UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JAMES W. HARRINGTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 19-0476 (ABJ) ) JOHN CRAWFORD, ) Acting Deputy Director, ) U.S. Government Publishing Office, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

Plaintiff James W. Harrington has filed a six-count complaint against John Crawford,

Acting Deputy Director of the Government Publishing Office (“GPO” or the “agency”), under

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. In Counts I and

II, he alleges that he was subjected to a hostile work environment based on his race and prior Equal

Employment Opportunity (“EEO”) activity. Compl. [Dkt. # 1] ¶¶ 45, 50. In Counts III through

VI, plaintiff alleges that his supervisors took actions against him in retaliation for his protected

activities. Id. ¶¶ 55, 60, 65, 70. Defendant has moved to dismiss Counts I through V of the

complaint for failure to state a claim. See generally Def.’s Mot. to Dismiss [Dkt. # 5] (“Def.’s

Mot.”). For the reasons stated below, the Court will grant defendant’s motion to dismiss those

Counts. Count VI will more forward. BACKGROUND

Plaintiff is a Feeder Operator within the Press Offset Section of the GPO, where he has

worked since 2008. Compl. ¶¶ 10, 11. Since August 10, 2014, Christopher Mitchell has been the

immediate supervisor to whom plaintiff directly reports. Compl. ¶ 16.

On February 25, 2014, plaintiff filed an EEO complaint alleging that he was subjected to

unlawful discrimination by two upper-level managers not otherwise involved in this case. Compl.

¶ 13. On May 9, 2017, plaintiff and the agency reached a negotiated settlement regarding that

complaint. Id. ¶ 15. Plaintiff alleges, upon information and belief, that his immediate supervisor,

Mitchell, and Gary Evans, one of plaintiff’s higher-level supervisors, both learned of his 2014

EEO complaint no later than November 10, 2015. Id. ¶¶ 17, 23–24. He provides no other facts

indicating when or how they allegedly became aware of his EEO activity.

Plaintiff alleges a series of facts related to a co-worker, Timothy Burke. He claims that on

November 10, 2015, Burke entered the area where he was working, and turned off the feeder of a

printing machine he was using. Compl. ¶ 32. After that, according to plaintiff, Burke “engaged

in more threatening conduct.” Id. Plaintiff reported the incident in writing to Assistant Manager

Martha McRae, and he alleges, upon information and belief, that McRae informed Mitchell about

the report, although he is unaware of any steps Mitchell or defendant took to address his concerns.

Id. ¶¶ 20, 32–34.

Three months later, on February 5, 2016, Burke filed a report with the GPO Police,

claiming that plaintiff had “blocked his path in a GPO hallway on January 20, 2016, and that

Plaintiff approached him in a threatening manner in a GPO restroom on January 29, 2016.”

Compl. ¶ 35. Plaintiff alleges that Mitchell directed Burke to file the report. Id. GPO Police

interviewed plaintiff about the allegations on February 8, 2016, and on that date, plaintiff submitted

2 a statement in response denying having any contact with Burke after the November 10, 2015

incident. Id. ¶¶ 36–37.

The complaint states that on February 8, 2016, Mitchell issued a Recommendation for

Corrective Action, recommending that plaintiff be issued a seven-day suspension from work in

light of Burke’s allegations. Compl. ¶ 38. Approximately one month later, on March 16, 2016,

Mitchell issued a Notice of Proposed Seven-Day Suspension, id. ¶ 39, and on March 30, 2016,

plaintiff responded orally and in writing to the Notice. Id. ¶ 41.

Before he responded, however, plaintiff initiated an EEO action by filing an EEO

precomplaint against the agency on March 24, 2016. Compl. ¶ 40. 1 Plaintiff alleges that Mitchell

and Evans, in their capacities as Discrimination Officials, were notified about the pendency of the

EEO precomplaint no later than May 18, 2016 Id. ¶ 42. On June 9, 2016, Evans sustained the

charges in Mitchell’s Notice of Proposed Suspension, but he mitigated the penalty to a four day

suspension. Id. ¶ 43.

Plaintiff filed this six-count complaint on February 25, 2019. Count I alleges that plaintiff

was subjected to a discriminatory hostile work environment based on his race, Compl. ¶ 45, and

Count II alleges a retaliatory hostile work environment based on his prior EEO activity. Id. ¶ 50.

Count III alleges that Mitchell retaliated against plaintiff for engaging in EEO activity in February

of 2014 by encouraging Burke to file the police report on February 5, 2016. Id. ¶ 55. Finally,

Counts IV–VI allege that the Recommendation for a Notice of a Seven-Day Suspension (Count

1 It is unclear from the pleadings what details plaintiff alleged in the precomplaint. He notes, however, that he received a final decision from the U.S. Equal Employment Opportunity Commission’s Office of Federal Operations on November 26, 2018, which notified him of his right to file an action in district court. Compl. ¶ 3.

3 IV), the Notice of Proposed Suspension (Count V), and the four-day suspension (Count VI) were

all acts of retaliation for plaintiff’s prior EEO activity. 2 Compl. ¶¶ 60, 65, 70.

On June 4, 2019, defendant moved to dismiss Counts I through V for failure to state a claim

under Fed. R. Civ. P. 12(b)(6). See generally Def.’s Mot. Defendant has not moved to dismiss

Count VI at this stage of the pleadings. Mem. in Supp. of Def.’s Mot. to Dismiss [Dkt. # 5] (“Def.’s

Mem.”) at 1 n.1. 3 For the following reasons, defendant’s motion to dismiss Counts I through V is

granted.

STANDARD OF REVIEW

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009), quoting Bell Atl. Corp. v. Twombly,

(2007). A claim

is facially plausible when the pleaded factual content “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

, citing Twombly,

. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.”

quoting Twombly,

. A pleading must offer more than “labels and conclusions” or a “formulaic recitation

of the elements of a cause of action,”

quoting Twombly,

, and “[t]hreadbare

2 Plaintiff does not specifically allege that the actions in Counts IV through VI were in retaliation for his March 2016 EEO precomplaint; in each count, he alleges that there was a causal connection between his “prior EEO activity” and the challenged action. See Compl. ¶¶ 61, 66, 71. Two of the actions, Mitchell’s February 8, 2016 Recommendation for Corrective Action (a seven- day suspension) and his March 16, 2016 Notice of Proposed Seven-Day Suspension took place before plaintiff filed his 2016 EEO precomplaint, see Compl. ¶¶ 38–40; but plaintiff alleges that Evans was aware of the March 2016 EEO complaint before he imposed the four day suspension. Compl. ¶¶ 40–43.

3 Plaintiff filed an opposition to defendant’s motion, [Dkt. # 6] (“Pl.’s Opp.”), and defendant filed a reply, [Dkt. # 7] (Def.’s Reply), so the matter is fully briefed. 4 recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.”

citing Twombly,

.

When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in the plaintiff’s favor, and the Court should grant the plaintiff “the benefit of all

inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the

plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court

accept plaintiff's legal conclusions. See

; see also Browning v. Clinton,

(D.C. Cir. 2002). In ruling on a motion to dismiss for failure to state a claim, a court

may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits

or incorporated by reference in the complaint, and matters about which the Court may take judicial

notice.” Gustave–Schmidt v. Chao,

(D.D.C. 2002), citing EEOC v. St.

Francis Xavier Parochial Sch.,

, 624–25 (D.C. Cir. 1997).

ANALYSIS

I. Plaintiff’s hostile work environment claims will be dismissed under Rule 12(b)(6).

Defendant has moved to dismiss plaintiff’s claims that plaintiff was subjected to workplace

harassment because of his race (Count I) and because of his prior EEO activities (Count II) on the

grounds that the factual allegations are insufficient as a matter of law to state a claim under Title

VII. Def.’s Mem. at 3–5. Defendant argues that the alleged set of events surrounding plaintiff’s

5 suspension are neither sufficiently extreme or pervasive to constitute an actionable hostile work

environment, and the Court agrees. Therefore, Counts I and II will be dismissed. 4

To state a hostile work environment claim under Title VII, a plaintiff must demonstrate

that the “workplace is permeated with discriminatory intimidation, ridicule, and insult” and that

this behavior is “sufficiently severe or pervasive [as] to alter the conditions of the victim’s

employment and create an abusive working environment.” Harris v. Forklift Sys., Inc.,

(1993), quoting Meritor Sav. Bank v. Vinson,

(1986) (internal

quotation marks omitted). To determine “whether an actionable hostile work environment claim

exists, [courts] look to ‘all the circumstances,’ including ‘the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work performance.’’’ Nat’l

R.R. Passenger Corp. v. Morgan,

(2002), quoting Harris,

; see

also Baloch v. Kempthorne,

(D.C. Cir. 2008). This standard “ensure[s] that

Title VII does not become a general civility code” that involves courts in policing “the ordinary

tribulations of the workplace.” Faragher v. City of Boca Raton,

(1998)

(citations and internal quotation marks omitted). For those reasons, the Supreme Court has made

clear that conduct comprising a hostile work environment claims must be so extreme as “to amount

to a change in the terms and conditions of employment,”

(internal citation and quotation

marks omitted), and the D.C. Circuit requires a plaintiff in a hostile work environment claim to

4 The defendant also argues that the agency can not be held liable for the alleged conduct of plaintiff’s co-worker, Burke, in the absence of facts showing that the employer was at least negligent in failing to prevent or respond to the harassment. Def’s Mem. at 5–6. But plaintiff has clarified that Counts I and II are based solely on the actions of plaintiff’s supervisors, Pl’s Opp. at 3–4, so there is no need to address that issue. 6 provide “evidence of tangible workplace consequences, whether financial, physical, or

professional.” Baloch,

.

Plaintiff has explained that his claims are based on four instances of alleged harassment

by his supervisors: 1) the February 5, 2016 police report which was allegedly filed by a co-worker

at Mitchell’s direction; 2) Michell’s February 8, 2016 recommendation that plaintiff be issued a

notice of proposed suspension for seven days; 3) Mitchell’s March 16, 2016 notice of a proposed

suspension for seven days without pay; and 4) Evans’s June 9, 2016 decision to suspend plaintiff

for four days without pay. Pl.’s Opp. at 3–4.

Defendant contends that items two through four – the three steps leading up to plaintiff’s

suspension – must be viewed as a single adverse employment action, that is, the ultimate four-day

suspension. Def.’s Reply at 2. But “[a] hostile work environment consists of several individual

acts that ‘may not be actionable on [their] own but become actionable due to their cumulative

effect.’” Baird v. Gotbaum,

(D.C. Cir. 2015), quoting Nat’l R.R. Passenger

Corp,

(alteration in original). The Court is, therefore, required to consider all of

the events alleged when it assesses the totality of the circumstances. Baird,

.

Even when each step in the sequence is considered as an individual event, the four actions

that were triggered by Burke’s allegations are not sufficiently severe or pervasive to allege a hostile

work environment. While being the subject of a police report and suspension-implementing

procedures could make a work environment more unpleasant or stressful, the allegations in the

complaint fall well short of describing a workplace “permeated” with intimidation or insult. 5

5 Defendant accurately observed in its reply that the complaint alleges no facts suggesting that any of these events were motivated by either racial bias or retaliatory animus. Def.’s Reply at 5. Plaintiff’s allegations of causation are entirely conclusory, but since defendant has not moved to dismiss on those grounds, the Court does not need to reach that issue, and the dismissal is based solely on the insufficiency of the allegations of harassment. 7 Here, plaintiff has simply pointed to a series of related actions taken by his supervisors in

response to a single, disputed complaint lodged by a coworker. The fact that issuing plaintiff the

final four-day suspension took several procedural steps does not alter the conclusion that the

combination of the complaint and the sanction, standing alone, does not constitute severe or

pervasive harassment. Counts I and II will, therefore, be dismissed.

II. Plaintiff’s retaliation claims will be dismissed under Rule 12(b)(6).

In Counts III through V, plaintiff alleges that defendant retaliated against him when his

supervisor Mitchell: encouraged a coworker to file a police report (Count III); recommended that

a notice of a proposed seven-day suspension be issued (Count IV); and issued the notice of

proposed suspension (Count V). Defendant moves to dismiss each claim for failure to state a claim

on the grounds that none of the alleged actions constitutes a materially adverse action for purposes

of a retaliation claim. Def.’s Mem. at 6; Def.’s Reply at 6. 6

To establish a prima facie case of retaliation, “the plaintiff must present evidence that (1)

[]he engaged in a statutorily protected activity; (2) []he suffered a materially adverse action by

h[is] employer; and (3) a causal connection existed between the two.” Wiley v. Glassman,

(D.C. Cir. 2007); see also Holcomb v. Powell,

, 901–02

(D.C. Cir. 2006).

In the retaliation context, an adverse action is one that is “harmful to the point that [the

employer’s action] could well dissuade a reasonable worker from making or supporting a charge

of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,

(2006). Unlike

in the discrimination context, the “scope of the antiretaliation provision extends beyond

6 Plaintiff also alleges in Count VI that the decision by Evans to suspend him for four days was retaliatory, but the defendant has not moved to dismiss that count. See Def.’s Mot. at 1 n.1. 8 workplace-related or employment-related retaliatory acts and harm,” Burlington N.,

, and therefore, it does not require a materially adverse change in the terms and conditions of

employment. Bridgeforth v. Jewell,

, 663 n.* (D.C. Cir. 2013) (explaining that

retaliation “encompass[es] a broader sweep of actions” than wrongful discrimination).

But even in the retaliation context, the category of adverse events does not include trivial

harms: “[a]ctionable retaliation claims are limited to those where an employer causes ‘material

adversity,’” Wiley,

(internal quotations omitted), and the plaintiff still must suffer

some “objectively tangible harm.” Holcomb,

. The standard is an objective one

that is phrased “in general terms because the significance of any given act of retaliation will often

depend upon the particular circumstances. Context matters.” Burlington N.,

.

A. The filing of the police report is not sufficiently adverse to support the claim of retaliation in Count III.

In Count III, plaintiff alleges that Mitchell retaliated against him for his EEO activity in

2014 by encouraging Burke to file a police report about him. Compl. ¶¶ 55–56. Defendant

contends that plaintiff “has failed to allege any independent, adverse consequences to him resulting

from the police report,” and has, therefore, failed to plead a materially adverse action. Def.’s Mem.

at 8–9.

Both parties point to the D.C. Circuit’s opinion in Velikonja v. Gonzales,

(D.C. Cir. 2006). Def.’s Mem. at 8; Pl.’s Opp. at 8. Plaintiff emphasizes that in that case, the

Court found the initiation of an internal investigation to be materially adverse because of its

potential chilling effects on an employee’s participation in protected activities, Pl.’s Opp. at 8, but

the defense suggests that the opinion is distinguishable because the plaintiff in that case

specifically pled that a “lengthy investigation” prevented her from receiving promotions and

“‘placed a cloud’ over [her] career.” Def.’s Reply at 7, quoting Velikonja,

.

9 In Velikonja, the Court of Appeals reversed a lower court’s decision to grant defendant’s

motion to dismiss, but it emphasized the plaintiff’s well-pled allegations about the consequences

of the investigation, including that plaintiff was effectively prevented “from obtaining [] career-

enhancing assignments for which she [was] highly qualified” could lead a reasonable jury to “find

that the prospect of such an investigation could dissuade a reasonable employee from making or

supporting a charge of discrimination.”

. Applying that precedent, other courts in

this district have found that “while the ‘mere initiation’ of an investigation may not constitute a

materially adverse action,” King v. Holder,

(D.D.C. 2015), quoting

Youssef v. FBI,

(D.C. Cir. 2012), “[where] the investigation resulted in

‘materially adverse consequences affecting the terms, conditions, or privileges of employment . . .

a reasonable trier of fact could conclude that the plaintiff [] suffered objectively tangible harm.’”

quoting Ware v. Billington,

(D.D.C. 2004); Rattigan v. Gonzales,

(D.D.C. 2007).

Here, plaintiff alleges that after Burke lodged the complaint, he was interviewed by the

GPO police, and he submitted a statement denying the accusations that same day. Compl.

¶¶ 36--37. He does not allege that the investigation continued thereafter, that it resulted in any

criminal charges, or that the investigation itself produced an adverse employment consequence;

what he suggests is that “[h]arm could have resulted from a GPO police complaint being filed

against Plaintiff at the direction of Plaintiff’s supervisor in the form of disciplinary action, criminal

prosecution, or some other action.” Pl.’s Opp. at 7 (emphasis added). Following the guidance of

Velikonja, the Court will dismiss Count III without prejudice since the complaint does not allege

facts giving rise to an inference that plaintiff suffered negative consequences as a result of the

report made to the GPO police.

10 B. The suspension-related events do not constitute individual materially adverse actions.

The final two matters at issue are plaintiff’s allegations that Mitchell retaliated against him

for his prior EEO activity when Mitchell recommended a seven-day suspension (Count IV) and

then issued the notice of proposed suspension (Count V). Defendant argues that the two events

are not independently actionable retaliation claims because they are part of the final four-day

suspension, which is the only event that produced the tangible consequences of a materially

adverse action. Def.’s Mem. at 7–8.

The D.C. Circuit has held that a proposed suspension that is not actually served does not

constitute a materially adverse employment action for retaliation claims. Baloch,

(plaintiff’s allegations that “proposed 2-day and 30-day suspensions were materially adverse

actions that tarnished his reputation and caused emotional distress” were not materially adverse;

“courts have been unwilling to find adverse actions where the suspension is not actually served”);

see also Hayes v. Chao,

(D.D.C. 2008) (rejecting a claim based on a

proposed suspension on the basis that “the D.C. Circuit has repeatedly held that threats of future

adverse actions are not tangible harms that may constitute adverse actions”) (emphasis in original).

In Baloch, the Court also noted that the fact that the supervisor who proposed a sanction was

different from the supervisor who had the authority to impose it weighed against a determination

that the proposed suspension was itself a materially adverse event.

.

Here, the final decision maker was Evans, not Mitchell, and ultimately the seven-day

suspension recommended and proposed by Mitchel was never imposed; instead Evans

implemented a lesser sanction. For these reasons, the Court finds that the recommendation and

notice of proposed suspension do not constitute materially adverse actions, and Counts IV and V

11 will be dismissed. Count VI, which alleges that the suspension that was ultimately served was

retaliatory, will proceed.

CONCLUSION

For the foregoing reason, defendant’s motion to dismiss Counts I through V is granted and

Count VI will move forward. A separate order will issue.

AMY BERMAN JACKSON United States District Judge

DATE: March 27, 2020

12