Robb v. Perdue
Civil Action No. 2020-0929
| D.D.C. | Jul 19, 2021Background
- Fahran Robb joined USDA in 2013 as a GS-14 biofuels advisor, was reassigned to a GS-13 and then returned to a biofuels role that was never restored to GS-14 despite prior assurances.
- In Aug. 2017 Robb requested a keyboard tray accommodation for a musculoskeletal condition; procurement and installation were delayed and the initial tray was ergonomically unsuitable.
- On Nov. 1, 2017 Robb lay down at her workstation to relieve pain, prompting a coworker complaint, an investigation, placement on telework, and later a sequence of discipline (letters of caution, a May 29, 2018 letter of reprimand, a five-day suspension in Feb. 2019, and proposed termination in 2020).
- Robb alleges disability discrimination and failure to accommodate under the Rehabilitation Act, gender discrimination and retaliation under Title VII, and initially a Fifth Amendment reputational claim and a challenge to security-clearance suspension; she filed EEO complaints and administrative proceedings before suing in April 2020.
- The Secretary moved to dismiss in part (exhaustion, non-justiciability of clearance challenge, lack of adverse action); Robb moved to amend. The court granted amendment in part and denied in part, denied dismissal of several claims, dismissed some claims Robb abandoned.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Administrative exhaustion of several 2019 incidents (Feb. suspension, Feb. broken keyboard, Apr. training denial, Apr. timesheet falsification) | Robb and counsel timely notified EEO counselor within 45 days and followed up; exhaustion requirement satisfied | Secretary argued Robb failed to counsel or properly amend pending complaint within required windows, so claims unexhausted/futile | Court: Robb met 45-day counseling requirement; Secretary failed to show non-exhaustion; dismissal for non-exhaustion denied |
| Justiciability of security-clearance suspension | Robb initially challenged clearance suspension as retaliatory | Secretary argued clearance challenge non-justiciable | Robb withdrew that claim in briefing; court dismissed/declined to decide as she no longer pursues it |
| Whether challenged acts qualify as adverse employment actions for discrimination/retaliation (reduction in duties, letters, reprimand, training denial, loss of leave) | Robb: reductions in responsibilities harmed promotion prospects; reprimand contributed to later termination; training denial and falsified timesheet (loss of leave/pay) caused tangible harm and are materially adverse | Secretary: many actions are minor reassignment/standard work adjustments or non-adverse (investigation, letters of caution, reprimand not sufficient) | Court: many claims survive. Reduction in duties plausibly harmed promotion prospects; May 29, 2018 reprimand could be adverse given it was relied upon in termination; training denial and loss of ~18 hours of leave (~$1,100) plausibly constitute materially adverse actions; investigation and letters of caution dismissed as discrete discrimination claims but may be evidentiary |
| Motion to amend complaint (scope of permitted amendments) | Robb sought to remove individual defendants and some claims, correct pleading errors, and add two April 2019 claims (training denial, timesheet falsification) | Secretary opposed the April 2019 additions as futile for exhaustion and non-adverse reasons | Court: granted leave to amend as to corrections and removals; considered April 2019 claims on futility and exhaustion and allowed them to proceed (denying dismissal on exhaustion); overall leave to amend granted in part and denied in part as to claims Robb abandoned |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6) complaints)
- Ashcroft v. Iqbal, 556 U.S. 662 (courts need not accept legal conclusions; pleading must contain sufficient factual matter)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (retaliation standard: materially adverse acts are those that would dissuade a reasonable worker)
- Douglas v. Donovan, 559 F.3d 549 (definition and examples of adverse employment actions)
- Forkkio v. Powell, 306 F.3d 1127 (objective tangible-harm requirement when harms fall outside categorical adverse actions)
- Foman v. Davis, 371 U.S. 178 (leave to amend should be freely given absent futility/prejudice)
- Bowden v. United States, 106 F.3d 433 (burden on defendant to prove plaintiff failed to exhaust administrative remedies)
- Greer v. Paulson, 505 F.3d 1306 (diminution in pay or benefits can constitute adverse action)
- Baloch v. Kempthorne, 550 F.3d 1191 (standard for whether reprimand/criticisms constitute materially adverse action)