Jones v. Regan

• Court: District Court, District of Columbia
• Decided: March 19, 2025
• Docket: Civil Action No. 2024-2681
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENESTA JONES,

Plaintiff, v. Civil Action No. 24-2681 (JEB) LEE ZELDIN, Administrator, Environmental Protection Agency,

Defendant.

MEMORANDUM OPINION

In this Title VII action, Plaintiff Enesta Jones alleges that her employer, the

Environmental Protection Agency, discriminated and retaliated against her on the basis of race,

color, sex, and protected Equal Employment Opportunity activity. More specifically, she claims

that the EPA subjected her to a hostile work environment and denied her a performance-based

cash award. In moving to dismiss, Defendant argues that Jones’s Complaint is factually deficient

and thus fails to state a claim upon which relief can be granted. As the Court agrees, it will grant

the Motion.

I. Background

A. Factual Background

The Court, as it must at this stage, draws the facts from the Complaint, presuming them

to be true. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). Jones,

who is Black, has served as a Senior Public Affairs Specialist in the EPA’s Office of Public

Affairs (OPA) since 2004. See ECF No. 1 (Compl.), ¶¶ 1, 8. For fourteen years, her career

progressed without apparent incident. The workplace dynamic shifted, however, in June 2018,

1 when Nancy Grantham was appointed as the Principal Deputy Associate Administrator for OPA

and became Jones’s supervisor. Id., ¶ 9; ECF No. 8-1 (Mot.) at 1. According to Jones,

Grantham’s arrival marked the beginning of years of treatment that was first discriminatory and

then retaliatory. The relationship between the two further soured in August 2020, when Jones

requested compensation for duties performed outside of her scheduled work hours — a “regular

practice in the OPA . . . when necessary to get the job done.” Id., ¶¶ 8–10. Grantham “was well

aware” that such work was necessary for Jones to fulfill her responsibilities. Id., ¶ 9. Rather

than approve this request, Grantham disciplined Jones for working outside her tour of duty,

despite the fact that, according to Jones, her “white and male co-workers routinely worked

outside of their tour of duty but were never subject to disciplinary action.” Id., ¶ 10.

Plaintiff responded by filing an internal harassment complaint against Grantham in

September 2020, contending that she was being treated differently from her white and male

colleagues. Id., ¶ 11. That complaint was not resolved until July 2021, when it was rejected by

another of Jones’s supervisors. Id. In the meantime, Jones and Grantham’s relationship

continued to deteriorate.

Following the first dispute over working outside of scheduled hours, Grantham required

Plaintiff to obtain written pre-approval for any after-hours work while “knowingly allowing

other staff members to work outside their normal duty hours,” and she did not respond to Jones’s

requests for clarification of office policies. Id., ¶ 6(a), (k). Negative professional consequences

followed: Grantham required Jones to copy her on all team communications, eliminated Jones’s

back-up responsibilities without explanation, and isolated her on an organizational chart as “the

only single-team member” while grouping other OPA employees together. Id., ¶ 6(c), (e), (f).

Reviews of Jones’s performance further strained the relationship, as management authored a

2 mid-year progress report containing allegedly inaccurate information, and Jones was later denied

a performance-based cash award for fiscal year 2020 seemingly as a result. Id., ¶¶ 6(b), 20.

The situation also escalated to formal discipline: Jones’s supervisors imposed a seven-

day suspension based on allegations that Plaintiff contends were false, initiated a

workplace-harassment investigation into her conduct, required Jones to complete additional

training courses and counseling on respect in the workplace, and ultimately placed her on forced

administrative leave for “unspecified allegations of improper conduct.” Id., ¶¶ 14, 21, 6(i), 6(l).

All told, Jones alleges over a dozen instances of discriminatory or retaliatory treatment en route

to her conclusion that she was subjected to a hostile work environment. Id., ¶ 24.

B. Procedural Background

Plaintiff initiated the administrative process by contacting an EEO Counselor in August

2021, one month after her internal complaint was resolved unfavorably. Id., ¶ 6. She

subsequently filed a formal complaint of discrimination in November of that year, alleging that

she was subjected to harassment and discrimination based on race, color, sex, and in retaliation

for prior EEO activity. Id. Jones requested a hearing before an administrative judge of the

EEOC, who granted Defendant’s motion for summary judgment on all claims in June 2024. Id.,

¶ 7. A week later, the EPA adopted the administrative judge’s decision as its final order. Id.

Plaintiff then filed this suit on September 19, 2024, alleging discrimination based on race,

color, sex, and prior protected EEO activity. Id. at 12. Her single claim encompasses two

allegations: first, a hostile work environment based on discrimination (race, color, and sex) as

3 well as retaliation for her protected EEO activity; and second, a discriminatory denial of her

FY2020 performance-based cash award. Id., ¶ 24. The EPA now moves to dismiss.

II. Legal Standard

Defendant asks this Court to dismiss Plaintiff’s suit for failure “to state a claim upon

which relief can be granted” under Federal Rule of Civil Procedure 12(b)(6). See Mot. at 7. In

evaluating this Motion, the court must “treat the complaint’s factual allegations as true . . . and

must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’”

Sparrow, 216 F.3d at 1113 (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.

1979)) (citation omitted).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must put forth “factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. The court need not accept as true “a legal conclusion couched as a

factual allegation,” nor an inference unsupported by the facts set forth in the complaint. Trudeau

v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S.

265, 286 (1986)). For a plaintiff to survive a 12(b)(6) motion, the facts alleged in the complaint

“must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S.

at 555.

III. Analysis

The Court begins with Jones’s hostile-work-environment claim before turning to her

separate claim of discriminatory denial of a cash award.

4 A. Hostile Work Environment

Title VII makes it unlawful for an employer “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), or “because he

has made a charge . . . or participated in any manner in an investigation” of employment

discrimination. See id. § 2000e-3(a). These provisions forbid an employer from “requiring

people to work in a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993). A hostile work environment is thus actionable under Title VII

when it is the result of discrimination or retaliation. See, e.g., Harris v. Wackenhut Servs., Inc.,

419 F. App’x 1, 1 (D.C. Cir. 2011) (discrimination); Singletary v. District of Columbia, 351 F.3d

519, 526 (D.C. Cir. 2003) (retaliation).

As described above, Jones claims that she was subjected to a hostile work environment

based on her race, color, and sex, as well as in retaliation for her protected EEO activity. To

prevail, she must allege conduct that both “clear[s] the high bar required to establish a hostile

work environment,” Gulakowski v. Barr, 2019 WL 4469241, at *4 (D.D.C. Sept. 18, 2019), and

is causally connected to either her aforementioned characteristics or her protected activity. Her

Complaint falls short on both fronts.

A hostile-work-environment plaintiff “must show that [her] employer subjected [her] 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 v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. at 21). “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

5 severity, its offensiveness, and whether it interferes with an employee’s work performance.” Id.

(citing Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)). “The Supreme Court has

made it clear that ‘conduct must be extreme to amount to a change in the terms and conditions of

employment.’” George v. Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005) (quoting Faragher, 524

U.S. at 788). By adhering to these standards, the Court thereby “ensure[s] that [employment-

discrimination law] does not become a general civility code” that involves courts in policing “the

ordinary tribulations of the workplace.” Faragher, 524 U.S. at 788 (citations and quotation

marks omitted).

Jones does not satisfy this standard. Although she alleges that she experienced a series of

unpleasant workplace occurrences, the incidents she describes do not rise to the level of severity

or pervasiveness needed to state a hostile-environment claim. Most of the actions Plaintiff

complains about are the sort of “work-related actions by supervisors” that “courts typically do

not find . . . to be sufficient for a hostile work environment claim.” Munro v. LaHood, 839 F.

Supp. 2d 354, 366 (D.D.C. 2012) (quotation marks omitted). These include being required to

copy her supervisor on emails, directed to obtain approval before missing meetings, accused of

insubordination, depicted unfavorably on an organizational chart, denied certain work

opportunities and responsibilities, and reprimanded and investigated for allegedly disrespectful

and harassing conduct. See Compl., ¶ 6. Courts have consistently held that such workplace

grievances — even when understandably frustrating for the employee — are not sufficiently

severe to survive a motion to dismiss. See, e.g., Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94

(D.D.C. 2009) (holding that “disparaging remarks, criticisms of [plaintiff’s] work, and other

negative comments do not sufficiently demonstrate a significant level of offensiveness” needed

for hostile-environment claim); id. (“Nor can the removal of important assignments, lowered

6 performance evaluations, and close scrutiny of assignments by management be characterized as

sufficiently intimidating or offensive in an ordinary workplace context.”); René v. Granholm,

2022 WL 17820342, at *7 (D.D.C. Dec. 20, 2022) (rejecting hostile-environment claim where

plaintiff alleged lack of favorable work opportunities, criticism by supervisors, and unfavorable

performance reviews).

Jones’s seven-day suspension and forced administrative leave, perhaps the most severe

actions she alleges, do not push her Complaint across the finish line. Suspensions and

administrative leave are insufficient to establish a hostile work environment. See Hockaday v.

Washington Metro. Area Transit Auth., 2023 WL 3844388, at *6 (D.D.C. June 6, 2023) (holding

that suspensions and forced leave constitute “[o]ccasional instances of less favorable treatment

involving ordinary daily workplace decisions” and “are not sufficient to establish a hostile work

environment”) (quoting Bell v. Gonzalez, 398 F. Supp. 2d 78, 92 (D.D.C. 2005)), aff’d, 2024

WL 2229699 (D.C. Cir. May 17, 2024). The Court thus finds it highly unlikely that Jones’s

allegations rise to the level of a hostile work environment.

Even if the Court assumes arguendo that Plaintiff clears that bar, she is still out of luck.

She has not alleged that any hostility occurred because of her race, color, sex, or prior EEO

activity — a fatal defect in a Title VII claim. The Complaint contains entirely conclusory

assertions that Grantham’s actions were motivated by discriminatory or retaliatory animus, see

Compl., ¶¶ 1, 6, 19–22, without offering any factual allegations in support of this inference.

Instead, Jones characterizes her treatment as being “singled out,” id., ¶¶ 6(c), 17, suggesting

individualized targeting rather than discrimination based on a protected characteristic. Without a

connection to any protected characteristic, any wrongs she suffered are not actionable under Title

VII. Were it otherwise, “every employee who is disciplined, demoted, or fired for alleged

7 misconduct could sue for employment discrimination based on race, color, religion, sex, or

national origin and — merely by denying the underlying allegation of misconduct —

automatically obtain a jury trial.” Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 496 (D.C.

Cir. 2008); see also Dudley v. Washington Metro. Area Transit Auth., 924 F. Supp. 2d 141, 169

(D.D.C. 2013) (“There must be some connection between the wrong and the plaintiff’s

membership in a protected class or engagement in protected activity.”).

Only once does Jones claim that her white and male coworkers received preferential

treatment — in that they worked outside their tours of duty without disciplinary action. See

Compl. at ¶¶ 10–12. This sole allegation of disparate treatment is not enough. Without alleging

that any of the remaining suite of complained-of actions was motivated by discrimination,

Plaintiff’s allegation of discrimination with respect to working outside of scheduled hours stands

alone. Such an isolated allegation cannot support a hostile-work-environment claim. See Baird

v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir. 2011) (“[A]cts giving rise to a hostile work

environment claim must collectively meet the independent requirements of that claim . . . and

must be adequately connected to each other . . . .”) (citation omitted).

Finally, the timing of events undermines any inference of retaliatory motive. Jones began

engaging in protected EEO activity in August 2021 — more than three years after her “troubles

began” with Grantham’s arrival in June 2018. See Compl., ¶¶ 6, 9. Indeed, most of the conduct

that Plaintiff alleges constituted a hostile work environment occurred prior to her initiation of the

EEO process. Id., ¶ 6(a)–(i). Jones also does not allege anywhere in her Complaint that any of

the offending conduct that occurred after she initiated the EEO process was motivated by

retaliation — or even that her supervisors had any knowledge of her protected activity.

Jones attempts to resuscitate her defective retaliation claim in her Opposition by implying

8 that the actions taken by her supervisors after August 2021 were retaliatory. See ECF No. 10

(Opp.) at 14. She asserts there is “no question” that her supervisors were aware of her EEO

activity by that time. Id. Even if this were factually supported, which it is not, see Wilkerson v.

Mayorkas, 2024 WL 1674638, at *2 (D.D.C. Apr. 18, 2024) (dismissing retaliation claim where

plaintiff failed to allege “whether [the retaliator] was aware of any protected communication” by

an employee), a plaintiff cannot amend her Complaint by including new factual allegations in an

Opposition. See Winmar Constr., Inc. v. Iron Kingdom, Inc., 2024 WL 3338922, at *4 (D.D.C.

July 9, 2024). Jones’s attempt to establish retaliation thus does too little and comes too late.

In sum, Jones has neither plausibly alleged conduct severe or pervasive enough to create

a hostile work environment nor offered facts suggesting that any such environment was created

because of a protected characteristic or activity. The Court will thus dismiss this prong of the

claim.

B. Discriminatory Denial of Cash Award

Jones also alleges that she was discriminatorily denied a cash award for FY2020 despite

her strong performance. See Compl., ¶¶ 20, 24. This claim cannot proceed for two reasons.

First, Jones has effectively abandoned it. Defendant highlighted several flaws with the

claim as pled in the Complaint, including the conclusory nature of the allegations and the fact

that the denial of the cash award occurred prior to Jones’s protected activity. See Mot. at 21–22.

Apparently seeing the writing on the wall, Plaintiff did not respond to any of these points in her

Opposition. When a plaintiff fails to respond to arguments raised in a motion to dismiss, courts

may treat those arguments as conceded. See, e.g., Hopkins v. Women’s Div., Gen. Bd. of Global

Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003); Ass’n of Am. Physicians & Surgeons v.

Sebelius, 746 F.3d 468, 471 (D.C. Cir. 2014).

9 Second, even if the Court were to consider this claim on its merits, it suffers from the

same fatal flaws as Jones’s hostile-work-environment allegations. The Complaint’s own

timeline prevents her from characterizing the denial as retaliation, as Jones alleges that the cash

award was denied on July 25, 2021 — more than a month before she initiated contact with an

EEO Counselor. See Compl., ¶ 6(h). Nor has Plaintiff alleged any facts suggesting a causal

connection to her protected characteristics. Her assertion that other OPA employees “who

performed at her level” were given awards, id., ¶ 20, lacks any details about these comparators’

race or sex that might begin to support an inference of discrimination. Of course, even then,

Jones would still need to show that she was treated differently because of some protected

characteristic. Simply being treated differently, without more, does not establish discrimination

or retaliation. Without the requisite supporting facts, her claim amounts to a mere “formulaic

recitation of the elements” of discrimination. See Twombly, 550 U.S. at 545. That is not enough

to survive a motion to dismiss.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s Motion to Dismiss. A

separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: March 19, 2025