UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) GEORGE PEREZ, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-1484 (RBW) ) ISABELLA CASILLAS GUZMAN, ) in her official capacity as Administrator ) of the United States Small Business ) Administration, 1 ) ) Defendant. ) )
MEMORANDUM OPINION
The plaintiff, George Perez, an Hispanic male, asserts claims in this civil action against
the defendant, Jovita Carranza, in her official capacity as the Administrator of the United States
Small Business Administration, a federal agency, of discrimination based on race and the
creation of a hostile work environment, both in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), as amended, 42 U.S.C. § 2000(e) et seq. See Complaint (“Compl.”) ¶¶ 1–2.
Currently pending before the Court is the Defendant’s Motion for Partial Summary Judgment
and Partial Motion to Dismiss (“Def.’s Mot.”), ECF No. 9. Upon careful consideration of the
parties’ submissions, 2 the Court concludes for the following reasons that it must grant the
defendant’s partial motion to dismiss.
1 Isabella Casillas Guzman is the current Administrator of the United States Small Business Administration, and she is therefore substituted for Jovita Carranza as the proper party defendant pursuant to Federal Rule of Civil Procedure 25(d).
2 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) Memorandum of Law in Support of Defendant’s Motion for Partial Summary Judgment and Partial Motion to Dismiss (“Def.’s Mem.”), ECF No. 9; (2) Defendant’s Statement of Material Facts (“Def.’s Facts”), ECF No. 9-1; (3) Memorandum of Law in Support of Plaintiff’s Opposition to Defendant’s Motion for Partial Summary (continued . . .) I. BACKGROUND
The following facts are taken from the Complaint, unless otherwise indicated. The
plaintiff is an Hispanic male who is employed as an IT specialist, GS-13, by the Office of the
Chief Information Officer within the Small Business Administration. See Compl. ¶ 18. During
the time period relevant to this litigation, the plaintiff worked as a Branch Chief, GS-14, for the
Office of the Chief Information Officer, Division of Information Security, in the Small Business
Administration. See id. ¶¶ 17, 19. The plaintiff held that position from September 2015 until his
demotion in August 2016. See id. ¶ 19. Keith Bluestein (“Mr. Bluestein”), a Caucasian male,
was the plaintiff’s acting supervisor during the times relevant to this litigation. See id. ¶ 25.
According to the plaintiff, Mr. Bluestein, as the plaintiff’s supervisor, engaged in various
forms of discriminatory behavior or adverse action against the plaintiff. Specifically, the
plaintiff alleges that Mr. Bluestein generally “would not respect” the plaintiff’s opinions, see
Pl.’s Opp’n at 3, and that Mr. Bluestein would typically accept advice from Caucasian
employees but would “not accept such information from a person belonging to a minority
race[,]” see id. (citing Compl. ¶ 29). In one instance, Mr. Bluestein allegedly stated to the
plaintiff: “you people are always, you know, creating issues”, Compl. ¶ 34, and “‘you people’ are
constantly doing things like that, or ‘you people and your handshakes[,]’” id. ¶ 35. Furthermore,
during the plaintiff’s employment as a Branch Chief, Mr. Bluestein allegedly failed to provide
the plaintiff with a performance assessment. See Compl. ¶ 37.
Eventually, in February 2016, Mr. Bluestein revoked the plaintiff’s supervisory duties.
See Pl.’s Opp’n at 6 (citing Compl. ¶ 57). The plaintiff identifies one Caucasian supervisor who
(. . . continued) Judgment and Partial Motion to Dismiss (“Pl.’s Opp’n”), ECF No. 10; and (4) Reply in Further Support of Defendant’s Motion for Partial Summary Judgment and Partial Motion to Dismiss (“Def.’s Reply”), ECF No. 12.
2 allegedly “had similar interactions with [Mr.] Bluestein on a regular basis[] but did not have her
supervisory duties removed.” Compl. ¶ 64. Moreover, in August 2016, Mr. Bluestein issued the
plaintiff a probation report and demoted the plaintiff to the position of an IT specialist. See Pl.’s
Opp’n at 6 (citing Compl. ¶¶ 62–65). After the plaintiff’s demotion, “a Caucasian Male was
hired to fulfill [his] former position as Branch Chief and was hired at a higher grade than [him].”
See Compl. ¶ 67. The plaintiff alleges that “management’s failure to provide [him] with a
performance assessment; management’s removal of [his] supervisory duties; management
issuance to [him] a ‘Probation Report;’ management’s providing [him] a lowered performance
rating; and [his] demotion of [ ] from his supervisory position” because of his Hispanic race
amounted to unlawful conduct under Title VII. Id. ¶ 85.
On December 12, 2016, the plaintiff filed a formal Equal Employment Opportunity
complaint with the Small Business Administration alleging discrimination and the creation of a
hostile work environment based on his race. 3 See id. ¶ 11. The Small Business Administration
investigated the plaintiff’s complaint, and the plaintiff then requested a hearing before the United
States Equal Employment Opportunity Commission (“EEOC”). See Compl. ¶¶ 11–12.
An EEOC administrative judge subsequently granted the Small Business
Administration’s Motion for Summary Judgment, see Def.’s Mot., Exhibit (“Ex.”) D (EEOC
Administrative Judge’s January 7, 2020, Order Entering Judgment and Decision (“EEOC
Decision”)), and the plaintiff then filed this action within ninety days after receipt of the Small
Business Administration’s final decision. See Compl. ¶ 15. On October 15, 2020, the defendant
3 The Complaint also contains allegations of a retaliatory hostile work environment based on “engagement in protected EEO activity.” Compl. ¶ 105. However, the plaintiff did not raise a retaliatory hostile work environment claim at the administrative level and that claim is no longer part of this case. See Pl.’s Opp’n at 10 (noting that the “[p]laintiff withdraws this basis[,]” in response to the defendant’s assertion that the plaintiff “did not raise a retaliatory hostile work environment claim at the administrative level”); see also Compl. ¶¶ 9–15 (neglecting to note which specific claims were raised at the administrative level).
3 filed its Motion for Partial Summary Judgment and Partial Motion to Dismiss, which is the
subject of this Memorandum Opinion. See generally Def.’s Mot.
II. STANDARD OF REVIEW 4
A Rule 12(b)(6) motion tests whether a complaint “state[s] a claim upon which relief can
be granted[.]” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss [under Rule 12(b)(6)], 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 claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw [a] reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
In evaluating a motion to dismiss under Rule 12(b)(6), “the Court must construe the
complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be
derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
(internal quotation marks omitted). While the Court must “assume [the] veracity” of any “well-
pleaded factual allegations” in a complaint, conclusory allegations “are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. Thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing
Twombly, 550 U.S. at 555). Also, the Court need not “accept legal conclusions cast as factual
allegations[,]” or “inferences drawn by [the] plaintiff if those inferences are not supported by the
facts set out in the complaint[.]” Hettinga, 677 F.3d at 476. In resolving a Rule 12(b)(6) motion,
the Court “may consider only the facts alleged in the complaint, any documents either attached to
4 In light of the plaintiff’s withdrawal of the retaliatory aspect of his hostile work environment claim, the Court need not set forth the standard for summary judgment pursuant to Federal Rule of Civil Procedure 56.
4 or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice.”
Equal Emp. Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.
Cir. 1997).
III. ANALYSIS
The defendant seeks dismissal of the plaintiff’s hostile work environment claim and the
component of his discrete discrimination claim based on the alleged failure to provide an
assessment of his performance. 5 See Def.’s Mem. at 1. Specifically, the defendant challenges
the plausibility of the allegations that underly these claims. Id. The plaintiff responds “that his
claims are timely and properly exhausted[,]” and that he “has sufficiently stated a plausible
hostile work environment claim . . . and a plausible discrimination claim concerning the failure
to provide [him with] a performance assessment.” Pl.’s Opp’n at 1. The Court will address each
of the plaintiff’s claims in turn, beginning with the plaintiff’s hostile work environment claim.
A. Hostile Work Environment
The defendant argues that the Complaint fails to plausibly plead a hostile work
environment claim because “[t]here is no allegation in [the plaintiff]’s complaint showing
‘discriminatory intimidation, ridicule, and insult’ based on his race, such as any utterance about
his race or any physical threat. Def.’s Mem. at 6 (quoting Carter v. Carson, 715 F. App’x 16, 17
(D.C. Cir. 2018)). The defendant also asserts that the plaintiff “appears to be cobbling together
actions that he disliked or may have found humiliating[ t]hat do[] not suffice to state a hostile
work environment claim.” Id. at 7. Moreover, the defendant takes issue with the plaintiff’s
5 The defendant also moves for dismissal and summary judgment for the retaliatory aspect of the plaintiff’s hostile work environment claim. See Def.’s Mot. at 1. However, as previously noted, the plaintiff has “withdraw[n] this basis[,]” in response to the defendant’s assertion that the plaintiff failed to raise this retaliatory aspect at the administrative level. Pl.’s Opp’n at 10. Accordingly, the Court grants the defendant’s motion to the extent it seeks dismissal of any claim that the plaintiff was subject to retaliation through the creation of a hostile work environment.
5 purported reliance on “discrete acts” and failure “to provide non-conclusory factual support for
the requisite linkage between whatever allegedly hostile or harassing behavior [the plaintiff]
relies upon and [the plaintiff]’s race.” Id. at 8.
In response, the plaintiff argues that his Complaint “me[e]t[s] his burden in establishing a
prima facie hostile work environment claim” because it “show[s] that he was subjected to
intimidation, ridicule, and insult as a result of Mr. Bluestein’s actions.” Pl.’s Opp’n at 17.
According to the plaintiff, various offensive “comments coupled with Mr. Bluestein’s failure to
provide [the plaintiff] with a [Fiscal Year] 2016 performance assessment, demotion[,] and
issuance of a probation report created a hostile, abusive work environment.” Id. at 17–18.
Despite these responses, the Court ultimately agrees with the defendant that the plaintiff has
failed to adequately allege a hostile work environment claim.
“A plaintiff may prevail on a hostile work environment claim if []he shows ‘that [his]
employer subjected [him] to discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of [his] employment and create an abusive working
environment.’” Jackson v. Gallaudet Univ., 169 F. Supp. 3d 1, 4 (D.D.C. 2016) (quoting Baloch
v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)). “In evaluating a plaintiff’s allegations,
courts must consider ‘all the circumstances’: ‘the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.’” Massaquoi v.
District of Columbia, 81 F. Supp. 3d 44, 52 (D.D.C. 2015) (Walton, J.) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). The “objective severity of harassment should be
judged from the perspective of a reasonable person in the plaintiff’s position.” Oncale v.
Sundowner Offshore Servs., 523 U.S. 75, 81 (1998). “These standards for judging hostility are
6 sufficiently demanding to ensure that Title VII does not become a general civility code . . . [and]
filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic
use of abusive language, gender-related jokes, and occasional teasing.” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998) (internal citation and quotation marks omitted). Additionally,
“[a] hostile work environment claim is ‘based on the cumulative effect of individual acts,’”
Jackson, 169 F. Supp. 3d at 5 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115
(2002)), and the allegedly discriminatory acts underlying a hostile work environment claim
“must be adequately connected to each other (i.e., ‘all acts which constitute the claim are part of
the same unlawful practice’) as opposed to being an array of unrelated discriminatory or
retaliatory acts.” Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir. 2011) (citation omitted).
“Except in extreme circumstances, courts have refused to hold that one incident is so severe to
constitute a hostile work environment. Even a few isolated incidents of offensive conduct do not
amount to actionable harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002)
(citations omitted).
Here, the plaintiff alleges that he
was regularly and continually subjected to harassing conduct that is alleged throughout [the] Complaint, including but not limited to management’s failure to provide [him] with a performance assessment; management’s removal of [his] supervisory duties; management issuance to [him] a ‘Probation Report;’ management’s providing [him] a lowered performance rating; and demotion . . . from his supervisory position, all in violation of Title VII.”
Compl. ¶ 101. With respect to these allegations, “[t]he plaintiff’s hostile work environment
claim is essentially an amalgamation of his discrimination and retaliation claims[]” that the Court
is “reluctant to transform . . . into a cause of action for hostile work environment.’” Massaquoi,
81 F. Supp. 3d at 53 (quoting Wade v. District of Columbia, 780 F. Supp. 2d 1, 19 (D.D.C.
2011)); see also Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (stating that “[n]or
7 can the removal of important assignments, lowered performance evaluations, and close scrutiny
of assignments by management be characterized as sufficiently intimidating or offensive in an
ordinary workplace context” to constitute a hostile work environment).
The plaintiff additionally alleges that Mr. Bluestein failed to respect the plaintiff’s
“expressed opinions, or the feelings [the plaintiff] had towards certain issues or concerns at
work,” Compl. ¶ 28, and that Mr. Bluestein “would take the opinions and advice given by
identified Caucasian employees under his Command, but not accept such information from a
person belonging to a minority race[,]” id. ¶ 29. In this regard, the plaintiff identifies one
specific instance when Mr. Bluestein disregarded the plaintiff’s suggestion to report a system
failure and subsequently reported the finding after a Caucasian employee made the same
suggestion. See id. ¶ 32. The plaintiff also alleges that Mr. Bluestein made two discriminatory
comments to the plaintiff: “you people are always, you know, creating issues”, id. ¶ 34, and
“‘you people’ are constantly doing things like that, or ‘you people and your handshakes[,]’” id.
¶ 35.
However, “mere reference to alleged disparate acts of discrimination against [the]
plaintiff cannot be transformed, without more, into a hostile work environment.” Massaquoi, 81
F. Supp. 3d at 53 (quoting Nurriddin, 674 F. Supp. 2d at 94). Here, the plaintiff’s allegations
largely amount to “isolated incidents of offensive conduct,” Stewart, 275 F.3d at 1134, or “mere
offensive utterance[s],” Massaquoi, 81 F. Supp at 52 (quoting Harris, 510 U.S. at 23). In
alleging only a handful of instances of objectionable conduct, the plaintiff’s hostile work
environment claim does little to rise above “attack[ing] the ordinary tribulations of the
workplace”, Faragher, 524 U.S. at 788 (internal citation and quotation marks omitted)
(referencing “the sporadic use of abusive language[] . . . and occasional teasing[]”). “Although
8 incidents of discrimination or retaliation can establish a hostile work environment if connected to
a pervasive pattern of severe harassment, the actions alleged by the plaintiff here do not rise to
that level.” Massaquoi, 81 F. Supp. at 53 (emphasis added). Indeed, “[i]t has long been clear in
this district that isolated incidents of offensive language and even ethnic or racial slurs do not
‘affect the conditions of employment to [a] sufficiently significant degree to violate Title VII.’”
Nagi v. Chao, Civil Action No. 16-2152 (KBJ), 2018 WL 4680272, at *3 (D.D.C. Sept. 28,
2018) (quoting Deloatch v. Harris Teeter, Inc., 797 F. Supp. 2d 48, 62 (D.D.C. 2011)).
Accordingly, the Court concludes that the plaintiff has failed to allege “that the defendant
has engaged in a pervasive or severe pattern of harassment[,]” Massaquoi, 81 F. Supp. 3d at 53,
sufficient to plausibly state a hostile work environment claim, and the Court must grant the
defendant’s motion to dismiss with respect to that claim. Having reached this conclusion, the
Court now turns to the defendant’s challenge to the plaintiff’s discrimination claim based on the
alleged failure to provide the plaintiff a performance assessment.
B. Discrimination Based on the Failure to Provide a Performance Assessment
The defendant argues that “the alleged failure to provide a performance assessment[ ]
does not amount to a materially adverse employment action for the purposes of a discrimination
claim.” Def.’s Mem. at 11. The defendant also contends that “[t]he [C]omplaint fails to allege
any objectively tangible harm from the alleged failure to provide a performance assessment.” Id.
In opposition, the plaintiff argues that “Mr. Bluestein’s failure to provide an assessment did
constitute an adverse employment action [because] . . . [it] significantly impacted [the plaintiff]’s
ability to be promoted to a GS-15 position[,]” and hindered the plaintiff’s “path to cash
awards[.]” Pl.’s Opp’n at 15. The Court agrees with the defendant that the plaintiff has not
9 adequately demonstrated that the alleged failure to provide him a performance evaluation was a
sufficiently adverse employment action.
“‘[T]he two essential elements of a [Title VII] discrimination claim are that (i) the
plaintiff suffered an adverse employment action (ii) because of the plaintiff’s race, color,
religion, sex, national origin, [or] age.’” Massaquoi, 81 F. Supp. 3d at 49 (quoting Baloch, 550
F.3d at 1196). “An ‘adverse employment action’ is ‘a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits.’” Casey v. Mabus, 878 F.
Supp. 2d 175, 183 (D.D.C. 2012) (quoting Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C. Cir.
2011)). An adverse employment action involves “‘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.’” Id. (quoting Forkkio v. Powell,
306 F.3d 1127, 1131 (D.C. Cir. 2002)). “Because adverse employment actions must be
‘significant’ and entail ‘objectively tangible harm,’ the Supreme Court has recognized that ‘in
most cases [adverse employment actions] inflict[] direct economic harm.” Id. (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998)). Therefore, courts have routinely
limited adverse employment actions under Title VII to “‘ultimate employment decisions such as
hiring, granting leave, discharging, promoting, and compensating . . . [and not] interlocutory or
mediate decisions having no immediate effect upon employment conditions.’” Id. (quoting
Taylor v. FDIC, 132 F.3d 753, 764 (D.C. Cir. 1997)). “[E]mployment actions that do not
obviously cause a significant change in employment status[ ] . . . require the plaintiff to ‘go the
further step’ of demonstrating how the decision caused objectively tangible harm.” Ames v.
10 Nielson, 286 F. Supp. 3d 70, 83 (D.D.C. 2017) (quoting Douglas v. Donovan, 559 F.3d 549, 556
D.C. Cir. 2009)).
In his Complaint, the plaintiff alleges adverse employment actions “including but not
limited to, management’s failure to provide [him] with a performance assessment; management’s
removal of [the plaintiff]’s supervisory duties; management issuance to [the plaintiff] a
“Probation Report;” management’s providing [the plaintiff] a lowered performance rating; and
demotion of [the plaintiff] from his supervisory position, all in violation of Title VII.” See
Compl. ¶ 85. The plaintiff alleges that these actions “materially affected the terms, privileges,
and conditions of [the] [p]laintiff’s employment since he had a significant change in his duties
and responsibilities, and consequent abilities to compete for higher grades and promotions.” See
id. ¶ 86. Specifically, the plaintiff contends that the lack of a performance assessment
contributed to the plaintiff’s subsequent probation and demotion. See id. ¶¶ 71-72. The plaintiff
additionally alleges that his accomplishments were repeatedly removed from the official
performance record system, see id. ¶¶ 73-74, and that Mr. Bluestein subsequently issued the
plaintiff a “lower than deserved performance rating . . . which was used in the rationale for his
ultimate demotion[,]” id. ¶ 78. The plaintiff also alleges that Mr. Bluestein issued the probation
report and low performance rating because Mr. Bluestein wanted “to demonstrate that [the
plaintiff] could not perform in the capacity of a supervisor and additionally to return [the
plaintiff] to his previous grade.” Id. ¶ 81.
Ultimately, the Complaint’s allegations do not demonstrate that the purported failure to
provide a performance assessment constitutes a sufficiently adverse employment action under
Title VII. “Because ‘significant’ and ‘objectively tangible’ harm is required, performance
evaluations ordinarily are not actionable under Title VII.” Douglas, 559 F.3d at 552. As with
11 the existence of a poor performance assessment, the lack of a performance assessment of any
kind would “not necessarily [be an] adverse action[] and [it] should not be considered such if [it]
did not affect the employee’s grade or salary.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir.
2003). Accordingly, the plaintiff “must go the further step of demonstrating how the decision [ ]
caused such an objectively tangible harm.” Douglas, 559 F.3d at 553. However, the plaintiff
now contends, in his opposition, that the lack of an assessment “significantly impacted [his]
ability to be promoted to a GS-15 position[,]” and hindered his “path to cash awards[.]” Pl.’s
Opp’n at 15. Although these allegations contribute to the likelihood that the failure to provide
the plaintiff with a performance assessment constituted an adverse action, see Douglas, 559 F.3d
at 553 (“[S]ome actions do not obviously cause a significant change in employment status”),
these bases are not alleged in the Complaint, see Wright v. U.S. Dep’t of Justice, 121 F. Supp. 3d
171, 175 n.2 (D.D.C. 2015) (“[I]t is a well-established principle of law in this Circuit that a
plaintiff may not amend [his] complaint by making new allegations in [an] opposition brief.”)
And even if they were alleged in the Complaint, the harm that might result from the lack of a
performance evaluation “viewed in isolation is[,]” nonetheless, “speculative.” Douglas, 559 F.3d
at 556 (citing Weber v. Battista, 494 F.3d 179, 184–85 (D.C. Cir. 2007)). Therefore, at most, the
allegations in the Complaint merely show that Mr. Bluestein’s alleged failure to provide a
performance assessment represents an interlocutory decision that did not, alone, cause the
plaintiff objectively tangible harm or impaired his ability to obtain future promotional
opportunities.
Accordingly, the Court concludes that the plaintiff has failed to sufficiently plead an
adverse employment action with respect to his discrimination claim for the alleged failure to
provide a performance, and the Court must grant the motion to dismiss on this claim.
12 IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must grant in part and deny in part
the defendant’s motion to dismiss. The motion is granted to the extent it seeks dismissal of the
plaintiff’s claims based on the alleged creation of a hostile work environment and the alleged
failure to provide him with a performance assessment. The motion is denied in all other respects.
SO ORDERED this 31st day of May, 2022. 6
REGGIE B. WALTON United States District Judge
6 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.