UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LEOPOLD R. BRANDENBURG SR.,

Plaintiff, Civil Action No. 22-2120 (BAH) v. Judge Beryl A. Howell ANTONY J. BLINKEN, U.S. Sec’y of State,

Defendant.

MEMORANDUM OPINION

Plaintiff Leopold Brandenburg brings this action against his former employer, the head of

the Department of State (“DOS”) in his official capacity, claiming that he was wrongfully

terminated in 2013 and that he was improperly denied an overpayment waiver, which would

have freed him of the obligation to repay the one year of excess salary he erroneously received

following that termination. Defendant has moved to dismiss all of plaintiff’s claims, Def.’s Mot.

to Dismiss (“Def.’s Mot.”), ECF No. 47, on the grounds that subject matter jurisdiction over a

portion of plaintiff’s challenges is lacking, and that plaintiff otherwise fails to state plausible

claims to relief. For the reasons explained below, defendant’s motion is granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

Summarized below is the relevant factual background, followed by the procedural history

leading to the pending motion. 1

1 While matters “outside the pleadings” generally may not be considered without converting the motion to dismiss to one for summary judgment, see FED. R. CIV. P. 12(d), a court deciding a motion to dismiss may, without triggering the conversion rule, consider “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

(2007); see also English v. District of Columbia,

(D.C. Cir. 2013). In this case, plaintiff’s complaint stems from and references his previous administrative proceedings before the Equal Employment Opportunity Commission (“EEOC”), and the documents associated with that administrative record are therefore considered as

1 Plaintiff was a federal employee of the Social Security Administration (“SSA”) when, in

2010, he was selected for a “Limited Non-career Appointment” to the U.S. Embassy in Mexico

City as a Regional Federal Benefits Officer, in which capacity he was paid by the Department of

State (“DOS”). Pl.’s Complaint (“Compl.”) at 4, ECF No. 1; Compl., Ex. 2, EEOC Decision On

Request for Reconsideration (“EEOC Reconsideration Dec.”) at 1, ECF No. 1-2. Plaintiff

remained in that new role for nearly three years, but alleges that he “was unjustly and

prematurely separated from [that] position” on August 3, 2013 “and returned to the United

States,” at which point he was transferred back to the SSA. Compl. at 4; EEOC Reconsideration

Dec. at 1.

Unhappy with the timing of that transfer and believing he should have remained in his

Embassy role for at least another year, plaintiff filed an equal employment opportunity (“EEO”)

complaint against the SSA, alleging that the separation and transfer amounted to harassment,

retaliation, and discrimination on the basis of national origin, in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”). See Def.’s Mot., Ex. 1, Formal EEO Complaint of

Discrimination Against SSA (Dec. 2, 2013) (“2013 SSA EEO Complaint”) at 2, ECF No. 47-1;

Elliot J. v. Soc. Sec. Admin., EEOC Appeal No. 0120160437,

, at *1 (Feb. 22,

2018). He received a Final Agency Decision (“FAD”) denying his claims on June 19, 2015, but

did not appeal to the Equal Employment Opportunity Commission (“EEOC”) until October 29,

2015, resulting in the dismissal of that appeal as untimely filed after the July 20, 2015 deadline.

See Elliot J., EEOC Appeal No. 0120160437,

, at *1.

relevant factual background without converting the instant motion into a motion for summary judgment. See Hinton v. Corrections Corp. of Am.,

(D.D.C. 2009) (noting that this principle applies whether the relevant documents are “attached as exhibits to the complaint” or are “documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss” (citations and internal quotation marks omitted)).

2 Meanwhile, for one year following plaintiff’s transfer back to the United States, until

August 2014, plaintiff received both his SSA salary and a salary from DOS as if he had remained

in the Embassy position, resulting in a total “overpayment” of over $103,000. Compl. at 4;

Def.’s Mot., Ex. 4, Final Agency Decision (“FAD”) at 9, ECF No. 47-1. 2

Several months later, DOS attempted to correct this error. Plaintiff was formally notified

of the salary overpayment in 2015. FAD at 9. Plaintiff then sought a waiver from his obligation

to pay back that unearned salary,

which an authorized official “may” grant, in whole or in

part, though that discretion is curtailed under certain circumstances, see

(a), (b).

DOS denied the waiver request on March 28, 2019, explaining that “a waiver may not be granted

if there exists in connection with the claim an indication of fraud, misrepresentation, fault or lack

of good faith on the part of the employee,” and that fault was present in this case because “it is

the responsibility of the employee to verify the accuracy and correctness of the Earnings and

Leave Statements and to report any errors in a timely manner,” which plaintiff had not done.

FAD at 5, 10; see also

(b)(1) (“The authorized official . . . may not exercise his

authority under this section to waive any claim if, in his opinion, there exists, in connection with

the claim, an indication of . . . fault . . . on the part of the employee.”). DOS did, however,

approve plaintiff’s request to be put on a repayment plan, allowing him to repay the money at a

1% interest rate over a period of over four years. Def.’s Mot., Ex. 3, Nicole Rothschild Letter

Dated May 13, 2019 & Signed Payment Plan Agreement, ECF 47-1.

2 The cause of this overpayment remains murky, but appears to be merely an administrative error. Plaintiff alleges that the overpayment was meant as an off-the-books settlement for his prior EEO claims regarding his separation from DOS, Compl. at 4, but offers no support for that assertion, which also finds no basis in the administrative record attached to the Complaint and briefing. At the same time—and inconsistent with the theory that the parties understood the overpayment to be a form of intentional compensation at the time—plaintiff also asserts that he alerted DOS to the overpayment.

As such, plaintiff’s speculations as to DOS’s motives for the overpayment cannot be credited. See Browning v. Clinton,

(D.C. Cir. 2002) (explaining that the court need not accept inferences drawn by the plaintiff where those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions).

3 Plaintiff sought to challenge DOS’s denial of the overpayment waiver through

administrative channels. To this end, plaintiff timely contacted an EEO Counselor on April 16,

2019, and subsequently filed another formal EEO complaint, this time against DOS, claiming the

denial amounted to unlawful retaliation for his prior EEO complaint against SSA. FAD at 1–3.

On January 22, 2020, DOS issued a Final Agency Decision, rejecting the retaliation claim on the

basis that plaintiff had not “provide[d] evidence of a nexus between his EEO activity” and the

waiver denial five years later. Id. at 13. The EEOC’s Office of Federal Operations affirmed, see

Def.’s Mot., Ex. 2, EEOC Decision (“EEOC Dec.”) at 6, ECF No. 47-1, and subsequently denied

plaintiff’s request for reconsideration on November 29, 2021, see EEOC Reconsideration Dec. at

2–3.

Finally, plaintiff turned to federal court. He initiated the instant suit by filing a pro se

form complaint in the Southern District of Florida, where he currently resides. See Compl. By

plaintiff’s own description, the “case presents two claims”: one challenging the denial of the

overpayment waiver, and another for “unjustified termination of employment, harassment, [and]

retaliation,” based on his 2013 separation from DOS. Meet & Confer Stmt. at 1–2, ECF No. 45.

Plaintiff seeks relief from his obligation to repay the $103,000 in overpayment alongside

“damages in an amount equal to the overpaid salaries.” Compl. at 5. Defendant moved to

dismiss the Florida action for improper venue and lack of subject matter jurisdiction or, in the

alternative, for transfer of venue. See Def.’s Mot. to Dismiss or to Change Venue at 1, ECF No.

24. The latter motion was granted, and on July 20, 2022, the action was transferred to this Court.

See Order (July 15, 2022) at 3, ECF No. 30; Not. of Transfer, ECF No. 31.

Defendant has once again moved to dismiss, both for lack of subject matter jurisdiction

and for failure to state a claim for which relief can be granted, see Def.’s Mot. at 1, which motion

4 is now ripe for resolution, see Def.’s Reply in Supp. Mot. to Dismiss (“Def.’s Reply”), ECF No.

50.

II. APPLICABLE LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

To survive a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of

demonstrating the court's subject matter jurisdiction over the claims asserted. Arpaio v. Obama,

(D.C. Cir. 2015). “‘Federal courts are courts of limited jurisdiction,’ possessing

‘only that power authorized by Constitution and statute.’” Gunn v. Minton,

(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994)). Indeed,

federal courts are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC,

(D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider

whether the constitutional and statutory authority exist for us to hear each dispute,’” James

Madison Ltd. ex rel. Hecht v. Ludwig,

(D.C. Cir. 1996) (quoting Herbert v.

Nat’l Acad. of Scis.,

(D.C. Cir. 1992)). Absent subject matter jurisdiction

over a case, the court must dismiss it. Arbaugh v. Y & H Corp.,

, 506–07 (2006);

FED. R. CIV. P. 12(h)(3) (requiring dismissal of action “at any time” the court determines it lacks

subject matter jurisdiction).

When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true

all uncontroverted material factual allegations contained in the complaint and “‘construe the

complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the

facts alleged’ . . . and upon such facts determine jurisdictional questions.” Am. Nat’l Ins. Co. v.

FDIC,

(D.C. Cir. 2011) (quoting Thomas v. Principi,

(D.C. Cir. 2005)). The court need not accept inferences drawn by the plaintiff, however, if those

5 inferences are unsupported by facts alleged in the complaint or amount merely to legal

conclusions. See Browning v. Clinton,

(D.C. Cir. 2002). Moreover, in

evaluating subject matter jurisdiction, the court “may consider materials outside the pleadings.”

Am. Freedom Law Ctr. v. Obama,

(D.C. Cir. 2016); Settles v. U.S. Parole

Comm’n,

(D.C. Cir. 2005); Herbert,

(in disposing of

motion to dismiss for lack of subject matter jurisdiction, “where necessary, the court may

consider the complaint supplemented by undisputed facts evidenced in the record, or the

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”).

B. Federal Rule of Civil Procedure 12(b)(6)

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “[a]

plaintiff need not make ‘detailed factual allegations,’” but the “complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” VoteVets

Action Fund v. United States Dep’t of Veterans Affs.,

(D.C. Cir. 2021)

(quoting Ashcroft v. Iqbal,

(2009)). A facially plausible claim pleads facts

that are not “‘merely consistent with’ a defendant’s liability” but that “allow[] the court to draw

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

(quoting Bell Atl. Corp. v. Twombly,

, 556–57 (2007)); see also Rudder v.

Williams,

(D.C. Cir. 2012). Consequently, “a complaint survives a motion to

dismiss even ‘[i]f there are two alternative explanations, one advanced by [the] defendant and the

other advanced by [the] plaintiff, both of which are plausible.’” VoteVets Action Fund,

(quoting Banneker Ventures, LLC v. Graham,

(D.C. Cir. 2015))

(alteration in original).

6 In deciding a motion under Rule 12(b)(6), the court must consider the whole complaint,

accepting all factual allegations as true, “even if doubtful in fact.” Twombly,

;

see also Atchley v. AstraZeneca UK Ltd.,

(D.C. Cir. 2022). Courts do not,

however, “assume the truth of legal conclusions, nor do [they] ‘accept inferences that are

unsupported by the facts set out in the complaint.’” Arpaio,

(citation omitted)

(quoting Islamic Am. Relief Agency v. Gonzales,

(D.C. Cir. 2007)).

III. DISCUSSION

Plaintiff’s complaint challenges both his 2013 separation from DOS and the denial of his

overpayment waiver in 2019. Each claim, however construed, presents separate legal obstacles

fatal to plaintiff’s suit. As to the former, plaintiff’s claim fails for lack of exhaustion of

administrative remedies, and therefore must be dismissed under Rule 12(b)(6). While plaintiff

properly exhausted his remedies as to the latter claim, his challenge to the 2019 denial of his

requested relief to waive repayment of his overpayment must nonetheless be dismissed on other

grounds. To the extent plaintiff’s complaint frames his challenge to the denial of the

overpayment waiver as a claim under the Administrative Procedure Act (“APA”), it must be

dismissed under Rule 12(b)(1) for lack of jurisdiction and for failure to state a claim under Rule

12(b)(6). If, in addition or in the alternative, plaintiff frames this challenge as a retaliation claim

under Title VII, his allegations are insufficient to state a claim upon which relief can be granted,

necessitating dismissal under Rule 12(b)(6). These issues are addressed in turn.

A. Plaintiff’s Wrongful Termination Claim Must Be Dismissed for Failure to Exhaust Administrative Remedies

1. Exhaustion Requirement Generally

“Before a federal employee can file suit against a federal agency for violation of Title

VII, the employee must run a gauntlet of agency procedures and deadlines to administratively

7 exhaust his . . . claims.” Crawford v. Duke,

(D.C. Cir. 2017); see also 42

U.S.C. § 2000e-16(c). The 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) (cleaned up), and “ensure[s]

that the federal courts are burdened only when reasonably necessary,” Brown v. Marsh,

(D.C. Cir. 1985). The EEOC has issued detailed procedures to govern the administrative

resolution of employment discrimination claims against federal agencies under Title VII. See 42

U.S.C. § 2000e-16(b);

. As relevant here, these procedures require that a

federal employee who believes he has been “discriminated against . . . must initiate contact with

[the agency’s EEO c]ounselor within 45 days of the date of the matter alleged to be

discriminatory or, in the case of personnel action, within 45 days of the effective date of the

action.”

(a)(1). Further, the regulations provide that, when an individual

properly initiates and pursues a complaint, any appeal from a FAD must be “filed within 30 days

of receipt” of that decision,

§ 1614.402(a), and that “[i]f an appellant does not file an appeal

within the time limits of this subpart, the appeal shall be dismissed by the [EEOC] as untimely,”

id. § 1614.403(c). Finally, any civil action in federal court based on claims to relief under Title

VII must be filed “[w]ithin 90 days of receipt of the [EEOC]’s final decision on an appeal.” Id.

§ 1614.407(c).

Exhaustion inquiries focus on each discrete discriminatory act that is alleged by an

employee. Nat’l R.R. Passenger Corp. v. Morgan,

, 110–11 (2002). “[D]iscrete

discriminatory acts are not actionable if time barred, even when they are related to acts alleged in

timely filed [administrative] charges.”

. Thus, a Title VII complainant “‘must timely

exhaust administrative remedies for each discrete act alleged[,]’ even if the acts are related.”

8 Mount v. Johnson,

(D.D.C. 2014) (Jackson, K.B., J.) (quoting Laughlin v.

Holder,

(D.D.C. 2013)) (emphasis in original).

2. Plaintiff Failed Timely to Exhaust Claims Based on His 2013 Separation from the Department of State.

Besides challenging the overpayment waiver determination, plaintiff’s Complaint

purports to challenge his “unjust[] and premature[] separate[ion] from his position” with DOS in

2013. Compl. at 4. Yet, in light of the rigorous procedural steps and timelines applicable to

Title VII claims, none of plaintiff’s claims regarding that 2013 employment action have been

exhausted.

First, while the record indicates that plaintiff pursued an EEO complaint beginning in late

2013, that complaint concerned SSA alone, not DOS. See 2013 SSA EEO Complaint at 1–2.

Nothing in the record indicates that plaintiff ever contacted an EEO counselor at DOS within 45

days of his separation in 2013. Plaintiff argues that this complaint should nonetheless be

considered as having been brought against DOS as well as SSA, because, on the merits, that

complaint concerned his treatment while working under DOS supervision at the Embassy. See

Pl.’s Opp’n Def.’s Mot. Dismiss (“Pl.’s Opp’n”) at 11–12. As an initial matter, this still does

nothing to establish whether plaintiff ever timely contacted a DOS EEO counselor, and it

introduces two further exhaustion problems. For one, even if plaintiff’s SSA complaint were

relevant, he did not timely pursue his appeal to the EEOC within 30 days of the receipt of the

relevant FAD, and his claims were therefore dismissed, pursuant to

(c).

See Elliot J., EEOC Appeal No. 0120160437,

, at *1. For another, plaintiff

did not initiate this civil suit until 2022, nearly four years after his 90-day deadline to file suit

following the EEOC decision on appeal, which was dated February 22, 2018. See

at *1–2.

9 Defendant is therefore correct that, to the extent plaintiff’s complaint challenges his

allegedly wrongful separation from DOS in 2013, those challenges must be dismissed under Rule

12(b)(6) as improperly exhausted.

B. Plaintiff’s Challenge to the Department of State’s Denial of his Debt Waiver Fails to State a Claim for Either Unlawful Agency Action Under the Administrative Procedure Act or Retaliation Under Title VII.

The only remaining claims, then, are based on plaintiff’s challenge to DOS’s

determination that plaintiff must repay his salary overpayment. As narrated supra in Part I,

plaintiff timely challenged that determination before the EEOC, culminating in its November 29,

2021 denial of his request for reconsideration, after which he brought the instant suit within the

required 90-day window. These claims, therefore, are properly exhausted.

Although plaintiff’s claims based on the denial of the debt waiver are indisputably

exhausted, the precise nature of those claims in the instant suit is less clear. Plaintiff cites

,

,

, and

as the bases for his

suit. Compl. at 3. For plaintiff to maintain an action against the United States in federal court, a

statute must confer subject matter jurisdiction on the district court, and the United States must

waive sovereign immunity as to the cause of action. See Floyd v. Dist. of Columbia,

, 155–56 (D.C. Cir. 1997) (citing United States v. Nordic Village, Inc.,

(1992)). Plaintiff’s cited statutory and regulatory bases do not satisfy both these prerequisites, so

some guesswork is required. For example,

grants subject matter jurisdiction to

the extent plaintiff’s suit presents a federal question, but does not itself waive sovereign

immunity. Meanwhile,

, which is further explicated by its implementing

regulations under

, only addresses an agency official’s power to waive claims

against an agency employee, and neither confers jurisdiction on a district court to oversee that

10 decision nor addresses sovereign immunity. See, e.g., Woodruff v. Dep’t of Transp.,

, 11–12 (D.D.C. 2006). Finally,

, as explained supra in Part III.A.1,

contains the regulations setting out the procedural requirements governing EEOC actions, but

does not amount to a statutory grant of subject matter jurisdiction or a waiver of sovereign

immunity.

Nevertheless, where, as here, a plaintiff is proceeding pro se, the complaint “is to be

liberally construed,” Abdelfattah v. U.S. Dep’t of Homeland Sec.,

(D.C. Cir.

2015) (quoting Erickson v. Pardus,

(2007)), and the Court therefore may

appropriately consider other viable causes of action that may fit plaintiff’s allegations, see, e.g.,

Alridge v. Rite Aid of Washington, D.C., Inc.,

, 247–48 (D.D.C. 2015). Very

liberally construed, plaintiff’s complaint may be read as attempting to state a claim under (1) the

APA, 5. U.S.C. § 700, et seq., challenging DOS’s action of denying the overpayment waiver,

pursuant to

and its implementing regulations, and (2) Title VII, 42 U.S.C.

§ 2000e, et seq., challenging the denial as unlawful retaliation for his prior EEO claims regarding

his “unjustified separation” in 2013. See Compl. at 4. Under either possible framing, however,

plaintiff fails to state a claim upon which relief could be granted, requiring dismissal of this

lawsuit.

1. Any APA Claim Must Be Dismissed Under Rule 12(b)(1) and Rule 12(b)(6).

The APA allows plaintiff to challenge in federal court a final agency action as “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.”

(2)(a). Given that plaintiff’s Complaint requests vacatur of DOS’s waiver determination,

see Compl. at 5 (“Plaintiff is seeking relief from repayment of the $103,000 salary

11 overpayment”), one of his claims plausibly amounts to a challenge to that determination under

the APA.

The statute does not, however, allow for a claim for money damages. See

(waiving sovereign immunity only for claims “seeking relief other than money damages”).

Thus, insofar as a monetary component is part of the relief sought in plaintiff’s APA challenge,

his claims for additional money damages are dismissed under Rule 12(b)(1).

To the extent plaintiff seeks relief from the denial itself, plaintiff has not plausibly

alleged that this agency action was “arbitrary, capricious, [or] an abuse of discretion,”

necessitating dismissal of the remainder of the claim under Rule 12(b)(6). Denials of debt

waivers are governed by

, which provides that an authorized official

“may . . . waive[] in whole or in part” “[a] claim of the United States against a person arising out

of an erroneous payment of pay” when its collection “would be against equity and good

conscience and not in the best interests of the United States.”

§ 5584(a). The authorized

official is required to deny a waiver request under several enumerated circumstances, including

when “in his opinion, there exists, in connection with the claim, an indication of fraud,

misrepresentation, fault, or lack of good faith on the part of the employee.” Id. § 5584(b)(1). No

analogous subsection provides circumstances under which waiver is ever mandatory. The

implementing regulations further explain that “[f]ault is considered to exist if in light of the

circumstances the employee knew or should have known through the exercise of due diligence

that an error existed but failed to take corrective action,” as evaluated under “a reasonable person

standard,” and that employees “are . . . expected to have a general understanding of the Federal

pay system applicable to them.”

(b)(ii).

12 In this case, plaintiff’s requested waiver was denied because the DOS decisionmaker

found plaintiff at “fault,” as that term is used in the governing statute, because plaintiff knew he

had been receiving the salary overpayments past his termination date and it would not have been

reasonable for him to assume the payments were meant as unofficial compensation for his SSA

EEO case in the absence of any “official documents from the [DOS] clearly documenting any

resolution or outcome of an EEO case.” FAD at 4–5. The allegations in plaintiff’s Complaint

are entirely consistent with that reasoning: he alleges both that he was aware of the

overpayments during the year throughout which he received them and that he “claimed the

overpaid salaries as compensation and remedies” for his prior EEO claim against the SSA.

Compl. at 4. Instead, he rests his challenge on a different understanding of “fault,” claiming that

he “ha[d] done nothing wrong,”

that no “action by the Plaintiff can constitute fraud,

misrepresentation, or lack of good faith,” and that DOS erred by “arbitrarily determin[ing]” that

“he was at fault in creating the salary overpayment and he acted with fraud, misrepresentation

and lack of good faith.” Pl.’s Opp’n at 3, 9. Under the governing standards, however, DOS was

not required to—and indeed, did not—make the type of finding of moral blameworthiness that

plaintiff now seeks to contest. DOS concluded only that a reasonable person in plaintiff’s

position, possessed of the knowledge of the applicable federal pay rates, would have known the

salary overpayments were a mistake. See FAD at 5. No allegations in plaintiff’s Complaint

would permit the conclusion that fault, in this narrow sense, was absent. Plaintiff has therefore

failed to state a claim that the denial of his waiver request was arbitrary or capricious, requiring

dismissal of the APA claim under Rule 12(b)(6).

13 2. Any Title VII Claim Must Be Dismissed Under Rule 12(b)(6).

Plaintiff’s complaint may also be read as alleging that DOS denied his waiver request as

a form of retaliation for the EEO claims he had pursued following his transfer back to the SSA in

2013, in violation of Title VII. See Compl. at 4 (referencing the prior EEO activity and alleging

that “[i]nstead” of his prevailing on the merits of those prior claims, “the [DOS] denied

plaintiff’s appeals and forced him into a re-payment agreement under threat of garnishment or

property liens,” amounting to an “adverse action” against him). This understanding of plaintiff’s

allegations is consistent with the theory under which his pursued his administrative challenges.

See FAD at 2–3.

“To establish a prima facie case of retaliation, a [Title VII] claimant must show that: (1)

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

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

(D.C. Cir. 2007). While the first element that plaintiff engaged in a statutorily

protected activity by pursuing his EEO complaint regarding his 2013 transfer is undisputed,

plaintiff’s allegations fall short of establishing the other two requirements.

Actionable adverse actions in a Title VII retaliation claim must be “materially adverse” in

an “objective” sense. Chambers v. Dist. of Columbia,

(D.C. Cir. 2022). “A

materially adverse action is one that ‘could well dissuade a reasonable worker from making or

supporting a charge of discrimination.’” Taylor v. Solis,

(D.C. Cir. 2009)

(quoting Burlington N. & Santa Fe Ry. Co. v. White,

(2006)). “Typically, a

material adverse action in the workplace involves ‘a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing significant change in benefits.’” Bridgeforth v. Jewell, 721

(D.C. Cir. 2013) (quoting Taylor v. Small,

(D.C. Cir. 2003)).

The denial of a debt waiver cannot be called materially adverse, for that decision merely

obligates an individual to repay money to which he had no entitlement in the first place, and such

a waiver is never available as of right. See

(a) (providing that a waiver “may” be

granted for a claim “arising out of an erroneous payment of pay”). A reasonable person would

not be dissuaded from seeking a remedy for a Title VII violation by knowing that, if he went

forward, he would not be able to keep an unearned windfall, absent any risk to his actual

earnings or benefits.

Furthermore, plaintiff cannot plausibly allege a causal connection between his EEO

activity following his 2013 separation and DOS’s denial of the debt waiver. Under certain

circumstances, temporal proximity between the protected activity and the adverse action can

plausibly establish causation, but where it is the only relevant factual allegation, “the temporal

proximity must be very close.” Clark Cnty. Sch. Dist. v. Breeden,

, 273–74 (2001)

(internal quotation omitted). Here, four years separate the EEOC’s dismissal of plaintiff’s

untimely appeal of his SSA EEO claim and DOS’s denial of his debt waiver request, seriously

undercutting any possible inference of causality. Moreover, as set out supra in Part III.B.1, DOS

explained its denial as bound by the statutory requirement that no waiver be granted where

“fault” is found on the part of the overpaid individual. Plaintiff’s Complaint acknowledges the

relevant facts that went into such a finding—that he was aware he was being overpaid and that

he did not attempt to return the money, as he believed it was his due as “compensation and

remedies” for his prior complaints—and it is devoid of other factual allegations to support any

theory that DOS’s finding was a mere pretext, and that the true cause of the denial lay elsewhere.

15 Plaintiff has therefore failed to state a claim that the denial of his waiver request in 2019

amounted to unlawful retaliation for his EEO activity following his 2013 transfer back to the

SSA, and the Title VII claim must also be dismissed under Rule 12(b)(6).

VI. CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss is GRANTED. An order

consistent with this Memorandum Opinion will be entered contemporaneously.

Date: July 11, 2023

__________________________ BERYL A. HOWELL U.S. District Court Judge

16