UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FELICIA KELSO,
Plaintiff,
v. Civil Action No. 1:19-cv-0722 (CJN)
DENNIS MCDONOUGH, Secretary, U.S. Department of Veterans Affairs,
Defendant.
MEMORANDUM OPINION
Felicia Kelso, a former Department of Veterans Affairs employee, alleges that her
supervisors discriminated and retaliated against her in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. See generally Compl., ECF No. 1. The Secretary moves
for summary judgment. See Mot. for Summ. J., ECF No. 15. For the reasons stated below, the
Court grants the Secretary’s motion.
I. BACKGROUND
Kelso, an African-American woman of Caribbean descent, applied in 2010 to be an
Administrative Specialist in the Department of Veterans Affairs Office of Facilities Programs
and Plans. See Compl. ¶ 7. Kelso alleges that the then-Director of the Programs Project
Management Services, Milan Srskic, originally offered her the position at a GS-9/11 level, which
is a GS-9 position with the potential to be promoted to GS-11. See id. According to Kelso, two
weeks after receiving this initial offer, Carol Gill, a human resources specialist, advised Kelso
that she could not be hired as a GS-9 and proposed that she instead accept “the GS-9 position at a
GS-7 level” with a commitment to attempt to elevate her position to a GS-9 after she started. See
1 Compl. ¶¶ 10–11; Pl.’s Depo. at 27–28. Kelso accepted the GS-7 job later that month believing
that the position would be “corrected” to GS-9 shortly thereafter. Compl. ¶ 13.
Within six months, Kelso began to experience problems with her coworkers. In
September 2010, William Levay, a project manager, allegedly confronted Kelso, accusing her of
giving preferential treatment to one of the three regional offices she was charged with servicing.
Pl.’s Depo. at 35. When Kelso denied the claim, Levay allegedly became visibly angry and
doubled down on his accusations. Compl. ¶ 24. Kelso says that she reminded Levay that he was
not her supervisor. Levay mockingly called Kelso “Sergeant,” seemingly referencing her prior
military service. See Compl. ¶ 26. Kelso took offense. She told Levay that they were not in the
military anymore and that she wanted to be addressed by her name. Pl.’s Depo. at 36.
The following day, Levay approached Kelso and told her that she would be “blackballed”
if she did not heed his warnings against favoritism. See Compl. ¶ 27. Although Kelso
acknowledges that she did not believe Levay used the term “blackballed” as a racial epithet, she
did perceive that his negative attitude toward her was based on her race and gender. Pl.’s Depo.
at 40.
Kelso quickly reported Levay’s behavior to Gill. See Pl’s Resp. to Def’s Interrogs.
(“Kelso Interrogs.”), ECF 15-4, at 1–2. Specifically, Kelso told Gill that Levay had unfairly
threatened her and spoke down to her in a hostile and disrespectful way. See id. She did not,
however, claim that Levay’s actions were a product of racial or sex discrimination. Id. In fact,
she did not recall during her deposition using the word discrimination at all during this
conversation with Gill. Kelso Depo. at 42.
Less than a month after her confrontational interactions with Levay, Kelso asked Srskic,
the then-Director for Programs Project Management Services, to convene an office-wide meeting
2 to finally resolve the tension with Levay. Pl.’s Depo. at 36, 41–43. Rather than bringing down
the temperature on their apparent feud, the meeting only ratcheted up the heat. Levay—who was
apparently caught off guard that the focus of an office-wide meeting was his treatment of
Kelso—became angry and told Kelso that if she would not do what Levay wanted, the
Department did not “need [her] here.” Kelso Interrogs. at 2.
Kelso alleges that, three weeks after this meeting, an open GS-9/11 position listed on the
Department’s human resources website was changed to a GS-9 position—meaning there was no
potential for promotion to GS-11. Comp. ¶ 30. In December 2010, Kelso was promoted to that
GS-9 Administrative Specialist position, a position she held for the remainder of her employment
with the Department. During that time, Kelso believed that, although her job title reflected a GS-
9 position, she was performing the duties of a GS-11.
In December 2011, the Department hired Carla Carter, an African-American woman, as a
GS-11 Staff Assistant. Compl. ¶ 36. Until then, Kelso had been the only female, black, and
Caribbean-American employee in the Construction and Facilities Management Office. See id.
Shortly after Carter joined the office, Kelso emailed Marge Pearce, the Department’s
Chief of Classification, requesting a desk audit concerning her employment level. See December
27, 2021 Email to Marge H. Pearce, ECF No. 18-3, 169. Pearce informed Kelso that a desk audit
could only be initiated by an employee’s supervisor and that the supervisor must explain to
human resources what has changed since the employee’s position was classified. Id. After no
action was taken on Kelso’s request, she emailed Dennis Milsten, who had recently replaced
Srskic as Kelso’s direct supervisor, with the same request. Milsten advised Kelso that she would
not be promoted to GS-11 because she had not reached full performance at GS-9. The next day,
Kelso contacted the Department’s Office of Resolution Management, which handles the VA’s
3 Equal Employment Opportunity (“EEO”) claims. Kelso completed her interview the following
day, in which she claimed that she suffered discrimination because (1) management failed to
reclassify her position to GS-9/11; (2) she had received a performance rating on a position
description that did not reflect her grade and series; and (3) duties were taken from her in an
attempt to downgrade her position. See generally Shakir Decl., ECF No. 15-2.
The following day, Milsten shifted Kelso’s duties regarding certain executive
correspondence to Carter and Kelso’s supply ordering tasks to Janelle Massey, a black woman
who was a GS-7 student trainee. Pl.’s Depo. at 58–60. Kelso claimed that she did not know
Milsten had reassigned these duties, but stated that “out of fairness,” Milsten should have
forewarned her that the duties would be transferred to her coworkers. Pl.’s Depo. at 60–61.
From February 2012 to April 2012, Kelso was involved in a number of interpersonal
disputes with her coworkers, which she claims are evidence of discrimination and retaliation.
Kelso alleges that on February 24, 2012, while she was briefly away from her desk, a Hispanic
student trainee approached Kelso’s desk area and turned down her music. When Kelso reported
the incident to Milsten, he immediately sent out an office-wide email reminding staff to respect
each other’s space. Shakir Decl. 32–33. Three days later, Milsten raised his voice to Kelso in a
condescending tone while discussing her position description and performance plan. Shakir
Decl. at 34.
On March 14, 2012, after Kelso mistakenly sent an email to the regional field offices
instead of circulating it internally, Levay approached her desk and spoke to her in a manner that
made Kelso feel incompetent. Pl.’s Depo. at 64–66. And, on the same day, a black male
coworker told Kelso that he had a dream that she killed people in the office. Pl.’s Depo. at 67.
4 On April 19, 2012, Carter emailed two co-workers commenting that Kelso “did not lift a
finger” in connection with a certain task and that Carter “should have had her ironing.” Carter
Email, Ex. 7, ECF 15-4. And a week later, Carter allegedly made nasty comments about Kelso
to two co-workers. Pl.’s Depo. at 71–72. Kelso reported each of these incidents to Milsten.
Seven months later, Kelso finally reached her breaking point when Carter threw a manila
file folder at her, hitting her in the chest. After informing Milsten of the incident, Kelso went to
the hospital in an ambulance. Shortly thereafter, Kelso began searching for a new job and, five
months later, found one with the United States Forest Service. Pl.’s Depo. 78.
In 2018—remarkably, more than six years after Kelso had initially complained to the
Department’s Office of Resolution Management—the U.S. Equal Employment Opportunity
Commission affirmed the Department’s 2015 final decision on Kelso’s claims, concluding that
the Department had not engaged in unlawful discrimination or retaliation. Compl. ¶ 5. In 2019,
Kelso commenced this civil action by filing a Complaint alleging four claims under Title VII of
the Civil Rights Act of 1964. Kelso alleges that Defendant subjected her to unlawful
discrimination based on her sex, race, and national origin, see Compl. ¶¶ 67–69; unlawful
retaliation, see Compl. ¶¶ 73–76, and separate claims based on a discriminatory and retaliatory
hostile work environment, see Compl. ¶¶ 70–71.
II. LEGAL STANDARD
To prevail on a motion for summary judgment, a movant must show 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 (1986).
A factual dispute is material if it could alter the outcome of the litigation. See Anderson, 477
U.S. at 248. A dispute of material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. The moving party always “bears the initial
5 responsibility of informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When this showing has
been made, the non-moving party bears the burden of setting forth “specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 250.
Thus, to avoid summary judgment, the non-movant must present some objective evidence
that would enable the court to find entitlement to relief. “[T]he mere existence of a scintilla of
evidence in support of the [non-movant’s] position will be insufficient; there must be evidence
on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.
“[M]erely colorable or not significantly probative evidence . . . is insufficient.” Potter v. District
of Columbia, 558 F.3d 542, 549 (D.C. Cir. 2009).
III. ANALYSIS
A. Discrete Discrimination Claims
Title VII makes it unlawful for an employer “to discriminate against any individual with
respect to compensation, terms, conditions, or privileges of employment” on the basis of that
individual’s race color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a). Title VII
discrimination claims that lack direct evidence of discrimination are subject to the burden-
shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The plaintiff bears the initial burden of establishing a prima facie case of discrimination. To
make such a showing, a plaintiff must point to evidence demonstrating that: “(1) she is a
member of a protected class; (2) she suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination.” Stella v. Mineta, 284 F.3d 135,
145 (D.C. Cir. 2002). Once an employee has made this showing, the burden shifts to the
6 employer, who bears the burden of identifying “the legitimate, non-discriminatory . . . reason”
for taking the complained of action. Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015).
If the employer provides such a justification, the employee must show that the employer’s
justification is pretextual. Id.
Typically, at summary judgment district courts do not assess the first prong of the
McDonnell Douglas framework. The Court of Appeals has cautioned that such an inquiry is
“usually misplaced.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, (D.C. Cir. 2008). That
is because at summary judgment “employers ordinarily attempt to satisfy the second prong” of
the McDonnell Douglas framework by providing a legitimate explanation for the contested
action, and “they often succeed” at making such a showing. Figueroa v. Pompeo, 923 F.3d
1078, 1086–87 (D.C. Cir. 2019). When an employer satisfies the second prong, a district court’s
“analysis of the prima facie factors at summary judgment become gratuitous, even confusing,”
and fails to “simplify judicial proceedings.” Id.
To avoid this “largely unnecessary sideshow,” Brady, 520 F.3d at 494, the Court of
Appeals in Brady v. Office of the Sergeant at Arms “offered a shortcut” to district courts,
Figueroa, 923 F.3d at 1087. “Where an employee has suffered an adverse employment action
and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district
court need not—and should not—decide whether the plaintiff actually made out a prima facie
case under McDonnell Douglas.” Brady, 520 F.3d at 494. Instead, the court should skip to step
three of McDonnell Douglas and determine whether the employee can point to any evidence that
the employer’s justification for the action was pretextual. Id.
But this “Brady shortcut” has a critical caveat: It “applies only if the parties properly
move past the second [McDonnell Douglas] step.” Figueroa, 923 F.3d at 1087. When, as here,
7 the employer challenges whether an adverse employment action was taken, or when an employer
has not proffered a legitimate, non-discriminatory justification for the adverse employment
action taken, a district court cannot employ the Brady shortcut.1 See Webster v. U.S. Dep’t of
Energy, 267 F. Supp. 3d 246, 258 (D.D.C. 2017) (noting that a summary judgment the prima
facie case inquiry is “not always irrelevant”). In such instances, the court must instead engage in
the sometimes-difficult task of determining whether the employee has made out a prima facie
case of discrimination.
Kelso asserts two discrete discrimination claims. But neither survives step one of the
McDonnell Douglas burden-shifting framework either because (1) Kelso has not demonstrated
that she suffered a materially adverse employment action or because (2) Kelso has not
demonstratred that the claimed actions were taken because of Kelso’s membership in a protected
class.
Kelso’s first discrimination claim involves the September 2010 incidents with Levay. To
briefly recap, during their interactions, Levay accused Kelso of failing to treat the three outside
offices that she was responsible for servicing equally; allegedly spoke to Kelso in a demeaning
way; mockingly called her “Sergeant”; and threatened her, saying that she would be
“blackballed” if she failed to treat the outside offices equally.
These allegations, although demonstrative of a tense and unpleasant office spat between
coworkers, do not qualify as a materially adverse employment action under Title VII. After all,
“not everything that makes an employee unhappy is an actionable adverse employment action.”
1 In this case, the Parties dispute whether Kelso has suffered an adverse employment action, see Def.’s Mot. at 31 (arguing that the claimed adverse employment actions are “insufficient to establish that Plaintiff suffered a cognizable materially adverse employment action”), and Defendant has not attempted to proffer legitimate explanation for any potential adverse employment action. Additionally, the Parties filings focus exclusively on step one of the McDonnell Douglas framework, so that is where the Court will direct its attention.
8 Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). Rather, “an employee suffers an adverse
employment action if he experiences materially adverse consequences affecting the terms,
conditions, or privileges of employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,
1131 (D.C. Cir. 2002). Paradigmatic examples of adverse employment actions include “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)).
Kelso does not allege, much less provide evidence demonstrating, that her confrontations
with Levay altered the “terms, conditions, or privileges” of Kelso’s employment. Forkkio, 306
F.3d at 1131. She does not claim that Levay fired, demoted, suspended, disciplined, or otherwise
subject her to an action that impacted her employment status. Kelso has therefore failed to make
a showing that Levay’s actions constitute an adverse employment action.
Further, there is no evidence that Levay acted with hostility to Kelso because of her sex,
race, or national origin. Kelso does not point the Court to anything in the record supporting,
either directly or indirectly, Plaintiff’s allegation that Levay spoke to her in an aggressive and
caustic manner because she is a member of a protected class. This discrimination claim therefore
cannot survive summary judgment.
Kelso’s second discrimination claim, which fairs slightly better but ultimately resolves in
the same manner, centers on her claim that Milsten failed to promote to her. Failing to promote
is a prototypical example of an adverse employment action. See Douglas, 559 F.3d at 552. But
Kelso has again failed to point the Court to any evidence in the record demonstrating that
Milsten did not promote Kelso on account of her race, sex, or national origin. In fact, the limited
9 evidence in the record seems to indicate that Milsten gave ample opportunities to Kelso’s
colleagues in her protected class. For instance, when Milsten took job responsibilities and duties
away from Kelso, he gave them to other African-American women. This cuts against Kelso’s
attempt to establish prima facie discrimination claim. See Oliver-Simon v. Nicholson, 384 F.
Supp. 2d 298 (2005) (finding that Plaintiff established a discriminatory nexus when, despite
meeting the minimum qualifications, she was passed over for multiple job openings that all went
to individuals outside of her protected class). Because there is no additional evidence in the
record to demonstrate that Milsten failed to promote Kelso because of her race, national origin,
or sex, it ultimately proves fatal to this discrimination claim.
Because Kelso has failed to proffer evidence that she suffered an adverse employment
action or that any adverse employment action she might have suffered was the result of sex, race,
or national origin discrimination, the Court grants summary judgment on this claim to the
Secretary.
B. Discriminatory Hostile Work Environment Claim
Title VII makes it unlawful for employers to require “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 claim is composed of a series of separate acts that collectively constitute one
‘unlawful employment practice.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117
(2002) (quoting 42 U.S.C. § 2000e–5(e)(1)).
For a plaintiff’s claim to survive summary judgment, the Court must be satisfied that a
reasonable juror looking at the evidence could conclude that a plaintiff’s workplace was
“permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of employment and create an abusive environment.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In making this determination, courts look to “the
10 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.” Brooks v.
Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014). Courts apply an “objective standard by
considering whether a reasonable person in a plaintiff’s position would find the conduct
“severely hostile or abusive.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82
(1998). And to be actionable under Title VII, the conduct must be “extreme” and go beyond “the
ordinary tribulations of the workplace, such as sporadic use of abusive language . . . and
occasional teasing.” Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998).
The alleged incidents that form the base of a hostile work environment claim must also
“give rise to an inference of discrimination.” Bryant v. Brownlee, 265 F. Supp. 2d 52, 63
(D.D.C. 2003). This means that when examining a hostile work environment claim courts must
“exclude from consideration personnel decisions that lack a linkage of correlation to the claimed
ground of discrimination.” Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002).
The Secretary argues that he is entitled to summary judgment because (1) Plaintiff’s
allegations of harassment are not sufficiently severe or pervasive to alter the conditions of her
employment, and (2) the alleged incidents forming the basis of the hostile work environment
claim do not give rise to an inference of discrimination. The Court agrees on both fronts.
Kelso bases her discriminatory hostile work environment claim on several interactions,
occurring in two general time periods that are more than 16 months apart. Kelso first points to
her interactions with Levey in September 2010, discussed above. Kelso does not identify any
other instances of hostile or unwanted behavior towards her for more than a year. Then, from
February 2012 to April 2012: (1) a student trainee turned down Kelso’s radio while Kelso was
using the restroom; (2) Milsten raised his voice and spoke condescendingly when addressing a
11 performance issue and her GS-11 promotion; (3) Levay chastised Kelso for sending an email to
the incorrect recipients; (4) a coworker told Kelso that he dreamed that she killed people in the
office; and (5) Carter spoke negatively about Kelso behind her back. And in November 2012,
Carter threw a manila folder at Kelso, hitting her in the chest.
As in many cases, these interactions may be boorish and reflect poorly on the
participants, but they are not sufficiently severe or pervasive to form an actionable Title VII
claim. Instead, the vast majority of Kelso’s claims involve minor personal squabbles with
coworkers. They include disputes over emails, noise coming from Kelso’s cubicle, office gossip,
and Kelso’s boss being condescending during a performance review. These actions represent the
“ordinary tribulations of the workplace,” which are insufficient to make a prima facie hostile
work environment claim. Faragher, 524 U.S. at 788. After all, to be actionable the conduct
complained of “must be extreme to amount to a change in the terms and conditions of
employment.” Id. at 788. This standard is designed to be “sufficiently demanding” so that anti-
discrimination statutes do not become “general civility code[s].” Id. (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).
Even if Kelso could establish that she was subjected to abusive conduct that was
objectively severe or pervasive, she has failed to proffer evidence that the conduct was motivated
by her membership in a protected class. Kelso alleges that she was subjected to a hostile work
environment either because she is African-American, of Caribbean-descent, or a female. Yet she
points to no evidence demonstrating that this is the case. It is well-established that “hostile
behavior, no matter how unjustified or egregious, cannot support a claim of a hostile work
environment unless there exists some linkage between the hostile behavior and the plaintiff’s
12 membership in a protected class.” Na’im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C. 2009).
Kelso has simply failed to show this linkage.
Because Kelso has failed to demonstrate that the actions taken against her were so severe
or pervasive as to alter the conditions of her employment and has also failed to point to evidence
in the record giving rise to an inference of discrimination, the Court will grant Defendant’s
motion for summary judgment on his claim.
C. Retaliatory Hostile Work Environment Claim
For a retaliatory hostile work environment claim to survive summary judgment, a
plaintiff must show that a reasonable juror, taking the evidence in the light most favorable to the
plaintiff, could conclude that (1) she engaged in a “protected EEO activity”; and (2) “a causal
connection between the harassment [she] suffered and [her] involvement in the protected EEO
activity.” Na’im, 626 F. Supp. 2d at 79.
The Parties agree that Kelso satisfies the first element of a retaliatory claim—she
engaged in a protected EEO activity. Yet they disagree about when Kelso first engaged in that
activity. Kelso argues that her September 2010 conversation with Gill, in which she addressed
an interpersonal problem with Levay, constituted a protected activity. See Pl.’s Opp’n at 27.
Defendant argues that because Kelso did not raise a claim of discrimination with Gill during
their September 2010 conversation, Kelso’s first protected EEO activity was not until February
2012, when Plaintiff first contacted the VA’s Office of Resolution Management. See Def’s Mot.
at 25.
Under Title VII, a “protected activity” is an “employee’s opposition to an unlawful
employment practice or . . . an employee’s participation in a discrimination charge, investigation,
or proceeding.” Burton v. Batista, 399 F. Supp. 2d 97, 114 (D.C. 2004). “While no magic words
13 are required” to mark an exchange a protected activity, the employee “must in some way allege
unlawful discrimination.” Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006).
Kelso acknowledges that in her 2010 conversation with Gill, she did not even mention,
much less allege, that Levay’s actions toward her were based on unlawful discrimination. See
Compl. ¶¶ 24–30. To be sure, Kelso insisted that Levay mistreated her by threatening her and
talking to her in a demeaning way. Kelso Interrogs., 1–2. But she made no claims that a reason
for his rude behavior was based on Kelso’s race, sex, national origin, or any other identity
characteristic protected by Title VII. Id. It wasn’t until 2012, when Kelso contacted the VA’s
Office of Resolution Management to discuss the fact that she had not yet been promoted, that
Kelso first raised a discrimination claim. That was the moment that she first engaged in a
protected EEO activity. Any allegedly hostile events occurring prior to Kelso’s February 2012
contact with the Office of Resolution Management cannot be considered as part of Kelso’s
retaliatory hostile work environment claim. Broderick, 437 F.3d at 1232.
When looking at the events that occurred after Kelso’s 2012 complaint to the Office of
Resolution Management, the result is no different than her discriminatory hostile work
environment claim: She has not proffered evidence that her treatment was severe or pervasive.
Harris, 510 U.S. at 21. In fact, Kelso’s retaliatory hostile work environment claims are slightly
weaker than her discriminatory hostile work environment claims because they do not include
Levay’s actions from September of 2010.
And just as Kelso has failed to proffer evidence of a requisite discriminatory nexus
relating to her hostile work environment claim, she has failed to point to record evidence
suggesting that a causal connection exists between protected EEO activity and the alleged
harassment. Indeed, Kelso does not allege, let alone cite to any record evidence, that two of her
14 co-workers—the student trainee who turned down Kelso’s music or the coworker who told her
about his dream—even knew that she had complained to the Department’s Office of Resolution
Management.
Kelso cannot demonstrate that the actions taken against her were so severe or pervasive
as to alter the conditions of her employment and the alleged incidents forming the base of the
hostile work environment claim cannot give rise to an inference of retaliation. Therefore, the
Court will grant Defendant’s motion for summary judgment on this claim.
D. Retaliation Claim
To prevail on a claim of discrete acts of retaliation under Title VII, a plaintiff must show
that “that she engaged in activity protected by Title VII, the employer took adverse action against
her, and the employer took that action because of the employee’s protected conduct.” Walker v.
Johnson, 798 F.3d 1085, 1091–92 (D.C. Cir. 2015). A materially adverse action for the purposes
of retaliation “is one that could conceivably dissuade a reasonable worker from making or
supporting a charge of discrimination.” Newton v. Office of the Architect of the Capitol, 839 F.
Supp. 2d 112, 116 (D.D.C. 2012). Although the “universe of cognizable retaliatory actions is
broader than that of discriminatory actions, as a reasonable worker could be discouraged from
reporting abuse by actions that might not themselves be considered abuse,” Swann v. Officer of
the Architect of Capitol, 73 F. Supp. 3d 20, 26–27 (D.D.C. 2014), it is not so broad as to allow
the federal judiciary to sanction trivial harms or micromanage a supervisor’s decisions.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70–71 (2006). When, as here, there is
no direct evidence of retaliation, the familiar McDonnell Douglas burden-shifting framework
applies. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009).
Since Kelso’s protected activity occurred in February 2012, any alleged retaliatory
actions had to occur after that date to be actionable. The post-February 2012 actions of Kelso’s
15 coworkers—including the student trainee turning down her music, a colleague informing others
of a macabre dream involving Kelso, and Levay chastising Kelso for sending an email to the
wrong group of recipients—were perhaps rude or inappropriate, but none of these alleged actions
“could conceivably dissuade a reasonable worker from making or supporting a charge of
discrimination.” Newton, 839 F. Supp. 2d at 116. And, perhaps more significantly, Kelso cannot
point to any evidence indicating that her coworkers took these actions because she previously
engaged in a protected activity.
Kelso also points to the reassignment of certain work responsibilities in February 2012 as
a potential adverse employment action. In particular, two days after Milsten informed Kelso that
she would not be promoted and one day after Kelso filed her EEO complaint, Milsten reassigned
Kelso’s responsibility for certain executive correspondence to Carter, an African-American
woman who recently transferred into the office as a GS-11 and (Defendant argues) was in need
of additional work. Milstein also transferred the handling of requests for office supplies from
Kelso to Massey, an African-American women employed at a GS-7 level because, Defendant
contends, Milsten believed those clerical duties were appropriate for a lower-grade employee.
Kelso insists that these two changes were materially adverse and therefore actionable.
The Court disagrees. Although a significant change in an employee’s work assignments
is “a classic and widely recognized example of forbidden retaliation,” Burlington, 548 U.S. at 71,
courts in this district have noted that to be considered a significant change the duties assigned
away from the employee must be either a “substantial[]” part for her work, Lee v. Winter, 439 F.
Supp. 2d 82, 85 (D.D.C. 2006), or particularly “prestigious,” Robb v. Vilsack, 2021 WL
3036796, *12 (D.D.C. July 19, 2021). That is because Title VII’s “anti-retaliation provision
protects an individual not from all retaliation, but from retaliation that produces an injury or
16 harm.” Burlington, 548 U.S. at 67. Here, even under “the more lenient standard” for retaliation,
Kelso has failed to demonstrate the reassignment of some of her minor duties constituted an
adverse employment action. Brookens v. Solis, 616 F. Supp. 2d 81, 91 (D.D.C. 2009) (finding
denial of desk audit did not qualify as adverse action under retaliation standard where plaintiff
did not allege any resulting injury or harm).
Because Kelso has failed to demonstrate that she suffered an adverse employment action,
the Court grants summary judgment on Kelso’s discrete retaliation claim to Defendant.
IV. CONCLUSION
For the reasons stated above, the Court grants Defendant’s Motion for Summary
Judgment. A separate order will issue.
DATE: August 30, 2021 CARL J. NICHOLS United States District Judge