UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TAMMY ALLISON HOLLOWAY,

Plaintiff, Civil Action No. 24-226 (BAH) v. Judge Beryl A. Howell MERRICK GARLAND, Attorney General of the United States of America, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Tammy Allison Holloway, proceeding pro se, initiated this action on January 25,

2024, seeking relief from Merrick Garland, in his official capacity as Attorney General for the

United States of America; Colette Peters, in her official capacity as Director of the Federal Bureau

of Prisons (“BOP”); and Former Assistant Attorney General Lee J. Lofthus, in his official capacity

as a board member of the Federal Prison Industries (“FPI”) (collectively, “defendants”), for alleged

workplace discrimination and retaliation during her employment as an attorney for BOP. See

Compl. at 1–2, ECF No. 1. 1 Plaintiff’s complaint alleges violations of, inter alia, Title VI and

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., 2000e et seq.; Sections 501

and 505 of the Rehabilitation Act of 1973; and Titles I and V of the Americans with Disability Act

of 2010 (“ADA”).

1 Although plaintiff proceeds pro se, the typical “less stringent standards” applied to evaluate pro se complaints, Haines v. Kerner,

(1972), do not apply in this case. As the D.C. Circuit recently held, “[t]he requirement that courts construe pro se pleadings liberally does not ordinarily apply to pro se lawyers.” Spence v. U.S. Dep’t of Veterans Affs.,

(D.C. Cir. 2024). Plaintiff in this case “has formal legal training,”

; see Compl. ¶¶ 9–10, and “years of legal work experience,” Spence,

; see Compl. ¶¶ 10–16, including roughly a decade of experience working as an attorney for the U.S. Department of Justice (“DOJ”), see Compl. ¶ 12. Plaintiff also has particular expertise in employment law, the subject of her complaint, having worked as an Assistant General Counsel in the Employment Law Branch of BOP for three years.

1 Defendants have moved to dismiss plaintiff’s complaint under Federal Rule of Civil

Procedure 12(b)(1), for lack of subject matter jurisdiction, or alternatively Rule 12(b)(6), for

failure to state a claim upon which relief can be granted. Defs.’ Mot. to Dismiss (“Defs.’ MTD”),

ECF No. 11. For the reasons explained below, defendants’ motion is granted.

I. BACKGROUND

The factual allegations derived from plaintiff’s complaint and separately filed exhibits in

support thereof, see ECF No. 3, and procedural history of this case are summarized below. 2

A. Factual Background

Plaintiff previously worked in various legal positions for the U.S. Department of Justice

(“DOJ”) between 2008 and 2020, including in the Office of the Pardon Attorney (“OPA”),

Executive Office of U.S. Attorneys (“EOUSA”), and BOP. She describes her roles as serving as

an “extern” at DOJ in the fall of 2008, as a temporary legal assistant in OPA in the spring of 2009,

and, after graduating from law school and passing the Bar, as an attorney in OPA in October 2010.

Compl. ¶¶ 11–12. From the summer of 2015 to the summer of 2017, plaintiff was detailed as a

Special Assistant United States Attorney in the U.S. Attorney’s Office for the District of Columbia

and was employed as an Assistant General Counsel in the Employment Law Branch of BOP from

October 2017 until October 2020, when she resigned from federal service. Id. ¶¶ 12, 16. During

her period of employment, plaintiff alleges that defendants were aware that plaintiff suffers from

anxiety, which manifested itself in a variety of physical symptoms. Id. ¶ 7.

2 Plaintiff’s exhibits to the complaint were filed under seal to protect plaintiff’s confidential health information contained therein. See ECF No. 3; Min. Order (Jan. 25, 2024) (granting plaintiff’s motion to file under seal). Citations to these exhibits are made to explain the Court’s reasoning and are unsealed to the extent necessary to do so, though no confidential information is revealed that is not already discussed in other public filings in this case.

2 While working for BOP, plaintiff transferred her duty location from BOP’s Central Office,

located in Washington, D.C., to BOP’s South Central Regional Office in Grand Prairie, Texas. Id.

¶ 15. At BOP, she reported to Adam Boyer as her first-line supervisor, Doug Goldring as her

second-line supervisor, and Chung-Hi Grace Yoder as her third-line supervisor. Id.

On September 27, 2019, plaintiff filed a formal grievance with DOJ’s Office of General

Counsel against her supervisors Yoder and Boyer for failing to act on her complaints about her

previous supervisor and for Boyer’s issuance of a negative performance log entry against plaintiff

as a result of events that occurred at a training held earlier that month. Ex. O, ECF No. 3-3 at 93–

100; see also Compl. ¶ 38; Defs.’ Mem. Supp. Defs.’ Mot. Dismiss (“Defs.’ Mem.”) at 6, ECF No.

11. Plaintiff was informed that this grievance was denied as “without merit” on October 11, 2019.

Ex. Q, ECF No. 3-3 at 118–19; see also Compl. ¶ 40.

1. First EEO Complaint: BOP-2020-0181

On October 4, 2019, plaintiff initiated formal Equal Employment Opportunity (“EEO”)

counseling with the BOP, alleging she had been discriminated against on the basis of race,

sex/gender, disability, parental status, and reprisal in “several incidents” involving Yoder and

Boyer. See Ex. P, ECF No. 3-3 at 115; Compl. ¶ 39. Following counseling, plaintiff filed a formal

EEO complaint on November 14, 2019, alleging these same discrimination bases, plus national

origin discrimination, see Ex. R, ECF No. 3-3 at 124; Defs.’ Mem. at 7, arising from seven alleged

incidents: (1) BOP denied her September 2019 grievance “without looking into the matter” or

speaking with plaintiff or other witnesses, Ex. R at 125; Defs.’ Mem. at 7; (2) Yoder and Boyer

assigned an EEO case to plaintiff and assigned her a mentor, who plaintiff had previously

complained “refuse[d] to mentor” her or speak to her about cases, Ex. R at 125; Ders.’ Mem. at 7;

(3) Yoder and Boyer refused to “acknowledge or timely submit” plaintiff’s compensatory travel

3 form for work travel in September 2019, id.; (4) plaintiff was told she was overdue on taking a

required Domestic Violence, Sexual Assault, and Stalking in the Workplace training, despite not

receiving prior notification that the training was required or a “trigger warning” about the training’s

content, id.; (5) Boyer forced plaintiff to take an hour of leave for arriving late to a training, id.;

(6) Yoder, Boyer, and plaintiff’s previous supervisor assigned her to deal with an arbitration

addressing a domestic violence fact pattern similar to plaintiff’s personal experience, despite

knowing plaintiff suffered from anxiety due to her personal experiences, Ex. R at 125; Defs.’ Mem.

at 7–8; and (7) Yoder reprimanded plaintiff via email, copying other supervisors, about notification

procedures, Ex. R at 125; Defs.’ Mem. at 8.

In early 2020, plaintiff again attempted to initiate EEO counseling, citing three additional

alleged incidents of discrimination against her: (1) the failure of two employees to recuse

themselves from involvement with plaintiff’s EEO complaint despite plaintiff working directly

with both employees on “a number of matters in [her] official capacity”; (2) comments made to

plaintiff dismissing her request to have professional pictures taken; and (3) plaintiff not being

selected for an Assistant General Counsel position “despite being qualified for the position” and

the individuals selected for the position allegedly lacking the same qualifications. See Ex. S, ECF

No. 3-3 at 130; Defs.’ Mem. at 8. Plaintiff was informed that she could amend her open EEO

complaint with the additional incidents, see Ex. S, but told the EEO counselor that she wanted to

open a separate case, as the three new alleged incidents of discrimination were “not like or related

to [the] current allegations.” Ex. S at 129. Ultimately, plaintiff’s additional claims were included

in her ongoing EEO complaint. See Compl. ¶ 42; Defs.’ Mem. at 8. All of plaintiff’s

discrimination claims were denied in a Final Agency Decision (“FAD”) received by plaintiff on

December 1, 2020. See Ex. Y, ECF No. 3-3 at 154–182; Compl. ¶ 47.

4 2. Second EEO Complaint: BOP-2020-02110

On September 8, 2020, plaintiff contacted an EEO counselor to initiate a complaint about

discrimination against her based on her race, national origin, sex, parental status, disability, and

reprisal, see Ex. E, ECF No. 3-3 at 59; Ex. F, ECF No. 3-3 at 62; Compl. ¶ 28, and subsequently

filed a formal EEO complaint on October 13, 2020, Ex. F; Compl. ¶ 29. Plaintiff alleged seven

instances of discrimination against her: (1) Goldring denied a request for a reasonable

accommodation for a conference call with himself and Yoder that triggered her anxiety; (2) Yoder

refused to join the conference call despite plaintiff’s request, “given the racial and gender bias”

plaintiff alleged was being displayed on the call; (3) all three supervisors asked the Human

Resources Department to request that plaintiff immediately complete EEO and ethics training after

plaintiff sent an email about facing racial bias in a case she was handling; (4) the three supervisors

did not acknowledge the discrimination plaintiff faced from an opposing counsel in a case or her

successful disposition of the case; (5) two employees of the DOJ Complaint Adjudication Office

processed the FAD in plaintiff’s first EEO complaint (BOP-2020-0181) despite plaintiff

previously working with both of them “in a number of matters in [her] official capacity”; (6) Boyer,

Yoder, and a third BOP employee denied plaintiff a number of workplace benefits and

opportunities by “refusing to rate [her] as excellent on [her] performance evaluation without

explanation”; and (7) plaintiff was not selected for an Attorney-Advisor position in BOP’s

Designation and Sentence Computation Center. Ex. F at 63–64; see also Defs.’ Mem. at 9–10.

On December 9, 2020, plaintiff informed the investigation agency that she had concerns about the

investigator assigned to the case and requested the assignment of a new investigator to the matter,

Ex. J., ECF No. 3-3 at 77; Defs.’ Mem. at 10, but this request was denied in an email the next day,

Ex. J at 78; Defs.’ Mem. at 10, and later denied by BOP, see Ex. K, ECF No. 3-3 at 82; Defs.’

5 Mem. at 10. Plaintiff received a “four-volume report of investigation” on February 4, 2021, and

received, from BOP’s Complaint Adjudication Office, correspondence indicating they had

received her complaint on March 13, 2023. Compl. ¶¶ 35–36. As of the date plaintiff filed her

complaint in this matter, she had not received an FAD on her second formal EEO complaint. Id.

¶ 36.

3. Workers’ Compensation Claim

Plaintiff alleges that she suffered a workplace injury in February 2020, for aggravation of

her generalized anxiety disorder, see Compl. ¶ 48; Ex. AA, ECF No. 3-3 at 195, which claim was

accepted by the U.S. Department of Labor on November 3, 2020, see Ex. AA at 195; Compl. ¶ 49,

four days after her resignation from federal service on October 30, 2020, see Compl. ¶ 16.

4. Additional Allegations

In addition to plaintiff’s two formal EEO complaints against BOP, detailed above, she also

sets out in her complaint reference to multiple other formal complaints of discrimination filed by

plaintiff during her DOJ employment, including a 2014 formal EEO complaint about experiences

working in OPA, see Compl. ¶¶ 50–57; a 2014 complaint to the DOJ Inspector General about

discrimination in OPA, see id. ¶ 58; a 2015 grievance for discrimination filed against her

supervisor at OPA, see id. ¶ 60; and attempted whistleblower disclosures, made in 2015, about

alleged violations of law committed by OPA, see Ex. MM, ECF No. 3-3 at 276; Ex. NN, ECF No.

3-3 at 280; Compl. ¶¶ 61–62.

Plaintiff’s complaint also alleges that “[d]efendants have been intentionally interfering

with [her] personal, professional, and political life” since her resignation from federal service on

October 30, 2020. Compl. ¶ 81. She has repeated and elaborated on these allegations in other

filings in the case seeking emergency injunctive and other relief, including that (1) defendants and

6 other government agencies are surveilling her, pursuant to orders issued pursuant to the Foreign

Intelligence Surveillance Act (FISA) by the Foreign Intelligence Surveillance Court (FISC), see

Pl.’s Mem. of P. & A. Supp. Pl.’s Emergency Ex Parte Mot. for a Temporary Restraining Order

and/or Preliminary Injunction (“Pl.’s First Mot. TRO”) at 2–3, ECF No. 2-1; (2) defendants are

“spreading malicious rumors about [p]laintiff and . . . conspir[ing]” with other individuals and

organizations to “create false narratives” about her, id. at 2; (3) defendants and other employees

are “urging, encouraging, pressuring, or inducing” suppression of plaintiff’s free speech on social

media and may have issued “law enforcement orders” to various social media companies, id.; (4)

defendants have unlawfully designated plaintiff as armed and dangerous in retaliation for protected

activities, see Pl.’s Emergency Ex Parte Mot. for a Temporary Restraining Order and/or

Preliminary Relief (“Pl.’s Second Mot. TRO”) at 1–2, ECF No. 26; and (5) defendants used the

“Circuit Court for Montgomery County, Maryland,” id. at 3, to take plaintiff’s minor child away

from her, also in retaliation, see id. at 2–3; among other such allegations.

B. Procedural History

Plaintiff initiated this case on January 25, 2024, seeking compensatory and punitive

damages, costs and attorney’s fees, and affirmative and equitable relief. See Compl. On the same

day, she sought an Emergency Temporary Restraining Order or Preliminary Injunction, alleging

that defendants were conducting retaliatory surveillance of her and had violently broken into her

residence. Pl.’s Emergency Ex Parte Mot. for a Temporary Restraining Order and/or Preliminary

Injunction, ECF No. 2. This request for injunctive relief was denied, upon finding both that

plaintiff failed to satisfy the standard for a TRO or Preliminary Injunction and that the break-in,

which had happened 52 days before plaintiff filed her motion, did not qualify as an emergency.

Min. Order (Jan. 25, 2024). Plaintiff has continued to raise these and similar allegations in other

motions and filings throughout the case, including seeking emergency relief two additional times. 7 See, e.g., Pl.’s Second Mot. TRO; Pl.’s Ex Parte Emergency Mot. for a Temporary Restraining

Order and Preliminary Injunction (“Pl.’s Third Mot. TRO”), ECF No. 31. Both motions were

denied for essentially the same reasons articulated the first time she sought such relief. See Min.

Order (Sept. 10, 2024).

On May 14, 2024, defendants filed the pending motion to dismiss. See Defs.’ MTD. Two

weeks later, on May 28, 2024, plaintiff moved to amend her complaint. Pl.’s First Mot. to

Amend/Correct Complaint, ECF No. 19. In accordance with D.D.C. Local Civil Rule LCvR 7(i)

and the Standing Order in the case, see Standing Order ¶ 7.e., ECF No. 4, plaintiff was directed to

file a redline comparison between her original complaint and her proposed amended complaint,

Min. Order (Aug. 27, 2024), but, after she failed to respond or comply with the order, plaintiff’s

motion to amend her complaint was denied two months later, Min. Order (Oct. 18, 2024). Plaintiff

was granted an extension of time to respond to defendants’ Motion to Dismiss, with directions to

respond by June 11, 2024. Min. Order (May 24, 2024). Although plaintiff has continued filing

various other papers on the docket, she has filed no response to defendants’ Motion to Dismiss,

despite having been cautioned about the potential consequences of failing to respond, see Order,

ECF No. 20 (citing Fox v. Strickland,

(D.C. Cir. 1988)).

II. LEGAL STANDARD

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

To survive a Rule 12(b)(6) motion to dismiss, the “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) (quotation marks and citation omitted). A claim is facially

plausible when the plaintiff pleads facts that are more than “merely consistent with a defendant’s

liability” and that “allow[] the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.”

(quotation marks and citations omitted); see also Banneker 8 Ventures, LLC v. Graham,

(D.C. Cir. 2015) (“Plausibility requires more than

a sheer possibility that a defendant has acted unlawfully.” (quotation marks and citation omitted)).

“[A] complaint survives a motion to dismiss even if there are two alternative explanations, one

advanced by the defendant and the other advanced by the plaintiff, both of which are plausible.”

VoteVets Action Fund v. U.S. Dep’t of Veterans Affs.,

(D.C. Cir. 2021)

(alterations in original accepted; quotation marks and citation omitted).

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

accepting all factual allegations in the complaint as true, “even if doubtful in fact,” and construing

all reasonable inferences in the plaintiff’s favor. Bell Atl. Corp. v. Twombly,

(2007); see also Atchley v. AstraZeneca UK Ltd.,

(D.C. Cir. 2022). A court,

however, does not “accept inferences drawn by a plaintiff if such inferences are unsupported by

the facts set out in the complaint.” Nurriddin v. Bolden,

(D.C. Cir. 2016)

(alterations in original accepted and citation omitted); see also Iqbal,

(“While legal

conclusions can provide the framework of a complaint, they must be supported by factual

allegations.”). In determining whether a complaint fails to state a claim, a court may consider only

the facts alleged in the complaint and “any documents either attached to or incorporated in the

complaint and matters of which the court may take judicial notice.” N. Am. Butterfly Ass’n v. Wolf,

(D.C. Cir. 2020) (alterations in original accepted and citation omitted).

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

“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited subject-

matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which Congress grants

jurisdiction.’” Bronner ex rel. Am. Stud. Ass’n v. Duggan,

(D.C. Cir. 2020)

(alterations in original) (quoting Al-Zahrani v. Rodriguez,

(D.C. Cir. 2012));

see also Gunn v. Minton,

(2013) (“‘Federal courts are courts of limited 9 jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” (quoting

Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994))). Absent subject-matter

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

,

506–07 (2006) (citing Kontrick v. Ryan,

(2004)); Fed. R. Civ. P. 12(h)(3).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff

bears the burden of demonstrating the court’s subject-matter jurisdiction over the claim at issue.

Arpaio v. Obama,

(D.C. Cir. 2015) (citing Lujan v. Defs. of Wildlife,

(1992)). When considering a motion to dismiss under Rule 12(b)(1), the court must

determine jurisdictional questions by accepting as true all uncontroverted material factual

allegations contained in the complaint and “constru[ing] the complaint liberally, granting

plaintiff[s] the benefit of all inferences that can be derived from the facts alleged.” Hemp Indus.

Ass’n v. DEA,

(D.C. Cir. 2022) (second alteration in original) (quoting Am. Nat’l

Ins. Co. v. FDIC,

(D.C. Cir. 2011)). The court may also, “[a]s necessary, []

cull additional facts from other parts of the record.” West v. Lynch,

(D.C.

Cir. 2017) (citing Settles v. U.S. Parole Comm’n,

(D.C. Cir. 2005) (in

deciding subject matter jurisdiction, courts may “consider[] facts developed in the record beyond

the complaint”)).

III. DISCUSSION

Although not entirely clear from her complaint, plaintiff seemingly raises the following

related claims against defendants: (1) workplace discrimination based on (a) plaintiff’s disability,

in violation of the ADA and the Rehabilitation Act, Compl. ¶¶ 106–22; (b) plaintiff’s National

Origin,

¶¶ 123–24; (c) sex,

¶¶ 125–26; (d) race and color, id. ¶ 127; and (e) parental status,

id. ¶ 128; (2) creation of a hostile work environment resulting in constructive discharge, id. ¶¶

10 130–31; (3) retaliation and reprisal resulting in constructive discharge, in violation of the

Whistleblower Protection Act (“WPA”),

(b)(8), and “whistleblower protection

provision of the False Claims Act,” Compl. ¶¶ 132–33. These claims fall into two categories: first,

that defendants discriminated against plaintiff on the basis of a number of different protected

characteristics, which plaintiff alleges created a hostile work environment and resulted in her

resignation from BOP, which she alleges amounts to a constructive discharge, see

¶¶ 130–31,

133; and second, claims that defendants unlawfully retaliated against plaintiff for protected

disclosures, in violation of whistleblower protections. Each category is addressed seriatim.

A. Whistleblower Protection Act Claims

Plaintiff’s claims that defendants violated federal whistleblower protections suffer from

multiple fatal flaws requiring dismissal. First, as the government correctly argues, plaintiff’s

allegations of retaliation fail to state a claim under the WPA. See Defs.’ Mem. at 31–33. The

government acknowledges that the complaint alleges plaintiff made two protected whistleblower

disclosures during her employment with DOJ, both of which were dismissed in 2015 and involved

allegations against OPA. See

at 32–33; see also Compl. ¶¶ 61–62. Nowhere, however, does

the complaint allege “any disclosures against BOP” or that any “BOP employees were aware of

[plaintiff’s] protected disclosures and took a personnel action proscribed by the [WPA] against

her.” Defs.’ Mem. at 32–33. Instead, plaintiff claims merely that she “previously engaged in

protected activities, including a prior EEOC case,” and that she has “subsequently been under FBI

surveillance as well as experienced a number of unusual and devastating personal and professional

experiences while employed at BOP without explanation,” from which she draws the inference

that “all of the unresolved issue[s] in [her] personal, professional, and political life appear to be

caused by Defendants retaliating against her since her most recent EEO case . . . is based on those

prior protected disclosures.” Compl. ¶ 132. 11 To the extent that plaintiff concedes that she has experienced “unresolved” “devastating

personal and professional experiences,” all “without explanation,”

this lack of facts or evidence

to support her inference that defendants are to blame falls far short of stating a “plausible claim

for relief,” Iqbal,

(citing Twombly,

), under the WPA and must

therefore be dismissed for failure to state a claim. See Nurriddin,

(finding that

courts do not have to accept a plaintiff’s inferences if they are “unsupported by the facts set out in

the complaint” (citation omitted)); Iqbal,

(“While legal conclusions can provide

the framework of a complaint, they must be supported by factual allegations.”).

Even were these threadbare allegations sufficient to state a claim under the WPA,

defendants are also correct that subject matter jurisdiction to adjudicate her retaliation claims is

lacking because plaintiff failed administratively to exhaust these claims before filing suit. See

Defs.’ Mem. at 32–33. The WPA requires administrative exhaustion before a district court may

hear an employee’s retaliation claim. The D.C. Circuit has made clear that “[u]nder no

circumstances does the WPA grant [a] District Court jurisdiction to entertain a whistleblower cause

of action brought directly before it in the first instance.” Stella v. Mineta,

(D.C.

Cir. 2002); see also Greenhouse v. Geren,

, 64–65 (D.D.C. 2008) (describing

the procedural steps an employee must take to raise a whistleblower protection claim). Generally,

an employee must first bring any WPA claim of unlawful reprisal to the Office of Special Counsel

(OSC) to be investigated. Stella,

; Greenhouse,

; see also

Bourdon v. Mabus,

(D.D.C. 2011). If no wrongdoing is found, the

employee may then bring the claims directly to the Merit Systems Protection Board (MSPB).

Stella,

; Greenhouse,

. Certain types of adverse action claims

may be brought directly to the MSPB, bypassing the OSC, such as “(1) a removal; (2) a suspension

12 for more than 14 days; (3) a reduction in grade; (4) a reduction in pay; and (5) a furlough of 30

days or less.” Greenhouse,

(citing

). In either case, decisions

of the MSPB are appealable to the Federal Circuit. See Stella,

; Greenhouse,

.

Employees can also claim a violation of the WPA via a so-called “mixed case,” which is

“an adverse personnel action subject to appeal to the MSPB coupled with a claim that the action

was motivated by discrimination.” Greenhouse,

(citing Butler v. West,

(D.C. Cir. 1999)). A qualifying adverse personnel action is one of the five

enumerated above. See

An employee seeking to file a mixed case must either file a complaint

with her agency’s EEO office or directly file with the MSPB.

(citing Butler,

;

(b)). If the EEO office does not make a decision within 120 days, the

employee may appeal to the MSPB or file an action in district court.

(citations omitted).

Here, plaintiff has failed to follow the procedural steps required to exhaust administratively

her retaliation claims under the WPA. The complaint “does not even allege,” Bourdon,

, that she ever filed a claim with the OSC or the MSPB, see generally Compl. To

the extent that any of plaintiff’s whistleblower claims might raise a non-mixed case, the failure to

pursue her claims in the OSC or MSPB requires dismissal for failure to exhaust her administrative

remedies.

Meanwhile, any mixed claim plaintiff may be attempting to raise would necessarily be

based on plaintiff’s claim of constructive discharge, see Compl. ¶¶ 130–31, 133, because she does

not claim that she was suspended, suffered a reduction in pay or grade, or was furloughed, see

generally

Here, however, plaintiff never filed an EEO complaint after she left federal service

due to an alleged constructive discharge. See generally

Indeed, her final EEO complaint was

13 initiated on September 8, 2020, more than a month before she resigned from BOP. See supra, Part

I.A.2. As this timeline confirms, plaintiff never filed with the EEO any claim alleging that she

was improperly removed from her position via constructive discharge—nor does she allege that

any of her EEO complaints claimed constructive discharge, see Compl. ¶¶ 28–47; supra, Parts

I.A.1 and 2—leading to the inexorable conclusion that plaintiff has similarly failed to exhaust her

administrative remedies for any possible mixed claims under the WPA. Accordingly, subject

matter jurisdiction is lacking to consider any claims successfully alleged under the WPA, see

Stella,

, 3 and thus these claims must be dismissed, pursuant to Federal Rule of Civil

Procedure 12(b)(1), see

(affirming dismissal of WPA claims not first brought to the OSC

or MSPB for lack of jurisdiction).

B. Workplace Discrimination Claims

Plaintiff’s remaining claims allege that, while working for BOP, she faced unlawful

discrimination and disparate treatment on the basis of her disability status, Compl. ¶¶ 106–22;

national origin,

¶¶ 123–24; sex,

¶¶ 125–26; race and color, id. ¶ 127; and parental status, id.

¶ 128. Plaintiff also alleges that this discrimination created a hostile work environment that forced

her to leave her federal employment, constituting a constructive discharge. See id. ¶¶ 130–31, 133.

Two threshold matters require clarification. First, defendants are correct that the U.S.

Attorney General is the only proper defendant for these claims. See Defs.’ Mem. at 13–14.

Plaintiff’s workplace discrimination claims allege “discrimination in the terms and conditions of

her employment” with BOP under both Title VII of the Civil Rights Act of 1964,

Plaintiff also purports to raise a whistleblower claim under the False Claims Act, see Compl. ¶ 133, but such a claim is preempted by the Civil Service Reform Act, which “provides the exclusive set of remedies for claims brought pursuant to the WPA,” Harris v. Bodman,

(D.D.C. 2008) (citing Richards v. Kiernan,

(7th Cir. 2006)).

14 2000e et seq., and the Rehabilitation Act of 1973,

et seq. Compl. at 1–2. 4 For a

federal employee suing for workplace discrimination under Title VII, “[t]he only proper defendant

. . . is the head of the department, agency, or unit in which the allegedly discriminatory acts

transpired.” Hackley v. Roudebush,

, 115 n.17 (D.C. Cir. 1975) (quotation marks

omitted). “Since the Rehabilitation Act draws from the procedures of Title VII,” the same is true

under that statute. Paegle v. Dep’t of the Interior,

, 64 n.2 (D.D.C. 1993) (citing

Barsten v. Dep’t of the Interior,

(9th Cir. 1990)); see also Marshall v. Potter,

, 68 n.1 (D.D.C. 2009) (quoting Paegle,

n.2). As a component

of the DOJ, see, e.g., Tyree v. Hope Vill., Inc.,

(D.D.C. 2009), BOP is

not a proper defendant, see, e.g., Mitchell v. Garland, No. 20-cv-3083 (RC),

, at

*4 (D.D.C. Mar. 9, 2022) (finding, in a Title VII suit, that “Title VII provides a cause of action

only against the head of the relevant department—in this case, Attorney General Garland” and

holding that “the BOP is not a proper defendant, and all claims against it must be dismissed”).

Consequently, defendants Peters, the Director of BOP, and Lofthus, a board member of FPI and

former Assistant Attorney General, are not properly named as defendants and must be dismissed.

A second threshold issue is that defendants are also correct that plaintiff may only raise

claims related to her second, and most recent, EEO complaint. See Defs.’ Mem. at 14–15. Title

VII establishes a 90-day window for “an employee or applicant for employment” who is

4 The complaint contains reference to additional statutes and legal authorities, including the nondiscrimination section of the Omnibus Crime Control Safe Streets Act of 1968,

(d)c; the First Amendment of the Constitution of the United States of America; and

, but the text of the complaint fails to allege any discernible claims under any of these authorities. Even if claims were intended under these authorities, however, they would be preempted by Title VII and the Rehabilitation Act, which provide the exclusive remedies for federal employment discrimination claims. See Brown v. General Servs. Admin.,

, 828– 29, 834–35 (1976); Howard v. Pritzker,

(D.C. Cir. 2015); Paegle v. Dep’t of the Interior,

, 66–67 (D.D.C. 1993) (“[W]hen a federal employee seeks to redress rights guaranteed by the Rehabilitation Act, that Act preempts other actions to redress the same discrimination. (citing Shirey v. Devine,

, 1191 n.7 (D.C. Cir. 1982))).

15 “aggrieved by the final disposition of [her] complaint . . . [to] file a civil action” after receiving

“notice of final action taken by a department, agency, or unit.” 42 U.S.C. § 2000e-16(c).

Additionally, if an employee or applicant files a complaint alleging discrimination and receives no

“judicially reviewable action” on their complaint after 120 days of its filing, they may “file a civil

action to the same extent” as if they had received a decision.

(e)(1), (e)(1)(A). As

defendants concede, see Defs.’ Mem. at 15, plaintiff’s October 13, 2020, EEO Complaint,

numbered BOP-2020-02110, see supra, Part I.A.2., provides a timely basis for suit, since, at the

time the instant complaint was filed, in January 2024, plaintiff had yet to receive a final decision

or other judicially reviewable action in this EEO complaint, after a wait of over three years upon

filing. See Compl. ¶ 36.

By contrast, plaintiff’s November 13, 2019, EEO Complaint against BOP, number BOP-

2020-0181, see supra, Part I.A.1., and the additional EEO claims and actions raised in the

complaint, see supra, Part I.A.4., are untimely. For example, the Final Agency Decision denying

plaintiff’s claims in the 2019 EEO complaint was received by her on December 1, 2020, Compl.

¶ 47, more than three years before plaintiff filed the instant case. This timeline falls well outside

the applicable 90-day statute of limitations for filing a civil action, see 42 U.S.C. § 2000e-16(c),

and thus these claims are time-barred. 5

The Complaint additionally references formal and informal EEO complaints plaintiff filed

in 2014 and 2015, see supra, Part I.A.4., not involving BOP, see Compl. ¶ 12 (alleging that

5 Plaintiff has not attempted to argue that equitable tolling applies, see generally Compl., and the government is correct that this doctrine does not save plaintiff’s additional claims, see Defs.’ Mem. at 15. For equitable tolling to be applied, plaintiff would have to show “(1) that [s]he has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way.” Robinson v. Dep’t of Homeland Sec. Off. of Inspector Gen.,

(D.C. Cir. 2023) (quoting Pace v. DiGuglielmo,

(2005)). Satisfying the second prong would require plaintiff to show that the circumstances that caused her delay in filing the case were “both extraordinary and beyond [her] control.”

(emphasis in original) (quoting Menominee Indian Tribe of Wis. v. United States,

(2016)). Neither showing has been made in this case. See generally Compl.

16 plaintiff’s employment with BOP began in October 2017), and even further attenuated in time than

plaintiff’s October 2019 EEO complaint. For instance, plaintiff entered into a settlement

agreement to resolve her 2015 formal EEO complaint, number 570-2015-01009X, against the OPA

on December 17, 2017, see Ex. II, ECF No. 3-3 at 250; Compl. ¶ 57, more than six years before

plaintiff filed the instant case. Since these matters do not involve BOP and fall well outside the

statute of limitations for filing a civil action, they may not properly be considered in this case.

In sum, plaintiff’s only timely discrimination claims that may be considered are those

against the Attorney General set out in her October 13, 2020, EEO complaint, number BOP-2020-

02110.

1. Disability Discrimination/Reasonable Accommodation Claims Plaintiff alleges that defendants discriminated against her by denying her reasonable

workplace accommodations despite knowing about her “long-documented history of a disability,”

Compl. ¶ 121, in the form of anxiety, id. ¶ 7, in violation of the Rehabilitation Act and the ADA,

id. ¶¶ 106–22.

The Rehabilitation Act provides “the sole remedy for federal employees alleging such

[disability] discrimination,” Tobey v. U.S. Gen. Servs. Admin.,

, 164 n.3

(D.D.C. 2020) (citing Desmond v. Mukasey,

(D.C. Cir. 2008)); see also

Montgomery v. McDonough,

, 13 n.11 (D.D.C. 2023), although the standards

used to determine whether the Rehabilitation Act has been violated are the same as those applied

under the ADA, see Tobey, 480 F. Supp. 3d at 164 n.3 (citing

(d); Solomon v.

Vilsack,

(D.C. Cir. 2014)). A reasonable accommodation claim under the

Rehabilitation Act or ADA requires the plaintiff to show that “(1) she was a qualified individual

with a disability, (2) the [employer] had notice of her disability and (3) the [employer] denied her

request for a reasonable accommodation.” Waggel v. George Wash. Univ.,

, 1371

17 (D.C. Cir. 2020) (alterations in original) (quoting Ward v. McDonald,

(D.C. Cir.

2014)). The ADA, in turn, defines a disability as “a physical or mental impairment that

substantially limits one or more major life activities of [an] individual.”

(1)(A).

At the motion to dismiss stage, plaintiff does not have to plead specific facts to establish

every element of a prima facie claim but must still allege enough facts to raise a claim for relief

that is “plausible on its face.” Border v. Nat’l Real Est. Advisors, LLC,

, 256

(D.D.C. 2020) (citing Twombly,

); see also Blackwell v. SecTek, Inc.,

(D.D.C. 2014) (allowing a claim to proceed past a motion to dismiss that was “at least

plausible”). Assuming, arguendo, that plaintiff has pled sufficient facts for her anxiety to qualify

as a disability, see, e.g., Compl. ¶ 7, plaintiff’s reasonable accommodation claim nevertheless fails

to state a claim because she never alleges and provides no evidence that she requested any

accommodations from BOP.

The complaint briefly mentions an accommodation request plaintiff made years earlier

while employed at OPA, see

but “fails to provide any explanation” as to why BOP would have

been aware of this request, Defs.’ Mem. at 18, much less why this years-old request to a separate

component of DOJ would have applied to BOP, see generally Compl. While employed by BOP,

plaintiff alleges only that she “request[ed] . . . the occasional supervisor or mentor on each assigned

case to sit in on hearings, calls, or meetings with her,” Compl. ¶ 117, and that she asked for one

meeting to be rescheduled “at a convenient time, date, and location with all supervisors present,”

id. ¶ 72. Neither allegation of one-off requests for a supervisor to join a call or meeting is sufficient

to demonstrate that plaintiff requested from BOP an accommodation for her alleged disability, see,

e.g., Waggel,

(“[I]ndividual requests for time off to attend medical appointments”

were not a request for a reasonable accommodation under the ADA “standing alone,” even where

18 employer had notice of the plaintiff’s cancer diagnosis (citing Flemmings v. Howard Univ.,

, 861–62 (D.C. Cir. 1999))), either by “mak[ing] clear that [plaintiff] want[ed] assistance

for . . . her disability,” Lee v. District of Columbia,

(D.D.C. 2013)

(quoting Loya v. Sebelius,

, 259 n.14 (D.D.C. 2012)), or by requesting an

accommodation through a formal process established by BOP or DOJ, see, e.g., Waggel, 957 F.3d

at 1371–72 (discussing the plaintiff’s failure to request an accommodation through the formal

ADA process established by the defendant, of which the plaintiff had notice).

As the D.C. Circuit has held, “[a]n underlying assumption of any reasonable

accommodation claim is that the plaintiff-employee has requested an accommodation which the

defendant-employer has denied.”

at 1372 (quoting Flemmings,

). Plaintiff has

failed to establish that such a request was made, and therefore her disability discrimination claim

must be dismissed for failure to state a claim.

2. Title VII Claims

Plaintiff also alleges discrimination, in violation of Title VII, on the basis of her national

origin, Compl. ¶¶ 123–24; sex,

¶¶ 125–26; race and color, id. ¶ 127; and parental status, id. ¶

128. She additionally claims that this discrimination resulted in a hostile work environment, also

in violation of Title VII. Id. ¶¶ 130–31. Title VII prohibits employers from “discriminat[ing]

against any individual with respect to [her] 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).

(a) Parental Status Claims

19 As an initial matter, the government is correct that plaintiff’s claims of discrimination and

hostile work environment on the basis of her parental status must be dismissed for lack of subject

matter jurisdiction. See Defs.’ Mem. at 20 n.5.

Under the doctrine of sovereign immunity, “the United States may not be sued without its

consent,” which means that “the existence of consent is a prerequisite for jurisdiction” in suits

against the United States. United States v. Mitchell,

(1983). In this context,

suits against federal officials in their official capacities are considered suits against the United

States. Brown v. Gen. Servs. Admin.,

(1976). A waiver of sovereign immunity

by the federal government “must be unequivocally expressed in statutory text and will not be

implied.” Lane v. Pena,

(1996) (citations and internal citations omitted).

Similarly, waivers of sovereign immunity are “strictly construed” in favor of the United States.

Orff v. United States,

, 601–02 (2005). “To sustain a claim that the Government is

liable for awards of monetary damages, the waiver of sovereign immunity must extend

unambiguously to such monetary claims.” Lane,

(citing United States v. Nordic

Vill., Inc.,

(1992)). The question whether sovereign immunity has been waived

implicates courts’ subject-matter jurisdiction, meaning that the plaintiff bears the burden of

establishing that sovereign immunity has been abrogated by the federal government to prove that

jurisdiction exists for a claim against the United States. See Jackson v. Bush,

(D.D.C. 2006) (citing Tri-State Hosp. Supply Corp. v. United States,

(D.C.

Cir. 2003)).

“Title VII is, without doubt, a statute that . . . specifically waives sovereign immunity.”

Parker v. Califano,

, 325 n.15 (D.C. Cir. 1977). The text of the statute, however,

does not include parental status as a protected characteristic. See 42 U.S.C. § 2000e-2(a)(1)

20 (extending the protections of the statute to discrimination on the basis of “race, color, religion, sex,

or national origin”). Title VII, therefore, does not waive the federal government’s sovereign

immunity from employment discrimination claims against the federal government on the basis of

parental status, see, e.g., Benham v. Rice, No. Civ.A. 0301127 (HHK),

, at *3

(D.D.C. Mar. 24, 2005) (dismissing a claim for discrimination based on parental status for lack of

subject matter jurisdiction), and plaintiff has not established that subject matter jurisdiction

otherwise exists for these claims. Plaintiff’s claims for discrimination and hostile work

environment on the basis of parental status must therefore be dismissed for lack of subject matter

jurisdiction.

(b) National Origin, Sex, & Race and Color Discrimination Claims

The statutory text of Title VII “establishes two 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). When a plaintiff has no “direct evidence of discrimination,” she must generally “resort

to the burden shifting framework of McDonnell Douglas Corp. v. Green,

(1973),”

Barnette v. Chertoff,

(D.C. Cir. 2006), which requires the plaintiff to prove “by

a preponderance of the evidence ‘that (1) she is a member of a protected class; (2) she suffered an

adverse employment action; and (3) the unfavorable action gives rise to an inference of

discrimination,’”

(citation omitted).

To survive a motion to dismiss, plaintiffs claiming employment discrimination are “not

required to plead every fact necessary to establish a prima facie case.” Jones v. Air Line Pilots

Ass’n, Int’l,

(D.C. Cir. 2011). Still, the complaint must “plead[] factual

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

21 misconduct alleged.” Harris v. D.C. Water & Sewer Auth.,

(D.C. Cir. 2015)

(quoting Iqbal,

); see also Webster v. Haaland, No. 23-cv-3050 (RC),

, at *5 (D.D.C. Sept. 19, 2024) (“To survive a motion to dismiss, claims of discrimination

. . . require at least a minimal factual basis from which the Court can draw ‘an inference of

discrimination.’” (quoting Czekalski v. Peters,

(D.C. Cir. 2007))). Meeting this

pleading standard requires alleging “some facts that demonstrate [the plaintiff’s protected

characteristic] was the reason for defendant’s actions” and not “merely ‘invok[ing] [the plaintiff’s

protected characteristic] in the course of a claim’s narrative.’” Doe #1 v. Am. Fed’n of Gov’t

Emps.,

, 102 (D.D.C. 2021) (emphasis supplied) (quoting Bray v. RHT, Inc.,

(D.D.C. 1990)).

The instant complaint “presents no facts to tie” the “difficult interpersonal events”

described to any of plaintiff’s protected characteristics and therefore fails to state a discrimination

claim on any of the remaining grounds. Burford v. Yellen,

(D.D.C.

2017). The complaint describes the following events as adverse actions: (1) the selection of a “less

qualified applicant over her” for an Attorney-Advisor position with BOP’s Designation and

Sentence Computation Center, Compl. ¶ 67; (2) the loss of benefits and opportunities due to her

supervisors’ “refus[al] to rate her as excellent on her performance evaluation without explanation,”

id. ¶ 68; (3) the decision of two CAO employees to work on the final decision in her first EEO

complaint despite plaintiff having worked with both individuals, id. ¶ 69; (4) the denial of

plaintiff’s request to hold a meeting, which she originally requested to address alleged racial bias

by agency staff, opposing counsel, and the judge in a case she was handling, at a “convenient time,

date, and location” with all of her supervisors present, id. ¶¶ 70–72; (5) plaintiff’s white male

supervisors asking plaintiff questions about her allegations of discrimination and “challeng[ing]

22 her concerns,” while plaintiff’s Asian female supervisor “refused” to join the meeting, id. ¶¶ 73–

74; (6) plaintiff’s supervisors failing to give her credit for the resolution of the case and assigning

her another case, id. ¶¶ 75–76; (7) plaintiff’s supervisors “refusing her access” to a mandatory

virtual meeting and responding passive aggressively to her communications, id. ¶ 77; (8) after

plaintiff submitted her letter of resignation “[o]n or about October 16, 2020,” id. ¶ 78, her

supervisors did not acknowledge or otherwise respond to her resignation letter or plan with her to

resolve or transfer the cases for which she was responsible, id. ¶ 79; and (9) an individual “refused

to provide” plaintiff with her “10-year federal service recognition certificate,” id. ¶ 80. The

complaint concludes that these events and actions were the result of discrimination, since plaintiff

was “the only Nigerian-American” employed in her office, id. ¶ 124; “the only cis-gendered

female” employed in her office, id. ¶ 126; “the only dark-skinned black person” employed in her

office, id. ¶ 127; and “the only parent” employed in her office, id. ¶ 128.

These allegations, however, are no more than “mere ‘legal conclusions couched a[s] factual

assertions,’” that are insufficient to survive a motion to dismiss. Yuvienco v. Vilsack, No. 23-cv-

186 (RC),

, at *3 (D.D.C. Feb. 22, 2024) (quoting Nurriddin,

);

see also

(“Although the ‘initial burden’ of pleading Title VII’s ‘because of’ element is ‘not

onerous,’ a plaintiff cannot survive a motion to dismiss by providing ‘threadbare’ or conclusory

allegations of discrimination; nor can a plaintiff state a claim ‘merely [by] invok[ing] [her] race

[or national origin], in the course of a claim’s narrative.” (alterations in original) (quoting and

citing Doe #1, 554 F. Supp. 3d at 102–03)). Although plaintiff “identifies . . . instances of alleged

mistreatment” by employees of BOP, she “fails to connect any of those events to” her national

origin, sex, race, or color. Lee v. McDonough, No. 22-cv-319 (RBW),

, at *7

(D.D.C. Aug. 19, 2024). Put simply, plaintiff’s complaint alleges no facts or evidence that would

23 allow the drawing of any reasonable inference that any of the events or actions she alleges were

the result of discrimination on any protected characteristics she may have. See Brown v. Sessoms,

(D.C. Cir. 2014) (“[T]he plaintiff must provide ‘factual content [in her

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

the misconduct alleged.’” (second alteration in original) (quoting Iqbal,

)). These

deficiencies require dismissal of plaintiff’s remaining claims. See, e.g., Yuvienco,

, at *3 (dismissing plaintiff’s employment discrimination because plaintiff’s claims were

“predicated on . . . vague and conclusory allegations, and she [made] little connection between her

employment issues and her [protected characteristics]”); Thweatt v. WMATA, No. 23-cv-1185

(CKK),

, at *4 (D.D.C. Mar. 5, 2024) (dismissing plaintiff’s employment

discrimination claims because the “facts alleged in the complaint do not link directly or indirectly

plaintiff’s [protected characteristics]” to the adverse employment action).

(c) Hostile Work Environment/Constructive Discharge Claims

Plaintiff’s hostile work environment claims fail for the same reasons. Establishing a prima

facie Title VII hostile workplace claim requires plaintiff to show “(1) she was a member of a

protected class; (2) she was subjected to unwelcome harassment; (3) the harassment occurred

because of her protected status; and (4) the harassment had the effect of unreasonably interfering

with the plaintiff's work performance and creating an intimidating, hostile, or offensive working

environment.” Harrison v. Off. of Architect of Capitol,

, 77–78 (D.D.C. 2013)

(citing Davis v. Coastal Int’l Sec., Inc.,

, 1122–23 (D.C. Cir. 2002); Curry v. District

of Columbia,

(D.C. Cir. 1999)). Here, too, plaintiff is “not required to plead

every fact necessary to establish a prima facie case,” Jones,

, but must plead

enough facts to allow the court to “draw the reasonable inference that the defendant is liable for

24 the misconduct alleged,” Harris,

(quoting Iqbal,

). See also supra,

Part III.B.2.(b).

Plaintiff does not plead any additional facts to support her hostile work environment

claims, but instead merely incorporates the same actions and events previously enumerated. See

Compl. ¶¶ 130, 131. Just as with plaintiff’s discrimination claims, see supra, Part III.B.2.(b).,

none of these allegations contain any facts or evidence to allow the drawing of any reasonable

inferences, that any of the actions alleged were due to any of plaintiff’s claimed protected

categories, beyond plaintiff’s conclusory say so. Just as with plaintiff’s attempt to claim

discrimination, these deficiencies mean plaintiff’s hostile work environment allegations fail to

state a claim and thus must be dismissed. See id. 6

IV. CONCLUSION

For the foregoing reasons, taking the alleged facts in plaintiff’s complaint as true, plaintiff’s

claims must be dismissed, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

An order consistent with this Memorandum Opinion will be entered contemporaneously.

Date: January 1, 2025

__________________________ BERYL A. HOWELL United States District Judge

6 Since plaintiff’s hostile work environment claims fail, her constructive discharge claim also necessarily fails, since this allegation is predicated on the existence of a hostile work environment. See Compl. ¶¶ 130, 131. With respect to the claim of a constructive discharge, plaintiff’s complaint never alleges that she submitted her resignation due to any workplace issues, much less a hostile workplace environment. See generally id.; see also id. ¶ 78. In fact, the only time plaintiff actually alleges that “a hostile work environment” existed was on October 20, 2020, id. ¶ 79, four days after plaintiff submitted her resignation, see id. ¶¶ 78, 79, which means even this allegedly hostile environment could not be considered as a reason for plaintiff’s resignation.

25