MEMORANDUM OPINION
Plаintiff Marion Aldrich works as a policy analyst in the U.S. Department of Health and Human Services’ Office of the Assistant Secretary for Preparedness and Response. She is 57 years old and has long been diagnosed with and treated for Attention Deficit Disorder (ADD). Her otherwise uneventful 20-year stint in government service was upended in February 2012 when she began reporting to a new, younger supervisor, Serina Vandegrift. Plaintiff claims that Vandegrift, motivated by discriminatory animus given Aldrich’s age and disability, created a hostile work environment, and discriminated and retaliated against her through a series of workplace incidents. After pursuing some administrative redress, Plaintiff brought suit here. The government has now filed a Partial Motion to Dismiss, contending that all of Aldrich’s harms, taken together, do not constitute a hostile work environment, and that one of the specific incidents she complains of—a so-called “Leave Restriction”—is not severe enough to count as a discrete act of discrimination or retaliation. The Court agrees with Defendant’s assessment and will grant the Motion.
I. Background
The Court, as it must at this stage, draws the facts from the Complaint. Aid-rich, a 57-year-old Cuban emigré with a master’s degree in public health, began working as a public-health advisor for the Centers for Disease Control and Prevention in 1992. See Compl., ¶¶ 7-9. For the next 20 years, she had a relatively uncontroversial civil-service career. Id., ¶ 12. In February 2012, while Plaintiff was working as a policy analyst in the Executive Secretariat for the Office of the Assistant Secretary for Preparedness and Response (ASPR), Vandegrift became that office’s Director and, consequently, Ald-rich’s boss. I&, ¶¶ 9-11.
Vandegrift was “much younger [and] less experienced” than Plaintiff, id., ¶ 9, which apparently generated some resentment towards Aldrich, given the latter’s “greater age and experience.” Id., ¶ 25. “[WJithin months of working under Vande-grift,” Plaintiff began to experience “abu
About a month after filing her EEO complaint, Plaintiff in August 2012 requested a “quiet work space” as an accommodation for her ADD. Id, ¶ 13. She received that accommodation without much intervention from her employer, as a coworker who had a quiet office agreed to swap spaces with her. Id., ¶¶ 14, 19. Almost a year later, however, the whole office, in June 2013, had to “move to another building,” at which point Vandegrift “assigned Aldrich to a noisy cubicle directly across from Vandegrift’s own office, where she could closely monitor Aldrich and her movements.” Id., ¶ 19. (Aldrich does not allege that she ever formally voiced her objection to the new cubicle or otherwise told her employer that it no longer accommodated her disability.)
Plaintiff notes that from roughly late 2012 thrоugh 2013, “Vandegrift’s more abusive conduct did abate for a time.” Id., ¶ 21. “The daily criticism lessened,” and Plaintiff received what were, in her mind, fair performance appraisals for both 2012 and 2013. Id., ¶¶ 21, 25. About three months after Aldrich’s successful performance review for 2013, however, the armistice began to crack. Id. at ¶ 25.
In May 2014, Vandegrift reprimanded Plaintiff for “unacceptable work performance, failure to follow instructions and failure to submit leave that accurately reflects time away from the office.” Id., ¶ 26. In addition, Vandegrift claimed that she had “consistently counseled [Aldrich] on these issues since May 2012, throughout 2013 until the present day.” Id. ¶ 27. Plaintiff disputes the legitimacy of the “unacceptable work performance” claim, since Vande-grift “had rated Ms. Aldrich’s actual job performance as fully successful” for аt least the 2012-2013 time period. Id., ¶¶ 26-27. But Plaintiff does not allege that the other infractions—ie., “failure to follow instructions and failure to submit leave ... accurately”—were untrue. Id., ¶ 26. Similarly, she does not allege that Vandegrift was incorrect in claiming that she routinely counseled Plaintiff. Instead, Plaintiff explains, “If Vandegrift was demanding to meet with Aldrich on a weekly basis, it was not for any legitimate purpose, but to harass and demean her, to undermine her faith in herself and in her work, and ultimately to drive her from government service.” Id., ¶ 28.
Following that reprimand, Plaintiff filed a complaint with her union alleging that Vandegrift’s criticisms were motivated solely by “Aldrich’s age and disability, and by her persistent efforts to obtain ,,. reasonable accommodation[s].” Id., ¶ 30. That complaint met a swift demise, id., ¶ 31, and Plaintiff did not follow up with an EEO complaint. Id., ¶ 32.
In October 2014, Vandegrift then suspended Plаintiff for five days for “bogus performance and behavioral ‘reasons.’ ” Id., ¶ 33. This time, Plaintiff took the matter to the agency’s EEO office, filing an informal complaint in which she “challenge[d] the suspension as part of a pattern of [discrimination] ... based upon age and disability, repeated requests for reasonable accommodation,” and retaliation for Aldrige’s “exercis[ing] of [her]
The next Monday, November 3, 2014, Vandegrift handed Aldrich a memorandum titled “Leave Restriction” in which she made clear that Plaintiff would face closer scrutiny of her whereabouts during the workday. Id., ¶ 37. “[F]or the next six-month period[,] Aldrich was to announce [to Vandegrift] any arrivаl, as well as each and every departure during the day, that might take 15 minutes or more.” Id., ¶ 39. Despite the title of the memorandum, however, Plaintiff does not allege that the “Leave Restriction” in any way hampered her ability to take sick or vacation leave to which she was entitled. Nevertheless, the requirement that Plaintiff inform Vande-grift of her comings and goings caused her a great deal of stress, sleep deprivation, and fatigue. Id., ¶ 40. On February 5, 2015—about three months into the leave restriction—Aldrich converted her October 2014 informal EEO complaint regarding the five-day suspension into a formal one. Id., ¶ 41.
The final major action Aldrich complains of is an April 2015 reprimand by Vande-grift in which she recommended that Aid-rich again be suspended for fourteen days, “this time for allegedly failing to adhere to prescribed leave policy on [the] day a blizzard was underway in Washington, D.C.” Id., ¶ 45. Vandegrift’s supervisors approved the suspension in June 2015 but reduced the duration to ten days. Id., ¶ 46. As she did with the October 2014 suspension, Plaintiff brought this matter to the EEO as another illustration of her supervisor’s discrimination. Id., ¶ 47. She has yet to receive a final decision from the EEO on the matter. See Opp. at 11-12 n.3.
Before wrapping up, there are a few odds and ends that bear mention. First, one of Aldrich’s co-workers, Susie Nunez, allegedly offered a “sworn statement to the Department”—perhaps during the EEO process, although the Complaint does not say—attesting to various things Van-degrift told Nunez that illustrated her animus towards Plaintiff. See Compl., ¶¶ 15-18 (alleging that Vandegrift told Nunez, inter alia, that Aldrich was “unstable and crazy,” that she was disappointed that Nunez had agreed to switch offices with Aid-riсh, and that she had contemplated “hanging several large bullhorns—which she kept in her office—‘right above the door so [they] can .swing and hit people like Ms. Aldrich’”). Although Aldrich was clearly made aware of these statements before she filed this suit, she never says when, over the nearly four-year period preceding such date, she learned of them.
Second, Aldrich offers a few other isolated anecdotes from 2015 that she claims reveal Vandegrift’s “pattern of abusive conduct.” Id,, ¶ 42. First was an incident in March or April 2015 in which Vandegrift came to her cubicle and “seream[ed] at her and berat[ed] her.” Id., ¶ 43. Another was Vandegrift’s directing Aldrich to pull articles from the National Institutes of Health’s archives on the Ebola virus going back to 1950. See id., ¶ 42; Opp., Exh. 2 (July 9, 2015, Email Chain) (“Please provide me a list of resources thаt speak to the issue, and if possible, print or order the articles. I would do a search as far back as 1950.”). This task,, in Aldrich’s eyes, was patently abusive because “Van-degrift must have been aware that Ebola was only [first] identified in 1977.” Compl., ¶ 42. A third was Vandegrift’s mistakenly accusing Aldrich of being late for work when Aldrich “was actually 30 minutes early.” Id.; see Opp., Exh. 1 (July 15, 2015, Email Chain) (“I just realized you are early and not late—something I am not used to. No need to respond since you are early.”). The last example is that in Sep
In October 2015, Plaintiff filed a seven-count Complaint in this Court. Counts I through III arise under the Age Discrimination in Employment Act. Count I alleges a hostile work environment; Count II alleges age discrimination based on the leave restriction and her suspensions; and Count III alleges Defendant retaliated against her “for objecting to discriminatory treatment because of age” by imposing the suspension and the leave restriction and by creating a hostile work environment. Counts IV through VII arise under the Rehabilitation Act and largely mirror the ADEA counts: hostile work environment (Count IV), disability discrimination (Count V), and retaliation (Count VII). The only different one is a failure-to-accommodate claim (Count VI), which is not raised in the present Motion.
Defendant has now filed a Motion to Dismiss in which it seeks complete dismissal of the stand-alone hostile-work-environment claims (Counts I and IV). Because Aldrich also relies on the existence of a hostile work environment to substantiate her retaliation claims, the government also seeks partial dismissal of Counts III and VII. Finally, Defendants move for partial dismissal of Counts II, III, V, and VII to the extent they rely upon the “leave restriction” as an adverse employment action. This Motion is now ripe.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendants’ Motion to Dismiss, the Court must “treat the complaint’s factual allegations as true ... and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,
Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, id. at 555,
III. Analysis
In considering Defendant’s Partial Motion to Dismiss, the Court first discusses certain concessions related to her discrimination counts (II and V). It will .then move to the retaliation counts (III and YII), focusing specifically on whether the “Leave Restriction” is cognizable as an act of retaliation—i.e., whether it is a “materially adverse action.” Wrapping up, it will last address whether Aldrich has sufficiently alleged a hostile work environment, as pled in Counts I, III, IV, and VII.
A. Discrimination (Counts II and V)
In Count II, Plaintiff alleges that the government discriminated against her on the basis of her age “by subjecting her to a suspension and [the] Leave Restriction.” Compl., ¶ 56. In Count V, she alleges discrimination via those same actions, this time on account of her disability. See id., ¶ 68. In her Opposition, however, Plaintiff concedes that “the humiliating and needless leave restriction” does not “giv[e] rise to an actionable discrimination claim.” Opp. at 2. The Court will therefore grant Defendant’s Motion to Dismiss these two counts to the extent they rely on the Leave Restriction as a discrete act of discrimination.
Aldrich also offers another concession— namely, that the ambiguous “suspensiоn” referred to in her discrimination claims (Counts II and V) only refers to her five-day suspension in October 2014 and not her ten-day suspension in June 2015. This is because she has admittedly failed to exhaust her administrative remedies as to the latter suspension, as she filed suit here before 180 days had passed from the filing of her EEO complaint. See Opp. at 11 n.3. The Court thus cannot properly adjudicate whether the latter suspension constituted discrimination under either the ADEA or the Rehabilitation Act. See Murthy v. Vilsack,
B. Retaliation (Counts III and VII)
Counts III and VII allege retaliation for engaging in protected activity—specifically, that Defendant “subjected her to suspension and [the] Leave Restriction” in retaliation for Aldrich’s filing of an October 2014 EEO complaint in which she charged Vandegrift with disability- and age-based discrimination. See Compl., ¶¶ 59, 74. As was the case with Plaintiffs discrimination claims, Defendant does not, at this stage, challenge whether the five-day suspension in October 2014 counts as a retáliatory act. The parties also agree that, as with- the discrimination counts, the 10-day suspension in June 2015 shall play no role in'Plaintiffs retaliation claims, given Aldrich’s failure to exhaust. What remains, then, is the issue of whether the Leave Restriction counts as a discrete act of retaliation.
“To prove retaliation” under the ADEA and Rehabilitation Act, “the plaintiff generally must establish that he or she suffered (i) a materially adverse action (ii)
The reason Plaintiff conceded the issue in her discrimination counts but challenges it here is that the standards differ. “‘Adverse actions’ in the retaliation context”—referred to most frequently as materially adverse actions—“encompass a broader sweep of actions than those in a pure discrimination claim.” Baloch,
The D.C. Circuit has not grappled with this precise fact pattern, but the courts that have done so are near unanimous in concluding that close scrutiny, monitoring, or tracking of an employee’s whereabouts—without more—simply does not rise to the level of a materially adverse retaliatory action sufficient to survive a motion to dismiss. See, e.g., Jaeger v. N. Babylon Union Free Sch. Dist., No. 15-5452,
Additional support comes from cases reaching a no-material-adversity conclusion on an employer’s motion for summary judgment. See, e.g., Grice v. FMC Techs., Inc.,
Although the reasoning of these cases is' often either cursory or opaque, a few have helpfully articulated the logic underlying this conclusion. Simply stated, putting in a full day’s work is a standard condition of employment. An employer’s “[mjonitoring [of] an employee’s ... time and attendance,” therefore, “is a basic employment practice, and as such could only be an adverse employment action if [plaintiff] previously had immunity from general employment policies.” Simms, No. 02-900,
The few cases to have gone the other way share one of two common attributes. The first is the conclusion that where monitoring is not uniformly applied across the workforce, the disparateness of such monitoring may elevate otherwise innocuous attendance tracking to a material
The second .common characteristic of cases in which close monitoring might be materially adverse is where the monitoring is so extreme and intrusive as to constitute harassment in its own right. In MacDonald v. United Parcel Serv.,
These actions cross the line from enforcement of standard employment policies (even if not uniformly applied) to harassing, badgering, and even threatening conduct. See also, e.g., Fercello v. Cty. of Ramsey,
With that framework in place, the Court concludes that, taking all of Ald-rich’s allegations as true, she has failed to plead facts showing that Vandegrift’s “Leave Restriction” was a materially adverse employment action. All that was demanded of her was that she “announce any arrival, as well as each and every departure during the day, that might take 15 minutes or more.” Compl., ¶ 39. This comes nowhere near the type of Orwellian hyper-surveillance that might, standing alone, satisfy the material-adversity requirement. See Ortez,
C. Hostile Work Environment (Counts I & IV, III & VII)
The next question is whether Aldrich has stated a claim for retaliation or discrimination on the basis of a hostile work environment. Neither the ADEA nor the Rehabilitation Act by their terms makes unlawful a “hostile work environment”—at least not in so many words. Both statutes do, however, bar the government from discriminating against its, employees with respect to, inter alia, their “terms, conditions, or privileges of employment” because of that person’s age or disability. See 29 U.S.C. §§ 623(a)(1) & 633a(a) (age); 29 U.S.C. §§ 794(a), (d) (disability; incorporating standard for discrimination set forth in the Americans with Disabilities Act, see 42 U.S.C. § 12112(a)).
The Supreme Court has read that language broadly, concluding that “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment ... in employment^ which includes requiring people to work in a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc.,
That is all well and good, but what, exactly, is a hostile environment? In contrast to other forms of discrimination or retaliation—which typically arise from discrete acts like terminations or suspensions—“[a] hostile work environment typically consists of several individual acts that ‘may not be actionable on [their] own’ but become actionable due to their ‘cumulative effect.’ ” Baird v. Gotbaum (Baird II),
This timeline presents something of an issue, however, given Aldrich’s pleading of a hostile environment as both a form of discrimination and retaliation. Specifically, while the discrimination chronology may run the entire length of the
timeline—ie.,
February 2012 through September 2015— the retaliation chronology сan only plausibly start on the day Aldrich first engaged in protected activity. As that date does not clearly emerge from the Complaint, the
Now to the merits. The key question is whether all of the episodes taking place between February 2012 and September 2015, looked at in concert, constitute a hostile work environment. To ultimately succeed on her claims, Aldrich “must show,” and the factfinder must find, “that h[er] employer subjected h[er] to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of [her] еmployment and create an abusive working environment.’” Baloch,
The government maintains a laser-like focus on the “severe or pervasive” requirement, contending that “Plaintiffs allegations are legally insufficient to demonstrate the pervasiveness and severity of hostility necessary to show a hostile work environment.” Mot. at 1; see Ahuja v. Detica Inc.,
As the D.C. Circuit has explained, severity and pervasiveness “are complementary factors and often go hand-in-hand, but a hostile work environment claim c[an] be satisfied with one or the other.” Brooks,
Plaintiff identifies ten distinct episodes spanning three-and-a-half years that she believes illustrate the abusiveness of her work environment:
1. February 2012: Vandegrift “began subjecting ... Aldrich to rude, hostile, and otherwise demeaning treatment.” Compl., ¶ 11.
2. June 2013: When the Executive Secretariat moved offices, Plaintiff lost her “quiet work space” and was assigned by Vandegrift “to a noisy cubicle direсtly across from Vandegrift’s own office, where she could closely monitor Aldrich and her movements.” Id., ¶¶ 13,19.
3. May 2014: Vandegrift reprimanded Plaintiff for “unacceptable work performance, failure to follow instructions and failure to submit leave that accurately reflects time away from office.” Id., ¶¶ 26-27.
4. October 2014: Vandegrift suspended Plaintiff for five days. Id., ¶ 33.
5. November 2014: After being informed of Aldrich’s EEO complaint, Vande-grift placed Plaintiff on “Leave Restriction,” meaning she must tell Van-degrift anytime she will be out of the office for more than 15 minutes during the workday. Id., ¶¶ 37, 39.
6. April & June 2015: Vandegrift reprimanded plaintiff for “allegedly failing to adhere to prescribed leave policy on [the] day a blizzard was underway in Washington, D.C.” and recommended a fourteen-day suspension, which was reduced by Vandegrift’s superiors to a ten-day suspension, which she sеrved in June 2015. Id., ¶¶ 45-46.
7. March or April 2015: Vandegrift came to Aldrich’s cubicle and “scream[ed] at her and berat[ed] her.” Id., ¶43.
8. July 2015: Vandegrift directed Aldrich to research articles on Ebola “as far back as 1950,” see July 9, 2015, Email Chain, even though Ebola was not discovered until 1977. See Compl., ¶ 42.
9. July 2015: Vandegrift accused Aldrich by email of being late for work when she “was actually 30 minutes early.” Id
10. September 2015: In an email, Vande-grift accused Aldrich of “failing to arrange for coverage” and neglecting to put in place an “out-of-office reply” on her email when Plaintiff took two hours of approved leave to speak to her EEO counselor. Id., ¶ 49. The email was apparently sent during Aldrich’s meeting with her EEO counselor, and Plaintiff alleges that Vandegrift “must have known that.” Id.
To bolster her claim, she also submits that Vandegrift expressed her disdain for Aid-rich to one of Aldrich’s co-workers, Susie Nunez. See id., ¶¶ 15-18.
These incidents, taken as true and evaluated as a whole, may well have been unpleasant, but they simply do not reveal a pattern of behavior that is either sufficiently severe or pervasive to support a conclusion that the government subjected Aldrich to “discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Baloch,
To begin, the first incident—Vande-grift’s allegedly “rude, hostile, and otherwise demeaning Jtreatment,” Compl., ¶ 11—is too vague and conclusory to meaningfully contribute to Aldrich’s claim that her working environment was “permeated
None of the remaining episodes reflects “severe” or “offensive” conduct of the type that might crеate an objectively abusive environment. See Faragher v. City of Boca Raton,
In addition, the fact that the group includes one of the alleged discrete acts of
discrimination—i.
e., the October 2014 suspension—does not perforce establish a hostile environment. See Nurriddin,
Undoubtedly, some of the episodes—like the incident in which Vande-grift screamed at Plaintiff in April 2015— certainly “reflect poorly upon [Vande-grift’s] professionalism.” Barbour v. Browner,
Looking at the span of dates further undermines Plaintiffs claim. That the three-and-a-half-year period comprising this allegedly hostile environment was dotted with loosely related workplace grievances does not reveal a “pervasive” pattern of abuse. See Nurriddin,
* * *
Having disposed of these questions, the Court finds it useful to clarify what remains. Counts I and IV, both of which are based solely on a hostile work environment, will be dismissed in full. Counts II and V (alleging discrimination) and III and VII (alleging retaliation) will be partially dismissed insofar as they rely on (a) the Leave Restriction, (b) the existence of a hostile work environment, or (c) the ten-day suspension in June 2015. What remains, then, is the following:
• Count II (age discrimination in the form of the October 2014 suspension);
• Count III (age-based retaliation in the form of the October 2014 suspension);
• Count V (disability discrimination in the form of the October 2014 suspension);
• Count VI (failure to accommodate); and
• Count VII (disability-based retaliation in the form of the October 2014 suspension).
IV. Conclusion
For these reasons, the Court will grant Defendant’s Partial Motion to Dismiss. A separate Order so stating will issue this day.