UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RASHID ELLIS

Plaintiff,

v. Civ. No. 24-977 (EGS) KRISTI L. NOEM, Secretary of Homeland Security

Defendant.

MEMORANDUM OPINION

Plaintiff Rashid Ellis (“Mr. Ellis”) has served as a

Special Agent with the United States Secret Service (“USSS” or

“Secret Service”) division of the Department of Homeland

Security (“DHS”) since 2011. See Pl.’s Am. Compl. (“Am.

Compl.”), ECF No. 7. 1 Mr. Ellis brings this suit against Kristi

Noem 2, in her official capacity as DHS Secretary (“Defendant” or

“Agency”), for alleged unlawful employment discrimination,

retaliation, and a hostile work environment. See id. Pending

before the Court is Defendant’s Motion to Dismiss Mr. Ellis’s

Amended Complaint in full (“Motion to Dismiss”). See Def’s Mot.

1 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 2 Pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure, the current Secretary of Homeland Security is substituted as Defendant for her predecessor. See Fed. R. Civ. P. 25(d). 1 to Dismiss Am. Compl. & Mem. in Supp. Thereof (“Mot.”), ECF No.

10. Mr. Ellis opposes Defendant’s Motion. See Pl.’s Opp’n to

Def’s Mot. to Dismiss Am. Compl. & Mem. in Supp. Thereof

(“Opp’n”), ECF No. 12.

Upon careful consideration of the Motion, Opposition

thereto, Reply, the entire record, and for the reasons stated

below, the Motion is GRANTED IN PART and DENIED IN PART.

I. Background

A. Factual

The following facts reflect the allegations in the

operative complaint and the documents incorporated by reference

therein, which the Court assumes are true for the purposes of

deciding this motion and construes in Mr. Ellis’s favor. See

Baird v. Gotbaum,

, 169 n.2 (D.C. Cir. 2015). Mr.

Ellis began serving as a Special Agent with the USSS in May

2011. See Am. Compl., ECF No. 7 ¶ 1. He was “consistently

awarded . . . ‘Exceeds Expectations’ in his performance reviews

throughout his employment.” Id. ¶ 22. Mr. Ellis has served on

the “Secret Service’s Counter Assault Team, the Presidential

Protective [Division], and as an instructor at the James J.

Rowley Training Center where he has taught both new and

experienced agents about counter-surveillance and unmanned

aerial systems (UAS or drones).” Opp’n, ECF No. 12 at 1. He has

also “served in various leadership capacities for the Federal

2 Law Enforcement Officers Association (FLEOA)” and has been a

“tireless advocate for racial equality within the Agency.” Id.;

see also Am. Compl., ECF No. 7 ¶¶ 25, 26.

Mr. Ellis is “African American and has dark skin.” Am.

Compl., ECF No. 7 ¶ 19. His “race and color are apparent based

on his physical appearance.” Id. His full name is “Rashid

Abdullah Malik Ellis” which “causes others to perceive him as

Muslim.” Id. ¶ 20. “During his time with the Secret Service, Mr.

Ellis’s coworkers have repeatedly discriminated against him on

the basis of his race, skin tone, and perceived religion, which

has included referring to Mr. Ellis as a ‘Muslim Terrorist.’”

Id. ¶ 2. When he “complained about [] discriminatory behavior,

the Agency took no corrective action” and instead “placed []

discriminatory employees in supervisory roles over Mr. Ellis.”

Id. ¶ 3.

Mr. Ellis began suffering from discriminatory harassment

when he joined the Agency in 2011, the same time as “another

agent, Michael Hackney (GS-13, white male).” Opp’n, ECF No. 12

at 3 (citing Am. Compl., ECF No. 7 ¶ 27). “Almost immediately,

Mr. Hackney subjected Mr. Ellis to racial invective, bragging

about how he would physically injure people with dark skin like

Mr. Ellis during his time with the Virginia State Police SWAT

team[.]” Id. (citing Am. Compl., ECF No. 7 ¶ 28). Mr. Hackney

also “derogatorily refer[ed] to Mr. Ellis as a ‘Muslim’ . . .

3 and call[ed] his vehicle ‘that Muslim car.”’ Id. (citing Am.

Compl., ECF No. 7 at 3). Mr. Ellis “regularly informed Mr.

Hackney that he was Christian and that he preferred to be called

American rather than be identified by any specific race or

religion[,] [b]ut that did not stop the comments.” Am. Compl.,

ECF No. 7 ¶ 31.

The harassment that Mr. Ellis experienced went beyond

discriminatory comments. In “2015, while Mr. Ellis and Mr.

Hackney were in Counter Assault BASIC training together, Mr.

Hackney used an exercise as an opportunity to physically attack

Mr. Ellis.” Id. (citing Am. Compl., ECF No. 7 ¶ 34). Mr. Ellis

“reported this incident to [Assistant to the Special Agent in

Charge (“ATSAIC”)] Joseph Berrios, [to] whom Mr. Hackney

admitted that he physically attacked Mr. Ellis, but Mr. Berrios

took no action, telling Mr. Ellis that ‘the juice isn’t worth

the squeeze.”’ Id. (citing Compl., ECF No. 7 ¶¶ 35-36).

In 2017, Mr. Hackney and Tim O’Connor, another agent,

“pulled a live weapon on Mr. Ellis as a ‘joke’” while he was

“working a protection detail.” Id. (citing Am. Compl., ECF No. 7

¶ 37). In 2019, while Mr. Ellis was “off duty and walking with

his then 1-year-old child and pregnant wife, Mr. Hackney

aggressively drove his SUV towards Mr. Ellis and his family as

though he was going to run them over.” Id. (citing Am. Compl.,

ECF No. 7 ¶ 37). Another agent, Chris Thompson, witnessed the

4 SUV incident, but when Mr. Ellis told Mr. Thompson that he

intended to report the incident, Mr. Thompson replied ‘“that’s

how some people joke.”’ Id. (citing Am. Compl., ECF No. 7 ¶ 38).

According to Mr. Ellis, “Mr. Hackney’s actions, and the failure

of leadership to address them, has created an environment of

pervasive fear of retaliation that discourages individuals from

reporting such incidents.” Am. Compl., ECF No. 7 ¶ 40.

On July 9, 2021, Mr. Ellis “bid for two hard-to-staff []

positions in the Secret Service’s Airspace Branch and at the

James J. Rowley Training Center.” Id. He alleges that he was

eligible for both positions. See id. (citing Am. Compl., ECF No.

7 ¶ 41). According to Mr. Ellis, the “Special Agent in Charge

[(“SAIC”)], David Cho, told Mr. Ellis that he supported his

application, but that the USSS had a problem with racism

throughout the organization.” Id. (citing Am. Compl., ECF No. 7

¶¶ 43-44). Even though Mr. Ellis “had already confirmed that he

was eligible for the positions . . . [Human Resources (“HUM”)]

SAIC Elizabeth Lewis and Chief Human Resources Officer Susan

Yarwood [(“Chief Yarwood”)] disqualified Mr. Ellis.” Id. (citing

Am. Compl., ECF No. 7 ¶¶ 48-51).

When Mr. Ellis notified Mr. Cho of “[Chief] Yarwood’s

decision; Mr. Cho informed Mr. Ellis that he was the number one

selection and that he would look into it.” Id. (citing Am.

Compl., ECF No. 7 ¶ 52). On July 30, 2021, “[Presidential

5 Protective Division (“PPD”)] ASAIC David Yamin called Mr. Ellis

and told him that USSS’ Legal Division had ruled him

ineligible.” Id. (citing Am. Compl., ECF No. 7 ¶ 54). Later that

day, Mr. Ellis “called OPO [Special Operations Division (“SOD”)]

[Deputy Assistant Director (“DAD”)] Milton Wilson [(“Mr.

Wilson”)] and advised him that the Agency had ruled him

ineligible, and that the ruling was incorrect.” Id. (citing Am.

Compl., ECF No. 7 ¶ 55). Mr. Wilson “called Mr. Ellis back and

told him that he would have been the number one selection for

the positions without interference from HR.” Id. (citing Am.

Compl., ECF No. 8 ¶ 57). Mr. Ellis “followed up with various

Agency officials, who all tried to justify [his]

disqualification on specious grounds without supporting policy

documentation.” Id. (citing Am. Compl., ECF No. 7 ¶¶ 58-67). Mr.

Ellis also “met with his direct supervisor, ATSAIC David

Iosilevich [{“ATSAIC Iosilevich”)], and expressed his

disappointment about Defendant wrongly disqualifying him from

the” job. Am. Compl., ECF No. 7 ¶ 72.

“On August 9, 2021, Mr. Ellis filed an informal grievance

with the USSS Employee Relations Division to appeal his

disqualification.” Opp’n, ECF No. 12 at 4 (citing Am. Compl.,

ECF No. 7 ¶ 75). On August 31, 2021, PRF Division Chief Danielle

Watson (“Chief Watson”) called Mr. Ellis regarding his

grievance. See id. During the phone call, Mr. Ellis “explained

6 his insistence on an unbiased grievance official and expressed

frustration at the barriers that racial discrimination had

placed in the path of his career. He joked that his career

‘drove [him] to drink.’” Am. Compl., ECF No. 7 ¶ 79 (alteration

in original).

Chief Yarwood conferred with SAIC Lewis, then “instructed

Chief Watson to create a memorandum for record (MFR) documenting

her conversation with Mr. Ellis on August 31, 2021.” Opp’n, ECF

No. 12 at 5 (citing Am. Compl., ECF No. 7 ¶ 83). Chief Watson

“subsequently documented the conversation in the MFR by falsely

claiming that Mr. Ellis had explicitly informed her ‘I am an

alcoholic, that is my conditions’ as well as other false

statements.” Id. (citing Am. Compl., ECF No. 7 ¶ 84); see also

Def. Ex. 2, ECF No. 10-3. Chief Yarwood wrote in an email to

USSS Assistant Director Kim Cheatle that she “recommended taking

his gun, etc. and putting him on admin leave and referring for a

fitness for duty.” Opp’n, ECF No. 12 at 5 (citing Am. Compl.,

ECF No. 7 ¶ 86). Chief Yarwood indicated in a separate email to

others that “Director Cheatle recommended a nine-month alcohol

program for Mr. Ellis.” Id. (citing Am. Compl., ECF No. 7 ¶ 87).

Mr. Ellis maintains that he “is not an alcoholic and has never

been.” Id. (citing Am. Compl., ECF No. 7 ¶ 93). “As a result of

Director Cheatle’s recommendation, Mr. Ellis had to turn in his

gear in front of his peers, a humiliating experience, and had to

7 write a memorandum explaining that he was not an alcoholic and

requesting reinstatement.” Id. (citing Am. Compl., ECF No. 7 ¶

103).

While Mr. Ellis was on administrative leave, ATSAIC

Iosilevich, Mr. Ellis’s supervisor at the time, called him and

asked if he had said anything to “Cowboy”, a protectee. Am.

Compl., ECF No. 7 ¶ 107. Mr. Ellis responded that his recent

interactions with this protectee had been “pleasant.” Id. ATSAIC

Iosilevich explained that his questions related to an incident

on August 28, 2021 in which Mr. Ellis drove “Cowboy” and her

friends home after a night of dancing. Id. ¶ 108. One of

Cowboy’s friends repeatedly asked Mr. Ellis to stop somewhere

else on their way to Cowboy’s destination, and Mr. Ellis

responded that the USSS was not an “Uber service.” Id. ¶¶ 109,

110. At the end of the ride, Cowboy thanked Mr. Ellis and

apologized to him for her friend’s behavior. See id. ¶ 111.

According to ATSAIC Iosilevich, Cowboy complained about this

incident afterwards. Id. ¶ 112.

ATSAIC Iosilevich instructed Mr. Ellis to write a

memorandum about this incident and submit it along with his

request for reinstatement. See id. ¶ 113. ATSAIC Iosilevich also

instructed Mr. Ellis to “omit certain details that would reflect

negatively on ‘Cowboy’ and/or her friends and relatives.” Id. ¶

114. Mr. Ellis wrote the memorandum, as instructed, on September

8 3, 2021. See id. ¶ 115. The Agency informed Mr. Ellis that it

was placing him on Administrative Leave to investigate the

comments, but to date, the Agency has conducted no such

investigation. See id. ¶¶ 116, 117. “On September 8, 2021, Mr.

Ellis emailed ATSAIC Iosilevich, requesting the return of his

USSS credentials. Mr. Ellis explained that he had not received

due process and had done nothing wrong. Soon after, ASAIC John

Bush emailed Mr. Ellis, denying his request.” Id. ¶ 118.

On September 9, 2021, while Mr. Ellis was on Administrative

Leave, he submitted a formal grievance to appeal the September

3, 2021 denial of his informal grievance with respect to his

disqualification from the hard-to-staff positions in July-August

2021. Id. ¶ 119. An unidentified GS-15 Supervisor informed Mr.

Ellis on September 10, 2021 that he believed that “Mr. Ellis’s

administrative leave was retaliatory, and that Mr. Ellis should

‘go on offense.’” Id. ¶ 120. That GS-15 Supervisor informed Mr.

Ellis of other examples of retaliation within USSS and

“encouraged Mr. Ellis to seek legal counsel.” Id. ¶ 121. Mr.

Ellis then contacted Employee Assistance Program (“EAP”) Dr.

Kier Maxwell (“Dr. Maxwell”) who expressed confusion as to why

the Agency had not reinstated Mr. Ellis and suggested he contact

the Safety and Health (“SAF”) office. Id. ¶ 122. According to

Dr. Maxwell, if SAF had not heard of Mr. Ellis for any purported

evaluation related to his administrative leave, “there’s a

9 problem.” Id. Mr. Ellis contacted SAF to request instructions

for reinstatement, but the office “had no record of the Agency

referring Mr. Ellis to them.” Id. ¶ 123. Mr. Ellis called back

shortly afterwards, on September 13, 2021, and the same person

told Mr. Ellis there was still no record of the Agency referring

him to them. Id. ¶ 124.

Without conducting any evaluation or investigation, the

Agency reinstated Mr. Ellis effective September 15, 2021. Id. ¶¶

7, 125. SAIC Cho informed Mr. Ellis of this decision on

September 14, 2021, explaining that he had sent Mr. Ellis’s

request for reinstatement and a memorandum to the Legal

Department. Id. Mr. Ellis spoke to ASAIC Bush that same day and

ASAIC Bush asked Mr. Ellis if he was going to ‘put this behind

him[.]” Id. ¶ 126. Mr. Ellis responded that he wanted an

investigation. See id. “ASAIC Bush stressed that Mr. Ellis

should put the administrative leave behind him and warned that

Mr. Ellis would ‘cause a lot of trouble’ for himself if he kept

‘bringing up retaliation”’, advising that Mr. Ellis should

‘“stop beating a dead horse[.]”’Id.

On September 17, 2021, Mr. Ellis was informed that Chief

Yarwood would serve as the deciding official for his formal

grievance about the hard-to-staff disqualifications. See id. ¶

128. Mr. Ellis requested that the Agency assign his grievance to

someone else because Chief Yarwood had already twice

10 disqualified him from positions and placed him on administrative

leave. See id. ¶ 129.

On September 20, 2021, Mr. Ellis filed an informal Equal

Employment Opportunity (“EEO”) complaint alleging that the

Agency subjected him to a hostile work environment on the basis

of his skin tone (race and color). See id. ¶ 130. 3 Mr. Ellis

“identified wrongly disqualifying him from the HTS JOAs,

baselessly placing him on administrative leave, and requiring

him to document his interaction with Cowboy as specific

discriminatory and retaliatory acts by Defendant.” Id. The EEO

counselor who was assigned to Mr. Ellis’s case interviewed

ATSAIC Iosilevich, Chief Yarwood, and SAIC Lewis with respect to

Mr. Ellis’s informal EEO complaint. See id. ¶¶ 133, 134. ASAIC

Bush also informed Mr. Ellis on October 13, 2021 that he was

aware of the EEO complaint. See id. ¶ 136.

On September 21, 2021, Mr. Ellis also filed complaints with

the DHS Office of Inspector General (“OIG”) and USSS Office of

Professional Responsibility and requested investigations into

the retaliation against him for his formal grievance. Id. ¶ 131.

On September 30, 2021, ASAIC Bush, DSAIC Arruda, and then-DSAIC

3 Defendant only attached Mr. Ellis’s formal EEO complaint as an exhibit, not his informal complaint. Defendant also does not attach several of the complaints to other DHS entities that Mr. Ellis filed during the relevant time period. Mr. Ellis attached his EEO intake form as an exhibit to his Opposition. See Pl.’s Ex. 1, ECF No. 12-1. 11 Volpicelli explained that “Legal received Mr. Ellis’s complaint

to Inspections [Office of Professional Responsibility], ‘looked

into’ the decision to place him on administrative leave and

determined that it was not retaliation.” Id. ¶ 132. Mr. Ellis

was informed on October 8, 2021 that Assistant Director Jeremy

Sheridan denied his formal grievance. See id. ¶ 135.

On October 27, 2021, Mr. Ellis filed his formal EEO

complaint. See id. ¶ 137; see also Def. Ex. 5, ECF No. 10-6. In

his formal complaint, Mr. Ellis identified that he was a member

of the following protected categories: “[B]lack, dark-skin

colored, Islamic sounding name.” Def. Ex. 5, ECF No. 10-6 at 6.

He alleged that due to his race, skin color, and

ethnic/religious sounding name”, he “experienced two adverse

personnel actions between August 6[], 2021 and September 3[],

2021.” Id. Further, Mr. Ellis stated that he was “aware of other

similarly situated (self-described) White employees who have

been treated differently” than him. Id. He identified the harm

that resulted from these actions as “loss of a qualified

position and unjust administrative leave” as well as

humiliation, exclusion, harassment, and a hostile work

environment. Id. As the first specific adverse personnel action,

Mr. Ellis identified how he was “disqualified and as a result

not selected for a hard[-]to[-] staff” position, despite being

the “best qualified candidate” and “#1 selection.” Id. Mr. Ellis

12 pointed out that language in the Agency’s policy manual and the

job announcement indicated that he was eligible. See id. He

alleged that the individuals who were selected were less

qualified than him. See id. Additionally, he identified the

responsible officials as Elizabeth Lewis, Andrew Cannady, Tom

Hamann, and Susan Yarwood. See id.

As to the second adverse action, Mr. Ellis explained that

on September 3, 2021, he received a formal memorandum and was

placed on administrative leave “without being afforded [his]

right to due process in accordance with the USSS Table of

Penalties as none of the Table of Penalties were violated or

applied to [his] situation.” Id. He asserted that the

allegations against him were “false and without any merit.” Id.

Further, Mr. Ellis stated that he had “knowledge of several

other similarly situated White employees who were afforded due

process in accordance with the USSS Table of Penalties.” Id. He

identified the officials involved in this personnel action as

Andrew Cannady, Elizabeth Lewis, Susan Yarwood, and possibly

others. See id.

On January 16, 2022, Mr. Ellis bid for a promotion to an

ATSAIC position within the Talent Acquisition Division, which

was “similar to a role [he] previously held in the private

sector.” Am. Compl., ECF No. 7 ¶ 139. According to Mr. Ellis,

Chief Yarwood prevented him from being promoted. See id. ¶ 147.

13 Mr. Ellis informed the EEO that he would file another EEO

complaint against Chief Yarwood for retaliation. See id. “On

April 1, 2022, Human Resources released an updated policy,

written by Chief Yarwood and Thomas Hamann, which effectively

banned Mr. Ellis from [hard-to-staff] positions by adding a

minimum time commitment for Phase 2 assignments before being

eligible for reassignment.” Id. ¶ 152.

On March 2, 2022, Mr. Ellis submitted a second complaint to

the USSS Office of Personnel Responsibility (Investigations)

division in which he alleged retaliation by SAIC Lewis, Chief

Yarwood, and Chief Watson for, among other things, filing his

EEO complaint. See id. ¶ 145. On March 3, 2022, Mr. Ellis made

similar additional complaints to the DHS OIG and Office of

Special Counsel. See id. On March 9, 2022, Mr. Ellis told his

new supervisor, ATSAIC Gleason, that he “intended to submit a

memorandum to Investigations, challenging the accuracy of []

Chief Watson’s MFR” about his alcoholism. Id. ¶ 148. Mr. Ellis

submitted this challenge on March 11, 2022. See id. ¶ 149. On

March 20, 2022, Mr. Ellis filed another complaint with the

Inspections division identifying additional individuals involved

in misconduct and seeking an investigation. See id. ¶ 150. In

June 2022, Mr. Ellis made his fourth complaint to the

Inspections Division, this time under the Anti-Harassment

Program, and “provided a detailed overview of the discriminatory

14 harassment that he was subjected to by white and light-skinned

individuals.” Id. ¶ 154. Later in June 2022, Mr. Ellis was

informed that “no action would be taken against those who

discriminated against” him, in particular, Chief Yarwood. Id. ¶

155. Mr. Ellis bid on a position at the James J. Rowley Training

Center in July 2022 and was selected for this position. See id.

¶ 156.

B. Procedural

At the conclusion of Mr. Ellis’s EEO process, on May 5,

2023, the Agency issued a Final Agency Decision which found no

wrongdoing. Id. ¶ 13. Mr. Ellis then appealed the Final Agency

Decision to the Office of Federal Operations on May 26, 2023.

See id. ¶ 14. The Office of Federal Operations issued a decision

on January 8, 2024 agreeing with the Agency’s determination. See

id. ¶ 15.

Mr. Ellis timely filed his Complaint in this Court on April

5, 2024. See Compl., ECF No. 1. Defendant filed her first Motion

to Dismiss Mr. Ellis’s Complaint on July 15, 2024. See Def.’s

Mot. to Dismiss, ECF No. 6. Mr. Ellis then filed his Amended

Complaint on July 29, 2024, as well as his Opposition to the

first Motion to Dismiss. See Am. Compl., ECF No. 7; Pl.’s Opp’n

to Mot. to Dismiss, ECF No. 8. In his Amended Complaint, Mr.

Ellis alleges seven counts of discrimination, retaliation, and

hostile work environment on the basis of his race, color, and

15 religion, in violation of Title VII. See Am. Compl., ECF No. 7

at 19–23 (alleging Count I: Discrimination on the Basis of Race

in violation of 42 U.S.C. § 2000e, et seq.; Count II:

Discrimination on the Basis of Color in violation of 42 U.S.C. §

2000e, et seq.; Count III: Discrimination on the Basis of

Religion in violation of 42 U.S.C. § 2000e, et seq.; Count IV:

Retaliation in violation of 42 U.S.C. § 2000e, et seq.; Count V:

Hostile Work Environment on the Basis of Race in violation of 42

U.S.C. § 2000e, et seq.; Count VI: Hostile Work Environment on

the Basis of Color in violation of 42 U.S.C. § 2000e, et seq.;

and Count VII: Hostile Work Environment on the Basis of Religion

in violation of 42 U.S.C. § 2000e, et seq.).

Defendant subsequently filed her second Motion to Dismiss

on September 26, 2024, seeking to dismiss Mr. Ellis’s Amended

Complaint. See Mot., ECF No. 10. In light of the Amended

Complaint and second Motion to Dismiss, the Court issued a

Minute Order finding the first Motion to Dismiss moot. See

Minute Order (Sept. 26, 2024). Mr. Ellis filed his Opposition to

the second Motion to Dismiss on October 23, 2024, see Opp’n, ECF

No. 12; and Defendant filed her Reply on November 14, 2024, see

Reply, ECF No. 13. The second Motion to Dismiss is now ripe for

consideration.

16 II. Standard of Review

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

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton,

(D.C. Cir. 2002). A

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

, (2007) (internal quotation marks omitted).

Despite this liberal pleading standard, 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)

(internal quotation marks omitted). “In determining whether a

complaint fails to state a claim, [the Court] may consider only

the facts alleged in the complaint, any documents either

attached to or incorporated in the complaint and matters of

which [the Court] may take judicial notice.” EEOC v. St. Francis

Xavier Parochial Schl.,

(D.C. Cir. 1997). A

claim is facially plausible when the facts pled in the complaint

allow the court to “draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

The

standard does not amount to a “probability requirement,” but it

17 does require more than a “sheer possibility that a defendant has

acted unlawfully.”

“[W]hen ruling on a defendant's motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint.” Atherton v.

D.C. Office of the Mayor,

(D.C. Cir. 2009)

(internal quotation marks omitted). In addition, the court must

give the plaintiff the “benefit of all inferences that can be

derived from the facts alleged.” Kowal v. MCI Commc'ns Corp.,

(D.C. Cir. 1994).

B. Title VII

“Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-

352,

, 253-66 (codified as amended in 42 U.S.C. §§

2000e to 2000e-17), reflects the American promise of equal

opportunity in the workforce and shields employees from certain

pernicious forms of discrimination.” Figueroa v. Pompeo,

, 1082–83 (D.C. Cir. 2019); see also McDonnell Douglas

Corp. v. Green,

(1973) (“McDonnell Douglas”)

(citations omitted) (“The language of Title VII makes plain the

purpose of Congress to assure equality of employment

opportunities and to eliminate those discriminatory practices

and devices which have fostered racially stratified job

environments to the disadvantage of minority citizens.”).

Accordingly, it is “unlawful for an employer to ‘fail or refuse

18 to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.”’ Muldrow v. City of St. Louis, Missouri,

(2024) (quoting 28 U.S.C. § 2000e-2(a)(1)).

Title VII’s protections ““strike at the entire spectrum of

disparate treatment of men and women in employment,’ which

includes requiring people to work in a discriminatory hostile or

abusive environment.” Harris v. Forklift Systems Inc.,

(1993) (quoting Meritor Savings Bank, FSB v. Vinson,

(1986) (“Vinson”) (additional citations omitted)).

Accordingly, a “workplace that is permeated with ‘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”’ violates

Title VII as a hostile work environment claim.

(quoting

Vinson,

). “A separate section of [Title VII]—its

antiretaliation provision—prohibits an employer from

‘discriminating against’ an employee or job applicant because

that individual ‘opposed any practice’ made unlawful by Title

VII or ‘made a charge, testified, assisted, or participated in’

a Title VII proceeding or investigation.” Burlington Northern &

Santa Fe Ry. Co. v. White,

(2006) (“Burlington”)

19 (quoting 42 U.S.C. § 2000e-3(a)) (alterations omitted). Title

VII’s “substantive protections ‘apply with equal force in both

private and federal-sector cases.”’ Figueroa,

(quoting Ponce v. Billington,

(D.C. Cir.

2012)).

Title VII cases can be based on direct or circumstantial

evidence. See Figueroa,

. In cases that lack

direct evidence, courts apply the McDonnell Douglas framework

wherein a plaintiff first alleges a prima facie case, then the

employer puts forth a legitimate, non-discriminatory reason for

their action, then the plaintiff must show that the proffered

reason is pretext for discrimination. McDonnell Douglas Corp,

. The McDonnell Douglas framework only comes

into play, however, after the pleading stage. See Swierkiewicz

v. Sorema N.A.,

(2002) (“The prima facie case

under McDonnell Douglas, however, is an evidentiary standard,

not a pleading requirement.”).

III. Analysis

A. Exhaustion

“Before filing suit, Title VII plaintiffs must timely

exhaust their administrative remedies.” Harris v. Gonzales,

(D.C. Cir. 2007) (citing 42 U.S.C. § 2000e–16(c)).

According to Equal Employment Opportunity Commission (“EEOC”)

regulations, a Title VII plaintiff must initiate contact with an

20 Equal Employment Opportunity (“EEO”) officer within forty-five

days of an alleged discriminatory or retaliatory event. See id.

For purposes of the Court’s exhaustion analysis, the Court

delineates three overarching categories of unlawful conduct

alleged in the Amended Complaint: (1) events pre-August 6, 2021,

which is forty-five days prior to his informal EEO complaint on

September 20, 2021; (2) events included in Mr. Ellis’s EEO

complaint and subsequent documents in his EEO process; and (3)

events that occurred after Mr. Ellis began his EEO process for

which Mr. Ellis did not supplement his EEO documents. See

generally Am. Compl., ECF No. 7. Defendant does not contest that

the second category of events, those listed in Mr. Ellis’s EEO

complaint and subsequent documents, is properly exhausted. See

Mot., ECF No. 10 at 22-23. Accordingly, the Court will not

analyze Defendants’ arguments with respect to the merits of

those events. Defendant asserts, however, that the events in the

first and third categories, those pre-August 6, 2021 events and

post-EEO complaint not included in agency documents, are not

exhausted and therefore must be dismissed. See id.

The Court agrees that the events that occurred prior to

August 6, 2021 cannot give rise to Mr. Ellis’s discrete Title

VII discrimination and retaliation claims because they were not

exhausted. Mr. Ellis concedes this point and clarifies that

those events contribute to his hostile work environment claims,

21 not his discrete discrimination and retaliation claims. See

Opp’n, ECF No. 12 at 9. Likewise, the events that Defendants

assert occurred after the filing of Mr. Ellis’s informal EEO

complaint, category three, and were not subsequently addressed

in his EEO process will be dismissed with respect to Mr. Ellis’s

discrete Title VII retaliation and discrimination claims. Mr.

Ellis does not contest that these events were un-exhausted, nor

assert that any exception to exhaustion applies.

Accordingly, the events that were properly exhausted for

purposes of Mr. Ellis’s discrete discrimination and retaliation

claims are: (1) Mr. Ellis’s August 6, 2021 disqualification from

hard-to-staff job opportunity announcements; (2) Mr. Ellis’s

September 3, 2021 receipt of a formal memorandum and placement

on administrative leave without being afforded the right to due

process; (3) Mr. Ellis’s supervisors’ treatment of the protectee

complaint and requirement that Mr. Ellis write a memo about the

incident; (4) false statements about Mr. Ellis’s supposed

alcoholism; (5) Mr. Ellis’s non-selection for Job Opportunity

22039 on March 3, 2022; and (6) Mr. Ellis’s non-selection for

the Job Opportunity Spr22-HTS-01, Special Agent, GS-13, Office

of Training, James J. Rowley Training Center on May 5, 2022. See

generally Am. Compl., ECF No. 7; Def. Ex. 5, ECF No. 10-6 at 6

(Formal EEO Complaint); Def. Ex. 6, ECF No. 10-7 at 2-3 (Notice

of Acceptance Letter); Def. Ex. 7, ECF No. 10-8 at 2-3 (Amended

22 Notice of Acceptance Letter); Def. Ex. 8, ECF No. 10-9 at 2-3

(Second Notice of Acceptance Letter).

Beyond this straight-forward application of the exhaustion

requirement for Title VII discrimination and retaliation claims,

Defendant also asserts that Mr. Ellis’s Hostile Work Environment

claims should be dismissed on exhaustion grounds for events that

occurred prior to 2021. Mr. Ellis responds, however, that

Defendant misconstrues his Amended Complaint and that he has

alleged one continuous hostile work environment from 2011

through 2022, and that events that contributed to this claim

were exhausted in his 2021 EEO process. For the reasons

explained below, the Court agrees with Mr. Ellis and will not

dismiss or limit the bases for his hostile work environment

claim on exhaustion grounds.

The Supreme Court has made clear that a “charge alleging a

hostile work environment claim . . . will not be time barred so

long as all acts which constitute the claim are part of the same

unlawful employment practice and at least one act falls within

the time period.” National R.R. Passenger Corp. v. Morgan,

(2002). Therefore, for purposes of exhaustion,

acts that occur prior to the filing of an administrative

complaint can constitute part of a hostile work environment

claim if at least one of the events occurred in the exhaustion

period. See

(“In order for the charge to be timely,

23 the employee need only file a charge within 180 or 300 days of

any act that is part of the hostile work environment.”).

Moreover, the act for which a plaintiff timely notifies the EEO

office “need not . . . be the last act. As long as the employer

has engaged in enough activity to make out an actionable hostile

environment claim, an unlawful employment practice has

‘occurred,’ even if it is still occurring.”

Defendant concedes as much, see Mot., ECF No. 10 at 21

(quoting Morgan,

); but asserts that “this rule

does not apply to acts that occur prior to the filing of an EEO

complaint.”

(citing Wilson v. Clayton,

(D.D.C. 2017) (internal citation & parenthetical omitted);

Foxworth v. McDonough, Civ. A. No. 23-2195 (TNM),

, at *5 (D.D.C. Jan. 10, 2024) (parenthetical omitted).

Defendant does not elaborate on the argument, rather, she

addresses pre-2021 exhaustion for Mr. Ellis’s hostile work

environment claims with her arguments about some of Mr. Ellis’s

discrete retaliation and discrimination claims being

unexhausted. See

4 Moreover, the cases she cites consider

when allegations can be sufficiently like or related to be

deemed as exhausted when they otherwise would not be. See

4 In Reply, Defendant primarily attempts to distinguish Mr. Ellis’s authority by raising similar arguments about the asserted lack of relatedness or time gaps in the alleged instances. See Reply, ECF No. 13 at 9-10. 24 Mr. Ellis does not allege that this exception applies to any

pre-2021 events; rather, he maintains that he has alleged a

continuous hostile work environment from 2011-2022, during which

time at least some of the events at issue were exhausted.

Accordingly, taking Mr. Ellis’s allegations as true, he has

sufficiently alleged that he has exhausted his hostile work

environment claims. To the extent Defendant challenges whether

the pre-2021 events are sufficiently related to events in 2021

that Mr. Ellis properly exhausted such that they can be

considered as part of his hostile work environment claim, see

Reply, ECF No. 13 at 10; the Court will consider this issue when

it addresses whether his hostile work environment claims were

plausibly alleged.

B. Discrimination and Retaliation Claims

“The burden of establishing a prima facie case of disparate

treatment is not onerous.” Texas Dept. of Community Affairs v.

Burdine,

(1981). The prima facie elements for

a discrimination claim are (1) membership in a protected class;

(2) adverse action; and (3) inference of discrimination. See

McDonnell Douglas,

. For retaliation cases, the

prima facie elements are (1) protected activity; (2) adverse

action; and (3) causal connection for retaliation claims. See

Hussain v. Nicholson,

(D.C. Cir. 2006).

25 “At the pleading stage, [however,] a Title VII plaintiff

need not even allege a prima facie case.” Chambers v. District

of Columbia,

(D.C. Cir. 2022) (citing

Swierkiewicz,

). Indeed, the Supreme Court has

made clear that a Title VII suit imposes no higher burden on a

plaintiff than ordinarily arises for a motion to dismiss. See

also Swierkiewicz,

. Accordingly, “[a]t the

motion to dismiss stage, the district court cannot throw out a

complaint even if the plaintiff did not plead the elements of a

prima facie case.” See Brady v. Office of Sergeant at Arms,

(D.C. Cir. 2008) (citing Swierkiewicz, 534 U.S. at

510–11).

As noted, the exhausted actions for Mr. Ellis’s Title VII

Discrimination and Retaliation claims are: (1) Mr. Ellis’s

August 6, 2021 disqualification from a hard-to-staff job

opportunity announcement; (2) Mr. Ellis’s September 3, 2021

receipt of a formal memorandum and placement on administrative

leave without being afforded the right to due process; (3) Mr.

Ellis’s supervisors’ treatment of the protectee complaint and

requirement that Mr. Ellis write a memo about the incident; (4)

false statements about Mr. Ellis’s supposed alcoholism; (5) Mr.

Ellis’s non-selection for Job Opportunity 22039 on March 3,

2022; and (6) Mr. Ellis’s non-selection for the Job Opportunity

Spr22-HTS-01, Special Agent, GS-13, Office of Training, James J.

26 Rowley Training Center on May 5, 2022. See generally Am. Compl.,

ECF No. 7; Def. Ex. 5, ECF No. 10-6 at 6 (Formal EEO Complaint);

Def. Ex. 6, ECF No. 10-7 at 2-3 (Notice of Acceptance Letter);

Def. Ex. 7, ECF No. 10-8 at 2-3 (Amended Notice of Acceptance

Letter); Def. Ex. 8, ECF No. 10-9 at 2-3 (Second Notice of

Acceptance Letter). Defendant seeks dismissal of these claims on

several bases, each of which the Court discusses below.

Before the Court addresses these specific arguments, it is

worth noting two overarching issues. First, Defendant attempts a

selective reading of Mr. Ellis’s Amended Complaint by asserting

that he has forfeited or limited his claims by enumerating

certain allegations while excluding others in the claims

themselves. See e.g., Reply, ECF No. 13 at 11 (asserting that

Mr. Ellis never alleged that his administrative leave, false

alcoholism allegations, and issues related to the protectee’s

complaint were part of his retaliation claim); id. at 17

(asserting that Mr. Ellis’s Amended Complaint “specifically

alleged that he first engaged in protected activity on September

20, 2021”). This argument is unpersuasive as Mr. Ellis expressly

incorporated all of his allegations into each of his counts. See

Am. Compl., ECF No. 7 ¶¶ 158, 163, 168, 173, 179, 184, 189.

Moreover, for many the instances in which Mr. Ellis

enumerated certain events as elements of his claims in addition

to the foregoing paragraphs that he reincorporated, he made

27 clear the list was non-exhaustive. See e.g. id. ¶ 159 (listing

events “inter alia” that were unlawful discrimination). If there

were doubt about the breadth of Mr. Ellis’s allegations, the

Court would resolve those in his favor given the requirements

for considering a motion to dismiss. See Kowal,

.

Accordingly, the Court rejects Defendant’s arguments that Mr.

Ellis has limited certain counts to exclude allegations listed

in his Amended Complaint. See also Bynum v. District of

Columbia,

, 131 (D.D.C. 2020) (rejecting

similar argument).

Second, Defendant raises numerous arguments about issues

that Mr. Ellis has purportedly conceded. See Mot, ECF No. 10 at

39; Reply, ECF No. 13 at 8-9. Some of these arguments are

persuasive, but others fail upon closer consideration. The Court

will address these arguments to the extent they are relevant to

its analysis.

1. Adverse Action

Defendant argues that much of the unlawful conduct in Mr.

Ellis’s Amended Complaint does not rise to the level of adverse

action. See generally Mot., ECF No. 10 at 24-38. 5 With respect

5 Mr. Ellis asserts that Defendant concedes that some of the unlawful conduct rises to the level of adverse action. See Opp’n, ECF No. 12 at 15. Defendant claims that her failure to address certain allegations was based on her view that certain allegations were excluded from Mr. Ellis’s claims. See Reply, ECF No. 13 at 16. 28 to adverse action for discrimination, she asks the Court to

impose a higher standard than the Supreme Court recently

articulated in Muldrow v. City of Saint Lewis because this case

involves a federal as opposed to private or local governmental

employee. See

As discussed below, this theory has been

rejected by every judge on this Court to have considered it.

With respect to retaliation, Defendant acknowledges that the

standard is more generous, but asserts that many of the events

still do not meet it. See

Mr. Ellis argues that this Court

should reject the government’s argument with respect to the

standard for adverse action in government-employee

discrimination cases, and that he has sufficiently alleged

adverse action for both his retaliation and discrimination

claims. See Opp’n, ECF No. 12 at 13–15.

The Court will first determine the applicable legal

standards, then it will evaluate the specific adverse actions.

a. Legal Standards

i. Discrimination

In Muldrow v. City of Saint Louis, the Supreme Court made

clear that to show an adverse action for a discrimination claim

under Title VII, a plaintiff need only allege that the action

caused “some harm” to a term or condition of their employment.

Muldrow v. City of St Louis,

(2024). In so

ruling, the Supreme Court settled a dispute among United States

29 Courts of Appeal as to what amount of harm a Title VII plaintiff

must allege, with many such courts imposing a “significant” harm

requirement that resulted in keeping numerous plaintiffs out of

court. See

(detailing examples where “employees

suffered some injury in their employment terms or conditions

(allegedly because of race or sex)” but “[t]heir claims were

rejected solely because courts rewrote Title VII, compelling

workers to make a showing that the statutory text does not

require”).

To avoid the application of Muldrow here, Defendant puts

forth a limiting interpretation that has no basis in Muldrow, no

support in D.C. Circuit precedent, and that every other judge on

this Court who has considered the argument has rejected. See

Mot., ECF No. 10 at 26-29. Specifically, Defendant asserts that

because language in Title VII cases for federal employees

differs from non-federal and local employees, the “some harm”

standard set forth in Muldrow does not apply to the former

category of cases, such as here. See id. 26-27. This argument is

without merit.

Defendant’s only source of authority for her argument is

that the Supreme Court held in Babb v. Wilkie that the

difference in language in federal and non-federal protections

under the Age Discrimination in Employment Act (“ADEA”)-which is

comparable to that in the Title VII context-carried legal

30 significance. See Babb v. Wilkie,

(2020).

Defendant cites to no authority that has held that different

standards govern federal and non-federal employee cases in the

Title VII discrimination context. On the contrary, as Defendant

concedes, the D.C. Circuit has previously held that the federal

and non-federal employee provisions of Title VII provide the

same protections to those who allege they have suffered

discrimination. See Mot., ECF No. 10 at 29 (discussing how other

judges on this Court have continued to apply Czekalski v.

Peters,

(D.C. Cir. 2007), which held that the

federal employee protections in Title VII discrimination cases

are the same as non-federal employee protections). Even so,

Defendant seeks a broad application of Babb beyond the ADEA

context to mean that “when anti-discrimination statutes use

different language in their federal and non-federal provisions

they should not be interpreted the same.” Id. at 29.

The Court agrees with its colleagues that this argument is

without merit. See e.g., Wilson v. Noem, No. 20-CV-100 (GMH),

, at *20 (D.D.C. Apr. 3, 2025); Turner v.

Buttigieg, No. CV 23-1665 (LLA),

, at *8 (D.D.C.

Sept. 30, 2024); Hollingsworth v. Vilsack, No. CV 23-2427 (LLA),

, at *9 (D.D.C. Sept. 27, 2024), appeal dismissed

sub nom. Hollingsworth v. Rollins, No. 24-5267,

(D.C. Cir. May 14, 2025); Mitchell v. Garland, No. CV 23-2412

31 (LLA),

, at *3 (D.D.C. July 1, 2024). As other

judges on this Court have recognized, even though the D.C.

Circuit has not directly addressed this issue, it has continued

post-Babb to consider the federal and non-federal employee

provisions in Title VII discrimination claims coextensively. See

also Mitchell,

, at *3; Bain v. Off. Of the Att’y

Gen.,

, 54 (D.D.C. 2022). In 2022, in a non-

federal employee case, the D.C. Circuit overruled the heightened

standard set forth in Brown v. Brody,

(D.C.

Cir. 1999), which was a federal employee case that required a

showing of “objectively tangible harm” in alleged discriminatory

transfers. See Chambers,

. Nowhere in Chambers

did the D.C. Circuit imply there was a difference in federal

versus non-federal Title VII discrimination cases nor cast doubt

on its prior holdings that these protections were coterminous.

See

Accordingly, the Court will apply the “some harm”

standard that the Supreme Court articulated in Muldrow.

ii. Retaliation

Unlike Title VII discrimination claims, a plaintiff need

not show that an alleged retaliatory action impacts a term or

condition of their employment. Rather, the Supreme Court has

explained that retaliation is broadly defined to mean any action

against the employee that would dissuade an objective employee

from reporting unlawful discrimination. See Burlington,

at 68-70. Indeed, the Supreme Court explained that “Title VII

depends for its enforcement upon the cooperation of employees

who are willing to file complaints and act as witnesses.” Id. at

67. As such, “[i]nterpreting the antiretaliation provision to

provide broad protection from retaliation helps ensure the

cooperation upon which accomplishment of the Act’s primary

objective depends.” Id.

The Supreme Court has, however, distinguished “significant

from trivial harms” by imposing the “material adversity”

requirement. See id. at 68. In other words, not all retaliatory

acts will cause harm that would prevent an objective employee

from reporting discrimination. See id. The question of material

adversity depends on the context and circumstances of the

events. See id. at 69 (quoting Oncale v. Sundowner Offshore

Servs. Inc.,

(1998) (‘“The real social impact

of workplace behavior often depends on a constellation of

surrounding circumstances, expectations, and relationships which

are not fully captured by a simple recitation of the words used

or physical acts performed.”’)).

b. Specific Adverse Actions

Defendant challenges Mr. Ellis’s claimed instances of

discrimination or retaliation as failing to constitute adverse

actions. Several of the arguments go beyond what Mr. Ellis

asserts to be relevant adverse actions, so the Court will not

33 address these issues. 6 Instead, the Court will focus on the

discrete events that Mr. Ellis maintains comprise his

discrimination and retaliation claims. These are also the

instances that he exhausted according to the EEO documents that

Defendant attached to her Motion, albeit with slightly different

descriptions. The relevant events, per Mr. Ellis, are: (1) his

wrongful disqualification from two hard-to-staff positions in

August 2021; (2) the “false allegations of alcoholism, [which]

damage[ed] his reputation [and led] to administrative leave”;

(3) the Agency’s “[b]lowing an incident with a protectee

‘Cowboy’ out of proportion,” and requirement for him to write

the “humiliating memo documenting the non-incident”; and (4) the

denial of a promotion to the Talent Acquisition Division ATSAIC

position on January 16, 2022. 7 See also Opp’n, ECF No. 12 at 14

(citing Am. Compl. ¶¶ 48, 71, 84, 113, 114, 139, 152).

6 To the extent that these allegations are part of Mr. Ellis’s discrete discrimination or retaliation claims, which he states they are not, Defendant’s Motion to Dismiss is granted and these claims are dismissed. 7 Mr. Ellis did not include the allegation in his EEO documents

about his May 2022 non-selection for the Job Opportunity Spr22- HTS-01, Special Agent, GS-13, Office of Training, James J. Rowley Training Center in this summary, see Def. Ex. 8, ECF No. 10-9 at 2, so the Court will not consider it as part of the instances Mr. Ellis maintains are discrete discriminatory or retaliatory events. To the extent it is one of his discrete claims, Defendant’s Motion to Dismiss is granted and that claim is dismissed. 34 i. Disqualification

Defendant does not address in her Motion whether Mr.

Ellis’s disqualification from hard-to-staff positions was an

adverse action. See Mot., ECF No. 10. As noted, the Court

rejects Defendant’s argument that Mr. Ellis has not alleged this

as a discrete incident of discrimination and retaliation simply

because he did not re-allege this incident by name in specific

counts. Cf Reply, ECF No. 13 at 16. But it also does not agree

with Mr. Ellis that Defendant concedes this was sufficient

adverse action by failing to address it in her Motion. Cf Opp’n,

ECF No. 12 at 15. Nonetheless, the only arguments with respect

to the disqualification that Defendant raises in her Reply

relate to whether Mr. Ellis has alleged retaliatory motive. See

generally Reply, ECF No. 13 at 16-22. Accordingly, Defendant has

suggested no basis for the Court to dismiss these discrete

allegations related to adverse action.

ii. False Accusations of Alcoholism and Administrative Leave

Defendant raises several arguments as to why the Agency’s

false allegations of alcoholism and placement of Mr. Ellis on

administrative leave are not adverse actions. See Mot., ECF No.

10 at 31-34. For the reasons discussed below, these arguments

fail.

35 With respect to discrimination, Defendant bases her

argument on the higher, non-Muldrow standard and argues that Mr.

Ellis has not alleged a qualifying “personnel action” or other

“significant” change to his duties or responsibilities. Id. at

32. Defendant made no argument as to whether, if the Court

rejected her argument on the applicable standard, these actions

would still not meet the level of “some harm.” See id.; see also

Reply, ECF No. 13. Specifically, for the administrative leave

issue, Defendant maintains that Mr. Ellis failed to show

“significant” harm and repeatedly highlights how Mr. Ellis

continued to be paid throughout his administrative leave. See

Mot., ECF No. 10 at 32. See id. Beyond not requiring plaintiffs

like Mr. Ellis to show significant harm, the Supreme Court

reaffirmed in Muldrow that actionable harm extends beyond

economic or tangible harms. See Muldrow,

(citations omitted). Here, Mr. Ellis has plausibly alleged that

he suffered some harm as he was placed on administrative leave

from duty based on false accusations regarding his fitness for

duty.

As for the false accusations of alcoholism and issuance of

the memorandum, Defendant only addresses these allegations with

respect to discrimination in her Reply. See Reply, ECF No. 13 at

13; see also Mot. at 33-34 (focusing on retaliation). See Mot.,

ECF No. 10; Reply, ECF No. 13. Defendant maintains that Muldrow

36 does not apply and argues that “reputational harm is not a

recognized harm for purposes of . . . discrimination[.]” Reply,

ECF No. 13 at 13 (citing, with respect to discrimination,

Chambers,

(“[N]ot everything that happens at the

workplace affects an employee’s ‘terms, conditions, or

privileges of employment[.]” (alterations in original)). Even if

Mr. Ellis has only alleged reputational harm, the D.C. Circuit

cast doubt in Chambers as to whether such harm would be

insufficient as it is more than de minimis. See Chambers,

(considering how under the prior, more restrictive

Brown standard, “public humiliation or loss of reputation” were

deemed insufficient despite being more than “de minimis”).

Here, however, Mr. Ellis has alleged additional harm by

asserting that these allegations affected his “potential for new

assignments.” See Opp’n, ECF No. 12 at 15; see also

(explaining how in his job as a Secret Service Special Agent,

“mental acuity and fitness for duty are paramount”). In Reply,

Defendant casts doubt on these allegations and highlights how

Mr. Ellis ultimately obtained the position at the James J.

Rowley Training Center that he had wanted. See Reply, ECF No. 13

at 13. She also asserts that Mr. Ellis’s allegations of future

negative impact on his career are too speculative. See

But

the Court continues to take Mr. Ellis’s plausible factual

allegations as true and notes that Mr. Ellis alleged he was

37 denied at least one promotion in the time between when the false

allegations occurred and when he ultimately obtained the job

that Defendant cites. See Am. Compl. ¶¶ 139, 159. Accordingly,

the Court need not decide whether purely reputational harm would

be actionable as it is sufficient to conclude that Defendant

failed to show Mr. Ellis’s allegations here fall below the “some

harm” standard that applies.

As to retaliation, Defendant bases much of her argument on

the assumption that Mr. Ellis was placed on leave pending an

investigation, that the false alcoholism accusations and

memorandum arose as part of an investigation, and that these

instances were simply ways in which Mr. Ellis was subjected to

heightened scrutiny related to his job. See Mot., ECF No. 10 at

32-34. These assumptions are unsupported. Mr. Ellis lays out how

the Agency nominally placed him on administrative leave so that

they could conduct an investigation into his alleged alcoholism

and fitness for duty. See Am. Compl., ECF No. 7 ¶¶ 6

(administrative leave purportedly being so that Agency could

conduct an investigation), 88 (placement on leave pending an

“FFD”, or fitness for duty), 95 (alleging Mr. Ellis was placed

on administrative leave due to his “alcohol dependency” and to

“undergo an alcohol treatment”). But no such investigation ever

occurred. See id. ¶¶ 7 (the Agency never conducted such an

investigation), 123 (Safety and Health office had no records of

38 Mr. Ellis being referred for any evaluation), 124 (same), 125

(reinstating Mr. Ellis despite receiving no FFD evaluation).

Moreover, Mr. Ellis alleges that when a superior asked if

he would ‘“put this behind’ him”, referring to the alcoholism

accusations and administrative leave, Mr. Ellis “replied that he

wanted an investigation” but was told, inter alia, to ‘“stop

beating a dead horse.”’ Id. ¶ 126. Therefore, taking Mr. Ellis’s

facts as true, not only did the Agency fail to conduct any

investigation into its accusations of alcoholism that were the

proffered reason for Mr. Ellis’s administrative leave, but it

also hindered his efforts to disprove these accusations.

Accordingly, Defendant’s bases for her arguments that these

allegations are not adverse actions for purposes of retaliation

fails. 8

8 Even though the Court rejects the premise of Defendant’s argument, it is worth noting that the cases Defendant cites fall far short of showing that “there is a near consensus” among other judges on this Court that “paid administrative leave pending an investigation” does not constitute adverse action for retaliation. Mot., ECF No. 10 at 32 (citations omitted). As Defendant concedes, the D.C. Circuit has not ruled definitively on this question. see id. at 32 (citing Hornsby v. Watt, No. 17- 5001,

, at *1 (D.C. Cir. Nov. 14, 2017)). Although in all of the cases that Defendant cites, other judges have held that administrative leave was insufficient to show adverse action, many of the cases were based on individualized analyses of the facts of that specific case, including the investigation that was initiated. See Wesley v. Georgetown Univ., Civ. A. No. 18-1539 (BAH),

, at *6 (D.D.C. Nov. 2, 2018); Jones v. Castro,

(D.D.C. 2016) (parenthetical omitted); Hunter, 905 F. Supp. 2d at 374; Hunter v. District of Columbia,

(D.D.C. 39 iii. Incident with Protectee

The arguments with respect to the Agency’s requirement that

Mr. Ellis write a memorandum about the incident with the

protectee, “Cowboy,” largely overlap with those related to the

false alcoholism allegations and administrative leave discussed

above. With respect to discrimination, Defendant applies the

heightened non-Muldrow standard and asserts that Mr. Ellis has

failed to show a “significant change to his duties,

responsibilities, or working conditions by being asked to write

a memorandum” about this incident. See id. at 35. Mr. Ellis

articulates a similar impact from these incidents related to his

credibility and potential for new assignments as the false

alcoholism accusations. See Opp’n, ECF No. 12 at 15. Again,

Defendant fails to address this argument under the Muldrow

standard of “some harm.” The Court therefore rejects her

argument.

With respect to retaliation, Defendant again argues that

Mr. Ellis’s allegations “amount to a complaint that the Secret

Service initiated an investigation into a protectee’s complaint

about him or was otherwise imposing scrutiny on his work . . .

2012) aff’d, No. 13-7003,

(D.C. Cir. Sept. 27, 2013)). This approach is in line with the Supreme Court’s guidance that whether an action is materially adverse depends on the facts and circumstances of that case. See Burlington,

. 40 .” Mot., ECF No. 10 at 34-35. Defendant reiterates her argument

that “the mere initiation of an investigation does not amount to

materially adverse action for purposes of retaliation, unless

the investigation triggers disciplinary action.”

9 The Court

rejects these arguments for the same reasons as explained above.

Accordingly, Defendant has failed to show that Mr. Ellis’s

allegations with respect to the protectee’s complaint and the

requirement that he write a memorandum on this incident are

insufficient adverse actions.

iv. Denial of Promotion

Neither party spends much time discussing whether the

denial of promotions constitutes adverse action against Mr.

Ellis. Defendant generally asserts that Mr. Ellis’s allegation

that the Agency announced a new policy on April 1, 2022 that

effectively banned him from hard-to-staff positions is “mere

speculation”, which is not actionable. Mot., ECF No. 10 at 36-

37. In response, Mr. Ellis reiterates that he alleges adverse

action based on the denial of his promotion. See Opp’n, ECF No.

12 at 14 (citing Am. Compl., ECF No. 7 ¶¶ 139, 152). The

9 Defendant also discusses how there is no basis to allege that Mr. Ellis was placed on administrative leave as a result of having to write this memorandum. See Mot., ECF No. 10 at 35. The Court need not base its conclusion here on an assumption that this action led to Mr. Ellis’s administrative leave, even though he has alleged so in his Amended Complaint. See Am. Compl., ECF No. 7 ¶ 116. 41 allegations that Mr. Ellis cites include both his bid for a

“promotion to ATSAIC within the Talent Acquisition Division”,

which was similar to a role he previously held in the private

sector, see Am. Compl., ECF No. 7 ¶ 139; and the release of an

updated policy which effectively banned Mr. Ellis from HTS

positions by adding a minimum time commitment for Phase 2

assignments before being eligible for reassignment”, id. ¶ 152.

Defendant does not argue that if Mr. Ellis were denied a

promotion, that would be adverse action. Defendant only

addresses the non-promotion further in Reply when she argues it

is too speculative for other aspects of a prima facie case of

retaliation. See Reply, ECF No. 13 at 24. Accordingly, Defendant

has not shown that Mr. Ellis insufficiently alleged it to be

adverse action.

c. Protected Activity and Causal Nexus

The D.C. Circuit has described how at the pleading stage,

“th[e] initial burden” to plausibly allege a case of retaliation

“is not great.” McKenna v. Weinberger,

, 790 (D.C.

Cir. 1984). A “[p]laintiff merely needs to establish facts to

permit an inference of retaliatory motive.”

“An employee's

opposition to an employment practice is protected under Title

VII when the employee ‘reasonably and in good faith believed

[the practice] was unlawful under the statute.’” Grosdidier v.

Broad. Bd. of Governors, Chairman,

(D.C. Cir.

42 2013) (quoting McGrath v. Clinton,

(D.C.

Cir. 2012)); see also Lott v. Not-for-Profit Hosp. Corp.,

(D.D.C. 2018) (“The employee's ‘belief’ that

the employer's conduct was unlawful need not be certain.”). “A

plaintiff may satisfy this third element of a prima facie case

by showing ‘the employer had knowledge of the employee's

protected activity, and ... the adverse personnel action took

place shortly after that activity.’” Holcomb v. Powell,

(D.C. Cir. 2006) (quoting Mitchell v. Baldrige,

(D.C. Cir. 1985)).

Defendant raises two main arguments for why the Court

should dismiss Mr. Ellis’s retaliation claims for failure to

allege protected activity and causal nexus. See Mot., ECF No. 10

at 39-47. First, Defendant argues that Mr. Ellis “concedes that

the first time he engaged in any protected activity was on

September 20, 2021, when he filed an informal EEO Complaint” and

therefore, any alleged actions prior to then or stemming from

employment decisions prior to that date are not adequately

alleged to be because of his protected activity.

(citing Am.

Compl., ECF No. 7 ¶ 174). This argument implicates Mr. Ellis’s

allegations that his non-selection for the hard-to-staff

positions, false allegations of alcoholism and administrative

leave, and issues related to the protectee’s complaint were

retaliatory. Second, Defendant asserts that several of Mr.

43 Ellis’s allegations are “impermissible conclusory assertions.”

The only one of these latter actions that Mr. Ellis

continues to assert is a basis for his retaliation claim, and

that the Court will address, is his non-promotion.

d. Onset of Protected Activity

Defendant asserts that Mr. Ellis “conceded” his first

instance of protected activity was his September 20, 2021

informal EEO complaint. See Mot., ECF No. 10 at 39-41 10. Mr.

Ellis, however, strongly disputes this assertion. Indeed,

nowhere in the Amended Complaint does he say as much, and he

incorporated all of his allegations in his Amended Complaint to

his specific retaliation count. See Am. Compl., ECF No. 7 ¶ 173;

see also id. ¶ 174 (including no statement that any of these

were the “first” instance of protected activity); Mot., ECF No.

10 at 39. 11 In Reply, Defendant doubles down on her argument

that Mr. Ellis limited his protected activity to the post-

September 2021 EEO complaint. In addition to the reasons

explained above why the Court rejects this argument, Defendant’s

10 Defendant cites no authority for the proposition that a Court must construe a complaint that lists certain instances of elements of a claim as excluding all other allegations in the complaint that could be relevant to the claim, especially when the plaintiff expressly incorporates all prior allegations. 11 In Reply, Defendant goes as far as to assert that Mr. Ellis

“unambiguous[ly] alleg[ed] in the Amended Complaint that he first engaged in protected activity when he filed his EEO claim on September 20, 2021.” Reply, ECF No. 13 at 18. 44 argument would require the Court to construe the facts against

Mr. Ellis, which it cannot do when reviewing a Motion to

Dismiss. Additionally, Defendant asserts that the instances of

protected activity Mr. Ellis alleges prior to the relevant

adverse actions either do not rise to the level of protected

activity or lack a causal connection to the retaliatory acts.

See Reply, ECF No. 13 at 18-23.

Mr. Ellis’s Amended Complaint contains numerous instances

prior to September 20, 2021 in which he raised concerns of

discrimination and retaliation to various agency officials. See

Am. Compl., ECF No. 7 ¶¶ 35, 36, 72, 75, 76, 79, 118, 119, 126.

Indeed, Mr. Ellis explains how he “alleges that he engaged in

protected activity by complaining [of] racial discrimination and

a hostile work environment on the basis of race, color, and

perceived religion for years prior to July 2021[.]” Opp’n, ECF

No. 12 at 16 (citing Am. Compl., ECF No. 7 ¶¶ 1-41). Setting

aside some of the other instances of protected activity in which

Mr. Ellis engaged, such as his various informal and formal

grievances-some of which Defendant disputes-he highlights his

complaints to Chief Watson as relevant protected activity for

the pre-September 20, 2021 adverse actions in question.

According to Mr. Ellis, on August 31, 2021, he “explicitly

complain[ed] to Chief Watson that he believed his

disqualification from the two hard-to-staff positions was

45 discriminatory.” Id. (citing Am. Compl., ECF No. 7 ¶ 79). Per

Mr. Ellis, “Chief Watson responded by falsely alleging that Mr.

Ellis was an alcoholic (Am. Compl. ¶ ¶¶ 83-84), placing him on

administrative leave (Am. Compl. ¶¶ 85, 88, 95), and then

humiliating Mr. Ellis by making him write a memorandum for the

record about a non-incident involving protectee “Cowboy” (Am.

Compl. ¶¶ 86, 88, 95).” Id. Mr. Ellis argues that the temporal

proximity between his complaints to Chief Watson and the

Agency’s subsequent adverse actions is “striking, and clearly

sufficient to permit an inference of retaliatory motive.” Id. at

16-17 (citing e.g., Brownfield v. Bair,

(D.D.C. 2008) (“finding that less than two months between

protected activity and adverse action was sufficient to

establish a causal connection”); Goos v. Nat’l Ass’n of

Realtors,

(D.D.C. 1989) (“finding that just

over five weeks between the protected action and the plaintiff’s

termination was short enough time lapse to infer a causal

connection”)).

Mr. Ellis also alleges that after he raised concerns about

these actions in his EEOC complaint and the EEOC investigation

began, Chief Yarwood and the Agency denied Mr. Ellis the

promotion to ATSAIC within the Talent Acquisition Division that

he bid for on January 16, 2022 and that Ms. Yarwood released the

policy apparently aimed at Mr. Ellis on April 1, 2022 that

46 effectively banned him from hard-to-staff positions.

at 17

(citing Am. Compl., ECF No. 7 ¶¶ 133, 134, 136, 139, 147, 152.

The Court agrees with Mr. Ellis that he has sufficiently

alleged that he engaged in protected activity prior to the false

accusations of alcoholism, memorandum, administrative leave,

treatment of the incident with a protectee, and non-selection

and policy change in 2022, and that there is an inference of

retaliation for these actions. Defendant asserts that Mr.

Ellis’s conversation with Chief Watson on August 31, 2021 was

merely a complaint of ‘“frustrated ambition’ about the general

trajectory of his career” that is not sufficient protected

activity. Reply, ECF No. 13 at 21 (quoting Broderick, 437 F.3d

at 1232). This argument fails. The context of this conversation

was that on August 9, 2021, Mr. Ellis filed an Informal

Grievance with USSS Employee Relations Division to appeal his

disqualification from the hard-to-staff positions, see Am.

Compl., ECF No. 7 ¶ 75; Chief Watson called Mr. Ellis on August

31, 2021 and informed him that his complaint was being

reassigned, see id. ¶ 77; and during that conversation, “Mr.

Ellis explained his insistence on an unbiased grievance official

and expressed frustration at the barriers that racial

discrimination had placed in the path of his career. He joked

that his career ‘drove [him] to drink[,]”’ id. ¶ 76. Evidently,

Mr. Ellis was not simply expressing frustration at his career

47 ambition, but was raising concerns that his career had already

been and was continuing to be negatively impacted by

discrimination. See id.

Defendant concedes that a short temporal proximity can give

rise to an inference of retaliation. See Reply, ECF No. 13 at

18-19 (citations omitted). But she asserts that Mr. Ellis has

not shown that Chief Watson was involved in any of the relevant

retaliatory acts. See id. at 22. This argument also fails. Mr.

Ellis states that “[a]fter conferring with SAIC Lewis, HUM Chief

Yarwood instructed PRF Division Chief Watson to create a

memorandum for record . . . documenting her conversation with

Mr. Ellis on August 31, 2021." Am. Compl., ECF No. 7 ¶ 83. This

is the memorandum that contained the false allegations of

alcoholism that, according to Mr. Ellis, led to his

administrative leave and negatively impacted his potential for

future assignments. See id. ¶ 84; Opp’n, ECF No. 12 at 15. Mr.

Ellis alleges that Chief Yarwood sent the memorandum to Chief

Yarwood, “who in turn forwarded it to LEG”, the Legal Division.

Am. Compl., ECF No. 7 ¶ 85. Mr. Ellis alleges that Chief Yarwood

recommended placing Mr. Ellis on administrative leave, see Am.

Compl., ECF No. 7 ¶ 86; and that one of the individuals who was

involved in the discussions leading to Mr. Ellis’s

administrative leave, “DAD Wilson”, even raised questions as to

48 whether the decision was “based on Mr. Ellis’ efforts to get a

different assignment,” id. ¶ 90.

Mr. Ellis has similarly sufficiently alleged that he

complained of being “wrongly disqualified” from hard-to-staff

positions to ATSAIC Iosilevich around August 6, 2021, see Am.

Compl., ECF No. 7 ¶ 72; and that on September 3, 2021, ATSAIC

Iosilevich “instructed Mr. Ellis to write a memorandum detailing

his interaction with ‘Cowboy’ and her friends, and to submit it

with his request for reinstatement, see id. ¶ 113. See also id.

¶ 114 (instructing Mr. Ellis to omit details that could reflect

negatively on the protectee or her friends/relatives).

Afterwards, Mr. Ellis again complained to ATSAIC Iosilevich and

“explained that he had not received due process and had done

nothing wrong.” Id. ¶ 118. Finally, Mr. Ellis has adequately

alleged that Ms. Yarwood, who had knowledge of his EEO activity,

retaliated against him by preventing his promotion to ATSAIC

within the Talent Acquisition Division on which he bid on

January 16, 2022, see Am. Compl., ECF No. 7 ¶¶ 139, 147; and

that she released the updated policy on April 1, 2022 that

“effectively banned Mr. Ellis from [hard-to-staff] positions,”

id. ¶ 52.

For these reasons, Mr. Ellis has adequately alleged

retaliation claims with respect to the false alcoholism

accusations, memorandum, administrative leave, handling of the

49 protectee’s complaint, and denial of promotion to the position

on which he bid in January 2022. The Court concludes that Mr.

Ellis has not, however, sufficiently alleged an inference of

retaliation with respect to his disqualification from the hard-

to-staff positions in July-August 2021. The most recent

protected activity prior to Mr. Ellis’s non-selection was a year

and a half prior to his non-selection. See Am. Compl., ECF No. 7

¶ 37. 12 Although temporal proximity is not the only way to

allege an inference of retaliation, Mr. Ellis puts forth no

other basis to make such an inference and accordingly fails to

state a retaliation claim for this action.

2. Inference of Discrimination

Defendant argues that Mr. Ellis fails to dispute her

arguments as to his purported failure to allege an inference of

discrimination for his discrete discrimination claims and,

therefore, the Court should deem these arguments conceded and

dismiss his discrimination claims in full. See Reply, ECF No. 13

at 8. Even though the Court agrees that formalistically, Mr.

Ellis fails to specifically dispute many of the arguments that

Defendant puts forth about a lack of discriminatory inference,

the Court declines to deem Mr. Ellis’s entire discrimination

12Defendant inaccurately states this time gap was at least two years, see Reply, ECF No. 13 at 19; but regardless of this mathematical error, the gap in time is far more significant than courts have found to show an inference of retaliation. 50 claims conceded. To start, Mr. Ellis clearly does not intend to

abandon his discrimination claims. See Opp’n, ECF No. 12 at 14-

15 (maintaining that Mr. Ellis has stated discrimination

claims).

Moreover, the parties both cite authority stating that a

Title VII plaintiff need not plead all elements of a prima facie

case of discrimination to survive a motion to dismiss. See Mot.,

ECF No. 10 at 45; Opp’n, ECF No. 12 at 8. Indeed, in a case

Defendant cites that discusses the requirement at the pleading

stage, another judge on this court reviewed at length the

authority from the Supreme Court and D.C. Circuit holding that a

plaintiff ‘“need not plead facts showing each of the[] elements

[for a discrimination claim] in order to defeat a motion under

Rule 12(b)(6),”’ even after Twombley and Iqbal. Townsend v.

United States,

(D.D.C. 2017) (quoting

Gordon v. U.S. Capitol Police,

(D.C. Cir.

2015) (citing Swierkiewicz v. Sorema N.A.,

(2002)

(alterations in original)). Defendant fails to explain how even

if Mr. Ellis has not addressed her arguments as to this specific

aspect of a prima facie case, he has not set forth sufficient

“factual allegations, taken collectively” from which “the

inferences of discrimination drawn . . . are reasonable and

plausibly supported.” See

(citations omitted).

51 Further, the arguments that Defendant raises as to why Mr.

Ellis does not satisfy this aspect of his prima facie case of

discrimination are either inapposite or unconvincing. See Mot.,

ECF No. 10 at 47-50. To summarize, Defendant argues that Mr.

Ellis does not allege direct evidence of discriminatory remarks;

that the 2011-2019 events and remarks are unrelated to the

actions at issue; and that Mr. Ellis’s allegations related to

his denial of a promotion in 2022 are too sparse. See

And as

for the other arguments, even if true, these arguments are not

based on allegations of direct evidence of discrimination. As

noted, however, a discrimination claim may be based on indirect

or direct evidence of discrimination. Defendant gives this issue

only cursory consideration. See id. at 48. In a single line,

Defendant asserts that “[n]or does [Mr. Ellis] ever allege that

other individuals not sharing his protected characteristics were

treated more favorably than him with respect to the same

events.” Id. at 48. This is plainly incorrect, but even if it

were not, it would be unwarranted to deem Mr. Ellis’s failure to

dispute this one line as a concession that all three of his

discrimination claims should be dismissed.

Although the allegations are somewhat sparse in his Amended

Complaint, Mr. Ellis has alleged facts that plausibly give rise

to an inference of discrimination. For example, Mr. Ellis

asserted that other employees who had been in similar positions

52 to him had not been disqualified from hard-to-staff positions,

as he had, despite only serving one year on the PPD. See Am.

Compl., ECF No. 7 ¶ 58; see also id. ¶ 79 (complaining that

racial discrimination was a barrier in his career path). He also

alleged that he was not selected for the hard-to-staff positions

despite being the top choice. See id. ¶¶ 43, 52, 56. Further,

with respect to the administrative leave and allegations of

alcoholism and incident with a protectee, Mr. Ellis alleged that

he “had not received due process and had done nothing wrong.”

Id. ¶¶ 5, 118. These allegations go beyond Mr. Ellis’s general

allegations that the Agency “subjected [him] to disparate

treatment” for various events. Id. ¶ 8.

Furthermore, the documents that Defendant attached to her

Motion to Dismiss and are incorporated into Mr. Ellis’s Amended

Complaint clearly allege that other white employees were treated

differently with respect to the hard-to-staff positions and

administrative leave. See Def. Ex. 5, ECF No. 10-6; see also

Mot., ECF No. 10 at 19 (quoting Wardick v. Fed. Bureau of

Prisons, Civ. A. No. 19-0184,

, at *4 (D.D.C.

Apr. 10, 2020) (quoting Hurd v. District of Columbia,

(D.C. Cir. 2017) (alterations in original) (As

Defendant explains in her Motion, “[i]n considering a Rule

12(b)(6) motion, a court may consider ‘the facts alleged in the

complaint, any documents either attached to or incorporated in

53 the complaint, and matters of which [the Court] may take

judicial notice.”’). Accordingly, Defendant’s one-line statement

that Mr. Ellis nowhere alleged to have been treated worse than

other comparators is unsupported with respect to his

disqualification from the hard-to-staff positions, false

allegations of alcoholism, administrative leave, and incident

with the protectee. Even though the Court concluded that Mr.

Ellis has alleged sufficient details about his non-promotion for

the position on which he bid in January 2022 for purposes of his

retaliation claim, it concludes that Mr. Ellis has not

sufficiently alleged an inference of discrimination for this

action based on the limited facts included.

Finally, in addition to the reasons explained above, the

Court notes that the authority on which Defendant relies to

assert that Mr. Ellis has made this substantial concession makes

clear such a decision is discretionary, not mandatory. See

Wannall, 775 F.3d at 428 (citing Hopkins v. Women’s Div., Gen.

Bd. of Global Ministries,

(D.D.C. 2003)

(additional citations omitted)). In light of the D.C. Circuit’s

admonition that a plaintiff need not plead all elements of a

prima facie case to survive a motion to dismiss; the relative

limited discussion or irrelevance of Defendant’s arguments that

Mr. Ellis failed to sufficiently plead such an inference; and

that the key argument Defendant addresses in passing is at least

54 arguable, though unsupported, the Court declines to use its

discretion to take Mr. Ellis’s failure to specifically dispute

Defendant’s arguments here as a concession that his

discrimination claims must fail. Defendant has not put forth a

persuasive argument for why the Court should do so.

C. Hostile Work Environment

A hostile work environment exists, in violation of Title

VII, when a “workplace is permeated with ‘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,

(quoting Meritor Savings Bank, FSB v. Vinson,

(internal brackets and quotation marks

omitted)); see also Joyner v. Morrison & Foerster LLP,

(D.C. Cir. 2025). The events comprising the hostile

work environment must be ‘‘“adequately linked”’ to form a

‘“coherent”’ claim. Joyner,

. When assessing

hostile work environment claims, courts consider ‘“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”’,

(quoting Harris, 501 U.S. at

23); although “no single factor is required”, Harris, 501 U.S.

at 23. The question of whether an environment is sufficiently

55 hostile is viewed from the perspective of a reasonable observer

and requires consideration of “all of the circumstances”,

meaning it “is not, and by its nature cannot be, a

mathematically precise test.” Harris,

.

Defendant asserts that Mr. Ellis’s claim is “based on an

‘array of unrelated’ acts separated by significant gaps in time

involving several different actors or decisionmakers, spanning

over a decade between 2011 and 2022.” Mot., ECF No. 10 at 51

(citing Burkes v. Holder,

(D.D.C. 2013);

see also Mason v. Geithner,

(D.D.C. 2011)

(there must be a ‘common thread’ among the acts comprising the

hostile work environment)). Defendant also argues that events

giving rise to a hostile work environment claim cannot be

unrelated to protected characteristics, and cannot merely be

those events that give rise to individual discrimination and

retaliation claims. See id. at 52-53. Finally, Defendant argues

that the events Mr. Ellis alleged here are not severe enough to

make a hostile work environment claim. See id. at 54. For the

reasons explained below, these arguments fail.

First, even though the events span years, Mr. Ellis has

alleged that they occurred with relative frequency and were

sufficiently related to be viewed as part of the same hostile

work environment. The common thread through all of the

allegations that Mr. Ellis raises is that he experienced threats

56 and different treatment due to his protected characteristics

that were either disregarded when he raised concerns to

superiors or resulted in additional mistreatment of him. See

generally Am. Compl., ECF No. 7. Specifically, as Mr. Ellis

highlights, in 2011, Mr. Hackney bragged to Mr. Ellis about how

he physically injured people with dark skin, like Mr. Ellis,

while he was a Virginia State Police SWAT Operator; also in

2011, Mr. Hackney began referring to Mr. Ellis derogatorily as a

“Muslim” and referred to Mr. Ellis’s vehicle as “that Muslim

car”; Mr. Hackney continued to make similar comments, including

allegedly referring to him as a “Muslim Terrorist”, even though

Mr. Ellis informed Mr. Hackney that he was a Christian and

preferred to be identified as American instead of any particular

race or religion; in 2015, Mr. Ellis’s white peers consistently

ranked him last despite the head instructor describing him as

part of the top three in the class; also in 2015, Mr. Hackney

“took advantage of an exercise to physically attack Mr. Ellis”;

in 2017, Mr. Hackney and another special agent pulled a live

weapon on Mr. Ellis while working a protection detail, an

incident they described as a “joke”; in 2019, Mr. Hackney

“aggressively drove his SUV toward Mr. Ellis, who was walking

with his then-1-year-old child and pregnant wife.” Am. Compl. ¶¶

28, 29, 30, 31, 32, 33, 34; Opp’n, ECF No. 12 at 19.

57 Mr. Ellis alleges that superiors and other colleagues were

aware of many of these incidents but took no action to address

the discriminatory threats and conduct he endured. See Am.

Compl., ECF No. 7 ¶¶ 2, 35, 36, 40; cf Joyner,

-

35 (explaining how the plaintiff had not “plausibly allege that

his supervisors were aware of” the harassing incidents).

Moreover, according to Mr. Ellis, these supervisors and

colleagues dissuaded Mr. Ellis from further reporting the

harassing conduct.

Although the nature of the unlawful conduct that Mr. Ellis

alleges shifted in the 2021 timeframe from threats of bodily

harm to alleged efforts to undermine his career, Mr. Ellis

continued to be targeted based on his protected characteristics,

including being disqualified from a job for a reason other

employees were not and suffering the false allegations of

alcoholism, administrative leave based on the false allegations,

and requirement that Mr. Ellis write a memorandum about a non-

incident with a protectee. See Am. Compl., ECF No. 7 ¶¶ 79, 84,

93, 95, 107-116. Mr. Ellis continued to allege that when he

raised concerns about racial discrimination, his concerns were

dismissed or led to more unlawful conduct. See e.g., Am. Compl.,

ECF No. 7 ¶ 79. Moreover, he asserted that he received warnings

from superiors that the Agency was engaging in discriminatory

58 actions and that it was not following the procedures it would

typically undertake to conduct an investigation.

Second, Mr. Ellis has alleged that the actions comprising

his hostile work environment claims occurred because of his

race, national origin, and perceived religion. The physical

threats and hostility that Mr. Ellis endured from Mr. Hackney

and other colleagues were clearly based on his race, color, and

perceived religion. Cf Baloch v. Kempthorne,

(D.C. Cir. 2008) (discussing how “none of the comments or

actions directed at [the plaintiff] expressly focused on his

race, religion, age, or disability—unlike in some hostile work

environment cases”). Contrary to Defendant’s assertion, and as

explained above, Mr. Ellis also alleges that the accusations of

alcoholism and misconduct with a protectee, as well as his

disqualification and non-selection for various positions, were

discriminatory. See Am. Compl., ECF No. 7 ¶¶ 2, 3, 8, 39, 40,

79, 130, 154. Keeping in mind that Mr. Ellis need not prove that

he will ultimately prevail at this stage of the litigation, he

has included sufficient facts to plausibly allege that the

harassment and hostility he endured was due to his protected

characteristics.

Third, Mr. Ellis has alleged that he suffered events of

heightened severity that are distinguishable from the “ordinary

tribulations of the workplace.” Brooks v. Grundmann,

(D.C. Cir. 2014) (quotations omitted). Defendant asserts

that Mr. Ellis suffered no more than “stray comments, incidents,

and threats, the disqualification from positions, the paid

administrative leave placement, the requirement that he write a

memorandum for the record, the handling of his grievance and

administrative complaints, and his non-selections and non-

promotion[.]” Mot., ECF No. 10 at 53. These events, according to

Defendant, are similar to those in which other courts have

dismissed hostile work environment claims. See id. at 54

(discussing cases). Putting aside that Defendant fails to

address the more severe instances that Mr. Ellis alleges, such

as instances of physical threats and harm or false allegations

of misconduct and alcoholism that the Agency never investigated,

the cases she cites generally contain combinations of workplace

allegations that are distinguishable from Mr. Ellis’s case. See

id. (discussing cases in which employers took away employees’

job duties, provided negative performance reviews or placed

employees on performance improvement plans, and in some

instances made comments about protected characteristics).

As Mr. Ellis points out, courts have denied motions to

dismiss hostile work environment claims based on similar

incidents to those that he has alleged. See Opp’n, ECF No. 12 at

18. For example, Mr. Ellis points to Wise v. Ferriero, a case in

which the alleged actions included use of a racial slur,

60 “threats of discipline based on false accusations” and singling

out and exclusion of the plaintiff from trainings and promotion

opportunities over a few years. See id. (citing Wise v.

Ferriero,

(D.D.C. 2012)). Similarly,

Mr. Ellis points to Jones v. Granholm, in which the court denied

a motion to dismiss because a plaintiff had alleged that her

supervisor issued her a “counseling memorandum, a negative

performance review, placed Plaintiff on a performance

improvement plan, and . . . ‘sabotaged’ her work product.”

(citing Jones v. Granholm, Civ. No. 20-0472 (CKK),

, at *14 (D.D.C. June 21, 2021). Finally, in Behrens v.

Tillerson, Mr. Ellis highlights that the court found that the

plaintiff plausibly alleged a hostile work environment by

alleging that “supervisors denied access to high level

assignments, threatened her with termination, forbade her from

speaking to high-level [individuals], and unfairly targeted her

with negative performance reviews and warnings over the course

of several years.”

(citing Behrens v. Tillerson,

(D.D.C. 2017)).

The conduct that Mr. Ellis alleges is as severe, if not

more severe than that described in the cases he cites. Even just

focusing on the 2021 events, Mr. Ellis alleges that he was

falsely accused of being an alcoholic and of misconduct with a

protectee, which led to his being disciplined through his

61 administrative leave; occurred without the agency following its

own procedures; and ultimately there was no investigation to

ascertain the veracity of the allegations. Considering also the

instances in which Mr. Ellis was physically attacked during a

training exercise; threatened with a loaded gun while on a

detail; and threatened when Mr. Hackney drove his car

aggressively toward Mr. Ellis, his child, and his pregnant wife,

Mr. Ellis has amply satisfied the requirement to plausibly

allege severe harassment or hostility to survive a motion to

dismiss. See Powell v. Castaneda,

(citing

Morgan,

). Defendant’s attempts to distinguish

Mr. Ellis’s authority in Reply are not based on any argument

that the actions in those cases were somehow more severe than

those Mr. Ellis puts forth and therefore, are not persuasive.

See Reply, ECF No. 13 at 25-26. 13

For the reasons explained above, Mr. Ellis has sufficiently

alleged that he experienced a discriminatory hostile work

13Several of the ways in which Defendant attempts to distinguish these cases from Mr. Ellis’s claim appear to presume that certain factors are necessary to or defeat a hostile work environment claim, such as whether the harassers were also decisionmakers or whether a plaintiff ultimately received a promotion or transfer that they had sought. See Reply, ECF No. 13 at 26-28. Defendant concedes, however, that whether a hostile work environment exists requires an analysis of the totality of the circumstances. See Mot., ECF No. 10 at 50. 62 environment and Defendant’s motion to dismiss counts V, VI, and

VII is denied.

IV. Conclusion

For the foregoing reasons, the Court GRANTS IN PART and

DENIES IN PART Defendant’s Motion to Dismiss. An appropriate

Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 25, 2025

63