UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VINCENT SIMIEN,

Plaintiff

v. Case No. 23-cv-888 (CRC)

ALEJANDRO N. MAYORKAS, in his official capacity as Secretary of the United States Department of Homeland Security,

Defendant.

OPINION AND ORDER

The Federal Emergency Management Agency (“FEMA”) terminated Plaintiff Vincent

Simien for misconduct and canceled his pending transfer to a different office within the agency,

soon after he complained that his supervisor was singling him out for unfair treatment. Based on

those actions, Mr. Simien, who is African American, has sued the Secretary of FEMA’s parent

agency, the Department of Homeland Security, in his official capacity, for retaliation, racial

discrimination, and maintaining a hostile work environment in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. The government has moved to dismiss all but

Simien’s retaliation claim. Simien opposes dismissal and separately moves for leave to amend

his original complaint to beef up its allegations. Finding the proposed amended complaint still

does not plead a valid discrimination or hostile work environment claim, the Court will grant the

government’s partial motion to dismiss and deny Simien leave to amend those claims. The Court

will, however, permit leave to amend the still-live retaliation claim. I. Background

The Court draws the following background from the allegations in the proposed amended

complaint, which the Court must accept as true in deciding the government’s motion to dismiss

and whether to permit the amendment.

Vincent Simien, who is African American, worked as a Reservist in FEMA’s Public

Assistance Cadre. Prop. Am. Compl., ECF No. 37, ¶¶ 7, 22. During his tenure, Simien claims

his supervisor, Peggy Kemler, who is white, “singled [him] out . . . in front of his peers and

subjected [him] to humiliation, mocking, and undue criticism,” required him to work overtime

without compensation, “continuously called [him] to check [his] work, was rude, hung up the

telephone,” criticized his work, and failed to provide him with adequate guidance. Id. ¶¶ 48–51,

55–59. In June 2016, when Simien went to report Kemler’s behavior to an EEO counselor, a

FEMA Task Force Lead, Brian Slie, allegedly interrogated him, told the EEO counselors that

everything he would say would be a lie, and brought armed officers to wait outside the door

during Simien’s intake interview. Id. ¶¶ 12, 14, 16. A month later, another FEMA supervisor,

Laycee Kent, fired him. Id. ¶ 22.

According to Simien, Kent justified her decision to cashier him on four alleged incidents

of improper conduct, each of which he recounts, and disputes, in the proposed amended

complaint. First, Simien was accused of “impersonating a FEMA Security Officer” by falsely

representing that he was “conducting a ‘safety and security check on [a] hotel.’” Id. ¶¶ 26,

52. In Simien’s telling, however, Kemler told him to “scout” local hotels while on a business

trip, and though he did ask various hotels about safety issues at their properties while wearing

FEMA clothing, he contends that his inquiries “should not [have been] construed as him

performing safety and security checks in his official capacity.” Id. ¶¶ 28–30, 52, 54. Second,

2 Simien allegedly told a coworker that Kemler “would get ‘four flat [tires] and into a [car]

accident.’” Id. ¶ 31. Simien retorts that he “never said anything about a car accident” but does

not appear to dispute his comment about the four flat tires. Id. ¶ 32. Third, Simien was accused

of calling coworkers “old man,” “kid,” and “stupid.” Id. ¶ 34. Simien denies having used the

first two terms and explains that while he may have said “stupid to refer to a joke,” “[t]his

conversation occurred in private with a coworker that Plaintiff was friends with.” Id. ¶¶ 35–

36. Finally, Simien allegedly “commented to another hotel guest that he would ‘stab her with a

plastic fork.’” Id. ¶ 38. Simien says this communication never occurred. Id. ¶ 39.

Presumably in response to these alleged infractions, though the proposed amended

complaint is not clear, Mr. Slie recommended that Simien receive “additional job skills training

and training in the area of interpersonal skills.” Id. ¶ 17. But the deciding official, Ms. Kent,

determined that training was insufficient and proceeded with termination, noting the agency’s

“zero tolerance for threats regardless of whether they are jokes[.]” See id. ¶¶ 20–21. At that

time, Simien had already accepted a Reservist Security Manager position with another FEMA

office. Id. ¶ 43. 1 That offer was subsequently withdrawn because the “hiring officials ha[d]

determined that they d[id] not wish to pursue with the transfer” based on “recent notifications

regarding [Simien’s] FEMA employment history[.]” Id. ¶¶ 43, 45. Simien claims his

termination and the withdrawn job offer constituted racial discrimination and retaliation (Count

1), id. ¶¶ 61–62, and that FEMA subjected him to a discriminatory and retaliatory hostile work

environment (Count 2), id. ¶¶ 68, 70.

1 Because Simien refers to the new position as a “transfer,” the Court assumes that it was also within FEMA, though it is not clearly stated in the original or proposed amended complaint. In any case, the location of the job is not material to the resolution of the pending motions.

3 The government moved to dismiss Simien’s hostile work environment and discrete

discrimination claims, contending that the actions alleged were not sufficiently “severe and

pervasive” to constitute a hostile work environment and that Simien had failed to adequately

connect any of the actions, including his termination and the withdrawn job offer, to his race or

sex. See Partial Mot. Dismiss at 4–10. In his opposition to that motion, Simien maintained that

a “theme of being singled out” “emerges” from his complaint, which is sufficient to support both

a hostile work environment claim and an inference of racial discrimination. Pl.’s Opp’n at 2–5.

He simultaneously moved for leave to file an amended complaint, seeking to address arguments

in the motion to dismiss. See Mot. Amend at 2. The proposed amended complaint adds a few

new factual allegations, see, e.g., Prop. Am. Compl. ¶ 45, while removing Simien’s previously

alleged sex discrimination claim, compare Compl. ¶ 61 with Prop. Am. Compl. ¶ 68. As

directed by the Court, the government filed a consolidated reply and opposition to the motion for

leave to amend contending that leave should be denied, and its motion to dismiss granted,

because Simien failed to comply with Local Civil Rule 7(m)’s meet-and-confer requirement and

that the proposed amendments would still fail to state claims of discrimination or hostile work

environment. Def.’s Opp’n at 1–8. Though the Court prompted Simien to reply to the

government’s opposition, see Min. Order (Oct. 19, 2023), he has not done so. Both motions are

therefore fully briefed and ripe for review.

II. Legal Standards

The government has moved to dismiss Simien’s complaint pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. To survive this motion, the complaint must present

“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly,

(2007). A reviewing court must construe the complaint “liberally

4 in the plaintiffs’ favor” and “grant plaintiffs the benefit of all inferences that can be derived from

the facts alleged,” but is not required to “accept inferences drawn by plaintiffs if such inferences

are unsupported by the facts set out in the complaint” or to “accept legal conclusions cast in the

form of factual allegations.” Kowal v. MCI Comm’ns Corp.,

(D.C. Cir.

1994) (internal citations omitted). A complaint “should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” Atchinson v. District of Columbia,

(D.C. Cir. 1996) (citations omitted).

As for Simien’s motion for leave to amend his complaint, Federal Rule of Civil

Procedure 15(a)(2) provides that a plaintiff may only file an amended complaint more than 21

days after service of a motion under Rule 12(b) with the opposing party’s consent or with leave

of court. Leave to amend a complaint is to be “freely given when justice so requires,” but may

be denied due to “undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment,” or “futility of amendment.” Foman v. Davis,

(1962) (quoting Fed. R. Civ. P. 15(a)). Where an “amended [c]omplaint could

not withstand a motion to dismiss,” it is “futile.” Moldea v. N.Y. Times Co.,

(D.C. Cir. 1994).

III. Analysis

The Court begins with the government’s contention that the Court should deny leave to

amend the complaint due to Simien’s counsel’s failure to comply with the Court’s local rules.

Opting to overlook counsel’s transgression, the Court will then assess whether granting leave to

amend would be futile.

5 A. Compliance with Local Civil Rule 7(m)

Local Civil Rule 7(m) provides: “Before filing any nondispositive motion in a civil

action, counsel shall discuss the anticipated motion with opposing counsel in a good-faith effort

to determine whether there is any opposition to the relief sought and, if there is, to narrow the

areas of disagreement.” It further requires that a party “shall include in its motion a statement

that the required discussion occurred, and a statement as to whether the motion is opposed.”

LCvR 7(m). Simien’s nondispositive motion to amend the complaint does not include such a

statement and government counsel represents that no discussion of the motion in fact occurred.

Def.’s Opp’n at 2. Simien does not respond to this argument—indeed, he does not respond to the

government’s opposition at all—effectively conceding that the motion is in breach of Rule 7(m).

“Under these circumstances,” the government contends, “the Court should deny Simien’s motion

to amend complaint.”

But finding that “Local Rule 7(m) has been violated . . . is not the end of the analysis” as

“[b]reach raises the further question of remedy.” Steele v. United States, No. 14-cv-1523-RCL,

, at *3 (D.D.C. Sept. 25, 2023). And here, denying the motion would violate

the spirit of Rule 15’s instruction that a “court should freely give leave when justice so requires.”

Fed. R. Civ. P. 15(a)(2). Aside from its futility arguments, the government does not suggest that

allowing the amendments would be unjust due to factors like “undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, [or] undue prejudice[.]” Foman,

. In addition, the Court generally tries

“to avoid prejudicing litigants for their counsel’s errors.” Niedermeier v. Off. of Baucus,

(D.D.C. 2001). The Court will therefore exercise its discretion to consider

Simien’s proposed amendments despite the breach of local rules.

6 B. Futility

Both Simien’s original and proposed amended complaints include the following Title VII

claims, pled across two counts: (1) discriminatory hostile work environment, (2) retaliatory

hostile work environment, (3) racial discrimination based on the termination and withdrawn job

offer, and (4) retaliation based on the termination and withdrawn job offer. The government’s

partial motion to dismiss and opposition to Simien’s motion to amend address the first three

claims, arguing that each should be dismissed for failure to state a claim. Partial Mot. Dismiss at

11; Def.’s Opp’n at 9. The Court takes up each of the three claims in turn.

1. Discriminatory Hostile Work Environment

Count 2 of the proposed amended complaint charges FEMA with subjecting Simien to a

discriminatory and retaliatory hostile work environment. Prop. Am. Compl. ¶¶ 67–73. Taking

the discriminatory hostile work environment claim first, according to Simien, his supervisor,

Peggy Kemler, consistently singled him out for humiliation and criticism, required him to work

overtime without compensation, was rude to him, frequently called him and hung up the phone,

suggested that wearing FEMA attire would “lead the public to believe that [Simien] was acting

in an official capacity,” failed to respond to his requests for additional training, criticized his

work, and made unspecified “comments” “leading [Simien] to ask her for respect.”

¶¶ 47–59.

Simien further alleges that other employees were not treated the same way, including two of his

white coworkers. Id. ¶¶ 50, 57. He claims he “has good reason to believe that he was being

singled out due to his race” because “[n]o other person . . . [was] subjected to this level of extra

scrutiny and criticism” and has therefore plausibly alleged a discriminatory hostile work

environment. Pl.’s Opp’n at 2–3.

7 Title VII prohibits employers from “discriminat[ing] 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). An

employer violates this prohibition when it requires people to work “in a discriminatorily hostile

or abusive environment.” Harris v. Forklift Sys., Inc.,

(1993) (citing Meritor

Savings Bank, FSB v. Vinson,

(1986)). To demonstrate that a discriminatory

hostile work environment exists, “a plaintiff must show that his employer subjected him to

‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter

the conditions of the victim’s employment and create an abusive working environment.’”

Baloch v. Kempthorne,

(D.C. Cir. 2008) (quoting Harris,

).

In considering such a claim, it is important “to exclude from consideration personnel decisions

that lack a linkage of correlation to the claimed ground of discrimination.” Bryant v. Brownlee,

(D.D.C. 2003) (quoting Alfano v. Costello,

(2d Cir.

2002)). “[H]ostile behavior, no matter how unjustified or egregious, cannot support a claim of

hostile work environment unless there exists some linkage between the hostile behavior and the

plaintiff’s membership in a protected class.” Na‘im v. Clinton,

(D.D.C.

2009) (collecting cases). These “demanding” standards “ensure that Title VII does not become a

general civility code.” Faragher v. City of Boca Raton,

(1998) (cleaned up).

Simien’s discriminatory hostile work environment claim fails to meet these standards.

First, “none of the comments or actions [allegedly] directed at [Simien] expressly focused on his

race[.]” Baloch,

. Simien contends that Kemler “singled [him] out” for “extra

scrutiny and criticism,” Pl.’s Opp’n at 3, and “spoke rougher” to him than his white coworkers

“regarding the same request for additional professional training,” Prop. Am. Coml. ¶ 57. But

8 “simply having a rude, harsh, or unfair boss is not enough for a hostile work environment claim.”

Dudley v. Washington Metro. Area Transit Auth.,

, 171–72 (D.D.C.

2013) (collecting cases). And Simien “does not explain how this harsh tone was significantly

more severe or pervasive than any other rude or demanding boss, and does not show that

[Kemler’s] criticism involved threats of violence, serious intimidation, or racial insults.”

(rejecting a hostile work environment claim where the employee similarly alleged that his

supervisor talked to him “in a harsh, critical, and condescending tone,” and “singl[ed him] out”

for criticism).

Moreover, even if Simien’s allegation that Kemler singled him out was sufficient to

connect the alleged hostile work environment to his race, “not all abusive behavior, even when it

is motivated by discriminatory animus, is actionable.” Stewart v. Evans,

(D.C. Cir. 2002) (citation omitted). Where, as here, the plaintiff merely alleges that he was

“unfairly criticized and closely scrutinized; falsely accused of misconduct; and denied access to

trainings,” these “ordinary workplace tribulations” fail to state a claim of hostile work

environment. Jimenez v. McAleenan,

, 37–38 (D.D.C. 2019). And while

conduct like “mocking,” “[being] rude,” and “humiliat[ing]” a subordinate could give rise to a

plausible hostile work environment claim, neither the original nor the proposed amended

complaint offers any facts in support of these thread-bare and conclusory allegations. Prop. Am.

Compl. ¶¶ 48, 51. Accordingly, the Court will grant the government’s motion to dismiss as to

Simien’s discriminatory hostile work environment claim.

2. Retaliatory Hostile Work Environment

Simien also alleges that FEMA subjected him to a retaliatory hostile work environment

after he contacted an EEO counselor on June 10, 2016. Id. ¶¶ 8, 68–71. A retaliatory hostile

9 work environment claim “alleges that [a plaintiff] was subjected to an abusive working

environment in retaliation for having engaged in protected activity by complaining of

discrimination.” Román v. Castro,

(D.D.C. 2016). Like

discriminatory hostile work environment claims, the constituent acts of a retaliatory hostile work

environment claim “must be both ‘adequately linked such that they form a coherent hostile

environment claim,’ and ‘of such severity or pervasiveness as to alter the conditions of . . .

employment and create an abusive working environment.’” Menoken v. Dhillion,

(2020) (quoting Baird v. Gotbaum,

, 168–69 (D.C. Cir. 2015) (cleaned up)). “To

determine whether a group of alleged acts is sufficiently linked, courts often consider whether

the acts in question ‘involve[d] the same type of employment actions, occur[ed] relatively

frequently, and [were] perpetrated by the same managers.’”

(quoting Baird,

).

Simien points to four alleged retaliatory incidents in support of this claim: (1) FEMA

Task Force Lead Brian Slie told EEO counselors that everything Simien would say would be a

lie; (2) Slie brought armed officers to wait outside the door during Simien’s intake interview; (3)

another FEMA supervisor, Laycee Kent, terminated Simien after he had spoken to the EEO

counselor; and (4) unspecified “hiring officials,” Prop. Am. Compl. ¶ 45, withdrew his job offer

for another position at the agency. Pl.’s Opp’n at 3–4. As the government points out, the

proposed amended complaint confirms that Ms. Kemler’s alleged harassment predates Simien’s

June 10 protected activity; it therefore cannot support a retaliation claim. See Prop. Am. Compl.

¶¶ 47–59 (dating the alleged incidents of harassment between April 27 and June 10, 2016).

Nevertheless, Simien contends that his “termination and the withdrawal of job offer[]”

“considered in conjunction with the two incidents that Defendants concede may be timely,”

referring to Slie’s conduct, “meet the[ retaliatory hostile work environment] requirements.” Pl.’s

10 Opp’n at 4. But because Simien has failed to allege that the constituent acts of his retaliatory

hostile work environment claim were adequately linked or severe and pervasive enough to meet

this standard, the Court will dismiss this claim.

“Severity and pervasiveness are determined by reference to ‘all the circumstances,’

including ‘the frequency of the discriminatory [or retaliatory] 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,

(quoting Harris,

). Mr. Slie’s actions, alleged to have taken place on or around a single day, are not

sufficiently pervasive to constitute a hostile work environment. And while Simien may have

found the maligning of his candor and the presence of security guards “offensive,” Slie’s conduct

does not appear so “extreme [as] to amount to a change in the terms and conditions of

employment,” particularly given that Simien himself acknowledges he stood accused of making

both false statements and violent threats. Faragher,

; see Prop. Am. Compl.

¶¶ 26, 31, 38.

Simien asks the Court to consider Slie’s actions in combination with Ms. Kent’s decision

to terminate him and another office’s withdrawal of his transfer position, but this approach has

several flaws. First, the termination and transfer withdrawal involve “different people doing

different things in different contexts” and are therefore insufficiently linked to each other, or to

Slie’s actions, to comprise a hostile work environment. Baird,

. Second, the

allegations suggest that Kent decided to terminate Simien on the basis of several instances of

misconduct before he engaged in protected activity, cutting against a finding of retaliation. See

Prop. Am. Compl. ¶¶ 20–21 (alleging that when EEO counselors told Kent that Slie had

recommended training instead of termination, she stated that she intended to “proceed with the

11 termination decision” (emphasis added)). Third, Simien is, “in effect, seek[ing] to transform his

challenges to discrete acts of alleged discrimination or retaliation . . . into a hostile work

environment claim by combining those events with a series of ordinary workplace difficulties.”

Nurriddin v. Bolden,

(D.D.C. 2009). But “mere reference to alleged

disparate acts of discrimination against [a] plaintiff cannot be transformed, without more, into a

hostile work environment.” Childs–Pierce v. Utility Workers Union of Am.,

(D.D.C. 2005), aff’d 187 Fed. App’x 1 (D.C. Cir. 2006). And finally, even taken together,

this series of actions does not amount to the kind of “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.” Harris,

(citation omitted). The

Court will therefore dismiss Simien’s retaliatory hostile work environment claim.

3. Racial Discrimination

Finally, Count 1 of the proposed amended complaint alleges that Simien’s termination

and the withdrawn job offer were individual acts of racial discrimination. Prop. Am. Compl.

¶ 61. To sustain a charge of racial discrimination at the motion to dismiss stage, the factual

allegations in the proposed amended complaint need only give rise to the reasonable inference

that Simien’s race was the reason for the government’s actions. See Sparrow v. United Air

Lines, Inc.,

(D.C. Cir. 2000). Because the allegations in the proposed

amended complaint do not give rise to such an inference for either act, the Court will grant the

government’s motion to dismiss this claim.

The proposed amended complaint alleges that Simien’s termination was based on four

instances of purported misconduct on his part: (1) falsely representing himself as a FEMA

security officer, Prop. Am. Compl. ¶ 26; (2) stating that his supervisor would get four flat tires

12 and suffer a car accident, id. ¶ 31; (3) using inappropriate epithets to describe his coworkers, id.

¶ 34; and (4) telling another hotel guest he would “stab her with a plastic fork,” id. ¶ 38. Simien

contests the underlying allegations, id. ¶ 25, attacks the credibility of the reporting individuals,

id. ¶ 37, and contends FEMA’s investigation into the allegations was “defective,” id. ¶ 24. But

he does not dispute, and in fact affirmatively alleges, that Kent based her termination decision on

the agency’s “zero tolerance” policy for threats. Id. ¶ 21. Critically, Simien does not allege that

Kent terminated him because of his race—the bare requirement to maintain an employment

discrimination claim at the motion to dismiss stage. And while Simien protests that Kemler’s

alleged harassment and “unjustified higher scrutiny” give rise to an inference that his termination

was based on his race, Pl.’s Opp’n at 5, the proposed amended complaint does not allege that

Kemler was involved in the decision to terminate him. Therefore, the allegations in the proposed

amended complaint fail to state a claim for racial discrimination in Simien’s termination.

As to the withdrawn job offer, the proposed amended complaint adds that the would-be

receiving FEMA office based its decision on “recent notifications regarding [Simien’s] FEMA

employment history” and the “aforementioned discrimination and retaliation which led to [his]

termination.” Prop. Am. Compl. ¶¶ 44–45. But Simien’s termination from his prior position

based on allegations of threatening behavior is a legitimate non-discriminatory reason for

withdrawing a job offer. Though Simien again relies on his allegations of “unjustified higher

scrutiny” from Kemler to support an inference of racial discrimination, Pl.’s Opp’n at 5, he does

not specify who the “hiring officials” who rescinded his job offer were, much less allege that

they did so as a result of racial animus. Because Simien has not included sufficient factual

allegations to support an inference that the unspecified FEMA office withdrew his job offer on

13 account of his race, the Court will grant the government’s motion to dismiss Simien’s racial

discrimination claim and deny the motion to amend as futile as to this claim.

IV. Conclusion

For these reasons, it is hereby

ORDERED that [Dkt. No. 27] Defendant’s Partial Motion to Dismiss is GRANTED. It

is further

ORDERED that [Dkt. No. 36] Plaintiff’s Motion for Leave to Amend the Complaint is

GRANTED in part and DENIED in part. It is further

ORDERED that Defendant shall answer or otherwise respond to Plaintiff’s remaining

retaliation claim by April 22, 2024.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: March 21, 2024

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