UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
__________________________________________ ) SELENA P. HUTCHINSON, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-0718 (ESH) ) ERIC HOLDER, ) ) Defendant. ) __________________________________________)
MEMORANDUM OPINION
Plaintiff Selena Hutchinson has sued defendant, the United States Department of Justice
(“DOJ”), for discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e-2000e-17, and the Civil Rights Act of 1991 (“CRA”), 42 U.S.C. §
1981a. The defendant now moves for partial dismissal of Ms. Hutchinson’s claims or, in the
alternative, partial summary judgment. For the reasons stated herein, the motion will be granted
in part and denied in part.
BACKGROUND
I. FACTUAL HISTORY
Until August 1, 2009, plaintiff Selena Hutchinson was a GS-15 Computer Scientist in the
Office of the Chief Technology Officer (“OCTO”) Foreign Terrorist Tracking Task Force
(“FTTTF”), Information Technology Support Unit (“ITSU”) of the Federal Bureau of
Investigation (“FBI”).1 (Compl. ¶ 5.) She had been employed by the FBI since March 25, 1990,
1 On August 1, 2009, Ms. Hutchinson left the FBI to join the Department of Homeland Security. (Pl.’s Opp’n to Def.’s Mot. to Dismiss in Part Or, Alternatively, for Summ. J. In Part [“Pl.’s Opp’n”] at 1-2.) when she began working as a GS-13 Computer Equipment Analyst. (Id. ¶ 14.) She was
promoted to GS-14 in 1991 and to GS-15 in 1995. (Id. ¶ 15.) Ms. Hutchinson alleges that she
achieved the rank of GS-15 Unit Chief with supervisory responsibilities.2 (Id.; Pl.’s Opp’n at 2.)
Until his retirement in December 2005, Ms. Hutchinson’s first line supervisor was Section Chief
Mark Tanner, Director of the FTTTF. (Compl. ¶ 18.) At that time, Jerome Israel, Chief
Technology Officer (“CTO”), OCTO, Office of the Chief Information Officer (“OCIO”), became
Ms. Hutchinson’s first line supervisor. (Id.)
On September 5, 2005, Mr. Israel hired Timothy Goodwin as a GS-15 Supervisory IT
Specialist at the FBI. (Id. ¶ 19.) Mr. Goodwin was then promoted to Acting Section Chief, a
position that plaintiff alleges was not offered to her or posted for competition, despite her
previous experiences as Acting Section Chief under Mr. Tanner. (Id.) Mr. Goodwin became
Ms. Hutchinson’s first line supervisor. (Id. ¶ 21.) Ms. Hutchinson claims that around this time,
Mr. Israel began to question Ms. Hutchinson’s status as Unit Chief, and on January 9, 2006, Mr.
Israel informed plaintiff that she was not, in fact, a Unit Chief. (Id. ¶ 20.) On January 11, 2006,
Mr. Goodwin gave Ms. Hutchinson a new Performance Plan, indicating that she no longer had
supervisory responsibilities and informed two of Ms. Hutchinson’s subordinate managers that
Ms. Hutchinson was no longer their supervisor and that they were to report to Mr. Goodwin. (Id.
¶¶ 22-23.) That same day, Ms. Hutchinson initiated informal contact with the FBI’s Equal
Employment Opportunity (“EEO”) office. (Id. ¶ 25.)
2 Defendant maintains that Ms. Hutchinson “never formally” held the position of Unit Chief or Acting Unit Chief within the FTTTF. (Def.’s Statement of Undisputed Facts ¶¶ 6-7.) For purposes of deciding defendant’s motion to dismiss, the Court presumes plaintiff’s factual allegations to be true. See, e.g., Maljack Prods., Inc. v. Motion Picture Ass’n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995).
2 Ms. Hutchinson claims that starting in late 2005, the FBI, primarily through the actions of
Mr. Israel, Mr. Goodwin, and Richard Chandler, who was hired to replace Mr. Goodwin when he
left the FBI in July 2007, discriminated against her based on her race and sex, subjected her to a
hostile working environment, and retaliated against her for contacting the EEO office. (Id. ¶¶ 88,
91, 94-97, 100.) Specifically, Ms. Hutchinson alleges that the defendant repeatedly selected
white and/or male individuals who had not engaged in protected activity for promotional
positions without competition (id. ¶¶ 19, 36, 46-47, 61-62, 70, 73, 75); effectively demoted
plaintiff, replaced her with white males, removed her responsibilities, and prevented her from
working on projects to which she had previously contributed (id. ¶¶ 22-23, 40-43, 67-68, 71, 80);
undermined plaintiff’s authority and assigned her menial duties (id. ¶¶ 23, 42-43, 80); failed to
select her for a Section Chief position for which she was one of the best qualified candidates (id.
¶ 36); and gave her undeservedly low performance ratings. (Id. ¶¶ 28, 44, 81, 83, 85). Ms.
Hutchinson also contends that the FBI discriminated and retaliated against her by denying her
awards and recognition she had earned (id. ¶¶ 34); forcing her to switch offices (id. ¶¶ 24, 76,
78-79); firing contractors assigned to her projects (id. ¶ 37); excluding her from various meetings
(id. ¶ 42, 82); and harassing and humiliating her via email and, on one occasion, in person. (Id.
¶¶ 30, 33, 45, 55, 66-67).
In 2007, Ms. Hutchinson was investigated by the Office of Professional Responsibility
(“OPR”) after she was accused of authoring three letters of recommendation on FBI letterhead
using the title “Unit Chief” or “Acting Section Chief” when she was not entitled to use either
designation. (Id. 48-54, 63-64.) Ms. Hutchinson maintains that the initiation of the OPR
investigation, purported false accusations about plaintiff during the investigation, and the
unauthorized search of her computer to obtain copies of the letters at issue also constitute
3 discrimination and retaliation. (Id. ¶¶ 88, 91, 101.) Plaintiff alleges that the discrimination and
retaliation continued between July 2007, when Mr. Chandler became her first line supervisor,
and her departure from the FBI in August 2009. (Id. ¶¶ 72-82.) In particular, Ms. Hutchinson
states that despite her seniority, Mr. Chandler refused to assign her responsibility, failed to invite
her to staff meetings, did not provide her with a Blackberry, infrequently engaged her directly
and instead communicated with her through his other subordinates, and did not ask Ms.
Hutchinson to act in his absence. (Id. ¶ 82.) She also alleges that Mr. Chandler provided her
with unjustifiably poor performance ratings and failed to acknowledge her successes, including
her 30 Year Government Service Certificate. (Id. ¶¶ 84-86.) In sum, the complaint lists dozens
of acts that plaintiff claims constituted a hostile work environment,3 as well as alleged discrete
acts of discrimination4 and retaliation.5
3 Ms. Hutchinson does not attempt to segregate those events she claims constitute a hostile work environment from discrete acts of discrimination and/or retaliation. Count III of the complaint incorporates all of the acts described in the complaint and alleges that they constitute a “persistent pattern of severe or pervasive harassment” which “created a hostile environment for Plaintiff in the workplace.” (Compl. ¶ 94.) 4 The complaint lists numerous acts of alleged discrimination and retaliation. Counts I and II (sex and race discrimination) summarize these acts as “repeatedly selecting white males who had not engaged in protected activity in positions over Plaintiff without competition, effectively demoting Plaintiff, removing Plaintiff’s supervisory duties, removing Plaintiff from her office and replacing her with a white male, informing her subordinates that she was no longer their supervisor, denying Plaintiff opportunities to compete for promotional positions, not selecting or recommending Plaintiff for promotional positions, denying her awards and recognition, removing Plaintiff’s Project Manager responsibilities, giving Plaintiff poor ratings, assigning her menial work, harassing Plaintiff about sick leave, and initiating an OPR investigation.” (Compl. ¶¶ 88, 91.) 5 Count IV summarizes the defendant’s alleged retaliatory acts as “repeatedly selecting whites and/or males who had not engaged in protected activity for positions over Plaintiff without competition, denying Plaintiff opportunities to compete for promotional positions, not selecting or recommending Plaintiff for promotion, denying Plaintiff awards, removing Plaintiff’s Project Manager responsibilities, giving Plaintiff poor ratings, and initiating an OPR investigation.” (Compl. ¶ 100.)
4 II. PROCEDURAL HISTORY
Ms. Hutchinson’s initial contact with the EEO office occurred on January 11, 2006.
(Compl. ¶¶ 7, 25.) She received a Notice of Right to File a Discrimination Complaint on
February 27, 2007, and she filed a formal complaint of discrimination against defendant on
March 3, 2007. (Id. ¶¶ 8-9.) After allowing plaintiff to amend her EEO complaint several times,
the EEO office accepted the following issues for investigation:
Whether complainant was subjected to harassment (hostile work environment) based on race (Black), sex (female) and reprisal for her prior participation in EEO protected activity, including, but not limited to the following:
(1) in January 2006, she was denied the opportunity to compete for the Acting Section Chief position while management appointed a white male without competition;
(2) on January 9, 2006, she was stripped of her duties as a Unit Chief and replaced by a less-qualified white male;
(3) on January 11, 2006, she was presented a Performance Plan without supervisory responsibilities and removed from her office;
(4) in September 2006, she received a demeaning e-mail accusing her of mismanaging a project;
(5) in February 2007, her development contractors were “let go;” she believes to ensure her failure;
(6) on March 29, 2007, she was advised that she was being removed as the Project Manager on two projects, and on April 2, 2007, she was assigned duties with less responsibility and skill;
(7) on April 2, 2007, she received a performance rating of Successful, and advised that she needed improvement in 2-4 areas; she believes that her supervisor made false accusations about her performance, including accusing her of having communication problems and sharing detailed project information with executives;
(8) on April 4, 2007, she received an e-mail from her supervisor complaining that she had not communicated her need for sick leave directly to him;
5 (9) on April 23, 2007, she became aware that she was the subject of an Office of Professional Responsibility investigation;
(10) on July 5, 2007, she became aware that she was denied the opportunity to compete for the Unit Chief position while management appointed a white male without competition;
(11) on April 9, 2007, she was denied the opportunity to compete for the Unit Chief position of a Support Unit while management appointed a white male to the position, without competition; and
(12) [w]hether complainant was subjected to harassment (hostile work environment) based on race (Black), sex (female) and reprisal for her prior participation in EEO protected activity when on November 7, 2007, she received a Minimally Successful rating on her Performance Appraisal Report.
(Decl. of Steven J. Parker [“Parker Decl.”], Ex. A, at 1, 3-5.) On April 21, 2008, Ms.
Hutchinson requested a hearing before an Administrative Judge (“ALJ”) of the U.S. Equal
Employment Opportunity Commission (“EEOC”). (Compl. ¶ 10.) Plaintiff received a copy of
the Report of Investigation (“ROI”) generated by the EEO office on June 3, 2008. (Id. ¶ 11.)
Ms. Hutchinson then moved to amend her claims before the Administrative Judge on July 1,
2008. (Pl.’s Opp’n at 14; Parker Decl. ¶ 3.) On July 7, 2008, ALJ Richard Furcolo granted Ms.
Hutchinson’s motion to add the following claim to her EEOC charge: “[w]hether Complainant
was discriminated against and subjected to harassment (hostile work environment) based on race,
sex, and in reprisal for her prior participation in EEO protected activity when she was not
selected for the position of Section Chief, IT Manager (Systems Development Section), vacancy
no. 20-2007-0012.” (Parker Decl., Ex. B.) In February 2009, plaintiff withdrew her request for
a hearing and asked that the case be remanded to the FBI for a Final Agency Decision, which
request was granted on March 2, 2009. (Compl. ¶ 12.) Ms. Hutchinson filed the instant
complaint on April 20, 2009.
6 The defendant has moved to dismiss portions of Ms. Hutchinson’s complaint.6
Specifically, the FBI seeks dismissal of various discrete claims of disparate treatment based on a
failure to exhaust, claims of discrimination and/or retaliation based on conduct that defendant
maintains does not amount to an adverse employment action, and plaintiff’s hostile work
environment claim. (Def.’s Reply Mem. in Support of Def.’s Mot. to Dismiss In Part or,
Alternatively, For Summ. J. in Part [“Def.’s Reply”] at 1.) The FBI argues that plaintiff failed to
exhaust administrative remedies with respect to her claim of non-selection for the Senior
Executive Service (“SES”) position of Section Chief, IT Manager (Systems Development
Section), which was added to her EEO case by ALJ Furcolo.7 (Def.’s Mot. at 12.) Defendant
further contends that certain of the incidents alleged by Ms. Hutchinson as discrimination are not
independently actionable as claims of disparate treatment or retaliation under Title VII. (Id. at
24-27.) Specifically, the FBI argues that allegations regarding Ms. Hutchinson’s low
performance appraisals, removal of Ms. Hutchinson’s supervisory duties and Project Manager
responsibilities, assignment of menial work, harassment of plaintiff regarding her sick leave,
initiation of an OPR investigation, denial of awards and recognition, and messages to
subordinates that plaintiff was no longer their supervisor do not independently support claims of
discrimination or retaliation. (Id. at 25.) Defendant also maintains that plaintiff’s complaint
does not, as a matter of law, set forth a hostile work environment claim. (Id. at 17.)
6 In the alternative, the defendant seeks partial summary judgment. 7 The defendant also challenges three additional instances of plaintiff’s non-selection for promotional positions identified in the complaint. (Compl. ¶¶ 39, 57, 77; Def.’s Mot. at 12.) Ms. Hutchinson concedes, however, that these claims were not included in her EEO case and are therefore not “separate actionable claims.” (Pl.’s Opp’n at 16.) The Court therefore need only consider the claim added to Ms. Hutchinson’s EEO case by ALJ Furcolo.
7 ANALYSIS
I. LEGAL STANDARDS
A. Rule 12(b)(6)
Despite some confusion in this jurisdiction regarding “whether a failure to exhaust
administrative remedies is properly brought in a Rule 12(b)(1) motion, as a jurisdictional defect,
or in a Rule 12(b)(6) motion for failure to state a claim,” recent cases “favor treating failure to
exhaust as a failure to state a claim.” Hansen v. Billington, No. 08-1133, 2009 WL 2392895, at *
4 (D.D.C. Aug. 5, 2009) (listing cases); see also Kilby-Robb v. Spellings, 309 Fed. Appx. 422,
423 n.1 (D.C. Cir. 2009) (“[T] he mandatory exhaustion requirement is not jurisdictional.”). In
deciding a Rule 12(b)(6) motion, a court may consider only “the facts alleged in the complaint,
documents attached as exhibits or incorporated by reference in the complaint, and matters about
which the Court may take judicial notice.” Hansen, 2009 WL 2392895, at *4 (quoting Gustave-
Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002)).
As the Supreme Court recently held in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), “[t]o
survive a motion to dismiss [under Rule 12(b)(6) of the Federal Rules of Civil Procedure], a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A complaint must be dismissed under Rule 12(b)(6) if it consists only of “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.” Id.
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops
short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct.
at 1949 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted)). The allegations
in plaintiff’s complaint are presumed true at this stage and all reasonable factual inferences must
8 be construed in the plaintiff’s favor. Maljack, 52 F.3d at 375. “However, ‘the court need not
accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the
complaint.’” Hughes v. Abell, 634 F. Supp. 2d 110, 113 (D.D.C. 2009) (quoting Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
B. Rule 56
Under Federal Rule of Civil Procedure 56, a motion for summary judgment shall be
“rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “[A]n added measure of ‘rigor,’ or ‘cautio[n],’ is appropriate in applying this
standard to motions for summary judgment in employment discrimination cases. Courts
reviewing such motions must bear in mind that a factfinder could infer intentional discrimination
even in the absence of crystal-clear documentary evidence filed at the summary judgment stage.”
Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997) (en banc) (citations omitted).
C. Title VII and Section 1981
Under Title VII of the Civil Rights Act of 1964, it is an “unlawful employment practice”
for employers “to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin,” 42 U.S.C. § 2000e-2(a)(1), or “to limit, segregate, or classify his employees
... in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee,” 42 U.S.C. § 2000e-
2(a)(2), based on a protected characteristic. Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir.
2002). It is also unlawful to retaliate against an employee because she “has opposed any practice
9 made an unlawful employment practice” by Title VII or because she “has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing”
under Title VII. Id. § 2000e-3(a). As amended by the Civil Rights Act of 1991, Section 1981
“prohibits racial discrimination in the ‘making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual
relationship.’” Pollard v. Quest Diagnostics, 610 F. Supp. 2d 1, 17-18 (D.D.C. 2009) (quoting
42 U.S.C. § 1981(b)). Like Title VII, Section 1981 also encompasses claims of retaliation.
CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951, 1961 (2008).
To bring a successful claim under Title VII or Section 1981, a plaintiff “must
demonstrate by a preponderance of the evidence that the actions taken by her employer were
‘more likely than not based on the consideration of impermissible factors’ such as race, ethnicity,
or national origin.” Pollard, 610 F. Supp. 2d at 18 (quoting Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981)). A plaintiff may prove her claim with direct evidence or,
absent direct evidence, she may “indirectly prove discrimination by establishing a prima facie
case under the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).” Brady v. Livingood, 456 F. Supp. 2d 1, 6 (D.D.C. 2006); see also Jenkins
v. Nee, 640 F. Supp. 2d 47, 49 (D.D.C. 2009) (applying McDonnell Douglas framework to §
1981 case). “[A] plaintiff-employee carries the initial burden of production and must establish a
prima facie case of discrimination.” Id. “To state a prima facie case of disparate treatment
discrimination under [Title VII or Section 1981, a] plaintiff must establish that (1) [s]he is a
member of a protected class, (2) [s]he suffered an adverse employment action, and (3) the
unfavorable action gives rise to an inference of discrimination (that is, an inference that his
employer took the action because of h[er] membership in the protected class).” Forkkio, 306
10 F.3d at 1130. To survive a motion to dismiss, a plaintiff filing an employment discrimination
complaint need not establish a prima facie case of discrimination. Ware v. Nicklin Assocs., Inc.,
580 F. Supp. 2d 158, 164 (D.D.C. 2008); see also Swierkiewicz v. Sorema, 534 U.S. 506, 511
(2002). Courts can, however, explore a plaintiff’s prima facie case at the dismissal stage to
determine “whether the plaintiff can ever meet [her] initial burden to establish a prima facie
case.” Rochon v. Ashcroft, 319 F. Supp. 2d 23, 29 (D.D.C. 2005), rev’d on other grounds sub
nom. Rochon v. Gonzalez, 438 F.3d 1211, 1219 (D.C. Cir. 2006); see also Ervin v. Howard
Univ., 562 F. Supp. 2d 58, 70 (D.D.C. 2008) (“A plaintiff is not required to plead a prima facie
case of hostile work environment in the complaint; however, the alleged facts must support such
a claim.”).
II. EXHAUSTION OF TITLE VII CLAIMS
The FBI argues that Ms. Hutchinson failed to exhaust administrative remedies with
respect to her non-selection for the SES position of Section Chief, IT Manager position in the
Systems Development Section (vacancy announcement no. 20-2007-0012). “[A] timely
administrative charge is a prerequisite to initiation of a Title VII action in the District Court.”
Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985). An employee of the federal
government complaining of discrimination must “initiate contact” with an EEO counsel within
45 days of the allegedly discriminatory action or, in the case of a personnel action, within 45
days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). If the matter is not resolved
informally, the complainant may file a formal complaint against the agency, which the agency
must investigate within 180 days of filing. 29 C.F.R. §§ 1614.105(d), 106(e)(2), 108(e). A
complainant must file her formal charge within 180 or 300 days after the alleged unlawful
employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). “Each discrete discriminatory act
11 starts a new clock for filing charges alleging that act” and “[t]he charge, therefore, must be filed
within the 180- or 300-day time period after the discrete discriminatory act occurred.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Once the agency investigation
concludes, the employee has the right to 1) request a hearing and decision from an administrative
judge, or 2) request an immediate final decision from the agency. 29 C.F.R. § 1614.108(f). The
employee may appeal a decision of the administrative judge or the agency to the EEOC or file a
civil action in federal district court. 42 U.S.C. § 2000e-16(c); 29 C.F.R. §§ 1614.401, 1614.407.
In filing a civil action in district court following an EEO complaint, an employee may
only file claims that are “like or reasonably related to the allegations of the [EEO] charge and
grow[] out of such allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)
(quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). “At a minimum, the
Title VII claims must arise from ‘the administrative investigation that can reasonably be
expected to follow the charge of discrimination.’” Id. (quoting Chisholm v. U.S. Postal Serv.,
665 F.2d 482, 491 (4th Cir. 1981)). The Title VII exhaustion requirement also means that
“discrete discriminatory acts are not actionable if time barred, even when they are related to acts
alleged in timely filed charges.” Morgan, 536 U.S. at 113.
Defendant argues that plaintiff failed to exhaust her claim of non-selection for the Section
Chief, IT Manager position in the Systems Development Section because although Ms.
Hutchinson was permitted to amend her administrative EEO complaint and add the non-selection
claim, ALJ Furcolo erred in allowing her to do so. (Def.’s Mot. at 13.) Specifically, defendant
argues that the non-selection claim was untimely because plaintiff alleges that she was notified
of her non-selection in February 2008 but did not contact an EEO counselor within 45 days of
receiving this information as required by EEO regulations. (Id.) Further, plaintiff did not move
12 to amend her complaint until July 2008, nearly a year after the selection decision and five
months after plaintiff was on notice of the decision. (Id. at 13-14.) To the extent that the EEOC
regulations allow amendments to complaints at any time prior to the conclusion of an
investigation, provided that any added claims are “like or related to those raised in the
complaint,” 29 C.F.R. 1614.106(d), the FBI contends that Ms. Hutchinson’s non-selection could
not reasonably have been expected to grow out of the original, unamended complaint. (Def.’s
Mot. at 14.) Moreover, defendant argues that plaintiff’s motion to amend the complaint came
after the conclusion of the investigation. (Id.) Accordingly, defendant asks the Court to
disregard ALJ Furcolo’s order and find that plaintiff’s claim has not been properly exhausted.
(Id. at 13.)
The Court declines to dismiss plaintiff’s non-selection claim for failure to exhaust her
administrative remedies. A complainant who has filed an EEO complaint “is authorized under
title VII . . . to file a civil action in an appropriate United State District Court” 180 days after
filing the EEO complaint if there has been no appeal and no final action taken. 29 C.F.R. §
1614.407; see also 42 U.S.C. § 2000e-16(c). A Title VII lawsuit is “limited in scope to claims
that are like or reasonably related to the allegations of the [EEO complaint].” Park, 71 F.3d at
907 (internal quotations omitted). Here, Ms. Hutchinson’s amended EEOC complaint included
the exact claim defendant now contends was not exhausted at the administrative level: plaintiff’s
non-selection for the Section Chief position. (Parker Decl., Ex. B.) The instant action was filed
over 180 days after the original charge was filed—indeed, it was filed over 180 days after all
amendments to the charge were made. (Id.; Compl. ¶¶ 9.) Defendant cites no law to support its
contention that this Court may overturn the decision of ALJ Furcolo to amend Ms. Hutchinson’s
13 complaint to add her non-selection. The claim was included in the EEOC charge, and as such, it
is properly before this Court.
But even assuming arguendo that the Court could set aside the ALJ’s ruling and review
the amendment of plaintiff’s complaint anew, there are genuine issues of fact regarding the
timeliness of Ms. Hutchinson’s non-selection claim.8 Section 1614.105(a)(2) states that the
“agency or Commission shall extend the 45-day time limit” for contacting an EEO counselor
when the complainant “shows that . . . she did not know and reasonably should not have []
known that the discriminatory matter or personnel action occurred.”9 29 C.F.R. §
1614.105(a)(2). In determining whether the time limit should be tolled under this regulation, the
Court applies the “reasonable suspicion” standard, which “starts the time limit [for initiating
contact with the EEO office] when the plaintiff has a reasonable suspicion that [s]he has been the
victim of discrimination.” Aceto v. England, 328 F. Supp. 2d. 1, 7 (D.D.C. 2004); see also
8 Assuming that Ms. Hutchinson’s non-selection claim was timely, the Court need not address the issue of whether it was “like or related to” her other claims. 29 C.F.R. § 1614.106(d). If Ms. Hutchinson’s claim were timely, but ALJ Furcolo had rejected her motion to add it to her complaint because it was not “like or related to” her other claims, presumably Ms. Hutchinson could have initiated the process of filing a new claim against the FBI based on her non-selection. However, once the claim was added to the EEOC charge by ALJ Furcolo, Ms. Hutchinson reasonably relied on his decision in not contacting an EEO counselor to start the process of bringing a new claim, as it was already included in her existing case against the agency. As such, even if this Court were to find that Ms. Hutchinson’s non-selection claim is not “like or related to” her other claims, she arguably might have had the ability to raise it as a separate claim under the principle of equitable tolling. See Jarrell, 753 F.2d at 1092 (finding that failure to comply with administrative requirements under Title VII “may be excused if it is the result of justifiable reliance on the advice of another government officer”). 9 Tolling under this regulation is distinct from the common law doctrine of equitable tolling, which can also apply to Title VII claims. Harris v. Gonazales, 488 F.3d 442, 444 (D.C. Cir. 2007) (holding that plaintiff who makes a showing under § 1614.105(a)(2) “need not separately satisfy the common law standard for equitable tolling”). The common law standard for equitable tolling, “which is granted only in ‘extraordinary and carefully circumscribed circumstances,’” is “more demanding” than the showing required by § 1614.105(a)(2). Id. (quoting Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998)).
14 Hyson v. Boorstin, No. 82-2397, 1982 WL 155452, at *1 (D.D.C. Dec. 23, 1982) (time starts
running when “plaintiff obtains information that gives [her] a ‘reasonable suspicion’ that [s]he
has been the victim of discrimination”). Ms. Hutchinson contends that she “did not know and
reasonably should not have known” that her non-selection for Section Chief was discriminatory
before she received the ROI in June 2008 because she was unaware of the involvement of Mr.
Israel in the selection process until then. (Pl.’s Opp’n at 13-14). Taking this allegation as true
and construing reasonable inferences in her favor, as must be done at this stage, Maljack, 52 F.3d
at 375, the Court cannot conclude that Ms. Hutchinson had or should have had a reasonable
suspicion of discrimination prior to her receipt of the ROI. See Harris, 488 F.3d at 445
(reversing summary judgment where reasonable jury could conclude that plaintiff lacked notice
of time limits under § 1614.105(a)(2)). Accordingly, defendant’s motion to dismiss plaintiff’s
non-selection claim for failure to exhaust is denied.
III. DISCRIMINATION CLAIMS
Defendant argues that certain of Ms. Hutchinson’s sex and race discrimination claims
must be dismissed because the acts do not constitute “adverse employment action[s]” under Title
VII or Section 1981. (Def.’s Mot. at 24-25.) “An ‘adverse employment action’ is a ‘significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing significant change in benefits.’”
Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (quoting Taylor v. Small, 350 F.3d
1286, 1293 (D.C. Cir. 2003)). To establish an adverse action in the absence of diminution of pay
or benefits, “[a]n employee must ‘experience[ ] materially adverse consequences affecting the
terms, conditions, or privileges of employment or future employment opportunities such that a
15 reasonable trier of fact could find objectively tangible harm.’” Id. (quoting Forkkio, 306 F.3d at
1131); see also Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002).
Defendant challenges Ms. Hutchinson’s allegations that the following were adverse
actions: the elimination of her supervisory and managerial responsibilities and the assignment of
menial work; informing her subordinates that she was no longer their supervisor; her removal
from her office; the denial of awards and recognition; the receipt of poor evaluations; harassment
regarding her sick leave; and her referral for an OPR investigation.10 (Def.’s Mot. 24-25; Compl.
¶¶ 88, 91.) The Court will address each of these claims seriatim.
A. Removal of Supervisory Responsibilities and Assignment of Menial Work
“[R]eassignment with significantly different responsibilities . . . generally indicates an
adverse action.” Forkkio, 306 F.3d at 1131 (citation omitted). Here, plaintiff maintains that she
was removed from her position “as Project Manager of e-Guardian” and was placed “in a
significantly diminished capacity on the project.” (Compl. ¶ 40.) She alleges that after her
removal, she stopped receiving assignments “commensurate with her grade, skills, and
knowledge” and “was not given any bona fide responsibilities or assigned duties.” (Id. ¶ 42.)
She also was told she could no longer “task or direct” contract staff whom she had supervised
previously. (Id. ¶¶ 20, 67.) Plaintiff argues that she was “effectively demot[ed]” as a result of
these changes. (Id. ¶¶ 88, 91.) Given that Ms. Hutchinson alleges “significant[]” changes in her
responsibilities, including the abrogation of all of her supervisory duties, she has sufficiently
claimed adverse employment actions for purposes of surviving a motion to dismiss. See Ohal v.
10 Defendant does not argue that its selection of Mr. Goodwin and Mr. Chandler over plaintiff without competition, its alleged failure to promote Ms. Hutchinson, or its non-selection of plaintiff for the Section Chief, IT Manager position in the Systems Development Section should be dismissed on the grounds that these alleged acts do not constitute adverse employment actions. (Def.’s Mot. at 7, 24-25.)
16 Bd. of Trustees of Univ. of Dist. of Columbia, 100 Fed.Appx. 833, 834 (D.C. Cir. 2004) (“[A]
material reduction of supervisory responsibilities, no less than a total deprivation of such
responsibilities, can amount to an adverse employment action.”).
B. Informing Subordinates of Plaintiff’s Changed Position
While plaintiff need not allege a “readily quantifiable loss” in order to claim she suffered
an adverse employment action, “not everything that makes an employee unhappy is an actionable
adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). Here, plaintiff alleges
that defendant informed her former subordinates that plaintiff was not the Unit Chief and that
they were no longer to report to her. (Compl. ¶¶ 23.) While this incident may have been
embarrassing or otherwise unpleasant to Ms. Hutchinson, she makes no allegation that the
defendant’s act of telling plaintiff’s co-workers that she had been effectively demoted
“significantly change[d] [her] employment status,” Taylor, 350 F.3d at 1293, or materially
altered the “terms, conditions, or privileges” of her job. Forkkio, 306 F.3d at 1131. “Events that
merely have an effect on plaintiff’s work environment are legally insufficient.” Brantley v.
Kempthorne, No. 06-1137, 2008 WL 2073913, at *5 (D.D.C. May 13, 2008), aff’d, No. 08-5210,
slip. op. (D.C. Cir. Dec. 23, 2008). Similarly, “[p]urely subjective injuries, such as . . . public
humiliation or loss of reputation are not adverse actions.” Fokkio, 306 F.3d at 1130-31 (citations
omitted). As such, Ms. Hutchinson has failed to allege an adverse employment action with
respect to this claim, and defendant’s motion to dismiss it is granted.
C. Removal of Plaintiff From Offices
Ms. Hutchinson alleges that when Mr. Goodwin was appointed Acting Section Chief in
January 2006 and became her supervisor, she was told to “vacate her office” for him. (Compl. ¶
24.) She also alleges that in October 15, 2007, she was again asked to move to a different office,
17 one she describes as a “cubicle with a door.” (Compl. ¶ 79.) Yet, plaintiff makes no allegations
that either of these moves “affect[ed] the terms, conditions, or privileges of employment . . . such
that a reasonable trier of fact could find objectively tangible harm.” Fokkio, 306 F. 3d at 1131
(emphasis added); see also Weber v. Hurtgen, 297 F. Supp. 2d 58, 68 (D.D.C. 2003) (relocation
to less desirable office did not “rise[] to a level of tangible harm”), rev’d on other grounds sub
nom. Weber v. Battista, 494 F.3d 179 (D.C. Cir. 2007). She does not allege that she had no
office, see Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987), or that her new office
space affected her ability to perform her responsibilities. See Gill v. Mayor of Dist. of Columbia,
No. 07-64, 2007 WL 1549100, at * 4 (D.D.C. May 25, 2007). Although Ms. Hutchinson’s new
offices may have been less convenient or desirable than her previous offices, “[m]ere
inconveniences will not rise to the level of adverse action.” Childers v. Slater, 44 F. Supp. 2d 8,
19 (D.D.C. 1999), vacated in part on other grounds, 197 F.R.D. 185 (D.D.C. 2000).
Accordingly, Ms. Hutchinson has failed to state a claim for which relief could be granted as to
her loss of certain office space.
D. Denial of Awards and Recognition
Plaintiff claims that she was subject to race and sex discrimination because she was
“den[ied] . . . awards and recognition.” (Compl. ¶¶ 88, 91.) Specifically, she alleges that in
October 2006, she recommended “an incentive award for the Guardian Project team; however,
neither Plaintiff’s team nor Plaintiff received an award.” (Compl. ¶ 34.) Ms. Hutchinson also
contends that although she received her “30 Year Government Service Certificate,” Mr. Chandler
did not present it to her or recognize her achievement during a Unit meeting as he did for another
employee. (Compl. ¶ 86.) Yet, Ms. Hutchinson did not make either of these claims in her
18 formal EEOC charge11 (Parker Decl., Ex. A at 1-5; Ex. B; see also Def.’s Mot. at 25 n.9), nor are
such claims “like or reasonably related to” the allegations in that charge. Park, 71 F.3d at 907.
Ms. Hutchinson was required to raise these claims administratively prior to bringing them in her
Title VII action. 42 U.S.C. § 2000e-5(f)(1); see also Morgan, 536 U.S. at 114 (holding that
"[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a
separate actionable ‘unlawful employment practice’” for which an administrative charge must be
filed). Because she did not, defendant’s motion to dismiss these claims is granted.
E. Poor Performance Ratings
“[T]he effect of a poor evaluation is ordinarily too speculative to be actionable.”
Douglas, 559 F.3d at 553. Performance evaluations are likely to be “‘[i]nterlocutory or mediate
decisions having no immediate effect upon employment,’” and the “result of an evaluation is
often speculative, making it difficult to remedy.” Russell, 257 F.3d at 818 (quoting Mungin v.
Katten Muchin & Zavis, 116 F.3d 1549, 1556 (D.C. Cir. 1997)). However, when the evaluation
determines some objectively tangible benefit or consequence, it may constitute an adverse
employment action. See, e.g., Weber, 494 F.3d at 185-86 (performance evaluation that resulted
in loss of performance award was adverse); Douglas, 559 F.3d at 553 (“If [an] evaluation
determines [a] bonus . . . then the employee may show the evaluation caused an objectively
tangible harm.”); see also Taylor, 350 F.3d at 1293 (“[P]oor performance evaluations are not
necessarily adverse actions and they should not be considered such if they did not affect the
employee's grade or salary.”) (internal quotations omitted) (emphasis added).
11 Indeed, as Ms. Hutchinson received her 30 Year Government Service Certificate over two years after she filed her EEO complaint, the complaint could not possibly have included this allegation. (Compl. ¶¶ 9, 86.)
19 Here, Ms. Hutchinson states that she received poor or critical performance appraisals in
August 2006, April 2007, and November 2007.12 (Compl. ¶¶ 28, 44, 81.) She also claims that
she applied, but was not selected, for at least four positions within the FBI between November
2006 and October 2007. (Id. ¶¶ 36, 39, 57, 77.) She further alleges that she was denied awards
and recognition during this time period, including an incentive award in December 2006. (Id. ¶
34.) As discussed, in deciding a motion to dismiss, the Court looks to a plaintiff’s prima facie
case to explore whether she can, not whether she does, “meet [her] initial burden to establish a
prima facie case.” Rochon, 319 F. Supp. 2d at 29. If Ms. Hutchinson can show that her poor
performance reviews resulted in her non-selection for promotions or her failure to receive awards
and recognition, then she will have demonstrated that they were adverse employment actions.
As such, the Court cannot find that she cannot establish a prima facie case, and defendant’s
motion with respect to Ms. Hutchinson’s ratings is denied.
F. Sick Leave Harassment
Ms. Hutchinson claims that she was discriminated against on the basis of her race and sex
when she was “singled out for disparate treatment with respect to requesting sick leave.”
(Compl. ¶¶ 88, 91.) Specifically, plaintiff alleges that while “normal office procedure for calling
in sick involve[d] notifying a co-worker of [an] unanticipated absence” (id. ¶ 45), she was told
by Mr. Goodwin to communicate her need for sick leave directly to him. (Id.; see also Parker
12 Ms. Hutchinson also alleges that she received poor performance reviews in November 2008 and March 2009. (Compl. ¶¶ 83, 85.) Yet, neither of these acts was contained in plaintiff’s amended EEO complaint. These evaluations, occurring over a year after the last performance appraisal mentioned in the charge and months after the charge was last amended, could not have been “within the scope of the administrative investigation” that reasonably followed Ms. Hutchinson’s EEO complaint. Park, 71 F.3d at 907; see also Morgan, 536 U.S. at 114. As these reviews were not raised administratively, plaintiff cannot now assert them as discrete claims of discrimination.
20 Decl., Ex. D.)13 While Mr. Goodwin’s request that Ms. Hutchinson “notify [him] of any leave
requests, meetings, ect [sic] - not [her] coworkers” may have been an annoyance to plaintiff, it
does not rise to the level of objectively tangible harm. See, e.g., Williams v. Dodaro, 576 F.
Supp. 2d 72, 88-89 (D.D.C. 2008) (letter reminding plaintiff that she was required to keep
supervisor apprised of information did not constitute adverse employment action where letter
“did not indicate that it was a reprimand, was not placed in [plaintiff’s] personnel file, and it did
not lead to any disciplinary action levied against [plaintiff]”); see also Cochise v. Salazar, 601 F.
Supp. 2d 196, 201 (D.D.C. 2009) (letters of counseling or warning without attendant effects on
employment are not “materially adverse”). As such, Mr. Goodwin’s email does not constitute an
adverse employment action, and defendant’s motion to dismiss this claim is granted.
G. OPR Investigation
Ms. Hutchinson alleges that in April 2007, she was the “subject of an administrative
inquiry investigating whether [she] misrepresented her position” that remained opened until at
least June 20, 2007. (Compl. ¶¶ 50-64.) She also claims that “[w]hen the [OPR] has an open
investigation, that information is provided to the SES Career Board and may impact the subject’s
ability to obtain a promotion.” (Id. ¶ 52.) According to Ms. Hutchinson’s complaint, she “had
an application pending for a promotion for an SES position at the time this investigation was
initiated.” (Id.) A mere allegation that the investigation possibly resulted in Ms. Hutchinson’s
non-selection for the SES promotion is insufficient to support a prima facie case of
discrimination at the summary judgment stage. See, e.g., Calhoun v. Johnson, No. 95-2397,
13 Because the complaint references the email Mr. Goodwin allegedly sent to Ms. Hutchinson regarding sick leave procedure, the Court may reference that email in deciding defendant’s motion to dismiss without converting the motion to one for summary judgment. Hansen, 2009 WL 2392895, at *4 (in deciding motion to dismiss, courts may reference documents “incorporated by reference in the complaint”).
21 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998) (even in discrimination cases, plaintiff must
“support her allegations by affidavits or other competent evidence”), aff’d, No. 99-5126, 1999
WL 825425, at *1 (D.C. Cir. Sept. 27, 1999). Here, however, the Court looks only to whether
Ms. Hutchinson “can ever meet [her] initial burden to establish a prima facie case.” Rochon, 319
F. Supp. at 29. If Ms. Hutchinson was not selected for the SES position because of the open
OPR investigation, the investigation had material consequences on her “future employment
opportunities” and would qualify as an adverse employment action. Douglas, 559 F.3d at 552.
As such, defendant’s motion to dismiss this claim is denied.
IV. RETALIATION CLAIMS
Defendant also contends that certain of Ms. Hutchinson’s retaliation claims must be
dismissed because none of the acts she describes constitutes an actionable “adverse employment
action” under Title VII or Section 1981. (Def.’s Mot. at 24-25.) “The anti-retaliation provision
protects an individual not from all retaliation, but from retaliation that produces an injury or
harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). To prove a
retaliation claim under Title VII, a plaintiff “generally must establish that he or she suffered (i) a
materially adverse action (ii) because he or she had brought or threatened to bring a
discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008); see also
42 U.S.C. § 2000e-3(a). A “materially adverse” action is one that would have “dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington, 548 U.S.
at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). “The issue of
whether a particular employment action was ‘materially adverse’ is fact-intensive and ‘depends
upon the circumstances of the particular case, and should be judged from the perspective of a
reasonable person in the plaintiff’s position, considering all the circumstances.’” Howard v.
22 Gutierrez, 237 F.R.D. 310, 313 (D.D.C. 2006) (quoting Burlington, 548 U.S. at 71) (internal
quotations omitted).
The FBI challenges Ms. Hutchinson’s allegations that she suffered retaliation because:
her Project Manager responsibilities were removed; she was denied awards; she was given poor
ratings; and she was subjected to an OPR investigation. (Def.’s Mot. 24-25; see also Compl. ¶
100.) Because Title VII provides broader protection for retaliation victims than for
discrimination claims, Burlington, 548 U.S. at 65, the Court need not reexamine these acts to
conclude that they may also constitute “materially adverse actions” for purposes of her
retaliation claim. See, e.g., Baloch, 550 F.3d at 1198 n.4 (“‘Adverse actions’ in the retaliation
context encompass a broader sweep of actions than those in a pure discrimination claim.”)
Accordingly, defendant’s motion to dismiss these claims is denied. However, for the denial of
awards and recognition allegations, Ms. Hutchinson’s failure to raise these claims at the
administrative level means that she cannot bring them now, either as claims of discrimination or
retaliation. See Morgan, 536 U.S. at 114. As such, defendant’s motion to dismiss this retaliation
claim is granted.
V. HOSTILE WORK ENVIRONMENT CLAIM
Finally, the FBI contends that the acts of harassment alleged by Ms. Hutchinson “are not
sufficiently extreme” to amount to a hostile work environment as a matter of law and that her
claim therefore should be dismissed. (Def.’s Mot. at 17.) To make out a prima facie case of
hostile work environment, “plaintiff must show that the alleged harassment was based on [her]
membership in a protected class, and that [her] employer knew or should have known of the
harassment and failed to take any remedial action.” Hunter v. Clinton, No. 07-1268, 2009 WL
2926775, *6 (D.D.C. Sept. 15, 2009). She must also “show that [her] employer subjected [her]
23 to ‘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, 550 F.3d at 1201 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (citations
omitted). “To determine whether a hostile work environment exists, the court looks to the
totality of the circumstances, including the frequency of the discriminatory conduct, its severity,
its offensiveness, and whether it interferes with an employee’s work performance.” Id.
Here, Ms. Hutchinson maintains that she was humiliated, falsely accused, and denigrated
over a three-year period because of her sex, race, and prior EEO activity such that her ability to
perform her job was diminished and the terms of her employment were affected. (Compl. ¶ 96.)
Her complaint lists dozens of incidents that she alleges constituted a hostile working
environment. She further alleges that she gave the FBI actual notice of the harassment but the
agency “failed to adequately investigate [her] complaint and took no remedial action.” (Id. ¶ 97.)
While the burden is on the plaintiff to adduce competent evidence and/or affidavits in support of
her claims as the case moves forward, the Court cannot conclude at this juncture that her
harassment claim should be dismissed.
CONCLUSION
For the foregoing reasons, the Court grants defendant’s motion to dismiss plaintiff’s
claims of discrimination and/or retaliation based on representations made to her co-workers,
plaintiff’s removal from her office, denial of awards and recognition, and alleged harassment
regarding her sick leave. With respect to plaintiff’s claims of discrimination and/or retaliation
based on the removal of plaintiff’s supervisory responsibilities and the assignment of menial
work, her poor performance ratings, and the OPR investigation, defendant’s motion is denied.
Defendant’s motion to dismiss plaintiff’s non-selection claim for the SES position of Section
24 Chief, vacancy number 20-2007-0012, and her hostile work environment claim is also denied.
Because the Court found it unnecessary to convert defendant’s motion to dismiss into a motion
for summary judgment, plaintiff’s motion under Rule 56(f) is denied as moot. A separate Order
will accompany this Memorandum Opinion.
_________/s/______________ ELLEN SEGAL HUVELLE United States District Judge
DATE: November 12, 2009