UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CAMILLE GROSDIDIER,

Plaintiff,

v. Civil Action No. 08-1553 (CKK) CHAIRMAN, BROADCASTING BOARD OF GOVERNORS,

Defendant.

MEMORANDUM OPINION (March 28, 2011)

Plaintiff Camille Grosdidier (“Grosdidier”) brings this action against the Broadcasting

Board of Governors (“BBG” or the “agency”) pursuant to 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

(“ADEA”),

et seq. Grosidier alleges that her employer, the Voice of America

(“VOA”), an entity within the BBG, discriminated against her based on her race, age, sex, and

national origin and retaliated against her for complaining about this discrimination. Presently

pending before the Court are Defendant’s [21] Motion for Judgment on the Pleadings or

Alternatively, [15] Motion for Summary Judgment and Plaintiff’s [23] Motion for Adverse

Presumption. For the reasons explained below, the Court shall GRANT-IN-PART Defendant’s

Motion for Summary Judgment with respect to all of Plaintiff’s claims except her claim that

Defendant retaliated against her by reducing her editing responsibilities after October 5, 2007,

with respect to which the Court shall DENY-IN-PART Defendant’s motion. The Court shall

also DENY Plaintiff’s Motion for Adverse Presumption. I. BACKGROUND

Camille Grosdidier has worked as an International Broadcaster with the French to Africa

Service of the Voice of America since 1987. Def.’s Stmt.1 ¶ 2. Grosdidier is a white female of

French national origin who is a naturalized citizen of the United States.

. She is employed

at the GS-12 level.

. The BBG encompasses all U.S. civilian international broadcasting,

including the VOA, Radio Free Europe, and other networks.

. BBG broadcasters

distribute programming in sixty languages to an estimated weekly audience of 175 million people

via radio, television, the internet, and other new media.

The VOA’s French to Africa Service

primarily competes with French, British, and local African radio and media services.

.

These competitors began using television, internet, and other new communication technologies

before the VOA, and the French to Africa Service has since recognized the importance of

multimedia forms of communication.

Throughout most of the time relevant to this litigation, the Chief of the French to Africa

Service was Idrissa Seydou Dia (“Dia”). See Pl.’s Ex. 6 (Dia Dep.) at 5. Dia had been acting in

that capacity since sometime in 2003.

Between 1992 and 2002, Grosdidier filed a series of

equal employment opportunity (“EEO”) complaints about discrimination and harassment in the

1 The Court strictly adheres to the text of Local Civil Rule 7(h) (formerly Rule 56.1) when resolving motions for summary judgment. See Burke v. Gould,

(D.C. Cir. 2002) (finding that district courts must invoke the local rule before applying it to the case). The Court has advised the parties that it strictly adheres to Rule 7(h) and has stated that it “assumes facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.” [11] Order at 2 (Oct. 28, 2009). Thus, in most instances the Court shall cite only to one party’s Statement of Material Facts (“Stmt.”) unless a statement is contradicted by the opposing party, in which case the Court may cite a party’s Response to the Statement of Material Facts (“Resp. Stmt.”). The Court shall also cite directly to evidence in the record, where appropriate.

2 workplace. See Def.’s Ex. Y (Aff. of Camille Grosdidier) at 1-2. In September 2002, Grosdidier

filed a complaint about her nonselection for a GS-13 International Broadcaster position in the

French to Africa Service, alleging discrimination based on her sex, color, and reprisal for

engaging in EEO activity. Id. at 2. That complaint was dismissed by an administrative judge.

See Pl.’s Ex. 2 (Grosdidier Dep.) at 37. Grosdidier also complained about an incident in 2000

when her supervisor, then-Chief Claude Porsella, removed her from editing duties. See id. at 32-

33. She was eventually reinstated to editing duties. Id. at 33-34. Grosdidier contends that her

EEO activity was generally known within the French to Africa Service. See Def.’s Ex. Y (Aff. of

Camille Grosdidier) at 2.

B. Grosdidier’s Complaints About Her Work Environment

Around 2004 and 2005, Grosdidier complained to her supervisors about what she

perceived to be a sexually charged atmosphere in the French to Africa Service. Dia had a

particularly friendly relationship with one female producer in the office, who called Dia “Sexy

Papa” and whom Dia called “Sexy Mama.” See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 109.

Ferdinand Ferella, who worked as a managing editor for the French to Africa Service, described

this as “something of a joke.” Id. Dia testified that it did not have any sexual connotation, but

instead resulted from Dia’s mistranslation of the Jimi Hendrix song “Foxy Lady.” See Pl.’s Ex. 6

(Dia Dep.) at 40-41. Grosdidier objected to the banter between Dia and this employee.

Grosdidier also complained about another female employee who called Ferella “maître,”or

“master,” which she thought was inappropriate. Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 110-

11; Pl.’s Ex. 2 (Grosdidier Dep.) at 190. This conduct stopped after Grosdidier complained.

Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 115.

3 Grosdidier complained about hugging and kissing in the workplace that she perceived to

be unprofessional and outside the bounds of what was acceptable in French culture. Pl.’s Ex. 2

(Dep. of Camille Grosdidier) at 185-86. On May 3, 2005, Grosdidier sent an email to Dia

complaining about one particular female co-worker who gave a “big, long, fat hug” to a

Senegalese man visiting the office; Grosdidier objected to what she perceived as the employee’s

“pressing need to press herself against every man in sight on the slightest pretext - especially

strangers - and the way this has ‘sexualized’ our French Branch office.” Pl.’s Ex. 30 (5/3/2005

Email from Grosdidier to Dia) at 17.

Grosdidier also complained about an email sent around the office in April 2004 depicting

a man straddling a cannon, which she perceived to be sexually suggestive. See Pl.’s Ex. 24 (Dep.

of Ferdinand Ferella) at 117; Pl.’s Ex. 29 at 12 (4/13/2004 Email from Grosdidier to Eric

Agnero) (“Thanks for this edifying picture of a man with a giant object between his legs.”). Dia

told Grosdidier that the employee who sent the email did not see anything sexual about the

photograph, which depicted a famous musician from his home country. See Pl.’s Ex. 29 at 13;

Pl.’s Ex. 6 (Dia Dep.) at 36. In November 2003, the same employee had sent an email around the

office containing a picture of an outdoor marketplace in which brassieres were prominently

displayed. See Pl.’s Ex. 29 at 14. Grosdidier also complained about one male employee who

wore short shorts to the office; Ferella agreed in his deposition testimony that his attire was

unprofessional. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 118-19.

Dia took informal action in response to Grosdidier’s complaints, warning people during a

morning office meeting not to go overboard with physical contact and to keep things professional

because “someone” might complain. See Pl.’s Ex. 6 (Dep. of Idrissa Dia) at 37-38. Dia denies

4 identifying Grosdidier as the potential complainant. See id. at 132. Dia told Ferella that he was

frustrated by Grosdidier’s complaints because he did not believe the conduct was sexual in

nature. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 115-16. Dia testified in his deposition

that he was upset at Grosdidier for tarnishing his warm relationship with the employee who

called him “Sexy Papa.” See Pl.’s Ex. 6 (Dep. of Idrissa Dia) at 41.

C. Grosidier’s Editing Duties & Other Work Responsibilities

Although Grosdidier’s primary responsibilities as a broadcaster in the French to Africa

Service involved reporting and producing news stories, she was occasionally given duties editing

the work of other broadcasters. Grosdidier has produced evidence indicating that between

February 2004 and at least April 2005, she was regularly assigned editing duties. See Pl.’s Ex. 26

(2/6/2004 Email from Dia to French to Africa Service) at 2 (listing Grosdidier as one of two

broadcasters on the editing team under the overall supervision of a senior editor); Pl.’s Ex. 42

(assignment sheets). Editing duties were normally handled by senior editors rather than

broadcasters like Grosdidier. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 32-33. According

to Timothee Donangmaye (“Donangmaye”), one of Grosdidier’s colleagues, only a few

broadcasters who had excellent language skills were assigned to edit. See Pl.’s Ex. 20 (Dep. of

Timothee Donangmaye) at 33-35. Donangmaye was one of those broadcasters who performed

editing duties on a rotating basis. Id. at 35-36. Grosdidier’s editing skills were mentioned

favorably in several performance evaluations during this period. See Pl.’s Ex. 40 (Performance

Appraisal Report) at 8; Pl.’s Ex. 41 (Performance Appraisal Report) at 8. When assigned editing

duties, Grosdidier would conduct the first editing review of other broadcasters’ work, and the

5 final product would be reviewed again by other supervisors. See Pl.’s Ex. 24 (Dep. of Ferdinand

Ferella) at 43.

Sometime in 2005, Dia made a change in the work assignments that resulted in

Grosdidier working less on editing assignments. Pl.’s Ex. 34 (Dia Dep.) at 66-67, 70. It appears

this change began around June 2005. See Pl.’s Ex. 3 (Assignment sheets). However, by April

2006, Grosdidier was being reassigned to editing duties on a rotating basis. See Pl.’s Ex. 34 (Dia

Dep.) at 68-72; Pl.’s Ex. 27 (Assignment sheets). Records of weekly editing assignments

produced by Grosdidier appear to indicate that she was assigned editing duties at least a few days

each month between April and December 2006. See Pl.’s Ex. 27.

Another aspect of Grosdidier’s duties at the VOA involved editing and uploading content

on the VOA’s website. According to a project manager in the BBG’s Office of Internet Services,

VOA employees cannot edit or upload content on the website unless they have received training

in the content management system used by the VOA, which is called CommonSpot. See Pl.’s

Ex. 22 (Decl. of Marlene Wright) ¶ 3. Since February 2006, an individual could not get a

password to edit or upload news until completing three CommonSpot training classes. Id. ¶ 4.

Grosdidier took her first training class on March 6, 2006 and completed the training requirement

on March 23, 2006. Id. Timothee Donangmaye completed all three classes by May 2005. Id. In

the summer of 2005, Dia sent his staff a memorandum stating that Donangmaye would be

working on the internet with some other staffers, and Grosdidier assumed this meant that she

should not be posting her own content on the website. See Pl.’s Ex. 14 (Grosdidier Dep.) at 88-

90. In February 2007, Dia sent a memorandum to his supervisors requesting approval for

Grosdidier to edit the VOA website. See Pl.’s Ex. 45 (2/12/2007 Memorandum).

6 D. Vacancy for a GS-13 International Broadcaster Position

In February 2006, BBG posted a vacancy announcement for an International Broadcaster,

GS-13 position in the French to Africa Service. Def.’s Stmt. ¶ 16. There is some evidence in the

record that Dia was aware that the vacancy would be filled as early as June 1, 2005. See Pl.’s Ex.

43 (6/1/2005 Email from Grosdidier to French to Africa Service).

The vacancy announcement stated that applicants should have the following knowledge,

skills, and abilities (“KSAs”):

(1) Proven ability to write balanced, objective radio, television and Internet scripts on news events and feature topics that appeal to, educate, explain, and provide context to international audiences;

(2) Broad knowledge of the principles, practices, and procedures of journalistic writing and editing and editing for radio, TV and Internet.

(3) Knowledge of world affairs and U.S. foreign policy, as well as contemporary political, economic, cultural, and social developments and trends in the U.S.

(4) Skill in establishing and maintaining effective and respectful working relationships with team members, colleagues in multi-media elements of VOA, and groups of individuals providing information or interviews for programs or program segments.

(5) Demonstrated experience in writing/editing for a foreign audience.

(6) Knowledge of international radio broadcast, TV and Internet techniques and practices.

Def.’s Stmt. ¶ 18. A separate position description document described the major duties for the

position to include “[p]lans and coordinates, as Webmaster, content of Website that includes

news and feature material” and indicated that the incumbent “is a host of our weekly TV

program.” See Pl.’s Ex. 52 (Position Description) at 6; Def.’s Ex. C (Position Description) at 2.

The position description was initially drafted by an employee in the BBG’s human resources

7 office, but the language regarding the webmaster duty and hosting the weekly TV program was

added at Dia’s request. See Def.’s Stmt. ¶ 17; Pl.’s Ex. 6 (Dia Dep.) at 165-67. Dia testified that

it was quite clear that whoever was selected for the position would be hosting the TV show and

managing the website. See Pl.’s Ex. 6 (Dia Dep.) at 61-62. The position was informally

described as “multi-media Senior Editor.” See Def.’s Ex. M. At the time the vacancy was

announced, Donangmaye was hosting the French to Africa Service’s weekly “Washington

Forum” program and was one of the people responsible for updating content on its website. See

Pl.’s Ex. 20 (Donangmaye Dep.) at 36-38, 43. Dia testified that the reason the Service was hiring

a GS-13 level broadcaster was because of the combined television hosting and internet duties.

See Pl.’s Ex. 6 (Dia Dep.) at 60-62. However, Donangmaye had been performing these duties as

a GS-12 level employee, and another employee who worked on the internet was employed at the

GS-9 level. See id. at 46; Pl.’s Ex. 46 (BBG/IBB Staffing Pattern). Ferdinand Ferella explained

that hosting duties are not dependent on grade level. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella)

at 106.

Dia selected a panel of three individuals to conduct the interviews of the candidates and

make a recommendation to him. Def.’s Stmt. ¶ 19. Dia was the selecting official, and he had

stated publicly that he would follow the recommendation of the panel in making his selection for

the position. Id. The three panelists were Andre de Nesnera (“de Nesnera”), Sandra Lemaire

(“Lemaire”), and Dianne Butts (“Butts”). Id. ¶ 20. All three were qualified to serve on the panel.

Id. De Nesnera is a white male of French national origin; Lemaire is a black female of Haitian

national origin; and Butts is an African-American female. Id. ¶¶ 21-23. The panelists received

the vacancy announcement and the candidates’ application packets from Dia. Id. ¶ 24. The

8 parties disagree about the extent to which Dia provided the panelists with additional information

about the candidates or the position. According to de Nesnera, Dia told the panel about the

responsibilities that would be associated with the job, but he did not provide any introductory

remarks for each candidate and he did not tell the panelists what he was looking for in the

candidates beyond the simple job description. See Pl.’s Ex. 9 (De Nesnera Aff.); Def.’s Ex. F

(De Nesnera Dep.) at 17-19. According to Lemaire, Dia gave only a brief description of the job

as it was explained in the vacancy announcement and basic introductory information about each

candidate, such as where the candidate was from. See Pl.’s Ex. 7 (Lemaire Dep.) at 26-32; Pl.’s

Ex. 8 (Lemaire Aff.) ¶ 4.

The panelists interviewed six candidates for the position on March 7, 2007. Def.’s Stmt.

¶ 25. The candidates to be interviewed included Grosdidier, Donangmaye, and four candidates

from outside the VOA. The panel unanimously recommended that Donangmaye be selected for

the position. Id. Donangmaye is a black male of Chadian national origin. Id. The panel drafted

a memorandum explaining their choice of Donangmaye based on his qualifications. See Def.’s

Ex. M. The memorandum explained that the panel was impressed by Donangmaye’s experience

in “all three facets of the multi-media structure,” i.e., radio, television, and internet. See id. The

memorandum further stated that the panel was impressed by Donangmaye’s leadership qualities

and felt that Donangmaye understood the challenges facing the French to Africa Service. Id.

The memorandum did not compare Donangmaye to any of the other candidates. See id. The

record suggests that sometime after the panel drafted this memorandum, Dia informed them that

they needed to include a score for each candidate along with the panel’s recommendation. See

Pl.’s Ex. 10 at 4-5. Dia told them to rate the applicants on a scale of 1 to 100. See id. at 6. The

9 panelists did not have a scoring sheet or a list of factors with which to assign a score; rather, the

panel assigned scores based on the panelists’ recollection of the candidates’ qualifications and

performances during their interviews. See Pl.’s Ex. 7 (Lemaire Dep.) at 53-55; Pl.’s Ex. 12 (De

Nesnera Dep.) at 24-25. The panel assigned a score of 90 points for Donangmaye, 80 points for

Grosdidier, and 85 points for the panel’s second-choice candidate, Rachid Jaafar (“Jaafar”); the

other candidates were scored lower than Grosdidier. See Def.’s Ex. M; Pl.’s Ex. 12 (De Nesnera

Dep.) at 26.

Lemaire testified that she perceived from Grosdidier’s interview that there were people in

the agency she did not get along with, suggesting she might conflict with management. See Pl.’s

Ex. 7 (Lemaire Dep.) at 59-61. She testified that she thought Rachid Jaafar was a better

candidate because he did not have these problems, explaining, “The difference between Ra[c]hid

[Jaafar] and Camille [Grosdidier] was that Ra[c]hid had been an insider–was now on the outside

and was coming back more neutral, so he really had no axe to grind with anyone.” Id. at 59.

Lemaire got the impression that Grosdidier “wasn’t a total cheerleader for the agency and for

management.” Id. at 61. Grosdidier contends that she did not say anything during her interview

that would suggest she had any problems with management, but the only record evidence in

support of this contention is the fact that Butts’s notes from the interview do not indicate any

such statements. See Pl.’s Resp. Stmt. ¶ 72(d).2 Grosdidier testified that the interview was

“disorganized,” and she felt that some of the questioning was aggressive. Pl.’s Ex. 14

2 Grosdidier also cites her own deposition testimony in which she described what she said during the interview, but she does not explicitly claim that she did not say anything that the panelists could have construed as critical of management. See Pl.’s Stmt. ¶ 72(e); Pl.’s Ex. 14 (Grosdidier Dep.) at 76-78.

10 (Grosdidier Dep.) at 74-75. According to Grosdidier, de Nesnera asked her, “Tell us why we

shouldn’t go with an outsider? Tell us why you would be better.” Id. at 74. Grosdidier claims

that she answered, “If you do find an outsider who’s best qualified, why not?” Id. Butts testified

that she did not recall Grosdidier being asked this question, but instead she recalled Grosdidier

volunteering something like, “fresh blood for this job might be good rather than me.” See Pl.’s

Ex. 11 (Butts Dep.) at 60-61. Butts thought Grosdidier’s response was odd and suggested she

did not really want the job. Id. at 61. De Nesnera perceived Grosdidier’s comments as

suggesting that she was less qualified to lead her coworkers. See Pl.’s Ex. 12 (De Nesnera Dep.)

at 29. Butts also testified that none of the candidates were asked whether an insider or outsider

would be better, but her notes from the interview with Donangmaye include the phrase “Insider

better why?” with a summary of Donangmaye’s explanation as to why he thought an insider was

better. See Pl.’s Ex. 11 (Butts Dep.) at 59-60; Pl.’s Ex. 16 (Butts interview notes). Grosdidier

also contends that de Nesnera asked her in a forceful voice about her leadership experience,

claiming that the GS-13 position was supervisory, despite the fact that there was nothing about

supervisory responsibilities in the job description. See Pl.’s Ex. 14 (Grosdidier Dep.) at 71-72.

There is some conflicting evidence in the record about what factors were most important

to the panelists in choosing Donangmaye as their top candidate. Lemaire testified that

supervisory experience was an important factor, and this is also reflected in Butts’s notes. See

Pl.’s Ex. 8 (Lemaire Aff.) ¶¶ 22-23; Pl.’s Ex. 16 (Butts interview notes) at 1. However, de

Nesnera testified that supervisory experience was not a factor that was seriously considered or

discussed. See Pl.’s Ex. 12 (De Nesnera Dep.) at 42-43. Both Lemaire and de Nesnera testified

that internet skills were a deciding factor that set Donangmaye apart from Grosdidier. See id. at

11 20-21; Pl.’s Ex. 7 (Lemaire Dep.) at 72-73 (“With regards to being the best person for the job, we

thought Timothee, because he had worked on the French to Africa website. But knowledge of

the internet, I think, from what I recall, Ra[c]hid and Timothee were comparable and Camille,

les[s].”). However, Butts did not recall internet experience being a main factor in the decision.

See Pl.’s Ex. 11 (Butts Dep.) at 71. Defendant states in answers to interrogatories that Lemaire

and de Nesnera also took some notes during the interviews but discarded them afterwards. See

Pl.’s Ex. 13 (BBG Discovery Responses) at 7. However, Lemaire claims in an affidavit that she

did not take any notes. See Def.’s Ex. EE (Lemaire Aff.) at 44.

Grosdidier claims that Dia selected panelists who would accede to his preference for

Donangmaye and disfavor Grosdidier in the selection process. De Nesnera was a regular guest

on the Washington Forum television program that Donangmaye hosted, and he testified at

deposition that “you can’t find a better person” than Donangmaye to be the host of that program.

See Pl.’s Ex. 12 (De Nesnera Dep.) at 8. Butts was the executive producer of the Washington

Forum program, and she had selected Donangmaye for the hosting job after an audition. See

Pl.’s Ex. 11 (Butts Dep.) at 6. Dia had also consulted with Butts, another Service Chief, about

one of Grosdidier’s altercations with another female employee who also worked with Butts. Id.

at 12-13. Butts testified that Dia had talked to her generally about Grosdidier’s complaints, and

Butts believed that Grosdidier was not happy in the Service. Id. at 14-15. However, Butts

testified that she did not talk to Dia about the selection process for the vacant position. Id. at 13.

Lemaire indicated in her deposition that Dia selected her because of her experience in

broadcasting, the internet, the French language, and African affairs. See Pl.’s Ex. 7 (Lemaire

Dep.) at 25. Lemaire was friendly with Dia, but she was not his first choice for the panel. See id.

12 at 13; Pl.’s Ex. 6 (Dia Dep.) at 58-59. Lemaire testified that she was aware that there was “in-

fighting” within that branch of the VOA, which she felt was common knowledge to those in the

agency. Pl.’s Ex. 7 (Lemaire Dep.) at 59. De Nesnera testified, however, that he was not aware

of any friction in the office. See Pl.’s Ex. 12 (De Nesnera Dep.) at 29-30.

Grosdidier also claims that Dia did not provide the panelists sufficient time to review the

candidates’ written qualifications because Grosdidier’s written qualifications were superior.

There is conflicting evidence in the record regarding the extent to which the panelists relied on

the candidates’ written qualifications. According to Lemaire, the panelists were provided a copy

of the written application materials shortly before each interview, and she did not believe that

they kept the materials for their deliberations after the interviews. See Pl.’s Ex. 7 (Dep. of

Sandra Lemaire) at 27, 32-33, 53. Butts and de Nesnera both testified that they had the

candidates’ written materials at the time of the deliberations. See Pl.’s Ex. 12 (Dep. of Andre de

Nesnera) at 17; Pl.’s Ex. 11 (Dep. of Diane Butts) at 36-37. Lemaire testified that the panel’s

assessment was based primarily on their overall assessment of the candidates and their

interviews. Id. at 53-54.

As part of her application, Grosdidier submitted a resume and a two-page statement

setting forth her KSAs. See Pl.’s Ex. 23 (Grosdidier application materials). Grosdidier’s resume

described her experience as a broadcaster with the French to Africa Service since 1987, which

included experience as substitute host of “Washington Forum.” See id. at 4. Grosdidier

explained that she had over twenty years of experience in the French to Africa Service and that

she had been responsible for producing a weekly fifteen-minute economic news magazine

program as well as a daily program covering events relating to the United States. See id. at 6.

13 Grosdidier also highlighted her international travel and cultural experiences. See id. at 6-7. With

respect to internet skills, Grosdidier stated in her KSAs statement that two of her colleagues had

been responsible for managing content on the internet but that she had familiarized herself with

the internet and was taking classes to become certified to assist with the internet duties. See id. at

7. Grosdidier also included a performance appraisal report in which Dia rated her achievement

as “highly successful.” See id. at 9-19. Grosdidier’s educational background includes a masters

degree in international affairs. See id. at 5.

Donangmaye’s application packet described his experience as a broadcaster in the French

to Africa Service since 1998 as well as his prior experience as a reporter for the Chadian

government’s news agency. See Pl.’s Ex. 38 (Donangmaye application materials) at 1-2.

Donangmaye also earned a masters degree in media analysis and management as a Fulbright

Scholar at Virginia Commonwealth University. See id. at 2. Donangmaye highlighted his

experience with internet technology in his application, noting that he was only one of two people

within the French to Africa Service who could edit the website. Id. In his statement setting forth

his KSAs, Donangmaye highlighted his writing and editing experience with the VOA and his

experience as the host of “Washington Forum.” See id. at 3. At the time of the interview and

selection, Donangmaye was not a U.S. citizen.

Rachid Jaafar was working as the Washington senior correspondent for the Al-Jazeera

broadcast network at the time he interviewed for the position of multi-media Senior Editor. See

Def.’s Ex. AA (Jaafar application materials). Jaafar also worked as a broadcast journalist and

news editor for VOA between 1984 and 2002, working primarily in the Arabic language. See id.

at 1-2. Jaafar is also fluent in French and his resume reflected experience translating between

14 French, English, and Arabic. See id. He earned a masters degree in international public policy in

2002. Id. at 1. In his KSA statement, he emphasized his experience as a reporter, his experience

establishing and maintaining work relationships, and his familiarity with African issues. See id.

at 3-4. Jaafar was a U.S. citizen at the time of the interview and selection. See Def.’s Stmt. ¶ 35.

Dia accepted the panel’s recommendation of Donangmaye. On March 8, 2006, the day

after the panel conducted its interviews and made its recommendation, Dia wrote to his

supervisor explaining why Donangmaye should be selected for the position over Jaafar and

Grosdidier, who were U.S. citizens. See Def.’s Ex. N (3/8/2006 Letter from Dia to Gwen

Dillard). Dia wrote that he agreed with the panel that Donangmaye was the most qualified

candidate for the job. See id. Dia praised Donangmaye’s command of the French language, his

experience as a newswire writer (which Dia believed made Dia particularly qualified to edit the

website), his knowledge of African issues, and his positive workplace relationships. See id. On

March 22, 2006, Dia wrote a memorandum to the Chief of the agency’s Operations Division

explaining why Donangmaye should be selected for the position over the other qualified U.S.

citizens. See Def.’s Ex. N (3/22/2006 Memorandum from Dia to LaPrell Murphy). He wrote

that Donangmaye had been selected for the GS-13 multi-media Senior Editor position and

praised his qualifications. See id. Dia distinguished the experience of Jaafar as more relevant to

the Arab world than to sub-Saharan Africa, which is targeted by the French to Africa Service.

See id. Dia stated that Grosdidier had a better knowledge of sub-Saharan Africa than Jaafar but

that it was not as extensive as Donangmaye’s. Id. Dia also noted that Grosdidier had not

completed the CommonSpot training for the website. Id. Dia also stated that based on his

knowledge of Grosdidier’s and Donangmaye’s respective strengths and weaknesses in the French

15 language and African issues, as well as their interactions with colleagues in the Service, he was

confident that Donangmaye was the best candidate for the position. Id.

E. Grosdidier’s EEO Complaint Regarding Her Nonselection

Grosdidier was notified of her nonselection for the promotion on April 3, 2006. See

Answer ¶ 5(a)(i). On July 5, 2006, she timely filed a formal complaint alleging that she was not

selected because of her sex, race, national origin, and her prior EEO activity. Compl. ¶ 5(a)(i)-

(ii). In proceedings before the Equal Employment Opportunity Commission (“EEOC”),

Grosdidier conducted discovery and took numerous depositions. Id. ¶ 5(a)(iii). She deposed Dia

on February 2, 2007. See Pl.’s Ex. 6 (Dia Dep.). The EEOC did not grant Grosdidier the relief

she requested.

F. Additional Acts of Alleged Discrimination

Grosdidier claims that after she complained about her nonselection, Dia failed to take

appropriate steps to ensure that Grosdidier’s position description was updated to reflect the duties

of “International Broadcaster” as opposed to “International Radio Broadcaster,” leaving her

position vulnerable in the face of a potential reduction in force action. See Compl. ¶ 27; Pl.’s Ex.

2 (Grosdidier Dep.) at 39-40. The record shows that Dia submitted updated position descriptions

to the agency’s Office of Human Resources for all of his employees in March or April 2007. See

Def.’s Ex. P (Aff. of Carroll Cobb) at 4. Grosdidier disputes this but cites no contrary evidence

in the record. See Pl.’s Resp. Stmt. ¶¶ 54-55.

According to Grosdidier, Dia removed her from participating as a contributor or host on

“Washington Forum” in the fall of 2006. See Pl.’s Ex. 58 (Grosdidier Aff.) at 6. Grosdidier also

claims that shortly after Dia was deposed as part of the EEOC litigation in February 2007, she

16 was again removed from editing duties on a rotational basis. See Pl.’s Opp’n at 41; Pl.’s Resp.

Stmt. ¶ 59.3 Grosdidier has produced records of weekly editing assignments from 2007 that

appear to indicate that Grosdidier was assigned editing responsibilities during one week in late

January/early February 2007 (two days), one week in late February (one day), one week in late

March (four days), one week in early May (five days), and no times throughout the rest of 2007.

See Pl.’s Ex. 28 (2007 assignment sheets).4 It appears that when Grosdidier was not assigned

editing duties, first-level editing was handled by either Henry Francisque, a GS-13 Senior Editor,

Jean Claude Andre, another GS-12 broadcaster, or Donangmaye, now promoted to the GS-13

Senior Editor position. See id. Dia testified that Grosdidier had never had regular editing duties

and that her assignments were always made on an ad hoc basis. See Pl.’s Ex. 6 (Dia Dep.) at 13-

20. Ferdinand Ferella testified at his deposition in March 2009 that the primary editing

assignments had not changed since 2004 when Grosdidier was initially assigned to be a part of

the editing team. See Pl.’s Ex. 24 (Dep. of Ferdinand Ferella) at 58-60, 147.

Grosdidier also claims that Dia stopped speaking to her after she filed her complaint

regarding her nonselection for the position. However, the only evidence she cites in support of

this claim is an affidavit from one of her coworkers, Samuel Kiendrebeogo, who stated that Dia

once asked him to relay a message to her regarding a trip she was scheduled to take to Mexico.

3 The Court notes that Grosdidier’s testimony about her reduction in editing responsibilities has been inconsistent. For example, in one of her affidavits, she claims that was removed from editing on a regular basis in June 2007. See Pl.’s Ex. 58 at 7. In her opposition brief, she claims it started in February 2007. See Pl.’s Opp’n at 41. 4 Although Grosdidier does not explain these records directly, they were discussed and explained by Ferdinand Ferella in his deposition. See Pl.’s Ex. 24 at 40-46.

17 See Pl.’s Ex. 33 (Aff. of Samuel Kiendrebeogo) at 5.5 Kiendrebeogo also states that Grosdidier

told him that she was tired of having intermediaries relay messages from Dia, but this statement

is hearsay and may not be considered by the Court as part of the record at summary judgment.

Gleklen v. Democratic Cong. Campaign Comm., Inc.,

(D.C. Cir. 2000).

On April 1, 2008, Grosdidier received a letter of admonition from Dia for turning off

shared office printer that was being used by another employee. Def.’s Ex. Q (4/1/2008 Letter

from Dia to Grosdidier). The letter stated that Grosdidier’s conduct was disruptive to the

efficiency of the office and inconsiderate to coworkers. See

G. Grosdidier’s Second EEO Complaint

Grosdidier contacted an EEO counselor on November 20, 2007 to complain about further

discrimination. Def.’s Stmt. ¶ 3. On December 27, 2007, Grosdidier filed a formal complaint of

discrimination with the BBG. See Def.’s Ex. W (Formal Complaint of Discrimination). In her

formal complaint, Grosdidier claimed that she had been discriminated against on the basis of her

sex, national origin, and engaging in prior EEO activity in 2000, 2001, and 2006. See

She

claimed that the dates of the alleged discriminatory acts were November 20, 2007 and from

January 2007 to the present (i.e., December 27, 2007).

Grosdidier complained about the fact

that her position description had not been updated, reduced professional responsibilities, and her

5 The Court notes that Grosdidier may have provided evidence to support this claim in her affidavits during the EEOC litigation, many of which she has attached to her opposition brief. However, she has not cited this evidence in either her opposition brief or her statement of material facts, and therefore the Court need not consider it. See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials . . . .”); LCvR 7(h)(1) (“An opposition to . . . a motion [for summary judgment] shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied upon to support the statement.”) (emphasis added).

18 supervisor’s refusal to directly interact with her.

On January 9, 2008, the agency sent

Grosdidier a letter indicating that the following claims had been accepted for processing:

Whether you were subjected to a hostile work environment and discriminated against due to your Sex (female), National Origin (French) and Reprisal (engaging in prior protected EEO activity) when the following acts occurred:

1. On or about November 20, 2007, your supervisor refused to update your position description while updating those of your colleagues.

2. Your supervisor has reduced your professional responsibilities by decreasing your editing assignments, television air time, supervisory duties and rotational assignments; and

3. Since February 2007, your supervisor has refused to interact directly with you; instead he uses your colleagues or email to communicate with you.

Def.’s Ex. R at 1. On April 2, 2008, Grosdidier’s attorney contacted the agency to amend her

complaint to add a claim for:

an ongoing pattern of behavior, aimed at Ms. Grosdidier because of her gender, age, national origin, and protected EEO activity and including, in addition to the allegations already included in the complaint, her Branch Chief’s (unjustifiable and disparate) direct and indirect criticisms of work performance, and his formal and informal disciplinary actions against her including, most recently, the issuance of a letter of admonition on April 1, 2008.

See Pl.’s Ex. 1 (4/2/08 Letter from Leslie D. Alderman III to Delia Johnson, Int’l Broadcasting

Bureau). The agency responded on May 12, 2008, indicating that Grosdidier’s complaint had

been amended to include her allegation that her sex, age, national origin, and prior EEO activity

were factors in her receiving a letter of admonition on April 1, 2008. See Pl.’s Ex. 1 (5/12/08

Letter from Delia Johnson to Leslie D. Alderman III).

19 II. LEGAL STANDARD

Defendant has filed a motion for judgment on the pleadings or alternatively, a motion for

summary judgment. Pursuant to Federal Rule of Civil Procedure 12(d), if “matters outside the

pleadings are presented to and not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56.” Because the parties have engaged in discovery and

presented evidence outside the pleadings for the Court’s consideration, the Court shall treat

Defendant’s motion solely as a motion for summary judgment.

“The court shall 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).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials); or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to

properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .

consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When

considering a motion for summary judgment, the court may not make credibility determinations

or weigh the evidence; the evidence must be analyzed in the light most favorable to the

nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby,

Inc.,

(1986). “If material facts are at issue, or, though undisputed, are

20 susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,

(D.C. Cir. 2009) (citation omitted).

The mere existence of a factual dispute, by itself, is insufficient to bar summary

judgment. See Liberty Lobby, Inc.,

. “Only disputes over facts that might affect

the outcome of the suit under the governing law will properly preclude the entry of summary

judgment.”

For a dispute about a material fact to be “genuine,” there must be sufficient

admissible evidence that a reasonable trier of fact could find for the nonmoving party.

The

Court must determine “whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

. “If the evidence is merely colorable, or is not sufficiently probative, summary

judgment may be granted.”

(internal citations omitted). The adverse party must

“do more than simply show that there is some metaphysical doubt as to the material facts.”

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

(1986). Conclusory

assertions offered without any factual basis in the record cannot create a genuine dispute. See

Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp.,

(D.C. Cir. 2009).

III. DISCUSSION

In her Complaint, Grosdidier asserts causes of action for discrimination based on her race,

national origin, sex, age, and prior EEO activity. Grosidier’s specific claims are based on: (1) her

nonselection for the GS-13 International Broadcaster position in March 2006; (2) the reduction in

her editing duties and other responsibilities, including removal as substitute host of “Washington

Forum”; (3) the failure to update her job description to reflect the duties of International

Broadcaster; (4) her supervisor’s cessation of direct interaction with her; (5) the letter of

21 admonition issued to her in April 2008; and (6) the vocal and demeaning criticism Grosdidier

received of her work performance and interaction with coworkers. Based on these actions,

Grosdidier asserts claims for discrimination, retaliation, and hostile work environment.

In its motion for summary judgment, Defendant contends that Grosdidier has failed to

exhaust many of her claims, that she has not suffered any adverse employment action, and that

she has not produced evidence sufficient for a reasonable jury to conclude that she was the victim

of discrimination, retaliation, or a hostile work environment. Grosdidier concedes that she did

not exhaust her age discrimination claims and has withdrawn any claims for violations of the

ADEA. See Pl.’s Resp. Stmt. ¶ 12; Pl.’s Opp’n at 1. Accordingly, the Court shall grant

Defendant’s motion for summary judgment with respect to Grosdidier’s ADEA claims.

Grosdidier disputes Defendant’s other contentions and has filed a motion for an adverse

inference based on the destruction of certain evidence relating to her interview for the GS-13

International Broadcaster position. The Court shall address the parties’ arguments below.

A. Exhaustion of Administrative Remedies

Before filing suit under Title VII, federal employees must timely exhaust their

administrative remedies. See 42 U.S.C. § 2000e-16(c); Harris v. Gonzales,

(D.C. Cir. 2007). Under the broad authority conferred by Congress, the EEOC “has established

detailed procedures for the administrative resolution of discrimination complaints, including a

series of time limits for seeking informal adjustment of complaints, filing formal charges, and

appealing agency decisions to the Commission.” Bowden v. United States,

(D.C. Cir. 1997). The administrative time limits created by the EEOC function like statutes of

limitations with which complainants must comply.

Of particular significance in this case is

22 the requirement that “[a]n aggrieved person . . . initiate contact with a[n EEO] Counselor within

45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,

within 45 days of the effective date of the action.”

(a)(1);

.

“[A] court may not consider a discrimination claim that has not been exhausted in this manner

absent a basis for equitable tolling.” Steele v. Schafer,

(D.C. Cir. 2008). Any

civil action that follows a charge of discrimination “is limited in scope to claims that are ‘like or

reasonably related to the allegations of the charge and growing out of such allegations.’” Park v.

Howard Univ.,

(D.C. Cir. 1995) (quoting Cheek v. W. & S. Life Ins. Co.,

(7th Cir. 1994)); see also Na’im v. Rice,

(D.D.C.

2008). “At a minimum, the Title VII claims must arise from the administrative investigation that

can reasonably be expected to follow the charge of discrimination.” Park,

.

Defendant bears the burden of proving by a preponderance of the evidence that the plaintiff failed

to exhaust administrative remedies. Nai’m v. Rice,

(citing Brown v.

Marsh,

(D.C. Cir. 1985)).

1. Claims of Discrimination Based on Race

In her Complaint, Grosdidier asserts causes of action for discrimination based on race

with respect to each alleged adverse employment action. See Compl. ¶ 32. However, she did not

list race as a basis for her claims on her December 2007 EEO complaint, on which she relies for

all of her claims save her nonselection claim. Grosdidier does not dispute this, and she does not

argue in her opposition brief that her claim of race discrimination was “like or reasonably

related” to her claims of sex, national origin, or reprisal discrimination. See Pl.’s Resp. Stmt. ¶

11; Pl.’s Opp’n at 34-35. Accordingly, the Court shall grant Defendant’s motion for summary

23 judgment with respect to Grosdidier’s claims for discrimination based on race relating to actions

other than her nonselection for a GS-13 International Broadcaster position.

2. Claim Based on Reduction of Duties

Grosdidier asserts causes of action for discrimination and retaliation based on the alleged

reduction in her editing responsibilities and other work duties. Grosdidier contacted an EEO

counselor about her reduction in duties in November 2007, but Defendant contends that this was

untimely because it was not within 45 days of the alleged reduction in duties. The record clearly

shows that many of Grosdidier’s complaints about reduced responsibilities pertain to events that

occurred more than 45 before she contacted an EEO counselor in November 2007. See, e.g.,

Pl.’s Resp. Stmt. ¶ 9 (“Plaintiff’s editing duties were reduced dramatically in the latter part of

2005.”); Pl.’s Opp’n at 41 (“[Dia] removed Ms. Grosdidier from participating as a contributor or

host on Washington Forum in the fall of 2006.”). Therefore, her complaint in November 2007

was untimely with respect to these actions. Grosdidier does not identify in her opposition brief

any specific reduction in duties that occurred during the 45-day time period preceding her EEO

counseling. However, she does claim that her editing responsibilities were reduced from

February 2007 onward, and therefore she has claimed that her editing duties were reduced during

and after the 45-day period preceding her EEO counseling, which began on October 5, 2007.

The record indicates that assignments were made on a weekly basis. To the extent that

Grosdidier purports to assert claims based on weekly assignments after October 5, 2007, they

have been timely exhausted. See Ledbetter v. Goodyear Tire & Rubber Co.,

(2007) (“[I]f an employer engages in a series of acts each of which is intentionally

discriminatory, then a fresh violation takes place when each act is committed.”). However, the

24 Court shall grant Defendant’s motion for summary judgment with respect to Grosdidier’s claims

for discrimination and retaliation based on any reduction in her workplace responsibilities that

occurred more than 45 days before she initiated EEO counseling.

3. Claim Based on Cessation of Direct Interaction with Her Supervisor

Grosdidier also asserts causes of action for discrimination and retaliation based on her

supervisor’s alleged cessation of direct interaction with her. Grosdidier complained about this

conduct to an EEO counselor in November 2007, and the only evidence in the record relating to

this claim is a single incident in which Dia asked one of Grosdidier’s coworker’s to pass along a

message to her. The record does not clearly indicate when this occurred, and therefore Defendant

has failed to establish that Grosdidier did not timely exhaust this claim.

4. Claim Based on Hostile Work Environment

In her Complaint, Grosdidier asserts a claim for hostile work environment based on her

employer’s ongoing conduct. Grosdidier exhausted a hostile work environment claim, as

demonstrated by the fact that the agency investigated whether she was subjected to a hostile work

environment when her supervisor failed to update her position description, reduced her

professional responsibilities, refused to interact directly with her, and issued her a letter of

admonition. Even though Grosdidier did not explicitly allege a hostile work environment in her

formal complaint, “[a] plaintiff may adequately exhaust administrative remedies without

specifically alleging a hostile work environment claim in her formal EEO complaint so long as

the hostile work environment claim is ‘like or reasonably related to the allegations . . . [in the

formal EEO complaint] and grows out of such allegations.’” Na’im v. Rice,

(D.D.C. 2008) (quoting Robertson v. Snow,

(D.D.C. 2005)).

25 Therefore, to the extent that Grosdidier’s complaint is based on the allegations in her formal

complaint, she has exhausted her claim.

However, Defendant contends that Grosdidier is trying to expand her hostile work

environment claim to include actions such as an alleged “sexually charged atmosphere” in 2005

and other events that were not described in Grosdidier’s December 2007 complaint. Grosdidier

argues that the Court should consider acts dating back to 2005, relying heavily on National

Railroad Passenger Corp. v. Morgan,

(2002), in which the Supreme Court held

that “[p]rovided that an act contributing to the claim occurs within the filing period, the entire

time period of the hostile work environment may be considered by a court for the purposes of

determining liability.”

. However, the Morgan Court was focused only on Title

VII’s statute of limitations. Id.; see 42 U.S.C. § 2000e-5(e)(1) (requiring Title VII plaintiffs to

file a charge with the EEOC within either 180 or 300 days “after the alleged unlawful

employment practice occurred”). The Morgan Court did not explicitly address the parallel

requirement that a plaintiff administratively exhaust her claims by presenting them to the EEOC

or, in the case of a federal employee, the federal agency. “To satisfy the exhaustion requirement,

the allegations in an administrative complaint must be sufficiently specific in order to ‘give

federal agencies an opportunity to handle matters internally whenever possible.’” Hussain v.

Gutierrez,

(D.D.C. 2008) (quoting Brown v. Marsh,

(D.C.

Cir. 1985)), appeal dismissed,

(D.C. Cir. 2010). “At a minimum, the Title

VII claims must arise from the administrative investigation that can reasonably be expected to

follow the charge of discrimination.” Park,

.

26 Although Grosdidier did present a claim for hostile work environment to the agency, the

record shows that her claim was much more limited in scope than the claim she is asserting in

federal court. Grosdidier’s formal administrative complaint, as subsequently amended, described

only four sets of adverse actions: (1) failure to update Grosdidier’s position description; (2)

reduction in Grosdidier’s responsibilities; (3) cessation of direct interaction from Grosdidier’s

supervisor; and (4) a letter of admonition. Grosdidier’s formal complaint listed the dates of

discriminatory conduct as extending from January 2007 to the present, meaning that the agency

would not have had a basis to investigate Grosdidier’s claims about a “sexually charged

atmosphere” or other discrete acts that occurred before January 2007. While Morgan recognizes

that a hostile work environment constitutes a single adverse employment action that occurs over

a period of time, Grosdidier’s December 2007 complaint, as amended, was not sufficiently

specific to make the agency aware that she was claiming the existence of a hostile work

environment as far back as 2005. Indeed, if Grosdidier had believed that her work environment

was hostile in 2005, she presumably would have raised this issue in the formal complaint she

filed in July 2006. Therefore, the Court finds that Grosdidier has failed to exhaust her hostile

work environment claim to the extent that it relies on allegations that are not “like or reasonably

related to” those she raised in her formal complaint with the agency. Accordingly, the Court

shall not consider unrelated allegations in determining whether Grosdidier has established a

hostile work environment claim.

B. Grosdidier’s Nonselection Claim

Grosdidier contends that her nonselection for the GS-13 International Broadcaster

position was the result of discrimination based on her race, national origin, and sex and

27 retaliation for her engaging in prior EEO activity. Defendant denies these allegations, arguing

that Grosdidier was not selected for the position because she was not the most qualified

candidate. Defendant argues that Grosdidier has failed to show that its legitimate explanation is

pretext for discrimination or retaliation and that Grosdidier has failed to produce evidence

sufficient for a jury to conclude that there was a causal connection between her nonselection and

her sex, race, national origin, or protected EEO activity. Defendant also contends that

Grosdidier’s complaints about her work environment in 2005 do not constitute protected activity

and therefore cannot provide the basis for a retaliation claim under Title VII. The Court shall

review the parties’ contentions below.

1. Discrimination and Retaliation Claims Under Title VII

Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, condition, or privileges of employment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII also contains an antiretaliation

provision that makes it unlawful for an employer to “discriminate against any of his employees or

applicants for employment . . . because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Id.

§ 2000e-3(a). In the absence of direct evidence of discrimination or retaliation, Title VII claims

are assessed pursuant to a burden-shifting framework initially set out by the Supreme Court in

McDonnell Douglas Corp. v. Green,

(1973). Pursuant to that framework,

the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie

28 case of discrimination or retaliation. Tex. Dep’t of Cmty. Affairs v. Burdine,

, 252-

53 (1981). Then, “the burden shifts to the defendant ‘to articulate some legitimate,

nondiscriminatory reason for the [adverse employment action].’”

at 253 (quoting McDonnell

Douglas,

). However, the D.C. Circuit has stressed that once an employer has

proffered a nondiscriminatory reason, the McDonnell Douglas burden-shifting framework

disappears, and the court must simply determine whether the plaintiff has put forward enough

evidence to defeat the proffer and support a finding of retaliation. Woodruff v. Peters,

(D.C. Cir. 2007); see also Brady v. Office of the Sergeant at Arms,

(D.C. Cir. 2008) (“[W]here an employee has suffered an adverse employment action and an

employer has asserted a legitimate, non-discriminatory reason for the decision, the district court

need not—and should not—decide whether the plaintiff actually made out a prima facie case

under McDonnell Douglas.”). In reviewing a motion for summary judgment, the court “looks to

whether a reasonable jury could infer . . . retaliation from all the evidence, which includes not

only the prima facie case but also the evidence the plaintiff offers to attack the employer’s

proffered explanation for its action and other evidence of retaliation.” Jones v. Bernanke, 557

F.3d at 677 (internal quotation marks omitted); accord Aka v. Washington Hosp. Ctr.,

(D.C. Cir. 1998) (en banc) (“[T]he focus of proceedings at trial (and summary

judgment) will be on whether the jury could infer discrimination from the combination of (1) the

plaintiff’s prima facie case; (2) any evidence the plaintiff presents to attack the employer’s

proffered explanation for its actions; and (3) any further evidence of discrimination that may be

available to the plaintiff (such as independent evidence of discriminatory statements or attitudes

on the part of the employer) or any contrary evidence that may be available to the employer (such

29 as evidence of a strong track record in equal opportunity employment).”). A plaintiff who creates

a genuine issue of material fact as to whether the employer has given the real reason for its

employment decision will not always be deemed to have presented enough evidence to survive

summary judgment. Aka,

. However, evidence of pretext usually will be

enough to get a plaintiff’s claim to a jury. Pardo-Kronemann v. Donovan,

(D.C. Cir. 2010) (citing Jones v. Bernanke,

(D.C. Cir. 2009)).

In a case involving nonselection for a promotion, a Title VII plaintiff may meet her

burden “by persuading the court that a discriminatory reason more likely motivated the employer

or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”

Burdine,

. “When an employer says it made a hiring decision based on the

relative qualification of the candidates, ‘we must assume that a reasonable juror who might

disagree with the employer’s decision, but would find the question close, would not usually infer

discrimination on the basis of a comparison of qualifications alone.’” Jackson v. Gonzales,

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

). “In order to justify an inference

of discrimination, the qualifications gap must be great enough to be inherently indicative of

discrimination.” Holcomb v. Powell,

(D.C. Cir. 2006); see Aka,

(holding that factfinder may infer discrimination where a reasonable employer would have

found the plaintiff to be “significantly better qualified for the job”). A plaintiff attacking a

qualifications-based explanation may also “seek to expose other flaws in the employer’s

explanation” by, for example, demonstrating that the employer’s explanation was fabricated after

the decision was made or that the employer’s explanation actually misstates the candidates’

qualifications. Aka,

.

30 2. Evidence Supporting Grosdidier’s Claims

In her opposition brief, Grosdidier identifies a number of discrete categories of evidence

supporting her claim that her nonselection for the GS-13 International Broadcaster position was

discriminatory and/or retaliatory. Grosdidier’s evidence generally supports her theory that the

selecting official, Idrissa Dia, preselected Timothee Donangmaye for the position and structured

the promotion process in a way that ensured that Donangmaye would be selected over

Grosdidier. Such preselection does not violate Title VII if is based on the qualifications of the

candidate and not discrimination against a protected classification. Nyunt v. Tomlinson,

(D.D.C. 2008), aff’d sub nom. Nyunt v. Chairman, Broadcasting Bd. of

Governors,

(D.C. Cir. 2009). However, Grosdidier contends that the evidence

shows that the selection process was poisoned by discriminatory and/or retaliatory animus. The

Court shall review each of Grosdidier’s contentions below.

a. Evidence that Dia Bore Discriminatory and Retaliatory Animus Toward Grosdidier

Grosdidier claims that Dia bore discriminatory and retaliatory animus against her based

on her complaints about what she perceived to be a sexually charged workplace environment.

There is evidence in the record that Dia was upset at Grosdidier for making complaints about his

use of term “Sexy Mama” with a female employee, and this evidence could support a finding that

Dia harbored some retaliatory animus against her. However, the evidence in the record cited by

Grosdidier would not support a finding that Dia bore any discriminatory animus based on

Grosdidier’s sex, race, or national origin. Although Grosdidier had complained about what she

perceived to be sexually suggestive language or conduct in the workplace, none of the comments

31 or conduct were directed at Grosdidier or clearly sexist. Cf. Oncale v. Sundowner Offshore

Servs., Inc.,

(1998) (“We have never held that workplace harassment, even

harassment between men and women, is automatically discrimination because of sex merely

because the words used have sexual content or connotations.”). Furthermore, Grosdidier has

presented absolutely no evidence of bias based on race or national origin in her workplace.

Therefore, the record at most supports a finding that Dia bore retaliatory animus against

Grosdidier based on her complaints about a sexually charged workplace.

b. Evidence that Dia Manipulated Grosdidier’s Duties to Disadvantage Her in the Selection Process

Grosdidier contends that after Dia learned that he would permitted to fill the GS-13

position, he took deliberate steps to disadvantage Grosdidier and advantage Donangmaye for the

position. Specifically, Grosdidier claims that Dia removed her from regular editing duties shortly

after he learned that he would be filling the GS-13 Senior Editor position. Although Defendant

argues that editing assignments were made on an as-needed basis, there is evidentiary support for

Grosdidier’s claim, since it appears that she stopped receiving editing assignments from Dia in

June 2005 and began receiving them in April 2006 after Dia had selected Donangmaye for the

position. However, there is no evidence that the panelists considered this as a factor in

determining that Donangmaye was more qualified than Grosdidier.

Grosdidier also contends that Dia disadvantaged her by precluding her from posting

content on the French to Africa Service’s website. However, there is no evidence in the record

that Dia precluded Grosdidier from working on the internet; Grosdidier admitted that she had

assumed she was not supposed to work on the internet based on Dia’s memo indicating that

32 Donangmaye would be responsible for internet content. Nonetheless, the record might support

an inference that Dia favored Donangmaye over Grosdidier with respect to the assignment of

internet duties, since Dia did not ask for Grosdidier to be assigned internet duties until February

2007.

c. Evidence that Dia Structured the Selection Process to Disadvantage Grosdidier

Grosdidier claims that Dia manipulated the vacancy announcement so that the position

would be specifically tailored to Donangmaye’s resume and disadvantage Grosdidier. The record

does indicate that Dia added the duties of webmaster and weekly television host to the position

description, duties that were already being performed by Donangmaye. There is also some

evidence in the record suggesting that these duties were not essential to the creation of a GS-13

position. This evidence might be construed as showing that Dia was trying to structure the

position in a way that would favor Donangmaye. Grosdidier also contends that Dia chose

interview panelists who were predisposed to rule in favor of Donangmaye and against

Grosdidier. Although there is no clear evidence of bias by the panelists, at least of two of the

panelists had worked with Donangmaye and may have been predisposed to select him based on

their positive experiences working with him, although they denied any preselection. In addition,

the record indicates that Dia had communicated with one of the panelists about one of

Grosdidier’s complaints about a sexually charged work environment, suggesting that Dia may

have influenced that panelist’s view of Grosdidier.

d. Evidence that the Panelists Mistreated Grosdidier During the Interview Process

Grosdidier contends that the record demonstrates that the panelists treated Grosdidier

33 differently than the other candidates and disregarded Grosdidier’s allegedly superior

qualifications. However, there is no evidence that the panelists treated Grosdidier differently

than the other candidates; Grosdidier’s claim of unfair treatment is unsupported speculation

based on what she perceived to be aggressive questioning from the panel. Grosdidier also claims

that the panelists disregarded her superior qualifications as an editor, a critical skill for the Senior

Editor position. However, the record does not establish that Grosdidier had significantly better

qualifications as an editor than Donangmaye. Both Grosdidier and Donangmaye had many years

of experience editing and had been assigned editing duties by Dia on a rotational basis; the fact

that Grosdidier had more years of experience in total and provided more detailed written

application materials does not mean that she was more qualified for the position. Furthermore,

the record shows that Grosdidier was less qualified than Donangmaye regarding internet skills

because he was already trained to edit the VOA website and had been editing content on the

webiste for nearly a year prior to the interview. Grosdidier complains about the fact that the

panel apparently focused more on her interview than her written qualifications, but that does not

suggest that the panel was biased against her. Grosdidier’s complaints about the manner in

which the panelists evaluated her qualifications do not give rise to any inference of

discrimination by the panel. “Title VII, it bears repeating, does not authorize a federal court to

become ‘a super-personnel department that reexamines an entity’s business decisions.’” Barbour

v. Browner,

(D.C. Cir. 1999) (quoting Dale v. Chi. Tribune Co.,

(7th Cir. 1986)); see also Fischbach v. D.C. Dep’t of Corr.,

(D.C.

Cir. 1996) (“Title VII liability cannot rest solely upon a judge’s determination that an employer

misjudged the relative qualifications of admittedly qualified candidates.”).

34 Grosdidier also contends that the panelists gave contradicting accounts of the selection

process and that this suggests they were covering up their bias against her. However, the

“contradictions” claimed by Grosdidier are exaggerated and largely based on the panelists’

inability to remember the details of their deliberations. The fact that the panelists disagree about

whether supervisory experience or familiarity with the internet were important factors in the

decision does not suggest a cover-up; it mostly suggests that each panelist had different concerns

about what factors were most important for the position. Grosdidier has not established that any

of these factors were improperly considered or that she was obviously the most qualified

candidate based on these factors.

Grosdidier argues that the numerical scores assigned by the panel were arbitrary and that

this supports a finding that the panel was biased against Grosdidier. The record does indicate

that the panelists initially selected Donangmaye as their top choice before being informed by Dia

of the need to assign scores to the candidates. Furthermore, the lack of a formal rating or

assessment process does suggest that the scores were somewhat arbitrary. However, this does

not call into question the validity of the panel’s judgment that Donangmaye was the most

qualified candidate, followed by Jaafar, followed by Grosdidier. Again, Grosdidier’s complaints

focus on the panel’s evaluation of her qualifications, which were not clearly superior to both

Donangmaye and Jaafar. The record shows that Jaafar had similar educational qualifications as

Grosdidier and over two decades of experience as a broadcast journalist, mostly with the VOA.

Grosdidier argues that Jaafar’s experience should be discounted because he worked in Arabic,

but the record shows that he was fluent in French and had experience translating French into

Arabic. The panel could have reasonably decided that he was more qualified than Grosdidier.

35 e. Evidence that the Panelists Believed Grosdidier Had an “Axe to Grind”

Grosdidier argues that the record shows that the panelists believed Grosdidier had an axe

to grind with the agency and this was the reason she was not selected for the promotion. Indeed,

there is evidence in the record suggesting that the panelists were concerned that Grosdidier’s

views might clash with agency management and that this was one factor that the panelists

weighed against Grosdidier’s candidacy. Although friction with management may be a

legitimate reason for choosing not to promote an employee, a reasonable jury might conclude,

drawing all inferences in favor of Grosdidier, that the panel’s concerns were motivated by

Grosdidier’s prior complaints a sexually charged work environment. Therefore, to the extent

Grosdidier’s complaints amounted to statutorily protected activity, a jury might conclude that

retaliation played a role in the panel’s decisions.

f. Evidence that the Panelists Destroyed Documents Relating to Selection; Motion for Adverse Presumption

Grosdidier contends that the record clearly shows that two of the panelists destroyed

documents relating to the selection process, and therefore the Court should presume that these

documents would have demonstrated that the panelists did not judge her on the merits but instead

discriminated and retaliated against her. Grosdidier has filed a [23] Motion for Adverse

Presumption in which she asks the Court to enter an adverse inference against Defendant, namely

that all of the evidence that was destroyed would be favorable to Grosdidier and unfavorable to

Defendant. “A sanction for failure to preserve evidence is appropriate only when a party has

consciously disregarded its obligation to do so.” Shepherd v. Am. Broad. Cos., Inc.,

(D.C. Cir. 1995). “In general, the destruction of notes or other documents

36 purportedly relevant to a case of discrimination has no effect except when the circumstances of

destruction provide a basis for attributing bad faith to the agency involved.” More v. Snow,

(D.D.C. 2007) (quotation marks and citations omitted).

Defendant does not dispute that Sandra Lemaire and Andre de Nesnera discarded their

notes regarding the selection process because they did not think they needed to keep them. See

Pl.’s Ex. 13 (BBG Discovery Responses) ¶ 12. But see Def.’s Ex. EE (Lemaire Aff.) at 44

(indicating that Lemaire did not take any notes). Grosdidier contends that this destruction

violated

, which provides in pertinent part that “[a]ny personnel or

employment record made or kept by an employer (including but not necessarily limited to . . .

records having to do with . . . promotion . . . ) shall be preserved by the employer for a period of

one year from the date of the making of the record or the personnel action involved, whichever

occurs later.” The EEOC has construed this regulation to apply to the preservation of interview

notes. See Clayton v. Potter, EEOC Appeal No. 0720070042,

(E.E.O.C. July

26, 2007). Grosdidier also argues that the destruction of interview notes violated internal agency

rules requiring that the entire case file, including documentation supporting the personnel action,

be transmitted to the VOA’s personnel department. See Pl.’s Mot. for Adverse Presumption, Ex.

2 (“Guidelines for Selection, Promotion, and Employment of Non-U.S. Citizens in the Presence

of Qualified U.S. Citizen Competitors.”) at 2. However, these guidelines do not explicitly state

that interview notes must be kept as part of the case file, and there is no evidence in the record

that either Lemaire or de Nesnera was aware of these guidelines. Therefore, although Lemaire

and de Nesnera may have been negligent if they discarded their interview notes, there is

insufficient evidence in the record to support a finding of bad faith. Accordingly, the Court shall

37 deny Grosdidier’s Motion for Adverse Presumption. However, as Grosdidier acknowledges in

her motion, see Pl.’s Mot. for Adverse Presumption at 12 n.6, the Court must evaluate the record

in the light most favorable to Grosdidier when considering Defendant’s motion for summary

judgment, and therefore she is already entitled to all reasonable inferences that can be drawn

from the record. Even where an adverse inference is not warranted due to a lack of bad faith, the

failure to follow a regulation requiring the preservation of evidence may be deemed by the finder

of fact to be probative of the true motivation behind the employment decision. See Johnson v.

Lehman,

(D.C. Cir. 1982) (“[A] failure on the part of the . . . employer to

follow its own regulations and procedures, alone, may not be sufficient to support a finding of . .

. discrimination[, but] the adherence to or departure from internal hiring procedures is a factor

that the trier of fact may deem probative and choose to consider in determining the true

motivation behind the hiring decision . . . .”); McIntyre v. Peters,

(D.D.C. 2006) (“[D]efendant’s failure to follow its own policy requiring the retention of

employment decision documents, when viewed in light of plaintiff’s other evidence of pretext,

raises a credibility question that is properly left to the jury.”) (citations omitted).

The inference that may be reasonably drawn from the destruction of interview notes in

this case is limited. The Court cannot presume that the notes destroyed would have contained

direct evidence of discrimination by the panelists against Grosdidier, for it is exceedingly

unlikely that the panelists would have written down any discriminatory thoughts for the record.

Cf. United Food & Commercial Workers Int’l Union v. NLRB,

,

, at

*2 (D.C. Cir. 1993) (table) (“It is the rare case where direct evidence of unlawful motivation,

such as the smoking gun documents, exists, and unlawful motivation is therefore usually inferred

38 from the employer’s conduct.”). However, it is reasonable to assume that the notes would

corroborate the other evidence in the record suggesting that the panelists relied on a variety of

factors and did not follow rigid criteria in rating the candidates. The Court may also presume

that the notes would corroborate the inconsistent testimony given by the panelists about what

factors were discussed or considered to be significant in choosing Donangmaye as the top

candidate. This evidence suggests that the panelists’ evaluation was somewhat subjective, which

the Court may consider in evaluating whether the selection was truly merit-based. See

Fischbach,

(noting that reliance on “highly subjective” criteria may support an

inference of discrimination). However, “[e]ven if a court suspects that a job applicant was

victimized by poor selection procedures it may not second-guess an employer’s personnel

decision absent demonstrably discriminatory motive.”

(internal quotation marks,

alterations, and citations omitted).

g. Evidence that Dia Misrepresented Grosdidier’s Qualifications to His Superiors and Did Not Comply with Policies Regarding the Promotion of Non-Citizens

Grosdidier claims that Dia misrepresented her qualifications to her supervisors in seeking

to justify the hiring of Donangmaye over herself and Jaafar. For example, she points to the fact

that Dia’s memorandum to his supervisor ignored Grosdidier’s superior editing qualifications.

As discussed above, however, Dia’s evaluation of Grosdidier’s qualifications is not inherently

suspect. Grosdidier also contends that Dia misrepresented to the Chief of the Operations

Division that she had not taken the CommonSpot training courses necessary to edit the website.

However, the record shows that Dia’s memorandum was written on March 22, 2006, one day

before Grosdidier completed her training; therefore, it was not a misrepresentation.

39 Grosdidier also argues that the agency violated its own policies regarding the hiring of

noncitizens by selecting Donangmaye for the position. Grosdidier’s argument is based on BBG

policy implementing

(1), which authorizes the agency to “employ . . . aliens

within the United States and abroad for service in the United States relating to . . . the production

of foreign language programs when suitably qualified United States citizens are not available

when job vacancies occur . . . .” As one other court in this district has held, “[n]othing in

supports the broad argument that the BBG lacks authority to promote non-citizens

to supervisory positions.” Nyunt v. Tomlinson,

n.3 (quotation marks

omitted). However, Section 822.1 of the agency’s personnel manual states that “[a] non-U.S.

citizen may be employed or promoted only if no equally or better qualified U.S. citizen is

available to perform the duties of the position.” See Pl.’s Ex. 49. Grosdidier argues that the

agency violated this provision because she was equally or better qualified for the job. However,

the agency made the determination that she was not equally qualified as Donangmaye, and, as

explained above, the Court cannot second-guess the agency’s employment decision where it is

objectively reasonable based on the record. Grosdidier also argues that the agency violated

Section 822.1(c), which provides that “non-U.S. citizens will not be employed in or promoted to

supervisory positions or positions which involve policy or program decision-making,” except

where agency officials determine that “the unavailability of an equally or better qualified U.S.

citizen to perform such supervisory or managerial functions is not only significantly

handicapping the ability of the Office, or Service to operate, but also is having an adverse impact

on Broadcasting’s mission.”

However, there is no evidence that the panelists were aware of

this policy, and even assuming the agency did violate it, the violation does not suggest that its

40 reasons for selecting Donangmaye over Grosdidier were a pretext for discrimination.

h. Summary of Grosdidier’s Evidence

Construing the evidence cited by Grosdidier in the light most favorable to her, a

reasonable jury might conclude that Dia structured the vacant position in a way that favored

Donangmaye over Grosdidier. However, no reasonable jury could conclude that Dia did so in

order to discriminate based on Grosdidier’s race, sex, or national origin. The only evidence of

discrimination based on race, sex, or national origin that Grosdidier has proffered is the fact that

Donangmaye is black, male, and of Chadian national origin, whereas Grosdidier is white, female,

and of French national origin. In a workplace as diverse as the VOA, no reasonable jury could

infer discrimination based on this fact alone.

The record demonstrates that the panel chosen by Dia recommended Donangmaye and

Jaafar over Grosdidier based on a comparison of the candidates’ qualifications and performance

during their interviews. Although Grosdidier claims that the panelists improperly destroyed their

notes from the interviews and treated Grosdidier unfairly during the interview process, her claims

are mostly speculative and unsupported by the record, and they do not credibly undermine

Defendant’s explanation that Donangmaye was chosen for merit-based reasons. Grosdidier has

not shown that she was significantly more qualified than Donangmaye such that a reasonable jury

could conclude that the panel’s decision was a pretext for discrimination. At most, the record

suggests that the panelists used subjective factors to select Donangmaye as their favored

candidate. However, this evidence is not very probative of the panel’s rationale. When

considered together with Grosdidier’s prima facie case—which is based only on the fact that

Donangmaye has a different race, sex, and national origin—Grosdidier does not have enough

41 evidence to enable a reasonable jury to conclude that she was discriminated against on the basis

of sex, race, or national origin. See Reeves v. Sanderson Plumbing Prods., Inc.,

(2000) (“Whether judgment as a matter of law is appropriate in any particular case will

depend on . . . the strength of the plaintiff’s prima facie case, the probative value of the proof of

the employer’s explanation is false, and any other evidence that supports the employer’s case and

that properly may be considered on a motion for judgment as a matter of law.”). Therefore, the

Court shall grant Defendant’s motion for summary judgment as to Grosdidier’s claims that the

agency discriminated against her based on her race, sex, or national origin by not selecting her for

a promotion.

However, there is some evidence in the record that the panelists deemed Grosdidier less

qualified in part because they thought she had an axe to grind with the agency, and the panelists

may have reached this conclusion based on their prior interactions with Dia. Therefore, in

context, a reasonable jury drawing all inferences in favor of Grosdidier might conclude that the

selection process was influenced by retaliatory animus. However, as explained below, retaliation

is only actionable under Title VII if the conduct giving rise to the retaliation—in this case,

Grosdidier’s complaints about a sexually charged work environment—qualifies as protected

activity under the statute. Therefore, the Court must determine whether Grosdidier’s complaints

about her workplace in 2004 and 2005 are protected activity.

3. Protected Activity Under Title VII’s Opposition Clause

Title VII’s antiretaliation provision protects two kinds of activity: (1) participation in

EEO proceedings, such as making a charge, testifying, assisting, or otherwise participating in an

EEO investigation, proceeding, or hearing; and (2) opposition to “any practice made an unlawful

42 employment practice” by Title VII. See 42 U.S.C. § 2000e-3(a). The D.C. Circuit has held that

“an employee seeking the protection of the opposition clause [must] demonstrate a good faith,

reasonable belief that the challenged practice violates Title VII.” George v. Leavitt,

(D.C. Cir. 2005) (quoting Parker v. Balt. & Ohio R.R. Co.,

(D.C.

Cir. 1981)).

The activities at issue in this case are the complaints Grosdidier made in 2004 and 2005

about sexually charged conduct in her workplace.6 Grosdidier’s complaints are only protected

against retaliation if Grosdidier had a good faith, reasonable belief that her workplace was so

sexually charged that it amounted to a hostile work environment. A hostile work environment is

actionable under Title VII “[w]hen the workplace is permeated with ‘discriminatory intimidation,

ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.’” Harris v. Forklift Systems,

(1993) (citations omitted) (quoting Meritor Savings Bank, FSB v. Vinson,

(1986)). In determining whether a work environment is hostile or abusive, courts examine all

the circumstances, including the frequency and severity of the discriminatory conduct, whether

the conduct is physically threatening or humiliating as opposed to merely offensive, and whether

there is unreasonable interference with an employee’s work performance. Id. at 23. In order to

be actionable under the statute, a work environment “must be both objectively and subjectively

offensive, one that a reasonable person would find hostile or abusive, and one that the victim in

fact did perceive to be so.” Faragher v. City of Boca Raton,

(1998). The

6 Although Grosdidier engaged in protected activity in 2002 and earlier, this occurred before Dia became her supervisor and is too remote in time for a reasonable jury to infer a causal connected to her nonselection for the GS-13 position in March 2006.

43 “standards for judging hostility are sufficiently demanding to ensure that Title VII does not

become a ‘general civility code.’”

(quoting Oncale,

).

Although it appears that Grosdidier had a good faith basis for opposing what she

perceived to be offensive conduct in the workplace, no reasonable employee could believe that

the conduct about which she complained amounted to a hostile work environment under Title

VII. The conduct about which Grosdidier complained consisted of: two emails sent by a

coworker that Grosdidier interpreted as sexually suggestive but which are also susceptible to

innocent interpretations; the use of the phrases “Sexy Papa” and “Sexy Mama” by Dia and a

female coworker; excessive hugging and kissing by other coworkers during greetings; the use of

the term “maitre” or “master” by a female employee to address Dia; and one instance involving a

male coworker’s inappropriate decision to wear shorts at the office. These incidents are neither

frequent enough nor severe enough to meet the standard for a hostile work environment under

Title VII, which “forbids only behavior so objectively offensive as to alter the ‘conditions’ of the

victim’s employment.” Oncale,

. The incidents about which Grosdidier

complained were not directed at her, nor were most of them objectively offensive. And there is

no evidence to suggest that these incidents had a material impact on Grosdidier’s job

performance. Accordingly, her complaints to Dia about them do not qualify as protected activity

for purposes of Title VII’s antiretaliation provision. Therefore, the Court shall grant Defendant’s

motion for summary judgment as to Grosdidier’s claim that the agency retaliated against her by

not selecting her for a promotion.

C. Grosdidier’s Hostile Work Environment Claim

In her Complaint, Grosdidier alleges that Defendant’s ongoing conduct against her

44 constituted a hostile work environment that is based on her age, race, sex, national origin, and her

prior exercise of protected activity. As the Court noted above, however, Grosdidier failed to

exhaust her claims based on age or race discrimination, and her hostile work environment claim

must be limited to allegations that are like or reasonably related to the four actions she described

in her administrative complaint: (1) the failure to update Grosdidier’s position description; (2)

the reduction in Grosdidier’s responsibilities; (3) the cessation of direct interaction from

Grosdidier’s supervisor; and (4) her letter of admonition.

There are two reasons why Grosdidier’s claim for hostile work environment fails. First,

there is not evidence for a reasonable jury to conclude that the alleged actions are connected to

either her sex, her national origin, or her prior protected EEO activity. “Courts in this

jurisdiction have routinely held that hostile behavior, no matter how unjustified or egregious,

cannot support a claim of hostile work environment unless there exists some linkage between the

hostile behavior and the plaintiff’s membership in a protected class.” Na’im v. Clinton,

(D.D.C. 2009); see

(citing cases). The only workplace conduct that could

possibly relate to Grosdidier’s sex are the actions about which she complained in 2004 and

2005—the alleged excessive hugging and kissing and inappropriate use of terms such as

“master” or “Sexy Papa.” As the Court explained above, however, this conduct was neither

objectively offensive nor directed at Grosdidier, and it is not severe or pervasive enough to

amount to a hostile work environment. Grosdidier also claims that Defendant created a hostile

atmosphere by telling her coworkers that she was the one who had complained about a sexually

charged atmosphere, resulting in retaliation from her coworkers. However, as the Court

explained above, Grosdidier’s complaints about the sexually charged atmosphere did not

45 constitute protected activity, and therefore any hostile work environment based on such

retaliation is not actionable under Title VII.

Grosdidier does cite to some evidence that could connect the allegedly hostile activity to

the filing of her July 2006 EEO Complaint. See Pl.’s Opp’n at 40 (citing Pl.’s Ex. 33 (Aff. of

Samuel Kiendrebeogo)). In an affidavit, Samuel Kiendrebeogo describes an environment in

which coworkers are afraid to interact with Grosdidier shortly after she filed her complaint. See

Pl.’s Ex. 33 (Aff. of Samuel Kiendrebeogo) at 3. Kiendrebeogo’s allegations are somewhat

vague, and the second page of his affidavit is missing from the record, but it appears that the

hostility he describes pertains to other co-workers’ treatment of Grosdidier following the filing of

her complaint. See

However, Grosdidier did not complain about alienation from her

coworkers in her administrative complaint, and this allegation is not “like or reasonably related”

to the incidents Grosdidier described in her administrative complaint. Therefore, Grosdidier did

not exhaust a hostile work environment claim based on this conduct.

The second reason that Grosdidier’s hostile work environment claim fails is that she has

not presented evidence sufficient for a reasonable jury to conclude that her workplace was

“permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or

pervasive to alter the conditions of [her] employment and create an abusive working

environment.’” Harris,

(1993) (quoting Meritor Savings Bank,

). However, the predicate acts on which her hostile work environment claim rests are not

severe or pervasive enough to suggest that Grosdidier suffered an abusive working environment.

Grosdidier alleges that at some point, Dia stopped interacting with her directly and

communicated to her exclusively through other staff members. See Compl. ¶ 28. Grosdidier has

46 not cited to any evidence in support of this allegation in her statement of material facts, but in

any event, this manner of communication does not qualify as the sort of extreme conduct that is

required to support a hostile work environment claim. See Faragher,

(“We have

made it clear that conduct must be extreme to amount to a change in the terms and conditions of

employment . . . .”). Similarly, the letter of admonition Grosdidier received in April 2008 for

turning off a shared printer does not constitute severe conduct that suggests an abusive work

environment; the language of the letter is not objectively offensive, and Grosdidier does not deny

that she turned off the printer. The claim that Defendant failed to update Grosdidier’s position

description also does not support her hostile work environment claim, as it is not the sort of

conduct that an employee would find objectively offensive. Moreover, Grosdidier’s claim

regarding her position description is not supported by the record. Grosdidier also complains

about things such as poor treatment during staff meetings, but her statement of material facts

does not cite to any record evidence supporting a claim of persistently poor treatment.

To the extent that Grosdidier relies on discrete adverse actions by her supervisor reducing

her work responsibilities, she misunderstands the nature of a hostile work environment claim.

“A hostile work environment under Title VII must be based on ‘one unlawful employment

practice’ of pervasive, insulting, discriminatory conduct that makes the plaintiff’s day-to-day

work environment severely ‘abusive.’” Rattigan v. Gonzales,

(D.D.C.

2007) (quoting Morgan,

). “Cobbling together a number of distinct, disparate

acts will not create a hostile work environment, because ‘[d]iscrete acts constituting

discrimination or retaliation claims . . . are different in kind from a hostile work environment

claim . . . .’” Franklin v. Potter,

(quoting Lester v. Natsios,

2d 11, 33 (D.D.C. 2003)). This concern is particularly acute where the plaintiff has failed to

exhaust administrative remedies with respect many of the discrimination claims that she seeks to

incorporate into a hostile work environment claim. Rattigan,

; accord

Patterson v. Johnson,

(D.D.C. 2005) (“[P]laintiff cannot cure his

failure to timely exhaust his complaints about [discriminatory] incidents by sweeping them under

the rubric of a hostile work environment claim.”), aff’d,

(D.C. Cir. 2007). In this

case, Grosdidier complains about her removal as a host of “Washington Forum” in the fall of

2006 and reductions in her editing responsibilities beginning in February 2007. These are

discrete acts that are distinct from a hostile work environment. See Morgan,

(“Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are

easy to identify. Each incident of discrimination and each retaliatory adverse employment

decision constitutes a separate actionable ‘unlawful employment practice.’”). Therefore, they do

not support Grosdidier’s hostile work environment claim.

Grosdidier also cites additional evidence in her opposition brief that is not contained in

her statement of material facts in support of her hostile work environment claim. See Pl.’s Opp’n

at 42-43.7 This evidence allegedly shows that Grosdidier’s supervisors collected examples of

mistakes that Grosdidier made on the job, denied her request in July 2006 to work the night shift

for two weeks, subjected her to a security investigation in May 2007, and screamed at her during

a meeting. However, these incidents are not frequent or severe enough to amount to a hostile

7 In addition to not being included in Grosdidier’s statement of material facts, much of the evidence cited by Grosdidier is not actually in the record. For example, Grosdidier cites to pages 70, 82, 128-29, and 116 of her deposition transcript (Pl.’s Ex. 2), but those pages are part of a confidential portion of the transcript that was not provided to the Court. See Pl.’s Opp’n at 42.

48 work environment. Furthermore, courts have generally rejected hostile work environment claims

that are based on work-related actions by supervisors. See, e.g., Nurriddin v. Bolden,

(D.D.C. 2009) (“[T]he removal of important assignments, lowered performance

evaluations, and close scrutiny of assignments by management [cannot] be characterized as

sufficiently intimidating or offensive in an ordinary workplace context.”); Bell v. Gonzales,

(D.D.C. 2005) (finding that actions such as exclusion from the informal chain

of command, close monitoring of work, missed opportunities for teaching, travel, and high-

profile assignments, and reassignment to another unit did not amount to a hostile work

environment because “they cannot fairly be labeled abusive or offensive”); see also Houston v.

SecTek, Inc.,

(D.D.C. 2010) (“Allegations of undesirable job

assignment or modified job functions and of [supervisor’s] unprofessional and offensive

treatment are not sufficient to establish that [plaintiff’s] work environment was permeated with

discriminatory intimidation, ridicule, and insult.”) (citation and quotation marks omitted), aff’d,

(D.C. Cir. Jan. 31, 2011).

Based on the frequency, severity, and pervasiveness of the conduct that Grosdidier has

established in the record, the Court finds that no reasonable jury could conclude that Grosdidier

suffered harassment that altered the conditions of her employment and created an abusive

working environment. Therefore, the Court shall grant Defendant’s motion for summary

judgment with respect to Grosdidier’s claim for hostile work environment.

D. Grosdidier’s Other Discrete Claims of Discrimination and Retaliation

In her Complaint, Grosdidier purports to assert causes of action for discrimination based

on race, sex, and national origin and retaliation with respect to various discrete actions: (1) the

49 reduction in her editing duties and other responsibilities, including removal as substitute host of

“Washington Forum”; (2) the failure to update her job description to reflect the duties of

International Broadcaster; (3) her supervisor’s cessation of direct interaction with her; and (4) the

letter of admonition issued to her in March 2008.8 As noted above, Grosdidier failed to exhaust

many of these claims. Defendant also argues in its motion for summary judgment that none of

these actions amount to adverse employment actions that are actionable under Title VII. See

Def.’s Mem. at 33-38. Grosdidier does not argue in her opposition brief that these actions can

provide the basis for a discrimination claim under Title VII, and therefore the Court shall treat

Defendant’s argument as conceded as to any claims for discrimination based on race, sex, or

national origin arising from these actions. See Hopkins v. Women’s Div., Gen. Bd. of Global

Ministries,

(D.D.C. 2003) (“It is well understood in this Circuit that when

a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised

by the defendant, a court may treat those arguments that the plaintiff failed to address as

conceded.”), aff’d,

(D.C. Cir. 2004). Grosdidier does not concede, however, that

these actions could not support discrete claims of retaliation under Title VII. Therefore, the

Court must determine whether Grosdidier has produced enough evidence for a jury to conclude

that these actions constituted retaliation actionable under Title VII.

Title VII retaliation claims are assessed pursuant to a burden-shifting framework initially

8 In her opposition brief, Grosdidier argues that additional actions taken by Defendant may amount to retaliation. See Pl.’s Opp’n at 44. However, “[i]t is well-established in this district that a plaintiff cannot amend h[er] Complaint in an opposition to a defendant’s motion for summary judgment.” Jo v. District of Columbia,

(D.D.C. 2008). In addition, Grosdidier did not exhaust any claims beyond the four identified above. Therefore, the Court shall not consider these additional actions as stand-alone retaliation claims.

50 set out by the Supreme Court in McDonnell Douglas Corp. v. Green,

(1973). As the D.C. Circuit has explained:

Under that framework, a plaintiff must first establish a prima facie case of retaliation by showing (1) that he engaged in statutorily protected activity; (2) that he suffered a materially adverse action by his employer; and (3) that a causal link connects the two. If the plaintiff establishes a prima facie case, the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for its actions. If the employer does so, the burden-shifting framework disappears, and a court reviewing summary judgment looks to whether a reasonable jury could infer retaliation from all of the evidence, which includes not only the prima facie case but also the evidence the plaintiff offers to attack the employer’s proffered explanation for its action and other evidence of retaliation.

Jones v. Bernanke,

(D.C. Cir. 2009) (citations and quotations omitted). To

establish that an action is materially adverse, a “plaintiff must show that the employment action

produced an injury or harm that might well dissuade a reasonable worker from making or

supporting a charge of discrimination.” Sewell v. Chao,

(D.D.C. 2008)

(citing Burlington N. & Santa Fe Ry. Co. v. White,

(2006), aff’d sub nom. Sewell

v. Hugler,

(D.C. Cir. 2009).

1. Claim Based on Cessation of Interaction with Supervisor

Grosdidier contends that Dia retaliated against her by refusing to interact with her

directly, using Grosdidier’s coworkers as intermediaries to communicate with her. However, as

the Court noted above, Grosdidier has only produced evidence of a single incident where this

occurred. Based on this evidence, the Court finds that it may grant Defendant’s motion for

summary judgment on the ground that this lack of direct interaction does not amount to an

adverse employment action under Title VII. No reasonable employee would be dissuaded from

filing a discrimination complaint as a result of a supervisor’s decision to communicate indirectly

51 through a coworker. “An employee’s decision to report discriminatory behavior cannot

immunize that employee from those petty slights or minor annoyances that often take place at

work and that all employees experience.” Burlington,

. Accordingly, the Court

shall grant Defendant’s motion for summary judgment as to this alleged action.

2. Claim Based on Failure to Update Job Description

Grosdidier claims that in November 2007, her supervisor failed to update her position

description, making her potentially vulnerable to a reduction in force. However, Grosdidier has

not cited to any record evidence in support of this claim apart from her own deposition testimony

explaining that her position description has remained unchanged. The uncontroverted evidence

in the record establishes that Dia did submit an updated position description for Grosdidier to the

agency’s human resources department. Furthermore, there is no evidence in the record that

Grosdidier was actually harmed by the failure to update her position description, and no

reasonable employee would be deterred from engaging in protected activity by such inaction.

Accordingly, the Court shall grant Defendant’s motion for summary judgment with respect to

this claim.

3. Claim Based on Letter of Admonition

Grosdidier contends that the letter of admonition she received on April 1, 2008 amounts

to retaliation under Title VII. However, letters of admonition or reprimand generally do not

qualify as materially adverse actions when they do not contain offensive language and there is no

evidence that the letter will result in any adverse consequences to the admonished employee.

See, e.g., Baloch v. Kempthorne,

(D.C. Cir. 2008); Herbert v. Architect of

the Capitol, ___ F. Supp. 2d ___, Civil Action No. 07-1516,

, at *12 (D.D.C.

52 Feb. 23, 2011). The letter about which Grosdidier complains is not demeaning, there is no

evidence that it caused her any actual harm, and she does not dispute that she committed the

conduct for which she was being admonished. Therefore, the Court finds that no reasonable jury

could conclude that the letter of admonition was a materially adverse action.

4. Claim Based on Reduction of Duties

Grosdidier’s final claim is that she suffered retaliation by having her editing duties

reduced or eliminated on an ongoing basis after Dia was deposed in her EEOC litigation. As the

Court explained above, Grosdidier exhausted this claim only to the extent that Dia continued to

assign her to non-editing duties on a weekly basis after October 5, 2007. The parties did not

directly address this formulation of Grosdidier’s claim in their briefs, and the Court is reluctant to

comb the record in order to assess the merits vel non of this claim. There is some evidence in the

record to support Grosdidier’s claim that she was not assigned editing responsibilities during this

period, and there is also general evidence in the record that Dia, who made the assignments, was

upset at Grosdidier for questioning his commitment to a discrimination-free workplace.

Defendant argues that any reduction in Grosdidier’s editing duties cannot constitute a

materially adverse action because her work assignments varied based on the dynamic needs of

her workplace. In support of this argument, Defendant relies on an affidavit from Dia in which

he explained that Grosdidier was assigned editing duties on an ad hoc basis. However,

Grosdidier has produced evidence suggesting that she was one of the few GS-12 broadcasters

who was ever assigned responsibility for editing the work of other broadcasters, and the pattern

of periods in which Grosdidier was or was not assigned such duties undermines the testimony of

Dia and Ferdinand Ferella that her responsibilities never changed. Considering that all of the

53 supervisory positions in Grosdidier’s workplace involve more significant editing duties, a

reasonable jury might conclude that a retaliatory denial of editing duty would dissuade a

reasonable employee from engaging in protected activity. See Burlington,

(explaining that in context, reassignment of job duties within an employee’s job description may

constitute actionable retaliation); Edwards v. U.S. Envtl. Prot. Agency,

(D.D.C. 2006) (“In the wake of [Burlington Northern & Santa Fe Railway Co. v.] White, this

Court has similarly concluded that a plaintiff’s allegation that she has been stripped of some of

her duties sufficed to establish an adverse employment action in the retaliation context.”).

Accordingly, the Court shall deny Defendant’s motion for summary judgment with respect to

Grosdidier’s claim that she suffered retaliation when she was not assigned editing duties after

October 5, 2007.

IV. CONCLUSION

For the foregoing reasons, the Court finds that Grosdidier failed to exhaust her claims of

age discrimination, claims based on discrete actions that occurred before October 5, 2007, and

her hostile work environment claim to the extent it relies on conduct that is not like or reasonably

related to the allegations raised in her administrative complaint. The Court finds that Grosdidier

has failed to produce evidence sufficient to allow a reasonable jury to conclude that her

nonselection for a GS-13 position in 2006 was motivated by discrimination based on sex, race,

national origin, or Grosdidier’s prior exercise of protected activity. The Court further finds that

no reasonable jury could conclude that the adverse actions Grosdidier suffered amounted to a

hostile work environment actionable under Title VII. With respect to claims based on other

discrete actions taken by her employer, the Court finds that Grosdidier has produced evidence

54 sufficient to survive summary judgment on only one claim, that her editing responsibilities were

reduced after October 5, 2007 in alleged retaliation for her prior protected activity. Therefore,

the Court shall DENY Defendant’s [15] Motion for Summary Judgment with respect to

Grosdidier’s claim that Defendant retaliated against her by reducing her editing responsibilities

after October 5, 2007 and GRANT Defendant’s motion in all other respects. The Court shall also

DENY Plaintiff’s [23] Motion for Adverse Presumption. An appropriate Order accompanies this

Memorandum Opinion.

Dated: March 28, 2011 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

55