UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CORETTE BYRD,

Plaintiff,

v. Civil Action No. 22-3746 (TSC)

XAVIER BECERRA,

Defendant.

MEMORANDUM OPINION

Plaintiff Corette Byrd, a former employee of the Bureau of Primary Health Care

(“BPHC”), a division within the U.S. Department of Health and Human Services (“HHS”),

brought this action against Xavier Becerra, in his official capacity as HHS Secretary, pursuant to

Title VII of the Civil Rights Act of 1964, alleging that BPHC discriminated against her based on

her race. Defendant moved to dismiss Counts I and II, and to limit Plaintiff’s eligibility to

receive back pay on the grounds that she voluntarily resigned from her position.

Having considered the record and the parties’ briefing, the court will GRANT in part and

DENY in part Defendant’s Motion.

I. BACKGROUND

Plaintiff worked at BPHC as a Senior Advisor until she resigned in March 2021. Am.

Compl., ECF No. 13 at 2, 11. She was the only Black Senior Advisor while she was employed at

BPHC. Id. at 2.

Plaintiff alleges that, from around November 2019 until she resigned, her supervisors

reassigned about 95% of her duties to her White colleagues, including her leadership of the

Ending HIV Epidemic Initiative. Id. at 2–3. She also claims that she was not given “any new

Page 1 of 17 work” while the White Senior Advisors were given valuable, “career enhancing” opportunities.

Id. at 3. Plaintiff claims that in May 2020 she received a special assignment to “lead and develop

the National Hypertension Initiative,” which was cut short due to an “overwhelming, urgent

amount of work back at BPHC.” Id. at 4. When she returned to BPHC, however, she was

“barely provided with . . . any assignments at all,” and the assignments she did receive she had to

“beg” for and were “busy work.” Id. at 4–5. Her White colleagues, “almost all of whom had

less experience than” she did, “began receiving special assignments and projects, details, and

other opportunities,” and “did not have to beg . . . for new assignments.” Id. at 5–6. After

Plaintiff “asked [her supervisor] for work several times,” she was assigned to “develop and lead

the transition work for the new administration.” Id. at 5. But after Plaintiff spent “several

months” developing transition materials, her supervisor assigned a White Senior Advisor to the

Health Resources and Services Administration’s (“HRSA”) Office of the Administrator to

support the transition. Id. at 7.

In December 2020, Plaintiff applied for a vacant Supervisory Public Health Analyst

position. Id. at 8. She was interviewed for the position, but one of her less qualified White

colleagues was eventually selected. Id. at 8, 10. While waiting to hear back regarding the

position, Plaintiff had her 2020 performance review, in which she received a 4 out of 5 rating for

“achiev[ing] more than expected results.” Id. at 8. Because she received a 4 rather than a 5,

however, Plaintiff was denied a pay increase and was given a lower bonus. Id. at 9. She claims

her supervisors “did not rate any white Senior Advisors lower than [her] for this performance

period.” Id. at 10. Plaintiff challenged her performance rating, but her second line supervisor,

who “had not assigned [Plaintiff] any work 90 days prior to the end of year performance

review,” said that “the write up and rating reflect[ed]” the quality of Plaintiff’s work. Id. at 9.

Page 2 of 17 On March 10, 2021, two days before she resigned, Plaintiff made initial contact with an

Equal Employment Opportunity (“EEO”) Counselor. Id. at 2. The Equal Employment

Opportunity Commission (“EEOC”) issued a Final Agency Decision on her complaint on

September 20, 2022. Id. On December 16, 2022, Plaintiff filed this action. On April 26, 2023,

the court granted Plaintiff’s Motion to File an Amended Complaint. Min. Order, April 26, 2023.

Plaintiff seeks compensatory damages, “back pay as if [Plaintiff] had been promoted, plus

interest,” Plaintiff’s “retroactive within grade increase and back pay, plus interest,” a revised

performance rating and accompanying cash bonus, an injunction prohibiting “further

discriminati[on] against Plaintiff,” and attorney’s fees and costs. Am. Compl. at 14.

Defendant filed a Partial Motion to Dismiss Count I and II and to limit Plaintiff’s

eligibility to recover back pay. Partial Mot. to Dismiss Am. Compl., ECF No. 14; see Mem. in

Supp., ECF No. 14-1 (“Motion”). Defendant argues that (1) Plaintiff did not exhaust her

administrative remedies in Count I because she did not make initial contact with her EEO

Counselor within 45 days of the allegedly discriminatory acts, Mot. at 8–11, (2) Plaintiff failed to

state a claim in Count I or Count II, id. at 11–21, and (3) Plaintiff’s ability to recover back pay

should be limited to the date of her resignation because she did not plead that she was

constructively discharged, id. at 21–24.

In opposition, Plaintiff contends that she exhausted Count I because it is a hostile work

environment claim, and therefore only one of the alleged acts needed to occur within 45 days of

her initial contact with her EEO Counselor. Mem. in Opp’n, ECF No. 15 at 6–7 (“Opp’n”).

Plaintiff also argues that her allegations allow the court to draw a reasonable inference of

discrimination for Counts I and II and that denying Plaintiff career opportunities by reassignment

constitutes an adverse employment action. Id. at 8–11, 14–15.

Page 3 of 17 On February 5, 2024, the court granted Defendant’s Motion, ECF Nos. 17, 18. But on

March 7, 2024, the court sua sponte vacated its Memorandum Opinion and Order to reconsider

its decision. Min. Order, Mar. 7, 2024; see Fed. R. Civ. P. 54(b) (providing that any decision

“that adjudicates fewer than all the claims . . . does not end the action as to any of the claims or

parties and may be revised at any time before the entry of a judgment adjudicating all the

claims.”).

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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

(2009) (citation omitted). In other words, the plaintiff must plead “factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.”

(citation omitted).

In deciding a motion to dismiss, the court presumes the truth of the factual allegations in

the complaint and affords the plaintiff “every favorable inference that may be drawn from the

allegations of fact.” Laughlin v. Holder,

, 208–09 (D.D.C. 2013) (citing

Scheuer v. Rhodes,

(1974)). The court does not, however, “accept as true ‘a

legal conclusion couched as a factual allegation,’ nor inferences that are unsupported by the facts

set out in the complaint.” Id. at 209 (citation omitted).

Page 4 of 17 III. ANALYSIS

A. Legal Framework

i. Exhaustion

To bring a civil action under Title VII, a plaintiff must first “timely exhaust . . .

administrative remedies.” Bowden v. United States,

(D.C. Cir. 1997). To

exhaust administrative remedies, “[a]n aggrieved person must initiate contact with [an EEO]

Counselor within 45 days of the date of the matter alleged to be discriminatory.”

(a)(1). This exhaustion requirement is “akin to a statute of limitations.” Stewart v.

Ashcroft,

(D.C. Cir. 2003). Thus, although exhaustion is not a “jurisdictional

bar,” the court “must still address” it at the outset.

“Because untimely exhaustion of

administrative remedies is an affirmative defense, the defendant bears the burden of pleading and

proving it.” Bowden,

(citation omitted). “If the defendant meets its burden, the

plaintiff then bears the burden of pleading and proving facts supporting equitable avoidance of

the defense.”

(citation omitted).

Claims involving discrete act claims and hostile work environment have different

exhaustion requirements. See, e.g., Coleman-Adebayo v. Leavitt,

, 137–38

(D.D.C. 2004). Accordingly, the court must identify which type of claim is at issue before

deciding whether it was exhausted.

A claim pleads discrete acts of discrimination if it alleges “incidents that were different in

kind, involved different individuals, and occurred at different times.” Est. of Rudder v. Vilsack,

(D.D.C. 2014). To plead a hostile work environment claim, a complaint

must allege “‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.’” Baloch v. Kempthorne,

(D.C. Cir. 2008) (quoting Harris v. Page 5 of 17 Forklift Sys., Inc.,

(1993)). “[T]he removal of important assignments, lowered

performance evaluations, and close scrutiny of assignments by management” are not

“sufficiently intimidating or offensive in an ordinary workplace context” to support a hostile

work environment claim, especially when they are not close in time. Nurriddin v. Bolden,

(D.D.C. 2009). And “a plaintiff may not combine discrete acts to form a

hostile work environment claim without meeting the required hostile work environment

standard.” Baird v. Gotbaum,

(D.C. Cir. 2011) (“Baird I”).

Where an employee alleges discrete acts, “[e]ach discrete discriminatory act starts a new

clock for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan,

(2002). In other words, only discrete acts that occurred within 45 days of when the plaintiff

contacted an EEO Counselor are exhausted. See

“[D]iscrete discriminatory acts are not

actionable if time barred,” even when they relate to acts that were exhausted within the

applicable limitations period.

And the continuing violations doctrine—a principle of

equitable tolling that allows a court to find a claim was brought timely “so long as one act falls

within the charge filing period”—does not apply to discrete acts claims.

.

ii. Inference of discrimination

Title VII prohibits “discrimination based on race, color, religion, sex, or national origin”

in “[a]ll personnel actions affecting employees or applicants for employment . . . in executive

agencies” of the United States. 42 U.S.C. § 2000e-16(a). “[T]he two essential elements of a

discrimination claim” under Title VII “are that (i) the plaintiff suffered an adverse employment

action,” Baloch,

, and (ii) “the motive to discriminate was one of the employer’s

motives,” Univ. of Tenn. Sw. Med. Ctr. v. Nassar,

(2013).

Page 6 of 17 “Courts in this Circuit ‘have consistently recognized the ease with which a plaintiff

claiming employment discrimination can survive . . . a motion to dismiss.” McNair v. District of

Columbia,

(D.D.C. 2016) (quoting Fennell v. AARP,

(D.D.C. 2011)). “Though the ‘initial burden’ of pleading the ‘because of’ element is

‘not onerous,’” Keith v. U.S. Gov’t Accountability Off., No. 21-cv-2010,

,

at *3 (D.D.C. Aug. 29, 2022) (citation omitted; formatting modified), “plaintiff must ‘allege

some facts that demonstrate . . . race was the reason for defendant’s actions,’” Doe #1 v. Am.

Fed’n of Gov’t Emps.,

, 102 (D.D.C. 2021) (citation omitted). One way that a

plaintiff may plead an inference of discrimination is “by showing ‘that she was treated

differently from similarly situated employees who are not part of the protected class.’” Brown v.

Sessoms,

(D.C. Cir. 2014) (citation omitted). To do so, the plaintiff “must

allege some facts to ground a reasonable inference that [she] was in fact similarly situated to

comparator employees.” Keith,

, at *3. The plaintiff does not need to

“nam[e] comparators,” or allege “specifics” at the motion to dismiss stage. Jbari v. District of

Columbia,

(D.D.C. 2018) (citation omitted).

iii. Adverse employment action

Defendant contends that the court should apply the “personnel action” definition from

Babb v. Wilkie,

(2020), in determining whether Plaintiff alleged an adverse

employment action. Mot. at 18–21. In Babb, the Supreme Court interpreted the federal sector

provision of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.

§ 633a(a), and concluded that “age must be a but-for cause of discrimination—that is, of

differential treatment—but not necessarily a but-for cause of a personnel action itself.” Babb,

. In interpreting the term “personnel action,” Babb explained that “the ADEA

Page 7 of 17 does not define” the term, but “its meaning is easy to understand.”

. The Court

incorporated the statutory definition of “personnel action” from the Civil Service Reform Act of

1978 (“CSRA”), which “broadly defines a ‘personnel action’ to include most employment-

related decisions, such as appointment, promotion, work assignment, compensation, and

performance reviews.”

(citing

(a)(2)(A)). The only appellate courts to

consider whether Babb applies to § 2000e-16—Title VII’s federal sector provision—have

concluded that it does. Babb v. Sec’y, Dep’t of Veterans Affs.,

, 1198–1205 (11th

Cir. 2021) (applying Babb’s causation holding to § 2000e-16(a)); Huff v. Buttigieg,

,

645–46 (7th Cir. 2022) (same).

In interpreting Title VII’s private sector provision, however, the D.C. Circuit has held

that all a plaintiff need establish under Title VII’s “plain text” is “that an employer has

discriminated against an employee with respect to that employee’s ‘terms, conditions, or

privileges of employment’ because of a protected characteristic”—no proof of “objectively

tangible harm” is required. Chambers v. District of Columbia,

, 874–75 (D.C. Cir.

2022) (en banc). Chambers held that “terms, conditions, or privileges of employment” include

“the transfer of an employee to a new role, unit, or location,” and that the phrase “evinced an

intent to strike at the entire spectrum of disparate treatment in employment.”

(formatting modified). The Court noted that “the phrase is not without limits”—it may not

include “de minimis harms.”

at 874–75. In so holding, Chambers expressly overruled the

Circuit’s decision in Brown v. Brody,

(D.C. Cir. 1999), which interpreted

§ 2000e-16. Chambers,

(“Brown’s approach is clearly mistaken.”). The Court

ruled that, rather than “terms, conditions, or privileges of employment,”

, § 2000e-16(a)

prohibits discrimination in “personnel actions affecting employees.” Babb,

.

Page 8 of 17 For the reasons set forth below, however, the court need not decide whether to apply

Babb’s definition of “personnel action” or Chambers’ definition of “terms, conditions, or

privileges of employment” here.

B. Count I

Defendant first moves to dismiss Count I on the grounds that Plaintiff failed to exhaust

her administrative remedies, plead an inference of discrimination, and plead an adverse

employment action.

i. Exhaustion

Defendant argues that Count I pleads discrete acts of discrimination, whereas Plaintiff

contends for the first time in her opposition that Count I pleads a hostile work environment.

Compare Mot. at 8–9, with Opp’n at 6–7.

Count I alleges discrete acts of discrimination, not a hostile work environment. The

words “hostile work environment” do not appear in the Amended Complaint at all. Moreover,

Count I states that “Defendant violated Title VII when it removed her substantive duties because

of her race, beginning in 2019 and continuing through the duration of her employment,”

specifically that Plaintiff’s supervisor assigned a coworker to take over her transition work, while

another coworker was given “the authority to manage and assign work” to the Senior Advisors,

despite having less experience than Plaintiff. Am. Compl. at 11–12. Although Plaintiff pleads

these acts were “different in kind,” she concedes they occurred over the course of approximately

two years and involved Plaintiff’s supervisor and several different coworkers. See Est. of

Rudder,

.

Count I alleges only removal of substantive duties, which is not the kind of “intimidation,

ridicule, and insult,” of the severity or pervasiveness necessary to state a hostile work

Page 9 of 17 environment claim. See Baloch,

. Indeed, “the removal of important

assignments,” especially when not close in time, cannot support a hostile work environment

claim. Nurriddin,

. And, as in Baloch, none of the alleged “actions

directed at [Plaintiff] expressly focused on [her] race,” nor are her claims of harm supported by

“evidence of tangible workplace consequences, whether financial, physical, or professional.”

Baloch,

. Instead, Plaintiff alleges that these acts caused “pain and suffering,

emotional distress, [and] mental anguish.” Am. Compl. at 12. Plaintiff also notes that she lost

“future . . . wages,” but fails to give any information as to how or why the loss of her substantive

duties caused future lost wages. See

Plaintiff argues that Count I states a hostile work environment claim because it “involves

a continuing series of the same type of employment actions, which occurred relatively frequently

and were perpetrated by the same managers.” Opp’n at 7–8. But Plaintiff makes no such

assertion in her Amended Complaint. She identifies only one example of a “continuing series of

the same type of employment actions,” in her opposition brief, id. at 7, and the Amended

Complaint identifies two examples, which allegedly took take place over the course of

approximately two years. Am. Compl. at 11 (“Defendant violated Title VII when it removed her

substantive duties because of her race, beginning in 2019 and continuing through the duration of

her employment”); id. (Plaintiff’s “last working day . . . was March 12, 2021.”). Moreover,

frequency and type of conduct are only two of the relevant considerations in determining a

hostile work environment. “Severity and pervasiveness are determined by reference to ‘all the

circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.’” Baird v. Gotbaum,

(D.C.

Page 10 of 17 Cir. 2015) (“Baird II”) (citation omitted). Simply alleging more than one instance of the same

kind of conduct does not render Count I a hostile work environment claim.

Plaintiff first contacted her EEO Counselor on March 10, 2021. Am. Compl. at 2. Thus,

to meet the exhaustion requirement, a discrete act must have occurred on or after January 24,

2021—45 days prior—and been named in the EEO Charge. See Morgan,

. As

Defendant points out, the only discrete act in Count I that could possibly be within this

timeframe is Plaintiff’s allegation that her supervisor assigned a coworker to take over her

transition work “[i]n or about late January 2021.” Am. Compl. at 7, 11, 13; Mot. at 8–9.

Although this allegation is mentioned in the EEOC’s Notice of Intent to Issue a Decision, ECF

No. 14-2 at 2, nothing in the Amended Complaint or the record indicates when the reassignment

of transition work occurred. Because the Defendant bears the burden of proving lack of

exhaustion, the court therefore assumes without deciding that Plaintiff’s allegation that her

supervisor assigned her White coworker to take over her transition work was timely. See

Bowden,

.

ii. Inference of discrimination

Defendant also contends that Plaintiff failed to plead an inference of discrimination in

Count I. Mot. at 11–15. The court will consider only Plaintiff’s allegation that her supervisor

“announced that [her White colleague] would be heading to HRSA’s Office of the Administrator

in early February 2021 to support the transition work in preparation for the new administration,

even though [Plaintiff] had been leading and developed the transition materials,” Am. Compl.

at 7, as Plaintiff’s other allegations were not exhausted.

Plaintiff has adequately pleaded an inference of discrimination. She alleges that “almost

all of” her White colleagues “had less experience” than she did, Am. Compl. at 6, and that she

Page 11 of 17 was “more qualified” than any of her White colleagues for a promotion, id. at 10. She then

claims her transition work was reassigned to one of her White colleagues because of her race.

Id. at 11. At the motion to dismiss stage, these allegations suffice to plead that her substantive

duties were reassigned to her less qualified, less experienced colleagues because of her race.

iii. Adverse employment action

Plaintiff alleges an adverse employment action in Count I under either Babb or

Chambers. First, under Babb, the CSRA considers “any significant change in duties,

responsibilities, or working conditions” to be a “personnel action.”

(a)(2)(A)(xii). Plaintiff alleges that her supervisor reassigned her transition work to her

White colleagues, even though it was “the only meaningful work she was assigned since

returning early from [a] detail.” Am. Compl. at 7. By taking away Plaintiff’s only “meaningful

work,”

Defendant’s action caused a “significant change in duties.”

(a)(2)(A)(xii). Second, under Chambers, although “not all changes in work assignments

necessarily constitute adverse actions, . . . stripping [an employee] of the duties normally

associated with that [position]” or giving an employee “significantly different responsibilities”

suffices to establish an adverse employment action. Yazzie v. Nat’l Org. for Women,

, 79 (D.D.C. 2024) (citation omitted). Because the transition project was a task

Plaintiff worked on “[f]or several months” and was “the only meaningful work” she had,

reassigning it resulted in Plaintiff having “significantly different responsibilities.”

(a)(2)(A)(xii).

C. Count II

Defendant also moves to dismiss Count II on the ground that Plaintiff has failed to plead

an inference of discrimination or an adverse employment action.

Page 12 of 17 i. Inference of discrimination

Plaintiff has also pleaded an inference of discrimination with respect to Count II. She

alleges that she was issued “an unfairly low performance rating,” which “denied her a within

grade increase and lowered her cash bonus, because of her race,” and her supervisors “did not

rate any white Senior Advisors lower than [her]” that year. Am. Compl. at 10, 12. She also

contends that her White colleagues were given her assignments and received opportunities to

grow that she was not provided.

. The Amended Complaint, taken as a whole, also

sufficiently pleads that Plaintiff’s White colleagues were similarly situated to her. Plaintiff

alleges that “almost all of” her White colleagues “had less experience” than her,

, and that

she was “more qualified” than any of her White colleagues for a promotion,

. Thus,

Plaintiff alleges that she was given an equal or lower performance rating than her less qualified

and less experienced White colleagues, and that those colleagues received her assignments and

growth opportunities that were denied to her because of her race. See Brown, 774 F 3d at 1022

(D.C. Cir. 2014) (citation omitted); see also Jbari,

(allegations that

plaintiff “was treated less favorably than others outside his protected class” sufficient at the

motion to dismiss stage).

Defendant contends that Plaintiff does not allege that she “deserved a better

[performance] rating than” the White Senior Advisors. Mot. at 16. Plaintiff does, however,

allege that she was “more qualified” and experienced than the White Senior Advisors, Am.

Compl. at 10; that she was the only Black Senior Advisor, id. at 2; and that her supervisors “did

not rate any white Senior Advisors lower than [her] for this performance period,” id. at 10. The

allegation that she was “more qualified” for a promotion than her colleagues implies that she

Page 13 of 17 performed equally or better than them as Senior Advisors. At the motion to dismiss stage, these

allegations are sufficient.

ii. Adverse employment actions

Plaintiff’s allegations in Count II—that she was given a lower performance rating, was

not given growth opportunities, and had her substantive duties reassigned—are also “adverse

employment actions” under Babb or Chambers.

First, the CSRA—upon which Babb relied—specifically provides that a “personnel

action” includes “a performance evaluation.”

(a)(2)(A)(viii). And Plaintiff

alleges that she was issued “an unfairly low performance rating.” Am. Compl. at 12. Second,

the CSRA provides that decisions “concerning education or training” are personnel actions “if

the education or training may reasonably be expected to lead to . . . promotion.”

(a)(2)(A)(ix). Plaintiff claims that “many of her white colleagues” were provided

“opportunities to grow and advance their careers,” including “details [and] special assignments.”

Am. Compl. at 13. And, importantly, Plaintiff was told that she was not chosen for a promotion

because she “needed to get experience leading teams and projects across the federal

government.”

. Thus, a fair inference is that the growth opportunities Plaintiff was

passed up for could have been reasonably expected to lead to her promotion. Finally, the CSRA

considers “any other significant change in duties, responsibilities, or working conditions” to be a

“personnel action.”

(a)(2)(A)(xii). Plaintiff’s allegation that her supervisor

“gave [her] substantive duties away to her white colleagues” meets this definition. Am. Compl.

at 13. Plaintiff alleges that “about 95% of her duties” were reassigned,

, which is certainly

a “significant change in duties.”

(a)(2)(A)(xii).

Page 14 of 17 Defendant argues that Plaintiff’s allegation “about some duties that others received” is

not a “personnel action.” Mot. at 20. To be sure, it is possible that an allegation that colleagues

received “some duties” might not alone constitute a “personnel action.” But Plaintiff alleged that

about 95% of her substantive duties were reassigned to her White colleagues—not just “some.”

Am. Compl. at 2, 10. That allegation is sufficient to plead a personnel action because it

represents a “significant change in duties.”

(a)(2)(A)(xii).

Plaintiff’s allegations likewise meet Chambers’ definition of “terms, conditions, or

privileges of employment.” First, actions affecting performance evaluations are certainly

adverse employment actions where they “result[] in [the] employee not receiving a cash award.”

Montgomery v. McDonough,

, 16 (D.D.C. 2023) (citation omitted). Thus,

Plaintiff’s allegations that she was given an unfairly low performance rating, affecting her salary

and her bonus, are sufficient to state a claim. Am. Compl. at 12. Second, Plaintiff’s allegation

that she was held back from growth opportunities that could be helpful in securing a promotion,

Am. Compl. at 10, 13, is also an adverse employment action. See Heavans v. Dorado,

, 14 (D.D.C. 2022) (exclusion from leadership meetings constitutes an adverse

employment action). And finally, Plaintiff’s allegation that about 95% of her substantive duties

were reassigned to her White colleagues, Am. Compl. at 2, 10, suffices. As courts in this district

have observed, although “not all changes in work assignments necessarily constitute adverse

actions” under Chambers, “stripping [an employee] of the duties normally associated with that

[position]” or giving an employee “significantly different responsibilities” is enough. Yazzie,

; supra at 12.

With regard to Plaintiff’s allegations about lack of opportunities, Defendant argues that

the Amended Complaint gives “no indication what those opportunities were, that the

Page 15 of 17 opportunities were actually better, or that Plaintiff had applied for, was available for, and was

qualified (let alone more qualified) for those particular opportunities.” Mot. at 21. Not so.

Plaintiff pleaded that the opportunities included “details” and “special assignments,” and “other

opportunities to grow and advance their careers.” Am. Compl. at 13. She also alleged that she

was more experienced and more qualified than the White Senior Advisors. Id. at 6, 10. Those

allegations suffice at the motion to dismiss stage; Plaintiff states a claim for relief in Count II.

D. Damages

Finally, Defendant contends that Plaintiff cannot recover back pay for the period after her

departure on March 10, 2021, because she resigned voluntarily. Mot. at 21–24; Reply to Opp’n

to Mot. to Dismiss, ECF No. 16 at 9. The court declines to decide this damages question at this

stage of the litigation. For one thing, “the court is generally reluctant to wade into a legal dispute

before the adversarial process has had an opportunity to shed light on the question at hand.”

Marcus v. Geithner,

(D.D.C. 2011) (discussing a damages argument

made at the motion to dismiss stage in a Title VII action). For another, it is unclear which counts

Plaintiff seeks back pay for. Each of Counts I, II, and III enumerate “future lost wages, pain and

suffering, emotional distress, mental anguish, and/or punitive damages,” Am. Compl. at 12–14,

but the Amended Complaint also requests “back pay as if [Plaintiff] had been promoted, plus

interest,”

. Rather than decide this issue when it may not be relevant, the court leaves

damages to another day.

Page 16 of 17 IV. CONCLUSION

For the foregoing reasons, the court will GRANT in part and DENY in part Defendant’s

partial motion to dismiss. A separate Order will accompany this Memorandum Opinion.

Date: October 28, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 17 of 17