coworker to take over her
transition work “[i]n or about late January 2021.” Am. Compl. at 7, 11, 13; Mot. at 8–9.
Although this allegation is mentioned in the EEOC’s Notice of Intent to Issue a Decision, ECF
No. 14-2 at 2, nothing in the Amended Complaint or the record indicates when the reassignment
of transition work occurred. Because the Defendant bears the burden of proving lack of
exhaustion, the court therefore assumes without deciding that Plaintiff’s allegation that her
supervisor assigned her White coworker to take over her transition work was timely. See
Bowden, 106 F.3d at 437.
Defendant also contends that Plaintiff failed to plead an inference of discrimination in
Count I. Mot. at 11–15. The court will consider only Plaintiff’s allegation that her supervisor
“announced that [her White colleague] would be heading to HRSA’s Office of the Administrator
in early February 2021 to support the transition work in preparation for the new administration,
even though [Plaintiff] had been leading and developed the transition materials,” Am. Compl.
at 7, as Plaintiff’s other allegations were not exhausted.
Plaintiff has adequately pleaded an inference of discrimination. She alleges that “almost
all of” her White colleagues “had less experience” than she did, Am. Compl. at 6, and that she
Page 11 of 17 was “more qualified” than any of her White colleagues for a promotion, id. at 10. She then
claims her transition work was reassigned to one of her White colleagues because of her race.
Id. at 11. At the motion to dismiss stage, these allegations suffice to plead that her substantive
duties were reassigned to her less qualified, less experienced colleagues because of her race.
Plaintiff alleges an adverse employment action in Count I under either Babb or
Chambers. First, under Babb, the CSRA considers “any significant change in duties,
responsibilities, or working conditions” to be a “personnel action.” 5 U.S.C.
§ 2302(a)(2)(A)(xii). Plaintiff alleges that her supervisor reassigned her transition work to her
White colleagues, even though it was “the only meaningful work she was assigned since
returning early from [a] detail.” Am. Compl. at 7. By taking away Plaintiff’s only “meaningful
work,” id., Defendant’s action caused a “significant change in duties.” 5 U.S.C.
§ 2302(a)(2)(A)(xii). Second, under Chambers, although “not all changes in work assignments
necessarily constitute adverse actions, . . . stripping [an employee] of the duties normally
associated with that [position]” or giving an employee “significantly different responsibilities”
suffices to establish an adverse employment action. Yazzie v. Nat’l Org. for Women, 712 F.
Supp. 3d 56, 79 (D.D.C. 2024) (citation omitted). Because the transition project was a task
Plaintiff worked on “[f]or several months” and was “the only meaningful work” she had,
reassigning it resulted in Plaintiff having “significantly different responsibilities.” 5 U.S.C.
§ 2302(a)(2)(A)(xii).
C. Count II
Defendant also moves to dismiss Count II on the ground that Plaintiff has failed to plead
an inference of discrimination or an adverse employment action.
Page 12 of 17 i. Inference of discrimination
Plaintiff has also pleaded an inference of discrimination with respect to Count II. She
alleges that she was issued “an unfairly low performance rating,” which “denied her a within
grade increase and lowered her cash bonus, because of her race,” and her supervisors “did not
rate any white Senior Advisors lower than [her]” that year. Am. Compl. at 10, 12. She also
contends that her White colleagues were given her assignments and received opportunities to
grow that she was not provided. Id. at 13. The Amended Complaint, taken as a whole, also
sufficiently pleads that Plaintiff’s White colleagues were similarly situated to her. Plaintiff
alleges that “almost all of” her White colleagues “had less experience” than her, id. at 6, and that
she was “more qualified” than any of her White colleagues for a promotion, id. at 10. Thus,
Plaintiff alleges that she was given an equal or lower performance rating than her less qualified
and less experienced White colleagues, and that those colleagues received her assignments and
growth opportunities that were denied to her because of her race. See Brown, 774 F 3d at 1022
(D.C. Cir. 2014) (citation omitted); see also Jbari, 304 F. Supp. 3d at 209 (allegations that
plaintiff “was treated less favorably than others outside his protected class” sufficient at the
motion to dismiss stage).
Defendant contends that Plaintiff does not allege that she “deserved a better
[performance] rating than” the White Senior Advisors. Mot. at 16. Plaintiff does, however,
allege that she was “more qualified” and experienced than the White Senior Advisors, Am.
Compl. at 10; that she was the only Black Senior Advisor, id. at 2; and that her supervisors “did
not rate any white Senior Advisors lower than [her] for this performance period,” id. at 10. The
allegation that she was “more qualified” for a promotion than her colleagues implies that she
Page 13 of 17 performed equally or better than them as Senior Advisors. At the motion to dismiss stage, these
allegations are sufficient.
ii. Adverse employment actions
Plaintiff’s allegations in Count II—that she was given a lower performance rating, was
not given growth opportunities, and had her substantive duties reassigned—are also “adverse
employment actions” under Babb or Chambers.
First, the CSRA—upon which Babb relied—specifically provides that a “personnel
action” includes “a performance evaluation.” 5 U.S.C. § 2302(a)(2)(A)(viii). And Plaintiff
alleges that she was issued “an unfairly low performance rating.” Am. Compl. at 12. Second,
the CSRA provides that decisions “concerning education or training” are personnel actions “if
the education or training may reasonably be expected to lead to . . . promotion.” 5 U.S.C.
§ 2302(a)(2)(A)(ix). Plaintiff claims that “many of her white colleagues” were provided
“opportunities to grow and advance their careers,” including “details [and] special assignments.”
Am. Compl. at 13. And, importantly, Plaintiff was told that she was not chosen for a promotion
because she “needed to get experience leading teams and projects across the federal
government.” Id. at 10. Thus, a fair inference is that the growth opportunities Plaintiff was
passed up for could have been reasonably expected to lead to her promotion. Finally, the CSRA
considers “any other significant change in duties, responsibilities, or working conditions” to be a
“personnel action.” 5 U.S.C. § 2302(a)(2)(A)(xii). Plaintiff’s allegation that her supervisor
“gave [her] substantive duties away to her white colleagues” meets this definition. Am. Compl.
at 13. Plaintiff alleges that “about 95% of her duties” were reassigned, id. at 2, which is certainly
a “significant change in duties.” 5 U.S.C. § 2302(a)(2)(A)(xii).
Page 14 of 17 Defendant argues that Plaintiff’s allegation “about some duties that others received” is
not a “personnel action.” Mot. at 20. To be sure, it is possible that an allegation that colleagues
received “some duties” might not alone constitute a “personnel action.” But Plaintiff alleged that
about 95% of her substantive duties were reassigned to her White colleagues—not just “some.”
Am. Compl. at 2, 10. That allegation is sufficient to plead a personnel action because it
represents a “significant change in duties.” 5 U.S.C. § 2302(a)(2)(A)(xii).
Plaintiff’s allegations likewise meet Chambers’ definition of “terms, conditions, or
privileges of employment.” First, actions affecting performance evaluations are certainly
adverse employment actions where they “result[] in [the] employee not receiving a cash award.”
Montgomery v. McDonough, 682 F. Supp. 3d 1, 16 (D.D.C. 2023) (citation omitted). Thus,
Plaintiff’s allegations that she was given an unfairly low performance rating, affecting her salary
and her bonus, are sufficient to state a claim. Am. Compl. at 12. Second, Plaintiff’s allegation
that she was held back from growth opportunities that could be helpful in securing a promotion,
Am. Compl. at 10, 13, is also an adverse employment action. See Heavans v. Dorado, 648
F. Supp. 3d 1, 14 (D.D.C. 2022) (exclusion from leadership meetings constitutes an adverse
employment action). And finally, Plaintiff’s allegation that about 95% of her substantive duties
were reassigned to her White colleagues, Am. Compl. at 2, 10, suffices. As courts in this district
have observed, although “not all changes in work assignments necessarily constitute adverse
actions” under Chambers, “stripping [an employee] of the duties normally associated with that
[position]” or giving an employee “significantly different responsibilities” is enough. Yazzie,
712 F. Supp. 79; supra at 12.
With regard to Plaintiff’s allegations about lack of opportunities, Defendant argues that
the Amended Complaint gives “no indication what those opportunities were, that the
Page 15 of 17 opportunities were actually better, or that Plaintiff had applied for, was available for, and was
qualified (let alone more qualified) for those particular opportunities.” Mot. at 21. Not so.
Plaintiff pleaded that the opportunities included “details” and “special assignments,” and “other
opportunities to grow and advance their careers.” Am. Compl. at 13. She also alleged that she
was more experienced and more qualified than the White Senior Advisors. Id. at 6, 10. Those
allegations suffice at the motion to dismiss stage; Plaintiff states a claim for relief in Count II.
D. Damages
Finally, Defendant contends that Plaintiff cannot recover back pay for the period after her
departure on March 10, 2021, because she resigned voluntarily. Mot. at 21–24; Reply to Opp’n
to Mot. to Dismiss, ECF No. 16 at 9. The court declines to decide this damages question at this
stage of the litigation. For one thing, “the court is generally reluctant to wade into a legal dispute
before the adversarial process has had an opportunity to shed light on the question at hand.”
Marcus v. Geithner, 813 F. Supp. 2d 11, 21 (D.D.C. 2011) (discussing a damages argument
made at the motion to dismiss stage in a Title VII action). For another, it is unclear which counts
Plaintiff seeks back pay for. Each of Counts I, II, and III enumerate “future lost wages, pain and
suffering, emotional distress, mental anguish, and/or punitive damages,” Am. Compl. at 12–14,
but the Amended Complaint also requests “back pay as if [Plaintiff] had been promoted, plus
interest,” id. at 14. Rather than decide this issue when it may not be relevant, the court leaves
damages to another day.
Page 16 of 17 IV. CONCLUSION
For the foregoing reasons, the court will GRANT in part and DENY in part Defendant’s
partial motion to dismiss. A separate Order will accompany this Memorandum Opinion.
Date: October 28, 2024
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge
Page 17 of 17