UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TERESA TUMBLIN,

Plaintiff,

v. No. 19-cv-2204 (DLF) WILLIAM BARR, ATTORNEY GENERAL OF THE UNITED STATES,

Defendant.

MEMORANDUM OPINION

Before the Court is Attorney General William Barr’s 1 Partial Motion to Dismiss or,

Alternatively, for Partial Summary Judgment, Dkt. 17. For the reasons that follow, the Court

will grant the motion.

I. BACKGROUND

The Court takes the well-pleaded factual allegations in the complaint, Dkt. 1, as true.

Ashcroft v. Iqbal,

(2009). Teresa Tumblin, an employee of the Federal

Bureau of Investigation (FBI), alleges that she was retaliated against for engaging in protected

activity in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-5(f); 2000e-16, et

seq. Second Am. Compl. (Compl.), ¶ 1, Dkt. 15. Tumblin filed her first equal employment

opportunity (EEO) complaint in 2009, id. ¶¶ 27–28, which was resolved through mediation, id.

Tumblin later made three additional complaints, in 2015, 2017, and 2018 respectively. Id. ¶¶

29–32.

1Title VII states that “the head of [the plaintiff’s] department, agency, or unit, as appropriate shall be the defendant” in civil actions. 42 U.S.C. § 2000e-16(c). The current Attorney General, William Barr, is the head of Tumblin’s agency and thus the proper defendant in this case. The underlying events that gave rise to Tumblin’s complaints began in 2012, when she

began working as a quality assurance reviewer under team lead Cheryl Waddell. Id. ¶¶ 33–34.

Tumblin believed that Waddell was aware of her 2009 EEO complaint and treated her with

hostility as a result. Id. ¶¶ 38, 51, 54. In particular, “Waddell regularly and repeatedly lost her

composure in her interactions with Plaintiff raising her voice and berating Plaintiff,” id. ¶ 39, and

“regularly marked Plaintiff’s work as ‘QA error,’ a designation that she did not apply to the work

performed by Plaintiff’s co-workers,” id. ¶ 40. Waddell also partially revoked Tumblin’s access

to the FBI Audit System. Id. ¶ 41. Tumblin reported her concerns about Waddell to

management. Id. ¶ 42. A manager then told Tumblin that he was considering removing her from

the quality assurance unit as a result of her troubled relationship with Waddell. Id. ¶ 43. In a

separate incident in February 2015, Tumblin was seated near Ann Nash, another employee in the

quality assurance unit. Id. ¶¶ 44–45. Nash used profanity in the earshot of Tumblin, even

though Nash was aware of Tumblin’s aversion to profanity. Id. ¶¶ 45–46.

In another set of incidents, Tumblin alleges that she applied for various positions but was

rejected even though she was more qualified than all of the other applicants. Id. ¶¶ 59, 62, 69–

70, 74, 79–81. In April 2015, she informed a supervisor that she was interested in joining the

National Name Check Program training team, id. ¶ 55; in December 2015, she applied for

another new position but was not chosen, id. ¶ 61; in February 2016, she was not selected for a

one-year detail on the quality assurance team, id. ¶ 66; in March 2017, she applied for a vacant

position on a Quality Research Management Unit training team, id. ¶¶ 71, 73; and in August

2018, she learned that another employee had been chosen for a rotational assignment for back-to-

back terms even though Tumblin had been previously denied the opportunity, id. ¶ 96.

2 Finally, Tumblin cites a variety of other events that she alleges are related to her EEO

activity. In May 2018, Tumblin was given a Mid-Year Progress Review of “successful” overall,

rather than the “excellent” rating she received the year before. Id. ¶¶ 84–85. When she asked

about the rating, Tumblin was not given specific feedback. Id. ¶¶ 86–87. Next, in August 2018,

Tumblin requested to “earn compensatory time as she did not have enough leave built in to take

care of her mother.” Id. ¶ 91. She alleges that she had been allowed to do so in the past but was

denied in retaliation for her EEO activity. Id. ¶¶ 92–94. Tumblin also asked, more than once, to

use official time to work on her EEO complaints and was either rejected or did not receive a

response. Id. ¶¶ 88, 103–04. And finally, Tumblin alleges that her “return rate was

manipulated” in retaliation for her prior protected activities. Id. ¶ 108.

II. LEGAL STANDARDS

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R.

Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter

sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007). A facially plausible claim is one that “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

. This standard does not amount to a specific probability requirement, but it does require

“more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly,

(“Factual allegations must be enough to raise a right to relief above the

speculative level.”). A complaint need not contain “detailed factual allegations,” but alleging

facts that are “merely consistent with a defendant’s liability . . . stops short of the line between

possibility and plausibility.” Iqbal,

(internal quotation marks omitted).

3 Well-pleaded factual allegations are “entitled to [an] assumption of truth,”

, and

the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all

inferences that can be derived from the facts alleged,” Hettinga v. United States,

(D.C. Cir. 2012) (internal quotation marks omitted). The assumption of truth does not apply,

however, to a “legal conclusion couched as a factual allegation.” Iqbal,

(internal

quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is

not credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.”

Ultimately, “[d]etermining whether a

complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.”

.

When deciding a Rule 12(b)(6) motion, the court may generally consider only the

complaint itself, documents attached to the complaint, documents incorporated by reference in

the complaint, and judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997). A Rule 12(b)(6) dismissal “is a resolution on the merits and

is ordinarily prejudicial.” Okusami v. Psychiatric Inst. of Wash., Inc.,

, 1066 (D.C.

Cir. 1992).

III. ANALYSIS

The Attorney General moves to dismiss three of the five counts in Tumblin’s complaint.

See Mot. to Dismiss. First, he argues that count IV should be dismissed because Tumblin failed

to exhaust her administrative remedies, or alternatively, because she has not alleged a causal

connection between her nonselection for the National Name Check Program training team and

her protected activities. See id. at 8. Next, he argues that count II should likewise be dismissed

because Tumblin has failed to plausibly allege a causal connection between her nonselection for

4 the Quality Research Management Unit and her protected activities. See id. at 11. Finally, he

argues that count I should be dismissed because Tumblin has not alleged the requisite “severe or

pervasive” harassment or causal connection to support a retaliatory hostile work environment

claim. See id. at 14.

A. Nonselection Claims (Counts II and IV)

1. The National Name Check Program Nonselection (Count IV)

Tumblin’s claim of retaliatory nonselection in count IV fails because Tumblin did not

exhaust her administrative remedies on this claim. Title VII requires that plaintiffs “timely

exhaust their administrative remedies before bringing their claims to court.” Payne v. Salazar,

(D.C. Cir. 2010) (internal quotations and alteration omitted). This exhaustion

requirement “serves the important purposes of giving the charged party notice of the claim and

narrowing the issues for prompt adjudication and decision.” Park v. Howard Univ.,

(D.C. Cir. 1995) (internal quotation marks and alteration omitted).

“Under Title VII, employees who believe they have been discriminated against must first

consult an Equal Employment Opportunity (EEO) Counselor within 45 days of the alleged

discriminatory acts.” In re James,

(D.C. Cir. 2006); see

(a)(1). Tumblin first contacted the EEO Counselor about the alleged retaliatory

nonselection on October 21, 2015. See Mot. to Dismiss Ex. 7 (EEO Complaint, FBI-2016-

00024, December 1, 2015), Dkt. 17-9. 2 Meanwhile, Tumblin first found out that she was not

2In evaluating whether a Title VII plaintiff has exhausted her administrative remedies, the Court may take notice of public records, such as EEOC and Board complaints and decisions, without converting a motion to dismiss into a motion for summary judgment. See Vasser v. McDonald,

(D.D.C. 2016); see also Williams v. Chu,

(D.D.C. 2009) (“A plaintiff’s EEOC charge and the agency’s determination are both public records, of which this Court may take judicial notice.” (internal quotation marks and alteration omitted)).

5 selected for the role on July 1, 2015. Compl. ¶ 58. This represents a time gap of 112 days, well

in excess of the 45-day requirement. See Panarello v. Zinke,

(D.D.C.

2017), aff'd sub nom. Panarello v. Bernhardt,

(D.C. Cir. 2019) (dismissing Title

VII discrimination claims for failure to exhaust because the claims arose more than 45 days

before the complainant initiated contact with an EEO Counselor); Achagzai v. Broad. Bd. of

Governors,

(D.D.C. 2016) (same). Thus, as to this alleged retaliatory

nonselection, Tumblin failed to exhaust her remedies within the time period required.

Tumblin does not dispute this fact, but instead argues: (1) that the FBI waived this

argument by not dismissing her claim when she first contacted the EEO officer in October of

2015, and (2) that equitable tolling should excuse the delay. See Pl.’s Opp’n at 12, Dkt 18. For

waiver, Tumblin relies on Fort Bend Cnty. v. Davis,

(2019), for the proposition

that an agency waives an exhaustion argument when they raise it too late in the course of the

litigation. See

In general, “agencies do not waive a defense of untimely exhaustion merely by accepting

and investigating a discrimination complaint . . . .” Bowden v. United States,

(D.C. Cir. 1997). In Fort Bend, the Supreme Court held that a Title VII procedural requirement

was “mandatory without being jurisdictional” and thus could be forfeited where the defendant

delayed bringing the argument.

. But unlike here, the defendant in that case

did not raise its procedural argument “until after an entire round of appeals all the way to the

Supreme Court.”

(internal quotation marks omitted). Here, by contrast, the FBI

raised its exhaustion argument in its first substantive motion in this litigation, see Def.’s First

Mot. to Dismiss at 6, Dkt. 10-1, and in the final agency decision as well, see Mot. to Dismiss Ex.

8 at 14–15 (Final Agency Decision, FBI-2016-00024, September 6, 2019); see also Vasser v.

6 McDonald,

(D.D.C. 2016) (noting that courts take judicial notice of Final

Agency Decisions for exhaustion purposes without converting to summary judgment where the

authenticity of the public document is not disputed). For these reasons, the exhaustion argument

has not been forfeited or waived.

As for Tumblin’s equitable tolling argument, it is true that the 45-day timing requirement

“is subject to . . . equitable tolling.” Zipes v. Trans World Airlines, Inc.,

(1982). “In Title VII cases . . . courts have excused parties, particularly those acting pro se, who

make diligent but technically defective efforts to act within a limitations period.” Bowden,

. But this doctrine is “to be applied sparingly.” Nat’l R.R. Passenger Corp. v.

Morgan,

(2002). Tumblin argues that because she had overlapping open

complaints when she contacted the EEO officer in October, she assumed that her new October

complaint would be included in the case opened earlier in 2015. Pl.’s Opp’n at 12–13. Given

Tumblin’s familiarity with the EEO complaint process, see Compl. ¶¶ 27–32, however, she has

not shown that this assumption reflected anything more than the kind of “garden variety claim of

excusable neglect” to which “equitable tolling principles do not extend.” Irwin v. Dep’t of

Veterans Affairs,

(1990). In sum, because Tumblin failed to exhaust

administrative remedies within the time required and her equitable tolling arguments are

unavailing, the Court need not consider the defendant’s causation arguments, see Mot. to

Dismiss at 12–13, and will dismiss count IV.

2. The Quality Research Management Unit Nonselection (Count II)

As for Tumblin’s retaliatory nonselection claim in count II, which relates to the Quality

Research Management Unit training position, see Compl. ¶ 127, the Attorney General argues that

7 Tumblin has failed to plausibly allege a causal connection between her protected activities and

her nonselection for this position. Mot. to Dismiss at 13–14.

Title VII “both prohibits employers from engaging in employment practices that

discriminate . . . and bars them from retaliating against an employee because she has opposed

any such practice.” Harris v. D.C. Water & Sewer Auth.,

(D.C. Cir. 2015)

(internal quotation marks and alterations omitted). “To prove retaliation, the plaintiff generally

must establish that he or she suffered (i) a materially adverse action (ii) because he or she had

brought or threatened to bring a discrimination claim.” Baloch v. Kempthorne,

(D.C. Cir. 2008) (emphasis added). The causation prong “may be established if the

plaintiff alleges that the employer had knowledge of the protected activity and that the adverse

action occurred soon thereafter.” McNair v. Dist. of Columbia,

(D.D.C.

2016).

As an initial matter, Tumblin “need not plead facts showing each of these elements in

order to defeat a motion under Rule 12(b)(6).” Gordon v. U.S. Capitol Police,

,

161–62 (D.C. Cir. 2015). After all, retaliation “can be proven by direct evidence rather than

through the McDonnell Douglas prima facie case.”

at 162 (citing Swierkiewicz v. Sorema

N.A.,

(2002)). But Tumblin must plead facts sufficient to nudge her claims “across

the line from conceivable to plausible,” Iqbal,

(quoting Twombly,

); Menoken v. McGettigan,

(D.D.C. 2017) (applying Iqbal’s pleading

standard in the retaliation context).

To support her claim of retaliation, Tumblin only alleges that: (1) “The management

officials responsible for Plaintiff’s retaliatory non-selection were aware of Plaintiff’s prior EEO

activity,” Compl. ¶ 126, and (2) “Defendant’s management officials were motivated in the

8 decision to deny Plaintiff a position on the QRMU training team by virtue of animus towards

Plaintiff caused by Plaintiff’s prior EEO activity.” Compl. ¶ 127. Because Tumblin does not

allege any facts to support a direct inference of causation, see Pl.’s Opp’n at 14–15, the basis for

such an inference must be the temporal proximity of her prior EEO activity and the later

nonselection. See McNair,

. Although no bright line rule exists, “this

Circuit has generally found that a two- or three-month gap between the protected activity and the

adverse employment action does not establish the temporal proximity needed to prove

causation.” Jones v. D.C. Water & Sewer Auth.,

(D.D.C. 2013); see, e.g.,

Taylor v. Solis,

(D.C. Cir. 2009) (holding that a two-and-a-half-month lapse

was too long to assume temporal proximity).

The last EEO activity Tumblin engaged in before she applied for a position on the

Quality Research Management Unit training team occurred in early to mid-2015. See Compl. ¶

29 (plaintiff initiated EEO counseling on February 12, 2015), ¶ 30 (plaintiff filed a formal

complaint of discrimination on March 28, 2015). Meanwhile, she was not selected for the

position in March 2017. See Compl. ¶ 71. This represents a time gap of approximately two

years between any protected activity and the adverse action. Compare Compl. ¶ 30 (plaintiff’s

last EEO activity before July 2017 was on March 28, 2015), with Compl. ¶ 71 (plaintiff applied

for the quality research management unit training position “on or about March 10, 2017”). This

gap is far off the two to three month benchmark that courts in this circuit typically use as a

metric, and is certainly not “very close” in time, as required for a plausible inference of temporal

proximity. Clark County Sch. Dist. v. Breeden,

(2001). For this reason, the

Court will dismiss count II of Tumblin’s complaint.

9 B. Retaliatory Hostile Work Environment Claim (Count I)

In count I of her complaint, Tumblin alleges that she was subjected to a hostile work

environment in retaliation for her protected activities. Compl. at 13. A hostile work

environment exists where a plaintiff’s employer subjects her to “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.” Baloch,

(quoting

Harris, 510 U.S. at 21). In assessing whether a hostile work environment exists, courts “look[]

to the totality of the circumstances, including the frequency of the discriminatory conduct, its

severity, its offensiveness, and whether it interferes with an employee’s work performance.”

Baloch,

. “The Supreme Court has made it clear that conduct must be extreme

to amount to a change in the terms and conditions of employment.” George v. Leavitt,

(D.C. Cir. 2005) (internal quotation marks omitted). This prevents Title VII from

becoming “a general civility code” that regulates “the ordinary tribulations of the workplace.”

Faragher v. City of Boca Raton,

, 787–88 (1998) (internal quotation marks

omitted).

To support her hostile work environment claim, Tumblin alleges that she experienced

“heightened scrutiny of her work, interference with her work by Defendant’s management

personnel, hostile conduct by Defendant’s supervisory employees as well as threats to Plaintiff’s

career with Defendant.” Compl. ¶ 115. Her allegations of “hostile conduct” include incidents

that occurred during two separate time periods. Between 2012 and 2015, supervisor Waddell

treated Tumblin with “hostility” in their “personal interactions,” “regularly and repeatedly

los[ing] her composure in her interactions with [Tumblin,] raising her voice and berating

[Tumblin],” id. ¶ 39; Waddell marking Tumblin’s work as “QA Error” while not using that

10 designation with other employees, id. ¶ 40; Waddell “partially revok[ing]” Tumblin’s access to

the “Audit System,” id. ¶ 41; another supervisor considering removing Tumblin from the unit

because of the negative relationship with Waddell, id. ¶ 43; and another employee using

profanity in the earshot of Tumblin despite Tumblin’s known aversion to profanity, id. ¶ 45. In

2018 and in 2019, Tumblin received a progress review of “successful” overall, id. ¶ 84; her

various requests for special use of work time and time off were denied, id. ¶¶ 88, 91–92, 103;

and her “return rate was manipulated,” as a March 14, 2019 document “included less ‘items

worked’ than a March 7, 2019 document, id. ¶¶ 105–108. See Pl.’s Opp’n at 17–19 (describing

these incidents).

These allegations, taken as true and in the light most favorable to Tumblin, do not

plausibly state a claim for “severe or pervasive” harassment. First, the factual allegations appear

to involve discrete acts. “As a general matter, this jurisdiction frowns on plaintiffs who attempt

to bootstrap their alleged discrete acts of retaliation into a broader hostile work environment

claim.” Baloch, 517 F. Supp. 2d at 364; see also Baird v. Gotbaum,

(D.C.

Cir. 2015) (Baird II) (holding that “intermittent spats . . . spanning eight years and involving

different people doing different things in different contexts” did not establish a hostile work

environment). Indeed, “the constituent acts of a hostile-work-environment claim must be

adequately linked to one another.” Baird II,

. Tumblin’s allegations span seven

years, include distinct time frames, and involve different actors. Compare Compl. ¶¶ 33–54

(describing incidents from 2012 through 2015 involving Nash, Waddell, and Gabriel Ford), with

¶¶ 84–105 (describing separate incidents in 2018 and 2019 with different actors). What is

more, there is no apparent connection between most of these incidents. For example, there is no

indication that the profanity incident, the ongoing tension with Waddell, and the later

11 performance review and requests for time off were in any way “linked to one another.” Baird II,

. “The sheer volume of [Tumblin’s] allegations does not change” this deficiency.

.

Even considered together, these facts do not meet the requisite severity or pervasiveness

to state a claim for a retaliatory hostile work environment. See Morgan,

(noting

that the workplace must be permeated with “discriminatory intimidation, ridicule, and insult”).

The alleged disagreements largely related to issues with Tumblin’s work product, were not

physically threatening, and ultimately consisted of the kinds of “ordinary tribulations of the

workplace” that fall outside the ambit of Title VII. Faragher,

; see, e.g., Compl

¶¶ 40, 84, 105–108. “[C]ourts have been hesitant to find a claim for hostile work environment

when a complaint contains no allegations of discriminatory or retaliatory intimidation, ridicule,

or insult in the plaintiff’s day-to-day work environment and relies instead on incidents of

allegedly discriminatory non-promotions and other performance-based actions.” Outlaw v.

Johnson,

(D.D.C. 2014) (internal quotation marks omitted).

Tumblin does allege that Waddell “regularly and repeatedly lost her composure in her

interactions with [Tumblin,] raising her voice and berating” her. Compl. ¶ 39. But this

allegation alone is insufficient to salvage Tumblin’s hostile work environment claim. For one,

this circuit has explained that “occasional . . . lost tempers” and “workplace disagreements” are

“the kind of conduct courts frequently deem uncognizable under Title VII.” Baird II,

. For another, Tumblin does not allege sufficient factual detail to round out this allegation.

She does not provide, for example, any detail about why, how frequently, or how severely

Waddell berated her. See generally Compl. ¶¶ 38–41. In fact, Tumblin fails to allege any

specific incidents of Waddell raising her voice.

Without further factual allegations, the Court

12 cannot conclude that Waddell’s behavior was anything more than an “occasional . . . lost

temper[]” in “workplace disagreements.” Baird II,

.

Considered separately or together, the allegations in count I do not meet the requisite

severity or pervasiveness to state a hostile work environment claim. See, e.g., Nurriddin v.

Bolden,

, 93–94 (D.D.C. 2009) (plaintiff failed to state a claim for relief

where his claim was based on allegations that management “passed over [the plaintiff] for

performance awards, lowered his performance evaluations, unfairly reprimanded and criticized

him, made disparaging remarks about his EEO complaints, closely scrutinized his work, . . . and

engaged in a series of discussions to end his eligibility for workers’ compensation and to

terminate his employment at NASA, before finally firing him” (internal quotation marks

omitted)); see also Burlington N. & Santa Fe Ry. Co. v. White,

(2006) (holding

that “personality conflicts . . . are not actionable” under Title VII); Brooks v. Grundmann,

, 1277–78 (D.C. Cir. 2014) (“[T]he ordinary tribulations of the workplace, a series of

petty insults, vindictive behavior, and angry recriminations . . . are not actionable under Title

VII.” (internal quotation marks and citation omitted)). Accordingly, the Court declines to

address the defendant’s causation argument, see Mot. to Dismiss at 18-19, and will dismiss count

I of Tumblin’s complaint.

13 CONCLUSION

For the foregoing reasons, the partial motion to dismiss is granted. An order consistent

with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge December 3, 2020

14