Phelan v. Mayorkas

• Court: District Court, District of Columbia
• Decided: September 25, 2025
• Docket: Civil Action No. 2024-0939
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGIS LEO PHELAN,

Plaintiff,

v. Civil Action No. 24 - 939 (LLA)

KRISTI NOEM,

Defendant.

MEMORANDUM OPINION

Regis Leo Phelan brings this reverse discrimination action against Kristi Noem in her

official capacity as the Secretary of Homeland Security.1 Mr. Phelan alleges that the Federal

Emergency Management Agency (“FEMA”) within the U.S. Department of Homeland Security

(“DHS”) discriminated against him, retaliated against him, and created a hostile work environment

in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., in connection

with his two unsuccessful applications for a leadership position in FEMA. Pending before the

court is the Secretary’s motion to dismiss. ECF No. 21. For the reasons explained below, the

court will grant the motion and dismiss Mr. Phelan’s case.

I. FACTUAL BACKGROUND

The following factual allegations drawn from Mr. Phelan’s amended complaint, ECF

No. 20, are accepted as true for the purpose of evaluating the motion before the court, Am. Nat’l

1 Mr. Phelan named former Secretary of Homeland Security Alejandro Mayorkas as Defendant, but Secretary Noem is “automatically substituted” as a party pursuant to Federal Rule of Civil Procedure 25(d). Ins. Co. v. Fed. Deposit Ins. Co., 642 F.3d 1137, 1139 (D.C. Cir. 2011). The court further takes

judicial notice of documents from the administrative proceedings underlying this action. Golden

v. Mgmt. & Training Corp., 319 F. Supp. 3d 358, 366 n.2 (D.D.C. 2018) (explaining that “[i]n

employment discrimination cases, courts often take judicial notice of [Equal Employment

Opportunity Commission (‘EEOC’)] charges and EEOC decisions” in evaluating a motion to

dismiss).

Mr. Phelan, an “Irish/Italian” American Caucasian man who is over sixty years of age,

joined DHS as a Grant Specialist in 2006. ECF No. 20 ¶¶ 77, 135. He was subsequently hired as

a Federal Coordinating Officer (“FCO”) at FEMA and completed details to Senior Executive

Service (“SES”) positions within the agency. Id. ¶¶ 26, 77.

In May 2017, Mr. Phelan was involuntarily transferred from his position as an FCO to a

detail in FEMA’s Office of Equal Rights (“OER”), a position with “an undefined status and no

clear position or duty station.” Id. ¶¶ 2, 12. No female FCOs were similarly transferred. Id. ¶ 3.

The day after his transfer, Mr. Phelan traveled to the District of Columbia to file a complaint with

the then-Acting Administrator of FEMA. Id. ¶ 4. Mr. Phelan also “appealed to” FEMA managers,

FEMA’s Office of Professional Responsibility, DHS’s Office of the Inspector General, and its

Office of Special Counsel. Id. ¶¶ 4-5. After he opposed the involuntary transfer, Mr. Phelan was

never deployed as an FCO again and was demoted. Id. ¶ 7.

In September 2017, Mr. Phelan was asked to serve as OER’s Acting Director, and he held

this position until July 2018. Id. ¶¶ 14, 22. In December 2021, Mr. Phelan applied to become the

Director of OER. Id. ¶¶ 21-22; ECF No. 23-1, at 3.2 Mr. Phelan was among six competitive

2 When citing ECF Nos. 1-1, 21-1, and 23-1, the court uses the page numbers generated by CM/ECF, rather than the document’s internal pagination.

2 candidates who were identified and referred to a three-member screening panel. ECF No. 21-1,

at 50-51. The panel rated each candidate as “Not Qualified,” “Qualified,” or “Highly Qualified.”

Id. Mr. Phelan received an overall rating of “Qualified,” while two candidates received ratings of

“Highly Qualified” and were referred for interviews. Id.; ECF No. 20 ¶¶ 30, 72. The screening

panel expressed a preference for candidates with “a full career in civil rights who had a law

degree,” but those criteria were not listed in the position description. ECF No. 20 ¶¶ 27-28, 75-76,

84-88, 120, 128, 130-31. In February 2022, Mr. Phelan was notified that he would not receive an

interview. Id. ¶ 69; ECF No. 1-1, at 3.

None of the candidates was ultimately selected for the position, ECF No. 20 ¶ 72, and the

vacancy announcement for the position was canceled, id. ¶¶ 113-14. After the cancellation,

Mr. Phelan asked for the names of the members of the screening panel and information about the

hiring process, id. ¶¶ 100, 102, but the Director of Executive Resources denied his request, id.;

ECF No. 1-1, at 3.

FEMA reposted the OER Director position on March 24, 2022. ECF No. 21-1, at 81.

Mr. Phelan reapplied for the position and was one of seven candidates referred to a new

three-member screening panel. Id. at 91-93. Like the first panel, the second screening panel

preferred a candidate with a law degree. ECF No. 20 ¶¶ 87-88. Mr. Phelan received an overall

rating of “Not Qualified” from the second panel, although some panel members initially gave him

higher ratings before they met as a panel to finalize their recommendations. Id. ¶¶ 53-57, 140-45;

see ECF No. 21-1, at 90-93; ECF No. 23-3. As a result, Mr. Phelan was notified on May 27 that

he would not receive an interview. ECF No. 20 ¶ 132. The panel rated four candidates as “Highly

Qualified,” referred each for an interview, and ultimately selected Leslie Saucedo, a Hispanic

female attorney who had been serving as OER’s Acting Director since July 2020 to fill the

3 position. Id. ¶¶ 33, 37, 58; ECF No. 21-1, at 91-92. Mr. Phelan requested information about the

hiring process, but FEMA “ignored” his request. ECF No. 20 ¶ 132.

II. PROCEDURAL HISTORY

Mr. Phelan first contacted a DHS equal employment opportunity (“EEO”) counselor on

March 26, 2022. ECF No. 20 ¶ 25; ECF No. 21-1, at 3. On April 25, he filed a formal EEO

complaint alleging that FEMA had “subjected him to a hostile work environment and

discriminated against him on the bases of race (Caucasian), national origin (Italian/Irish

American), sex (male), color (white), and reprisal for prior protected EEO activity” when it

(1) denied his request for the names of the members of the first screening panel for the OER

Director position; (2) canceled the original vacancy announcement for the OER Director position;

(3) declined to interview him for the OER Director position in February 2022; and (4) declined to

interview him for the reposted OER Director position in May 2022 and subsequently ignored his

request for information about the hiring process. ECF No. 21-1, at 3 (formal complaint); ECF

No. 1-1, at 2 (EEOC decision).3 DHS completed an investigation, provided Mr. Phelan with a

copy of the investigation report, and notified him of his right to request a hearing before an EEOC

administrative judge (“AJ”), which he did. ECF No. 1-1, at 3. An EEOC AJ thereafter determined

that Mr. Phelan had not sufficiently alleged employment discrimination, and that, even if he had,

FEMA had legitimate, nondiscriminatory reasons for its actions. Id. The EEOC’s Office of

Federal Operations affirmed the AJ’s decision in January 2024. Id. at 2.

3 It appears that Mr. Phelan amended his formal EEO complaint to add the fourth allegation concerning his non-selection in May 2022, which occurred after he filed his initial complaint in April.

4 In March 2024, Mr. Phelan, proceeding pro se, filed suit in this court. ECF No. 1. In June,

through counsel, he refiled the complaint. ECF No. 5. In September, after the Secretary had

moved to dismiss, ECF No. 15, Mr. Phelan filed an amended complaint, ECF No. 20. The

Secretary again moved to dismiss, ECF No. 21, and that motion is fully briefed, ECF Nos. 21, 23,

24.

III. LEGAL STANDARDS

A. Motion to Dismiss for Failure to State a Claim

Under Federal Rule of Civil Procedure 12(b)(6), the court will dismiss a complaint that

does not “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 has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. In evaluating a motion under Rule 12(b)(6), a court accepts all

well-pleaded factual allegations in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam); see also Atherton v. D.C. Off. of the Mayor, 567 F.3d 672, 681 (D.C. Cir.

2009). Although the plausibility standard does not require “detailed factual allegations,” it

“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do.” Twombly, 550 U.S. at 555. Nor will “‘naked assertion[s]’ devoid of ‘further

factual enhancement’” suffice. Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly,

550 U.S. at 557).

While a Title VII plaintiff need not establish a prima facie case of discrimination,

retaliation, or hostile work environment at the pleading stage, he must allege sufficient facts

beyond mere legal conclusions to allow the court to draw a reasonable inference of discrimination,

5 retaliation, or hostile work environment from the complaint. See Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 510-11 (2002). “If a Title VII plaintiff fails to plead ‘sufficient factual matter’ to

state a . . . claim that is ‘plausible on its face,’ then the district court should dismiss the case before

discovery.” Chambers v. District of Columbia, 35 F.4th 870, 878 (D.C. Cir. 2022) (en banc)

(quoting Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015)).

In determining whether a complaint fails to state a claim, a court may consider only the

facts alleged in the complaint and “any documents either attached to or incorporated in the

complaint and matters of which [the court] may take judicial notice.” N. Am. Butterfly Ass’n v.

Wolf, 977 F.3d 1244, 1249 (D.C. Cir. 2020) (alteration in original) (quoting Hurd v. District of

Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017)). As noted, the court may take judicial notice of

Mr. Phelan’s EEO materials without converting a motion to dismiss into one for summary

judgment. Golden, 319 F. Supp. 3d at 366 n.2.

B. Leave to Amend

Under Federal Rule of Civil Procedure 15(a)(2), when a plaintiff is not entitled to amend

his complaint as a matter of course, he may amend only “with the opposing party’s written consent

or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The court should freely grant such leave “when

justice so requires.” Id. “[T]he grant or denial of leave to amend is committed to a district court’s

discretion.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). However, “it is an abuse

of discretion to deny leave to amend unless there is sufficient reason, such as ‘undue delay, bad

faith or dilatory motive[,] repeated failure to cure deficiencies by [previous] amendments[,] [or]

futility of amendment.’” Id. (second and fourth alterations in original) (quoting Foman v. Davis,

371 U.S. 178, 182 (1962)). “If the district court denies leave [to amend], it must state its reasons.”

Barkley v. U.S. Marshals Serv. ex rel. Hylton, 766 F.3d 25, 38 (D.C. Cir. 2014).

6 IV. DISCUSSION

While Mr. Phelan’s amended complaint is far from a model of clarity, he appears to allege

that FEMA violated Title VII by discriminating against him based on his race, color, national

origin, sex, and age; retaliating against him for engaging in protected activity; and creating a hostile

work environment. See ECF No. 20 ¶¶ 98-152; see generally ECF No. 23. The Secretary argues

that Mr. Phelan failed to timely exhaust his administrative remedies for multiple claims, ECF

No. 21, at 10-13, and that his remaining claims fail on the merits, id. at 14-25. The court agrees.

A. Administrative Exhaustion

A plaintiff may not initiate a civil action under Title VII until he has exhausted his

administrative remedies for each discrete discriminatory or retaliatory act. Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 113 (2002). Exhaustion allows federal agencies “to handle matters

internally whenever possible.” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). The exhaustion

process begins when a federal employee “initiate[s] contact” with his agency’s EEO counselor,

which must be done within forty-five days of the alleged discriminatory or retaliatory act.

29 C.F.R. § 1614.105(a)(1) (2024). “Each discrete discriminatory act starts a new clock for filing

charges alleging that act”—meaning that any claim arising out of an act not raised with an EEO

counselor within forty-five days cannot be pursued. Morgan, 536 U.S. at 113.

The forty-five-day rule differs slightly in the context of hostile work environment claims,

which “are different in kind from discrete acts.” Id. at 115. By nature, hostile work environment

claims “involve[] repeated conduct” and “therefore cannot be said to occur on any particular day”;

rather, they “occur[] over a series of days or perhaps years.” Id. Accordingly, a hostile work

environment claim is timely “[p]rovided that an act contributing to the claim occurs within the

filing period.” Id. at 117. But the act must be one that “contribut[es] to the claim.” Id. That is,

7 the untimely and timely actions must be “adequately connected to each other . . . as opposed to

being an array of unrelated discriminatory or retaliatory acts.” Baird v. Gotbaum, 662 F.3d 1246,

1252 (D.C. Cir. 2011).

If the employee’s grievance is not resolved through informal counseling, the employee may

file a formal complaint, which the agency investigates and adjudicates. 29 C.F.R. § 1614.106.

The issues raised in the formal administrative complaint are the ones that may be addressed in later

court proceedings. See Bain v. Off. of the Att’y Gen., 648 F. Supp. 3d 19, 44 (D.D.C. 2022). After

a formal complaint is filed, the agency has 180 days to investigate. 29 C.F.R. § 1614.106(e)(2).

The agency either provides a final decision within this time period, or it does not. Bain, 648 F.

Supp. 3d at 45. If it does, the employee has two choices: (1) appeal that decision to the EEOC

within thirty days; or (2) file suit in federal court within ninety days. See 42 U.S.C. § 2000e-16(c);

29 C.F.R. §§ 1614.401(a), 1614.402(a); see In re James, 444 F.3d 643, 644 (D.C. Cir. 2006).

Where the employee takes the first option, as Mr. Phelan did here, ECF No. 1-1, at 3, he may file

a civil action in federal district court after the EEOC has issued its final decision, 42 U.S.C.

§ 2000e-16(c); see Perry v. Raimondo, 101 F.4th 55, 57 (D.C. Cir. 2024).

The failure to exhaust administrative remedies is an affirmative defense, which means that

the defendant bears the burden to plead and prove the plaintiff’s failure to exhaust. Bowden v.

United States, 106 F.3d 433, 437 (D.C. Cir. 1997). Here, the Secretary argues that Mr. Phelan

failed to exhaust three categories of claims: (1) any claims based on his allegedly involuntary

8 May 2017 detail; (2) any age-based discrimination claims; and (3) any retaliation claims. ECF

No. 21, at 10-13. The court agrees with the Secretary on the first two but disagrees on the third.4

May 2017 detail. Mr. Phelan first contacted a DHS EEO counselor on March 26, 2022,

two days after FEMA reposted the OER Director position. See ECF No. 21, at 4-6; ECF No. 21-1,

at 3. That initial contact in March 2022 was well beyond the forty-five-day window from his

May 2017 detail to OER. Accordingly, Mr. Phelan failed to exhaust any discrimination or

retaliation claims related to his 2017 detail.

Mr. Phelan also failed to exhaust a hostile work environment claim concerning his

May 2017 detail. As noted, to be properly exhausted, untimely and timely actions must be

“adequately connected to each other.” Baird, 662 F.3d at 1252. Examples include incidents that

“involve[d] the same type of employment actions, occurred relatively frequently, and were

perpetrated by the same managers.” Panarello v. Zinke, 254 F. Supp. 3d 85, 101 (D.D.C. 2017)

(alteration in original) (quoting Morgan, 536 U.S. at 120). Mr. Phelan wholly fails to allege a

connection between his involuntarily detail to the OER in May 2017 and his concerns about his

non-selection for the OER Director position in 2022; accordingly, he may not rely on his May 2017

detail to support his hostile work environment claim.

Age-based claims. In his April 2022 formal EEO complaint, Mr. Phelan checked the boxes

for “race,” “color,” “national origin” and “gender,” but he did not check the box for “age.” ECF

4 As the Secretary points out in her reply brief, Mr. Phelan fails to address these and other deficiencies in his opposition brief; instead, he “merely restates the allegations in his [a]mended [c]omplaint,” almost verbatim. ECF No. 24, at 1; compare ECF No. 20 ¶¶ 1-152, with ECF No. 23, at 3-31 (quoting, with virtually no alterations, the contents of the amended complaint). “[A]n argument in a dispositive motion that the opponent fails to address in an opposition may be deemed conceded.” Rosenblatt v. Fenty, 734 F. Supp. 2d 21, 22 (D.D.C. 2010). While the court could deem the Secretary’s motion conceded, it will nevertheless address the merits of Mr. Phelan’s claims.

9 No. 21-1, at 3. Because “the scope of the administrative complaint determines the scope of

exhaustion,” Bain, 648 F. Supp. 3d at 47, the court concludes that Mr. Phelan has not properly

exhausted any claims related to age discrimination.5

Retaliation. In his April 2022 formal EEO complaint, Mr. Phelan checked the boxes for

“race,” “color,” “national origin” and “gender,” but he did not check the box for

“retaliation/reprisal.” ECF No. 21-1, at 3. While this would typically be fatal, as it was for his

age-related claims, the record reflects that Mr. Phelan’s narrative accompanying his formal

complaint included allegations of retaliation and that the agency and the EEOC treated his case as

involving retaliation claims. Specifically, after Mr. Phelan filed his formal EEO complaint in

April 2022, an employee in DHS’s EEO office emailed him, stating, in relevant part:

Good morning Mr. Phelan,

Thank you for your response. We are reviewing your additional claims and will provide a response to you. You identified retaliation as a basis; however, you did not select it on the formal complaint form you submitted, and it wasn’t selected on the counselor’s report (both are attached). If you select retaliation as a basis you must provide the dates of your prior EEO activity as requested on the form. Please provide the dates for your prior EEO activity and I’ll review and add retaliation as a basis.

Id. at 10. While the record before the court is incomplete, it appears that Mr. Phelan subsequently

provided information concerning his alleged retaliation, because the agency addressed retaliation

in its investigation, id. at 20 (management affidavit referring to retaliation), and the EEOC’s Office

of Federal Operations addressed retaliation in affirming the decision of the AJ, ECF No. 1-1, at 1.

5 In any event, Mr. Phelan may not pursue age-related claims under Title VII. See Musgrove v. District of Columbia, 775 F. Supp. 2d 158, 167 & n.7 (D.D.C. 2011) (explaining that “Title VII does not prohibit discrimination on the basis of age”).

10 Accordingly, the court will dismiss Mr. Phelan’s claims premised on his May 2017 detail

and his age, but it will proceed to the merits of his retaliation claims. This leaves the following

claims before the court:

▪ Claim One: Disparate treatment, retaliation, and hostile work environment premised on FEMA’s denial of Mr. Phelan’s request for the names of the members of the first screening panel for the OER Director position, ECF No. 20 ¶¶ 100-11;

▪ Claim Two: Disparate treatment, retaliation, and hostile work environment premised on FEMA’s cancellation of the original posting for the OER Director position, id. ¶¶ 112-25;

▪ Claim Three: Disparate treatment premised on FEMA’s decision not to refer Mr. Phelan for an interview for the OER Director position in February 2022, id. ¶¶ 126-31; and

▪ Claim Four: Disparate treatment premised on FEMA’s decision not to refer Mr. Phelan for an interview for the re-advertised OER Director position in May 2022 and the agency’s subsequent failure to provide him information about the hiring process, id. ¶¶ 132-52.

B. Failure to State a Claim

Mr. Phelan alleges that the Secretary violated Title VII by discriminating against him on

the basis of race, color, sex, and national origin, retaliating against him for protected activity, and

creating a hostile work environment. ECF No. 20 ¶¶ 100-52. The Secretary responds that

Mr. Phelan fails to plausibly allege discrimination, retaliation, or hostile work environment of any

kind under Title VII. ECF No. 21, at 13-25. The court agrees with the Secretary and will dismiss

Mr. Phelan’s remaining claims.

1. Disparate treatment

Under Title VII, it is unlawful for an employer to discriminate against an employee with

respect to his “compensation, terms, conditions, or privileges of employment” because of his “race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff bringing a claim

under Section 2000e-2(a)(1) must plead that (1) he belongs to a protected class; (2) he suffered an

11 adverse employment action; and (3) a causal connection exists between his protected characteristic

and the adverse employment action. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir.

2008). Because Mr. Phelan is a member of a protected class on the basis of his race, color, sex,

and national origin, the first element is satisfied. See Griggs v. Duke Power Co., 401 U.S. 424,

431 (1971) (holding that Title VII prohibits racial discrimination against both majority- and

minority-group plaintiffs). Accordingly, the court focuses its analysis on the second and third

elements: adverse action and causation.

Adverse action. The Secretary largely accepts Mr. Phelan’s allegations that he suffered

adverse actions and seeks to challenge the requirement only as it applies to the denial of his request

for the names of the members of the screening panel for the OER Director position in

February 2022 (Claim One) and his request for information about the hiring process in May 2022

(Claim Four). ECF No. 21, at 15-18. Mr. Phelan asserts that FEMA’s failure to provide the

requested information “adversely impacted [his] ability to determine where or if his application

was lacking.” ECF No. 20 ¶¶ 102-03. The Secretary responds that the denials of Mr. Phelan’s

requests were not adverse actions because they did not bring about a tangible change in his duties

or working conditions. ECF No. 21, at 16-18.

The Supreme Court recently clarified the standard for an actionable adverse employment

action in Muldrow v. City of St. Louis, 601 U.S. 346 (2024). There, the Court explained that a

plaintiff must simply allege “some harm” regarding the terms and conditions of his employment

to support a disparate treatment claim. Id. at 350. That holding is largely consistent with the

D.C. Circuit’s 2022 en banc decision in Chambers, in which the Circuit held that a plaintiff need

only show some change with respect to the terms and conditions of his employment (as opposed

to a heightened “objectively tangible harm”) to plead an adverse action. 35 F.4th at 874-75.

12 The Secretary argues that the adverse-action standard articulated in Chambers (and now

Muldrow) does not apply in this case because Mr. Phelan is covered by the federal-sector

provisions of Title VII, whereas the plaintiffs in Chambers (and Muldrow) were not. ECF No. 21,

at 15-18. In the Secretary’s view, a federal-sector plaintiff may only bring a claim based on an

adverse “personnel action” as defined by the Civil Service Reform Act, 5 U.S.C. § 2302(a)(2)(A).

Id. at 15. The court disagrees. The D.C. Circuit has consistently held that the private- and

federal-sector provisions of Title VII should be construed similarly. See Czekalski v. Peters, 475

F.3d 360, 363 (D.C. Cir. 2007); Singletary v. District of Columbia, 351 F.3d 519, 523-24

(D.C. Cir. 2003); see also Bain, 648 F. Supp. 3d at 54 (“[Chambers] did not so much as hint that

the private-sector and federal-sector discrimination provisions should no longer be construed alike.

If anything, it affirmed the status quo.”). Moreover, the Chambers Court overruled Brown v.

Brody, 199 F.3d 446 (D.C. Cir. 1999), which itself involved a federal employee, id. at 448; see

Chambers, 35 F.4th at 882. This suggests that the Chambers Court intended its interpretation of

the adverse action requirement, as subsequently informed by Muldrow, to apply to all Title VII

discrimination claims, not just those brought by employees in the private sector. See Chambers,

35 F.4th at 878-82.

In an attempt to circumvent Chambers, the Secretary argues that the Supreme Court’s

reasoning in Babb v. Wilkie, 589 U.S. 399 (2020), controls. In Babb, the Court interpreted the

federal-sector provision of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 633(a), holding that “age must be a but-for cause of discrimination—that is, of differential

treatment—but not necessarily a but-for cause of a personnel action itself.” 589 U.S. at 405-06.

In reaching this conclusion, the Court assumed that the meaning of “personnel action” in the

federal-sector provision of the ADEA was the same as the Civil Service Reform Act’s definition

13 of the term. Id. The Secretary contends that, since Title VII’s federal-sector provisions also use

the term “personnel action,” only adverse personnel actions as defined by the Civil Service Reform

Act are actionable for federal-sector Title VII plaintiffs. ECF No. 21, at 16-18. This difference

matters, in the Secretary’s view, because the Civil Service Reform Act includes in its definition of

personnel actions “other, unenumerated ‘change[s] in duties, responsibilities, or working

conditions’ only if they are ‘significant,’” id. at 15-16 (alteration in original) (quoting 5 U.S.C.

§ 2302(a)(2)(A)(xii)), and the “significant” change requirement is a higher standard than that

applied under Chambers.

However, the Babb Court’s assumption was just that—an assumption. The Court observed

that the Civil Service Reform Act’s definition of “personnel action” was “consistent with the

term’s meaning in general usage, and [the Court] assume[d] that it has the same meaning under

the ADEA.” Babb, 589 U.S. at 405. “That observation has no effect on whether that definition

must [also] govern Title VII federal-sector claims.” Doe v. Austin, No. 22-CV-3474, 2024 WL

864270, at *10 (D.D.C. Feb. 29, 2024). Accordingly, like several other judges in this district, this

court rejects the Secretary’s argument that Babb requires federal-sector Title VII plaintiffs to make

a different showing than private-sector Title VII plaintiffs to establish an adverse employment

action. See, e.g., Wilson v. Noem, No. 20-CV-100, 2025 WL 1000666, at *21-22 (D.D.C. Apr. 3,

2025) (noting that “Babb [was] nothing new” when the D.C. Circuit decided Chambers (quoting

Austin, 2024 WL 864270, at *10)); Stewart v. U.S. Dep’t of Agric., No. 23-CV-1194, 2024 WL

4332618, at *4 (D.D.C. Sep. 27, 2024) (holding that Babb did not alter the meaning of “personnel

action” in Title VII’s federal-sector provision); see also Turner v. Buttigieg, No. 23-CV-1665,

2024 WL 4346332, at *8 (D.D.C. Sep. 30, 2024) (declining to construe Chambers as limited to

private-sector Title VII suits); Cameron v. Blinken, No. 22-CV-31, 2023 WL 5517368, at *4

14 (D.D.C. Mar. 22, 2023) (same); Garza v. Blinken, No. 21-CV-2770, 2023 WL 2239352, at *5

(D.D.C. Feb. 27, 2023) (same); Bain, 648 F. Supp. 3d at 54-55 (same).6

Aside from her argument about the federal-sector provisions of Title VII, the Secretary

does not attempt to argue that the denials of Mr. Phelan’s requests for information do not constitute

adverse actions. ECF No. 21, at 15-18. Accordingly, the court concludes that Mr. Phelan has

sufficiently alleged that he suffered adverse actions when FEMA denied his request for the names

of the members of the first screening panel in February 2022 and ignored his request for

information about the hiring process in May 2022. The question, then, becomes one of causation.

Causation. With respect to each of Mr. Phelan’s remaining claims, the Secretary argues

that Mr. Phelan has failed to sufficiently allege a causal connection between any adverse action

and a protected characteristic. Id. at 18-22. The court agrees.

A plaintiff may plausibly allege a causal relationship between an adverse action and a

protected characteristic “by showing ‘that []he was treated differently from similarly situated

employees who are not part of the protected class.’” Brown v. Sessoms, 774 F.3d 1016, 1022

(D.C. Cir. 2014) (quoting George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005)). While the

burden is “not onerous” at the motion-to-dismiss stage, it requires more than the bald assertion that

there is a similarly situated comparator. SS & T, LLC v. Am. Univ., No. 19-CV-721, 2020 WL

1170288, at *4 (D.D.C. Mar. 11, 2020) (quoting Nanko Shipping, USA v. Alcoa, Inc., 850 F.3d

461, 467 (D.C. Cir. 2017)). “A plaintiff’s assertion that [he] is similarly situated to other[s] . . . is

just a legal conclusion—and a legal conclusion is never enough.” Id. at *5 (second and third

6 Indeed, the D.C. Circuit recently applied the Muldrow standard to a federal employee’s claim under the ADEA, the same statute at issue in Babb. Van Horn v. Del Toro, No. 23-5169, 2024 WL 4381186, at *2-3 (D.C. Cir. Oct. 3, 2024) (per curiam) (noting that the employer also conceded that the actions at issue were viable personnel actions under the ADEA).

15 alterations in original) (quoting Bekkem v. Wilkie, 915 F.3d 1258, 1275 (10th Cir. 2019)); see Keith

v. U.S. Gov’t Accountability Off., No. 21-CV-2010, 2022 WL 3715776, at *3 (D.D.C. Aug. 29,

2022) (granting a motion to dismiss for failure to state a claim and reasoning that “to plausibly

plead the causation element [through similarly situated comparators], [the plaintiff] must allege

some facts to ground a reasonable inference that the plaintiff was in fact similarly situated to

comparator employees”).

The court begins with Mr. Phelan’s claims that FEMA denied his request for the names of

the members of the first screening panel in February 2022 (Claim One) and ignored his request for

information about the hiring process in May 2022 (Claim Four). ECF No. 20 ¶¶ 100, 132.

Mr. Phelan states that he was entitled to this information under 5 C.F.R. § 317.501 and that he “is

not aware of any female, white or non-white, who was . . . denied information regarding the rating

of her job application to assist her in advancing in her career.” Id. ¶ 104. The trouble for

Mr. Phelan is twofold. First, Section 317.501 does not require FEMA to disclose specific

information like the names of members of a screening panel. Instead, it provides in relevant part:

Individuals are entitled to obtain information from an agency regarding the process used to recruit and select candidates for career appointment to SES positions. Upon request, applicants must be told whether they were considered qualified for the position and whether they were referred for appointment consideration. Also, they may have access to questionnaires or other written material regarding their own qualifications, except for material that would identify a confidential source.

5 C.F.R. § 317.501(e). Second, Mr. Phelan does not allege that a similarly situated comparator

asked for the same information and received it. In this way, he has failed to identify a specific

comparator who was treated more favorably. See, e.g., Jones v. Ass’n of Am. Med. Colls.,

No. 22-CV-1680, 2023 WL 2327901, at *11 (D.D.C. Mar. 2, 2023) (“Nowhere in [the plaintiff’s]

complaint does he proffer factual allegations describing ‘any comparator employees [outside of

16 his race], how they were similarly situated, or how they were treated differently than [him].’”

(second and third alterations in original) (quoting Harris v. Mayorkas, No. 21-CV-1083, 2022 WL

3452316, at *6 (D.D.C. Aug. 18, 2022))); SS & T, LLC, 2020 WL 1170288, at *4 (dismissing a

race discrimination claim under 42 U.S.C. § 1981 where the plaintiff failed to identify similarly

situated comparators); Beaulieu v. Barr, No. 15-CV-896, 2019 WL 5579968, at *4

(D.D.C. Oct. 29, 2019) (dismissing a Title VII claim where the plaintiff did not “identify any

‘comparator’ employees who were treated differently”). Because he only speculates about the

existence of similarly situated comparators, Mr. Phelan has failed to state a claim concerning his

requests for information about the screening panels and hiring process for the OER Director

position in February and May 2022.7

Mr. Phelan’s claim that the Secretary discriminated against him by canceling and

re-advertising the OER Director position in February 2022 (Claim Two), ECF No. 20 ¶ 112, also

fails for lack of a similarly situated comparator who was treated more favorably. Indeed, because

FEMA elected to cancel the vacancy announcement in February 2022, all applicants were treated

the same way: they were no longer eligible for the position. See Porter v. Shah, 606 F.3d 809, 816

(D.C. Cir. 2010) (holding that an “overhaul” of selection criteria that “affected all applicants

equally” and had “nothing in its text or about its circumstances [tying] it to discrimination” did not

indicate pretext); Adeyemi v. District of Columbia, 525 F.3d 1222, 1228-29 (D.C. Cir. 2008)

(holding that a re-advertising of a position to seek higher-level candidates was not indicative of

discrimination because all employees of the same level were passed over); Ginger v. District of

Columbia, 477 F. Supp. 2d 41, 48 (D.D.C. 2007) (finding no evidence of disparate treatment where

7 In any event, the Secretary has since revealed the identities of the screening-panel members to Mr. Phelan in the course of this case. See ECF No. 21-1, at 28 ¶ 79 (February 2022 screening panel members), 31 ¶ 115 (May 2022 screening panel members).

17 a unit reorganization “equally affected” all employees). In the absence of an allegation that a

similarly situated competitor was treated more favorably, Mr. Phelan cannot proceed with his

disparate treatment claim concerning FEMA’s decision to cancel the original vacancy

announcement for the OER Director position and re-advertise it.

This leaves Mr. Phelan’s claims about not being selected for an interview in February 2022

(Claim Three) and May 2022 (Claim Four). ECF No. 20 ¶¶ 126, 132. Mr. Phelan principally

claims that he should have been referred for an interview because he was more qualified for the

position than the other applicants, citing to his graduate degrees in Management and Education

from Johns Hopkins University and prior FEMA experience as an FCO. Id. ¶ 26. He argues that,

in light of his qualifications, his failure to make the interview list must have been due to

discrimination. Id. ¶ 113. Here again, Mr. Phelan’s allegations fall short because he fails to

connect his non-selection with any protected characteristic.

To survive a motion to dismiss, the complaint must allege facts sufficient to allow the court

“to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678. While, “[a]t the motion to dismiss stage, a plaintiff need not ‘rule out every

possible lawful explanation,’” he must “dispel any ‘obvious alternative explanation[s].’” Ho v.

Garland, 106 F.4th 47, 54 (D.C. Cir. 2024) (second alteration in the original) (quoting Wilson v.

Ark.-Dep’t of Human Servs., 850 F.3d 368, 373 (8th Cir. 2017)). Here, the “obvious alternative

explanation,” as Mr. Phelan himself concedes, is that the selection panels preferred a candidate

with a law degree, which Mr. Phelan does not have. ECF No. 20 ¶¶ 27-28, 75-76, 84-88, 120, 128,

130-31.

Mr. Phelan takes issue with the fact that the position description did not specify a

requirement or preference for a law degree, but that is of no moment. “[J]ob descriptions are often

18 phrased in general terms, and employers then make the ultimate hiring decision in light of more

specific factors.” Jackson v. Gonzales, 496 F.3d 703, 709 (D.C. Cir. 2007). An employer may

prefer a candidate due to the candidate’s particular qualifications, even when those qualifications

are not included in the original job description. See Banker v. Averill, No. 22-CV-1445, 2025 WL

2192983, at *3 (D.D.C. Aug. 1, 2025) (dismissing disparate treatment claim where the plaintiff

and the person hired both “possessed the necessary education and the event-planning experience

to satisfy the . . . criteria” for the position at issue); Baylor v. Powell, 459 F. Supp. 3d 47, 55

(D.D.C. 2020) (noting that courts should defer to the government’s decision to consider other

credentials and skills not expressly listed in the job description). Mr. Phelan does not dispute that

a law degree is a beneficial credential for the OER Director position, and he has thus failed to offer

sufficient allegations to draw a reasonable inference that one of his protected characteristics, as

opposed to his lack of a law degree, was the reason he was not selected for an interview. See ECF

No. 20 ¶ 27 (explaining that the panel preferred someone “with a full career in civil rights who had

a law degree” and therefore “reached the consensus that Mr. Phelan was qualified[,] but not [the]

best qualified”); ECF No. 21-1, at 46 (including requirement for “comprehensive knowledge of

principles and concepts of civil rights case laws” in the OER Director job description). Moreover,

“[w]hile facts showing that a job applicant was ‘significantly better qualified for the job’ than the

person hired may raise an inference of discrimination, ‘the qualifications gap must be great enough

to be inherently indicative of discrimination.’” Banker, 2025 WL 2192983, at *3 (first quoting

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en banc); then quoting Holcomb

v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006)). Mr. Phelan has not alleged facts suggesting a

significant qualifications gap between him and Ms. Saucedo, the candidate who was ultimately

selected for the position. To the contrary, he admits that Ms. Saucedo has a law degree, which he

19 does not, and around two decades of experience in private practice and the federal government.

See ECF No. 20 ¶¶ 35-40.8

While Mr. Phelan invokes his race, color, national origin, and sex multiple times

throughout his amended complaint, “bare allegations about h[is] protected status are insufficient

to show that the treatment [he] received . . . was because of” his protected statuses. Peters v.

District of Columbia, 873 F. Supp. 2d 158, 194 (D.D.C. 2012); see Yuvienco v. Vilsack,

No. 23-CV-186, 2024 WL 727712, at *3 (D.D.C. Feb. 22, 2024) (explaining that a plaintiff cannot

state a claim for discrimination by “merely . . . invok[ing] [his] race [or national origin] in the

course of a claim’s narrative” (second and fourth alterations in original) (quoting Doe #1 v. Am.

Fed’n of Gov’t Emps., 554 F. Supp. 3d 75, 105 (D.D.C. 2021))). Courts have routinely concluded

that such bare assertions are insufficient to survive a motion to dismiss. See, e.g., Webster v.

Burgum, No. 23-CV-3050, 2025 WL 1279355, at *4-5 (D.D.C. May 2, 2025) (dismissing a

complaint in which the plaintiff “fail[ed] to plead sufficient facts to plausibly suggest non-selection

was ‘because of’ his race”); Watkins v. Dep’t of Just., No. 23-CV-766, 2024 WL 4362156, at *5

(D.D.C. Sep. 30, 2024) (holding that the plaintiff’s exclusion from an opportunity for a promotion

did not constitute discrimination when she did not allege sufficient facts to tie that exclusion to her

protected class); Xiaofeng v. Pompeo, No. 15-CV-1040, 2019 WL 1697868, at *10-11

(D.D.C. Apr. 17, 2019) (dismissing a national-origin discrimination claim where the plaintiff did

“not allege any facts to link her failure to receive promotions to her national origin or accent”); cf.

Chappelle v. Becerra, No. 22-CV-87, 2024 WL 4332116, at *9 (D.D.C. Sep. 27, 2024) (holding

8 Mr. Phelan notes that at least one member of the second selection committee thought that one of the candidates who advanced to the interview stage had a law degree when she did not. ECF No. 20 ¶ 29; ECF No. 23, at 9. That does not undercut the panel’s preference for candidates with a law degree, and, in any event, Ms. Saucedo—the candidate who was ultimately hired—did have a law degree. ECF No. 20 ¶¶ 35, 135.

20 that a reasonable jury could infer discriminatory intent where an African-American male plaintiff

was not selected for an internal promotion, but two women, neither of whom possessed more

relevant experience than the plaintiff, were selected); McManus v. Kelly, 246 F. Supp. 3d 103,

111-13 (D.D.C. 2017) (denying a motion to dismiss the plaintiff’s discrimination claim where “the

only plausible explanation for FEMA’s decisions [wa]s that the agency was discriminating against

[the plaintiff] on the basis of her race and age”).

Nor do Mr. Phelan’s remaining allegations suggest sufficient causation to withstand a

motion to dismiss. For example, Mr. Phelan maintains that “FEMA has never had a non-minority

or male Office of Equal Rights Director,” ECF No. 20 ¶ 139, but he simultaneously states that he

served as the OER’s Acting Director from September 2017 to July 2018, id. ¶ 14; ECF No. 21,

at 22; see Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004) (“Nor must we accept as true the

complaint’s factual allegations insofar as they contradict exhibits to the complaint or matters

subject to judicial notice.”). He also alleges that a member of the second selection panel criticized

typos in his application while overlooking typos in Ms. Saucedo’s application, ECF No. 20

¶¶ 60-62, but he does not plausibly connect this to any protected characteristic. Finally, he

complains that the second selection panel did not interview him because some of his ratings

unfairly went down, whereas Ms. Saucedo’s ratings inexplicably improved, id. ¶¶ 142-47, but a

court “does not ‘second-guess how an employer weighs particular factors in the hiring decision,’”

Banker, 2025 WL 2192983, at *3 (quoting Jackson v. Gonzales, 496 F.3d 703, 709 (D.C. Cir.

2007)). Moreover, as support, Mr. Phelan cites an individual rating sheet that is unsigned by the

panel and contains a member’s preliminary ratings made before the panel met to discuss and

collectively rate candidates. Compare ECF No. 21-1, at 90-93 (final panel ratings), with ECF

No. 23-3 (individual ratings). The fact that certain ratings changed after the panel conferred is

21 neither unsurprising nor indicative of discrimination. See ECF No. 21-1, at 18-19, 27-28 (“The

screening panel reviews the documentation and provide[s] their individual ratings. The screening

panel convenes to provide their overall rating of each applicant to see who would be referred to

the interview panel.”).9 Accordingly, the mere fact that Mr. Phelan was not selected for an

interview for the OER Director position does not suffice to establish an inference of discrimination.

* * *

Because Mr. Phelan has not plausibly alleged that FEMA’s denial of his request for the

names of the members of the first screening panel in February 2022, its cancellation of the original

posting for the OER Director position, its decisions not to refer him for interviews in

February 2022 and May 2022, and its failure to provide him information about the hiring process

in May 2022 were connected to any protected characteristic, the court will dismiss his disparate

treatment claims.

2. Retaliation

Title VII “prohibits an employer from ‘discriminat[ing] against’ an employee . . . because

that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a charge, testified,

9 Specifically, Mr. Phelan takes issue with the ratings of panel members Paul Huang and Cynthia Sphisak, who downgraded some of their individual ratings after the panel’s discussion. In his opposition to the Secretary’s first motion to dismiss, Mr. Phelan attached an affidavit by Mr. Huang, which explains that the panel members evaluated candidates individually before “discuss[ing] [candidates’] qualifications” as a group and making “final recommendations.” ECF No. 18-3, at 3. Accordingly, a member’s preliminary ratings could naturally change after a discussion with the other panel members, and Mr. Phelan fails to allege any facts suggesting that this decisionmaking process was discriminatory. While Mr. Phelan did not attach Mr. Huang’s affidavit to his amended complaint or second opposition, the court will take judicial notice of the document. See Hall v. Dep’t of Com., No. 16-CV-1619, 2018 WL 2002483, at *1 (D.D.C. Apr. 30, 2018) (noting that a court may rely on documents not attached to an amended, operative complaint if “the documents were either ‘incorporated by reference in the complaint, or documents upon which the plaintiff’s complaint necessarily relies’” (quoting Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011))).

22 assisted, or participated in’ a Title VII proceeding or investigation.” Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 56 (2006) (first alteration in original) (quoting 42 U.S.C.

§ 2000e-3(a)). To establish retaliation, a plaintiff must allege that (1) he engaged in statutorily

protected activity; (2) he suffered a materially adverse action by his employer; and (3) a causal

link connects the protected activity and the adverse action. Jones v. Bernanke, 557 F.3d 670, 677

(D.C. Cir. 2009). An activity is considered “protected” under Title VII if it “involves opposing

alleged discriminatory treatment by the employer or participating in legal efforts against the

alleged treatment.” Beyene v. Hilton Hotels Corp., 815 F. Supp. 2d 235, 247 (D.D.C. 2011), aff’d

573 F. App’x 1 (D.C. Cir. 2014) (quoting Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d

76, 91-92 (D.D.C. 2006)).

Mr. Phelan alleges that the Secretary retaliated against him for complaining about his

May 2017 transfer by denying his request for information about the first screening panel

(Claim One) and canceling the original posting (Claim Two), both in February 2022. ECF No. 20

¶¶ 102-03, 108-09, 112, 115. The Secretary counters that Mr. Phelan did not engage in any

protected activity since his “[c]omplaint does not allege that [he] asserted discrimination based on

a protected characteristic when he complained to various FEMA officials” about his May 2017

transfer. ECF No. 21, at 15. The court again agrees with the Secretary. While Mr. Phelan alleges

that he complained to agency officials in the aftermath of his involuntary transfer, ECF No. 20

¶¶ 4-5, he does not allege that his complaints sounded in discrimination, see generally id. “Not

every complaint entitles its author to protection from retaliation under Title VII . . . because the

plaintiff must demonstrate that [he] complained to the employer of some unlawful discrimination

based on [his] membership in a protected class.” Keith, 2022 WL 3715776, at *5 (first alteration

in original) (quoting Belov v. World Wildlife Fund, Inc., No. 21-CV-1529, 2021 WL 4773236,

23 at *5 (D.D.C. Oct. 13, 2021)). Mr. Phelan cannot turn his earlier complaints into protected activity

by now asserting, years later, that his May 2017 transfer was unlawfully “based on his race, sex,

and age.” ECF No. 20 ¶ 108; see Ravenell v. Mayorkas, No. 22-CV-3548, 2024 WL 1344460,

at *13 (D.D.C. Mar. 29, 2024) (dismissing a retaliation claim where there was “no indication that

[the plaintiff’s] complaints involved any claims of unlawful discrimination under Title VII as

opposed to simply frustration about a workplace argument”); Belov, 2021 WL 4773236, at *6

(finding that the plaintiff’s workplace complaints did not constitute protected activity where she

did not “allege[] that she reported sex discrimination to Human Resources” or otherwise suggest

that “going to Human Resources about a travel dispute qualifie[d] as protected activity”).

Even if Mr. Phelan had engaged in protected activity, his retaliation claims would still fail

for lack of causation. Bernanke, 557 F.3d at 677. To establish causation, Mr. Phelan must allege

sufficient facts to suggest that his “protected activity was a but-for cause of the alleged adverse

action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). One way a plaintiff can

do so is “by showing that the employer had knowledge of the employee’s protected activity, and

that the adverse personnel action took place shortly after that activity.” Mitchell v. Baldrige, 759

F.2d 80, 86 (D.C. Cir. 1985). “Temporal proximity can . . . support an inference of causation, but

only where the two events are ‘very close’ in time.” Woodruff v. Peters, 482 F.3d 521, 529

(D.C. Cir. 2007) (citation omitted) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,

273-74 (2001)). While there is no bright-line rule, “the Supreme Court has cited circuit decisions

suggesting that[,] in some instances[,] a three-month period between the protected activity and the

adverse employment action may, standing alone, be too lengthy to raise an inference of causation.”

Hamilton v. Geithner, 666 F.3d 1344, 1357-58 (D.C. Cir. 2012).

24 Mr. Phelan alleges that he complained to the then-Acting Director of FEMA about his

allegedly involuntary transfer “immediately (the next day)” after it occurred in May 2017. That

was four-and-a-half years before FEMA denied his request for the names of the members of the

first screening panel in February 2022. Such a long gap cannot support an inference of causation.

See Tallbear v. Perry, 318 F. Supp. 3d 255, 263-64 (D.D.C. 2018) (dismissing a retaliation claim

where the protected activity occurred eight months before the alleged adverse action); Wilson v.

Mabus, 65 F. Supp. 3d 127, 133-34 (D.D.C. 2014) (finding that a four-month gap could not support

an inference of causation); Bergbauer v. Mabus, 934 F. Supp. 2d 55, 86 (D.D.C. 2013) (same).

Mr. Phelan alleges no other basis for a causal connection between his protected activities and any

adverse action. Accordingly, the court will dismiss his retaliation claims in Claims One and Two.

3. Hostile Work Environment

To survive a motion to dismiss a hostile work environment claim, the plaintiff must

sufficiently allege that his “workplace is permeated with ‘discriminatory intimidation, ridicule,

and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of [his] employment and

create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)

(citation omitted) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). “[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). In determining whether a plaintiff can proceed with

a hostile work environment claim, the court “looks to the totality of the circumstances, including

the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes

with an employee’s work performance.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir.

2013) (quoting Baloch, 550 F.3d at 1201). This standard is a “high bar.” Jones v. Zeldin,

25 No. 24-CV-2681, 2025 WL 859855, at *3 (D.D.C. Mar. 19, 2025) (quoting Gulakowski v. Barr,

No. 19-CV-32, 2019 WL 4469241, at *4 (D.D.C. Sep. 18, 2019)).

As noted, Mr. Phelan has only exhausted a hostile work environment claim as it concerns

his non-selection for the OER Director position in February 2022 and its attendant circumstances

(Claims One and Two). See supra p. 11. But the allegations that FEMA denied his request for

information about the first screening panel and canceled the original posting, ECF No. 20

¶ 100-15, fail to plausibly suggest a hostile work environment. Instances of sufficiently severe or

pervasive conduct for a hostile work environment include “us[ing] a deeply offensive racial epithet

when yelling at [the plaintiff],” Ayissi-Etoh, 712 F.3d at 577, and forcing an employee to work in

an unheated storage room for over a year, see Singletary, 351 F.3d at 528 (reversing and remanding

the denial of the plaintiff’s hostile work environment claim). Mr. Phelan’s allegations are nowhere

close to this level. Instead, they more closely parallel those in Nurridin v. Bolden, 674 F. Supp.

2d 64 (D.D.C. 2009), where the court found that the plaintiff’s claims based on “nonpromotions,

denial of leave, and termination” fell short of alleging a hostile work environment, even when

combined with disparaging remarks, close scrutiny by supervisors, and criticisms of his work, id.

at 93-95. Mr. Phelan’s claims concerning his non-selection for the OER Director position in

February 2022 amount to “workplace grievances,” which “even when understandably frustrating

for the employee[,] are not sufficiently severe to survive a motion to dismiss.” Zeldin, 2025 WL

859855, at *3-4 (noting that “[s]uspensions and administrative leave are insufficient to establish a

hostile work environment”); see Moore v. U.S. Dep’t of State, 351 F. Supp. 3d 76, 91-93

(D.D.C. 2019) (dismissing a hostile work environment claim that “largely concern[ed] [the

plaintiff’s] prospects for advancement, as opposed to verbal or physical abuse in his actual work

environment”); Fields v. Vilsack, 207 F. Supp. 3d 80, 93-95 (D.D.C. 2016) (dismissing a claim

26 alleging that the plaintiff’s performance evaluation was “impermissibly lowered” and that she was

denied an opportunity to seek a promotion); Aldrich v. Burwell, 197 F. Supp. 3d 124, 136-39

(D.D.C. 2016) (finding that suspensions, reprimands from supervisors, and demeaning treatment

were insufficient to support a claim of hostile work environment); Mason v. Geithner, 811 F. Supp.

2d 128, 195 (D.D.C. 2011) (holding that the denial of an employee’s requests for a transfer to

another office and the employee’s “involuntary” resignation were “discrete employment actions

that are not readily incorporated into a hostile work environment claim”); Allen v. Napolitano, 774

F. Supp. 2d 186, 206 (D.D.C. 2011) (“[P]erformance reviews and non-selection for a position are

insufficiently severe to support a hostile work environment claim.”). Accordingly, the court will

dismiss the hostile work environment aspects of Claims One and Two.

C. Leave to Amend

In his opposition to the Secretary’s motion to dismiss, Mr. Phelan suggests that the court

should grant him leave to file a “second amended [c]omplaint” if it is otherwise inclined to dismiss

the case. ECF No. 23, at 35; see Fed. R. Civ. P. 15(a)(2). The court does not entertain such

requests absent a proper motion. Rosen-Kellogg v. Noem, No. 24-5158, 2025 WL 1806015, at *3

(D.C. Cir. July 1, 2025) (per curiam) (“A ‘bare request in an opposition to a motion to dismiss—

without any indication of the particular grounds on which amendment is sought—does not

constitute a motion within the contemplation of’ Federal Rule of Civil Procedure 15(a).” (quoting

Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006))). In any event, Mr. Phelan has already

amended his complaint once in response to the Secretary’s motion to dismiss, ECF No. 20, and he

is unable to withstand the Secretary’s second motion to dismiss, ECF No. 21, suggesting that any

further amendment would be futile, Firestone, 76 F.3d at 1208. The court will therefore decline

to sua sponte grant leave to amend.

27 V. CONCLUSION

For the foregoing reasons, the court will grant Defendants’ Motion to Dismiss, ECF No. 21,

and dismiss Mr. Phelan’s complaint with prejudice. A contemporaneous order will issue.

LOREN L. ALIKHAN United States District Judge Date: September 25, 2025