Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________
)
RHONDA N. BAIRD, pro se )
)
Plaintiff, )
)
v. )
) Civil Aсtion No. 09-1091 (ESH) JOSHUA GOTBAUM, Director, )
Pension Benefit Guarantee Corporation, )
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Rhonda Baird sued her employer, the Pension Benefit Guaranty Corporation (“PBGC” or “the Agency”), claiming discrimination on the basis of her race and sex, retaliation for engaging in protected activity, and a retaliatory hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . On October 13, 2010, this Court granted defendant’s motion to dismiss all counts. On December 13, 2011, the Court of Appeals affirmed in part and vacated in part that ruling and remanded a single claim—retaliatory hostile work environment—for further consideration. Defendant has moved to dismiss this one remaining claim and, for the reasons set forth below, its motion will be granted.
BACKGROUND
I. FACTUAL AND PROCEDURAL HISTORY
The factual background of plaintiff’s claims is detailed in this Court’s Memorandum
Opinion,
Baird v. Snowbarger
,
In its prior opinion, the Court held that claims based on five of plaintiff’s EEO complaints— Nos. 08-03, [1] 09-02, 09-06, [2] and 06-09/07-01 [3] (consolidated)—were time-barred and dismissed those claims. It then addressed the four remaining claims— set forth in EEO complaints No. 05-12, No. 07-06, and No. FC-001-201—which had been properly exhausted and timely appealed and were based on four discrete episodes:
(1) In a [spring 2005] dispute within the PBGC over the agency’s scan of its email system, some fellow workers [including union official Dwayne Jeffers] circulated emails calling Baird “psychotic.”
(2) [In June 2005, t]he Human Resources Department [“HRD”] singled out Baird in securing her signature acknowledging receipt of an office memorandum relating to the use of office email.
(3) [In January 2007,] PBGC litigation counsel Raymond Forster sent an email to several employees advising “the 11th floor OGC [Office of General Counsel] staff in the area of conference room 11E to use caution about what they say in halls or open offices,” *3 for “[c]ertain people who will be in 11E have a way of twisting and publicizing their litigation induced hallucinations.” (4) [In August 2009, o]ne Ruben Moreno had shouted and pounded the table at Baird while she deposed him during a proceeding involving Equal Employment Opportunity complaints. ,662 F.3d at 1248 (some alternations in original).
Plaintiff also claimed that, in retaliation for her prior protected activity, the PBGC
“fail[ed] to take appropriate correction action” in response to the complaints that she regularly
brought about these incidents. (Am. Compl. ¶ 68.) This Court dismissed her discrimination and
retaliation claims based on the discrete episodes because none of the acts, or the failure to
remedy them, was sufficient to establish an adverse action.
Baird,
The Court of Appeals initially observed that Baird’s claims were “relatively unusual in that she d[id] not assert that discriminatory intention brought about the underlying acts,” but instead she claimed “that such discriminatory and retaliatory intent caused the PBGC’s failure to respond to her complaints about them and to take corrective action against the employees who, as she sees it, had traduced or аbused her.” . at 1249. It then went on to affirm the dismissal of plaintiff’s claims of discrimination, agreeing that the four discrete episodes and the defendant’s alleged failure to investigate and/or remediate them were workplace “slights,” and “even if unlawfully motivated, . . . [they] would not rise to the level of adverse employment actions” *4 because “each of the four discrete episodes seems (at worst) akin to the sort of public humiliation or loss of reputation that we have consistently classified as falling below the requirements for an adverse employment action.” Id . (internal quotation marks omitted).
It also affirmed the dismissal of Baird’s retaliation claims based on the discrete episodes, as well as defendant’s failure to investigate or to remediate, explaining that “[w]e do not believe that the PBGC’s failure to remedy the various critiques and epithets to which Baird’s fellow employees subjected her would have persuaded a reasonable employee to refrain from making or supporting charges of discrimination.” Id . at 1250.
However, it vacated the dismissal of her retaliatory hostile work environment claim and
remanded for two reasons. First, the Circuit concluded that it was error under
National Railroad
Passenger Corporation v. Morgan
,
The Court must therefore first determine if the acts previously thought to be time-barred,
are sufficiently “‘
similar in nature, frequency, and severity
. . . [to] be considered part and parcel
of the hostile work environment’” such that they should be included in plaintiff’s claim.
Id
. at
1251 (quoting
Wilkie v. Dep’t of Health & Human Servs
.,
A. Timely Claims
As noted, plaintiff’s timely claims are based on four discrete episodes which occurred over the course of four years. Briefly, and taking plaintiff’s allegations as true, these acts are as follows:
In spring 2005, Jeffers and Perry wrote insulting emails because they were angry that she told coworkers that they had prompted an agency-wide scan of employee emails. ( Id . ¶¶ 23-26.) Baird filed several complaints about this with the HRD beginning in April 2005. ( Id. ¶ 27.)
Soon afterwards, in June 2005, the Agency sent out a memorandum to all PBGC employeеs regarding the “[i]nappropriate use of PBGC Resources.” ( Id. ¶ 28 (alteration in original).) Plaintiff and two other employees were singled out by a subordinate of HRD official Richard Lattimer to sign an acknowledgement that they had received the memorandum. ( Id . ¶ 29.) When she refused to sign it, an HRD employee arranged a meeting with her supervisor and alleged that she had put up inflammatory flyers in the office. ( Id .)
In November 2005, the Agency hired a law firm (Littler Mendelson) to investigate complaints of inappropriate information in the office, including complaints made by Baird against Jeffers and Perry and complaints made by Jeffers and Perry against Baird. ( Id . ¶ 31.) The investigation concluded that there was no violation of the workplace rules because the emails sent by Perry and Jeffers related to protected union activity. ( Id . ¶ 33.)
Two years later, in January 2007, Fоrster (opposing counsel representing the agency in plaintiff’s union grievance) sent an email to several coworkers stating that plaintiff experienced “litigation induced hallucinations.” ( Id . ¶ 36.)
Two and a half years after that, in August 2009, Ruben Moreno, an HRD labor management official, yelled at plaintiff and pounded on the table during a deposition that plaintiff was taking in an EEO arbitration proceeding. ( . ¶ 55.)
Following each of these acts, plaintiff complained to the Agency and, each time, according to plaintiff, the Agency “failed to take appropriate corrective action” in response to her concerns. ( Id . ¶¶ 27, 30, 37, 55.)
B. Untimely Cla i ms
The Amended Complaint also asserts claims based on the following acts, which are time- barred except for their potential role in her retaliatory hostile environment claim if they meet the Morgan standard.
After the law firm commenced its investigation of the inappropriate office emails, the Agency restricted Baird’s emails to Jeffers and Perry in January 2006. ( Id . ¶ 32.) Through her participation in the law firm’s investigation, Baird found out that, at some point prior to November 2006, Jeffers had sent her arbitration file to his private EEO attorney in response to a subpoena. ( Id . ¶ 35.) Her medical records, which were part of her arbitration file, were sent without her knowledge or consent. ( Id .)
While plaintiff was president of the union at PBGC, the Agency took an unfavorable position in union grievances and arbitrations. ( Id . ¶¶ 38-47.) From June 2008 through August *7 2008, arbitration proceedings in which she was involved became contentious and Scott Schwartz, counsel for PBGC, suggested that another employee should overthrow Baird as Union president ( id . ¶ 44), sought sanctions in litigation for alleged ethical violations, and told her supervisor of a comment that she made to the EEO judge. ( Id . ¶¶ 46, 54.)
In early 2009, Moreno told plaintiff’s supervisor to increase her non-EEO work so that she would not have time to work on EEO matters (although he lacked authority to do this) and told a coworker that he had investigated Baird for misconduct, which was not true. ( Id . ¶¶ 51- 53.) When Moreno incorrectly attributed an insulting comment to Baird in front of other employees during labor management negotiations in November 2008, he was escorted out of the room and scolded by other PBGC representatives. ( Id . ¶ 49.) Plaintiff filed a complaint about this incident and, in response, Chief Management Officer Stephen Barber warned everyone who was present at the incident that they could be subject to discipline for their conduct in negotiations. ( Id .)
In September 2009, plaintiff’s department director, Michael O’Connell, complained to the Agency that plaintiff had harassed him by email. ( Id . ¶ 56.) When the Agency investigated his complaint against Baird, she was subject to an “unnecessarily lengthy” interview that lasted more than two hours. (Pl.’s Mot. at 33; Am. Compl. ¶ 56.) That same month, she was assigned to work with Gilbert Martinez (a subordinate of Lattimer) on a time-sensitive matter and he did not work quickly enough and otherwise “failed to advance work on an assignment they shared.” ( Id . ¶ 58.) Both Baird and Martinez complained to their supervisors about their difficulties working with each other and the Agency responded by assigning additional staff to work with them. ( .)
Plaintiff complained to the Agency about all of these acts and alleges that it “failed to take appropriate corrective action” in response to her complaints. ( . ¶¶ 52, 55, 56, 58.)
ANALYSIS
I. LEGAL STANDARD
To state a claim for retaliation under Title VII, a plaintiff must show that: 1) she engaged
in protected activity; 2) she suffered an adverse action; and 3) a causal connection exists between
the protected activity and the adverse action.
Holcomb v. Powell
,
Discrete acts of retaliation “‘are not actionable if time barred, even when they are related
to acts alleged in timely filed charges.’”
Baird
,
is comprised of a series of separate acts that collectively constitute
one unlawful employment practice, and accordingly, [under
Morgan
,] are subject to a different limitations rule. Provided that
an act contributing to the claim occurs within the filing period, the
entire time period of the hostile environment may be considered by
a court for the purposes of determining liability.
,
As further noted by the Circuit:
[t]he
Morgan
principle is not, however, an open sesame to
recovery for time-barred violations. Both incidents barred by the
statute of limitations and ones not barred can qualify as “part of the
same actionable hostile environment claim”
only if they are
adequately linked into a coherent hostile environment claim
—if,
fоr example, they “involve[] the same type of employment
actions, occur[] relatively frequently, and [are] perpetrated by the
same managers.”
Morgan
,
II. RETALIATORY HOSTILE WORK ENVIRONMENT
On remand, the Court directed the parties to brief the narrow issue of which, of the many
acts described in the Amended Complaint, comprise Baird’s retaliatory hostile work environment
claim. (Tr. at 17:21-22:4,
Baird v. Snowbarger
, No. 09-1091 (D.D.C. Apr. 12, 2012).) Baird’s
post-remand brief, however, does little to segregate the acts that comprise her retaliatory hostile
workplace claim. Instead, she repeats the rambling narrative set forth in her Amended
Complaint, which covers seven years of dissatisfaction with her employer, multiple intra-office
disputes, EEO problems, and warfare within the union, as well as with management. According
*10
to Baird,
all
of the acts are related and comprise a single unlawful employment practice. (Pl.’s
Opp’n at 26-27.) Therefore, the Court must first determine which of the acts in the time-barred
EEO complaints it should include under
Morgan
even though they cannot, as a matter of law,
support independent claims for discrimination or retaliation. ,
A. Which Time-Barred Claims Satisfy the Morgan Principle Under Morgan , acts that are otherwise time-barred “can qualify as ‘part of a hostile work environment claim’ only if they are adequately linked into a coherent hostile environment claim—if, for example, they ‘involve[] the same type of employment actions, occur[] relatively frequently, and [are] perpetrated by the same managers.’” Id. at 1251 (quoting Morgan , 536 U.S. at 120-21) (alterations in original)).
Certain acts in Baird’s otherwise time-barred claims are simply
not
related in any way to
her hostile work environment claim, since they are different in kind, sporadic, and perpetrated by
different PBGC employees with no meaningful connection. The 2009 incidents involving
Martinez and O’Connell are distinct аcts by different employees at different levels within the
PBGC hierarchy. Their only connection with plaintiff’s exhausted claims is that they show that
PBGC employees had a fractious relationship with the plaintiff.
See Mason v. Geithner
, 811 F.
Supp. 2d 128, 179 (D.D.C. 2011). Nor does the fact that Jeffers sent her arbitration file to his
EEO attorney in response to a subpoena, which resulted in disclosure of her medical records,
cohere with her hostile work environment claim. There is no indication that the disclosure
affected plaintiff in the least—or that it was intended to—since he did so in response to a
0895 (D.D.C. filed May 28, 2010);
Baird v. Holway
, No. 10-0572 (D.D.C. filed April 9, 2010);
Baird v. Holway
,
subpoena and she only learned about afterwards.
See Lester v. Natsios
,
Nonetheless, Baird attempts to weave together the various acts of different employees by
asserting that they all result from PBGC ignoring her complaints, since that shows that the
Agency condones and encourages retaliatory harassment. (
See
Pl.’s Mot. at 2 (“Instead of
addressing Plaintiff’s workplace concerns, as they did for other employees, these officials
initiated and perpetuated an insidious, opportunistic campaign to punish the Plaintiff for having
the temerity to engage in Title VII activities.”).) However, her complaint lacks any factual
allegations in support of this legal theory. There is no basis upon which to infer that Martinez or
O’Connell made cоmplaints against plaintiff because of any failure to act by defendant.
Moreover, plaintiff’s complaint explains the reasons that each had interpersonal conflicts with
her (
see
Am. Compl. ¶¶ 56, 58), which undermines her argument they were motivated by the
Agency’s failure to respond to her previous complaints about other people. Therefore, these
allegations remain time-barred.
See Greer v. Paulson
,
Whether the allegations involving Moreno and Schwartz should come in under Morgan is a closer call given the timely claim based on Moreno yelling at Baird during a deposition while Schwartz stood by. The people involved are the same, but the acts alleged are quite distinct. The time-barred allegation that Schwartz retaliatorily filed a sanctions motion against plaintiff, for example, is only really similar insofar as it, like Moreno’s outburst during the deposition, stem from adversarial conduct in the course of litigation. Nonetheless, the Court will treat these allegations about Moreno and Schwartz as at least plausibly related to one of Baird’s timely claims and, therefore, they will be included in her retaliatory hostile workplace claim.
Finally, plaintiff’s claims that the Agency did not “take appropriate corrective action” in response to her complaints, either because it did not respond or because she disagreed with its method of remediation, survive under Morgan sinсe her timely-filed claims set forth a similar pattern of conduct by the same agency. Taken together, her timely and untimely claims describe a single unlawful, employment practice—that, in retaliation for plaintiff’s protected activity, the PBGC has not adequately addressed her complaints.
In conclusion, having applied Morgan to plaintiff’s otherwise time-barred claims, Baird’s hostile workplace claim consists of the four original underlying incidents; Moreno’s January 2009 comments to her coworker and her supervisor; Schwartz’ conduct during the course of *13 litigation in the summer of 2008; and the Agency’s alleged failures to investigate or remediate the conduct of plaintiff’s coworkers (from 2005-2009).
B. Whether these Claims Amount to a Hostile Work Environment Claim
Having decided what time-barred acts should be included under
Morgan
, the Court will
now address the second issue on remand: whether the four discrete “underlying acts,” when
coupled with the above unexhausted incidents that have been found to comply with
Morgan
and
the Agency’s allegedly inadequate responses to Baird’s complaints over a five-year period,
“collectively meet the independent requirements of [a hostile workplace] claim (
i.e
., be
‘sufficiently severe or pervasive . . .,’
Harris
,
1. Certain Acts are Not “Adequately Connected” under Morgan
As an initial matter, as is clear from the Circuit’s Opinion,
see
,
The allegation involving insulting emails sent by Jeffers cannot be part of her hostile workplace claim because it is not related to the other conduct alleged in the complaint. In addition, although Baird incorporates all of the previous allegations in her hostile work environment claim (Am. Compl. ¶ 68), and explicitly describes these emails as retaliatory, her complaint reveals that Jeffers’ reprisal was prompted by accusations that she had made about Jeffers and Perry, not in retaliation for plaintiff’s protected activity. ( Id . ¶ 26.) More specifically, she alleges that Jeffers and Perry became hostile to her and sent an inflammatory email calling her psychotic “beca use of she [sic] informed affected employеes of the facts behind PGBC’s actions.” ( .) In other words, they retaliated against her because she told her coworkers that Jeffers’ and Perry’s email to senior PGBC officials had prompted the Agency to scan the entire email system. In fact, Baird’s brief on appeal confirms this, explaining that the *15 first retaliatory action for which she seeks damages was the Agency’s failure to address her complaint about the emails—and not the emails themselves. ( See supra note 4.)
Relatedly, the Agency’s subsequent restriction on her emails to Jeffers and Perry has nothing to do with the other allegations in her hostile workplace claim. There is no reason to infer retaliation or even hostility toward the plaintiff, particularly as the factual allegations suggest that it was a corrective measure intended to stop the inflammatory emails involving her, Jeffers, and Perry. ( . ¶ 32.)
Similarly, her аttempt to sweep in adversarial conduct arising in the course of litigation is
unavailing. As the Supreme Court has explained, “the significance of any given act of retaliation
will often depend upon the particular circumstances. Context matters.”
Burlington N. & Santa
Fe Railway Co.
,
2. Remaining Conduct is Not Severe or Pervasive under Harris Given the above analysis, Baird’s hostile workplace claim consists of the following acts: HRD singling out Baird to get her signature acknowledging receipt of an email-related оffice memorandum in June 2005; Forster’s 2007 email about “litigation induced hallucinations;” and Moreno’s January 2009 comments to Baird’s coworker and supervisor, as well as her claim that the Agency has failed to appropriately address the workplace incidents that she has complained about dating back to 2005, from Jeffers’ and Perry’s emails through the incidents with Martinez and O’Connell in October 2009.
In assessing this claim, the Court applies the following legal standards. First, plaintiff
“must show 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] employment and
create an abusive working environment.’”
Baloch v. Kempthorne
,
Moreover, “[i]t is not enough to merely show harassment, for Title VII does not prohibit
all forms of workplace harassment, only those directed at [retaliation] because of [a person’s
protected activity].”
Ware v. Billington
,
Apropos of these standards, it is noteworthy that the Court of Appeals described both the
Forster email and the requirement that Baird acknowledge the receipt of the memorandum as
workplace “slights,” and affirmed this Court’s ruling that such trivial occurrences were not
actionable as independent acts of discrimination. ,
But, the linchpin of plaintiff’s hostile workplace claim is her contention that, in
retaliation for protected activity, the Agency did not adequаtely address her complaints. As the
Court of Appeals noted, this is a novel theory that relies heavily upon
Rochon v. Gonzales
, 438
*18
F.3d 1211 (D.C. Cir. 2006).
Baird
,
Applying
Rochon
demonstrates that this case differs factually in two important ways.
First, the unremediated conduct here is far less significant; the slights that Baird
complains about are hardly akin to a death threat.
See Clemmer v. Office of the Chief Judge of
Circuit Court
, No. 06 C 3361,
44 (D.D.C. July 18, 2012) (finding complaint sufficient where plaintiff alleged that
discriminatory acts, including direct insults and criticism for not performing tasks exceeding his
(disabled) physical capacity, which occurred nearly every day for three years);
Tucker v.
Howard Univ. Hosp
.,
under
Harris
include:
Casey v. Mabus
, No. 11-cv-0441,
Second, whereas Rochon’s employer “had not taken
any
measures to respond to the[]
death threats” he received,
Rochon v. Ashcroft
,
everyone present (including her) rather than only to Moreno. At the same time that she impugns the Agency for insufficiently remediating her complaints, she also challenges instances where the PBGC’s effort to ameliorate the internal discord included her.
Ultimately, many of her grievances are simply differences of opinion about how the
Agency should address interoffice disputes. While her frustration is understandable, the Circuit
has admonished that a “district judge does not sit as ‘super-personnel department that reexamines
an entity’s business decisions.’”
Fischbach v. D.C. Dep’t of Corr
.,
Finally, it is worth noting that Count II is premised on an unprovable proposition, i.e ., if the Agency had taken different corrective action in response to her complaints and done more to *22 enforce the Agency’s rules, the offensive behavior she encountered would not have occurred. First, as this Court noted in its prior opinion, plaintiff cannot claim under Title VII that defendant is
obligated to respond to complaints and take corrective action
where warranted to ensure plaintiff has a “
positive and productive
work environment
.” (Pl.'s Opp. at 21 (citing PBGC “workplace
rules”) (emphasis added);
see id
. at 22 (“Defendant has repeatedly
failed to apply its workplace rules to protect the Plaintiff in the
workplacе, violating its own policy . . . .”).) Contrary to plaintiff's
belief, Title VII is not “‘a general civility code for the American
workplace.’”
Burlington N. & Santa Fe Ry. Co. v. White
, 548 U.S.
53, 68 (2006) (quoting
Oncale v. Sundowner Offshore Services,
Inc.
,
PBGC reflected a work environment rife with litigation, long-running arbitrations, and bitter labor battles among union members and with management. ( See supra note 5.) While we can hope that all employers succeed in promoting a harmonious environment, the failure to do so should not mean that the employer is liable under Title VII for a retaliatory hostile work environment.
CONCLUSION For the foregoing reasons, the Court grants defendant’s motion to dismiss. A separate order accompanies this Memorandum Opinion.
/s/ ELLEN SEGAL HUVELLE United States District Judge Date: August 28, 2012
Notes
[1] “Plaintiff filed EEO complaint No. 08-03 on November 29, 2007, alleging discrimination, retaliation, and hostile work environment when, in her capacity as union president, she engaged in several union activities, prompting adversе responses by agency management.” , 744 F. Supp. at 285.
[2] On October 9, 2008, plaintiff filed EEO complaint No. 09-02, alleging race discrimination, reprisal, and a hostile work environment for “winning a liability decision finding unlawful retaliation by labor management staff of PBGC in 2005 & 2008 . . . filing EEO complaints and civil action against PBGC, and representing employees in EEO matters from 2002-2008.” Id . at 284 (internal quotation marks omitted). “Plaintiff filed EEO complaint No. 09-06 on similar grounds on February 23, 2009.” Id . In these complaints, plaintiff alleged, inter alia , that PBGC attorney Scott Schwartz “attacked her law license” and that she was assigned non-EEO work so that she would not have time to work on EEO matters. Id . (internal quotation marks omitted).
[3] On April 10, 2006, plaintiff filed EEO complaint No. 06-09, alleging discrimination and reprisal based on the following allegations: her medical and personal information was disseminated by union representative Dwayne Jeffers; the Agency failed to promptly respond to her complaints about this incident; аnd the Agency blocked her email messages to her union representatives (Jeffers and Robert Perry); and it sought to sanction her. . “On October 16, 2006, plaintiff filed EEO complaint 07-01 alleging that PBGC’s EEO office improperly recommended dismissal of her 2005 EEO complaint.” Id.
[4] Although she does not seek damages for a November 2002 episode, Baird discusses it at length in her complaint and her opposition. In that incident, one of her supervisors berated her and invaded her personal space “for some unknown and unspecified reason.” ( . ¶ 9.) In the arbitration proceedings that followed, the arbitrator found that the outburst was motivated by the supervisor’s feeling that Baird had been rude at a meeting and that the PBGC did not adequately respond to her complaints about this incident. ( See Pl’s Mot., Ex. 1 (arbitration decision).) Plaintiff has explained that she does not seek damagеs for this incident (Pl.’s Mot. in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 27 n.6), nor did she include it in her appeal, but rather, she limited her claim of error to the four incidents that had been found to have been barred as unexhausted. (Appellant’s Br. at 44, , No. 10-5421 (Sept. 16, 2011 D.C. Cir.) (“First in time and allegation in the Amended Complaint as a retaliatory action is PBGC’s failure to respond or to timely investigate Ms. Baird’s complaint of Messrs. Perry and Jeffers to PBGC for emails disseminated over PBGC’s system that, inter alia , alleged she was ‘psychotic’ and associated with ‘pornographers.’”).) Since she has already recovered for this 2002 incident, and it is not part of the Circuit’s remand, this Court need not analyze it under Morgan .
[5] The contentious history of labor disputes at PBGC is set forth in the following rulings and opinions: Anderson v. International Federation of Professional & Technical Engineers , No. 10-
[6] Plaintiff alleges that this reason is invalid because the subpoena was directed to Jeffers personally and not as a lаbor official and, therefore, he should not have sent her arbitration file. (Am. Compl. ¶ 35.) However, this does not change the fact that there is no basis to infer that this act was hostile or retaliatory.
[7] However, this point is ultimately moot because, as explained in Section II(B)
infra
, the
allegations about Schwartz and Moreno’s conduct during the course of litigation is not
sufficiently related to the “one unlawful employment practice,”
Morgan
,
[8] Rejecting a claim where the plaintiff had “compiled a list of discrete employment actions that
she attempt[ed] to bring under the umbrella of a hostile work environment claim, the
Mason
Court explained
Regardless of the possible strategic advantages that might flow
from such an approach, it is well-established thаt this jurisdiction
frowns on plaintiffs who attempt to bootstrap their alleged discrete
acts of retaliation into a broader hostile work environment claim.
The reason is simple: hostile work environments are by definition
different because their very nature involves repeated conduct.
[9] In fact, this allegation does not even support her theory of the case. Following the Jeffers/Perry email episode, the Agency in fact responded to complaints about insulting emails in the workplace and took corrective measures—it sent around an office-wide memorandum about inappropriate emails and hired the Littler Mendelson firm to investigate the matter. However, plaintiff complains nonetheless because she disagrees with the way in which it remediated the problem.
[10]
See Baloch
,