UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KEVIN B. HOLSTON,

Plaintiff, v. Civ. Action No. 20-3533 JANET YELLEN, 1 Secretary of (EGS) Treasury,

Defendant.

MEMORANDUM OPINION

Plaintiff Kevin B. Holston (“Mr. Holston”) brings this

lawsuit against Defendant Janet Yellen (“Defendant”), Secretary

of the Treasury, under Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e, et seq., alleging hostile

work environment and retaliation based on race. 2 See generally

Am. Compl., ECF No. 9.

Pending before the Court is Defendant’s Motion to Dismiss,

ECF No. 19-1. Upon careful consideration of the motion,

opposition, reply, the applicable law, and for the reasons

1 Janet Yellen, Secretary of the Treasury, is automatically substituted as Defendant under Federal Rule of Civil Procedure 25(d). 2 In his Opposition briefing in response to Defendant’s Motion to

Dismiss, Mr. Holston withdrew Count I in which he alleged discrimination based on race. See Pl.’s Opp’n, ECF No. 21 at 18. 1 explained below, Defendant’s Motion to Dismiss is GRANTED IN

PART AND DENIED IN PART.

I. Background

A. Factual

The Court assumes the following facts alleged in the

complaint to be true for the purposes of deciding this motion

and construes them in Mr. Holston’s favor. See Baird v. Gotbaum,

, 169 n.2 (D.C. Cir. 2015). Mr. Holston was a

federal employee for 30 years, and for 20 of those years he

served as a Criminal Investigator/Special Agent (“SA”) for the

U.S. Department of the Treasury (“Agency”), Treasury Inspector

General for Tax Administration (“TIGTA”), working for the

Forensic and Digital Science Library (“FDSL”). Am. Compl., ECF

No. 9 ¶ 27. Mr. Holston received (1) “Exceeded” performance

appraisals for 2016, 2017, and 2018; (2) “Individual Cash

Awards” in 2015, 2017 and 2017; (3) “Individual Time-Off Awards

in 2015 and 2018; and (4) letters of recognition from the

President of the United States, TIGTA, the Department of

Justice, and other federal agencies. Id. ¶¶ 28-30.

Mr. Holston’s first line supervisor was Mr. Robert

Lesnevich, his second line supervisor was Mr. Jeffrey Long, and

his third line supervisor was Mr. James Jackson. Id. ¶ 33. All

three are white males. Id. From October 1, 2015 until June 2019,

2 Mr. Holston was the only African American male SA within his

three supervisor’s lines of supervision. Id. ¶ 37.

From October 1, 2016 until September 30, 2017, Mr. Holston

was “repeatedly denied the same training and training

opportunities that his white peers were provided.” Id. ¶ 38. For

example, he was denied specialized computer forensics and other

high-tech training that his peers received or were receiving.

Id. When, as a result of the denial of relevant training, Mr.

Holston received a score of 89%, Mr. Lesnevich counseled him for

failing to achieve a perfect score. Id. ¶ 39. However, the

industry standard does not require a perfect score. Id.

In March 2017, Mr. Holston and a colleague submitted an

email to a Human Resources Assistant, copying Mr. Lesnevich,

regarding Desk Audit Procedures. Id. ¶ 40. Mr. Holston and his

colleague made the inquiry after learning that in March 2016,

two white peers with the same duties and responsibilities as Mr.

Holston and his colleague were promoted to GS-14. Id. As a

result, Mr. Holston and his colleague were the only special

agents within DFS who remained at the GS-13 level. Id. Mr.

Holston and his colleague followed up with Mr. Lesnevich and Mr.

Jackson on May 18, 2017. Id. ¶ 41.

On July 17, 2017, Mr. Holston was having lunch at a

restaurant in Beltsville, Maryland at which Mr. Lesnevich and

Kathleen Farrell, Mr. Lesnevich’s Quality Assurance Manager,

3 were also dining. Id. ¶ 42. After the latter finished their

lunch, Ms. Farrell greeted Mr. Holston and his companions, but

“Mr. Lesnevich walked past [Mr. Holston’s] table without saying

a word and departed the restaurant.” Id. The next day, Mr.

Lesnevich disclosed sensitive, confidential personnel

information about Mr. Holston to Kevin Trebel, a peer and non-

supervisor of Mr. Holston. Id. Thereafter, on or about July 19,

2017, Mr. Lesnevich disclosed information about, among other

things, Mr. Holston’s participation in the Agency’s Health

Improvement Program (“HIP”) and his alleged misuse of his

Government Owned Vehicle (“GOV”) to four TITGA employees, none

of whom had a need to know the information. Id. ¶ 47.

On or about July 24, 2017, Mr. Holston complained about the

disclosures to Mr. Lesnevich’s first-level superior and asked to

be transferred or removed from Mr. Lesnevich’s line of

supervision. Id. ¶ 49. However, the supervisor took no action.

Id.

On or about January 23, 2018, Mr. Holston overheard Mr.

Lesnevich disclosing to two TIGTA employees who had no need to

know, private, sensitive information regarding an email exchange

between he and Mr. Holston in which Mr. Lesnevich threatened to

report Mr. Holston to the Internal Affairs Department (“IAD”)

for alleged violations of the relevant time and attendance

policy and integrity-related policies. Id. ¶ 52. Mr. Holston

4 interrupted the conversation and in a later meeting with Mr.

Lesnevich learned that he had been promoted to a GS-14 position.

Id.

On January 24, 2018, Mr. Holston filed an IAD Complaint

against Mr. Lesnevich based on the July 19, 2017 and January 23,

2018 disclosures, and alleging whistleblower reprisal and a

pattern and practice of racial bias. Id. ¶ 53. Thereafter, on

February 8, 2018, Mr. Lesnevich filed a meritless IAD Complaint

against Mr. Holston, contending that: (1) Mr. Holston misused

his GOV; (2) violated time and attendance policies on or about

January 22, 2018; and (3) engaged in certain improper acts or

omissions. Id. ¶ 55. However, prior to the filing of the IAD

Complaint, and as of February 1, 2018, Mr. Lesnevich had

received an email from TIGTA counsel stating that in her

opinion, Mr. Holston had not violated time and attendance or

travel voucher reimbursement policies. Id. ¶ 57.

On or about January 28, 2018, Mr. Lesnevich threatened to

charge Mr. Holston with AWOL while Mr. Holston was on approved

official government travel. Id. ¶ 50. On January 28, 2018, Mr.

Holston sought and received medical treatment as a result of the

workplace stress he was experiencing. Id. ¶ 51. He was

diagnosed, for the first time in his life, with “physical and

mental train related to work,” palpitations, hypertension, and

abnormal electrocardiogram. Id. at n.8. He continued to receive

5 medical treatment for conditions attributable to the workplace

stress until October 3, 2019. Id.

On or about February 21, 2018, Mr. Holston contacted the

Agency’s EEO counselor. Id. ¶ 4. On May 30, 2018, Mr. Holston

filed a Formal Complaint for Discrimination. Id. ¶ 59.

Thereafter, on July 12, 2018, the Assistant Inspector General

for Investigations (“AIGI”) issued to Mr. Holston a letter of

counseling, which Mr. Holston alleges was meritless. Id. ¶ 59.

On July 12, 2018, the AIGI issued a Letter of Reprimand to

Mr. Lesnevich for the July 19, 2017 disclosure in response to

Mr. Holston’s IAD Complaint. Id. ¶ 58. On the same day, Mr.

Ruben Florez issued to Mr. Holston a meritless letter of

counseling. Id. ¶ 59.

On or about July 25, 2019, Mr. Holston applied for

entitlements and protections under the Family Leave Medical Act

((“FMLA”) “due to the trauma and severe stress caused by the

workplace hostility” and thereafter was prescribed medication

and advised to seek mental/emotional services through employee

assistance. Id. ¶ 60. His request for FMLA protections was

initially denied, but then reversed by TIGTA’s Office of Mission

Support. Id. ¶ 62.

On August 1, 2019, the Agency subjected Mr. Holston to a

meritless internal investigation regarding his 2016 tax return.

Id. ¶ 61.

6 On or about August 12, 2019, Mr. Holston was placed on

“light or limited duty” and his handgun and raid badge were

seized. Id. ¶ 63. Mr. Holston intended to work as SA until his

mandatory retirement age of 57, but was constructively

discharged on December 31, 2019 at 50 years of age. Id. ¶ 68.

B. Procedural

On April 26, 2021, Defendant filed the Motion to Dismiss.

See Mot. to Dismiss, ECF No. 19-1. Mr. Holston filed his

Opposition brief on May 17, 2021, see Opp’n, ECF No. 21; and

Defendant filed the Reply brief on May 27, 2021, see Reply, ECF

No. 22. The motion is ripe and ready for the Court’s

adjudication.

II. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton,

(D.C. Cir. 2002). A

complaint must contain "a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests." Bell Atl. Corp. v. Twombly,

, (2007) (internal quotation marks omitted).

Despite this liberal pleading standard, to survive a motion

to dismiss, a complaint "must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible

7 on its face." Ashcroft v. Iqbal,

, (2009)

(internal quotation marks omitted). A claim is facially

plausible when the facts pled in the complaint allow the court

to "draw the reasonable inference that the defendant is liable

for the misconduct alleged."

The standard does not amount to

a "probability requirement," but it does require more than a

"sheer possibility that a defendant has acted unlawfully."

"[W]hen ruling on a defendant's motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint." Atherton v.

D.C. Office of the Mayor,

(D.C. Cir. 2009)

(internal quotation marks omitted). “In determining whether a

complaint fails to state a claim, [the Court] may consider only

the facts alleged in the complaint, any documents either

attached to or incorporated in the complaint and matters of

which [the Court] may take judicial notice.” EEOC v. St. Francis

Xavier Parochial Schl.,

(D.C. Cir. 1997). In

addition, the court must give 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).

8 III. Analysis

A. Administrative Exhaustion

Before bringing suit under Title VII, an aggrieved party is

required to timely exhaust his administrative remedies. See

Harris v. Gonzales,

(D.C. Cir. 2007);

Washington v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 1998). These exhaustion requirements are not

jurisdictional, but rather operate as a statute of limitations

defense. Artis v. Bernanke,

, 1034 n.4 (D.C. Cir.

2011) (citation omitted). “Because untimely exhaustion of

administrative remedies is an affirmative defense, the defendant

bears the burden of pleading and proving it.” Bowden v. United

States,

(D.C.Cir. 1997) (citation omitted).

The Supreme Court's 2002 decision in National Railroad Passenger Corp. v. Morgan,

,

,

(2002), has led many courts to change how they analyze Title VII's requirement that a plaintiff first exhaust [his] administrative remedies before filing suit. In particular, since Morgan, district judges in this Circuit have split on how to apply this requirement where the plaintiff has alleged discrete acts of retaliation that occurred after the filing of the EEO charge, as Redding does here. See generally Poole v. U.S. Gov't Publ'g Office,

(D.D.C. 2017) (discussing split); Mount, 36 F. Supp. 3d at 84-85 (similar). A majority of the judges who have addressed the issue have held that the plaintiff must separately exhaust each subsequent discrete act of retaliation. See Poole,

; Mount, 36 F. Supp. 3d at 84-85. A minority, however, have

9 held that a plaintiff need not separately exhaust subsequent acts of retaliation that are “like or reasonably related to” the acts of retaliation described in the EEO charge. See Poole,

; Mount, 36 F. Supp. 3d at 85-86.

Redding v. Mattis,

(D.D.C. 2018).

Under the second approach, the analysis “centers on whether the

allegations that were specifically put before the agency and the

new allegations the plaintiff seeks to litigate constitute the

same cause of action and are factually similar such that they

would be discovered during the agency's investigation.” Mount,

36 F. Supp. 3d at 85-86.

1. Mr. Holston’s EEO Activity

Mr. Holston first contacted the Agency’s EEO counselor on

or about February 21, 2018, Am. Compl., ECF No. 9 ¶ 4; and filed

a Formal Complaint of Discrimination (“EEO Complaint”) on or

about May 30, 2018, id. ¶ 7.

In his EEO Complaint, Holston alleges that he was

discriminated against and harassed based on his race when: (1)

his manager treated him differently from his co-workers with

regard to (a) training opportunities, (b) the manner in which a

proficiency exam was scored, (c) scrutiny of his investigative

activities, (d) travel status notification, and (e)

participation in the HIP; (2) his manager discussed with other

managers, and in some instances Mr. Holston’s co-workers, (a)

10 how to target Mr. Holston for disciplinary action, (b) Mr.

Holston’s alleged misuse of the HIP, his government vehicle,

mishandling evidence, abusing time and attendance policies; and

(3) his manager reported him to IAD for alleged misuses detailed

at (2)(b) above. See Individual Complaint of Employment

Discrimination (“EEO Complaint”), Exhibit 2 to Mot. to Dismiss,

ECF No. 19-5 at 3, 5. 3

2. Four of the Hostile Work Environment Claims Were Not Timely Presented to the EEO Counselor

An employee of the federal government who believes he or

she has been subject to discrimination is first required to

“initiate contact” with an EEO counselor within forty-five days

of the allegedly discriminatory action.

(a)(1); see Steele, 535 F.3d at 693. The forty-five day

period begins to run when an employee has a “reasonable

suspicion” of a discriminatory action. Adesalu v. Copps,

(D.D.C. 2009). If the matter is not resolved

informally, the counselor shall inform the employee in writing

of the right to sue, and the employee must file a formal

complaint of discrimination with the agency. See

(d), 1614.106(a)-(c); Bowie v. Ashcroft,

(D.D.C. 2003). The agency must then investigate the

3When citing to electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 11 matter, after which the complainant may demand an immediate

final decision from the agency or a hearing before an EEOC

administrative judge. See

(e)(2),

1614.108(f). A complainant may file a civil action within ninety

days of receiving a final decision from the agency or after a

complaint has been pending before the EEOC for at least 180

days. See 42 U.S.C. § 2000e–16(c);

; Price

v. Bernanke,

(D.C. Cir. 2006).

Defendant argues that four of Mr. Holston’s claims must be

dismissed because they occurred more than 45 days before he

first contacted an EEO counselor on February 21, 2018. Def.’s

Mot., ECF No. 19-1 at 14-15. 4 These claims are: (1) denial of

training requests during the 2015 to 2017 timeframe, see Am.

Compl., ECF No. 9 ¶ 38; (2) the unfairly administered 2017

proficiency exam, see id. ¶ 39; (3) Mr. Lesnevich discussing

with Mr. Holston’s co-workers his alleged misuse of the HIP, see

id. ¶¶ 42, 45-47; and (4) denial of training requests in 2017,

see id. ¶ 38.

Mr. Holston responds that the Agency was on notice of his

EEO concerns as of July 24, 2017, when he raised his concerns

with Mr. Jackson. Pl.’s Opp’n, ECF No. 21 at 17. He also points

to his January 24, 2018 IAD Complaint against Mr. Lesnevich,

4 The Court does not address claims included in the EEO Complaint that are not included in the Amended Complaint. 12 arguing that with this complaint he notified “Agency of the fact

that his claims were ongoing and repeated in nature.” Id. at 18.

Mr. Holston’s response is beside the point.

“[C]ourts may treat otherwise untimely complaints as timely if the employee ‘did not know and reasonably should not have known that the discriminatory matter or personnel action occurred.’” Hairston v. Tapella,

(D.D.C. 2009) (quoting

(a)(2)); see also Adesalu v. Copps,

, 101–02 (D.D.C. 2009) (“if plaintiff ‘knew or should have known’ of the nonpromotion decisions before ... 45 days prior to this initial contact, they are time- barred.” (citation omitted)). This is so because “[a]n overly technical approach would improperly impede the goal of making federal employment free from proscribed discrimination.” Loe v. Heckler,

(D.C. Cir. 1985); accord Hairston,

. However, “[t]he court's equitable power to toll the statute of limitations will be exercised only in extraordinary and carefully circumscribed instances.” Smith–Haynie v. District of Columbia,

, 579–80 (D.C. Cir. 1998) ( Mondy, 845 F.2d at 1058 n.3). It is the burden of the party seeking equitable tolling to prove “reasons that would support ... tolling of the 45-day time limit.”

Vasser v. McDonald,

(D.D.C. 2016). Mr.

Holston makes no argument that equitable tolling is warranted

here. See generally Pl.’s Opp’n, ECF No. 21. Accordingly,

Defendant’s Motion to Dismiss is GRANTED IN PART and the four

claims listed above are DISMISSED.

13 3. Five of the Retaliation Claims Were Not Administratively Exhausted

Mr. Holston states that his actionable retaliation claims

are: (1) Mr. Lesnevich filed a meritless IAD Complaint against

Mr. Holston on February 8, 2018, 15 days after Mr. Holston filed

his IAD Complaint, Am. Compl., ECF No. 9 ¶ 54; (2) the meritless

letter of counseling issued by Mr. Florez on July 12, 2018, id.

¶ 59; (3) the August 1, 2019 Tax Investigation; see id. ¶ 61;

(4) denial of FMLA request on August 8, 2019; id. ¶ 62; (5)

placement on “light duty” seizure of his credentials and firearm

on August 12, 2019, id. ¶¶ 1, 68; and (6) constructive discharge

on December 31, 2019, id. ¶¶ 1, 68.

Defendant argues that Mr. Holston failed to exhaust his

administrative remedies with regard to these claims because he

has not alleged that his EEO Complaint included a retaliation

claim and he neither amended nor supplemented his EEO Complaint

with a retaliation claim. Def.’s Mot. ECF No. 19-1 at 12. Mr.

Holston does not dispute that that his EEO Complaint did not

allege retaliation, nor that he did not amend or supplement his

EEO Complaint. See generally, Pl.’s Opp’n, ECF No. 20. The Court

can review Mr. Holston’s EEO Complaint without converting the

motion to dismiss into one for summary judgment as it is

necessarily incorporated into the complaint. See

14 Xavier Parochial Schl.,

. The EEO Complaint

reflects that Mr. Holston did not check the “retaliation/

reprisal” box. See EEO Complaint, Exhibit 2 to Mot. to Dismiss,

ECF No. 19-5 at 4. Furthermore, the incidents listed do not

include the February 8, 2018 incident, the only alleged

retaliatory incident that occurred prior to the filing of his

EEO Complaint. See generally

Under the majority approach,

therefore, Mr. Holston did not exhaust his retaliation claims.

Mr. Holston, however, argues that the Court should apply

the second approach, arguing that the retaliation claims that

arose after he filed his EEO Complaint are “excused from the

exhaustion requirement” because they “are reasonably related to”

his allegations of hostile work environment. Pl.’s Opp’n, ECF

No. 21 at 18. Under this approach, the analysis “centers on

whether the allegations that were specifically put before the

agency and the new allegations the plaintiff seeks to litigate

constitute the same cause of action and are factually similar

such that they would be discovered during the agency's

investigation.” Mount, 36 F. Supp. 3d at 85-86. “In Payne v.

Salazar,

(D.C. Cir. 2010), the D.C. Circuit

concluded that the ‘like or reasonably related’ test (assuming,

without deciding, that it remained good law) ‘necessarily’ did

not encompass acts of retaliation occurring after end of the

administrative investigation, because the investigation could

15 not have uncovered them.” Redding,

(quoting Payne,

.).

Here, the Agency’s investigation of Mr. Holston’s EEO

complaint concluded on November 14, 2018. Am. Compl., ECF No. 9

¶ 9. Four of the alleged retaliatory acts occurred after the

conclusion of the Agency’s investigation: (1) the August 1, 2019

tax investigation; (2) the August 8, 2019 denial of FMLA leave;

(3) the August 12, 2019 placement of Mr. Holston on light duty

and seizure of his raid badge and handgun; and (4) the December

31, 2019 constructive discharge. Mr. Holston claims that all of

his retaliation claims “grow out of the claims asserted in the

administrative complaint and likely would have come within the

scope of any investigation that reasonable could have been

expected to result from the investigation.” Pl.’s Opp’n, ECF No.

21 at 20. However, he does not explain how this could be since

the investigation concluded before those incidents occurred.

Accordingly, the Court concludes that Mr. Holston failed to

exhaust his administrative remedies as to these four retaliation

claims.

This leaves two incidents—the February 8, 2018 incident,

see

Am. Compl., ECF No. 9 ¶¶ 54-58; and the July 12, 2018

incident, see id. ¶ 83. Mr. Holston points to his January 24,

2018 IAD Complaint against Mr. Lesnevich in which he alleged a

“pattern and practice of racial bias,” Pl.’s Opp’n, ECF No. 21

16 at 18 (quoting Am. Compl., ECF No. 9 ¶ 53; arguing that “[b]y

using ‘pattern and practice’ language and reiterating his prior

discrimination complaint, [Mr. Holston] duly notified the Agency

of the fact that his claims were ongoing and repeated in

nature,” id. This argument is beside the point, however, because

the Court’s analysis “centers on whether the allegations that

were specifically put before the agency [in the EEO Complaint]

and the new allegations the plaintiff seeks to litigate

constitute the same cause of action and are factually similar

such that they would be discovered during the agency's

investigation.” Mount, 36 F. Supp. 3d at 85-86 (emphasis added).

The first allegation is that on February 8, 2018, Mr.

Lesnevich filed an IAD Complaint against Mr. Holston, contending

that: (1) Mr. Holston misused his GOV; (2) violated time and

attendance policies on or about January 22, 2018; and (3)

engaged in certain improper acts or omissions. Am. Compl. ¶ 55.

This is in part the same allegation as in paragraph six of Mr.

Holston’s EEO Complaint and so necessarily would have been part

of the investigation. See EEO Complaint, Exhibit 2 to Mot. to

Dismiss, ECF No. 19-5 at 3, 5. The second allegation is that on

July 12, 2018, the Assistant Inspector General for

Investigations issued to Mr. Holston a letter of counseling,

which Mr. Holston alleges was meritless. Am. Compl., ECF No. 9 ¶

59. The EEO Complaint is devoid of any allegations regarding

17 actions taken by the Inspector General for Investigations. See

generally EEO Complain, Exhibit 2 to Mot. to Dismiss, ECF No.

19-5. Accordingly, this allegation would not have been

discovered during the Agency’s investigation.

For the reasons explained above, Defendant’s Motion to

Dismiss is GRANTED IN PART AND DENIED IN PART as to Mr.

Holston’s retaliation claims. Mr. Holston’s claim that he was

retaliated against when Mr. Lesnevich filed an IAD Complaint on

February 8, 2018 was administratively exhausted. Mr. Holston’s

other retaliation claims are DISMISSED.

4. One of the Discrimination/Hostile Work Environment Claims Was Not Administratively Exhausted

Defendant argues that two of Mr. Holston’s discrimination/

hostile work environment claims were not administratively

exhausted because they were not included in the EEO Complaint

and are not like or reasonably related to the claims presented

there. Def.’s Mot., ECF No. 19-1 at 13. The claims are: (1) the

March 6, 2017 inquiry regarding desk audit procedures after

learning that two of Mr. Holston’s white peers were promoted to

GS-14, leaving Mr. Holston at the GS-13 level, see Am. Compl.,

ECF No. 9 ¶¶ 40-21; and (2) during the 2017-2018 timeframe, Mr.

Lesnevich engaging in pattern and practice of disclosing to

Agency employees private, sensitive personnel and other

confidential information about Mr. Holston, see id. ¶¶ 43-44.

18 Again, the Court’s analysis “centers on whether the

allegations that were specifically put before the agency and the

new allegations the plaintiff seeks to litigate constitute the

same cause of action and are factually similar such that they

would be discovered during the agency's investigation.” Mount,

36 F. Supp. 3d at 85-86. The Court is persuaded that the

allegation about discriminatory non-promotion is “too different

in kind” from the allegations in the EEO Complaint to have been

discovered during the Agency’s investigation because there is no

allegation regarding Mr. Holston being treated differently based

on non-promotion. Redding, 327 F. Supp. 3d at 140. However, the

allegation about Mr. Lesnevich’s pattern and practice of

disclosing private, sensitive, personnel and other confidential

information about Mr. Holston to other Agency employees is

factually similar to the allegations involving Mr. Lesnevich

discussing Mr. Holston with other managers and Mr. Holston’s co-

workers. EEO Complaint, Exhibit 2 to Mot. to Dismiss, ECF No.

19-5 at 5. The Court therefore concludes that the allegation

would have been discovered during the Agency’s investigation.

Accordingly, Defendant’s Motion to Dismiss is GRANTED IN PART

AND DENIED IN PART and the first claim discussed above is

DISMISSED.

19 B. Mr. Holston Conceded That He Failed to Plead Adverse Action For His Remaining Retaliation Claim

Mr. Holston’s remaining retaliation claim is based on Mr.

Lesnevich filing an IAD Complaint against him on February 8,

2018. Am. Compl., ECF No. 9 ¶ 54. Defendant argues that Mr.

Holston failed to adequately allege facts such that this could

be considered an adverse employment action. Def.’s Mot., ECF No.

19-1 at 9-14; Reply, ECF No. 22 at 11, 12. Mr. Holston failed to

respond to this argument in his opposition briefing, incorrectly

stating that Defendant’s only challenge to the retaliation claim

was on exhaustion grounds. See Pl.’s Opp’n, ECF No. 21 at 25.

Accordingly, the Court treats this argument as conceded. Mjema

v. United States,

, 93 n.2 (D.D.C. 2012)

(citing Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries,

(D.D.C. 2002)); Ali v. D.C. Ct. Servs.,

(D.D.C. 2008).

20 C. Mr. Holston Alleges Sufficient Facts to Support a Hostile Work Environment Claim 5

To state a claim under Title VII based on a hostile work

environment, a plaintiff must allege facts establishing that his

“workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the [plaintiff's] employment and create

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

,

,

(1993)

(citations and internal quotation marks omitted). He must

therefore establish that “(1) he ... is a member of a protected

class; (2) he ... was subjected to unwelcome harassment; (3)

the harassment occurred because of the plaintiff's protected

status; (4) the harassment was severe to a degree which

affected a term, condition, or privilege of employment; and

(5) the employer knew or should have known about the

harassment, but nonetheless failed to take steps to prevent

it.” Peters v. Dist. of Columbia,

, 189

5 Mr. Holston argues that his allegations support his “remedial hostile-environment constructive discharge claim,” Pl.’s Opp’n, ECF No. 21 at 27-28; as well as a retaliatory hostile work environment claim, see id. at 28-30. However, and as Defendant points out, Mr. Holston’s Amended Complaint does not allege either claim. See generally Am. Compl., ECF No. 9. Accordingly, the Court need not address Mr. Holston’s arguments. See Middlebrooks v. Godwin Corp.,

, 87 n.4 (D.D.C. 2010)(noting that a “plaintiff may not amend [its] complaint by the briefs in opposition to a motion to dismiss”).

21 (D.D.C. 2012). In evaluating these factors, the “court looks 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 v. Kempthorne,

(D.C. Cir.

2008).

This standard is a demanding one, as Title VII is

not intended to function as a “general civility code” that

regulates the “ordinary tribulations of the workplace, such as

the sporadic use of abusive language, gender-related jokes,

and occasional teasing.” Faragher v. City of Boca Raton,

,

,

(1998).

“Although a plaintiff need not plead a prima facie case of

hostile work environment in the complaint, the alleged facts

must support such a claim.” McKeithan v. Boarman,

(D.D.C. 2011) (citation and internal quotation marks

omitted).

Mr. Holston argues that he has stated a claim for hostile

work environment because: (1) as an African American, he is a

member of a protected class; (2) the harassment was unwelcome

because he complained about it on at least four occasions; (3)

he was the only African American male within Mr. Lesnevich’s

line of supervision and the only employee experiencing

22 harassment; and (4) the harassment consisted of: 6 (a) Mr.

Lesnevich’s Privacy Act violation and his disclosure to Mr.

Holston’s peer alleged improper acts by Mr. Holston, (b)

threatening to report Mr. Holston to IAD after the July 17, 2017

restaurant incident, (c) Mr. Lesnevich’s disclosure of improper

personnel information, (d) the Agency’s denial of Mr. Holston’s

request for voluntary transfer, (e) unfounded threat to report

Mr. Holston AWOL, (f) Mr. Lesnevich discussing with other

managers how to target Mr. Holston for disciplinary action on

January 23, 2018, (g) disregarding Mr. Holston’s IAD complaint,

and (h) Mr. Lesnevich’s filing of a meritless IAD Complaint

against Mr. Holston. Pl.’s Opp’n, ECF No. 21 at 25-26. Mr.

Holston further argues that he has alleged sufficient facts to

establish that his employer was on notice and failed to take

steps to address the harassment. See id. at 27. Finally, Mr.

Holston argues that as a result of the abusive working

environment, he was compelled to obtain medical treatment and

miss time from work. See id.

Defendant disputes that Mr. Holston has stated a claim for

hostile work environment, arguing that: (1) the alleged acts

were not sufficiently severe or abusive enough to constitute a

6 The Court excludes from this list the claims the Court has dismissed on exhaustion grounds. See supra section III.A.1, 2, 3. 23 hostile work environment; and (2) his allegations are

insufficient to plead that any abuse was because of his race.

Defendant posits that that the allegations “consist of

discrete instances of alleged discrimination or retaliation,”

Williams v. District of Columbia,

, 202 (D.D.C.

2018); arguing that courts in this Circuit “are reluctant to

transform mere reference to alleged disparate acts of

discrimination against plaintiff into a hostile work environment

claim,” Reply, ECF No. 22 at 8 (quoting Williams, 317 F. Supp.

at 202). Defendant further argues that “the facts alleged are

not ‘sufficient to show that those decisions were part of a

severe and pervasive patterns of harassment.’” Id. (quoting

Outlaw v. Johnson,

(D.D.C. 2014).

To support this claim, Mr. Holston relies on the same

allegation that he relied on for his now-dismissed

discrimination claim. While courts in this Circuit are reluctant

to bootstrap discrete acts into a hostile work environment

claims, they have permitted a plaintiff to do so when the

“discrete acts that the plaintiff claims .... are actionable on

their own,” are “sufficient to show that those decisions were

part of a severe and pervasive pattern of harassment.” Outlaw v.

Johnson,

(D.D.C. 2014). The Court is

persuaded that Mr. Holston has adequately alleged a hostile work

environment claim here.

24 Taking the allegations described above to be true,

construing them in his favor, and making all inferences in his

favor, as the Court must at this juncture, Mr. Holston has

alleged that after coming under Mr. Lesnevich’s management, he

went from being a long-term, valued federal employee who was the

recipient of numerous honors and awards, to being subjected to

harassment in a variety of ways after Mr. Lesnevich became his

supervisor. The harassment resulted in Mr. Holston needing

medical care and medication after being diagnosed for the first

time in his life, with “physical and mental train related to

work,” palpitations, hypertension, and abnormal

electrocardiogram, and his ultimate retirement seven years

earlier than he had planned. Accordingly, the Court is persuaded

that Mr. Holston has sufficiently alleged facts that “were part

of a severe and pervasive pattern of harassment” and that he has

therefore stated a claim for hostile work environment. 7 Cf. Doe 1

v. George Washington University,

(D.D.C. 2019) (denying motion to dismiss hostile work

environment claim); Bergbauer v. Mabus,

(D.D.C. 2011)(denying motion to dismiss hostile work environment

claim).

7 For these reasons, the Court is unpersuaded by Defendant’s arguments that the allegations are conclusory and are not adequately connected into a coherent claim. 25 Mr. Holston’s allegations are distinguishable from the

cases upon which Defendant relies. In Williams, the plaintiff

alleged that “denying him the opportunity to negotiate for his

pay; mishandling his paperwork; requiring him to re-apply for

the position he was hired for; terminating any interviews he had

for that position; and subsequently terminating his employment”

which the Court found insufficient to create a hostile work

environment. Williams, 317 F. Supp. at 202. These allegations

are entirely distinguishable from the “severe and pervasive

pattern of harassment” Mr. Holston alleges. Similarly, in

Stewart v. Evans,

(D.C. Cir. 2002) the Court of

Appeals for the District of Columbia Circuit affirmed the

district court’s denial of hostile work environment claim that

was based on a single incident. Stewart,

.

Here, Mr. Holston alleges numerous incidents. Finally, in Horsey

v. U.S. Dep’t of State,

(D.D.C. 2019), the

plaintiff alleged a hostile work environment based on, among

other things: (1) violation of certain rights; (2) requiring him

but not his white counterparts to undergo an evaluation; and (3)

subjecting him to emails, phone calls, and letters, threatening

[his] employment.”

. The court found these

allegations to be insufficient because the plaintiff’s pleading

did not “describe the volume, nature, or content of the alleged

‘emails, phone calls, and letters’ that [plaintiff] allegedly

26 received.”

Here, Mr. Holston has provided detailed

allegations supporting his hostile work environment claim.

With regard to whether Mr. Holston has sufficiently alleged

that he was subject to abusive treatment because of his race,

Mr. Holston argues that because he “was the only employee

subjected to such treatment and the only African American male

within the employ of the [relevant managers]—all of whom are

white—th[e] Court can reasonable infer that the harassment

occurred because of [Mr. Holston’s] race.” Pl.’s Opp’n, ECF No.

21 at 26-27. Defendant argues that Mr. Holston’s conclusory

allegation is insufficient. Def.’s Mot., ECF No. 22 at 10.

However, the authority upon which Defendant relies is

inapposite. In Massaquoi v. District of Columbia,

(D.D.C. 2015), the Court concluded that the plaintiff was not

entitled to an inference of discrimination based on disparate

treatment because there were no allegations that the plaintiff

was treated differently than similarly situated employees who

not of the same national origin, gender or religion. Massaquoi,

. Here, Mr. Holston has alleged that he was

treated differently from his white peers. See e.g., Am. Compl.,

ECF No. 9 ¶¶ 42, 56, 72. Accordingly, he has sufficiently

alleged that he was subject to abusive treatment because of his

race.

27 For these reasons, Defendant’s Motion to Dismiss as to the

hostile work environment claim is DENIED.

IV. Conclusion

For the reasons explained above, Defendant’s Motion to

Dismiss, ECF No. 19-1, is GRANTED IN PART AND DENIED IN PART. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 20, 2022

28