UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) TOMMY J. WINSTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1411 (RWR) ) G. WAYNE CLOUGH, ) ) Defendant. ) _____________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiff Tommy J. Winston, an employee of the Smithsonian

Institution (“Smithsonian”) filed a three-count complaint against

the Secretary of the Smithsonian,1 seeking damages under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. 2000 et seq., for

discrimination based on race and color, for retaliation, and for

a hostile work environment. (Am. Compl. ¶¶ 45-53.) The

Smithsonian moves under Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6) to dismiss Winston’s amended complaint or for

summary judgment. Because Winston failed to exhaust his

administrative remedies regarding his duty station transfer, but

otherwise amply pled claims of discrimination, retaliation, and a

hostile work environment, the Smithsonian’s motion will be

granted in part and denied in part.

1 Secretary G. Wayne Clough is substituted as the defendant under Federal Rule of Civil Procedure 29(d). -2-

BACKGROUND

Winston, an African American employee of the Smithsonian, is

a Facilities Management Specialist. He began his employment

there in 1995. (Am. Compl. ¶¶ 1, 21.) In January 2006, David

Samec, Winston’s supervisor, informed Winston that a colleague

named Kendra Gastright had accused him of threatening her with

violence during a meeting that occurred earlier in January. (Id.

¶ 22.) On January 23, 2006, Samec issued a memorandum to Winston

reassigning him effective on January 24, 2006 from the East Mall

Zone in Washington, D.C. to the Suitland Maryland Zone, a zone

that Winston claims Smithsonian employees refer to as the “Black

Zone.” Winston believed that the reassignment was temporary

because the memorandum did not state that the reassignment would

be permanent. However, Winston acknowledged receipt of the

memorandum and wrote on the bottom, “I do not concur. I feel my

right[s] have been violated.” (Id. ¶ 24; Def.’s Mem. in Supp. of

Mot. for Dismissal (“Def.’s Mem.”) Ex. 1.) After Winston

relocated on January 24, 2006 to the Suitland Zone, he ceased

performing duties related to his position in Washington, D.C. as

a facility maintenance manager, and instead performed various

functions of decreased responsibility, prestige, and importance.

(Am. Compl. ¶ 25.) On February 7, 2006, Samec issued to Winston

a proposal to suspend Winston for one day without pay, not for

any alleged threats of violence, but for acting “inappropriately -3-

and unprofessionally” during the January meeting by not complying

with Gastright’s request that he cease responding to her

sarcastically and teasing her. Winston alleges that the

memorandum proposing the suspension failed to mention Winston’s

equal employment opportunity (“EEO”) rights or how he could

appeal the one-day suspension through the EEO process. (Id.

¶¶ 26-27.)

Winston appealed the one-day suspension to a deciding

official named Nancy Bechtol, who reversed the suspension on

April 3, 2006 and instead imposed a “Confirmation of Counseling.”

(Am. Compl. ¶ 28.) Bechtol’s decision did not address Winston’s

reassignment to the Suitland Zone. (Id.) Winston alleges that

the Smithsonian treated him differently than it treated his non-

black colleagues, because Gastright, an Asian woman, was required

only to issue a written apology and was not reassigned or

effectively demoted after she uttered profanity and acted

disrespectfully toward her colleagues. (Id. ¶ 29.) Winston

contacted an EEO counselor on April 27, 2006 regarding his

transfer and Bechtol’s action. (Id. ¶ 5; Def.’s Mem. Ex. 4.) He

later filed in June 2006 a formal administrative complaint,

unsuccessfully pressing the same allegations with the agency and

later on appeal to the Equal Employment Opportunity Commission

(“EEOC”). (Am. Compl. ¶¶ 6-9; Def.’s Mem. Ex. 5.) -4-

According to Winston, at a weekly managers meeting held the

following year, Winston’s Suitland supervisor, Maurice Evans, put

two other employees, David Sidbury and James Cutler, in charge of

snow removal. Sidbury informed Evans that he wanted to place an

employee named Oscar Waters on his snow removal team, and Cutler

stated that he wanted an employee named James Taylor to be named

to his snow removal team. (Am. Compl. ¶¶ 31-32.) Evans

instructed Cutler that Taylor could assist him with snow removal,

but stated that Waters would not be allowed to participate in

snow removal. (Id. ¶ 33.) The following day, contrary to Evans’

directive, Sidbury enlisted Waters in snow removal. (Id.) Three

weeks later, Evans issued to Winston a proposal to suspend him

for seven days without pay for failing to inform Waters that he

should not report for snow removal, and for overusing a cellular

telephone. (Id. ¶ 36.) In April 2007, Bechtol issued a decision

upholding Evans’ recommendation to suspend Winston for seven days

without pay. Winston served his suspension in May of 2007.

According to Winston, several of his co-workers who were outside

of his protected class have used their cellular telephones more

than Winston used his, and were not disciplined for doing so.

(Id. ¶¶ 41-44.)

Winston filed this action on August 3, 2007. The amended

complaint alleges three violations of Title VII: discrimination

based upon race and color by transferring Winston to the Suitland -5-

Zone in 2006 and suspending him without pay for seven days

in 2007 (Count I); retaliation for his having filed his June 2006

formal complaint by suspending him for the seven days in 2007

(Count II); and discriminatory hostile work environment based in

part upon the actions complained of in Counts I and II

(Count III). (Am. Compl. ¶¶ 45-53.)

The Smithsonian moves to dismiss Winston’s amended complaint

or for summary judgment, arguing that Winston failed to timely

exhaust his administrative remedies for his claim of

discrimination based upon reassignment from Washington D.C. to

Maryland; failed to rebut in the amended complaint the legitimate

non-discriminatory reasons for his suspension; failed to

establish a temporal link between his protected activity and the

adverse employment action sufficient to support his claim of

retaliation; and failed to sufficiently allege a claim of

discriminatory hostile work environment because his hostile work

environment claim consists of a mere repetition of the same

discrete acts that form the basis of his other claims. Winston

opposes the Smithsonian’s motion, arguing that he timely

exhausted his administrative remedies regarding Count I or that

the deadline should be tolled because he lacked constructive

knowledge of the 45-day deadline; that pretext need not be pled

in a complaint; that he has pled evidence of a causal connection

between the protected activity and the adverse personnel action -6-

and that the length of time between them was sufficiently short

to infer the causal connection; and that the discrete acts and

the Smithsonian’s entire course of conduct that Winston cites

sufficiently support his claim of a hostile work environment that

was so severe or pervasive as to change the terms and conditions

of Winston’s employment.2

DISCUSSION

A complaint can be dismissed under Federal Rule of Civil

Procedure 12(b)(6) when a plaintiff fails to state a claim upon

which relief can be granted. Peavey v. Holder,

(D.D.C. 2009) (citing Fed. R. Civ. P. 12(b)(6)). “A

Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a

complaint.” Smith-Thompson v. Dist. of Columbia,

(D.D.C. 2009).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to “state a claim to relief that is plausible on its face.” . . . 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.

Ashcroft v. Iqbal,

(2009) (citing Bell

Atlantic Corp. v. Twombly,

(2007)). The

2 Winston also moves for leave to file a surreply. He argues that the Smithsonian did not raise until its reply its claim that Winston waived any argument that the deadline for contacting an EEO counselor should be tolled. His motion will be granted but the surreply will be considered only to the extent it addresses this issue. -7-

complaint must be construed in the light most favorable to the

plaintiff and “the court must assume the truth of all

well-pleaded allegations.” Warren v. District of Columbia,

(D.C. Cir. 2004). In deciding a motion brought under

Rule 12(b)(6), a court does not consider matters outside the

pleadings, but a court may consider on a motion to dismiss “the

facts alleged in the complaint, documents attached as exhibits or

incorporated by reference in the complaint,” Gustave-Schmidt v.

Chao,

(D.D.C. 2002), or “documents ‘upon

which the plaintiff’s complaint necessarily relies’ even if the

document is produced not by the plaintiff in the complaint but by

the defendant in a motion to dismiss,” Hinton v. Corr. Corp. of

Am.,

(D.D.C. 2009) (quoting Parrino v.

FHP, Inc.,

(9th Cir. 1998)), such as the

memorandum of reassignment attached as Exhibit 1 to the

Smithsonian’s motion to dismiss. (See Am. Compl. ¶ 24; Def.’s

Mem. Ex. 1.)

However, “where both parties submit material outside the

pleadings and ‘the parties are not taken by surprise or deprived

of a reasonable opportunity to contest facts averred outside the

pleadings and the issues involved are discrete’ legal issues, the

court may convert the motion to a motion for summary judgment

‘without providing notice or the opportunity for discovery to the

parties.’” Highland Renovation Corp. v. Hanover Insurance Group, -8-

(quoting Tunica-Biloxi Tribe of La. v.

United States,

(D.D.C. 2008) and Smith

v. United States,

(D.D.C. 2007)).

Summary judgment is appropriately granted when the moving

party demonstrates that there is no genuine issue as to any

material fact and that moving party is entitled to judgment as a

matter of law. Moore v. Hartman,

(D.C. Cir.

2009) (citing Fed. R. Civ. P. 56(c) and Anderson v. Liberty

Lobby, Inc.,

(1986)). “In considering a motion

for summary judgment, [a court is to draw] all ‘justifiable

inferences’ from the evidence . . . in favor of the nonmovant.”

Cruz-Packer v. Dist. of Columbia,

(D.D.C. 2008) (quoting Anderson,

); Matsushita

Elec. Indus. Co. v. Zenith Radio Corp.,

(1986).

The court must determine “whether there is a need for trial - -

whether, in other words, there are any genuine factual issues

that properly can be resolved only by a finder of fact because

they may reasonably be resolved in favor of either party.”

Citizens for Responsibility and Ethics in Wash. v. Bd. of

Governors of the Fed. Reserve,

(D.D.C.

2009)(internal quotation omitted).

I. EXHAUSTION OF ADMINISTRATIVE REMEDIES

The Smithsonian moves under Rule 12(b)(1) to dismiss for

lack of subject matter jurisdiction the claim in Count I of -9-

Winston’s amended complaint regarding winston’s transfer to the

Suitland Zone. However, “‘[m]otions to dismiss for failure to

exhaust administrative remedies are . . . appropriately analyzed

under Rule 12(b)(6)’” for failure to state a claim for which

relief can be granted. Hairston v. Tapella,

(D.D.C. 2009) (quoting Hopkins v. Whipple,

(D.D.C. 2009)); see also Arbaugh v. Y & H Corp.,

(2006) (“[W]hen Congress does not rank a statutory

limitation on [the statute’s] coverage as jurisdictional, courts

should treat the restriction as non-jurisdictional in

character.”); Douglas v. Donovan,

, 556 n.4 (D.C.

Cir. 2009) (“[T]he exhaustion requirement [under Title VII]

though mandatory, is not jurisdictional[.]”); Shipman v. Vilsack,

Civil Action No. 09-567 (RWR),

(D.D.C.

March 12, 2010). “Moreover, [b]ecause untimely exhaustion of

administrative remedies is an affirmative defense, the defendant

bears the burden of pleading and proving it.” Battle v. Rubin,

(D.D.C. 2000) (internal quotation omitted).

“Before filing a Title VII suit, a federal employee must

timely pursue [his] administrative remedies, following the

requirements set forth in

.” Hines v. Bair,

(D.D.C. 2009). “If a plaintiff believes

that [he] has been unlawfully discriminated against, ‘[he] must

consult an EEO counselor in an effort to resolve the situation -10-

informally.’”

(citing

(a)). This

contact with the EEO counselor must occur within 45 days of the

alleged discriminatory incident.

(citing

(a)(1)). If informal counseling fails to resolve the

grievance, the employee then has 15 days from when the employee

receives notice that counseling has ended to file a written

complaint. See Chandler v. Bernanke,

(D.D.C. 2008);

(b). After filing a written

complaint, the employee may file a civil action once the agency

issues an adverse final decision or 180 days elapse without a

decision, whichever happens first. See 42 U.S.C. § 2000e-16(c).

The procedural requirements governing a plaintiff’s right to

bring a Title VII claim in court are not treated as mere

technicalities, because it is “part and parcel of the

Congressional design to vest in the federal agencies and

officials engaged in hiring and promoting personnel ‘primary

responsibility’ for maintaining nondiscrimination in employment.”

Patterson v. Johnson,

(D.D.C. 2006)

(quoting Kizas v. Webster,

(D.C. Cir. 1983)).

That said, Title VII’s purpose is remedial in nature, and time

limits are imposed principally to insure that employers receive

notice of complaints and have the ability to resolve the

situation before litigation is filed, which means that the time

limits are “subject to waiver, estoppel, and equitable tolling -11-

‘when equity so requires.’” See Morgan, 536 U.S. at 121 (quoting

Zipes, 455 U.S. at 398). The equitable power to toll a

limitation period should be exercised in “‘carefully

circumscribed instances.’” Norman v. United States,

(D.C. Cir. 2006) (quoting Smith-Haynie v. Dist. of

Columbia,

(D.C. Cir. 1998)); see also Brown

v. American Postal Workers Union, Civil Action No. 09-477 (RWR),

, at *2 (D.D.C. October 19, 2009).

Count I of Winston’s amended complaint alleges that the

Smithsonian unlawfully discriminated against Winston based on his

race in part by transferring him to the Suitland Zone in

January 2006. (Am. Compl. ¶¶ 45-47.) The memorandum reassigning

Winston to the Suitland Zone made the reassignment effective as

of January 24, 2006, meaning that the 45-day deadline for

contacting an EEO counselor was March 10, 2006. (Def.’s Mem. Ex.

1.) However, Winston did not contact a counselor until April 27,

2006. (Am. Compl. ¶ 5.) Winston argues that the effective date

of his transfer to the Suitland Zone occurred on April 3, 2006,

when Bechtol issued her decision reversing the one-day

suspension. (Pl.’s Opp’n at 20.) However, a discrete

retaliatory or discriminatory personnel action occurs on the

“effective date of the action,” not on the date an internal

appeal of the action concludes. See

(a)(1)

(stating that “[a]n aggrieved person must initiate contact with a -12-

Counselor . . . , in the case of personnel action, within 45 days

of the effective date of the action”); Foster v. Gonzales,

(D.D.C. 2007) (rejecting the plaintiff’s

arguments that the effective date of a personnel action is the

date of the completion of an internal appellate process and that

internal appeals toll the 45-day limitations period). Winston’s

transfer to the Suitland Zone was not contingent on any aspect of

the internal appellate process; Winston was transferred on

January 24. Thus, Winston’s contact with an EEO counselor on

April 27 regarding his transfer to the Suitland Zone was not

timely.

Winston, though, argues that the deadline for contacting the

EEO counselor regarding his transfer to the Suitland Zone should

be tolled because he was not notified of the time limits and was

not otherwise aware of them. “The agency or the Commission shall

extend the 45-day time limit . . . when the individual shows that

he or she was not notified of the time limits and was not

otherwise aware of them[.]”

(a)(2) (2005);

see also Norden v. Samper,

(D.D.C. 2008)

(“A federal claimant is entitled to equitable tolling of the

45-day deadline to contact an EEO counselor if [he] can make a

showing that [he] was unaware of the time limit.”) (citing Harris

v. Gonzales,

(D.C. Cir. 2007)). An employee

arguing such unawareness is not “automatically entitled to an -13-

extension [where] the agency, through posters, employee

handbooks, orientation sessions, etc., made conscientious efforts

to advise its employees of the time limit.’” Norden,

(quoting Harris,

). When a

defendant argues that it provided constructive notice of the 45-

day deadline to its employees, a court ordinarily undertakes a

“two-step inquiry: (1) whether notification of the time

requirements was provided, and (2) whether the notification was

reasonably geared to inform the complainant of the time limits.”

Harris,

(internal quotations omitted).3

However, the Smithsonian argues that Winston waived or

failed to exhaust any argument regarding lack of actual or

constructive notice by not raising it in his initial EEO

complaint or in his appeal before the EEOC’s Office of Federal

Operations (“OFO”), despite being represented by counsel during

those adversarial proceedings. (Def.’s Reply at 6.) Generally,

when courts review decisions reached in adversarial

3 The parties offer dueling affidavits from Smithsonian employees raising a genuine dispute about both factual prongs. (See Def.’s Reply, Ex. 12, claiming that a poster detailing the EEO grievance process was posted in Winston’s workplace; cf. Pl.’s Mot, Ex. 2 ¶ 3, claiming an employee never saw that poster posted anywhere in that workplace.) Under other circumstances, considering these materials outside of the pleadings would trigger summary judgment analysis, see Fed. R. Civ. P. 12(d), and the dispute would doom the Smithsonian’s motion. The affidavits are not reached, however, given the conclusion discussed below that Winston has waived his argument that he lacked notice of the 45-day time limit. -14-

administrative proceedings,4 they may expect that the parties

developed the issues below and “the rationale for requiring issue

exhaustion is at its greatest.” Sims v. Apfel,

(2000).5 “‘[A]s a general rule . . . courts should not topple

over administrative decisions unless the administrative body not

only has erred, but has erred against objection made at the time

appropriate under its practice.’” Woodford v. Ngo,

(2006) (quoting United States v. L.A. Tucker Truck Lines,

Inc.,

(1952)).

Issue exhaustion stems from the common principle that an

objection which is not made in an adversarial administrative

proceeding is waived in a subsequent judicial proceeding. L.A.

Tucker Truck Lines, Inc.,

(“[O]rderly procedure

and good administration require that objections to the

proceedings of an administrative agency be made while it has

opportunity for correction in order to raise issues reviewable by

the courts.”). The principle that an argument not raised in

4 There is no genuine dispute but that the OFO proceedings were adversarial given that the parties filed opposing briefs (Def.’s Reply Ex. 10) and both parties were represented by counsel. See also Nat’l Cas. Co. v. Forge Indus. Staffing, Inc.,

, 877 n.1 (7th Cir. 2009) (describing EEOC proceedings as adversarial); Li-Lan Tsai v. Rockefeller Univ.,

(S.D.N.Y. 2001) (stating that “[f]iling an EEOC charge is an adversarial proceeding”). 5 By contrast, where an administrative proceeding is not adversarial, “the reasons for a court to require issue exhaustion are much weaker.” Sims,

. -15-

administrative proceedings is waived in judicial proceedings has

been applied against an agency in a Title VII court action

following EEOC proceedings. See, e.g., Johnson v. Billington,

(D.D.C. 2005) (holding that “when a

complaint has proceeded through administrative channels prior to

arriving at the federal courthouse, and the agency has accepted,

investigated and decided that complaint on its merits without

raising the exhaustion issue, the exhaustion defense may be found

to have been waived”).

Winston argues that he implicitly raised the issue of

constructive notice during his EEOC proceedings (Pl.’s Surreply

at 2), and, citing Herron v. Veneman,

(D.D.C.

2004), that he is entitled to raise issues here that were not

raised or decided below because plaintiffs challenging final

agency actions are entitled to a “full trial de novo.” (Pl.’s

Surreply at 3-4.) Neither argument is persuasive. First,

Winston did not argue anywhere in either his opening or reply

brief in the appeal6 that he was not provided notice of the

filing deadlines, and he therefore deprived the EEOC of having a

fair and full opportunity to consider the merits of the issue.

(See Def.’s Reply Ex. 10, Ex. 11.) Second, Herron does not

6 Because those briefs being considered are outside of the pleadings in this action, the Smithsonian’s motion on this issue will be treated as one for summary judgment. See Fed. R. Civ. P. 12(d). -16-

discuss or decide whether a plaintiff bringing a claim under

Title VII is required to raise issues during administrative

proceedings in order to preserve them in a district court action.

Instead, Herron held that following a final agency determination

of agency liability on a Title VII claim, a plaintiff in a civil

action “may not seek a limited de novo review of the remedy only

while binding the agency to a previous finding of discrimination”

and foreclose relitigation of liability. Herron,

(emphasis removed).

Whether the inquiry should be framed as one of issue

exhaustion or waiver, it is clear that Congress was determined to

foster among employing federal agencies full investigation and

resolution of discrimination complaints. See Kizas,

(noting that Congress directed federal employment

discrimination complaints to proceed initially before the agency

charged with discrimination because Congress vested in federal

agencies and their hiring officials “primary responsibility” for

preventing discrimination in employment). Winston said nothing

about lacking notice of the 45-day time limit in his EEO

complaint to the Smithsonian. The Smithsonian ruled that he had

failed to abide by the 45-day period, but among all the reasons

he raised for his untimeliness on appeal to the EEOC’s OFO, none

was that he lacked prior notice of the 45-day period. Not only

did he say nothing about it in his opening brief on appeal, and -17-

nothing about it in his reply brief, he said nothing about it

until filing his brief opposing the dismissal motion here over 18

months after his reassignment. At minimum, simple respect for

Congress’s aim and simple fairness to the agency suffice to deem

Winston’s argument that he lacked constructive notice of the 45-

day deadline for contacting an EEO counselor regarding his

transfer to Suitland waived at this late date.

On this issue, the material facts are not in dispute and the

Smithsonian is entitled to prevail as a matter of law.

Therefore, the Smithsonian’s motion to dismiss Count I as it

applies to Winston’s transfer to Suitland for failure to exhaust

administrative remedies, treated as a motion for summary

judgment, will be granted.7

II. FAILURE TO STATE A CLAIM OF DISCRIMINATION OR RETALIATION

The Smithsonian argues that the remainder of Count I and

Count II of Winston’s amended complaint should be dismissed

because Winston fails to state a claim of discrimination or

retaliation for which relief can be granted regarding his seven-

day suspension. (Def.’s Mot. at 1-2; Def.’s Mem. at 12; Def.’s

Reply at 12 n.6.) According to the Smithsonian, Winston’s claims

fail because the Smithsonian articulated legitimate, non-

discriminatory reasons for the suspension - - Winston’s failure

7 Winston’s motion for Rule 56(f) discovery will be denied. None of the discovery sought pertains to the one issue resolved by summary judgment. -18-

to carry out the instructions of his manager regarding the snow

removal, and Winston’s excessive use of his Smithsonian-issued

cellular telephone. (Def.’s Mem. at 14.)

The Smithsonian measures Winston’s complaint by a pleading

burden that the complaint does not carry. It is true that proof

of a discrimination or retaliation claim is governed by the

burden-shifting framework established in McDonnell Douglas Corp.

v. Green,

(1973). That procedure requires the

plaintiff to prove a prima facie case, the employer to then

produce evidence of a legitimate, nondiscriminatory reason for

the adverse action, and the plaintiff to then show that the

reason offered was a pretext for discrimination.

.

“None of this, however, has to be accomplished in the complaint

itself. Under Federal Rule of Civil Procedure 8(a)(2), a claim

need only contain ‘a short and plain statement of the claim

showing that the pleader is entitled to relief.’” Sparrow v.

United Air Lines, Inc.,

(D.C. Cir. 2000). A

complaint need not offer any evidence of pretext.

The two elements a plaintiff must plead for a viable claim

of discrimination under Title VII are that “(i) the plaintiff

suffered an adverse employment action (ii) because of [his] race,

color, religion, sex, or national origin.” Brady v. Office of

the Sergeant at Arms,

(D.C. Cir. 2008).

Winston has done this in Count I and supported the claim with -19-

factual allegations of racially disparate treatment. Winston

alleges in his amended complaint that the Smithsonian’s conduct

in “disciplining [Winston] and suspending him for seven days

without pay was motivated by Mr. Winston’s race and color in

violation of Title VII[.]” (Am. Compl. ¶ 46.) He adds that

other co-workers outside of Winston’s protected class used their

cell phones more than he did, yet none was suspended or

disciplined for it. (Am. Compl. ¶ 41.) Winston has adequately

pled that his 2007 suspension was unlawful discrimination.

The elements of a claim of retaliation are that the

plaintiff engaged in a statutorily protected activity, the

employer treated the plaintiff adversely, and a causal connection

existed between the two. Wiley v. Glassman,

(D.C. Cir. 2007); see also Rochon v. Gonzales,

(D.C. Cir. 2007); Iweala v. Operational Techs. Servs.,

(D.D.C. 2009) (quoting Brown v. Brody,

(D.C. Cir. 1999) (internal quotation marks

omitted)). A plaintiff alleging retaliation faces a low hurdle

at the motion to dismiss stage, and need not present evidence of

pretext. See Rochon,

(reversing the

dismissal of the plaintiff’s retaliation claim since a complaint

need not allege adverse treatment that is a personnel action, or

negate prospective alternative explanations for the cause of the

treatment). “‘Temporal proximity’ between a complaint of -20-

discrimination and an adverse action, such as termination, can

‘support a jury’s finding of a causal link.’” Iweala,

(quoting Patterson v. Johnson,

(D.C. Cir. 2007)) (quoting Sparrow,

).

The Smithsonian argues that Winston fails to state a viable

claim of retaliation regarding his seven-day suspension because

the lapse of time between Winston’s protected activity

(initiating the EEO process in June 2006) and the April 2007

suspension is too great to support an inference of discriminatory

retaliation. (Def.’s Mem. at 11.) However, a causal connection

between the protected activity and the adverse action is the

essential element of a retaliation claim; temporal proximity is

not. A complaint’s facts reflecting temporal proximity can be

probative of a causal connection, but are not required in order

to plead a retaliation claim. Winston can satisfy his burden to

plead a plausible claim of retaliation by providing facts showing

that he engaged in a protected activity and suffered an adverse

employment action, and alleging that he suffered the adverse

employment action as a result of the protected activity. See

Beckham v. Nat’l R.R. Passenger Corp.,

(D.D.C. 2008) (refusing to dismiss a retaliation claim where the

plaintiff “satisfied her burden by alleging that she was denied

benefits because of her opposition to actions made unlawful by

Title VII”); Vance v. Chao,

(D.D.C. -21-

2007) (citing Twombly, and denying a motion to dismiss, stating

that at the motion to dismiss stage, “[the] plaintiff can meet

her prima facie [sic] burden simply by alleging that the adverse

actions [that were supported by facts in her complaint] were

caused by her protected activity”); Rhodes v. Napolitano,

(D.D.C. 2009) (rejecting argument that the

plaintiff’s retaliation claim failed to establish a causal

connection between protected activity that occurred in 2003 or

2004 and retaliatory action that occurred in 2007, because the

plaintiff’s allegation that the defendant initiated the

retaliatory action in response to her previous EEOC activity was

“sufficient to survive a motion to dismiss”); Dave v. Lanier,

(D.D.C. 2009) (denying the defendant’s

motion to dismiss the plaintiff’s claim of retaliation because

“the plaintiff . . . made out a legally cognizable claim of

retaliation by contending that he engaged in a protected activity

by reporting the trainer’s allegedly discriminatory conduct and

that in response to his complaint, the defendant retaliated

against him by subjecting him to materially adverse actions”).

Moreover, “‘a close temporal connection is not the only way

to prove causation. A plaintiff may also put forward direct

evidence and disregard the presumption and its time

limitations.’” Rhodes,

(quoting Beckham,

). The amended complaint alleges that Evans -22-

informed Winston, in response to a question about whether other

people were being punished for overusing their cellular

telephones, that “this is coming from downtown, and you and I

have talked about the fact that you know you don’t have any

friends from downtown.” (Am. Compl. ¶¶ 37-41.) Winston also

alleges that he was punished for excessive use of his cellular

telephone before the Smithsonian even issued guidelines regarding

use of such phones, and that other co-workers outside of

Winston’s protected class used their cell phones more than

Winston did, yet none was suspended or disciplined for it. With

all reasonable inferences from these factual allegations drawn in

Winston’s favor, this complaint amply alleges that his adverse

treatment was not only racially disparate but fueled by managers

whom he alienated by having filed a complaint in 2006. That

inference is bolstered by the allegation that the deciding

official, Bechtol, who issued the 2006 decision on the proposal

to suspend Winston for his conduct toward Gastright, was the same

person who issued the 2007 decision adopting the proposal to

suspend him for seven days. (Id. ¶¶ 42-43.) Thus, Winston’s

amended complaint sufficiently alleges a claim of retaliation

that is plausible on its face, and Count II of Winston’s amended

complaint survives. -23-

III. HOSTILE WORK ENVIRONMENT

The Smithsonian moves to dismiss Count III of Winston’s

amended complaint, in which Winston alleges that as a “result of

the above-referenced retaliatory and/or discriminatory conduct,

the Defendant has subjected the Plaintiff to a hostile

environment based on discrimination and/or retaliation, in

violation of Title VII[.]” (Am. Compl. ¶ 52.) The Smithsonian

argues that Count III should be dismissed because Winston is

impermissibly attempting to bootstrap discrete acts of

discrimination into a hostile work environment claim. (Def.’s

Mot. at 17.)

To state a hostile work environment claim, Winston must

allege that “he suffered harassment because of his membership in

a protected class . . . [,] that [his employer] knew or should

have known of the alleged harassment and failed to take remedial

action[,]” King v. Pierce Assocs.,

(D.D.C. 2009) (citing Davis v. Coastal Int’l Sec., Inc.,

(D.C. Cir. 2002)), and that it interfered with his

work. See Roberson v. Snow,

, 97 n.8 (citing

Harris v. Forklift Sys., Inc.,

(1993) (internal

quotation marks omitted)); see also Faragher v. Boca Raton,

(1998). “A hostile work environment exists when

‘the workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to -24-

alter the conditions of the victim’s employment and create an

abusive working environment[.]’” Roberson,

n.8.

Here, Count III of Winston’s amended complaint incorporates

all the factual allegations preceding it, as well as the

allegations of Counts I and II, into his hostile work environment

claim. The allegations preceding Counts I and II range from

facing unsubstantiated allegations that he threatened violence

against a co-worker, to being evicted from his workspace and

barred from meetings, to being stripped of supervisory duties and

banished to cramped work space, to facing a proposed suspension

that was later overruled. (Am. Compl. ¶¶ 22, 23, 25, 26.) While

the Smithsonian questions whether Winston’s use of discrete acts

of discrimination to fashion a hostile work environment claim

could eventually withstand the scrutiny of summary judgment,8 a

plaintiff filing an employment discrimination complaint is

ordinarily not subject to a heightened pleading standard,9 and is

8 Cf. Rattigan v. Gonzales,

(D.D.C. 2007); Nurridin v. Goldin,

(D.D.C. 2005); Lester v. Natsios,

(D.D.C. 2003). 9 See Sparrow,

(“We understand why district courts may want to alleviate their crowded dockets by disposing quickly of cases that they believe cannot survive in the long run. But . . . this may not be accomplished by employing heightened pleading standards . . . . Rather, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.”) (internal quotation marks omitted). -25-

not required to plead a prima facie case of discrimination or

retaliation in his complaint, Swierkiewicz v. Sorema N.A.,

(2002); Rattigan v. Gonzalez,

(D.D.C. 2007); Smith-Thompson, 657 F. Supp. 2d at 129 (citing

Swierkiewicz,

(2002)), or to “plead law or

match facts to every element of a legal theory.” Krieger v.

Fadely,

(D.C. Cir. 2000) (internal quotation

and citation omitted); see also Ali v. Dist. of Columbia, Civil

Action No. 08-1950 (HHK),

(D.D.C. March

24, 2010) (denying motion to dismiss the plaintiff’s hostile work

environment claim, even though “it [was] unlikely that [the

plaintiff’s] claims of discrimination will ultimately prove

meritorious”). Historically,

[t]he D.C. Circuit has long recognized the ease with which a plaintiff claiming employment discrimination can survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. “Because racial discrimination in employment is a claim upon which relief can be granted, . . . ‘I was turned down for a job because of my race’ is all a complaint has to state to survive a motion to dismiss under [Rule] 12(b)(6).”

Rouse v. Berry, Civil Action No. 06-2088 (RWR),

(D.D.C. January 29, 2010) (quoting Potts v. Howard Univ.

Hosp.,

(D.C. Cir. 2007)). Even today,

all that is required of the amended complaint at this stage is

that it provide enough factual heft to show a plausible

entitlement to relief; that is, that it contain “enough facts to -26-

[nudge] a claim to relief . . . across the line from conceivable

to plausible[.]” Twombly,

.10 Winston’s claim,

construed in the light most favorable to him despite its sparse

nature, sufficiently alleges facts that could be probative of a

discriminatory hostile work environment by incorporating the

purportedly discriminatory conduct that Winston experienced, and

asserting that the discriminatory conduct constituted a hostile

work environment. See Holmes-Martin v. Leavitt,

(D.D.C. 2008) (denying the defendant’s motion to dismiss

the plaintiff’s claim of hostile work environment because the

plaintiff “alleged some conduct in support of her claim,” and

noting that a plaintiff is required to plead facts which

“support,” not “establish,” the claim). Therefore, the motion to

dismiss Count III of Winston’s amended complaint will be denied.

CONCLUSION AND ORDER

Winston failed to exhaust his administrative remedies

regarding his transfer to the Suitland Zone. However, Winston

adequately alleges claims of discrimination and retaliation

regarding his seven-day suspension, and of a hostile work

environment. Therefore, it is hereby

10 Justice Thomas’s unanimous Swierkiewicz opinion, cited in and undisturbed by Twombly,

, is still good law. Notably, the Smithsonian does not attack Winston’s complaint as insufficient under Twombly, a case decided well before the Smithsonian filed its motion to dismiss. -27-

ORDERED that the defendant’s motion [10] to dismiss or for

summary judgment be, and hereby is, GRANTED in part and DENIED in

part. Judgment is granted to the defendant on the portion of

Count I of Winston’s amended complaint that pertains to Winston’s

transfer to the Suitland Zone. The remainder of the motion is

denied. It is further

ORDERED that Winston’s motion [17] for leave to file a

surreply and for Rule 56(f) discovery be, and hereby is, GRANTED

in part and DENIED in part. Leave to file a surreply is granted

and the request for Rule 56(f) discovery is denied. It is

further

ORDERED that Winston’s motion [19] for a hearing be, and

hereby is, DENIED as moot.

SIGNED this 11th day of May, 2010.

/s/ RICHARD W. ROBERTS United States District Judge