UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAWAN N. TARQUINII, : : Plaintiff, : Civil Action No.: 21-1567 (RC) : v. : Re Document Nos.: 60, 72 : CARLOS DEL TORO, : Secretary of the Navy, : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION TO SEAL

I. INTRODUCTION

Pro se plaintiff Jawan Tarquinii sues Carlos Del Toro, in his official capacity as

Secretary of the Navy (the “Agency”). Although Tarquinii’s complaint does not list out discrete

counts, so far as the Court can tell, Tarquinii alleges that she was discriminated against based on

her race, sex, religion, and disability, that she was subjected to retaliation for protected activity,

that she was denied a reasonable accommodation for her disability, that she was subjected to a

hostile work environment, and that she was denied due process rights. See Compl. at 1, ECF No.

1. Before the Court is the Agency’s motion for summary judgment (“Def.’s MSJ”), ECF No. 60.

Tarquinii has filed a brief in opposition to the Agency’s motion, see Pl.’s Resp. Opp’n Def.’s

MSJ (“Pl.’s Opp’n”), ECF No. 65, and the Agency has filed a reply in support of its motion for

summary judgment, see Reply Supp. Def.’s MSJ (“Def.’s Reply”), ECF No. 71. For the

following reasons, the Court grants the Agency’s motion for summary judgment. II. BACKGROUND

Tarquinii, an African American woman who identifies as Catholic, previously worked at

the Marine Corps Air Station in Iwakuni, Japan, where she served, first, as the Human Resources

Deputy Director, and then as Chief of Human Resources, for Marine Corps Community Services

(“Community Services”). See Compl. ¶¶ 13, 15–16. While employed with Community

Services, Tarquinii’s first-line supervisor was Robert Johnston and her second line supervisor

was John Iwaniec. See id. ¶¶ 5–6; see also Def.’s MSJ, Ex. 1 at 109 (depicting organizational

chart).1

In 2015, Johnston issued Plaintiff a negative mid-year performance evaluation with an

accompanying Letter of Caution. See Def.’s MSJ, Ex. 1 at 138. After Tarquinii asked for a

review of Johnston’s decision, Iwaniec adjusted Tarquinii’s evaluation to reflect that she “Meets

Expectations,” while continuing to express some reservations about Tarquinii’s work. Id. at 133.

Around this time, allegations began to surface that Tarquinii had engaged in nepotism by

improperly influencing Community Services to hire her husband and her brother. See id., Ex. 16

at 5–15, 18–19, 22–23, ECF No. 63-8.2

a. Inspector General Investigation

The allegations of misconduct were referred by the Office of the Inspector General to

Investigator Carl D. Hodges for investigation. See id., Ex. 1 at 150. Hodges was assisted by

Carlos Saldana, the Human Resources Chief at Marine Corps Installation Pacific-Marine Corps

1 Due to inconsistent page numbering, when referencing documents attached to Defendant’s motion for summary judgment, the Court uses the page numbers generated by the ECF filing system. When referencing documents attached to sealed version of the Defendants’ motion for 2

summary judgment, the Court cites to ECF No. 63 and the respective attachment numbers as generated by the ECF filing system.

2 Base Camp Butler, in Okinawa, Japan. See Def.’s MSJ at 4. Hodges’s final report for the Office

of the Inspector General concluded that Tarquinii had improperly advocated for, and participated

in, her husband and brother’s hiring in violation of Community Services personnel policies and

federal law. See id., Ex. 1 at 155–167, ECF No. 63-2. The report further concluded that

Tarquinii should have recused from any involvement in the hiring of her husband and brother but

failed to do so. See id. The Inspector General report was supported by extensive and robust

evidence, including statements by thirteen employees who worked with Tarquinii. See id. at

152–153.

b. Reasonable Accommodation Request

Around the time of the investigation, Tarquinii submitted a reasonable accommodation

request from her doctor that would allow her to have a reduced and more flexible work schedule,

including some telework, for two months. See id., Ex. 14 at 2, ECF No. 60-17. Tarquinii’s

request was formally approved, though Tarquinii asserts that in practice she was not permitted to

have full use of that accommodation. See id. at 3; id., Ex. 1 at 17–18, ECF No. 60-4. Later,

Tarquinii’s doctor recommended that Tarquinii’s accommodation be extended for a full year.

See id., Ex. 15 at 2–3, ECF No. 60-18. Given Community Services’ new policy for accepting

accommodation requests, it requested that Tarquinii resubmit her extended accommodation

request. See id., Ex. 1 at 19, ECF No. 60-4; Def.’s Reply at 7 (“It is further undisputed that the

policy for approving reasonable accommodation requests changed at some point after Plaintiff’s

first reasonable accommodation request in July 2015, which required Plaintiff to resubmit her

second reasonable accommodation request according to that new policy.”).

3 c. Termination & Appeals Process

Before Tarquinii resubmitted her reasonable accommodation request however, her

supervisors issued her a proposed termination letter, and eventually terminated her employment.

See Def.’s MSJ, Ex. 1 at 19. Both the notice of proposed termination and Tarquinii’s termination

letter explained that Tarquinii’s misconduct, as found in the Inspector General Report, was the

reason for her termination. See id., Ex. 1 at 30–31, 39–41.

Tarquinii then filed an appeal of her termination with the Commanding Officer at Marine

Corps Air Station Iwakuni, Colonel Boucher. See id. at 42. Colonel Boucher appointed a

hearing officer to help coordinate the appeal process and schedule an appeal hearing. See id., Ex.

8, ECF No. 60-11. However, Tarquinii waived her right to an appeal hearing and requested a

decision on the written submissions by the parties to the appeal, instead. See id. Ultimately,

Colonel Boucher upheld the decision to terminate Plaintiff’s employment after finding that there

was “substantial evidence to support the conclusion that [Tarquinii] violated rules prohibiting

nepotism and actual or apparent conflicts of interest on multiple occasions by the actions [she]

took in connection with the employment of [her] husband and [her] brother.” Id. at 2–3.

Tarquinii then filed a second-level appeal with Marine Corps Headquarters. See id., Ex. 9 at 2–

3, ECF No. 60-12. At that stage, the Director of the Business and Support Services Divisions at

Marine Corps Headquarters, Cindy Whitman Lacy, issued a final decision upholding the decision

to terminate Tarquinii’s employment with Community Services. See id.

d. Equal Employment Opportunity Counseling

After her termination, but while her appeal was pending, Tarquinii initiated Equal

Employment Opportunity (“EEO”) Counseling. See id., Ex. 1 at 74–75, ECF No. 60-4. In 2016,

Tarquinii submitted a formal EEO Complaint alleging that the Agency had discriminated against

4 her based on her race, gender, religion, disability, and as reprisal for prior protected activity

when it terminated her employment and when it upheld her termination. See id. at 6. Tarquinii’s

formal EEO complaint further alleged that the Agency had retaliated against her based on her

prior EEO activity by interfering with her selection for employment with the U.S. Department of

Justice, U.S. Navy, and U.S. Government Publishing Office. See id. Tarquinii later amended

her formal EEO Complaint to add another retaliation claim for her non-selection to the U.S.

Bureau of Engraving and Printing. See id., Ex. 27 at 3, ECF No. 60-30. After her second-level

appeal, Tarquinii further amended her formal EEO Complaint to allege that the Agency had

discriminated and retaliated against her by denying that appeal. See id., Ex. 28 at 2, ECF No. 60-

31. In 2019, after the Agency sought summary judgment on Tarquinii’s EEO complaint,

Tarquinii attempted to amend her formal EEO complaint yet again to add claims for the denial of

reasonable accommodations and the creation of a hostile work environment. See id., Ex. 34 at 6–

8, ECF No. 60-37. The EEO administrative judge denied the request to amend because Tarquinii

raised her reasonable accommodation and hostile work environment claims for the first time only

in her response to the Agency’s motion for summary judgment and had previously disclaimed

any reasonable accommodation or hostile work environment claim. See id. at 7 (“Complainant

told the Agency from the get go that she sought no relief related to reasonable accommodation or

hostile work environment and that those allegations were offered as background only.”). The

EEOC administrative judge granted summary judgment in favor of the Agency, and the Agency

adopted that decision. See id. at 21.

e. Complaint in District Court

Having lost her case at the agency-level, Tarquinii filed her case in this Court. See

generally Compl. Although Tarquinii was represented by counsel in her appeal proceedings with

5 the Agency and before the EEOC administrative judge, she is proceeding pro se before this

Court. See id.; see also Def.’s MSJ, Ex. 34 at 22, ECF No. 60-37; id., Ex. 1 at 3, ECF No. 60-4;

id. at 74; id., Ex. 9 at 4, ECF No. 60-12. So far as the Court can tell, Tarquinii alleges the

following claims: (1) that the Agency discriminated against her by denying her a reasonable

accommodation; (2) that she was discriminated against based on protected characteristics (race,

sex, religion, disability) when the Agency terminated her; (3) that the Agency further

discriminated against her by upholding her termination on administrative appeal; (4) that the

Agency retaliated against her for protected activity by terminating her; (5) that the Agency

retaliated against her by upholding her termination on administrative appeal; (6) that the Agency

retaliated against her by interfering with her employment at other employers; (7) that the Agency

discriminated against her by creating a hostile work environment; and (8) that the Agency

deprived her of her rights under the Due Process clause. See Compl. at 1–2; see also Def.’s MSJ,

Ex. 27 at 2–3, ECF No. 60-30.

After conducting discovery, the Agency filed a motion for summary judgment. See

generally Def.’s MSJ. Tarquinii filed a brief in opposition, see generally Pl.’s Opp’n, and the

Agency filed a reply in support of its motion for summary judgment, see generally Def.’s Reply.

The Agency’s motion for summary judgment is now ripe for review.

III. LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A dispute is genuine if “the evidence presents a sufficient disagreement to

require submission to a jury.” Anderson v. Liberty Lobby, Inc.,

, 251–52 (1986).

6 And a fact is material if it “might affect the outcome of the suit under the governing law.”

.

When assessing a summary judgment motion, the Court must be careful to neither “weigh

the evidence” nor make determinations of witness credibility. See

; Robinson v. Pezzat,

(D.C. Cir. 2016) (highlighting the importance of separating “jury functions” from

the “district court’s role as the arbiter of legal questions” in considering summary judgement

motions). The movant has the burden of demonstrating the absence of a genuine issue of

material fact and that the non-moving party “fail[ed] to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett,

(1986).

In responding to a motion for summary judgment, the non-moving party “must do more

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

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

(1986). In other words, it takes more

than “a scintilla of evidence” to overcome a motion for summary judgment; “there is no issue for

trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict

for that party.” Anderson,

. Accordingly, unsupported allegations or

conclusory statements are not sufficient to defeat summary judgment, see Ass’n of Flight

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

, 465–66 (D.C. Cir. 2009); Pub. Citizen

Health Rsch. Grp. v. FDA,

, 908 (D.C. Cir. 1999) (Garland, J., concurring)

(“[C]onclusory allegations unsupported by factual data will not create a triable issue of fact.”

(citations and internal quotation marks omitted)).

When a non-moving party supports their position via affidavit or declaration, “[it] must

set forth . . . specific facts[,]” Ass’n of Flight Attendants-CWA,

(internal

7 quotation marks omitted), pursuant to Rule 56(e), “that is, it ‘must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the affiant is

competent to testify on the matters stated,’”

(quoting Fed. R. Civ. P. 56(e)(1)). “Although, as

a rule, statements made by the party opposing a motion for summary judgment must be accepted

as true for the purpose of ruling on that motion, some statements are so conclusory as to come

within an exception to that rule.” Greene v. Dalton,

, 675 (D.C. Cir. 1999); see also

Dist. Intown Props. Ltd. P’ship v. District of Columbia,

(D.C. Cir. 1999)

(“[T]he court must assume the truth of all statements proffered by the non-movant except for

conclusory allegations lacking any factual basis in the record.”). The plaintiff “must support

[her] allegations . . . with facts in the record; a mere unsubstantiated allegation . . . creates no

‘genuine issue of fact’ and will not withstand summary judgment.” Harding v. Gray,

(D.C. Cir. 1993) (quoting Celotex, 477 U.S. at 322–23, 106 S.Ct. at 2552–53). On summary

judgment, the Court views all evidence “in the light most favorable to the nonmoving party and

the [C]ourt [ ] draw[s] all reasonable inferences in favor of the nonmoving party.” Talavera v.

Shah,

(D.C. Cir. 2011). In short, “[t]he inquiry performed is the threshold

inquiry of determining whether there is the need for a trial” because the case turns on material

disputes of fact that could be “resolved in favor of either party.” Anderson,

.

IV. ANALYSIS

To begin with, the Court addresses Plaintiff’s arguments that summary judgment is

unwarranted because (1) the Agency’s summary judgment motion is untimely and (2) the record

in this case is incomplete. See Pl.’s Opp’n at 1. These arguments are meritless.

First, under Federal Rule of Civil Procedure 56(b), “[u]nless a different time is set by

local rule or the court orders otherwise, a party may file a motion for summary judgment at any

8 time until 30 days after the close of all discovery.” See Fed. R. Civ. P. 56(b). Accordingly, the

Court has authority to set the time by which a defendant must move for summary judgment.

On November 17, 2023, the Court ordered that the Agency’s motion for summary

judgment should be filed by January 19, 2024. See Min. Order (Nov. 17, 2023). On January 19,

2024, and February 1, 2024, the Agency moved for extensions of time to file its motion for

summary judgment. See Second Mot. Extension of Time, ECF No. 55; Suppl. Mot. Extension of

Time, ECF No. 57. Although the Court did not immediately rule on either of these motions, on

February 8, 2024, the Court granted the Agency’s supplemental motion for extension of time

nunc pro tunc for good cause shown and deemed the Agency’s motion for summary judgment

timely filed. See Min. Order (Feb. 8, 2024). Because the Court “granted [the Agency’s] motion

for extension of time nunc pro tunc, . . . [the Agency’s] motion for summary judgment was not,

in fact, untimely.” Wada v. Tomlinson,

, 181–182 (D.D.C. 2007), aff’d,

(D.C. Cir. 2008).

Second, Tarquinii argues that granting summary judgment would be inappropriate

because the “record is incomplete.” See Pl.’s Opp’n at 2. Tarquinii asserts that the Agency has

failed to comply with its discovery obligations and the Court’s Orders compelling certain items

of discovery. See

at 1–3. Specifically, Tarquinii says that “Defendant’s discovery responses

remain deficient, as specified in Plaintiff’s Third Report on Defendant’s Deficient Supplemental

Response, filed on July 17, 2023.” See id. at 2.

Tarquinii’s argument fails because the Court has already resolved the discovery issues

that she raised in her “Third Report on Defendant’s Deficient Supplemental Response.” On

September 14, 2023, the Court issued an Order and a Memorandum Opinion, granting in part and

denying in part Tarquinii’s motion to compel. See Tarquinii v. Del Toro, No. 21-cv-1567, 2023

, at *8 (D.D.C. Sept. 14, 2023). Tarquinii has not pointed to any other relevant

discovery that remains outstanding. See generally Pl.’s Opp’n. Because Tarquinii has not

indicated what other information she believes is missing, her contention that the record in this

case is incomplete is unpersuasive. See Carroll v. Fremont Inv. & Loan,

(D.D.C. 2009) (“Where ‘plaintiffs’ papers fail to identify any facts essential to opposing [a

motion for summary judgment] as to which discovery is needed,’ . . . summary judgment may be

appropriate.” (quoting Curtin v. United Airlines, Inc.,

(D.C.Cir. 2001)).

Additionally, under Federal Rule of Civil Procedure 56(d), the Court is not required to

deny summary judgment merely because the record is not complete to a plaintiff’s satisfaction.

See Fed. R. Civ. P. 56(d) (“If a nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer

considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take

discovery; or (3) issue any other appropriate order.” (emphasis added)); see also U.S. ex rel.

Folliard v. Gov’t Acquisitions, Inc.,

(D.D.C. 2012), aff’d,

(D.C. Cir. 2014) (“The district court has the discretion to decide whether circumstances of the

case warrant additional discovery.”). Accordingly, the Court will not deny summary judgment

based on Tarquinii’s assertion that the record is incomplete.

Tarquinii also contends that there exists a genuine dispute of material fact. See Pl.’s

Opp’n at 4. Although Tarquinii’s opposition brief merely lists out facts—many of them

unsupported by the record—without any supporting argument or case citation, “a motion for

summary judgment cannot be ‘conceded’ for want of opposition,” Winston & Strawn, LLP v.

McLean,

(D.C. Cir. 2016), and the “Court ‘must always determine for itself

whether the record and any undisputed material facts justify granting summary judgment,’”

10 Accordingly, the Court addresses each of Tarquinii’s claims to assess whether there exists a

genuine dispute of material fact and whether or not the Agency is entitled to summary judgment.

A. Reasonable Accommodation

The Court begins with Tarquinii’s claim that the Agency denied her a reasonable

accommodation in violation of the Rehabilitation Act. See Compl. at 1. While employed by the

Agency, Tarquinii twice asked for a reasonable accommodation for her disability. The first

requested accommodation was that Tarquinii be allowed work flexibility, including some remote

work, for a period of two months. See Def.’s MSJ, Ex. 14 at 2, ECF No. 60-17. The second

requested accommodation was that her flexible work accommodation be extended from two

months to a year. See

Ex. 15 at 2–3, ECF No. 60-18. The Agency argues that Tarquinii’s

claims involving the Agency’s denial of her reasonable accommodations must fail because those

claims were not administratively exhausted. See Def.’s MSJ at 19–21. In the alternative, the

Agency also argues that Tarquinii’s reasonable accommodation claims also fail on the merits.

See

at 21–24.

The Court starts with the exhaustion requirement. The Rehabilitation Act “limits judicial

review to employees ‘aggrieved by the final disposition’ of their administrative ‘complaint’[.]”

Spinelli v. Goss,

(D.C. Cir. 2006) (quoting 29 U.S.C. § 794a(a)(1)). Thus, an

individual suing under the Rehabilitation Act must “exhaust [his] administrative remedies before

[he] can file suit to enforce the Act’s protections.” Doak v. Johnson,

(D.C.

Cir. 2015). Because administrative exhaustion is mandated by the Rehabilitation Act, “a court

cannot excuse it.” Avocados Plus Inc. v. Veneman,

(D.C. Cir. 2004); see

also Porter v. Sebelius,

(D.D.C. 2013) (“[U]nlike Title VII claims,

11 exhaustion of administrative remedies is a jurisdictional requirement for Rehabilitation Act

claims.”).

Here, the record indicates that Tarquinii did not raise a reasonable accommodation claim

in either her initial formal EEO complaint or her amended EEO complaint. See Def.’s MSJ, Ex.

1 at 6, ECF No. 60-4; Def.’s MSJ, Ex. 27 at 2, ECF No. 60-30. As the Agency has pointed out,

although Tarquinii’s formal EEO complaints discuss her request for a reasonable

accommodation, her EEO complaints explicitly state that “[a]lthough I have provided facts

relating to other personnel actions, I provide these facts for background only.”

Ex. 1 at 6,

ECF No. 60-4 (emphasis added);

Ex. 27 at 2, ECF No. 60-30. And Tarquinii’s EEO

complaints list out the particular claims that she intended to raise but do not include a claim for

failure to provide a reasonable accommodation. See

Ex. 1 at 6, ECF No. 60-4;

Ex. 27 at

2, ECF No. 60-30.

“The purpose of the exhaustion requirement is to afford the agency an opportunity to

fully investigate and resolve an employee’s claim.” Vance v. O’Rourke, No. 18-cv-00577,

, at *6 (D.D.C. Feb. 22, 2019). The fact that Tarquinii specifically disclaimed

bringing a claim based on the “background” facts in her EEO complaints and also listed out the

specific claims she intended to raise in her formal EEO complaints leads the Court to believe that

the Agency did not have an opportunity to investigate Tarquinii’s failure to accommodate claims.

See

(“[T]he allegations in the administrative complaint therefore must be specific enough to

give federal agencies an opportunity to handle matters internally whenever possible.” (quotation

marks and citation omitted)); Park v. Howard Univ.,

(D.C. Cir. 1995) (“The

administrative charge requirement serves the important purposes of giving the charged party

notice of the claim and narrowing the issues for prompt adjudication and decision” and “[a] court

12 cannot allow liberal interpretation of an administrative charge to permit a litigant to bypass the

Title VII administrative process.” (cleaned up)). And the fact that Tarquinii took the opportunity

to amend her formal EEO complaint on multiple occasions but nevertheless chose not to include

a claim for failure to accommodate, see Def.’s MSJ, Ex. 27 at 2, ECF No. 60-30, supports the

Agency’s argument that her EEO complaints did not raise a failure to accommodate claim.

Moreover, this is not a situation in which a pro se plaintiff attempted to raise a claim but failed to

do so due to unfamiliarity with the EEOC process; Tarquinii was represented by counsel when

she filed her formal EEO complaint. See

Ex. 1 at 3.

Because Tarquinii did not raise a failure to accommodate claim at the agency level, her

failure to accommodate claims are unexhausted. There is no genuine dispute of material fact

with respect to this issue and the Agency is entitled to summary judgment on Tarquinii’s claims

based on the Agency’s failure to provide a reasonable accommodation. The Court next turns to

Tarquinii’s discrimination and retaliation claims.

B. Discrimination & Retaliation

Tarquinii brings claims for discrimination based on her race, sex, and religion, under

Title VII, and based on her disability under the Rehabilitation Act. See Compl. at 1. Tarquinii

also brings claims for retaliation under both Title VII and the Rehabilitation Act. See id.

1. Legal Standards for Title VII and Rehabilitation Act Violations

a. Title VII

Title VII of the Civil Rights Act makes it unlawful for an employer to “discharge any

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

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

sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). “This statutory text establishes two

13 elements for an employment discrimination case: (i) the plaintiff suffered an adverse

employment action (ii) because of the employee’s race, color, religion, sex, or national origin.”

Brady v. Off. of Sergeant at Arms,

(D.C. Cir. 2008).

“Under Title VII, it is [also] unlawful for an employer to discriminate against any of its

employees . . . because she has made a charge . . . or participated in any manner in an

investigation of discrimination.” Taylor v. Solis,

(D.C. Cir. 2009). “In

order to prevail upon a claim of unlawful retaliation, an employee must show she engaged in

protected activity, as a consequence of which her employer took a materially adverse action

against her.”

(quotation marks and citation omitted). Reporting discrimination is a protected

activity. See Barry v. U.S. Capitol Guide Bd.,

(D.D.C. 2009) (citing to a

case that held that an “employee participated in protected activity when the employee ‘reported

discrimination in response to the enquiries . . . [of her employer]’[.]” (quoting Crawford, --- U.S.

at ---, 129 S.Ct. at 852–53)).

“Where, as here, the record contains no direct evidence that the adverse employment

action of which the plaintiff complains was caused by prohibited discrimination, we turn to the

burden-shifting framework of McDonnell Douglas Corp. v. Green,

, 802–05 (1973),

to analyze the claim.” Jackson v. Gonzales,

(D.C. Cir. 2007) (quotation

marks and citation omitted). As with discrimination claims, where “a plaintiff offers only

circumstantial evidence of retaliation, her claim is governed by the burden-shifting framework of

[McDonnell Douglas].” Solomon v. Vilsack,

(D.C. Cir. 2014).

b. Rehabilitation Act

Under the Rehabilitation Act, the framework for assessing disability discrimination

claims is akin to assessing Title VII discrimination claims: “the two essential elements of a

14 discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because

of the plaintiff’s . . . disability.” Baloch v. Kempthorne,

(D.C. Cir. 2008).

Retaliation is also unlawful under the Rehabilitation Act. See Solomon, 763 F.3d at 14–16.

“A materially adverse action is one that could well dissuade a reasonable worker from

making or supporting a charge of discrimination.” Taylor,

. (quotation marks

and citation omitted). Proving an adverse employment action is generally simple; indeed, there

is often “no dispute” about it. See Baloch,

(“In most employment

discrimination cases that reach federal court, there is no dispute that the employee has suffered

an adverse employment action, and the sole question is whether the action occurred because of

discrimination.”). When a plaintiff alleges that she has been discriminated or retaliated against,

she must also demonstrate causation which she may prove in either of two ways. “First, a

plaintiff may show causation through direct evidence. That is, [s]he may submit evidence that,

‘if believed by the trier of fact, will prove the particular fact in question without reliance upon

inference or presumption.’” Newman v. Howard Univ. Sch. of L., --- F. Supp. 3d ---,

, *9 (D.D.C. 2024) (quoting Randle v. LaSalle Telecomms., Inc.,

(7th

Cir. 1989). “But [s]he may also show causation through indirect, or circumstantial, evidence.”

Id. at *10. When assessing indirect circumstantial evidence of discrimination, the Court applies

“the framework set out . . . in McDonnell Douglas Corp. v. Green,

(1973).”

(cleaned up). Thus, the McDonnell Douglas framework is utilized for both Title VII claims and

Rehabilitation Act claims.

c. McDonnell Douglas Framework

The McDonnell Douglas framework first requires the plaintiff to establish a prima facie

case of discrimination. See Mawakana v. Bd. of Trustees of Univ. of the D.C.,

, 866

15 (D.C. Cir. 2019). If the plaintiff establishes a prima facie case of discrimination, the burden

shifts to the defendant employer to “proffer a legitimate, nondiscriminatory reason for the

challenged adverse employment action.”

“If the defendant satisfies that burden, the

McDonnell Douglas framework—with its presumptions and burdens—disappears, and the sole

remaining issue is discrimination vel non.” Jackson,

(quotation marks and

citation omitted); Brady,

(explaining that if the defendant offers a “legitimate,

nondiscriminatory reason” for its conduct, the Court “need not—and should not—decide whether

the plaintiff actually made out a prima facie case” but “[r]ather, in considering an employer’s

motion for summary judgment . . . in those circumstances, the district court must resolve one

central question: has the employee produced sufficient evidence for a reasonable jury to find that

the employer’s asserted non-discriminatory reason was not the actual reason and that the

employer intentionally discriminated against the employee on the basis of race, color, religion,

sex, or national origin?”). At that point, the plaintiff can survive summary judgment only by

showing “that a reasonable jury could conclude that [she] was terminated for a discriminatory

reason.” Jackson,

. (quotation marks and citation omitted); Brady,

. To make such a showing, the plaintiff must prove that a reasonable jury could infer that the

employer’s given explanation was pretextual and that this pretext shielded discriminatory

motives. See Newman,

, at *9–10 (finding that in discrimination claims, “the

plaintiff must show that the harm that befell [her] was because of [her protected classification]”

and that the plaintiff can show this through direct or indirect evidence.)

To “support an inference that the employer’s stated reasons were pretextual, and the real

reasons were prohibited discrimination or retaliation,” a plaintiff can rely on a variety of

evidence, including “the employer's better treatment of similarly situated employees outside the

16 plaintiff's protected group, its inconsistent or dishonest explanations, its deviation from

established procedures or criteria, or the employer’s pattern of poor treatment of other employees

in the same protected group as the plaintiff, or other relevant evidence that a jury could

reasonably conclude evinces an illicit motive.” Walker v. Johnson,

(D.C.

Cir. 2015).

The McDonnell Douglas framework works similarly for retaliation claims as it does for

discrimination claims. “Under this framework, a plaintiff must first establish the prima facie

elements: that he or she engaged in a protected activity, that he[] or she was subjected to an

adverse action by the employer, and that there was a causal link between the two.” See Geter v.

United States Gov’t Publ’g Off.,

, 236 (D.D.C. 2020), aff’d, No. 20-5043,

(D.C. Cir. July 25, 2023). “If a plaintiff makes such a showing, then the

burden shifts to the employer to articulate a legitimate, non-retaliatory reason for its decision.”

“Once the employer has done so, ‘the central question at the summary judgment stage

becomes whether the employee has “produced sufficient evidence for a reasonable jury to find

that the employer’s asserted non-retaliatory reason was not the actual reason” and that the

employer fired the employee as retaliation.’”

at 236–237 (quoting Johnson v. Interstate

Mgmt. Co., LLC,

(D.C. Cir. 2017); Hernandez v. Pritzker,

(D.C. Cir. 2013)).

Accordingly, for both Tarquinii’s Title VII and Rehabilitation Act claims, the Court must

assess whether the Agency offered nondiscriminatory and nonretaliatory reasons for its conduct,

and whether Tarquinii could prove to a reasonable jury that the Agency’s explanations are

pretextual and that a discriminatory or retaliatory motive animated the Agency’s employment

17 actions. The Court discusses this analysis with respect to each of the Agency’s employment

actions below.

2. The Agency’s Employment Actions

a. Termination

Tarquinii asserts that she was issued a notice of proposed termination and then got

terminated because of her protected classifications and as retaliation for protected activity. See

Compl. at 1. The Agency argues that Tarquinii was terminated based on the findings of an

Inspector General investigation into Tarquinii’s misconduct. See Def.’s MSJ at 26 (“Plaintiff’s

misconduct led to her eventual discharge from federal employment.”). Under the McDonnell

Douglas framework, if a defendant offers a “legitimate, nondiscriminatory reason” for its

conduct, the Court “need not—and should not—decide whether the plaintiff actually made out a

prima facie case.” Brady,

. Accordingly, the Court begins by assessing whether

the Agency has offered a legitimate nondiscriminatory and nonretaliatory reason for terminating

Tarquinii.

The Agency argues that it terminated Tarquinii after an investigator from the Office of

the Inspector General found that Tarquinii engaged in misconduct and Tarquinii’s supervisors

agreed with that conclusion. See Def.’s MSJ at 25–28. The administrative record reveals that

the Inspector General investigation into Tarquinii began after Amanda Sheldon, an HR employee

at Community Services in Iwakuni Japan—who was not one of Tarquinii’s two supervisors—

submitted a complaint that Tarquinii was “continuously involved in multiple cases of egregious

nepotism and abuse of authority” to “create and maintain employment opportunities . . . for [her]

family members.” See

Ex. 16 at 5–14, ECF No. 63-8. Although the Court will not detail all

of the many allegations in the complaint submitted to the Inspector General, suffice it to say that

18 the complainant’s allegations of nepotism and the appearance of impropriety were detailed and

did not appear to be based on any of Tarquinii’s protected classifications or on retaliation.

at

6–14, 18–19, 22. After receiving these complaints of nepotism, the Inspector General ordered an

investigation into the allegations of misconduct. See id. at 23.

Next, the record reflects that the Inspector General investigation itself was not conducted

with any discriminatory or retaliatory animus. The assigned investigator—who was outside

Tarquinii’s chain of command—appears to have conducted a neutral and thorough investigation

into the allegations of Tarquinii’s misconduct. See Def.’s MSJ, Ex. 1 at 150–167, ECF No. 63-2.

And there is no dispute that the investigator conducted his investigation because of allegations of

misconduct and not for discriminatory or retaliatory reasons and that the investigator did not

himself have any discriminatory or retaliatory animus. See Def.’s Reply, at 32, 38, ECF No. 71-

1. Without reiterating each of the investigator’s findings, the Court observes that the investigator

meticulously assessed each of the allegations made against Tarquinii and determined whether

those allegations were substantiated by evidence he had discovered. See id. Of particular note,

the investigator concluded that as the Chief of HR, Tarquinii “improperly advocated for the

hiring of her husband,” “participated in the hiring of her husband,” “improperly advocated for

the hiring of her brother,” and “improperly used her official capacity to participate in the hiring

of her brother.” Def.’s MSJ, Ex. 1 at 160–65, ECF No. 63-2. The investigator provided ample

support for his conclusions and those conclusions were confirmed by other reviewing staff who

agreed that “the preponderance of the evidence” supplied by the investigator in his report

“supports the conclusions of this investigation.” See Def.’s MSJ, Ex. 16 at 4, ECF No. 63-8.

The record shows that Tarquinii’s first-line supervisor, Johnston, then issued Tarquinii a

notice of proposed termination after reading the Inspector General’s report on Tarquinii’s

19 misconduct. See Def.’s MSJ, Ex. 4 at 5, ECF No. 60-7. Johnston’s declaration explained that he

had issued the proposal of termination because Tarquinii “was improperly involved in the hiring

of her husband and brother” and “failed to recuse herself involving any hiring of her relatives.”

Id. Johnston additionally explained that “the case that [Tarquinii] was overwhelmingly involved

in the hiring of her husband and brother” led to his conclusion that Tarquinii “failed to conduct

herself in a professional manner consistent with being the head of Human Resources and an

executive with the organization.” Id. And he explained that he relied on the Inspector General

investigation when making the decision to remove Tarquinii. Id.

After reviewing the proposal of termination, Tarquinii’s second-line supervisor, Iwaniec,

concluded that the evidentiary record supported “a reasonable conclusion that [Plaintiff] engaged

in a pattern of misconduct that violated the rules prohibiting nepotism and actual or apparent

conflicts of interest.” See id., Ex. 1 at 39, ECF No. 60-4. Iwaniec reviewed both Johnston’s

proposal of termination as well as Tarquinii’s response to that proposal and concluded that:

The evidence substantiates repeated instances in which [Plaintiff] violated one or both of these standards in the actions that [Plaintiff] took in connection with the employment of [Plaintiff’s] husband and brother by [Community Services]. As the Chief of Human Resources and the representative of [Community Services] on all matters related to civilian personnel management to the command, employees and the general public, [Plaintiff’s] actions should be a role model for others, not an example of misconduct that must be avoided. . . . As a result of [Plaintiff’s] misconduct, [Plaintiff] seriously breached Marine Corps standards of trust and integrity with [Community Services], as well as federal law, regulation and policy.

Id. at 39–40. The Agency has thus offered ample evidence to support its detailed explanation

that the investigation into Tarquinii, the proposal of termination, and eventual termination were

conducted for legitimate, nondiscriminatory and nonretaliatory reasons. See Brady,

. Indeed, Tarquinii says that her “removal action was solely based on the OIG

. . . Investigative report.” See Pl.’s Opp’n ¶ 131, ECF No. 65. Because the Agency has offered a

20 legitimate, nondiscriminatory, and nonretaliatory reason for these actions, the Court is left to

determine whether a reasonable jury could find that the Agency’s explanation is pretextual and

that discrimination or retaliation was the real reason for the Agency’s conduct.

Tarquinii has not pointed to any evidence in the record that could lead a reasonable jury

to believe that the Agency’s reason for terminating her was pretextual. Tarquinii first points to

procedural irregularities for the proposition that the Agency’s reason is pretextual. While a

“deviation from established procedures or criteria” could be used to convince a jury that an illicit

motive animated an employer’s conduct, Walker,

, more than a scintilla of

evidence is necessary to survive summary judgment, see Anderson,

.

Tarquinii argues that when she was issued the notice of proposed termination, she was

not given a copy of the Inspector General report or afforded sufficient time to review the

proposal and report, and that the proposal did not sufficiently explain why she should be

terminated. See Pl.’s Opp’n ¶¶ 139–144. However, the record indicates—including in

Tarquinii’s own declaration—that Tarquinii did in fact have an opportunity to read the Inspector

General report. See

Ex. 2 ¶ 370, ECF No. 65-2 (“On November 13, 2015, I went to Lt. Col.

Manning’s office to review the IG investigation report.”); see also

Ex. 22 at 3, ECF No. 65-

25 (“I’ve read the report.”). Tarquinii’s assertion is therefore unsupported because the record

reflects that she did have an opportunity to read the Inspector General report seven days before

she submitted her letter in response to the proposal of termination. See

Ex. 2 ¶ 370, ECF No.

65-2 (explaining that Tarquinii read the report on November 13, 2015); see Def.’s MSJ, Ex. 1 at

39, ECF No. 60-4 (indicating Tarquinii’s responsive letter was dated November 20, 2015).

Additionally, the proposal of termination adequately explained that it was “based on incidents of

misconduct” including the finding that Tarquinii used her “official position as the Chief of

21 Human Resources to direct actions which facilitated the hire of [her] spouse and younger

brother.” See id. at 30. Moreover, Tarquinii has not pointed to any evidence that the procedure

involved in the proposal of termination deviated from the Agency’s standard termination

procedures. See Walker,

.

Tarquinii also argues that her second-line supervisor, Iwaniec, gave inconsistent reasons

for her termination. See Pl.’s Opp’n ¶¶ 168–174. In particular, Tarquinii asserts that while

Iwaniec relied on the Inspector General report in his termination notice, he separately testified

that he terminated her due to poor performance and refusal to accept responsibility for her

actions. See

But Tarquinii’s assertion mischaracterizes Iwaniec’s testimony. When asked in

a deposition why he terminated Tarquinii, Iwaniec testified that he did so because of Tarquinii’s

“interference in the process of hiring her husband and her brother.” See Pl.’s Opp’n, Ex. 3 at 15,

ECF No. 65-4.3 That statement is consistent with the notification of termination that Iwaniec

issued to Tarquinii, which stated that Tarquinii “engaged in a pattern of misconduct that violated

the rules prohibiting nepotism and actual or apparent conflicts of interest.” See Def.’s MSJ, Ex.

1 at 39, ECF No. 60-4. The fact that Iwaniec mentioned additional deficiencies in Tarquinii’s

conduct in his testimony does not undermine the Agency’s nondiscriminatory reason for

terminating Tarquinii: namely, misconduct.

Tarquinii further argues that she should not have been terminated because the Inspector

General report was inaccurate and that she did not violate any nepotism policy. See Pl.’s Opp’n

¶¶ 147–167. Ultimately, however, it is irrelevant whether the Inspector General report was

accurate because—so long as Tarquinii’s supervisor relied on that report in good faith—the

3 Due to inconsistent page numbering, when referencing documents attached to Plaintiff’s opposition brief, the Court uses the page numbers generated by the ECF filing system.

22 decision to terminate Tarquinii was based on her supervisors’ belief that Tarquinii had engaged

in misconduct and not because of any of Tarquinii’s protected characteristics or as retaliation.

See Davis v. George Washington Univ.,

(D.D.C. 2014) (“It is important

to note that even if a court believes that the employer made a poor personnel decision, the court

may not second-guess that decision absent demonstrably discriminatory motive.”); George v.

Leavitt,

(D.C. Cir. 2005) (“[A]n employer’s action may be justified by a

reasonable belief in the validity of the reason given even though that reason may turn out to be

false.”).4 In Brady, the D.C. Circuit specifically held that an employer’s proffered reason for

demoting an employee—that the employee engaged in sexually explicit conduct—was not a

pretext for race discrimination, regardless of whether the incident had not actually occurred,

because the employer honestly and reasonably believed that incident had occurred, given three

other employees’ accounts of it, followed by thorough and independent investigation that

confirmed its probability. Brady,

. Like in Brady, the Agency employer here has

presented evidence that it believed Tarquinii engaged in misconduct and that it based its decision

on that misconduct. But the Agency’s proffered reason here is even stronger than in Brady

because, unlike in Brady where the plaintiff had alleged the investigation was tainted by racism;

here, Tarquinii appears to concede that the investigation was not conducted for discriminatory

reasons. Therefore, whether or not Tarquinii actually engaged in misconduct is beside the point,

so long as the Agency made its decision based on the investigation and not for discriminatory or

retaliatory reasons.

4 The Court observes that even Tarquinii seems to admit that her termination “was solely based on the [Office of Inspector General] Investigative report.” See Pl.’s Opp’n ¶ 131. See Davis v. Gables Residential/H.G. Smithy,

(D.D.C. 2007) (granting summary judgment in Title VII retaliation case where “[p]laintiff admit[ted] that [d]efendant had a legitimate, non-retaliatory reason for terminating him”).

23 Tarquinii also alleges that her supervisor previously made sexually and religiously

inappropriate remarks toward her, thereby showing that her termination was based on her

protected characteristics. While a supervisor’s inappropriate remarks can be evidence of

discrimination, isolated remarks are not sufficient, “without more, [to] permit a jury to infer

discrimination.” See Said v. Nat’l R.R. Passenger Corp.,

(D.D.C.

2018), aff’d,

(D.C. Cir. 2020); Morris v. McCarthy,

, 670–72

(D.C. Cir. 2016) (describing cases where stray remarks were insufficient to create a jury question

and distinguishing cases where racially charged statements were “pervasive[ ], sever[e],” or

where the speaker played a significant role in the adverse action); see also Simms v. U.S. Gov’t

Printing Off.,

, 9 n.2 (D.D.C. 2000) (“[E]ven [remarks] made by a supervisor,

are insufficient to create a triable issue of discrimination where . . . they are unrelated to an

employment decision involving the plaintiff.”).

Here, the isolated comments appear to have been made a significant amount of time

before Tarquinii’s termination and the remarks appear to have no connection with Tarquinii’s

termination. Said, 317 F. Supp. 3d at 323–24 (“[T]o establish discrimination based on a stray

workplace remark, a plaintiff must generally show a clear nexus between the . . . remark and the

termination.” (cleaned up)); Sebunya v. Mayorkas, No. 21-cv-780,

, at *11

(D.D.C. Mar. 8, 2024) (“An allegedly racist remark [by a supervisor] is more likely to provide an

inference of discrimination when made around the time of the decision and in reference to the

adverse employment action.” (quotation marks and citation omitted)); Hampton v. Vilsack,

(D.D.C. 2011), aff’d,

(D.C. Cir. 2012) (explaining that

“racially-tinged remarks” that “occurred more than a year before,” and which “had no relation to

any alleged misconduct by plaintiff” did not “automatically taint any and all actions taken by

24 [plaintiff’s supervisor] from that date forward”). Tarquinii alleges that Iwaniec made religiously

inappropriate remarks approximately a year before her termination. See Def.’s Reply ¶¶ 4–6, 8,

ECF No. 71-1. However, those statements are temporally attenuated from and appear to have no

connection with her termination. See, e.g., Talley v. Neilsen, No. 14-cv-1313 (RJL),

, at *8 (D.D.C. Feb. 13, 2019) (concluding that discriminatory statements made six

months from non-selection were too temporally attenuated to find “a sufficient relationship to the

relevant adverse action”). Tarquinii also alleges that Johnston and Iwaniec “forced [her] to

apologize to [other employees], while no other male MCCS, Caucasian, employees were

required to do the same” and told her to “appear soft spoken.” See Pl.’s Opp’n ¶¶ 3, 27. But

Tarquinii does not explain when this occurred during her tenure at Community Services or how

making her apologize and telling her to appear soft spoken was connected to her termination.

See Talley,

, at *8 (explaining that remarks evincing discriminatory animus

must have a nexus with the employment decision and that remarks that are temporally attenuated

may lack nexus).

Moreover, Tarquinii concedes that Iwaniec and Johnston “based” her “removal” on the

Office of Inspector General’s investigation report. See Pl.’s Opp’n ¶ 130. Although Iwaniec and

Johnston ultimately terminated Tarquinii’s employment, the record reflects that they did not

initiate the investigation and, ultimately, merely agreed with the investigator’s findings and

removed her for that reason. Even if Iwaniec and Johnston “had a racial or religious animus,”

that is “not sufficient, because there is no ‘nexus between the racial animus and the employment

decision’” given that Tarquinii’s supervisors terminated her due to the investigation report.

Khan v. Holder,

(D.D.C. 2014); see also Elliott v. Acosta,

(D.D.C. 2018) (holding that plaintiff failed to identify any genuine dispute of material

25 fact when plaintiff pointed to isolated race-based remarks made by hiring authority); cf.

Hampton,

(holding that “no reasonable jury could conclude that [a

supervisor’s] decision to at least investigate such serious charges of wrongdoing was so

unreasonable as to itself suggest pretext for discrimination”). Given that Tarquinii acknowledges

that she was terminated because of the investigation report, the Court can see no nexus between

the remarks that Tarquinii alleges her supervisors made and her termination. Even viewing the

evidence in the light most favorable to Tarquinii, the Court concludes that a reasonable jury

could not find those comments sufficient to rebut the Agency’s nondiscriminatory reason for

terminating Tarquinii.

For similar reasons, the Court concludes that Tarquinii does not present sufficient

evidence of retaliation to overcome the Agency’s proffered non-retaliatory reason for

terminating her. In theory, retaliatory animus against Tarquinii could stem from either informal

complaints that Tarquinii made or from her alleged rejection of sexual advances made by

Iwaniec. For instance, Tarquinii states that Iwaniec made sexually suggestive remarks toward

her, which she rebuffed and reported. See Pl.’s Opp’n ¶¶ 15–26. Tarquinii does not provide a

time frame for many of Iwanice’s comments, but the latest of Tarquinii’s alleged rebuffs and

reporting on Iwaniec’s conduct appear to have been made approximately seven months before

her termination, which is a “significant lapse in time.” Talley,

, at *8 (holding

that six months between a comment and an action was a significant lapse in time and undermined

the nexus between the comment and the employment action); see Def.’s Reply ¶¶ 15–26.

Actions that took place more than half a year before her termination, if not longer, are less

probative of retaliation than incidents that are more proximal to the adverse employment action.

26 Moreover, as explained above, Tarquinii has not explained how any of these alleged

incidents has a connection to the Investigation Report substantiating her misconduct and which

drove her supervisors’ decision to terminate her. Neither Iwaniec or Johnston initiated the

investigation into Tarquinii’s misconduct and they both explained the reason for her termination

was their agreement with the independent investigator’s report. Tarquinii too agrees that she was

terminated because of the investigation report’s findings. Accordingly, Tarquinii has not

presented sufficient evidence to overcome the Agency’s proffered non-retaliatory reason for

terminating her. See Brady,

(holding that an employer’s proffered reason for its

adverse employment action was not a pretext for discrimination because employer honestly and

reasonably relied on independent investigation that confirmed employee’s misconduct); cf. Hall

v. Giant Food, Inc.,

, 1079–80 (D.C. Cir. 1999) (holding that the supervisor’s

discriminatory remarks are not considered as evidence of discrimination where the decision to

dismiss the employee was made not by the supervisor, but a different individual or department

who “made an independent assessment” of challenged conduct).

Lastly, Tarquinii attempts to utilize comparator evidence to show that discrimination and

retaliation were the real motivations behind her termination. See Pl.’s Opp’n ¶¶ 193–203. “Use

of comparator evidence is the most commonly employed method of demonstrating that an

employer’s explanation is pretextual.” Cienfuegos v. Off. of Architect of the Capitol,

, at *9 (D.D.C. Apr. 1, 2015) (cleaned up). To use comparator evidence, a plaintiff

must show that her employer treated other employees of a different race, color, religion, or sex

(or who did not engage in protected activity) more favorably than the plaintiff in the same factual

circumstances. See Brady,

. But in order “[t]o prove that [s]he is similarly

situated to another employee, a plaintiff must demonstrate that [s]he and the allegedly similarly

27 situated . . . employee were charged with offenses of comparable seriousness.” Burley v. Nat’l

Passenger Rail Corp.,

(D.C. Cir. 2015) (cleaned up). “A plaintiff must also

demonstrate that all of the relevant aspects of h[er] employment situation were nearly identical to

those of the other employee.”

(cleaned up). “Factors that bear on whether someone is an

appropriate comparator include the similarity of the plaintiff’s and the putative comparator’s jobs

and job duties, whether they were disciplined by the same supervisor, and, in cases involving

discipline, the similarity of their offenses.”

“‘Proof of illicit motive is essential,’ and the

employee ‘at all times’ has the burden of proving ‘that the defendant intentionally discriminated

against’ her.” Figueroa v. Pompeo,

(D.C. Cir. 2019) (quoting Segar v.

Smith,

(D.C. Cir. 1984); Texas Dep’t of Cmty. Affairs v. Burdine,

,

,

(1981)).

Here, Tarquinii has not shown that the comparator employees were “nearly identical” in

all relevant respects in their “employment situation[s].” Burley,

; Burton v. D.C.,

(D.D.C. 2015), aff’d sub nom. Nelson v. D.C.,

(D.C.

Cir. 2017) (“At the summary judgment stage, the Court ‘must rely on evidence substantiated by

the record’ to conclude that the plaintiff and an asserted comparator are similarly situated.”

(citation omitted));

(“[I]f a reasonable jury would be unable to find that the plaintiff and the

comparator were similarly situated, the court may decide, as a matter of law, that the two are not

similarly situated . . . .”). Indeed, the record demonstrates that Tarquinii was situated differently

from comparator employees. To start, the proposed comparators all engaged in alleged

misconduct that was different from the nepotism that Tarquinii was found to have engaged in.

Some of the comparators were alleged to have engaged in financial misconduct, see Pl.’s Opp’n

¶¶ 193–201, while one of the comparators engaged in an extra-marital affair, see

¶ 202–203,

28 and another was terminated for “not being suitable,” see id. ¶ 197. Tarquinii has not shown that

these offenses are of comparable seriousness as her alleged misconduct of nepotism. And as

explained by the administrative judge in this case, “[n]epotism in the civil service is objectively

worse than the general incompetence, negligence, and indiscretion,” especially because

“Congress has made it clear that nepotism of any sort has no place in the civil service.” See

Administrative Decision, Def.’s MSJ, Ex. 34 at 15, ECF No. 60-37; see also

et

seq. (prohibiting public officials from “appoint[ing], employ[ing], [and] promot[ing] . . . to a

civilian position in the agency in which he is serving or over which he exercises jurisdiction or

control any individual who is a relative of the public official”). And, in this case, Plaintiff was

found to have engaged in this behavior twice, involving both her husband and her brother.

Furthermore, courts consider whether employees had the same supervisors when

determining whether they are similarly situated. Compare Banks v. Perdue,

(D.D.C. 2018) (concluding that two USDA employees were similarly situated in part

because they had the same supervisor) with White v. Tapella,

(D.D.C.

2012) (discounting comparator police officers assigned to a different supervisors) and Huckstep

v. Washington Metro. Area Transit Auth.,

(D.D.C. 2016) (concluding bus

drivers assigned to different supervisors were not proper comparators). So far as the Court can

tell, Tarquinii states that Johnston and Iwaniec only had any arguable supervisory responsibility

regarding the discipline of two of her proposed comparators. Tarquinii says that Iwaniec wrote a

favorable letter of recommendation for Dave Atkins who was “terminated due to not being

suitable,” from which the Court may be able to infer that Iwaniec supervised Atkins. See Pl.’s

Opp’n ¶¶ 197. And Tarquinii says that “Johnston and Iwaniec knew” that an employee named

29 Tony Taylor “had an extra-marital affair” but that they did not discipline him for doing so. See

id. ¶ 202.

First, it is not at all clear from these statements that either Atkins or Taylor was directly

supervised by Johnston or Iwaniec. However, to the extent that either was supervised by

Johnston or Iwaniec, the offenses of “not being suitable” and having an extra-marital affair are

categorically different types of misconduct than nepotism. Accordingly, neither Atkins nor

Taylor serves as a comparator sufficient to create a genuine dispute of material fact.

Additionally, differences in seniority or role between a plaintiff and a comparator

employee undermine a claim that they were similarly situated. See Neuren v. Adduci, Mastriani,

Meeks & Schill,

(D.C. Cir. 1995). Here, Tarquinii has not presented

evidence showing that she was in a similar role to most of the comparators she identifies. For

instance, Tarquinii does not explain what roles proposed comparators Matthew Niedszeiecki,

Jason Gardine, Gary Holsopple, Dave Atkins, Andrew Chung filled at Community Services. See

Pl.’s Opp’n ¶¶ 193–203. While Tarquinii explains that Marty Carter was the Chief of Retail and

Services, Richard Courtemanche was the Director of Contracting, Vince Endresen was Chief of

Support, and Tony Taylor was a Food Court Manager, she does not explain how any of these

positions are comparable to the Chief of Human Resources position that she filled. She also does

not explain how senior those individuals were at Community Services or what level these

positions were situated at within the organization. The “differing roles” of proffered comparator

employees presents a “confounding variable” that renders comparison inapposite. Burton,

. Accordingly, Tarquinii has presented insufficient evidence to utilize these

individuals as comparators. While Tarquinii does state that Sue Campbell was a former Chief of

Human Resources who was not terminated despite failing to take reports of sexual harassment

30 seriously, as the Court already explained, Tarquinii does not provide information showing that

Tarquinii and Campbell were supervised by the same individuals, she does not explain how her

seniority compared with Sue Campbell, and she does not show that failing to take reports of

sexual harassment seriously is a comparably serious offense to two separate incidents of

nepotism.

Additionally, several of the comparators that Tarquinii points to were, like Tarquinii, also

terminated, showing that they were not treated differently from Tarquinii. See Pl.’s Opp’n

¶¶ 193–202. Tarquinii says that those employees received better termination terms, but the

record reflects that Tarquinii was also offered a resignation package in lieu of termination, but

she refused to resign and refused any settlement offer from the Agency. See Def.’s MSJ, Ex. 5 at

6, ECF No. 60-8. Lastly, unlike all of the proposed comparators, Tarquinii was terminated after

an independent Inspector General investigation substantiated that Tarquinii engaged in

misconduct. In sum, Tarquinii is both not similarly situated with her proposed comparators and

it is not clear that she was treated more harshly than several of those comparators in any event.

Accordingly, Tarquinii’s comparator evidence does not suffice to show that the Agency’s

explanations are pretextual.

While it is true that “the degree of similarity” between a plaintiff and her proposed

comparators required to show discrimination “may vary in accordance with the size of the

potential comparator pool,” Burton,

(quotation marks and citation omitted),

here, the Court concludes that even in the aggregate Tarquinii’s comparators are insufficient to

show discrimination. “[T]he similarly situated inquiry is not a mechanical comparison,” but

“requires enough common factors to determine if intentional discrimination was at play” by

“eliminating confounding variables, such as differing roles, performance histories, or decision-

31 making personnel, which helps isolate the critical independent variable: complaints about

discrimination.”

(quotation marks and citation omitted). Here, “confounding variables”

abound between Tarquinii and her comparators. Tarquinii has not explained how any one of the

comparators was similarly situated and even if bits of evidence from each of the proposed

comparators is taken together, a reasonable jury could not conclude that “discrimination was at

play” in Tarquinii’s termination. Id.; see also Montgomery v. Chao,

(D.C.

Cir. 2008) (holding that “a reasonable jury could not have inferred discrimination” where a

plaintiff’s comparators were not similarly situated).

Additionally, even if a reasonable jury considered in the aggregate all of the evidence that

Tarquinii attempts to utilize here—e.g., stray remarks, alleged hostility, and comparators—it

could not conclude that she was terminated for discriminatory or retaliatory reasons. While it is

clear that Plaintiff believes Defendant improperly terminated her, she has not pointed to evidence

sufficient to show that the Agency’s nondiscriminatory and nonretaliatory reason for terminating

her—namely, that she twice engaged in the serious misconduct of nepotism, which was

substantiated by an independent investigator—was pretextual. See Wada v. Tomlinson,

(D.D.C. 2007), aff’d,

(D.C. Cir. 2008) (holding that “[b]ased

on the totality of the admissible evidence before the [c]ourt, a jury could not reasonably conclude

that Plaintiff’s termination constituted impermissible discrimination” because plaintiff did not

overcome defendant’s proffered reason that it terminated plaintiff because of misconduct). She

has not shown that she was similarly situated to other employees who were disciplined less

harshly than her, she has not shown that any remarks made by her supervisors were connected to

her termination—especially given that her supervisors did not initiate the independent

investigation into her misconduct, which led to her termination—and she has not shown that the

32 investigation into her misconduct was tainted by discrimination or retaliation. Accordingly,

“[t]he evidence in this case, even considered in the aggregate, would not allow a jury to infer

intentional discrimination.” Thompson v. McDonald,

(D.D.C. 2016);

Anderson,

(explaining that at summary judgment, the question is “not whether

there is literally no evidence, but whether there is any upon which a jury could properly proceed

to find a verdict for the party producing it”).

Because Tarquinii has not pointed to sufficient evidence that either individually or in the

aggregate could convince a reasonable jury that she was terminated for discriminatory or

retaliatory reasons—rather than because her supervisors concluded she engaged in misconduct—

the Court concludes that the Agency is entitled to summary judgment with respect to Tarquinii’s

Title VII and Rehabilitation Act claims that hinge on Tarquinii’s termination.

b. Termination Appeals

Tarquinii next raises a claim that she was discriminated and retaliated against when her

two termination appeals upheld her termination. See Compl. at 1. Under the McDonnell

Douglas framework, the Agency has offered a nondiscriminatory and nonretaliatory reasons for

its conduct. First, the Agency argues that Colonel Boucher—who adjudicated Tarquinii’s first-

level appeal—reviewed the records related to Tarquinii’s termination, including the Inspector

General report and the termination notification, and concluded that there existed “substantial

evidence to support the conclusion that [Tarquinii] violated rules prohibiting nepotism and actual

or apparent conflicts of interest on multiple occasions by the actions [she] took in connection

with the employment of [her] husband and [her] brother.” See Def.’s MSJ, Ex. 8 at 2–3, ECF

No. 60-11. Thus, the Agency says, Tarquinii’s first-level appeal was denied because Colonel

Boucher found that Tarquinii had engaged in misconduct, and not for discriminatory or

33 retaliatory reasons. See Def.’s MSJ at 34–35. And with respect to Tarquinii’s second-level

appeal, the Agency points to evidence showing that Director Lacy at Marine Corps

Headquarters, considered “all relevant documentation” and agreed that substantial evidence

existed “to support [Tarquinii’s] termination of employment.” See Def.’s MSJ, Ex. 9 at 3, ECF

No. 60-12. Thus, both appeal authorities based their respective decisions on their view that the

Inspector General report had found that Tarquinii engaged in misconduct—a nondiscriminatory

and nonretaliatory reason to deny Tarquinii’s termination appeals.

And to reiterate, Tarquinii has not presented any evidence of discriminatory or retaliatory

motive from any of the following: the employee that initiated the misconduct complaint against

her, the investigator who investigated the complaint and concluded that she engaged in

misconduct, or the two individuals who upheld Tarquinii’s termination based on the misconduct.

Tarquinii has presented no evidence that either Colonel Boucher or Director Lacy harbored

discriminatory or retaliatory animus against her.

Because the Agency has provided a nondiscriminatory and nonretaliatory reason for the

denials of Tarquinii’s appeals, Tarquinii must show that a jury could find the Agency’s reason to

be pretextual and that discrimination or retaliation was the real reason for the denial of her

appeals in order to survive summary judgment. See Brady,

. In support of her

argument that the denials were discriminatory and retaliatory, Tarquinii points to what she calls

irregularities in the appeals process, see Pl.’s Opp’n ¶¶ 175–188, but none of these alleged

irregularities evinces that her appeal was denied for discriminatory or retaliatory reasons.

First, Tarquinii argues that her supervisors and other parties interfered with the first-level

appeals process. See id. ¶ 175. But Tarquinii points to nothing in the record to support her

contention that there was any improper influence or interference in the first-level appeals

34 process.5 It is possible that Tarquinii intends to argue that Colonel Boucher was improperly

influenced by Carlos Saldana’s interpretation of the regulations governing Community Service’s

employee’s conduct, see id. ¶ 176, but there is nothing in the record to indicate that it was

procedurally improper for Colonel Boucher to consider the interpretation of HR regulations

offered by Saldana, who assisted in the Inspector General Investigation and who was himself an

HR professional. See id. ¶¶ 175–188. Nor does Tarquinii make any claim that Colonel Boucher

himself harbored any discriminatory or retaliatory animus. Ultimately, Colonel Boucher

thoroughly explained his reasoning for upholding Tarquinii’s termination and there are no

indications that there were any improper attempts at influencing or interfering with the appeals

process. See Def.’s MSJ, Ex. 8 at 2–3, ECF No. 60-11.

Second, Tarquinii argues that she was not given the opportunity to cross-examine

witnesses as required by the Agency’s policy manual and that she was not given the chance to

review certain pieces of evidence that were provided to Colonel Boucher. See Pl.’s Opp’n

¶¶ 179–185. But, as the Agency points out, the Agency’s policy manual did not, in fact, afford

Tarquinii a right to cross-examine witnesses prior to an appeal hearing. See Def.’s MSJ, Ex. 1 at

118, ECF No. 60-4. Rather, an appealing party is permitted to cross-examine witnesses at the

appeal hearing. See id. And it was Tarquinii’s decision to forgo a hearing on appeal where she

would have been afforded an opportunity to examine witnesses. See id. at 82, 86. Moreover,

5 In support of her contention, Tarquinii cites to “Ex 14 at 461,” see Pl.’s Opp’n Statement ¶ 175, but so far as the Court can determine, Exhibit 14 to Tarquinii’s brief in opposition does not contain a page numbered 461. And the Court has found nothing in the record to support Tarquinii’s contention. Moreover, the Court “is under no obligation to sift through the record, which often contains voluminous deposition transcripts, interrogatory responses, and document productions, in order to evaluate the merits of that party’s case.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner,

(D.C. Cir. 1996).

35 Tarquinii’s contention that she was not given the chance to review certain evidence is rebutted

by the record. The record reflects that the Agency provided Tarquinii with all of the evidence it

would have presented at the hearing and that it later summarized that evidence—without

providing new evidence—in its submission to Colonel Boucher. See id. at 82 (explaining that

the Agency “provided Mrs. Tarquinii with all of its documentary evidence to be used at the

hearing.”). Tarquinii also argues that the Agency’s submission to Colonel Boucher was filed

late, see Pl.’s Opp’n ¶ 183, but she does not explain how that late filing shows pretext, especially

given that her own filing was also late, id. ¶ 184; see also Pl.’s Opp’n, Ex. 32 at 2, ECF No. 65-

35.

Lastly, Tarquinii argues that the reason Colonel Boucher gave for upholding her

termination differed than the reasons given for her termination in her proposal of termination

letter. See Pl.’s Opp’n ¶ 187. But Colonel Boucher’s letter and testimony align with the

proposal of termination. Compare Def.’s MSJ, Ex. 1 at 30, ECF No. 60-4 (proposal of

termination) with id., Ex. 8, ECF No. 60-11 (Boucher decision upholding termination on appeal)

and id., Ex. 25 at 88:16-20, ECF No. 60-28 (Boucher Deposition Transcript). In particular, the

proposal of termination, the decision on appeal, and Colonel Boucher’s later testimony all

support that Colonel Boucher upheld Tarquinii’s termination because of her misconduct.

Separately, Tarquinii asserts that the denial of her second-level appeal was also

discriminatory and retaliatory. See Compl. at 1; Pl.’s Opp’n ¶¶ 189–190. Tarquinii argues that

she “was not given the opportunity to review or respond” to submissions made by the Agency on

the second-level appeal. Pl.’s Opp’n ¶ 189. And she argues that various Department employees

directly “influenced and interfered” with the Director Lacy’s decision to uphold her termination.

Id. ¶ 190. These arguments are meritless because Tarquinii has not pointed to any material in the

36 record showing that Lacy considered any materials that Tarquinii did not have a chance to

address. Similarly, Tarquinii has pointed to no evidence in the record showing that any

Department employees influenced or interfered with her second level appeal. Unsupported

allegations and conclusory statements are not sufficient to defeat summary judgment. See Ass’n

of Flight Attendants-CWA, 564 F.3d at 465–66. And Tarquinii has not alleged that Lacy herself

had discriminatory or retaliatory animus. See Pl.’s Opp’n ¶¶ 189–192. Because Tarquinii has

pointed to no evidence based on which a reasonable jury could find that the Agency’s conduct

was motivated by a discriminatory or retaliatory motive, the Court grants the Agency summary

judgment with respect to Tarquinii’s discrimination and retaliation claims based on the denials of

her termination appeals.

c. Interference with Other Employment Opportunities

Tarquinii argues that she was discriminated against and retaliated against when

Department employees gave her poor employment references when she applied for positions at

other employers. See Compl. at 1. In particular, Tarquinii alleges that poor references interfered

with her employment opportunities at the U.S. Department of Justice, the U.S. Department of the

Navy, the U.S. Government Publishing Office, and the U.S. Bureau of Engraving and Printing.

See Pl.’s Opp’n ¶¶ 204–212; see also Def.’s MSJ, Ex. 27 at 18–19, 21, 23, 26. The D.C. Circuit

has explained that employers are prohibited from sending negative employment references under

Title VII if they do so based on a former employee’s protected characteristics. See Shehadeh v.

Chesapeake & Potomac Tel. Co. of Maryland,

(D.C. Cir. 1978). However,

“not every employment reference though sent maliciously and productive of a devastating impact

will engender a grievance cognizable under Title VII. Only when the practice amounts to

disparate treatment on the basis of ‘race, color, religion, sex, or national origin’ can the statute be

37 invoked.” Id.; see also Cheatham v. Mayorkas, No. 18-cv-03026,

, at *21

(D.D.C. Sept. 13, 2021) (same).

The Agency has provided evidence that Tarquinii’s supervisor’s negative (if they can

indeed be called negative) employment references were made because her supervisors were

justifiably dissatisfied with Tarquinii’s performance as an HR professional. See Barry v.

Haaland, No. 19-cv-3380 (DLF),

, at *7 (D.D.C. Sept. 29, 2022), aff’d, No.

22-5268,

(D.C. Cir. Apr. 10, 2023) (“Dissatisfaction with an employee’s

performance based on poor performance is a legitimate and non-discriminatory reason for giving

a negative job reference.”); see also Simmons v. Cox,

(D.D.C. 2007),

aff’d, No. 07-5268,

(D.C. Cir. Feb. 25, 2008) (applying the McDonnell

Douglas framework and holding that the employer provided non-retaliatory reason for negative

employment reference when the employer’s reference “reflected his true opinion of plaintiff’s

work”). In particular, the record supports that Tarquinii’s supervisors believed that Tarquinii had

engaged in misconduct and refused to give her more positive employment references on that

basis. See, e.g., Boucher Depo, Def.’s MSJ, Ex. 25 at 4, ECF No. 63-10. Unlike in Shehadeh

where the Circuit dealt with the “promulgation of untrue accounts” of the plaintiff’s conduct,

n.57, Tarquinii has not pointed to evidence that her supervisors shared references that

they believed were untrue; rather, it appears that Tarquinii’s supervisors shared information that

they credited as true.

Moreover, as reflected by the record, it does not even appear that the Agency’s

employees made any particularly negative statements about Tarquinii when asked for

employment references. For instance, when asked how he responded to questions about

Tarquinii from another agency employer, Colonel Boucher testified that he responded “[i]n a

38 positive manner,” but that he would not hire Tarquinii again, though he did not explain why. See

Def.’s MSJ, Ex. 25 at 4, ECF No. 63-10. Additionally, Tarquinii’s own opposition brief does not

indicate exactly how she believes employees at the Agency interfered with other employment

opportunities. For example, Tarquinii merely alleges that after a potential employer contacted

Community Services, her tentative offer of employment was rescinded. See Pl.’s Opp’n ¶ 205–

206. She also says that at one point the Agency told a potential employer that her termination

appeal had not yet been decided. See

Neither of these assertions supports the notion that

individuals at the Agency provided potential employers with untrue information that interfered

with her other employment opportunities. The closest Tarquinii gets to asserting that the Agency

made negative remarks in employment references is when she says that Community Services

provided inaccurate information to some employers. See id. ¶¶ 209, 211. But the record

citations that Tarquinii points to do not support the proposition that employees at Community

Services provided other employers inaccurate information. See Pl.’s Opp’n, Ex. 41, ECF No. 65-

44; id., Ex. 14, ECF No. 65-16.

Because the Agency has satisfied its burden of showing a legitimate and non-retaliatory

justification for the negative employment reference, “the burden-shifting framework disappears,

and a court reviewing summary judgment looks to whether a reasonable jury could infer . . .

retaliation from all the evidence.” Jones, 557 F.3d at 677 (quotation marks omitted). As

explained above, a supervisor’s “truthful assessment of [an employee’s] work” is a legitimate

non-retaliatory reason to provide a negative employment reference when a third party solicits an

assessment of that employee. Barry,

, at *6; see also Shehadeh,

n.57 (focusing on the fact that references were untrue); c.f. Matthews v. Wisconsin Energy

Corp. Inc.,

, 558–60 (7th Cir. 2008) (explaining that adverse employment action

39 exists where employer disseminates “false reference information” but that sharing “objectively

true” information does not constitute adverse employment action (quotation marks and citation

omitted) (emphasis added)).

At this stage, the Court considers whether Tarquinii can meet her burden to show that the

Agency’s explanation is merely a pretext for retaliation. Brady,

. To do so,

Tarquinii can point to her “employer’s better treatment of similarly situated employees outside

the plaintiff’s protected group, its inconsistent or dishonest explanations, its deviation from

established procedures or criteria, or the employer’s pattern of poor treatment of other employees

in the same protected group as the plaintiff, or other relevant evidence that a jury could

reasonably conclude evinces an illicit motive.” Walker,

.

In arguing that the Agency’s reason for giving her allegedly negative employment

references was pretextual, Tarquinii points to a comparator employee who she says was given

better references. As explained above, however, the comparator employees that Tarquinii points

to are not similarly situated to her. See Part IV.B.2.a, supra. For instance, Tarquinii says that

one employee who negligently overcharged the Agency due to negligence was given a “neutral”

reference. See Pl.’s Opp’n Statement ¶ 194. But negligence and nepotism are very different

charges of misconduct and Tarquinii has not shown that any of the references that she received

could be considered worse than neutral.6 Tarquinii also does not show that there were any

deviations from established procedures regarding employment references. See Walker,

. Accordingly, no reasonable jury could conclude that Tarquinii has made a sufficient

6 Tarquinii had the ability to take discovery from the Agencies to which she applied and at which she was not hired, see Tr. of October 13, 2022, Status Conference, ECF No. 34; see also Fed. R. Civ. P. 26, but has not presented any evidence that her supervisor’s at the Agency provided references that could be considered more than neutral at worst.

40 showing that alleged negative employment references were made for discriminatory reasons or in

retaliation for her protected activity. Therefore, the Agency is entitled to summary judgment on

this aspect of Tarquinii’s claim based on interference with other employment opportunities.7

C. Hostile Work Environment

Tarquinii has raised a claim that the Agency created a hostile work environment. See

Compl. at 1. For a hostile work environment claim, 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.,

(1993) (citation omitted). “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) (quoting Faragher v. City of Boca Raton,

(1998)). Accordingly, no violation occurs “if the victim does not subjectively perceive the

environment to be abusive” or if the conduct “is not severe or pervasive enough to create an

objectively hostile or abusive work environment.” Harris, 510 U.S. at 21–22. “In determining

whether an actionable hostile work environment exists, [courts] look to ‘all the circumstances,’

7 The Court is unable to determine whether Tarquinii intended to raise a claim for discrimination or retaliation based on a negative performance review given to her by her first- line supervisor, Johnston in 2015, compare Compl. (not appearing to raise claims regarding the 2015 performance evaluation) with Pl.’s Opp’n Statement at ¶¶ 36–50 (including allegations about her 2015 negative performance evaluation), but to the extent she intended to raise a claim based on that negative performance evaluation, that claim is unexhausted. “Title VII requires that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on the charge.” Park,

. Because Tarquinii did not raise a discrete claim based on the performance review in either her initial formal EEO Complaint or her subsequent amended formal EEO Complaint, that claim is unexhausted. See Def.’s MSJ, Ex. 1 at 6–7, ECF No. 60-4;

Ex. 27 at 2–3, ECF No. 60-30. Because Tarquinii did not exhaust this potential claim—to the extent she raises such a claim—the Agency is entitled to summary judgment with respect to that claim.

41 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.’” Morgan,

. These standards

“ensure that Title VII does not become a general civility code” that polices “the ordinary

tribulations of the workplace.” Faragher,

(citation and internal quotation marks

omitted).

Plaintiffs must also exhaust their hostile work environment claims. “To meet the

[exhaustion] requirement, [an] employee must contact an EEO counselor within 45 days of the

alleged discriminatory action in accordance with [EEOC] regulations.” Craig v. Lew,

(D.D.C. 2015). A plaintiff must also raise her hostile work environment claim

in her formal EEO complaint, although plaintiffs need not use any “specific ‘magic words’ in

order to exhaust.” Jimenez v. McAleenan,

, 33 (D.D.C. 2019). But “the

exhaustion requirement on a hostile work environment claim is less stringent than for stand-

alone claims of discrimination and retaliation, [and] a plaintiff need only have filed an

administrative complaint alleging some of the claims that comprise the hostile work environment

claim.” Id. at 34 (cleaned up). “Thus, a plaintiff may incorporate non-exhausted allegations into

a hostile work environment claim so long as some allegations were exhausted and all of the

allegations together form one hostile environment claim.” Id. (cleaned up). “To form one claim,

the unexhausted allegations must be adequately linked to the exhausted ones—if, for example,

they involve the same type of employment actions, occur relatively frequently, and are

perpetuated by the same managers.” Id. at 34–35 (cleaned up). “[T]ypically the plaintiff must

offer at least some suggestion of a hostile work environment such as by referring to an ongoing

pattern of conduct or describing a workplace pervaded by abuse.” Id. at 33 (cleaned up).

42 “Courts therefore look to whether a plaintiff described only discrete events in his administrative

charge or also patterns of conduct or other characteristics typical of a hostile work environment

claim.” Id.

Here, Tarquinii did not list hostile work environment as one of the claims in her formal

EEO complaints despite amending that complaint on multiple occasions. See Def.’s MSJ, Ex. 1

at 6; id., Ex. 27 at 2. Furthermore, her formal EEO complaints—which were drafted by a

lawyer—disclaimed any claims not explicitly listed. See Def.’s MSJ, Ex. 1 at 6; id., Ex. 27 at 2.

While plaintiffs are not usually required to explicitly list out a hostile work environment claim in

their complaint so long as they refer to some of the conduct composing that claim, see Jimenez,

395 F. Supp. 3d at 34, here Tarquinii specifically disclaimed unlisted claims. Given that she

disclaimed claims not explicitly listed in her formal EEO charges, “[Tarquinii’s formal EEOC]

charge’s description of discrete events could not . . . be reasonably expected upon investigation

to lead to a hostile work environment claim.” Id. (quoting Park v. Howard Univ.,

(D.C. Cir. 1995)). “[F]ar from using the words ‘hostile work environment,’ [Tarquinii’s]

EEO complaint[s] do[] not even ‘offer at least some suggestion of a hostile work environment in

the charge narrative.’”

(citation omitted); see also Furey v. Mnuchin,

,

159 n.7 (D.D.C. 2018) (concluding that the plaintiff had not exhausted her hostile work

environment claim because “[a]lthough plaintiff filed an administrative charge . . . it did not

express or even hint at a hostile work environment claim” and “when she amended the complaint

to add retaliation claims against her supervisors, she did not include any reference to a hostile

work environment”); Maryland v. Sodexho,

(D.D.C. 2007) (holding

that the plaintiff failed to exhaust his hostile work environment claim when he checked only the

retaliation box and wrote in the particulars section that he “was terminated in retaliation for filing

43 a previous EEOC Charge of Discrimination”). Accordingly, the Court concludes that Tarquinii

did not raise a hostile work environment claim in her formal EEO complaints, and that her

hostile work environment claim is unexhausted.

Tarquinii’s hostile work environment claim fails twice over because she has not

exhausted that claim for a separate reason. See Morgan,

. Tarquinii’s formal

EEO complaint indicates that she initially contacted an EEO counselor on December 16, 2016.

See Def.’s MSJ, Ex. 1 at 4, ECF No. 60-4; see also id. at 74 (EEO counselor’s report reflecting

initial EEO contact on December 16, 2016). Despite the listed date—reflecting that Tarquinii

first initiated contact with an EEO counselor in December 16, 2016—based on other dates in the

record, the Court believes that the listed date is a typographical error and that Tarquinii meant to

indicate an initial contact date of December 16, 2015. This is so because the date of the EEO

counselor’s final interview was March 31, 2016 and Tarquinii only filed her formal EEO

complaint on April 8, 2016—both dates before December 16, 2016. See id. at 4–5. Moreover,

the final decision regarding Tarquinii’s EEOC complaint specifies that Tarquinii “requested

[EEO] counseling” on “December 16, 2015.” See id., Ex. 35 at 3, ECF No. 60-38. Accordingly,

the record indicates that Tarquinii initiated EEO counseling on December 16, 2015.

Although, Tarquinii does not dispute that she initiated contact with an EEO counselor on

December 16, 2015, see generally Pl.’s Opp’n, Tarquinii has attached an email to her brief

opposing summary judgment that indicates that she contacted an EEO counselor earlier—on

November 24, 2015. See Pl.’s Opp’n, Ex. 38, ECF No. 65-41. As the Agency explains, that

email is unauthenticated and was not produced in discovery. See Def.’s Reply at 15. If a party

“fails to provide information” as required by Federal Rule of Civil Procedure 26(e), “the party is

not allowed to use that information . . . to supply evidence on a motion . . . unless the failure was

44 substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see also LCvR 26.2(a) (“A party

that without substantial justification fails to disclose information required by this Rule or by Fed.

R. Civ. P. 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Fed. R. Civ.

P. 26(e)(2) is not, unless such failure is harmless, permitted to use as evidence . . . on a motion

any . . . information not so disclosed.”). “If a party violates its obligation and fails to provide

such information, the sanction of preclusion is automatic and mandatory unless the party can

show that the failure to disclose was either substantially justified or harmless.” Stewart v. D.C.,

No. 17-cv-495,

, at *6 (D.D.C. Sept. 9, 2019), aff’d,

(D.C.

Cir. 2021) (precluding consideration of exhibits a plaintiff produced for the first time in

opposition to a defendant’s motion for summary judgment). The Agency specifically requested

that Tarquinii provide information and documentation on when she sought EEO counseling, see

Def.’s Mot. Seal, Ex. 3 at 8, 12, ECF No. 72–3, and Tarquinii has not explained why she did not

produce this email to the Agency. Additionally, the date indicated in the attached email is

directly contradicted by Tarquinii’s own EEO complaint and the final EEO decision and

Tarquinii does not dispute the December 16, 2015, date in her brief or in her statement of

genuinely disputed facts. See Def.’s MSJ, Ex. 1 at 4–5, ECF No. 60-4;

Ex. 35 at 3, ECF No.

60-38; see generally Pl.’s Opp’n. Accordingly, the Court concludes that there is no genuine

dispute with respect to December 16, 2015, as the date Tarquinii initiated contact with an EEO

counselor.

Working off of an initial EEO counselor contact date of December 16, 2015, only

employment actions that occurred on or after November 1, 2015—i.e., 45 days prior to

December 16, 2015—could be timely raised with the EEO counselor. See Craig,

; see also

(“An aggrieved person must initiate contact with a

45 Counselor 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.”). But here, the only

employment actions that Tarquinii points to after November 1, 2024, are the proposal of

termination, her termination, the denial of her termination appeals, and the Agency’s alleged

interference with her employment with other employers. Just as allegations of “the removal of

important assignments, lowered performance evaluations, and close scrutiny of assignments by

management” are not enough to state a hostile work environment claim, Nurriddin, 674

F.Supp.2d at 94, none of the actions at issue here are supportive of a hostile work environment

claim because none of these actions permeate the workplace with “discriminatory intimidation,

ridicule, and insult” such that this behavior would be “sufficiently severe or pervasive [as] to

alter the conditions of the victim’s employment and create an abusive working environment.”

Harris,

(citation omitted). Indeed, none of the actions at issue here were

intimidating, amounted to ridicule, or insulted Tarquinii. “Each event that [plaintiff] identifies as

an example of abusive conduct fails to add materially to the alleged aura of hostility” because the

actions were “sporadic” and “had some legitimate bases.” Mera v. Garland, No. 20-cv-2127,

, at *13 (D.D.C. Mar. 25, 2024); Durant v. D.C. Gov’t,

(D.C. Cir. 2017) (concluding that plaintiff’s placement on administrative leave and reprimand

letter were “taken not to intimidate, ridicule, or insult” plaintiff, but “to address his deficient

work performance,” and thus that these actions did not give rise to a hostile work environment

(alteration in original accepted)).

While Tarquinii’s termination certainly altered the terms of her employment, it did not do

so through intimidation or insult as is required for a hostile work environment claim. See

Hartzler v. Mayorkas, No. 20-cv-3802,

, at *23 n.10 (D.D.C. Oct. 27, 2022),

46 aff’d, No. 22-5310,

(D.C. Cir. June 28, 2024) (“Termination itself is not

harassing conduct, and while it can be an instance of disparate treatment, it does not create a

hostile work environment because it eliminates the existence of a work environment all

together.” (quotation marks and citation omitted)). And Tarquinii’s allegation that the Agency

interfered with new employment opportunities similarly did not alter the terms of Tarquinii’s

employment because, by that point, she was no longer at her former workplace. See Roberts v.

Sage Corp., No. 320CV365FJSATB,

, at *4 (N.D.N.Y. Aug. 16, 2021) (“It is

axiomatic, however, that incidents occurring after a plaintiff's employment has ended cannot

contribute to his hostile work environment.”) (collecting cases); Hossain v. McHugh, No. EP-15-

CV-00083-KC,

, at *10 (W.D. Tex. Nov. 13, 2015) (“[A]cts that occur after

the term of employment has ended cannot support a claim for hostile work environment”)

(collecting cases); Moseley v. Sessions, No. CV 216-153,

, at *3 (S.D. Ga.

Nov. 17, 2017) (“[E]vents supporting a hostile work environment claim cannot arise after the last

day of employment.”).

Because none of the alleged conduct that occurred after November 1, 2015, contributed

to a hostile work environment, Tarquinii cannot “adequately link[]” that conduct to events that

occurred earlier in her employment at Community Services. Jimenez, 395 F. Supp. 3d at 34.

Moreover, the actions that the Agency took after November 1, 2015, were categorically different

from the actions that Tarquinii alleges occurred earlier and therefore do not “involve the same

type of employment action” sufficient to connect the events into one hostile environment claim.

Id. (cleaned up); see also Vance v. O’Rourke, No. 18-cv-00577,

, at *7 (D.D.C.

Feb. 22, 2019) (“[T]he D.C. Circuit has held that untimely and timely discrete acts can be joined

together as a single hostile environment ‘only if they are adequately linked into a coherent

47 hostile environment claim—if, for example, they involve the same type of employment actions,

occur relatively frequently, and are perpetrated by the same managers.’” (emphasis in original)

(citation omitted)). For instance, the earlier actions that Tarquinii points to include inappropriate

remarks allegedly made by her second-line supervisor, Iwaniec, whereas the conduct that

occurred after November 1, 2015—which was not initiated, investigated, or based on

investigatory conclusions reached by Iwaniec—is related to Tarquinii’s termination due to

findings of misconduct reached by others first. Accordingly, the Court concludes that

Tarquinii’s hostile work environment claim is unexhausted, and the Agency is entitled to

summary judgment on that claim.8

D. Due Process

It is unclear from Tarquinii’s complaint whether she intends to raise a due process claim.

See Compl. at 1. To the extent she does, however, the Court concludes that a due process claim

is meritless on this record. Although Tarquinii does not state explicitly what due process interest

the Agency deprived her of, see generally Compl.; Pl.’s Opp’n, the Court infers that Tarquinii’s

claim is based on the termination of her employment.

“[B]oth the substantive and the procedural rights protected by the Due Process Clause

require a party to fulfill distinct legal elements.” Statewide Bonding, Inc. v. U.S. Dep’t of

Homeland Sec.,

, 41 (D.D.C. 2019), aff’d sub nom. Statewide Bonding, Inc. v.

8 While equitable tolling may be applied to Title VII claims, tolling is appropriate only where a plaintiff shows that she (1) “has been pursuing h[er] rights diligently, and (2) that some extraordinary circumstance stood in h[er] way and prevented timely filing.” Menominee Indian Tribe of Wisconsin v. United States,

(2016). Tarquinii has not pointed to anything in the record—and the Court has found nothing in the record—to suggest that anything prevented Tarquinii from timely contacting an EEO counselor with respect to her allegations. And indeed, Tarquinii specifically disclaimed raising any claims beyond those listed in her formal EEO complaints, even after twice amending that complaint. See Def.’s MSJ, Ex. 27 at 2– 3. Accordingly, equitable tolling is not merited here.

48 United States Dep’t of Homeland Sec.,

(D.C. Cir. 2020). “The substantive

component of the Due Process Clause protects fundamental rights, or those that are ‘implicit in

the concept of ordered liberty.’” Kelley v. D.C.,

(D.D.C. 2012).

“Fundamental rights are created only by the Constitution, and enjoy protection against certain

government actions, regardless of the fairness of the procedures used to implement them.”

(cleaned up). The D.C. Circuit has established that there is no fundamental right to government

employment. Am. Fed’n of Gov’t Emp. v. United States,

, 523 (D.C. Cir. 2003).

Because Tarquinii lacks a fundamental right to her employment, her claim does not enjoy

substantive due process protection. Id.

Similarly, a procedural due process claim does not succeed here. “[P]laintiffs making a

procedural due-process claim must show that: (1) they were deprived of a protected interest, and

(2) they did not receive the process they were due.” Statewide Bonding, 422 F. Supp. 3d at 41.

“Public employees who retain a property interest in their employment have a right to procedural

due process.” Kelley,

. The fundamental requirement of due process is

the opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v.

Eldridge,

, 332–33 (1976). “The Fifth Amendment only requires that a person

receive his or her due process, not every procedural device that he or she may claim or desire.”

Kelley,

. “Due process is flexible and calls for such procedural protections

as the particular situation demands.” Eldridge,

.

To begin with, the Supreme Court has held that the remedies and procedures provided in

the Civil Rights Act of 1964 are exclusive where the Act applies. See Brown v. Gen. Servs.

Admin.,

(1976). In other words, “[t]he Title VII remedy declared exclusive

for federal employees in Brown v. GSA precludes actions against federal officials for alleged

49 constitutional violations as well as actions under other federal legislation.” Kizas v. Webster,

(D.C. Cir. 1983). To that end, “this circuit has repeatedly held that federal

employees may not bring suit under the Constitution for employment discrimination that is

actionable under Title VII.” Ethnic Emps. of Libr. of Cong. v. Boorstin,

, 1415

(D.C. Cir. 1985). But Title VII does not “prevent federal employees from suing their employers

for constitutional violations against which Title VII provides no protection at all.” Boorstin, 751

F.2d at 1415.

Here, Tarquinii’s due process claim appears to merely “recast [her] Title VII claims as [a]

constitutional claim[].” Id. When a plaintiff merely states that an agency deprived her of her

right to her employment position without due process—in conjunction with a Title VII claim—

judges in this District have held that the plaintiff merely recast her Title VII claims. See Duffy v.

Dodaro, No. 16-cv-1178,

, at *7 (D.D.C. Mar. 21, 2020); see also Hester v.

Mayorkas, No. 21-cv-639,

, at *4 (D.D.C. Sept. 26, 2022), aff’d sub nom.

Hester v. Burrows, No. 22-5312,

(D.C. Cir. June 2, 2023) (holding preempted

plaintiffs “constitutional claims are based on alleged misrepresentations during disciplinary

investigations and EEOC proceedings” and “lack of due process” because those “employment

disputes are addressed by Title VII”). That is the situation here because it does not appear that

Tarquinii raises any due process claim unrelated to the employment action that she complained

of through the Title VII procedure. Rather, Tarquinii appears to argue that she was terminated

for discriminatory and retaliatory reasons. Accordingly, the Court concludes that a stand-alone

due process claim is not viable here.

A stand-alone due process claim would also fail under the Civil Service Reform Act

(“CSRA”). The CSRA “comprehensively overhauled the civil service system” and created an

50 “elaborate new framework for evaluating adverse personnel actions against federal employees.”

United States v. Fausto,

(1988) (internal citations and alterations omitted).

Not every federal employee, however, is entitled to these protections.

The Supreme Court

has held that “the CSRA’s ‘elaborate’ framework demonstrates Congress’ intent to entirely

foreclose judicial review to employees to whom the CSRA denies statutory review.” Elgin v.

Dep’t of Treasury,

(2012). “The D.C. Circuit has summarized the exclusivity of

the CSRA succinctly: ‘what you get under the CSRA is what you get.’” Lamb v. Holder,

(D.D.C. 2015) (quoting Fornaro v. James,

(D.C. Cir. 2005));

Powers v. U.S. Dep’t of Homeland Sec., No. 1:24-cv-01915,

, at *1 (D.D.C.

Aug. 1, 2024) (“The Civil Service Reform Act . . . provides the exclusive remedy for

adjudicating plaintiff's wrongful removal claim.”).

As an employee of a nonappropriated fund instrumentality, see Def.’s MSJ, Ex. 1 at 74,

ECF No. 60-4. Tarquinii is excluded from the CSRA provisions regarding termination, and

therefore her termination is not subject to this Court’s judicial review. See Perez v. Army & Air

Force Exch. Serv.,

, 787 (D.C. Cir. 1982) (concluding that employees of

nonappropriated fund instrumentalities are not employees within the meaning of

, which governs employee termination under the CSRA); cf., Filebark v. U.S. Dep’t of

Transp.,

(D.C. Cir. 2009) (citing McAuliffe v. Rice,

, 980–81

(5th Cir. 1992) for the proposition that employees of nonappropriated fund instrumentalities are

exempted from the CSRA and therefore that the Court lacks jurisdiction to assess termination

claims by employees of nonappropriated fund instrumentalities); see also Vela v. Dep’t of Navy,

(Fed. Cir. 1999) (holding that employees of nonappropriated fund

instrumentalities are excluded from the protection of

);

(c)

51 (specifying that an employee “paid from nonappropriated funds of the . . . Marine Corps

exchanges . . . . and other instrumentalities of the United States under the jurisdiction of the

armed forces . . . is deemed not an employee for the purpose of . . . laws administered by the

Office of Personnel Management”). The remedial scheme of the CSRA precludes Tarquinii’s

claim because “it is the comprehensiveness of the statutory scheme involved, not the ‘adequacy’

of specific remedies extended thereunder, that counsels judicial abstention.” Spagnola v. Mathis,

(D.C. Cir. 1988).

Even if Tarquinii could bring her due process claim under the CSRA—for “[m]ixed

cases, . . . those involving both an agency action reviewable by the [Merit Systems Protection

Board (“MSPB”)] (e.g., removal) and allegations that the action was motivated by discrimination

prohibited by federal statute”—her due process claim must first have been exhausted before the

MSPB before this Court will review it. Koch v. White,

(D.D.C. 2017),

aff’d sub nom. Koch v. Clayton, No. 17-5180,

(D.C. Cir. Sept. 19, 2018); see

also Anderson v. Garland, No. 1:23-cv-02674,

, at *5 n.4 (D.D.C. July 22,

2024) (explaining that while “[m]ixed case[s]. . . can eventually land in federal district court . . .

the plaintiff must first bring such claims before the MSPB”). And even if her due process claim

were exhausted before the MSPB, the Court “considers only whether the decision [of the MSPB]

was ‘arbitrary or capricious, obtained without compliance with lawful procedures, unsupported

by substantial evidence[,] or otherwise not in accordance with law.’” Koch,

(citation omitted). Tarquinii has pointed to no evidence demonstrating that she exhausted

her due process claim before the MSPB. Accordingly, the Court concludes that a due process

claim is unavailable to Tarquinii here.

52 The Court observes, however, that some judges in this District have held that the CSRA

does not preclude judicial review of constitutional claims where application of the CSRA would

“deny any judicial forum for a colorable constitutional claim.” Coleman v. Napolitano,

, 104–05 (D.D.C. 2014) (“[T]his Court has subject matter jurisdiction to hear the

plaintiff’s constitutional due process claim, which cannot be reviewed under the CSRA.”); Lamb,

(“Given the D.C. Circuit’s expressed preference for keeping the

courthouse doors open to federal employees raising constitutional claims, the Court finds it has

subject matter jurisdiction to hear these constitutional due process claims under the grant of

federal question jurisdiction.”); Davis v. Billington,

(D.D.C. 2014) (“In

keeping with the longstanding law of this Circuit that favors permitting plaintiffs the opportunity

to bring constitutional claims for injunctive relief in the district court, the Court finds that the

CSRA does not bar this Court’s jurisdiction to address the plaintiff's constitutional claims”); see

also Spagnola,

(“We do not suggest that the CSRA precludes the exercise of

federal jurisdiction over the constitutional claims of federal employees and job applicants

altogether.”); Suzal v. Dir., U.S. Info. Agency,

(D.C. Cir. 1994) (Williams, J.,

concurring) (interpreting the Circuit’s decision in Spagnola to mean that district courts may hear

challenges to employment actions when the CSRA does not provide an adequate alternative

route to judicial review); Bowman v. Iddon,

(D.C. Cir. 2017) (Tatel &

Ginsburg, JJ., concurring) (distinguishing case from Spagnola, Wilson, and Davis because

statutory “remedial scheme offer[ed] [plaintiffs] no rights or remedies at all”); Abdelfattah v.

U.S. Dep’t of Homeland Sec.,

(D.C. Cir. 2015) (explaining that “the CRSA

did not preclude judicial review of . . . constitutional claims [based on federal employment

actions] altogether”).

53 However, even assuming arguendo that the Court has jurisdiction to review Tarquinii’s

constitutional due process claim despite her exclusion under the CSRA, Tarquinii’s claim here

would fail because she lacks a property right in her continued employment. See Lamb,

(holding that federal “employees not covered by the termination provisions of

the CSRA, like [Tarquinii], have no . . . property right” in continued employment); see also

Garrow v. Gramm,

(D.C. Cir. 1988) (explaining that federal employees

without termination protections under the CSRA do not have property interest in continued

employment). Because Tarquinii was not deprived of any right protected by the Due Process

Clause, her due process claim would also fail on the merits. Thus, the Court grants the Agency

summary judgment on Tarquinii’s due process claim.9

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 60) is

GRANTED and Defendant’s Motion to Seal (ECF No. 72) is GRANTED. An order consistent

with this Memorandum Opinion is separately and contemporaneously issued.

Dated: September 26, 2024 RUDOLPH CONTRERAS United States District Judge

9 The Agency also moves to seal three of the exhibits Tarquinii attached to her opposition brief. See Def.’s Mot. Seal, ECF No. 72. Tarquinii has not opposed the motion to seal. The Court may order that filings containing private information be made under seal. See Fed. R. Civ. P. 5.2(d). The documents at issue here involve the disciplinary proceedings of third parties. Given that the public interest in these documents is minimal, it does not appear that Tarquinii objects to sealing these documents, and the documents involve private information regarding third parties, the Court will order the relevant documents to be sealed. See United States v. Hubbard,

, 317–24 (D.C. Cir. 1980).

54