UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FELECIA REDDING,
Plaintiff, v. Civil Action No. 16-2149 (TJK) JIM MATTIS, Secretary, United States Department of Defense,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Felecia Redding works in human resources at the Defense Intelligence Agency
(“DIA”), located within the Department of Defense. ECF No. 11 (“Am. Compl.”) ¶ 7. Her
operative complaint brings two counts against Defendant, each alleging a different type of
unlawful conduct: Count I alleges unlawful race and age discrimination under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. Am. Compl. ¶¶ 61-63. Count II alleges
unlawful retaliation in violation of Title VII. Id. ¶¶ 64-67. The instant Opinion and Order
concerns Defendant’s motion to dismiss Count II or, alternatively, for partial summary judgment
on Count II. ECF No. 12. 1 For the reasons explained below, the Court will grant the motion.
Redding’s Complaint
The Court will briefly summarize Redding’s operative complaint, discussing particular
facts in greater detail as required below. Redding is an African-American woman who, during
1 In considering the motion, the Court considered Redding’s Amended Complaint and all other relevant parts of the record, including the following: ECF No. 12 at 3-5 (“Def.’s SoMF”); id. at 6-16 (“Def.’s Br.”); ECF No. 12-2 (“Martinez Decl.”); ECF No. 13 (“Pl.’s Opp’n”); ECF No. 13- 1 (“Pl.’s Resp. SoMF”); ECF No. 13-2 (“Renner Decl.”); ECF No. 15 (“Def.’s Reply”); ECF No. 17 (“Pl.’s Supp. Br.”); ECF No. 18 (“Def.’s Supp. Br.”). the relevant time period, was at least 52 years old. Am. Compl. ¶¶ 5, 10. She alleges that, in
May 2013, DIA passed her up for a promotion in favor of a less-qualified Asian-American
woman who was under 40 years old. See id. ¶¶ 14-44. This act, which in Redding’s view was
discriminatory, forms the basis for Count I of her complaint. Id. ¶¶ 61-63.
On June 12, 2013, Redding raised claims of discrimination with a counselor in DIA’s
Equal Employment Opportunity (“EEO”) office. Id. ¶ 45. On June 21, 2013, the Division Chief
overseeing Redding’s department allegedly said that “people have been here too long,” and that
“there are going to be some changes and then they will want to go to EEO. I do not care if they
go to EEO.” Id. ¶¶ 12, 46. On August 21, 2013, the Division Chief again said that “people have
been here too long.” Id. ¶ 47. Redding claims that these “threatening comments about EEO
participation” amounted to retaliation for her initiating EEO counseling. Id. ¶ 66. On August 27,
2013, Redding filed a formal EEO charge. Id. ¶ 49. Redding claims that, starting in April 2014,
she suffered further acts of retaliation, including a transfer to another office, removal of her
supervisory responsibilities such that she now has the same duties as lower-ranked employees,
and elimination from consideration for further promotions. See id. ¶¶ 50-60. All of these alleged
acts of retaliation form the basis for Count II of her complaint. See id. ¶ 66.
Analysis
Defendant argues that Redding failed to exhaust Count II to the extent it rests on alleged
acts of retaliation that occurred after the filing of her EEO charge. See Def.’s Br. at 5-10.
Defendant also argues that the only remaining conduct at issue in Count II—the Division Chief’s
verbal comments—do not suffice to make out a retaliation claim. Id. at 4-5. The Court agrees
with Defendant and will dismiss Count II without prejudice.
2 A. Redding’s Asserted Exhaustion of Her Retaliation Claims
Redding does not the dispute the facts regarding exhaustion set forth in Defendant’s
statement of material facts. See Pl.’s Resp. SoMF ¶ 1. On June 12, 2013, Redding sought EEO
counseling. Def.’s SoMF ¶ 1. On August 27, 2013, Redding filed a formal EEO charge. Id. ¶ 3.
The charge included a claim of retaliation based on the Division Chief’s comments on June 21
and August 21, 2013. See id. DIA determined that Redding’s retaliation claims were not
actionable and declined to investigate them. Id. ¶ 4. DIA’s investigation into her remaining
claims was completed on January 31, 2014. Id. ¶ 5. Redding subsequently requested a hearing
before an Equal Employment Opportunity Commission (“EEOC”) administrative judge. See id.
On December 4, 2015, Redding sought leave to amend her EEOC complaint to add certain acts
of retaliation that began in December 2014. Id. ¶ 6. The EEOC administrative judge denied her
motion for leave to amend. Id. ¶ 7. In May 2016, Redding voluntarily withdrew her request for
an administrative hearing. Martinez Decl. ¶ 11 & Ex. 8.2
Because Defendant’s exhaustion defense is fit for resolution based on these undisputed
facts, without the need for discovery, the Court will treat this part of Defendant’s motion as one
for summary judgment. See Mount v. Johnson, 36 F. Supp. 3d 74, 81-82 (D.D.C. 2014). Under
Federal Rule of Civil Procedure 56, a court must grant summary judgment “if the movant shows
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). “Summary judgment is appropriately granted when,
2 While this last fact does not appear in Defendant’s statement of material facts, the Court has discretion to look beyond the statement of material facts and review the entire record. See Arrington v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006). The Court will therefore consider this fact, which is undisputed. Moreover, the date when the administrative hearing concluded is a fact fit for judicial notice. See Tyson v. Brennan, 277 F. Supp. 3d 28, 34 (D.D.C. 2017); Vasser v. McDonald, 228 F. Supp. 3d 1, 10 (D.D.C. 2016).
3 viewing the evidence in the light most favorable to the non-movants and drawing all reasonable
inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council
on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).
The Supreme Court’s 2002 decision in National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002), has led many courts to change how they analyze Title VII’s requirement
that a plaintiff first exhaust her administrative remedies before filing suit. In particular, since
Morgan, district judges in this Circuit have split on how to apply this requirement where the
plaintiff has alleged discrete acts of retaliation that occurred after the filing of the EEO charge, as
Redding does here. See generally Poole v. U.S. Gov’t Publ’g Office, 258 F. Supp. 3d 193, 201-
02 (D.D.C. 2017) (discussing split); Mount, 36 F. Supp. 3d at 84-85 (similar). A majority of the
judges who have addressed the issue have held that the plaintiff must separately exhaust each
subsequent discrete act of retaliation. See Poole, 258 F. Supp. 3d at 201; Mount, 36 F. Supp. 3d
at 84-85. A minority, however, have held that a plaintiff need not separately exhaust subsequent
acts of retaliation that are “like or reasonably related to” the acts of retaliation described in the
EEO charge. See Poole, 258 F. Supp. 3d at 201-02; Mount, 36 F. Supp. 3d at 85-86. Under this
second approach, the analysis “centers on whether the allegations that were specifically put
before the agency and the new allegations the plaintiff seeks to litigate constitute the same cause
of action and are factually similar such that they would be discovered during the agency’s
investigation.” Mount, 36 F. Supp. 3d at 85-86.
The Court need not choose between these two approaches, because Redding’s claims of
retaliation (except those concerning the Division Chief’s comments in June and August 2013)
fail under either. Under the first, more demanding approach, it is clear that Redding did not
exhaust these claims because she never raised them with the agency’s EEO office. And she fares
4 no better under the second approach, because, as set forth below, the subsequent acts of
retaliation are not “like or reasonably related” to the claims that Redding did raise in the
EEO charge.
First, Redding has not exhausted her allegation that, in October 2016, DIA determined
she was not eligible for promotion. See Am. Compl. ¶ 58. In Payne v. Salazar, 619 F.3d 56
(D.C. Cir. 2010), the D.C. Circuit concluded that the “like or reasonably related” test (assuming,
without deciding, that it remained good law) “necessarily” did not encompass acts of retaliation
occurring after end of the administrative investigation, because the investigation could not have
uncovered them. See id. at 65. Here, the administrative proceedings related to Redding’s claims
ended in May 2016. Martinez Decl. ¶ 11 & Ex. 8. Payne thus compels the conclusion that any
claim related to the October 2016 decision about Redding’s eligibility for promotion was not
properly exhausted.
Second, Redding has failed to exhaust her allegations that she suffered acts of retaliation
starting in April 2014 and during the pendency of her hearing before the EEOC administrative
judge. 3 These acts of retaliation were too different in kind from the earlier allegations in her
EEO charge to be “like or reasonably related” to them. Her EEO charge claimed that DIA failed
to promote her based on her race and age, and that the Division Chief’s comments in 2013
amounted to retaliation. Def.’s SoMF ¶ 3. Redding’s operative complaint in this Court alleges
that she was reassigned to a new position in April 2014; that she was reassigned yet again in
November 2014, at which time her title was changed from “Branch Chief” to “Supervisor”; and
that since December 2014, she “has shared duties and workspace with co-workers” who have a
3 The Court assumes, without deciding, that claims arising after the end of the agency’s investigation and during the pendency of a hearing before an EEOC administrative judge may be deemed exhausted under the “like or reasonably related” test.
5 lower paygrade. Am. Compl. ¶¶ 50-55. The qualitative differences between these later acts of
retaliation and the acts alleged in the EEO charge (Redding’s nonpromotion and the Division
Chief’s comments) preclude a finding that they were like or reasonably related to one another,
under the test as applied in this Circuit. Cf. Poole, 258 F. Supp. 3d at 203 (holding “disparaging
statements” were not like or reasonably related to “pay-discrimination” alleged in EEO charge);
Thomas v. Vilsack, 718 F. Supp. 2d 106, 121-22 (D.D.C. 2010) (holding reduction of duties was
not like or reasonably related to “failure to promote” alleged in EEO charge).
And there is another, independent reason why these later acts of alleged retaliation are
not “like or reasonably related” to those in Redding’s EEO charge. DIA’s investigation could
not have been reasonably expected to uncover them, because of the temporal distance between
them and the allegations in her EEO charge that were actually investigated. DIA dismissed the
sole retaliation claim in her EEO charge, which was based on the Division Chief’s comments in
June and August 2013, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. See
Def.’s SoMF ¶ 4. As will be explained below in Section B of this Opinion, DIA’s decision was
correct because the Division Chief’s comments were not actionable as retaliation. 4 Thus, the
investigation was properly limited to a discrete act of nonpromotion that occurred in May of
2013. As such, the investigation could not have reasonably been expected to uncover acts of
retaliation that occurred starting in April 2014, almost a year later. Cf. Wedow v. City of Kansas
City, 442 F.3d 661, 673 (8th Cir. 2006) (citing Shelton v. Boeing Co., 399 F.3d 909, 912-13 (8th
Cir. 2005)) (explaining that investigation initiated four months after end of discrete period in
4 The Court notes that DIA analyzed this as a retaliatory hostile work environment claim, see Martinez Decl. Ex. 4, at 1-2, 4-5, perhaps because Redding characterized it as a hostile work environment claim in an email to DIA’s EEO office, see Martinez Decl. Ex. 2. In the complaint and the briefing submitted to this Court, however, neither party has suggested it should be analyzed as a hostile work environment claim. See Am. Compl. ¶¶ 64-67; Def.’s Reply at 2 n.2.
6 which alleged acts of discrimination occurred could not have been reasonably expected to
encompass subsequent acts).
Thus, Redding has not exhausted her retaliation claim in Count II (except insofar as it
arises from the Division Chief’s comments in June and August 2013). Redding contests this
conclusion, but her arguments are unavailing.
Redding points out that she attempted to exhaust some of these claims by moving to
amend her administrative complaint in December 2015. See Pl.’s Opp’n at 2 & n.1. But the
EEOC administrative judge denied her motion, and had at least two valid grounds for doing so.
First, EEOC regulations allow a complainant to add new claims only if they are “like or related”
to those she raised with the agency EEO office. See 29 C.F.R. § 1614.106(d). Redding’s new
claims failed this “like or related” test for the very reasons already explained above: they were
too different in kind and separate in time from the incidents described in her EEO charge. See
Martinez Decl. Ex. 7, at 2. Thus, Redding was required to return to the agency EEO office to
exhaust them. Second, as the administrative judge noted, Redding’s motion was untimely: she
waited until December 2015 to seek leave to amend, even though the conduct at issue began in
December 2014 and she had been represented by counsel throughout. See id.; Burkes v. Holder,
953 F. Supp. 2d 167, 174 & n.4 (D.D.C. 2013) (holding plaintiff did not exhaust claim where
agency properly denied leave to amend to add it); cf. Hutchinson v. Holder, 668 F. Supp. 2d 201,
212-14 (D.D.C. 2009) (declining to overturn decision of administrative judge allowing
amendment of EEO complaint). As a result, Redding never properly exhausted these claims.
Redding also cites several cases (not binding on this Court) adopting a broad
interpretation of the “like or reasonably related” test as applied to retaliation claims, under which
any claim of retaliation for the filing of an EEO charge is always “related” to the charge. See
7 Pl’s Opp’n at 10-11, 12-13. 5 This broad interpretation was adopted by several circuits before
Morgan, and it appears to have continuing vitality in some of them. See Phillips v. Caris Life
Scis., Inc., 715 F. App’x 365, 369-70 (5th Cir. 2017) (citing Gupta v. E. Tex. State Univ., 654
F.2d 411 (5th Cir. 1981)); Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1030 (7th Cir.
2013) (citing McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 482-83 (7th Cir. 1993)); Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 301-04 (4th Cir. 2009) (citing Nealon v. Stone, 958 F.2d 584
(4th Cir. 1992)). An unpublished decision by a D.C. Circuit panel, rendered in 1997 and thus
predating Morgan, adopted the reasoning of one of these cases. Lofton v. Atwood, No. 97-5274,
1998 WL 700155, at *1 (D.C. Cir. July 13, 1998) (citing Nealon, 958 F.2d at 590).
Nonetheless, the D.C. Circuit’s decision in Payne is inconsistent with at least some
aspects of this broad interpretation of the “like or reasonably related” test (assuming the test
remains viable at all). For example, circuits adopting this broad interpretation have sometimes
applied it when the alleged acts of retaliation occurred after the administrative investigation
ended, and even after the plaintiff filed suit. See Jones, 551 F.3d at 302-03; McKenzie, 92 F.3d
at 483-85; Gupta, 654 F.2d at 413-14. Payne flatly rejected those results, categorically holding
that acts occurring after the administrative investigation ended are not “like or reasonably
related” to the claims in the EEO charge. See 619 F.3d at 65. Moreover, Payne analyzed the
retaliation claims at issue using the test for exhaustion of discrimination claims set forth in Park
v. Howard University, 71 F.3d 904 (D.C. Cir. 1995), implicitly rejecting the proposition that
5 The one binding case she cites on this point is Saksenasingh v. Secretary of Education, 126 F.3d 347 (D.C. Cir. 1997). Pl.’s Opp’n at 10. But the D.C. Circuit has since clarified that the relevant portion of Saksenasingh—which predates Morgan—simply did not address the boundaries of the “like or reasonably related” test. See Payne, 619 F.3d at 65 n.9. The same appears to be true of another case decided around the same time as Saksenasingh. See Harris v. Sec’y, U.S. Dep’t of Veterans Affairs, 126 F.3d 339, 346 (D.C. Cir. 1997).
8 retaliation claims should be treated differently from discrimination claims under the “like or
reasonably related” test. See 619 F.3d at 65.
Accordingly, the Court concludes that even if the “like or reasonably related” test
survived Morgan in this Circuit, it did not survive in the broad form advanced by Redding. This
is consistent with the “minority” approach of those district judges in this Circuit who have
continued to apply the “like or reasonably related” test. See Mount, 36 F. Supp. 3d at 85-86
(describing minority approach). Those judges have often followed the Eighth Circuit’s decision
in Wedow v. City of Kansas City, 442 F.3d 661 (8th Cir. 2006), which held that Morgan
narrowed (but did not completely overturn) its prior approach to exhaustion of retaliation claims.
See Pierson v. WMATA, 821 F. Supp. 2d 360, 365-66 (D.D.C. 2011); Hazel v. WMATA, No. 02-
cv-1375 (RWR), 2006 WL 3623693, at *6-8 (D.D.C. Dec. 4, 2006); see also Marcelus v. Corr.
Corp. of Am., 540 F. Supp. 2d 231, 235-36 (D.D.C. 2008) (applying Park test to retaliation
claim). As explained above, Redding’s claims do not pass muster under this narrower version of
the “like or reasonably related” test. And, again as noted above, they also fail the more
demanding test that a majority of judges in this Circuit who have considered the issue have
applied, which requires that each asserted act of retaliation be exhausted separately.
Finally, Redding explains that, after filing this lawsuit on October 26, 2016, she initiated
the agency EEO process on November 8, 2016, for certain of her retaliation allegations. See
Pl.’s Resp. SoMF ¶ 2. She argues that because DIA’s investigation of these allegations
concluded on August 24, 2017, they are now ripe for adjudication by this Court. See Pl.’s Supp.
Br. But that argument fails on the facts and the law.
A plaintiff has exhausted her administrative remedies under Title VII once the agency has
taken a “final action” on her administrative charge. See 42 U.S.C. § 2000e-16(c); 29 C.F.R.
9 § 1614.407(a); Bowe-Connor v. Shinseki, 923 F. Supp. 2d 1, 5 (D.D.C. 2013). By its own terms,
DIA’s August 2017 letter did “not constitute a final Agency decision on [Redding’s] complaint.”
Pl.’ Supp. Br. at 3 (emphasis added). As the letter explained, Redding could receive a final
decision by either (1) requesting one or (2) waiting for DIA to issue one on its own. See id. at 4.
There is no indication that DIA took a final agency action on either basis. 6 And while Redding
could file a new lawsuit based on these allegations by claiming exhaustion due to the agency’s
failure to act within 180 days of the filing of her administrative charge, see 42 U.S.C. § 2000e-
16(c); 29 C.F.R. § 1614.407(b), she cannot do so through this action, which she filed before the
180 days had concluded—or had even begun, see Murthy v. Vislack, 609 F.3d 460, 465 (D.C.
Cir. 2010). As a result, the Court must terminate Redding’s unexhausted claims without
prejudice. See id. at 466.
Therefore, the Court grants summary judgment for Defendant on its exhaustion defense
and dismisses the retaliation claims in Count II, except for those claims related to the Division
Chief’s comments, without prejudice.
B. The Viability of Redding’s Remaining Retaliation Allegations Under Rule 12(b)(6)
As a result of the foregoing analysis, the only surviving allegations in Count II relate to
the Division Chief’s comments in June and August 2013. Defendant argues that these
allegations do not make out a retaliation claim. Def.’s Br. at 4-5. While the parties presented the
Court with a factual record making the exhaustion issue fit for summary judgment without the
6 The Court notes that DIA was required to issue a final decision within 90 days of its investigative report absent a request from Redding. 29 C.F.R. § 1614.110(b). But even if DIA failed to do so, that failure would not be a “final action.” The relevant regulations do not provide that an agency investigative report automatically becomes a “final action” due to agency inaction. That distinguishes such reports from decisions by administrative judges, which do become final actions if the agency does not act within 40 days. Compare 29 C.F.R. § 1614.108(f) (agency investigative reports), with id. § 1614.109(i) (decisions by administrative judges).
10 need for discovery, summary judgment on the merits of Redding’s retaliation claim would be
inappropriate prior to discovery. Thus, the Court must resolve the viability of the remaining
allegations in Count II based on the pleadings alone under Rule 12(b)(6).
“A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff’s complaint; it
does not require a court to ‘assess the truth of what is asserted or determine whether a plaintiff
has any evidence to back up what is in the complaint.’” Herron v. Fannie Mae, 861 F.3d 160,
173 (D.C. Cir. 2017) (quoting Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). “In
evaluating a Rule 12(b)(6) motion, 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) (quoting Schuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). “But the Court need not accept inferences
drawn by plaintiff if those inferences are not supported by the facts set out in the complaint, nor
must the court accept legal conclusions cast as factual allegations.” Id. “To survive a motion to
dismiss, a complaint must have ‘facial plausibility,’ meaning it must ‘plead[] factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Id. (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made
unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3)
that the employer took the action ‘because’ the employee opposed the practice.” Bridgeforth v.
Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (quoting McGrath v. Clinton, 666 F.3d 1377, 1380
(D.C. Cir. 2012)). To get past a Rule 12(b)(6) motion, a plaintiff is not required to allege every
element of a prima facie retaliation claim. See Gordon v. U.S. Capitol Police, 778 F.3d 158,
161-62 (D.C. Cir. 2015) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).
11 Nonetheless, the plaintiff must still plead enough facts to “nudge[]” the claim “across the line
from conceivable to plausible.” Iqbal, 556 U.S. at 680 (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Accordingly, a court must dismiss a retaliation claim where the plaintiff
has not alleged facts that could plausibly constitute a materially adverse action. See Baird v.
Gotbaum, 662 F.3d 1246, 1250 (D.C. Cir. 2011).
Whether an employer’s action is “materially adverse” is judged from the standpoint of “a
reasonable employee,” and this objective test is satisfied only if the action “well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Mogenhan v. Napolitano, 613 F.3d 1162, 1166 (D.C. Cir. 2010) (quoting Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). In Mogenhan, for example, the D.C. Circuit
concluded that the following acts could have dissuaded a reasonable worker from making a
charge: (1) posting the plaintiff’s EEO charge on an intranet site where other employees could
access it, twenty days after the employee had sought counseling; and (2) “burying [the plaintiff]
in work” to “keep [her] too busy to file complaints.” Id. Similarly, in Welch v. Skorton, 299 F.
Supp. 3d 102 (D.D.C. 2018), the court concluded that a reasonable jury could find that an
employer had taken a materially adverse action by informing coworkers that the plaintiff had
filed an EEO complaint. Id. at 113.
By contrast, “petty slights or minor annoyances that often take place at work and that all
employees experience” are not adverse actions that can support a retaliation claim under Title
VII. Bridgeforth, 721 F.3d at 663 (quoting Burlington N., 548 U.S. at 68). For example, in
Gaujacq v. EDF, Inc., 601 F.3d 565 (D.C. Cir. 2010), a supervisor told the plaintiff that “[y]our
career is dead [at the company] if you file the claim.” Id. at 578 (first alteration in original).
While acknowledging that a “threatening verbal statement, standing alone, might well constitute
12 a materially adverse action” in the right context, the D.C. Circuit held that this particular
statement was not actionable under the facts of the case. Id. (emphasis added). Interpreting the
statement in context—the company had “indulged [the plaintiff] at every turn,” including by
“creating a Vice President’s position for her”—a “reasonable worker in [the plaintiff’s] position
would not have taken [the supervisor’s] brief, fleeting, and unadorned verbal statement as an act
or threat of retaliation.” Id.
Here, the Division Chief’s alleged comments are not actionable. According to Redding,
on June 21, 2013, the Division Chief said the following: “people have been here too long,” and
“there are going to be some changes and then they will want to go to EEO. I do not care if they
go to EEO.” Am. Compl. ¶ 46. On August 21, he again said, “people have been here too long.”
Id. ¶ 47. As an initial matter, it is not clear that these comments were made in response to
Redding’s EEO charge or anything else she had done. See Bridgeforth, 721 F.3d at 663
(explaining adverse action must occur “because [the plaintiff] participated in protected activity”).
The August comment did not refer to EEO activity or to Redding. And the June comment, if
taken at face value, could not have referred to Redding’s initial contact with an EEO counselor,
because it referred to future EEO complaints that could be filed in response to future
employment actions the Division Chief might take. Cf. Poole v. U.S. Gov’t Publ’g Office,
219 F. Supp. 3d 80, 84 (D.D.C. 2016) (holding supervisor’s comments were not actionable
where the complaint was “unclear about which retaliatory acts were directed at which Plaintiffs
and when”).
Even assuming the Division Chief did have Redding’s EEO activity in mind when he
made these comments, they were at most fleeting and minor annoyances, not “materially
adverse” actions that “might have dissuaded a reasonable worker from making or supporting a
13 charge of discrimination.” Mogenhan, 613 F.3d at 1166 (quoting Burlington N., 548 U.S. at 68);
cf. Brokenborough v. District of Columbia, 236 F. Supp. 3d 41, 59 (D.D.C. 2017) (holding that
“single incidents of verbal taunts and mocking, eye-rolling and cursing, a forged leave request
slip, and an incident in which someone pretending to be [the plaintiff] called in sick” were not
materially adverse actions). The complaint does not make clear whether the Division Chief
made his comments to Redding, to another employee, or to a group of employees. See Am.
Compl. ¶¶ 46-47. Regardless, he did not mention Redding by name, meaning that unless other
employees within earshot already knew that Redding had made an EEO complaint, they could
not have connected the comments to her. That distinguishes this case from Mogenhan and
Welch, where supervisors took adverse actions by singling the plaintiffs out in front of other
employees. In addition, the Division Chief’s comments fell well short of the comment found not
to constitute retaliation in Gaujacq: it did not “threaten” anyone with adverse consequences for
filing an EEO complaint, but merely said that the prospect of such complaints would not deter
him from making necessary staffing changes. Cf. Johnson v. District of Columbia, 947 F. Supp.
2d 123, 129, 140, 142 (D.D.C. 2008) (finding no “direct threat” where supervisor allegedly said
“she would no longer help [the plaintiff] because [he] had an attorney and [he] was ‘in legal’”
(second and third alterations in original)).
Even at the motion to dismiss stage, Redding “must allege more to state a claim for
retaliation.” Cavalier v. Catholic Univ. of Am., 306 F. Supp. 3d 9, 38 (D.D.C. 2018). None of
the facts alleged suggests that the Division Chief’s comments even conceivably constituted a
materially adverse action. The comments, on their face, did not suggest that employees would
suffer any materially adverse action for EEO activity. Nor does Redding provide any context
explaining how these remarks might otherwise have been interpreted as such. And she “fails to
14 offer any explanation for how she suffered any tangible consequence” because of the comments.
Fields v. Vilsack, 207 F. Supp. 3d 80, 91 (D.D.C. 2016). Thus, even drawing all reasonable
inferences in Redding’s favor, it is impossible to see how these comments could have dissuaded
a reasonable employee from pursuing charges of discrimination. Cf. Buie v. Berrien, 85 F. Supp.
3d 161, 178 (D.D.C. 2015) (concluding plaintiff did not plausibly allege supervisor committed
materially adverse actions when supervisor “excluded her from assignments, slammed a door in
her face, told others that she did not want to train or supervise her, told plaintiff that ‘a fifth
grader could do [her] job,’ and both yelled at and ignored her” (alteration in original)); Swann v.
Office of Architect of Capitol, 73 F. Supp. 3d 20, 28-29 & n.3 (D.D.C. 2014) (dismissing, under
Rule 12(b)(6), retaliation claim grounded in comments that could not plausibly be characterized
as a threat) , aff’d, No. 15-5001, 2015 WL 5210251 (D.C. Cir. Aug. 18, 2015); King v. Holder,
950 F. Supp. 2d 164, 172 (D.D.C. 2013) (dismissing retaliation claim based, among other things,
on a “single verbal altercation between” plaintiff and defendant).
Instead of explaining how her allegations satisfy the legal standard set forth in controlling
case law, Redding relies on a number of EEOC decisions holding that an employer engages in
“per se reprisals” whenever it discourages EEO activity. Pl.’s Opp’n at 4-6. It appears that such
“per se reprisals” are not violations of Title VII itself, but instead are violations of EEOC
regulations that prohibit unlawful interference in the EEO process. See, e.g., Binseel v. Caldera,
Appeal No. 01964879, 1998 WL 730929, at *2 (E.E.O.C. Oct. 8, 1998). Given that these
decisions rest on the EEOC’s interpretation of its own regulations, Court finds them of no value
in applying the standards set forth by the Supreme Court and the D.C. Circuit for Title VII
retaliation claims. And in fact, a rule that certain comments constitute per se retaliation under
15 Title VII would be inconsistent with Gaujacq, which held that threatening comments may be, but
are not necessarily, materially adverse actions. See 601 F.3d at 578.
Even if these decisions did have persuasive value in Title VII retaliation cases, they
would be easily distinguishable:
• In Marr v. Widnall, Appeal No. 01941344, 1996 WL 375789 (E.E.O.C. June 27, 1996), a supervisor repeatedly attempted to dissuade one of the complainant’s coworkers from testifying as a witness in an EEO investigation. Id. at *12.
• In Binseel, a supervisor told the complainant “that filing an EEO complaint was the wrong way to go about getting a promotion.” 1998 WL 730929, at *2.
• In Webster v. Gates, Appeal No. 0120080665, 2009 WL 3845793 (E.E.O.C. Nov. 4, 2009), “a supervisor was openly and heatedly talking with complainant concerning the stress he was feeling about complainant’s discrimination complaint.” Id. at *9.
• In Smith v. Winter, Appeal No. 0120082983, 2010 WL 750852 (E.E.O.C. Feb. 16, 2010), a supervisor prevented the complainant from taking time off to meet with an EEO counselor. See id. at *5-6.
• In Williams v. McHugh, Appeal No. 0120090596, 2011 WL 1690815 (E.E.O.C. Apr. 29, 2011), a supervisor told the complainant “it would not be in [his] best interest to file an EEO complaint” and that EEO activity “created racial strife in the workplace.” Id. at *4.
• In Carter v. Shinseki, Appeal No. 0120122266, 2012 WL 5285520 (E.E.O.C. Oct. 18, 2012), a supervisor told the complainant “that she needed to watch when and where she said things in that some things needed to be talked about in private and not out in the open where all can hear.” Id. at *1. 7
In each case, a supervisor specifically targeted the complainant with words or conduct intended
to dissuade him or her from pursuing an EEO complaint. Here, as already explained, the
7 Redding also cites Boyd v. Slater, Appeal No. 01955276, 1997 WL 654451 (E.E.O.C. Oct. 10, 1997), in which the EEOC declined to consider whether the agency interfered with the complainant’s exercise of her EEO rights. See id. at *4.
16 statements at issue did not refer to Redding specifically. And as noted above, they did not in fact
discourage EEO activity.
Therefore, the allegations concerning the Division Chief’s comments do not suffice to
make out a retaliation claim under Title VII, and Count II must be dismissed.
Conclusion and Order
For the reasons set forth above, it is hereby ORDERED that Defendant’s motion (ECF
No. 12) is GRANTED, and Count II of the Amended Complaint is DISMISSED WITHOUT
PREJUDICE.
SO ORDERED.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge
Date: August 29, 2018