UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ESTRELLA DEPPNER,
Plaintiff,
v. Civil Action No. 1:17-cv-1275 (DLF) SPECTRUM HEALTH CARE RESOURCES, INC., et al.,
Defendants.
MEMORANDUM OPINION
Estrella Deppner brings these Title VII and District of Columbia Human Rights Act
(DCHRA) actions against her former employer, Spectrum Healthcare Resources, asserting that it
discriminated against her based on national origin, subjected her to a hostile work environment,
and retaliated against her for engaging in protected activity. She also brings a DCHRA action
against her former supervisor, Jerl Huling, in his individual capacity, asserting that he did the
same. Before the Court is defendants’ Motion to Dismiss or, in the Alternative, for Summary
Judgment. Dkt. 11. For the reasons that follow, the Court will grant the motion.
I. BACKGROUND1
Spectrum Healthcare Services—a government contractor tasked with providing
healthcare services to various federal agencies—employed Deppner as a nurse coordinator. Am.
1 The Court treats this motion as a motion for summary judgment with respect to Deppner’s national origin discrimination claim under Title VII and as a motion to dismiss with respect to all other claims. Because the Court in resolving a motion to dismiss must treat plaintiff’s “factual allegations as true and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged,” Ctr. for Responsible Sci. v. Gottlieb, 311 F. Supp. 3d 5, 8 (D.D.C. 2018) (internal quotation marks and alterations omitted), the following sets forth the facts solely as they appear in Deppner’s pleadings and the administrative record before the EEOC. Compl. ¶¶ 4–5, Dkt. 6. From February 4, 2015 to March 30, 2016, Deppner was placed at the
Health Center for the Department of Veteran’s Affairs. Id. ¶ 4. During that time, Deppner was
directed to prepare a report on “bed bugs” discovered in the health center. Id. ¶ 19. Her
supervisor, Jerl Huling, was “made aware” of the bed bugs and instructed Deppner not to discuss
them with other nurses. Id. ¶ 24.2
On the afternoon of April 27, 2016, Deppner reported to the Potomac Education Center,
where she was asked to measure the blood pressure of two female patients—“Client 1” and
“Client 2.”3 Id. ¶¶ 9–13. During Client 1’s visit, Deppner called her “honey bunny” and told her
she “looked good and was sexy.” Id. ¶ 11. Deppner also asked her to “uncross her legs and
arms” to avoid inaccuracies in the blood pressure reading. Id. When Client 1 failed to do so,
Deppner “touched Client 1’s knee” and repeated the request. Id. After the treatment, Client 1
filed a complaint against Deppner alleging that Deppner’s use of the terms “‘Honey Bunny’ and
‘Sexy’ made her feel uncomfortable” and “amounted to ‘sexual [sic] harassment.” Id. ¶ 12.
Later that afternoon, Deppner told Client 2 she was “pretty” and “had a nice smile.” Id.
¶ 13. Deppner began testing Client 2’s blood pressure using a standard-sized cuff, which proved
too small. Id. She then switched to the largest cuff available and administered the test. Id. The
result was lower than usual, which Deppner explained could have been due to “diet, exercise,
lack of sleep, dehydration” or “stress.” Id. Client 2 responded “angrily” that if she needed
2 During this conversation, Deppner also told Huling she overheard two nurses—her “friends”— talking about her in the “Jamaican language.” Am. Compl. ¶ 24. One of them (apparently switching to English) referred to her as a “Filipino doll.” Id. Deppner does not appear to consider that reference an insult; nor does she make any effort to tie it to her national origin discrimination claims. 3 To protect the patients’ privacy, the Court adopts plaintiff’s convention of referring to them as Client 1 and Client 2.
2 advice, she would consult her doctor. Id. She filed a complaint against Deppner, in which she
described Deppner’s explanation for the low blood pressure result as a “lecture” that was both
“demeaning and harassing.” Id.
Spectrum reviewed the incidents and concluded that Deppner’s conduct was
“inappropriate, unprofessional and harassing.” Id. ¶ 14. Huling called Deppner on April 29 and
informed her she would be “suspended without pay until [Spectrum’s] investigation is done.” Id.
Later that day, Deppner provided Spectrum with a statement in which she denied that her actions
constituted harassment but admitted to calling Client 1 “Honey Bunny” and “sexy” and to
“touching her on the knee” while asking the patient to “uncross her legs.” Defs.’ Mot. at Ex. 5,
Dkt. 11-7 at 2–3.4 Spectrum concluded that those actions violated Spectrum’s policy on
workplace harassment, and it suspended Deppner for five days. Am. Compl. ¶ 16. Deppner also
alleges that Spectrum “planned” to terminate her effective June 6, 2016. Id. But she does not
clarify whether (or when) this plan was revealed to her, or whether (or when) it was actually
carried out. Id. Rather, Deppner suggests both that Spectrum “terminated her from the job” and
that she “did not want to return to work” or “communicate with Spectrum,” id. ¶ 18 (emphasis
added), making it difficult to discern from the pleadings alone when—and why—Deppner’s
employment with Spectrum eventually ended.
4 The copy of Deppner’s statement furnished by defendants is appropriately considered regardless of whether the Court treats the motion as a motion for summary judgment or a motion to dismiss. “[T]he court may consider a document supplied by defendant in a motion to dismiss if ‘the complaint necessarily relies’ on the document and when . . . there is no genuine dispute that the document is what ‘its proponent claims.’” George v. Bank of America N.A., 821 F. Supp. 2d 299, 301 n.5 (D.D.C. 2011) (quoting Fed. R. Evid. 901(a)). Deppner herself alleges that she “provided a statement on April 29, 2016 denying that she did anything that could be conceived as harassment of either client.” Am. Compl. ¶ 15. Because Deppner relies on that statement and does not dispute that the copy furnished by defendants “is what its proponent claims,” the Court may consider Exhibit 5 without necessarily treating defendants’ motion as one for summary judgment.
3 Deppner filed a Charge of Discrimination with the Equal Employment Opportunity
Commission on October 25, 2016. Dkt. 11-13 at 2. When asked the basis for the alleged
discrimination, she checked the boxes for “Race,” “National Origin,” and “Other” (specifying
“Discriminatory Discipline”). Id. She did not check the box for “Retaliation.” Id. In the sworn
Statement of Particulars accompanying the charge, Deppner described her interactions with
Client 1 and Client 2, and Spectrum’s investigation of their complaints. Id. at 3–5. Deppner
alleged that Spectrum suspended her without pay and “threatened to terminate [her] if similar
conduct occurred again.” Id. at 5. Deppner further explained she “fell out of communication
with Spectrum” and was told by Huling that her position had changed to “PRN duty,” meaning
“Spectrum could assign her to work wherever there [wa]s a need and a vacancy appeared, if she
was prepared to work.” Id. at 6. From this, Deppner “concluded that she was terminated from
her employment as reprisal to her complaint of Bed Bugs.” Id. And she “believe[d] that
Spectrum took this action because of her national origin, Filipino.” Id.
Deppner filed this case in June 2017, asserting the following counts against Spectrum:
• Count I: National origin discrimination and hostile environment harassment under
Title VII
• Count II: National origin discrimination and hostile environment harassment
under the DCHRA
• Count III: Retaliation under Title VII
• Count IV: Retaliation under the DCHRA
In addition, Deppner brought the following count against Huling in his individual
capacity:
4 • Count V: National origin discrimination, reprisal, and hostile environment
harassment under the DCHRA
The defendants filed a joint Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment. They argue that Deppner failed to exhaust administrative remedies as to
her hostile work environment and retaliation claims, that Deppner failed to state a claim upon
which relief can be granted as to all claims, and that Deppner failed to satisfy the pleading
requirements of Federal Rule of Civil Procedure 8(a)(2), Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) as to all claims. They also argue that
Spectrum “had a very strong and non-discriminatory reason for suspending Deppner and issuing
her a Final Written Warning.” Defs.’ Reply at 13, Dkt. 20.
II. LEGAL STANDARDS
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to
dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ.
P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter
sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp., 550 U.S. at 570.
Well-pleaded factual allegations are “entitled to [an] assumption of truth,” Iqbal, 556 U.S. at
679, and the court construes the complaint “in favor of the plaintiff, who must be granted the
benefit of all inferences that can be derived from the facts alleged,” Hettinga v. United States,
677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted).
A motion to dismiss Title VII claims for failure to exhaust administrative remedies is
properly analyzed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Jones v. Bush,
160 F. Supp. 3d 325, 337 (D.D.C. 2016), aff'd, No. 16-5103, 2017 WL 2332595 (D.C. Cir. Feb.
21, 2017); Mount v. Johnson, 36 F. Supp. 3d 74, 80 (D.D.C. 2014). Moreover, a Rule 12(b)(6)
5 dismissal for failure to state a claim—including for failure to exhaust administrative remedies—
“is a resolution on the merits and is ordinarily prejudicial.” Okusami v. Psychiatric Inst. of
Wash., Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992).
When deciding a Rule 12(b)(6) motion, the court may consider only the complaint itself,
documents attached to the complaint, documents incorporated by reference in the complaint, and
judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624
(D.C. Cir. 1997). As relevant here, the court may consider a plaintiff’s EEOC documents. See
Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (considering “the pleadings and
undisputed documents in the record” while reaching the merits on a motion to dismiss); Vasser v.
McDonald, 228 F. Supp. 3d 1, 11 (D.D.C. 2016) (taking judicial notice of informal and formal
administrative complaints on a motion to dismiss); Williams v. Chu, 641 F. Supp. 2d 31, 35
(D.D.C. 2009) (“A plaintiff's EEOC charge and the agency's determination are both public
records, of which this Court may take judicial notice.” (quotation marks and alteration omitted)).
A court grants summary judgment if the moving party “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A
“material” fact is one with potential to change the substantive outcome of the litigation. See
Liberty Lobby, 477 U.S. at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). In
response to a motion for summary judgment, the nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “[T]he nonmoving party must come forward
with ‘specific facts showing that there is a genuine issue for trial.’” Id. at 587 (quoting Fed. R.
Civ. P. 56(e)).
6 III. ANALYSIS
Before the Court is defendants’ motion to dismiss or, in the alternative, for summary
judgment. Because the Court may dispose of Deppner’s Title VII hostile work environment and
retaliation claims by reviewing only her amended complaint and EEOC documents, the Court
treats the motion as a motion to dismiss with respect to those claims. But because both parties
have attached materials relevant to Deppner’s Title VII national origin discrimination claim
against Spectrum, the Court will treat the motion as a motion for summary judgment with respect
to that claim. See Zuver v. Sprigg, No. CV 16-2505 (DLF), 2018 WL 3617308, at *4 (D.D.C.
June 13, 2018) (“The court . . . may, a fortiori, convert the motion to dismiss into a motion for
summary judgment only with respect to certain counts or issues”).5
5 Deppner argues that summary judgment is inappropriate because she “has not had an opportunity to engage in discovery . . . and has not presented any evidence.” Pl.’s Opp’n at 6, Dkt. 13. But the Court disagrees. “The decision to convert a motion to dismiss into a motion for summary judgment . . . is committed to the sound discretion of the trial court.” Flynn v. Tiede– Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006). In exercising that discretion, the “reviewing court must assure itself that summary judgment treatment would be fair to both parties.” Tele– Commc'ns. of Key West, Inc. v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985). The parties “must be given a reasonable opportunity to present all the material that is pertinent,” Fed. R. Civ. P. 12(d), but “[a] motion may be treated as one for summary judgment even if the parties have not been provided with notice or an opportunity for discovery if they have had a reasonable opportunity to contest the matters outside of the pleadings such that they are not taken by surprise,” Bowe-Connor v. Shinseki, 845 F. Supp. 2d 77, 86 (D.D.C. 2012). Here, Deppner has had more than a reasonable opportunity to present pertinent material outside the pleadings. Defendants requested summary judgment in the alternative and explicitly acknowledged the possibility that the Court could treat their motion as one for summary judgment. Defs.’ Mot. at 2–3 n.2. And Deppner attached affidavits and public records to her opposition. See Dkt. 13-1, 13-2, 13-3, 13-4, 14. Deppner never once requested discovery in this case, and under the circumstances she will not be unfairly surprised by the Court’s decision. See, e.g., Chambers v. Sebelius, 6 F. Supp. 3d 118, 124 (D.D.C. 2013) (treating motion to dismiss as motion for summary judgment before discovery “because the defendant’s motion was in the alternative for summary judgment and . . . the parties had the opportunity to submit and submitted materials in support in opposition” (internal quotation marks and alterations omitted)), aff'd sub nom. Chambers v. Burwell, 824 F.3d 141 (D.C. Cir. 2016).
7 A. Exhaustion of Deppner’s Hostile Work Environment and Retaliation Claims Under Title VII
Defendants first argue that Deppner failed to exhaust administrative remedies as required
by Title VII. The Court agrees.
“Title VII complainants must timely exhaust their administrative remedies before
bringing their claims to court.” Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (internal
quotation marks and alterations omitted); 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) (internal quotation marks and alteration omitted), 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). In the Title VII context, failure to exhaust is an affirmative defense, and thus
“the defendant bears the burden of pleading and proving it.” Bowden, 106 F.3d at 437; see also
Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998) (“[A]n affirmative
defense may be raised by pre-answer motion under Rule 12(b) when the facts that give rise to the
defense are clear from the face of the complaint.”).
“A Title VII lawsuit following the EEOC charge is limited in scope to claims that are like
or reasonably related to the allegations of the charge and growing out of such allegations.” Park,
71 F.3d at 907 (internal quotation marks omitted). “Although it is true that the administrative
charge requirement should not be construed to place a heavy technical burden on individuals
untrained in negotiating procedural labyrinths, it is also true that the requirement of some
specificity in a charge is not a mere technicality.” Id. (internal quotation marks and citation
omitted). After all, “[a] court cannot allow liberal interpretation of an administrative charge to
permit a litigant to bypass the Title VII administrative process.” Id.
8 Defendants do not dispute that Deppner has exhausted a claim based on national origin
discrimination. But her EEOC charge cannot be stretched to include a claim for harassment or
retaliation.
1. Hostile Work Environment
Deppner never once mentioned “harassment” or a “hostile work environment” to the
EEOC. See Dkt. 11-13. Rather, she focused on a single discrete event—termination—and her
“belie[f] that Spectrum took this action because of her national origin, Filipino.” Id. at 6–7.
A plaintiff raising a hostile work environment claim, however, must allege more than a
discrete act. The plaintiff must show that the “workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment.” Vickers v. Powell, 493 F.3d 186, 197 (D.C. Cir. 2007) (emphasis
added) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Thus, courts have
repeatedly refused to find hostile work environment claims exhausted where a plaintiff alleges
only a handful of isolated instances of potential discrimination before the EEOC. See, e.g.,
Panarello v. Zinke, 254 F. Supp. 3d 85, 102 (D.D.C. 2017) (dismissing hostile work environment
claim for failure to exhaust administrative remedies where plaintiff’s “administrative complaint
contain[ed] no mention of a hostile work environment but, rather, identifie[d] a series of discrete
acts of alleged discrimination and retaliation”), appeal filed, No. 17-5148 (D.C. Cir. June 23,
2017); Akridge v. Gallaudet Univ., 729 F. Supp. 2d 172, 180 (D.D.C. 2010) (dismissing
plaintiff’s hostile work environment claim for failure to exhaust administrative remedies where
plaintiff’s EEOC charge raised only “one discrete act of discrimination”).
Further, the D.C. Circuit made clear in Park v. Howard that “[t]he bald statement that
‘[i]t is my belief that I was denied the opportunity for advancement in my career because of . . .
9 my national origin’ . . . cannot be read to encompass a hostile work environment claim” for
purposes of exhaustion. 71 F.3d at 908 (second alteration in original). Thus, Deppner’s
assertion that she “believes that Spectrum took this action because of her national origin,
Filipino” cannot be read to encompass a hostile work environment claim. See Rush v.
McDonald’s Corp., 966 F.2d 1104, 1111 (7th Cir. 1992) (“Some detail, beyond a statement that
‘I believe I have been discriminated against because of my race, Black’ is necessary to allow the
[EEOC] to perform its statutory duty [regarding a hostile work environment claim].”). As in
Park, Deppner’s “charge not only lacks the words ‘hostile work environment,’ but also lacks any
factual allegations supporting such a claim.” 71 F.3d at 908. Thus, Count I must be dismissed to
the extent it relies on a theory of “hostile environment harassment.” Am. Compl. at 9.
2. Retaliation
Deppner likewise failed to exhaust her retaliation claim. The only possible basis for
construing Deppner’s EEOC charge to encompass retaliation is a single line in which Deppner
asserts she “was terminated from her employment as reprisal to her complaint of Bed Bugs.”
Dkt. 11-13 at 6. But that lone reference to “reprisal” could not have exhausted a retaliation
claim. For one, Deppner was explicitly asked to provide the basis for her claim, and she checked
the boxes for “race” and “national origin” while leaving unchecked the box for “retaliation.” Id.
at 2. More fundamentally, Deppner never alleged “reprisal” for protected activity, as required by
Title VII. See Broderick v. Donaldson, 437 F.3d 1226, 1231 (D.C. Cir. 2006) (listing
“engag[ing] in protected activity” as an essential element of a Title VII retaliation claim (internal
quotation marks omitted)). “An activity is protected for the purposes of a [Title VII] retaliation
claim if it involves opposing alleged discriminatory treatment by the employer or participating in
legal efforts against the alleged treatment.” Beyene v. Hilton Hotels Corp., 815 F. Supp. 2d 235,
10 247 (D.D.C. 2011), aff'd, 573 F. App'x 1 (D.C. Cir. 2014) (internal quotation marks omitted).
Disconcerting as bed bugs in the workplace may be, complaining about them does not constitute
protected activity because it has nothing to do with “discriminatory treatment.” See id.
(explaining that “not every complaint entitles its author to protection from retaliation under Title
VII” because the plaintiff “must demonstrate that he complained [to the employer] of some
unlawful discrimination based on his membership in a protected class” (emphasis added)); Hale
v. Bd. of Trs. of S. Ill. Univ. Sch. of Med., 2017 WL 2695287, at *6 (C.D. Ill. June 22, 2017)
(finding that “speak[ing] up about bed bugs” is “not protected activity” under Title VII because it
“do[es] not relate to illegal employment discrimination”). Because Deppner failed to articulate a
retaliation claim in her EEOC charge, she has failed to exhaust administrative remedies with
respect to that claim. Consequently, the Court must dismiss Count III.
B. Deppner’s National Origin Discrimination Claim
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for
an employer . . . to discriminate against any individual with respect his compensation, terms,
conditions, or privileges of employment, because of such individual’s race . . . or national
origin.” 42 U.S.C. § 2000e-2(a)(1). An employee can prove unlawful discrimination with either
direct or indirect evidence. An employee has direct evidence of unlawful discrimination if, for
example, the employer “overtly refer[s]” to the employee's protected trait when making an
unfavorable employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 272 (1989)
(O'Connor, J., concurring in the judgment). The indirect method of proof, on the other hand,
requires the employee to establish a prima facie showing of discrimination, which can then be
rebutted by the employer. The elements of a prima facie case of discrimination are: (1) the
plaintiff is part of a protected class; (2) the plaintiff suffered a cognizable adverse employment
action; and (3) the action gives rise to an inference of discrimination. Walker v. Johnson, 798 11 F.3d 1085, 1091 (D.C. Cir. 2015). At summary judgment, however, “the question whether the
plaintiff in a disparate treatment discrimination suit actually made out a prima facie case is
almost always irrelevant.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 492 (D.C. Cir.
2008). That is because “by the time the district court considers an employer’s motion for
summary judgment . . . the employer ordinarily will have asserted a legitimate, non-
discriminatory reason for the challenged decision.” Id. at 493. If so, “the district court need
not—and should not—decide whether the plaintiff actually made out a prima facie case.” Id. at
494. Instead, the court “must resolve one central question: Has the employee produced sufficient
evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was
not the actual reason and that the employer intentionally discriminated against the employee on
the basis of race, color, religion, sex, or national origin?” Id.
Deppner has not provided direct evidence of discrimination but instead points to the
circumstances surrounding her suspension and eventual departure from Spectrum. Defendants
challenge Deppner’s prima facie case on multiple grounds.6 But because defendants have also
provided a non-discriminatory reason for disciplining Deppner, Defs.’ Reply at 11–13,7 the
Court “need not—and should not—decide whether the plaintiff actually made out a prima facie
case.” Brady, 520 F.3d at 494. Instead, the Court turns to the “central question” of whether
6 Specifically, they argue that Deppner has failed to allege satisfactory performance and adverse employment action and that her complaint does not meet the “plausibility” requirement of Iqbal and Twombly. See Defs.’ Mot. at 10–12, 16–17. 7 Defendants primarily discuss Spectrum’s non-discriminatory reason as a challenge to Deppner’s prima facie case, arguing that she failed to allege that “her job performance was satisfactory.” Defs.’ Mot. at 10. Satisfactory performance, however, is not a necessary element of national origin discrimination. See Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (listing the elements). Thus, her job performance is better addressed as a potential “legitimate, non-discriminatory reason” for Spectrum’s actions, as defendants suggest in their reply. Defs.’ Reply at 11; see also id. at 13.
12 Deppner has “produced sufficient evidence for a reasonable jury to find that the employer’s
asserted non-discriminatory reason was not the actual reason and that the employer intentionally
discriminated against” her. Id.
Defendants’ non-discriminatory reason for disciplining Deppner is straightforward:
Spectrum received complaints from two patients about Deppner’s behavior, and Deppner
admitted in writing to “the most egregious” of the patients’ accusations. Defs.’ Reply at 13. To
demonstrate that reason, Spectrum has attached copies of both patients’ complaints, Dkt. 11-3,
11-4, a declaration by Huling, Dkt. 11-5, a series of emails and letters exchanged between
Huling and Deppner, Dkt. 11-6, 11-7, 11-9, 11-11, 11-12, an Employee Corrective Counseling
Form, Dkt. 11-8, and Deppner’s response to that form, Dkt. 11-10.
Those documents clearly establish that Spectrum disciplined Deppner because of the
complaints it received from Client 1 and Client 2. The Employee Corrective Counseling Form
sent to Deppner is particularly revealing. In it, Spectrum explains that Client 1 complained about
Deppner’s use of the words “Honey Bunny” and “sexy” and the fact Deppner “touched her leg in
a way that made the patient feel uncomfortable.” Dkt. 11-8 at 2. Spectrum also explains that
Client 2 complained that she felt “embarrassed” when Deppner “insisted upon utilizing a small
blood pressure cuff,” that she felt “uncomfortable” with being called “pretty,” and that she “felt
like she received a lecture” regarding issues “unrelated” to the purpose of her visit. Id. at 3. To
rectify the issues raised in the patients’ complaints, Spectrum required Deppner to take certain
“action steps for improvement.” Id. Those steps consisted of reviewing Spectrum’s Behavior,
Conduct, and Performance Guidelines, reviewing Spectrum’s policy on Employee and
Workplace Harassment, and refraining from treating “unrelated issues or providing unsolicited
13 opinions” in the future. Id. If Deppner failed to take those steps, her dismissal would be
“recommended.” Id.
Deppner admits to nearly all of these facts: that she treated Clients 1 and 2 on April 27,
Am. Compl. ¶¶ 9, 11, 13; that she called Client 1 “Honey Bunny” and “sexy,” id. ¶ 11; that she
“touched Client 1’s knee”, id.; that Client 1 filed a complaint stating Deppner’s use of the words
“Honey Bunny” and “Sexy” made her feel uncomfortable and “amounted to ‘sexual [sic]
harassment,” id. ¶12; that Deppner used a small blood pressure cuff on Client 2 before switching
to a larger one, id. ¶ 13; that Deppner called Client 2 “pretty,” id.; that Client 2 responded
“angrily” when Deppner provided unsolicited advice, id.; that Client 2 filed a complaint
describing Deppner’s treatment as “demeaning and harassing,” id; that Spectrum reviewed the
April 27 incidents and concluded Deppner’s conduct was “inappropriate, unprofessional and
harassing,” id. ¶ 14; that Huling informed Deppner she would be suspended without pay pending
the results of an internal investigation, id.; and that Spectrum ultimately concluded Deppner’s
actions violated its policy on workplace harassment, id.
Deppner adds merely one twist: that despite all those facts, she “believes” Spectrum
really disciplined her “because of her national origin, Filipino.” Id. ¶ 33. To support that
allegation, Deppner provides two affidavits: her own and that of a co-worker, Karyn Miller. See
Dkt. 21, 22 (redacted versions supplied by defendants with permission of the Court). Deppner’s
affidavit, however, contradicts her own complaint. She asserts that she doesn’t “recall referring
to [Client 1] as being sexy,” Dkt. 21 ¶ 5, and that she “believe[s] Spectrum manufactured [the
two patients’] complaints” as punishment for “complaining to the Veteran’s Administration
about bed bug infestation,” id. ¶ 11. But even if Spectrum had “manufactured” the complaints
for this purpose, it would not make a difference. “[A] plaintiff cannot survive summary
14 judgment merely by showing that the employer was motivated by a different nondiscriminatory
reason”—like complaining about bed bugs. Moses v. Kerry, 110 F. Supp. 3d 204, 210 (D.D.C.
2015), aff'd, No. 15-5241, 2016 WL 1272943 (D.C. Cir. Feb. 8, 2016). “[S]uch a plaintiff shoots
himself in the foot by demonstrating that the real explanation for the employer's behavior is not
discrimination, but some other motivation.” Id. (internal quotation marks omitted). Thus,
Deppner’s affidavit would be legally irrelevant even if it did not contradict her own complaint.
Miller’s affidavit fares no better. It explains that Miller was the “charge nurse” at
Potomac Education Center on April 27, Dkt. 22 ¶ 1, that neither Client 1 nor Client 2 complained
to her about the treatment they received, id. ¶ 5, and that such complaints would “[n]ormally” be
made to her so that she could “address concerns at the lowest level and promptly,” id. ¶ 7. She
further explains that she never heard anything from Spectrum regarding the complaints. Id. ¶ 6.
And she states her “opinion” that “Deppner did not engage in inappropriate communications or
contact with the two patients.” Id. ¶ 9. Presumably, Miller’s testimony is meant to show two
things: first, that the complaints never existed; and second, that Deppner acted appropriately on
April 27. But it fails at the first, and the second is irrelevant.
First, Deppner herself alleged that both Clients filed complaints about her performance,
Am. Compl. ¶¶ 12, 13, and that Spectrum “conducted a review of these incidents and concluded
that Ms. Deppner’s conduct was inappropriate, unprofessional and harassing,” ¶ 14. But even if
that were not the case, Miller’s testimony that patients “[n]ormally” complain to her instead of
Spectrum is not nearly enough to rebut defendants’ evidence. Defendants have provided, among
other things, purported copies of the patients’ actual complaints, see Dkt. 11-3, 11-4, and two
written statements (whose authenticity is undisputed) in which Deppner confirms the critical
details of April 27 and objects only to the characterization of her conduct as improper, see Dkt.
15 11-7 at 2–4; Dkt. 11-10 at 5–6. In a letter to Huling, Deppner says that she “suspected that [she]
would receive feedback from these 2 patients, because they were obviously upset.” Dkt. 11-7 at
2. And in her response to the corrective counseling form, she does not challenge any of the
“Facts and Events” recounted by Spectrum but only Spectrum’s “one sided” focus “on the
statements of the 2 patients.” Dkt. 11-10 at 5. In light of Deppner’s own written statements
admitting to the conduct for which she was disciplined and predicting and acknowledging the
patients’ complaints, Miller’s affidavit could not lead a reasonable juror to conclude that those
complaints were “manufactured” as a pretext for discrimination.
Second, Miller’s “opinion” about Deppner’s conduct is irrelevant because “[t]he question
is not whether the underlying sexual harassment incident occurred; rather, the issue is whether
the employer honestly and reasonably believed that the underlying sexual harassment incident
occurred.” Brady, 520 F.3d at 496 (affirming summary judgment for defendant in Title VII
action where plaintiff’s “only argument for discrediting the employer's asserted non-
discriminatory reason [wa]s his contention that the underlying sexual harassment incident never
occurred,” id. at 495–96). Miller’s characterization of Deppner’s performance—which she does
not claim to have observed—at most suggests Spectrum might have been wrong to conclude
Deppner’s conduct was improper. It does not show that Spectrum acted dishonestly or
unreasonably in reaching that conclusion.
To be sure, a Title VII plaintiff has “multiple ways to show that the employer’s stated
reason for the employment action was not the actual reason.” Id. at 495. A plaintiff can
“produce evidence suggesting that the employer treated other employees of a different race . . .
or national origin more favorably in the same factual circumstances” or “demonstrate that the
employer is making up or lying about the underlying facts that formed the predicate for the
16 employment decision.” Id. A plaintiff can also point to “changes and inconsistencies in the
stated reasons for the adverse action; the employer’s failure to follow established procedures or
criteria; the employer’s general treatment of minority employees; or discriminatory statements
by the decisionmaker.” Id. at 495 n.3. Deppner has taken none of those steps. She has merely
stated her “[b]elief” that “Spectrum manufactured [the] complaints” against her for the different
but equally non-discriminatory purpose of punishing her for complaining about bed bugs. Dkt.
21 ¶ 11. In the face of defendants’ evidence that Spectrum disciplined Deppner because it
received complaints about her treatment of Client 1 and Client 2, Deppner has not “produced
sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory
reason was not the actual reason and that the employer intentionally discriminated against” her.
Brady, 520 F.3d at 494. The Court will therefore grant defendants’ motion for summary
judgment with respect to Count I.
C. Deppner’s DCHRA Claims
The only remaining counts are Deppner’s DCHRA claims against both defendants. The
Court has an “affirmative obligation” to consider its own jurisdiction, James Madison Ltd. v.
Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996), and it may do so sua sponte at any point during
litigation. In her Amended Complaint, Deppner relies on the subject-matter jurisdiction provided
by 28 U.S.C. § 1343 and 28 U.S.C. § 1331 for her Title VII claims and on the supplemental
jurisdiction provided by 28 U.S.C. § 1367(a) for her DCHRA claims.
When this case began, the Court had supplemental jurisdiction over Deppner’s D.C.
claims because they derived from the same “nucleus of operative fact” as her federal claims.
United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966); see also 28 U.S.C. § 1367(a). But
when a court dismisses all federal claims in a suit, it has the discretion to exercise—or decline to
exercise—supplemental jurisdiction over any state-law claims that remain. United Mine 17 Workers v. Gibbs, 383 U.S. at 726 (describing supplemental jurisdiction as a “doctrine of
discretion” and not of “right”); see also 28 U.S.C. § 1367(c)(3); Trimble v. District of Columbia,
779 F. Supp. 2d 54, 60 (D.D.C. 2011) (dismissing all federal claims and declining to exercise
supplemental jurisdiction over remaining state-law claims).
In exercising that discretion, courts consider “judicial economy, convenience and fairness
to litigants.” United Mine Workers, 383 U.S. at 726. “[I]n the usual case in which all federal-
law claims are eliminated before trial, the balance of factors . . . will point toward declining to
exercise jurisdiction over the remaining state-law claims.” Carnegie–Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988); see also Edmondson & Gallagher v. Alban Towers Tenants Ass'n, 48
F.3d 1260, 1267 (D.C. Cir. 1995) (applying Carnegie-Mellon Univ. to the current version of
§ 1367(d)).
In this case, the factors weigh against retaining Deppner’s state-law claims. The case has
not progressed beyond defendants’ first motion, and the Court has not developed any familiarity
with Deppner’s state-law claims. Moreover, Deppner will not be prejudiced in any way by
dismissal. As the Supreme Court recently recognized—specifically in the context of District
proceedings—§ 1367(d)’s tolling provision not only provides for a thirty-day grace period for
refiling in state court after dismissal; it also stops the clock on any otherwise-applicable
limitations period during the pendency of the federal-court suit. See Artis v. District of
Columbia, 138 S. Ct. 594, 598 (2018). Because the Court declines to exercise supplemental
jurisdiction over Deppner’s state-law claims, it will dismiss Counts I, IV, and V for lack of
subject-matter jurisdiction.
18 CONCLUSION
For the foregoing reasons, the Court grants defendants’ Motion to Dismiss Count I to the
extent it advances a harassment or hostile work environment claim. The Court grants
defendants’ Motion to Dismiss Count III. The Court grants defendants’ Motion for Summary
Judgment regarding Count I. And the Court dismisses Counts II, IV, and V for lack of subject-
matter jurisdiction. A separate order consistent with this decision accompanies this
memorandum opinion.
________________________ DABNEY L. FRIEDRICH United States District Judge Date: September 11, 2018