UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) SUSAN MANUS, ) ) Plaintiff, ) ) v. ) No. 18-cv-1146 (KBJ) ) CARLA D. HAYDEN, Librarian, ) Library of Congress, ) ) Defendant. ) )
MEMORANDUM OPINION
On September 12, 2017, Plaintiff Susan Manus—a retirement-eligible employee
of the National and International Outreach (“NIO”) division of the Library of
Congress—received a performance counseling memorandum, including a long-term
improvement plan, from her supervisor. (See Compl., ECF No. 1, ¶¶ 30–33.) Ten days
later, Manus announced her retirement. (See id. ¶ 34.) In the instant lawsuit, Manus
claims that her supervisor’s persistent critiques of her work performance, which
commenced shortly after his hiring, constituted age discrimination in violation of the
Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.
(See id. ¶ 54–65.) Manus further claims that the performance counseling memo was
given to her in violation of the anti-retaliation provisions of Title VII of the Civil
Rights Act of 1964, see 42 U.S.C. § 2000e, et seq., because her supervisor knew that
she had previously contacted the Library’s Equal Employment Opportunity (“EEO”)
office to inquire about the possibility of being detailed to another Library position.
(See id. ¶ 40–51.) And Manus also maintains that her supervisor’s discriminatory and retaliatory conduct forced her to retire from her job earlier than she otherwise would
have and, thus, that she was constructively discharged. (See id. ¶¶ 40–51, 54–65.)
Before this Court at present is the Library’s motion for summary judgment with
respect to Manus’s ADEA and Title VII claims (see Def.’s Mot. for Summ. J. (“Def.’s
Mot.”), ECF No. 11), which Manus opposes (see Pl.’s Opp’n to Def.’s Mot. for Summ.
J. (“Pl’s Opp’n”), ECF No. 15). In the motion for summary judgment, the Library
argues that Manus’s ADEA claims fail, because she has not identified a cognizable
adverse action (see Def.’s Mot. at 6) and has not alleged facts that could possibly give
rise to an inference that she was unlawfully constructively discharged (see id. at 20).
The Library also contends that Manus’s Title VII retaliatory discharge claim cannot be
sustained, both because Manus did not suffer any materially adverse employment
action, and because her supervisor had specific knowledge that she had not engaged in
any protected activity with respect to her contacts with the EEO office at the time that
he tendered the performance counseling memo. (See id. at 16–17.)
For the reasons explained fully below, this Court agrees with the Library that the
record is manifestly insufficient to establish that the Library took any legally
cognizable adverse action against Manus due to her age or protected activity. Nor is the
evidence sufficient to support a reasonable inference that Manus either engaged in a
protected activity prior to the allegedly adverse actions or was ultimately constructively
discharged. Consequently, Manus cannot proceed to trial on any of her claims, and the
Library’s motion for summary judgment will be GRANTED in full. A separate Order
consistent with this Memorandum Opinion will follow.
2 I. BACKGROUND
A. Factual Background 1
Plaintiff Susan Manus became the Coordinator of Communications Strategy at
NIO in 2015, after transferring out of the Library’s Music Division. (See Def.’s Ex. 1
(“Manus Deposition”), ECF No. 11-3, at 18; see also Pl.’s Ex. A (“Manus Affidavit”),
ECF No. 15-2, at 3–4.) In September of 2016, Manus applied for the newly created
position of Chief Communications Officer of NIO. (See Manus Deposition at 8.) That
job was reposted after the first application window closed and no interviews were
conducted, but Manus did not reapply because she “wasn’t sure that [she] wanted that
role at that point[.]” (Id.) Indeed, by that time, Manus had begun speaking with a
former colleague at the Music Division, Carol Ward-Bamford, about the possibility of
creating a detail assignment for Manus at the Music Division; “[m]aybe a short term,
renewable detail . . . as long as it would end up as long-term somehow.” (See Def.’s
Ex. 25, ECF No. 11-5, at 21.) According to Manus’s contemporaneous notes, insofar as
the proposed detail was concerned, Manus’s “[g]oal [was] long term, [un]til
retirement!” (Def.’s Ex. 28, ECF No. 11-5, at 27.)
In mid-September of 2016, as Manus’s plans for the detail were developing, a
new Chief Communications Officer of NIO—Ellis Brachman—arrived and became
Manus’s direct supervisor. (See Manus Deposition at 11–13.) Following Brachman’s
onboarding, Manus and Ward-Bamford put together a written proposal concerning
1 The facts recited herein, which are undisputed, are drawn from the various exhibits attached to the parties’ briefs, which include depositions, e-mail exchanges, and contemporaneous notes in the form of e-mail drafts.
3 Manus’s plans for the detail to the Music Division. (See Def.’s Ex. 30, ECF No. 11-6,
at 2.) With respect to the reasons for Manus’s request to be detailed to another office,
the proposal explained that, “[s]ince [Manus’s team] has recently added a
communications director position, [her] job now has less responsibility. ” (Def.’s Ex.
31, ECF No. 11-6, at 5.) During the conversations that ensued concerning the detail, it
became clear that the Music Division had two problems with Manus’s proposal: (1) “the
need for salary reimbursement” from NIO, and (2) “the need to advertise a detail, not
just offer it to a person[.]” (Def.’s Ex. 32, ECF No. 11-6, at 7.)
Notably, in parallel with the development of the plans for Manus’s detail,
Brachman began “document[ing] [Manus’s] work when it [did] not meet fully
successful standards.” (Def.’s Ex. 7, ECF No. 11-4, at 29.) This was because,
according to Brachman, “from the beginning of [his] time at [the NIO], it was clear that
[Manus] was not performing the full duties of her job.” ( Def.’s Ex. 4 (“Brachman
Deposition”), ECF No. 11-4, at 5.) For instance, in an e-mail dated January 31, 2017,
Brachman told Manus that he was “disappointed with the content” of Manus’s draft of
the February monthly newsletter, since it appeared that several of the blurbs had been
“pulled verbatim from other material—including references to dates (today, this week,
etc[.]) which are no longer true.” (Id.)
According to Manus’s personal notes, on March 24, 2017, Manus met with the
EEO office in order to discuss how “[her] job in NIO has gone downhill—much LESS
responsibility than [she] had even a year ago”—which Manus attributed to Brachman’s
hiring, and Manus specifically mused about whether, if a detail to the Music Division
was not a possibility, there were other “really long term options[,]” including to
4 “[r]etire, and get hired part time by Music [D]iv[.]” (Def.’s Ex. 33, ECF No. 11-6, at
9–10.) Manus made clear in an e-mail to a colleague that “NIO knows nothing of this
yet.” (Def.’s Ex. 34, ECF No. 11-6, at 12).
A short time later, in early April of 2017, Brachman issued to Manus her annual
performance rating for the March 2016 through March 2017 period. (Def.’s Ex. 2K,
ECF No. 11-3, at 68.) The document stated that, although “Manus spent a majority of
this performance period on detail as Co-Director of the 2016 National Book Festival[,]”
which has “been called ‘the best’ book festival in the Library’s history[,]” Manus’s
work product at NIO “does not consistently meet expectations[.]” (Id. at 70.)
In the wake of this report, Manus had two contacts with the Library’s EEO
office. First, according to Manus’s contemporaneous notes, the EEO office let Manus
know, on April 3, 2017, that the office was planning to “talk to Ellis [Brachman] to try
and work out [a] swap [detail]” between Manus and a lower-level employee at the
Music Division. (Def.’s Ex. 2E, ECF No. 11-3, at 43.) The record indicates that, in
mid-April of 2017, the EEO office did, in fact, contact Brachman to inform him that
Manus was interested in obtaining a detail in the Music Division and that the EEO
office would work to facilitate that conversation, as per the office’s usual practice. (See
Brachman Deposition at 9–10; Def.’s Ex. 5 (“EEO Staff Deposition”), ECF No. 11-4, at
20.) During this communication, the EEO office specifically stressed to Brachman that
“this is not an EEO complaint, it’s not a grievance, it’s not an alternative . . . resolution
dispute[.]” (EEO Staff Deposition at 20; see also Brachman Deposition at 10.)
Moreover, Brachman apparently informed the EEO office that he did not have any
problem with Manus’s attempt to look for detail opportunities (see Brachman
5 Deposition at 10); in fact, he would welcome the proposed detail so long as the
expenses involved were reimbursable (id.; see also EEO Staff Deposition at 20).
Manus’s second contact with the EEO office came on April 17, 2017, when, according
to Manus’s notes, the EEO office contacted her to let her know that “Ellis [Brachman]
said OK to go ahead with ‘something’, for [Manus] to move to [the Music Division].”
(Def.’s Ex. 35, ECF No. 11-6, at 14.)
In the weeks that followed, Manus continued to receive critical performance-
related feedback from Brachman. In May of 2017, for example, Brachman e-mailed
Manus to inform her that an article she had drafted “seem[ed] very disjointed” and
needed to be “streamline[d]” so that it told a “coherent story[.]” ( Def.’s Ex. 12, ECF
No. 11-4, at 45.) Manus edited the draft, but Brachman subsequently noted that, even
then, “[u]nfortunately[,] it took a lot of [further] editing” on his part. (Def.’s Ex. 13,
ECF No. 11-4, at 50.) A few weeks later, Brachman e-mailed Manus and copied his
own supervisor to let Manus know that a draft she had shared was not “acceptable”
because some of the content was repeated from an earlier announcement , and the
formatting, fonts, and spacing were not consistent. (Def.’s Ex. 14, ECF No. 11-4, at
55.) Manus felt that, throughout this time, Brachman was “mak[ing] things more
difficult for [her] than he needs to,” only to “then criticize[] [her]” (Pl.’s Ex. E, ECF
No. 15-3, at 16), and she also believed that Brachman preferred to “associate with
younger staff” because “he talked to [her] very little, but talked to other younger staff
members in passing all the time, including to summer interns” (Manus Affidavit at 5).
Manus also thought that Brachman “disregarded [her] in meetings as compared to
younger staff”; “ma[d]e a face at [his supervisor] after something [Manus] said”; and
6 “pushed” to include “much younger” staff members in conferences and panel
discussions but did not do the same for her. (Id. at 4.)
In May of 2017, according to Manus’s complaint, Brachman’s continued
criticism prompted Manus to complain about him with the EEO office; at that point,
Manus was allegedly “afraid that she [was] now in a hostile work environment.”
(Compl. ¶ 25.) In particular, Manus met with the EEO office to express that her
“concerns were increasing about [her] supervisor due to this latest issue” —that is, what
she referred to as “the berating e-mail from Brachman in May 2017”—and she also
wished to follow up on the possibility of a detail. (Manus Affidavit at 6.) The day
after this meeting, Manus e-mailed the EEO office: “I hope we can arrange a detail very
soon—even if it’s just for 8-10 months. As I told you yesterday, I’ve been having an
even rougher time lately—my boss sometimes will ‘shame’ me via e-mail and copy his
boss. He goes way overboard on the criticism, which happens on almost every
document I turn in. I realize I can’t succeed in my job if I’m working for him. This is
very stressful, so I’m anxious to make a change soon.” (Pl.’s Ex. F, ECF No. 15-4, at
2.)
Beginning in the summer of 2017, Brachman began sharing Manus’s work
product with the Library’s Human Resources office, specifically noting the amount of
editing that he purportedly had to do in order to improve her written work product.
(See Def.’s Exs. 15–16, ECF No. 11-4, at 59, 61.) Brachman also met with the Human
Resources staff to discuss the particular tasks that he planned to “lay out for [Manus]
for the next few months[.]” (Def.’s Ex. 17, ECF No. 11-4, at 67.) Human Resources
advised Brachman that, based on the work samples he had shared, “Manus was not
7 performing up to the level of her expected work[,]” and, according to Brachman,
Human Resources “suggested that at this point the proper course was a performance
memo.” (Brachman Deposition at 6.) Accordingly, in July of 2017, Human Resources
drafted a performance counseling memorandum and e-mailed it to Brachman for his
review and edits. (See Def.’s Ex. 18, ECF No. 11-5, at 2.)
Meanwhile, Manus came to realize that “budget constraints” prevented the
consummation of any deal to detail her to the Music Division, and her former colleague,
Ward-Bamford, offered to inquire internally at the Music Division about “the
possibility of a contract position for [Manus] in 2018[.]” (Def.’s Ex. 2G, ECF No. 11-
3, at 47.) In her personal notes, Manus specifically stated that her “master plan” was to
“retire before the end of the year, then work out any part time work [with the Music
Division] later on” because there was “[n]o way [she] can wait out this sucker any
longer.” (Id.; see also Def.’s Ex. 2F, ECF No. 11-3, at 45.) Thus, in late June of 2017,
Manus met with the Human Resources office “to figure out what [she] need[ed] to do to
retire th[at] year” because she had “given up on the detail—it would take a while to set
up, and [was] not worth the trouble at this point just for the sake of a few more
months.” (Def.’s Ex. 36, ECF No. 11-6, at 16.)
Manus continued her discussions about the possibility of a post-retirement
contractor position at the Music Division through the rest of the summer (see, e.g.,
Def.’s Ex. 2H, ECF No. 11-3, at 49; Def.’s Ex. 37, ECF No. 11-6, at 18), and she also
continued informing herself about pre-retirement planning (see Pl.’s Ex. I, ECF No. 15-
5, at 11). Manus somehow momentarily returned to the idea of creating a detail for
herself in August of 2017, this time as a detail to the Educational Outreach team.
8 (Def.’s Ex. 38, ECF No. 11-6, at 20.) Manus spoke with the EEO office about this
possibility and, once again, the EEO office reached out to Brachman and secured his
blessing. (See EEO Staff Deposition at 23.) However, ultimately, the EEO office
confirmed that no such detail opportunity existed at that time. (Id. at 24.)
In September of 2017, Human Resources followed up with Brachman about the
draft performance counseling memorandum that the Human Resources staff had shared
with him in July. (See Def.’s Ex. 20, ECF No. 11-5, at 6.) Brachman apologized for
the delay in responding and asked Human Resources if performance counseling was
“still the right approach given that [Manus’s] mid-year review [would be] due in the
next few weeks.” (Id.) Human Resources replied: “Absolutely! Her performance is far
below successful, so you’re actually doing her a favor: (1) you’re telling/warning her
she’s in danger of being rated unsuccessful, and (2) you’re giving her an opportunity to
improve & turn that ship around.” (Id.) Brachman agreed, and he “wrap[ped] up the
draft memo” on September 11, 2017. (Id.) The next day, September 12, 2017,
Brachman asked Manus to meet with him to “discuss [her] mid-year review[.]” (Def.’s
Ex. 21, ECF No. 11-5, at 8.)
During that meeting, Brachman allegedly informed Manus both that he was
aware that she “had been going to EEO” and that he was providing her with a
performance counseling memorandum. (Compl. at ¶¶ 30–31.) The memorandum
specifically noted “deficiencies . . . in the quantity and quality of [Manus’s] work” and
stated that Manus’s “performance . . . [was] below an acceptable level of competence
and [did] not meet the performance requirements” of her position . (Pl.’s Ex. J, ECF No.
15-5 at 13.) The memo further explained that, given the negative feedback that had
9 been “noted in multiple reviews[,]” Manus would be placed “under performance
counseling over the next 35 calendar days[,]” and that she would have “not less than 90
calendar days to improve [her] performance[.]” (Id.) Brachman also provided Manus
with a detailed performance plan with goals that she was required to meet. (Id. at 17.)
According to Manus, she “was not aware that there was any issue with [her]
performance that would require such drastic action,” especially “one month after [she]
became eligible for retirement[,]” and the performance counseling memo actually
“required [her] to do about twice as many work assignments as [her] usual workload.”
(Manus Affidavit at 7–8.)
Immediately after her meeting with Brachman, Manus e-mailed the EEO office to
say: “I wanted to check in [again] about the possible detail in Educational Outreach—is
this at all a possibility? If not, I will need to speak to you anyway, ” because “I think I
am being set up to fail in my job.” (Def.’s Ex. 41, ECF No. 11-6, at 26.) In its written
response, the EEO office let Manus know that “[i]t does not seem a detail to
Ed[ucation] Outreach is possible” and set up a meeting with Manus. ( Pl.’s Ex. Q, ECF
No. 15-8, at 11.) In the meeting, Manus expressed that “she felt . . . she was in a
hostile work environment” and asked if she could “file . . . an EEO complaint if she
retired.” (EEO Staff Deposition at 25.) In response, the EEO office handed Manus an
employment discrimination complaint form. (See Manus Affidavit at 7.) Ten days
later, Manus notified the Library of Congress that she would retire the following week.
(See Def.’s Ex. 23, ECF No. 11-5, 17.) After Manus’s retirement, Bailey Cahill—a
younger Library employee who allegedly had no “prior EEO activity”—was detailed on
a part-time basis to take over some of Manus’s duties at NIO. (Manus Affidavit at 9.)
10 B. Procedural Background
Two months after retiring from the Library, Manus filed a formal complaint of
discrimination, retaliation, and hostile work environment with the Equal Employment
Opportunity Commission (“EEOC”). (See Pl.’s Ex. L, ECF No. 15-7, at 2–3.) The
EEOC denied the complaint because Manus did “not allege she suffered an adverse
employment action” and had failed to “show that she was subjected to a hostile work
environment.” (Pl.’s Ex. M, ECF No. 15-7, at 6.) Manus’s administrative appeal was
denied as well, on the grounds that it was “unclear what actions [she] allege[s] created a
discriminatory hostile work environment due to the [her] age[,]” and that she had not
engaged in protected activity, given that she had only consulted the EEO office
“regarding possible details or job opportunities[.]” (Pl.’s Ex. P, ECF No. 15-8, at 8.)
On May 15, 2018, Manus filed the instant action against Carla Hayden in her
official capacity as the Librarian of the Library of Congress. ( See Compl. at 1.) 2 In her
complaint, Manus alleges retaliation for protected activity in violation of Title VII of
the Civil Rights Act of 1964, see 42 U.S.C. § 2000e, et seq. (Count I), and age-based
discrimination in violation of the Age Discrimination in Employment Act o f 1967
(“ADEA”), see 29 U.S.C. § 621 et seq. (Count II). 3 With respect to her age
2 Manus initially identified James H. Billington, former Librarian of the Library of Congress, as the defendant. (See Compl., ECF No. 1, at 1.) Pursuant to Federal Rule of Civil Procedure 25(d), the Court later substituted Carla Hayden, the current Libra rian of the Library of Congress ( see Minute Order of Dec. 17, 2018), and consistent with common practice with respect to suits against government officials in their official capacity, this Memorandum Opinion treats Manus’s action as if she had filed suit against the Library of Congress. See Cty. Bd. of Arlington v. Dep’t of Transp., 705 F. Supp. 2d 25, 28 (D.D.C. 2010) (“[A]n official-capacity suit is a way of pleading an action against the agency which the official heads.”). 3 Although the first paragraph in Manus’s complaint states that she is purportedly seeking “relief from discrimination based on her race (African American)” ( see Compl. ¶ 1), the remainder of Manus’s complaint only alleges age-based discrimination and Manus otherwise made no argument and offered
11 discrimination claim, Manus also suggests that she was constructively discharged from
her position. (See Compl. ¶ 62 (“Because Ms. Manus realized that she was being set up
to fail, she was forced to retire earlier than she planned.”).)
The Library filed a motion for summary judgment on August 16, 2019, at the
close of discovery. (See Def.’s Mot., ECF No. 11.) In its motion, the Library maintains
that Manus’s ADEA claims fail because she has not identified a sufficiently “adverse”
actions to support her discrimination claim (see id. at 6), and she has not met the high
bar to prove constructive discharge (see id. at 20). The Library further argues that
Manus’s Title VII retaliation claim fails because Brachman has specific knowledge that
Manus had only contacted the EEO office about doing a detail (i.e., she had not
engaged in protected activity), and, in any event, Manus did not suffer a materially
adverse employment action due to her alleged engagement in a protected activity. (See
id. at 16–17.) In her opposition, Manus argues that Brachman’s various employment-
related actions directed toward her qualify as “adverse” actions (see Pl’s Opp’n at 10–
13); that she was constructively discharged because, based on the “totality of the
circumstances . . . [she] was effectively deprived of free choice in the matter such that
she had no alternative but to resign” (id. at 19); and that her meetings with the EEO
office qualified as protected activity (id. at 15–18). The Library’s summary judgment
motion is now ripe for decision. (See Def.’s Reply to Pl.’s Opp’n (“Def.’s Reply”), ECF
No. 16.)
no evidence in support of a claim for race discrimination.
12 II. LEGAL STANDARDS
A. Motion For Summary Judgment
To prevail on a motion for summary judgment, a party 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). A factual dispute is material if it could alter the
outcome of the suit under the governing law, and a dispute about a material fact is
genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[A]
party seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the [record]
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp v. Catrett, 477 U.S. 317, 323 (1986). Once this showing has occurred, the
nonmoving party bears the burden of setting forth “specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 250 (internal quotation marks and
citations omitted). “A party asserting that a fact cannot be or is genuinely disputed
must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
Notably, when a motion for summary judgment is evaluated, “[t]he evidence of
the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Anderson, 477 U.S. at 255. However, “[t]he nonmoving party’s opposition . . .
must consist of more than mere unsupported allegations or denials and must b e
13 supported by affidavits, declarations, or other competent evidence, setting forth specific
facts showing that there is a genuine issue for trial.” Brett v. Brennan, 404 F. Supp. 3d
52, 58 (D.D.C. 2019) (citing Fed. R. Civ. P. 56(e)). In other words, th e nonmoving
party must show more than “[t]he mere existence of a scintilla of evidence in support of
[its] position[.]” Anderson, 477 U.S. at 252; see also Potter v. District of Columbia,
558 F.3d 542, 549 (D.C. Cir. 2009) (“[M]erely colorable or not sign ificantly probative
evidence . . . is insufficient to defeat a summary judgment motion.” (internal quotation
marks and citation omitted)).
Summary judgment in the defendant’s favor “is most likely when a plaintiff’s
claim is supported solely by the plaintiff’s own self-serving testimony, unsupported by
corroborating evidence, and undermined . . . by other credible evidence[.]” Johnson v.
W.M.A.T.A., 883 F.2d 125, 128 (D.C. Cir. 1989). However, there is “no rule of law that
the testimony of a discrimination plaintiff, standing alone, can never make out a case of
discrimination that could withstand a summary judgment motion [.]” Johnson v. Perez,
823 F.3d 701, 710 (D.C. Cir. 2016) (quoting Desmond v. Mukasey, 530 F.3d 944, 964
(D.C. Cir. 2008)).
B. Title VII Retaliation And ADEA Discrimination Claims
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits the federal
government from retaliating against employees who engage in protected activity,
including complaining of employment discrimination. See 42 U.S.C. § 2000e-3(a). A
plaintiff must present sufficient evidence to “show: (1) that [he] eng aged in a statutorily
protected activity; (2) that the employer took an adverse personnel action; and (3) that a
causal connection existed between the two[.]” Morgan v. Fed. Home Loan Mortgage
14 Corp., 328 F.3d 647, 651 (D.C. Cir. 2003) (alteration in original) (internal quotation
marks and citation omitted).
Importantly, the requisite protected activity refers to “statutorily protected
activities[,] includ[ing] the filing of EEOC complaints . . . to vindicate claims of
employment discrimination or retaliation” and “[i]nternal complaints . . . [that] must in
some way allege unlawful discrimination, not just frustrated ambition.” Battle v.
Master Sec. Co., LLC, 298 F. Supp. 3d 250, 252 (D.D.C. 2018) (emphasis added)
(internal quotation marks and citations omitted). In addition, a materially adverse
action in the retaliation context “encompass[es] a broader sweep of actions than those
in a pure discrimination claim,” Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C.
Cir. 2008), since Title VII retaliation includes responsive conduct that “would have
‘dissuaded a reasonable worker from making or supporting a charge of
discrimination[,]’” id. at 1198 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006)). And while temporal proximity between the protected activity and
the materially adverse action may “support an inference of causation,” this is so “only
where the two events are very close in time.” Hamilton v. Geithner, 666 F.3d 1344,
1357 (D.C. Cir. 2012).
The Age Discrimination in Employment Act of 1967 (“ADEA”) is similar to
Title VII’s retaliation prohibition, in that it prevents employees from being subjected to
adverse actions on the basis of an illicit moti ve of the employer. The ADEA’s federal-
sector provision specifically states that “[a]ll personnel actions affecting employees or
applicants for employment who are at least 40 years of age . . . shall be made free from
any discrimination based on age[,]” 29 U.S.C. § 633a(a), and the two “essential
15 elements” of an age discrimination claim under the ADEA are (1) that the plaintiff
suffered an adverse employment action, and (2) the employer undertook such action
because of the plaintiff’s age. Baloch, 550 F.3d at 1196; see also Beshir v. Jewell, 961
F. Supp. 2d 114, 130 (D.D.C. 2013). In the ADEA context, an “adverse employment
action” is a “significant change in employment status, such as hiring, firing, failin g to
promote, reassignment with significantly different responsibilities, or a decision
causing significant change in benefits.” Aliotta v. Bair, 614 F.3d 556, 566 (D.C. Cir.
2010) (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009)). And with
respect to causation, an ADEA plaintiff can establish liability under the ADEA either
by “establish[ing] that age was the but-for cause of the challenged personnel action[,]”
Ford v. Mabus, 629 F.3d 198, 207 (D.C. Cir. 2010), or by “show[ing] that age was a
factor in the challenged personnel action[,]” id. at 206 (emphasis in original).
At the summary judgment stage, in the absence of direct evidence, both Title VII
retaliation claims and ADEA discrimination claims trigger the familiar burden -shifting,
three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Ford, 629 F.3d at 201 (discrimination under ADEA); Carter v. George Washington
Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (retaliation under Title VII). First, a plaintiff
must establish a prima facie case of prohibited retaliation or discrimination. See
McDonnell Douglas, 411 U.S. at 802; see also Ford, 629 F.3d at 201; Carter, 387 F.3d
at 878. Once a plaintiff establishes her prima facie case, the burden of pro duction then
shifts to the employer to articulate legitimate, non-retaliatory or non-discriminatory
reasons for the challenged employment decision. See McDonnell Douglas, 411 U.S. at
802; see also Ford, 629 F.3d at 201; Carter, 387 F.3d at 878. And if the employer
16 proffers a legitimate, non-discriminatory/non-retaliatory reason, “the presumption of
discrimination raised by the prima facie case is rebutted and drops from the case.” Aka
v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (internal quotation marks,
alteration, and citation omitted); see also Kersey v. W.M.A.T.A., 586 F.3d 13, 17 (D.C.
Cir. 2009) (retaliation under Title VII). As a result, the burden then shifts back to the
complainant to discredit the employer’s explanation by showing that the employer’s
stated reason was pretext, and that the real reason was retaliation for the plaintiff’s
engagement in protected activity, see Kersey, 586 F.3d at 17, or discrimination based on
a protected characteristic, see Aka, 156 F.3d at 1288–89.
Put another way, if the defendant articulates a legitimate non -retaliatory or non-
discriminatory reason for the challenged adverse action, the court’s sole focus then
becomes whether or not the plaintiff has provided sufficient evidence for “a reasonable
jury [to] not only disbelieve the employer’s reasons, but [also] conclude that the real
reason the employer took a challenged action was a prohibited one.” Walker v.
Johnson, 798 F.3d 1085, 1093 (D.C. Cir. 2015). Thus, “the ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff[,]” Gold v. Gensler, 840 F. Supp. 2d 58,
66 (D.D.C. 2012) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
143 (2000)), and, ultimately, “the Court need only determine at the summary judgment
stage whether the employee produced sufficient evidence for a reasonable jury to find
that the employer’s asserted non-discriminatory reason was not the actual reason and
that the employer intentionally discriminated against the employee on the basis of race,
17 color, religion, sex, age, or national origin.” Peyus v. Lahood, 919 F. Supp. 2d 93, 100
(D.D.C. 2013) (internal quotation marks, citations, and alteration omitted).
C. Constructive Discharge
Finally, to the extent that Manus maintains that she was forced to retire due to
her working conditions in a manner that amounted to a constructive discharge, it is
important to note that, whether an employee claims retaliation or discrimination, “[a]n
employee’s decision to resign is ordinarily presumed to be voluntary.” Stewart v.
Gates, 786 F. Supp. 2d 155, 167 (D.D.C. 2011). Yet, “[i]n certain cases, the doctrine of
constructive discharge enables an employee to overcome the presumption of
voluntariness and demonstrate she suffered an adverse employment action by showing
the resignation or retirement was, in fact, not voluntary.” Aliotta, 614 F.3d at 566. As
a general matter, an employee is constructively discharged if her employer
discriminates or retaliates against her to the point “that a reasonable person in the
employee’s position would have felt compelled to resi gn.” Green v. Brennan, 136 S.
Ct. 1769, 1776 (2016) (internal quotation marks and citation omitted). The employee’s
resignation is deemed “tantamount to an actual discharge” in such circumstances, id. at
1777, in order to “prevent[] employers from indirectly effect[ing] a discharge that
would have been forbidden by statute if done directly[,]” Ross v. U.S. Capitol Police,
195 F. Supp. 3d 180, 202 (D.D.C. 2016) (internal quotation marks and citation omitted)
(first alteration added).
“An actionable constructive discharge claim requires a showing that
(1) intentional discrimination [or retaliation] existed, (2) the employer deliberately
made working conditions intolerable, and (3) aggravating factors justified the plaintiff’s
18 conclusion that she had no option but to end her employment.” Lewis v. District of
Columbia, 653 F. Supp. 2d 64, 81 (D.D.C. 2009). As the Supreme Court has explained,
a successful claim for constructive discharge points to circumstances “[b]eyond” those
that are necessary to “establish [a] hostile work environment” claim ; indeed, the
plaintiff must “show[ ] . . . that the abusive working environment became so intolerable
that her resignation qualified as a fitting response.” Penn. State Police v. Suders, 542
U.S. 129, 133–34 (2004). Therefore, a hostile work environment claim is a “predicate
for a constructive discharge claim.” Nichols v. Young, 248 F. Supp. 3d 1, 11 (D.D.C.
2017); see also McKeithan v. Boarman, 2012 WL 1450565, at *1 (D.C. Cir. Apr. 12,
2012) (per curiam).
III. ANALYSIS
Manus points to the failed detail opportunity, Brachman’s consistent criticism of
her work performance and alleged preference for younger employees, and the
performance counseling memorandum, and on the basis of those allegedly adverse
employment actions, claims that she was unlawfully retaliated against and was
subjected to unlawful age discrimination, both of which forced her to retire. However,
this Court’s review of the evidence and each of the parties’ arguments leads inexorably
to a different conclusion: that the Library’s motion for summary judgment must be
granted in its entirety, because no cognizable adverse action was taken against Manus,
nor was she constructively discharged, and with respect to the retaliation claim, Manus
also did not engage in any protected activity.
19 A. The Library Did Not Take Any Cognizable Adverse Action Against Manus
As explained above, only a “significant change in employment status” qualifies
as an “adverse employment action” in the ADEA context. Aliotta, 614 F.3d at 566
(internal quotation marks and citation omitted). Indeed, courts have specifically
concluded that “formal criticism or poor 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.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)
(internal quotation marks, alterations, and citation omitt ed). For similar reasons, the
denial of a detail assignment is also not an adverse action unless the employee
“experiences an adverse change in the terms, conditions, or privileges of
employment[.]” Evans v. Sebelius, 191 F. Supp. 3d 4, 8 (D.D.C. 2011) (internal
quotation marks and citation omitted).
In the context of details, some courts in this district have drawn a distinction
between vertical details, which offer clear career-enhancing opportunities, and lateral
details, which normally have no material impact on the employee. Compare Browne v.
Donovan, 12 F. Supp. 3d 145, 155 (D.D.C. 2014) (finding that the denial of a vertical
detail, which would have resulted in a temporary promotion with no additional pay, was
an adverse employment action) with Evans, 191 F. Supp. 3d at 8 (holding that the denial
of a lateral transfer that results in no diminution in pay or benefits “constitutes an
adverse employment action only where the plaintiff experiences an adverse change in
the terms, conditions, or privileges of employment” (internal quotation marks and
citation omitted)). But there is no doubt here that Manus was seeking a lateral detail,
20 which—if anything—would have itself led to a diminution in Manus’s duties and
responsibilities. (Def.’s Exhibit 2E, ECF No. 11-3, at 43 (recognizing how Manus’s
detail could only likely be for a “lower (GS 11)” role, even though she was a GS -14
level employee).) And there is no basis whatsoever for Manus’s suggestion that
Brachman’s criticism of her work standing alone, or in conjunction with his alleged
preference for younger employees, was sufficiently adverse to alter the terms of
conditions of her employment.
To be sure, a materially adverse action in the Title VII retaliation context
“encompass[es] a broader sweep of actions than those in a pure discrimination claim,”
Baloch, 550 F.3d at 1198 n.4, because it includes to conduct that “would have
‘dissuaded a reasonable worker from making or supportin g a charge of
discrimination[,]’” id. at 1198 (quoting Burlington, 548 U.S. at 68). But it is also well
established that “[a] reprimand letter setting forth allegations of deficient work
performance is not a materially adverse action [for retaliation purposes] absent a
showing that the letter would have dissuaded a reasonable employee from engaging in
protected activity.” Durant v. District of Columbia, 875 F.3d 685, 698 (D.C. Cir.
2017); see also Baloch, 550 F.3d at 1199 (finding that a letter of reprimand containing
“job-related constructive criticism” but no “abusive language” was not materially
adverse).
Given these standards, it is clear to this Court that the record evidence does not
support a reasonable inference that Manus was subjected to an adverse employment
action for the purpose of either her ADEA discrimination or Title VII retaliation claim.
For example, while the record indicates that Brachman gave Manus negative reviews
21 and a performance counseling memorandum, there is no evidence of any tangible
consequences of getting such a memorandum, in terms of Manus’s salary or title. Nor
does the evidence demonstrate that the feedback was so insulting or extraordinary that
it would have dissuaded a person in Manus’s position from reaching out to the EO
office to complain about Brachman’s alleged mistreatment.
And the timing of Brachman’s critical reviews also undermines the conclusion
that his actions were undertaken to retaliate against Manus for her contacts with the
EEO office. Instead, the record demonstrates that Brachman’s critiques started
mounting shortly after he arrived on the job, which was long before Manus contacted
the EEO office to complaint about the criticism, and they continued up until Manus’s
retirement. See Salak v. Pruitt, 277 F. Supp. 3d 11, 22 (D.D.C. 2017) (explaining that,
“while causation can sometimes be inferred from a close temporal relationship between
the protected activity and the allegedly adverse action in retaliatio n cases, the sequence
truly matters” and “there is no evidence whatever of causality if the employer continues
to proceed along lines previously contemplated” (internal quotation marks, alterations,
and citation omitted)). The record also fails to demonstrate that Manus ever improved
her performance such that any continued criticism from Brachman could reasonably be
construed as retaliatory. See Crowley v. Perdue, 318 F. Supp. 3d 277, 295 (D.D.C.
2018) (holding that defendant’s decision to keep the plain tiff on a performance
improvement plan even after he met all objectives initially set out in that plan was an
adverse action).
Ultimately, the conduct that Manus relies upon to support her contention that she
was subjected to actionable adverse employment actions—including Brachman’s failure
22 to invite Manus to conferences and panels, or his allegedly more robust contacts with
younger employees (see Pl.’s Opp’n at 12)—merely amounts to the kind of non-
actionable “petty slights or minor annoyances that often take place at work [.]”
Burlington, 548 U.S. at 68. 4 And neither Title VII nor the ADEA “set forth a general
civility code for the American workplace.” Howard v. Kerry, 85 F. Supp. 3d 428, 435
(D.D.C. 2015) (quoting Burlington, 548 U.S. at 68); see also Nichols, 248 F. Supp. 3d
at 9. Therefore, this Court easily concludes that Manus has failed to offer proof of a
substantial change in her employment status or altered conditions that would have
discouraged the average worker from engaging in protected conduct.
B. The Record Evidence Does Not Support An Inference That Manus Was Constructively Discharged
To the extent that Manus contends that the adverse employment action at issue
with respect to her retaliation and discrimination claims was the loss of her job through
constructive discharge—i.e., that Brachman’s constant criticisms made her retirement
involuntary (see Pl.’s Opp’n at 19)—the Court further finds that Manus has failed to
establish constructive discharge under either the ADEA or Title VII.
As explained above, a constructive discharge is nothing more than “an
aggravated case of . . . hostile work environment,” Suders, 542 U.S. at 147; therefore, a
plaintiff who seeks to establish retaliation or discrimination on this basis must show not
only sufficient facts to prove a hostile work environment but also “working conditio ns
so intolerable that a reasonable person would have felt compelled to resign [,]” id. Here,
4 Manus’s contention that Brachman’s criticisms occasionally involved shaming and berating comments (see Manus Affidavit at 6) is not supported by the evidence ( see Def.’s Ex. 14, ECF No. 11-4, at 55 (containing the text of the e-mails in question)).
23 Manus asserts that Brachman’s performance counseling memorandum rose to this level
of intolerable conduct, because it was outside the normal process of a performance
evaluation, was formalized and put into her permanent work file, was delivered with a
hostile attitude, “required [her] to do about twice as many work assignments as her
usual workload,” and “was the most negative experience from a supervisor in her entire
career[.]” (Pl.’s Opp’n at 19; see also id. (contending that, after receiving the memo,
Manus “was effectively deprived of free choice in the matter su ch that [she] had no
alternative but to resign”).) But these acts by Brachman are neither “extreme” nor
“objectively and subjectively offensive,” Faragher v. City of Boca Raton, 524 U.S. 775,
787–88 (1998), and this is especially so in light of the benign circumstances in which
the performance counseling memo was drafted and presented to Manus. (See, e.g.,
Def.’s Ex. 20, ECF No. 11-5, at 6 (including an e-mail chain between Human Resources
and Brachman, with Human Resources following up about the draft memo, Brachman
apologizing for the delay in responding and asking Human Resources if performance
counseling was still the right approach, and Human Resources explaining their views on
why such a memo would be in Manus’s best interest).)
What is more, the record facts fall far short of further establishing that it was
Manus’s allegedly intolerable working environment that was the impetus for her
retirement. Indeed, quite to the contrary, the evidence concerning Manus’s quest for a
detail amply indicates that Manus was interested in leaving her post and retiring even
before Brachman became her supervisor. (See, e.g., Def.’s Ex. 25, ECF No. 11-5, at 21;
Def.’s Ex. 28, ECF No. 11-5, at 27.) Thus, Manus is hard pressed to say now that it
was Brachman’s subsequent critique of her work product and his alleged preference for
24 younger employees that overcame her will to remain such that she had no other choice
but to retire.
C. Manus Has Not Demonstrated That She Engaged In Any Protected Activity For The Purpose Of Her Title VII Retaliation Claim
Even if the record evidence was sufficient to demonstrate that Manus was
subjected to constructive discharge or any other adverse employment action, her Title
VII retaliation claim would still fail because there is no factual basis for the contention
that Manus engaged in protected activity prior to the negative feedback and other
conduct that allegedly forced her to retire.
Title VII’s anti-retaliation provision expressly protects two kinds of activity:
(1) “participation in EEO proceedings, such as making a charge, testifying, assisting, or
otherwise participating in an EEO investigation, proceeding, or hearing ,” Grosdidier v.
Broad. Bd. of Governors, 774 F. Supp. 2d 76, 107 (D.D.C. 2011), and (2) opposition to
“any practice made an unlawful employment practice” by Title VII, 42 U.S.C. § 2000e–
3(a), which includes discrimination based on “race, color, religion, sex, or national
origin,” id. § 2000e-2; see also Dunbar v. Foxx, 246 F. Supp. 3d 401, 414 (D.D.C.
2017). Courts in this district have also adopted a third theory of retaliation under Title
VII, often referred to as “perception theory,” which permits a plaintiff to recover if the
“employer punishes the employee based on its belief that the employee is engaging in
protected activity.” Murphy v. District of Columbia, 390 F. Supp. 3d 59, 71 (D.D.C.
2019). Manus appears to invoke the participation clause of the Title VII anti -retaliation
provision, because her motion stresses her meetings with the EEO office (see Pl.’s
Opp’n at 15–16) and so does her complaint (see Compl. ¶¶ 42–49), but there is no
25 allegation or evidence that Manus initially sought out the EEO office to complain about
discrimination prior to any of the alleged adverse actions that she identifies .
Indeed, Manus’s contemporaneous notes are quite clear that the purpose of her
early and frequent communications with the EEO was to try to arrange a detail with the
Music Department. (See, e.g., Def.’s Ex. 2E, ECF No. 11-3, at 43 (documenting the
fact that the EEO office let Manus know, on April 3, 2017, that the office was planning
to “talk to Ellis [Brachman] to try and work out [a] swap [detail]” between Manus and a
lower-level employee at the Music Division); Def.’s Ex. 35, ECF No. 11 -6, at 14
(mentioning that, on April 17, 2017, the EEO office contacted Manus to let her know
that “Ellis [Brachman] said OK to go ahead with ‘something’, for [Manus] to move to
[the Music Division]”).) Such activity does not fall under the participation clause of
Title VII’s anti-retaliation provision, see 42 U.S.C. § 2000e–3(a) (protecting employees
who “participate[] in any manner in an investigation, proceeding, or hearing under this
subchapter”), and there is simply no evidence that, by meeting with the EEO office in
March, April, and May of 2017, Manus was exploring or even thinking about the
possibility of bringing a discrimination claim against Brachman.
As for the meeting between Manus and the EEO office later on, in September of
2017, Manus once again raised the possibility of a detail assignment, but at this
meeting, for the first time, she also told the EEO staff that “she felt . . . she was in a
hostile work environment[,]” and she wondered if she could “file . . . an EEO complaint
if she retired[.]” (EEO Staff Deposition at 25; see also Def.’s Ex. 41, ECF No. 11-6, at
26 (saying that Manus reported that she was “being set up to fail in [her] job”).) This
meeting qualifies as protected activity within the meaning of the participation clause of
26 Title VII, see Bell v. Gonzales, 398 F. Supp. 2d 78, 94 (D.D.C. 2005) (holding that
“[i]nitiation of EEO counseling to explore whether an employee has a basis for alleging
discrimination constitutes protected activity, even in the absence of an unequivocal
allegation of discrimination”), but it occurred after Manus had received the
performance counseling memorandum from Brachman, which is the last allegedly
adverse action that Manus identifies prior to her retirement. Thus, the September 2017
EEO contact cannot be the protected activity that gave rise to Brachman’s allegedly
unlawful retaliatory act of providing the memorandum to Manus , as a matter of fact or
law. See Watkins v. Tex. Dep’t of Criminal Justice, 269 F. App’x 457, 461 (5th Cir.
2008) (holding that actions which “predate [the plaintiff’s] participation in any
protected activity” “cannot be retaliatory” under Title VII).
The “perception theory” of retaliation is also of no help to Manus, because the
uncontroverted record testimony makes clear that the EEO office contacted Brachman
in April of 2017 to inform him that Manus was interested in obtaining a detail in the
Music Division and, in so doing, also specifically stressed that “this is not an EEO
complaint, it’s not a grievance, it’s not an alternative . . . resolution dispute[.]” (EEO
Staff Deposition at 20 (emphasis added); see also Brachman Deposition at 10).) Manus
has alleged that Brachman knew of her meetings with the EEO office (see Compl. at
¶¶ 30–31), and has thereby suggested that Brachman perceived her to be making a claim
of discrimination to EEO officials, despite the EEO office’s disclaimers. But mere
assertions are not enough at the summary judgment state—evidence is required. And
there is simply nothing in the record before the Court to support the assertion that
Brachman actually believed that Manus had been in communication with the EEO office
27 to complain about discrimination or to otherwise engage in protected activity . See
Murphy, 390 F. Supp. 3d at 71.
In short, there is no genuine issue of fact concerning whether any of Manus’s
meetings with the Library’s EEO office qualified as protected activity that could
support a viable Title VII retaliation claim: as a matter of law, this Court finds that they
cannot. And there is similarly no genuine dispute over whether Brachman acted based
upon his belief that Manus was engaging in protected activity. Accordingly, and for
this reason alone, Manus’s Title VII retaliation claim cannot proceed.
IV. CONCLUSION
For the foregoing reasons, this Court concludes that Manus cannot proceed to
trial with respect to her Title VII retaliation claim or her DEA discrimination claim.
Therefore, as set forth in the accompanying Order, the Library’s motion for summary
judgment will be GRANTED.
DATE: May 23, 2020 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge