UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ESMERALDA VASQUEZ,
Plaintiff,
v. Civil Action No. 24-cv-248 (TSC)
UNITED STATES CAPITOL POLICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Esmeralda Vasquez brings this suit against United States Capitol Police
(“USCP”), alleging discrimination and a hostile work environment based on race, color, and
national origin under the Congressional Accountability Act (“CAA”), 2 U.S.C. §§ 1302(a),
1311(a). USCP moves to dismiss for lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1) and failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Def.’s Mot. to Dismiss at 9, ECF No. 9 (“Def.’s MTD”). For the reasons set forth below,
the court will GRANT in part and DENY in part Defendant’s motion.
I. BACKGROUND
USCP trains new classes of prospective officers, “recruits,” in the USCP Academy. See
Compl. ¶ 6, ECF No. 1. Vasquez, a Hispanic female, enrolled in the Academy in November 2021
but did not graduate. Id. ¶ 4. She then re-enrolled in October 2022. Id. ¶ 7. Her Academy class
included five Black recruits, one Asian recruit, four Hispanic recruits, and fourteen White
recruits—twenty-four in total. Id. ¶ 8. Vasquez and her class participated in training activities,
such as “drills, classroom legal and policy instruction, physical tactics, fitness examinations, and
simulated scripted scenarios.” Id. ¶¶ 6–8. USCP supervisors oversaw the training activities and
Page 1 of 15 evaluated the recruits’ performance. Id. ¶ 6. Instructor Diane Salen and Lieutenant Judy Arena,
both White women, supervised Vasquez. Id. Vasquez alleges that Salen and Arena created a
hostile work environment and discriminated against her based on her “Race (Hispanic), Color
(Light Brown), and National Origin (Salvadorian Ancestry).” Id. ¶¶ 23, 32. She identifies the
following specific incidents:
1. In December 2022, Salen “reprimanded” Vasquez for talking in the hallway with two other recruits—one Hispanic and one White. Id. ¶ 9. Salen yelled “Vasquez! You cannot do that! What you are doing is completely unacceptable!” Id. Salen reprimanded the other Hispanic recruit but did not reprimand the White recruit. Id.
2. On January 13, 2023, Salen interrogated Vasquez for approximately three hours regarding Vasquez’s alleged cheating during a training activity. Id. ¶ 10. Salen also “implied that [] Vasquez engaged in sexual activities with U.S. Capitol Police instructors.” Id. During the interrogation, Vasquez informed Salen that she transcribed notes from fellow recruits for missed lectures in a notebook. Id. ¶ 11. Salen “prompted” Vasquez to produce the notebook. Id. During this interaction, Vasquez alleges that Salen “reached for [her] backpack,” “snatched the notebook from [her] hands,” and “violate[d] [her] personal space.” Id. Salen copied each page of the notebook, reminded Vasquez of the honor pledge, and warned that she could be fired from the Academy. Id.
3. On January 15, 2023, Vasquez’s “White classmates” informed her that Salen “also questioned them regarding the checklist in Vasquez’s notes,” but did not require them to produce notebooks or personal property and the questioning was “cordial and professional.” Id. ¶ 12.
4. In “mid-to-late January,” Salen “stared intensely” at Vasquez during an examination. Id. ¶ 14. When Vasquez passed the examination, Salen “became visibly upset and immediately left the room.” Id.
5. On February 3, 2023, Salen watched Vasquez during a “handcuffing training activity,” which caused Salen “extreme anxiety” and caused her to make a mistake. Id. ¶ 15.
6. On February 6, 2023, Salen interrogated Vasquez again regarding cheating during a January 2023 training scenario. Id. ¶ 16. Arena was also present. Id. Vasquez repeatedly denied cheating, but Salen and Arena “forced” her to write a confession stating that she “subconsciously used” information from classmates to cheat. Id. ¶ 16; see generally Def.’s MTD Ex. 2, ECF No, 9-3. The interrogation lasted “more than three hours,” during which time Vasquez was not allowed to leave. Compl. ¶ 17.
Page 2 of 15 7. On February 8, two days after Salen and Arena “forced” Vasquez to write the confession, USCP dismissed her from the Academy for misconduct and cheating. Id. ¶¶ 18, 23–24.
Vasquez alleges that she “exhausted all administrative remedies prior to filing suit.” Id.
¶ 2. She “filed a written discrimination complaint” with the USCP’s Office of Professional
Responsibility (“OPR”) on February 8, 2023, Pl.’s Opp’n. to Def.’s MTD Ex. A, ECF No. 14-1
(“Opp’n”), but did not file a complaint with the Office of Congressional Workplace Rights
(“OCWR”) until August 3, 2023, Def.’s MTD Ex. 4, ECF No. 9-5. Vasquez’s OCWR Complaint
alleged discrimination and harassment based on race, color, sex, and age. Id. at 5. On October 31,
2023, an OCWR Preliminary Hearing Officer dismissed Vasquez’s complaint as untimely and “for
failure to state a claim.” Def.’s MTD Ex. 5 at 13–17, ECF No. 9-6. On January 26, 2024, she
filed this Complaint. ECF No. 1. USCP now moves to dismiss for lack of subject matter
jurisdiction and failure to state a claim. ECF No. 9.
II. LEGAL STANDARD
USCP first moves to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction.
Federal courts are courts of limited jurisdiction. See Gen. Motors Corp. v. EPA, 363 F.3d 442,
448 (D.C. Cir. 2004). The law presumes that “a cause lies outside [the court’s] limited jurisdiction”
unless the plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994) (citing Turner v. Bank of North Am., 4 U.S. 8, 11 (1951)). When deciding a Rule
12(b)(1) motion, the court must “assume the truth of all material factual allegations in the
complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences.”
Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi,
394 F.3d 970, 972 (D.C. Cir. 2005)). “[T]he court need not accept factual inferences drawn by
plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court
accept plaintiff's legal conclusions.” Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) Page 3 of 15 (quoting Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). The court may also
consider documents “incorporate[ed] by reference” and “integral to [] plaintiff’s claim.” Banneker
Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015) (citing Kaempe v. Meyers, 367
F.3d 958, 965 (D.C. Cir. 2004)). In an employment discrimination case, the court takes judicial
notice of plaintiff’s administrative complaint and the agency’s final decision on that complaint.
Tyson v. Brennan, 277 F. Supp. 3d 28, 34 (D.D.C. 2017).
Alternatively, USCP moves to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). A motion under Rule 12(b)(6) “tests the legal sufficiency of a
complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To survive, 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). In other words, the plaintiff must plead
“factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” are insufficient. Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). The court “may consider not only the facts alleged in the
complaint but also documents attached to or incorporated by reference in the complaint.” Demissie
v. Starbucks Corp. Off. & Headquarters, 19 F. Supp. 3d 321, 324 (D.D.C. 2014).
III. ANALYSIS
A. Vasquez’s National Origin Claims
USCP moves to dismiss Vasquez’s national origin claims for failure to exhaust. Def.’s
MTD at 1. Vasquez agrees that she did not exhaust and abandons those claims in her Opposition.
Opp’n at 1. Accordingly, the court will treat as conceded and dismiss Vasquez’s national origin
claims. See, e.g., Davis v. Transp. Sec. Admin., 264 F. Supp. 3d 6, 10 (D.D.C 2017) (“[W]hen a
plaintiff files an opposition to a dispositive motion and addresses only certain arguments . . . a Page 4 of 15 court may treat those arguments that the plaintiff failed to address as conceded.” (quoting
Xenophon Strategies, Inc. v. Jernigan Copeland & Anderson, PLLC, 268 F. Supp. 3d 61, 72
(D.D.C. 2017))).
B. Subject Matter Jurisdiction
The CAA extends Title VII’s protections to covered employees of the federal legislative
branch, including USCP employees. Breiterman v. U.S. Capitol Police, 15 F.4th 1166, 1172 (D.C.
Cir. 2021) (citing 2 U.S.C. §§ 1301(a)(3)(D), 1302(a)(2)). Although “the CAA incorporates much
of Title VII’s substantive law,” “it establishes its own comprehensive administrative regime—
including jurisdictional provisions.” Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699,
706 (D.C. Cir. 2009). The CAA confers jurisdiction in the federal district courts “over any civil
action commenced” in accordance with certain statutory requirements. 2 U.S.C. § 1408(a). Before
filing suit in federal court, a covered employee must file a formal claim with OCWR, see id.
§ 1301(a)(12) (Definitions), within 180 days of “the date of the alleged violation,” id. § 1402(d).
The claim “shall” (1) “be made in writing under oath or affirmation,” (2) “describe the facts that
form the basis of the claim and the violation that is being alleged,” (3) “identify the employing
office alleged to have committed the violation or in which the violation is alleged to have
occurred,” and (4) “be in such form as [OCWR] requires.” Id.§ 1402(a)(2). “Only a covered
employee who has filed a claim timely” with OCWR “and who has not submitted a request for a
[OCWR] hearing” may “file a civil action” in federal district court “with respect to the violation
alleged in the claim[.]” Id. § 1401(b)(1).
In Blackmon-Malloy v. U.S. Capitol Police Board, the D.C. Circuit held that the CAA’s
administrative exhaustion requirements—specifically, that an employee must timely request
counseling and mediation—were jurisdictional limitations, such that failure to administratively
Page 5 of 15 exhaust deprived the court of subject matter jurisdiction. 575 F.3d at 713–14. Congress
subsequently eliminated the counseling and mediation requirements from the CAA’s jurisdictional
grant, 2 U.S.C. § 1408(a), but retained the cross-reference to the requirement that a covered
employee timely file an OCWR claim. Congressional Accountability Act of 1995 Reform Act,
Pub. L. No. 115-397, 132 Stat. 5297, 5301–02 (2018); see also Tango v. U.S. Capitol Police, No.
22-cv-1777-RC, 2023 WL 4174321, at *4 (D.D.C. June 26, 2023) (explaining the CAA Reform
Act amendments). Therefore, courts in this district continue to treat the CAA’s requirement that
an employee file an OCWR claim within 180 days of the alleged violation as jurisdictional. 1 See
Tango, 2023 WL 4174321, at *4; Stallans v. Architect of the Capitol, No. 23-cv-02621-TSC, 2024
WL 1740115, at *2 (D.D.C. Apr. 23, 2024); Mahmoud v. Lib. of Congress, No. 20-cv-1935-JEB,
2021 WL 6808293, at *2 (D.D.C. Feb. 9, 2021); cf. Ross v. U.S. Capitol Police, 195 F. Supp. 3d
180, 198 (D.D.C. 2016). A plaintiff must “prov[e] by a preponderance of the evidence that these
prerequisites are satisfied.” Ross, 195 F. Supp. 3d at 195–96 (citing Landmark Health Sols., L.L.C.
v. Not for Profit Hosp. Corp., 950 F. Supp. 2d 130, 132–33 (D.D.C. 2013)). USCP argues that the
1 It is unclear whether the D.C. Circuit would reach the same conclusion today. The Supreme Court has held that claim-processing rules, which “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times[,]” are not jurisdictional. Santos-Zacaria v. Garland, 598 U.S. ---, ---, 143 S. Ct. 1103, 1112 (2023) (citation omitted); see, e.g., Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 19–21 (2017); United States v. Kwai Fun Wong, 575 U.S. 402, 410 (2015); Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006). And, just last term, the Supreme Court held that an administrative exhaustion provision was “a quintessential claim-processing rule,” noting it had “yet to hold that any statutory exhaustion requirement is jurisdictional.” Santos-Zacaria, 143 S. Ct. at 1112–13. The D.C. Circuit has not revisited Blackmon-Malloy, however. Cf. Halcomb v. Off. of Senate Sergeant-at-Arms, 368 F. App’x 150, 150 (D.C. Cir. 2010) (reiterating that the CAA “exhaustion requirement is jurisdictional”); Turner v. U.S. Capitol Police, 653 F. App’x 1, 2 (D.C. Cir. 2016). Because “district judges . . . are obligated to follow controlling circuit precedent until either [the Circuit], sitting en banc, or the Supreme Court, overrule it,” United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997), the court will apply Blackmon-Malloy and treat the CAA’s exhaustion requirements as jurisdictional.
Page 6 of 15 court lacks subject matter jurisdiction over Vasquez’s claims raising discriminatory acts prior to
February 5, 2023, because she failed to timely file an OCWR claim raising those allegations.
Def.’s MTD at 1, 8–11.
i. Hostile Work Environment
An OCWR complaint alleging a hostile work environment is timely filed under the CAA
“so long as one of the acts contributing to the hostile work environment occurred within the 180-
day filing period” and such acts “are adequately linked [to the] [] hostile work environment claim.”
See Turner v. U.S. Capitol Police Bd., 983 F. Supp. 2d 98, 109 (D.D.C. 2013); Bing v. Architect
of the Capitol, 300 F. Supp. 3d 53, 60 (D.D.C. 2017) (citing Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 120–21 (2002)). Hostile work environment claims do not rest on a single act of
harassment that occurred on a particular day. Morgan, 536 U.S. at 115. Rather, a collection of
“separate acts” taken together may “constitute one ‘unlawful employment practice.’” Id. at 117
(internal citations omitted). It is the cumulative effect of individual acts that form a hostile work
environment claim. Id. Plaintiffs may raise timely and untimely allegations to substantiate a
hostile work environment claim if the allegations involve “the same type of employment actions,
occur[] relatively frequently, and were perpetrated by the same managers.” Id. at 120. Therefore,
so long as a plaintiff submitted an OCWR complaint within 180 days of “one of the acts
contributing to the hostile work environment,” the CAA’s exhaustion requirements are satisfied
for any allegations forming part of that same hostile work environment claim. See Turner, 983 F.
Supp. 2d at 109.
Vasquez filed her OCWR claim on August 3, 2023, alleging that she was subjected to a
hostile work environment starting in December 2022 and persisting until her dismissal on February
8, 2023. Def.’s MTD Ex. 4 at 5, 10–13; see also Compl. ¶¶ 23–24. Vasquez’s OCWR claim
Page 7 of 15 identifies contributing acts on February 6, 2023, when Salen and Arena interrogated her and forced
her to confess to cheating, and February 8, 2023, when USCP dismissed her. Def.’s MTD Ex. 4
at 12–13. Vasquez timely filed the OCWR claim within 178 and 176 days of those acts, id. at 9,
12–13, thereby satisfying the CAA’s jurisdictional exhaustion requirements for those allegations,
see Turner, 983 F. Supp. 2d at 109. If the allegations predating the 180-day statutory time period
are “adequately linked” to the timely raised acts, id., “the entire time period of the hostile
environment may be considered” by the court, Morgan, 536 U.S. at 117. Here, the court has no
trouble finding Vasquez’s allegations adequately linked. She alleges a series of separate acts
“perpetrated by the same managers”—Salen and Arena—that “occurred relatively frequently”
over less than three months and involved “the same type of employment actions”—interrogations
regarding cheating and different treatment during educational exercises. See id. at 120 (citation
omitted); Compl. ¶¶ 10, 16, 23, 32. Because at least one “act contributing to the claim occurs
within the [180-day] period” and all the allegations “are part of this single claim,” the court may
consider all the conduct, “including those acts that occur outside the filing period.” Morgan, 536
U.S. at 117-18; Turner, 983 F. Supp. 2d at 109–11 (applying Morgan to CAA claims). Therefore,
the court will deny USCP’s motion to dismiss Vasquez’s hostile work environment claim for lack
of subject matter jurisdiction and will separately address whether, taken together, Vasquez’s
allegations plausibly state a hostile work environment.
ii. Disparate Treatment
Unlike a hostile work environment claim, to satisfy the CAA’s exhaustion requirements
for a disparate treatment claim, a plaintiff must submit a complaint to OCWR within 180 days of
the specific, alleged violation. Mahmoud, 2021 WL 6808293, at *2 (claims based on discrete acts
“must be separately exhausted” under the CAA”). Disparate treatment claims arise from discrete
Page 8 of 15 acts of discrimination, which occur when the discriminatory act happened. Morgan, 536 U.S. at
110. Vasquez timely filed an administrative claim regarding the February 6, 2023 incident and
her February 8, 2024 dismissal because those discrete acts occurred within 180 days of August 3,
2023, the day she filed her OCWR claim. Def.’s Ex. 4 at 9, 12–13. The court lacks subject matter
jurisdiction to consider her disparate treatment claims based on acts outside that time period. See
Ross, 195 F. Supp. 3d at 199. Vasquez contends that she timely filed administrative claims for all
alleged discriminatory acts by filing an OPR complaint on February 8, 2023. Opp’n at 1; see
generally, Opp’n Ex. A at 1–9, ECF No. 14-1. But filing an OPR complaint “is not a proceeding
under the CAA.” Brady v. U.S. Capitol Police, 200 F. Supp 3d 208, 216 (D.D.C 2016). Rather,
it is OCWR, not OPR, that receives and responds to CAA employment claims. 2 U.S.C.
§§ 1301(a)(12) (Definitions), 1402(a)(1). Vasquez alleges that after filing her OPR complaint
“with Defendant in February 2023,” she was “represented by counsel, engaged efforts to resolve
the complaint over a period of several months, and even attended in-person mediation.” Opp’n at
9. Even accepting these allegations as true, however, an OPR proceeding does not relieve Vasquez
of the CAA’s exhaustion requirements. See Tango, 2023 WL 4174321, at *6 (finding allegation
not raised in OCWR claim within 180-days untimely, despite OPR complaint and investigation
within 180 days); cf. Foster v. Gonzales, 516 F. Supp. 2d 17, 23–24 (D.D.C. 2007) (refusing to
toll Title VII administrative exhaustion requirements based on non-EEO internal appeal
procedures). Because Vasquez failed to timely file an OCWR administrative claim for allegations
occurring prior to February 5, 2023, the court will grant in part USCP’s motion to dismiss Count
II for lack of subject matter jurisdiction.
Page 9 of 15 C. Failure to State Claim
To state a hostile work environment claim, a plaintiff must allege that “[her] employer
subjected [her] to discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of [her] employment and create an abusive working environment.”
Jackson v. Gallaudet Univ., 169 F. Supp. 3d 1, 4 (D.D.C. 2016) (citing Baloch v. Kempthorne, 550
F.3d 1191, 1201 (D.C. Cir. 2008)). Relevant factors for severity and pervasiveness include “the
frequency of the discriminatory conduct; . . . whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). A plaintiff must allege that
the conduct “was not merely tinged with offensive [] connotations, but actually constituted
discrimination because of the employee’s protected status.” Turner, 983 F. Supp. 2d at 109 (citing
Peters v. District of Columbia, 873 F. Supp. 2d 158, 188–89 (D.D.C. 2012)). And the alleged
conduct must be so “extreme to amount to a change in the terms and conditions of employment.”
Jackson, 169 F. Supp. 3d at 5 (citing George v. Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005)).
USCP claims that Vasquez’s Complaint “lacks factual allegations indicating extreme or
abusive conduct so severe or pervasive that it led to a change in her working conditions.” Def.’s
MTD at 11. The court agrees. The Complaint’s factual allegations do not rise to the level of
severity and persuasiveness to alter her working conditions. Vasquez claims that Salen acted in
an “intimidating manner,” stared at her during a training activity, reprimanded her for talking in
the hallway, and treated her with indifference. Compl. ¶¶ 14, 15, 23. Those allegations reflect at
most a “‘nasty’ attitude by a supervisor,” which does not satisfy the severe or pervasive standard.
Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 849 (D.C. Cir. 2001) (citing Phillips v. Taco
Page 10 of 15 Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998)); see also Baird v. Gotbaum, 792 F.3d 166, 171
(D.C. Cir. 2015) (affirming dismissal of hostile work environment based on “occasional name-
calling, rude emails, lost tempers and workplace disagreements”); Singh v. U.S. House of
Representatives, 300 F. Supp. 2d 48, 56–57 (D.D.C. 2004) (holding that being treated differently,
“spoken to in a condescending manner, although [] disrespectful and unfair,” did not give rise to
“an illegal hostile work environment.”). Vasquez’s conclusory statements regarding the mental
and emotional impact of Salen’s conduct cannot save her claim. Compl. ¶¶ 9–11, 15, 25.
Allegations that a plaintiff “suffered mental anguish, emotional distress, personal humiliation,
indignity, embarrassment, inconvenience” are insufficient to establish the extreme conduct
required for a hostile work environment claim. Walden v. Patient-Centered Outcomes Rsch. Inst.,
177 F. Supp. 3d 336, 345 (D.D.C. 2016).
Finally, Vasquez’s discrete discriminatory act allegations fail to sufficiently support her
hostile work environment claim. “[A]s a general matter, courts in this Circuit frown on plaintiffs
who attempt to bootstrap their alleged discrete acts [] into a broader hostile work environment
claim.” Id. at 344–345 (citing Dudley v. Wash. Metro. Area Transit Auth., 924 F. Supp. 2d. 141,
164 (D.D.C. 2013)). Vasquez’s interrogations on January 13, 2023 and February 6, 2023 were
isolated incidents that “can hardly be characterized as ‘pervasive.’” Akosile v. Armed Forces Ret.
Home, 938 F. Supp. 2d 76, 87 (D.D.C. 2013). Courts have held that “[n]egative interactions with
supervisors, even when a supervisor yells and uses profanity, generally do not meet th[e] standard”
for extreme and pervasive conduct. Id. at 87; see, e.g., Lanier v. Stackley, 253 F. Supp. 3d 75, 78
(D.D.C. 2017) (allegations that employee was interrogated about stealing money and accused of
making excuses failed to state hostile work environment claim); Badibanga v. Howard Univ.
Hosp., 679 F. Supp. 2d 99, 103–04 (D.D.C. 2010) (allegations of multiple disciplinary actions,
Page 11 of 15 threats to replace employee, and placement on administrative leave were “insufficiently severe and
pervasive”); Brooks v. Grundmann, 748 F.3d 1273, 1275, 1277 (D.C. Cir. 2014) (“[Y]elling at
[Plaintiff] in front of co-workers, insulting and demeaning her,” and “selective scrutiny” from a
supervisor were “more like the ordinary tribulations of the workplace . . . not actionable under
Title VII”). Vasquez relies heavily on Kennedy v. Berkel & Co. Contractors, 319 F. Supp 236
(D.D.C 2018), Opp’n at 11–12, but that case only highlights the absence of severe and pervasive
conduct here. In Kennedy, the defendant’s severe and pervasive conduct included “rub[ing] his
body against” plaintiff every day and exposing his private parts to plaintiff, among other various
explicit encounters. 319 F. Supp at 242. Vasquez presents no comparable allegations of physical
or mental abuse. Therefore, she fails to plead conduct of sufficient severity or pervasiveness to
state a plausible hostile work environment claim and the court will grant USCP’s motion to dismiss
Count I.
To state a disparate treatment claim, a plaintiff must allege that “(1) she is a member of a
protected class; (2) she suffered an adverse employment action; and (3) the adverse action gives
rise to an inference of discrimination.” Ruppe v. Blinken, 743 F. Supp. 3d 1, 20 (D.D.C. 2024)
(citing George, 407 F.3d at 412). The parties agree that Vasquez is a member of a protected class,
see generally Def.’s MTD at 14; Compl ¶¶ 23, 24, 32, but dispute whether she sufficiently alleged
the second and third elements of a discrimination claim.
Based on her dismissal from the Academy, Compl. ¶ 18, Vasquez sufficiently alleges an
adverse employment action, which includes “a significant change in employment status, such as
[], firing . . .” Omwenga v. United Nations Found., 244 F. Supp. 3d 214, 222 (D.D.C. 2017) (citing
Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009)) (internal quotations omitted). USCP’s
Page 12 of 15 only argument to the contrary is its unsupported statement that Vasquez fails to allege that “Salen’s
or Arena’s allegedly discriminatory acts brought about some disadvantageous change in [her]
employment terms or conditions.” Def.’s MTD at 15. The court disagrees. Vasquez plainly
alleges that Salen and Arena used her “coerced statement as evidence to falsely justify [her]
termination.” Compl. ¶ 18. Her dismissal qualifies as an adverse employment action. See, e.g.,
Samuel v. Metro. Police Dep’t, 258 F. Supp 3d. 27, 42 (D.D.C. 2017) (citing Jones v. Castro, 168
F. Supp 3d. 169, 178 (D.D.C. 2016)).
Vasquez’s Complaint also contains adequate facts to support an inference of
discrimination, which occurs when the employer acted because of the employee's protected class.
Redmon v. YMCA of Metro. Wash., 417 F. Supp. 3d 99, 102 (D.D.C. 2019) (citing George, 407
F.3d at 412). A plaintiff can raise an inference of discrimination by alleging that “she was treated
differently from similarly situated employees who are not part of the protected class” or that the
employer’s justification for the adverse action is merely pretext for discrimination. George, 407
F.3d at 412–13; see also Brown v. Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2015). “To raise an
inference of discrimination based on comparator evidence, the plaintiff must demonstrate: (1) that
‘all of the relevant aspects of [her] employment situation were nearly identical to those of the
[other] employee’; and (2) that the comparator was ‘charged with offenses of comparable
seriousness’ but treated more favorably.” Townsend v. United States, 236 F. Supp 3d 280, 307
(D.D.C. 2017) (quoting Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015)).
“Factors that bear on whether someone is an appropriate comparator include the similarity of the
plaintiff's and the putative comparator's job and job duties, whether they were disciplined by the
same supervisor, and, in cases involving discipline, the similarity of their offenses.” Burley, 801
F.3d at 301. For pretextual termination, a plaintiff may support her claim by alleging the “two
Page 13 of 15 analogous common legitimate reasons for discharge: performance below the employer's legitimate
expectations or the elimination of the plaintiff's position altogether” are inapplicable. George, 407
F.3d at 412; see also Ho v. Garland, 106 F.4th 47, 54 (D.C. Cir. 2024). “A ‘complaint survives a
motion to dismiss’ when ‘there are two alternative explanations, one advanced by the defendant,
and the other advanced by the plaintiff, both of which are plausible.’” Ho, 106 F.4th at 54 (quoting
VoteVets Action Fund v. U.S. Dep’t of Veterans Affs., 992 F.3d 1097, 1104 (D.C. Cir. 2021)).
Vasquez alleges that USCP fabricated misconduct and cheating allegations to “falsely
justify” her termination. Compl. ¶¶ 18, 24, 33. She claims that Salen and Arena forced her to
confess “that she received ‘subconscious information’” from other students “related to a training
scenario.” Id. ¶ 32. Although Salen and Arena “questioned” Vasquez’s White classmates
regarding the alleged cheating incident, they “did not accuse any of the White recruits of cheating.”
Id. ¶¶ 12, 32. Vasquez “adamantly protested” that she did not rely on “subconscious information,”
but Salen and Arena required her to write a statement “according to [their] specific instructions.”
Id. ¶¶ 16–17. Salen and Arena then used “the coerced statement as evidence to falsely justify
Plaintiff Vasquez’s termination.” Id. ¶ 33. Construing these allegations liberally, Ho, 106 F.4th
at 54, Vasquez’s Complaint survives USCP’s motion to dismiss. Here, appropriate comparators
would include similarly situated employees outside Vasquez’s protected class who engaged in
offenses of comparable seriousness and were not terminated. See Burley, 801 F.3d at 301 (quoting
Holbrook v. Reno, 196 F.3d. 255, 261 (D.C. Cir. 1999)). Based on Salen and Arena’s accusations,
the alleged cheating involved other students. See, e.g., Compl. ¶ 16 (quoting Arena saying “It is
only fair to say that other students would confide in you since you and the officers were once in
the same class.”). But Salen and Arena did not accuse the White recruits of cheating, nor did they
require them to write confession statements. See Winston v. Clough, 712 F. Supp. 2d 1, 12 (D.D.C.
Page 14 of 15 2010) (Plaintiff stated a claim for discrimination by alleging “other co-workers outside of
[Plaintiff’s] protected class used their cell phones more than [he] did, yet none was suspended or
disciplined[.]”). Vasquez also raises pretext allegations, claiming that USCP “fabricated grounds”
to terminate her by forcing her to confess “under duress . . .according to Lt. Arena and Instructor
Salen’s specific instructions.” Compl. ¶¶ 17, 24. Accepting Vasquez’s allegations as true, her
discrimination claim “nudge[s] . . . across the line from conceivable to plausible.” Ho, 106 F.4th
at 55 (quoting Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015)).
Accordingly, at this stage, Vasquez sufficiently states a claim for disparate treatment and the court
will deny USCP’s motion to dismiss Count II.
IV. CONCLUSION
For the reasons explained above, the court will GRANT in part and DENY in part Defendant’s
Motion to Dismiss.
Date: March 31, 2025
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge
Page 15 of 15