Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NADIA MOKHTAR, :
:
Plaintiff, : Civil Action No.: 12-1734 (RC) :
v. : Re Document No.: 87 :
JOHN F. KERRY, in his official capacity :
as Secretary of State :
:
Defendant. :
MEMORANDUM OPINION
G RANTING D EFENDANT ’ S M OTION FOR S UMMARY J UDGMENT
I. INTRODUCTION
Plaintiff Nadia Mokhtar, an employee at the United States Department of State (the “Department”), brings this lawsuit pro se against John F. Kerry, in his official capacity as Secretary of the Department, alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”) during the course of her employment. Now before the Court is the Department’s motion for summary judgment, through which the Department seeks judgment in its favor on the grounds that, first, Mokhtar failed to administratively exhaust many of her discrimination and retaliation claims before filing suit, and second, those remaining claims that were exhausted fail on the merits. For the reasons explained *2 below, the Court will grant the Department’s motion. In doing so, the Court denies some relief requested within the Department’s administrative exhaustion analysis, but ultimately, the Court concludes that none of Mokhtar’s remaining claims survive summary judgment on the merits.
II. FACTUAL BACKGROUND
Mokhtar, a sixty-seven year-old female, was at all relevant times, and remains today, a GG-11 Language and Culture Instructor at the Foreign Service Institute (“FSI”) of the State Department in the School of Language Studies, Near Eastern Central, and South Asian Languages Division. Report of Investigation (“ROI”) Excerpts, ECF No. 87-3, Ex. A at 24- 25, 59, 122-23. Dr. Tagesir Elrayah, a GG-14 Supervisory Language Training Specialist, has been Mokhtar’s first-line supervisor since October 2006. See id . at 58-59. Dr. James Bernhardt, a GG-15 Division Director, has been Mokhtar’s second-line supervisor since 1993, except for a period from approximately 2002 to 2006, see id . at 96, which was when Mokhtar was assigned to work overseas as a Deputy Consular Officer. Mokhtar Depo., ECF No. 87-4, Ex. B at 14:2- 25. Mokhtar returned to work as a Language and Culture Instructor at the FSI’s School of Language Studies after her overseas assignment concluded. See id .
A. Individualized Refresher Training Plan And Recertification According to the description for the Language and Culture Instructor position, Mokhtar’s responsibilities include “administer[ing] proficiency tests, both in the capacity of a tester and examiner[.]” ROI Excerpts, ECF No. 87-3, Ex. A at 124. Also according to the position description, Mokhtar’s role as a Language and Culture Instructor requires her to possess “[s]kill in administering FSI language proficiency tests.” Id . at 125. While Mokhtar was working overseas as a Deputy Consular Officer, the “procedures, policies, and practices” for administering language proficiency examinations changed. See id . at 60, 84. In addition, *3 between 2008 and January 2011, the FSI required that all testers and examiners get recertified, which Mokhtar had not done. See id. at 71-73; Mokhtar Depo., ECF No. 87-4, Ex. B at 132:9- 15.
In March 2008, Philippe Casteuble, an employee in the School of Language Studies’ Continuing Testing and Training (“CTT”) unit who was responsible for validating test scores as a quality control measure, observed that Mokhtar, when serving as an examiner during several FSI language proficiency tests between May 2007 and March 2008, scored the tests in a way that was contrary to the new procedures in place at that time. See ROI Excerpts, ECF No. 87-3, Ex. A at 60, 78, 85-86; see also Casteuble Depo., ECF No. 87-5, Ex. C at 11:5-11:25; Hoffman Depo., ECF No. 87-6, Ex. D at 21:5-8. For example, Mokhtar used non-standard testing practices as an examiner, and her testing decisions did not support the test scores that she was issuing. ROI Excerpts, ECF No. 87-3, Ex. A at 78, 85. As a result, the test scores that Mokhtar had issued could not be validated by Casteuble. See id. at 78, 85-86. According to Dr. Elrayah, Mokhtar’s scoring errors continued even though Casteuble had “met with her and discussed the [scoring] procedures after the initial tests.” Id. at 78.
On March 14, 2008, during a meeting attended by Mokhtar and Dr. Elrayah, Casteuble recommended that Mokhtar attend refresher training courses before she administrated any more tests. See id . In response, Mokhtar insisted that she did not want to attend the same training courses as new FSI employees and contractors, but she agreed to attend Individualized Refresher Training courses as an alternative. See id . at 85; Mokhtar Depo., ECF No. 87-4, Ex. B at 130:6- 14, 142:9-16, 147:24-148:1. As a result, CTT personnel sent an examiner and tester Individualized Refresher Training plan to Mokhtar and discussed the plan with her. ROI Excerpts, ECF No. 87-3, Ex. A at 77-80, 87; Mokhtar Depo., ECF No. 87-4, Ex. B at 142:9-16. *4 As of June 2010, however, Mokhtar had not completed the examiner portion of the Individualized Refresher Training plan. See ROI Excerpts, ECF No. 87-3, Ex. A at 88; Mokhtar Depo., ECF No. 87-4, Ex. B at 146:11-21. Thus, on June 14, 2010, CTT personnel informed Dr. Elrayah that Mokhtar had not complied with, nor responded to, the examiner training plan that was sent to her in March 2008. See ROI Excerpts, ECF No. 87-3, Ex. A at 84, 88.
On July 14, 2010, Mokhtar signed a mid-year performance review form that was presented to her by Dr. Elrayah in which she agreed to obtain both the testing and language examiner recertifications before the end of the ratings year in December 2010. See id . at 61, 118; Mokhtar Depo., ECF No. 87-4, Ex. B at 117:23-118:9. Mokhtar had completed the testing recertification in April 2010, but she did not complete the examiner recertification by the end of 2010. See ROI Excerpts, ECF No. 87-3, Ex. A at 60; Mokhtar Depo., ECF No. 87-4, Ex. B at 119:21-120:5. For example, Mokhtar failed to properly administer an exam under observation as part of the examiner recertification, see Mokhtar Depo., ECF No. 100-1, Ex. 3 at 87:17-88:20, and she made other examiner errors as well. Mokhtar Depo., ECF No. 87-4, Ex. B at 148:16-22. Mokhtar has acknowledged that in 2010, she was expected to perform testing and examining as part of her job duties and for her end-of-year performance review. id .; Mokhtar Depo., ECF No. 100-1, Ex. 3 at 149:1-18.
B. Non-Selection For Unspecified Promotions And Volunteer Positions On June 15, 2010, Mokhtar mentioned to Dr. Elrayah during a meeting and in a follow- up email that she was not selected for two management positions for which she had applied, though the names of those positions were not provided. See ROI Excerpts, ECF No. 87-3, Ex. A at 82. In addition, Mokhtar complained to Dr. Elrayah that she was not respected by the section and that she had been humiliated through the denial of her promotions for these unspecified *5 positions. See id . Mokhtar also expressed during this meeting that she was more qualified for the positions than those whom were selected. See id . In her deposition, Mokhtar stated that she applied for two unnamed positions outside the FSI sometime in 2007 and 2008, and that she has not applied for any other positions since then. See Mokhtar Depo., ECF No. 87-4, Ex. B at 179:23-180:20, 190:3-20. Additionally, Mokhtar was denied the opportunity to take a volunteer position in Iraq in 2008. See Mokhtar Depo., ECF No. 100-1, Ex. 3 at 24:9-23, 170:1-8.
C. Consular Training Module Project
Around August and September 2010, Mokhtar began working on a consular training module project in which she attempted to prepare a training module that would be used to teach the Egyptian Arabic dialect. See ROI Excerpts, ECF No. 87-3, Ex. A at 41-56. Mokhtar was not assigned this module project by anyone at the FSI, but rather came up with the idea on her own. Mokhtar Depo., ECF No. 100-1, Ex. 3 at 28:1-4. Her tasks for this project included preparing the content and setting up audio and video recordings. See id . at 28:6-10; ROI Excerpts, ECF No. 87-3, Ex. A at 53; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 9. Before Mokhtar could complete the project, however, FSI received authorization to simultaneously develop uniform consular training modules for all Arabic dialects. Bohsali Depo., ECF No. 87-7, Ex. E at 12:8-13:1. FSI then started a new development project for a consular module that was designed for multiple dialects, and FSI also cancelled the development of Mokhtar’s Egyptian Arabic-specific dialect module, which did not follow the same design as the multi- dialect module. See id . An Egyptian Arabic-specific module project was restarted a few months *6 later with Dalia Abdelmaguid in charge. See Mokhtar Depo., ECF No. 100-1, Ex. 3 at 36:8-18, 37:7-10.
D. Confrontation With A Student And Failure To File A Report In December 2010, Mokhtar was involved in a verbal altercation with a School of Language Studies student regarding a classroom reservation. See ROI Excerpts, ECF No. 87-3, Ex. A at 92-93. Mokhtar and the student later resolved the matter through a mediation session. Mokhtar Depo., ECF No. 87-4, Ex. B at 166:4-7, 167:21-168:4. Following this incident, the student informed Dr. Elrayah that Mokhtar had missed two language consultation appointments. ROI Excerpts, ECF No. 87-3, Ex. A at 89-91; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 5. On January 4 and January 7, 2011, Dr. Elrayah asked Mokhtar to provide him with a report of her learning consultation meetings with students in 2010, including the number of meetings she scheduled, conducted, and missed with each of the students who were assigned to her as their learning consultant. See ROI Excepts, ECF No. 87-3, Ex. A at 91. Dr. Elrayah explained that this report would be considered as part of Mokhtar’s performance evaluation for the 2010 ratings year. See id . As of January 20, 2010, Mokhtar had not provided the report to Dr. Elrayah. See id . at 89-91.
E. 2010 Performance Evaluation
On January 26, 2011, Dr. Elrayah issued Mokhtar’s 2010 performance evaluation, which rated Mokhtar as “Not Successful” in two “critical performance” elements: demonstrating “job knowledge” and “interpersonal skills and communication.” Id. at 111, 114. According to the evaluation form, a “Not Successful” rating is appropriate when “[t]he quality and quantity of the employee’s work under this element are not adequate” and “[t]he employee’s work products fall short of requirements.” Id . at 111. Because she received “Not Successful” performance ratings, *7 Mokhtar received an overall, “summary level” rating of “Not Successful” for the 2010 ratings year. Id . at 116.
In Dr. Elrayah’s narrative summary for the 2010 performance evaluation, he provided the following reasons for his rating decisions: “Mokhtar did not keep good track of her consultees … and poorly communicated with her supervisor in this matter”; “Mokhtar was re-certified as [a] tester, and started toward an examiner re-certification[, but] [s]he missed some scheduled tests during the year and did not get her recertification as [an] examiner before the end of 2010, as stipulated in her mid-year review”; there “were concern[s] about the interpersonal skills and communication level of [Mokhtar] during this rating year[, and] [s]he missed some consultation sessions with her students without rescheduling or talking with the students”; and Mokhtar “did not keep complete records of her consultees, and did not respond in [a] timely manner to her supervisor’s requests to provide [a] complete consultation report that reflects scheduled, conducted, and missed [Learning Consultation] sessions.” Id . at 115.
After receiving the evaluation, Mokhtar submitted a “request for a higher level review by the reviewing official,” and Dr. Bernhardt then reviewed the performance evaluation. See id . at 117. On February 16, 2011, Dr. Bernhardt approved the “Not Successful” ratings, explaining in his comments: “We expected Mokhtar to complete her recertification as an examiner. She did not do that. Her work as a language consultant and her record keeping for that job were also less than successful.” Id .
F. Failure To Receive An Award For Work During The 2010 Ratings Year The FSI’s policy regarding discretionary performance awards provides that such awards are intended “to provide appropriate incentives and recognition for employees to encourage and reward outstanding performance,” and “it is essential that monetary awards be given only to *8 those employees who are exceptionally deserving.” Id . at 94. Neither Dr. Elrayah nor Dr. Bernhardt nominated Mokhtar for an award based on her performance during the 2010 ratings year. See id . at 66, 104. Dr. Elrayah explained that he did not nominate Mokhtar because her “performance in [2010] was not successful.” Id . at 66. Similarly, Dr. Bernhardt explained that “[a]wards are not automatic and are not entitlements[,]” and “[i]t is not likely that an award would have been [given] to Mokhtar … even if Dr. Elrayah had written a nomination for her since Mokhtar’s Performance was rated ‘Unsuccessful’ for the previous rating year.” Id . at 104, 106. Dr. Bernhardt also noted that the FSI’s “award committee often verifies performance ratings when considering awards and has been known to turn down awards when the ratings are low.” Id . at 106. Thus, Mokhtar did not receive an award for her work during the 2010 ratings year when the awards were announced on July 20, 2011. See id . at 103.
G. Procedural History: Administrative Process And Civil Complaint On January 13, 2011, Mokhtar initiated contact with an Equal Employment Opportunity (“EEO”) counselor, and on March 2, 2011, she filed a formal EEO complaint. See id. at 1-2, 5. In her EEO complaint, Mokhtar checked the boxes for discrimination based on age and reprisal. See id . at 2. In the space provided to explain how she was discriminated against, Mokhtar discussed her “Not Successful” performance ratings and her inability to complete the consular module project she had been authoring. See id .
On May 13, 2011, the Department, through its Office of Civil Rights, issued a letter to Mokhtar accepting the following claims for investigation (the “acceptance-of-claims letter”):
Because of your age … and reprisal (prior protected EEO activity), you were discriminated against when:
1. You were issued a “Not Successful” rating on your 2010 performance evaluation; and
2. You were subjected to a hostile work environment characterized by, but not limited to, false accusations.
Id . at 16. On August 15, 2011, in response to correspondence from Mokhtar dated July 14, 2011, the Department issued a second letter in which it accepted a third claim for investigation:
3. As an act of reprisal, you were discriminated against when you did not receive awards on July 20, 2011.
Id . at 21. An administrative investigation was conducted between March 2, 2011, and February 1, 2012, and a Report on Investigation was sent to Mokhtar in a letter dated February 22, 2012. See Final Agency Decision, ECF No. 87-8, Ex. F at 2. The Department issued a Final Agency Decision on September 26, 2012, concluding that Mokhtar had “not established her claims of discrimination” or hostile work environment. Id . at 8.
On October 24, 2012, Mokhtar filed a complaint in this Court asserting various
allegations about her time at the Department.
See generally
Compl., ECF No. 1. Although the
statutory bases for her claims are somewhat unclear, the Court is cognizant of the need to
“liberally construe[]” the complaint because Mokhtar is a
pro se
plaintiff.
Erickson v.
Pardus
,
III. LEGAL STANDARD
Summary judgment may be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a);
see also Anderson v. Liberty Lobby, Inc.
,
Once the moving party has met its burden, the nonmoving party, to defeat the motion,
must designate “specific facts showing that there is a genuine issue for trial.”
Id
. at 324 (citation
omitted). Though courts must view this evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party’s favor,
see Grosdidier v. Broad. Bd. of
Governors, Chairman
,
Of particular relevance here, this Court has explained that “[s]ummary judgment for a
defendant is most likely when a plaintiff’s claim is supported solely by the plaintiff’s own self-
serving, conclusory statements.”
Bonieskie v. Mukasey
,
Finally, although the pleadings of a
pro se
party are to be “liberally construed, and a
pro
se
complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers,”
Erickson
,
IV. ANALYSIS
In language parallel with Title VII, the ADEA provides, in relevant part, that “[a]ll
personnel actions affecting employees or applicants for employment who are at least 40 years of
age … in executive agencies … shall be made free from any discrimination based on age.” 29
U.S.C. § 633a(a). In addition, both Title VII and the ADEA prohibit federal agencies from
retaliating against an employee for engaging in protected activity,
see Holcomb
,
The Supreme Court has cautioned courts that these federal employment discrimination
statutes are not intended to be used as “general civility code[s]” for dissatisfied employees,
Faragher v. City of Boca Raton
,
act as “super-personnel departments that reexamine an entity’s business decisions.”
Holcomb
,
A. Failure To Exhaust Administrative Remedies Under Title VII And The ADEA Before bringing a Title VII or ADEA claim in federal court, a federal employee must initiate informal contact with an Equal Employment Opportunity Commission (“EEOC”) counselor within forty-five days of the alleged discriminatory conduct. See 42 U.S.C. § 2000e- 16(c) (Title VII); 29 U.S.C. §§ 633a(b)-(c) (ADEA); 29 C.F.R. § 1614.105(a)(1) (providing EEOC procedures for federal employees); see also Arnold v. Jewell , No. CV 05-1475, 2013 WL 6730918, at *3-4 (D.D.C. Dec. 23, 2013). If the EEOC counseling does not resolve the matter, the federal employee must then file a formal discrimination complaint with the agency within *14 fifteen days of receiving notice from the EEOC counselor about the right to file such a complaint. See 29 C.F.R. §§ 1614.105(d), 1614.106(b).
Failure to exhaust administrative remedies under Title VII and the ADEA is an
affirmative defense, not a jurisdictional requirement, and the burden therefore falls on the
defendant to plead and prove the defense.
See Bowden v. United States
,
Here, the Department moves for summary judgment on the basis that nearly all of the allegations in Mokhtar’s complaint were not alleged in, and are not reasonably related to, the claims in her EEO complaint such that they were not administratively exhausted. Def.’s Mem. Supp. Mot. Summ. J., ECF No. 87-2, at 7-9. Specifically, the Department seeks summary judgment in regard to potential discrete-act age discrimination and reprisal claims based on the following allegations from the complaint:
• New employees are “too young” and are not dressed “professionally”; • Dr. Elrayah “made” Mokhtar sign a document stating that she would get recertified; • Dr. Bernhardt persuaded CTT employees to prevent Mokhtar from getting recertified; • Dr. Bernhardt required employees to implement his policies and follow his instructions;
• Management did not permit Mokhtar to complete a consular module project; *15 • Dr. Bernhardt did not involve Mokhtar in developmental assignments; • Dr. Bernhardt attempted to prevent Mokhtar from volunteering for positions outside of the FSI in 2007 and 2008;
• Dr. Bernhardt did not assign projects to Mokhtar; and • Dr. Bernhardt did not select Mokhtar for two supervisory positions in 2007 and 2008. See id . at 9 (citing Compl., ECF No. 1 at 2-6). Separately, the Department seeks summary judgment based on Mokhtar’s failure to seek timely EEO counseling regarding her allegations that she was not selected for two unspecified supervisory positions in 2007 and 2008, and that she was prevented from undertaking volunteer positions in a passport office in 2007 and in Iraq in 2008. See id . at 10-11 (citing Compl., ECF No. 1 at 5-6).
1. Exhaustion: Cancellation Of The Module Project
According to the agency’s acceptance-of-claims letters, the administrative investigation into Mokhtar’s EEO complaint was limited to the following claims: (1) discrete-act age discrimination and reprisal based on Mokhtar’s 2010 performance ratings; (2) an allegedly hostile work environment characterized by “false accusations”; and (3) discrete-act age discrimination and reprisal based on Mokhtar not receiving a performance award in July 2011. ROI Excerpts, ECF No. 87-3, Ex. A at 16, 21. In the narrative section of the EEO complaint, however, Mokhtar explicitly alleged another example of age discrimination and retaliation: Dr. Bernhardt’s decision to cancel the consular module project on which Mokhtar had been working. See id . at 2. Additionally, in the next section of the EEO complaint that asks about *16 the relief she was seeking, Mokhtar requested as a remedy “[a]n [e]xplanation for the reason my projects are being stopped after I put in a lot of time and effort[.]” Id . The Department argues that Mokhtar failed to exhaust a discrimination and retaliation claim as to this event. For the reasons explained next, the Court disagrees.
The Department’s exhaustion analysis, which is sparse in general, appears to be based on the fact that the agency’s administrative acceptance-of-claims letters did not mention an intention to investigate the project cancellation, and as a result, the follow-up administrative investigation, as summarized through the Final Agency Decision, appears not to have looked into this issue. See, e.g. , Def.’s Mem. Supp. Mot. Summ. J., ECF No. 87-2, at 9 (“Plaintiff failed to raise these claims during the administrative process, thereby depriving [the agency] of the opportunity to fully investigate the claims and provide an answer to them.”); Def.’s Reply Supp. Mot. Summ. J., ECF No. 102, at 7 (asserting that the Department’s Office of Civil Rights did not “consider[]” the module project claim).
In support of the Department’s position, there are cases from this district holding that a plaintiff’s “failure to respond to the [agency’s] framing of the issue supports a finding that a plaintiff has failed to exhaust his administrative remedies with respect to those claims not environment claim. See id. at 2. The Court finds this last fact to be the most persuasive and therefore concludes that the proper approach is to treat the project cancellation both as a discrete- act age discrimination and reprisal claim and as part of a hostile work environment claim, just as the agency did with the “Not Successful” ratings. The Department notes that in her deposition, Mokhtar appears to concede that the
only claims that survived the administrative process are those that were explicitly accepted for investigation by the agency. Def.’s Mem. Supp. Mot. Summ. J., ECF No. 87-2, at 9 (citing Mokhtar Depo., ECF No. 87-4, Ex. B at 19:14-20:3). The Department, however, does not cite any authority providing that a plaintiff’s (and especially a pro se plaintiff’s) testimony about the scope of the administrative process controls a court’s exhaustion analysis. Instead, the Court will look to the administrative documents to determine which claims were exhausted.
approved by the EEO.”
McKeithan v. Boarman
,
In particular, an acceptance-of-claims letter, though organizationally useful in clarifying
the topics to be investigated, is not a mandated pre-investigation procedure under any statute or
regulation insofar as the agency is not required to identify for the complainant the specific claims
*18
that it will investigate following an EEO complaint and the complainant is not required to
respond within a certain time to avoid waiving those claims.
[9]
But by putting the burden on the
complainant to object to the agency’s acceptance-of-claims letter within the arbitrarily specified
timeframe, courts shift the exhaustion onus from the agency to the individual without any legal
basis for doing so.
[10]
See Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev.
,
To be sure, in finding that a complainant “abandons” a claim by failing to respond to the
agency’s acceptance-of-claims letter, some district courts have relied on the exhaustion
doctrine’s requirement that the complainant must cooperate throughout the administrative
investigation or risk having the complaint dismissed.
Payne v. Locke
,
This Court, however, finds that failure to cooperate during the administrative
investigation must be treated as factually and legally distinct from failure to respond to the
acceptance-of-claims letter. In particular, the acceptance-of-claims letter is more akin to an
elective agency housekeeping procedure, not a legally mandated aspect of the administrative
fact-finding investigative process. As an example of the latter, 29 C.F.R. § 1614.107(a)(7)
provides that when “the agency has provided the complainant with a written request to provide
relevant information or otherwise proceed with the complaint, and the complainant has failed to
respond to the request” in a timely manner, the agency “shall” dismiss the complaint.
See also
Wilson v. Peña
,
Though addressing a different factual scenario, this Court’s recent decision in
Dick v.
Holder
, No. CV 13-1060 (RC),
The instant case presents the opposite scenario from
Dick
. Here, Mokhtar’s claim as to
the cancellation of the module project was written plainly and directly on the face of the formal
EEO complaint, and the agency has offered no justification for why it omitted this claim from
the set of issues it agreed to investigate but included the “Not Successful” ratings claim, which
was written just as plainly in the same narrative space on the complaint form right below the
checked “age” and “reprisal” discrimination boxes. ROI Excerpts, ECF No. 87-3, Ex. A at
2. Thus, without any reasonable explanation from the agency for its omission and applying the
Dick
analysis, Mokhtar’s situation falls into the category in which “[a]n agency may not
unreasonably omit claims from investigations, in hopes that a complainant’s tardy realization of
the omission will constitute a failure to exhaust,”
Dick
,
Finally, the Court emphasizes that today’s holding is consistent with the policies
underlying the exhaustion doctrine. Specifically, allowing a party to bring to court only those
claims that are “like or reasonably related to the allegations of the charge and growing out of
such allegations,”
Park
,
On the one hand, “[t]he purpose of the [exhaustion] doctrine is to afford the agency an opportunity to resolve the matter internally and to avoid unnecessarily burdening the courts.” Wilson v. Peña ,79 F.3d 154 , 165 (D.C. Cir. 1996); see also Brown v. Marsh ,777 F.2d 8 , 15 (D.C. Cir. 1985) (describing “exhaustion doctrine’s purpose” as “giving the agency notice of a claim and opportunity to handle it internally”). On the other hand, because courts must ensure that remedies provided by federal employment discrimination law are “accessible to individuals untrained in negotiating procedural labyrinths…[,] the strictures of common law pleading have no place in a scheme largely dependent upon self- service in drawing up administrative charges.” Brown ,777 F.2d at 14 (internal quotation marks and citations omitted).
Dick
,
The lack of investigation is less concerning, however, when the agency acted
unreasonably by omitting the claim in the first place, which is the critical distinction between the
Dick
scenario and Mokhtar’s situation. In other words, “viewed through the policies animating
the exhaustion doctrine,”
id
., Mokhtar
did
give the agency “notice of [her] claim and [an]
opportunity to handle it internally,”
Brown
,
Thus, to summarize, the Court reaches two conclusions today. First, Mokhtar’s failure to respond to the acceptance-of-claims letter was not a failure to “cooperate” with the agency’s investigation within the proper meaning of the cooperation requirement. And second, Mokhtar, by explicitly and directly raising this discrete event in her formal EEO complaint — and regardless of her failure to respond to the agency’s acceptance-of-claims letter — exhausted her age discrimination and reprisal claims as to the cancellation of the project because the agency, which bears the burden of establishing exhaustion under both Title VII and the ADEA, has failed to establish that it acted reasonably in omitting this claim from its follow-up investigation.
2. Other Allegations In The Complaint
Besides the cancellation of the module project, however, the Court agrees with the
Department that Mokhtar failed to raise the other discrete-act allegations in her civil complaint,
described above, in her EEO complaint, nor are such claims “like or reasonably related to the
allegations of the charge and growing out of such allegations.”
Park
,
3. Failure To Seek Timely EEO Counseling
Alternatively, the Department also asserts an exhaustion defense based on Mokhtar’s
failure to seek EEO counseling in a timely manner in regard to her allegations that Dr. Bernhardt
did not select her for two supervisory positions in 2007 and 2008, and that Dr. Bernhardt
prevented her from volunteering for two other positions in 2007 and 2008. Under Title VII and
the ADEA, aggrieved individuals must “initiate contact with a Counselor within 45 days of the
date of the matter alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1). An employee
satisfies the timeliness requirement if she (1) contacts “an agency official logically connected
with the EEO process, even if that official is not an EEO counselor,” and (2) “exhibit[s] an intent
to begin the EEO process.”
Miller v. Hersman
,
As to the non-selection claims, Mokhtar’s complaint does not specify what those
positions were or when Dr. Bernhardt’s alleged interference occurred. Compl., ECF No. 1 at
6. In her deposition, however, Mokhtar testified that she applied for two positions sometime in
2007 and 2008, and that she has not applied for any other positions since then. Mokhtar
*25
Depo., ECF No. 87-4, Ex. B. at 190:3-20. Because Mokhtar did not make contact with an EEO
counselor until January 13, 2011, at the earliest,
see
ROI Excerpts, ECF No. 87-3, Ex. A at 5, the
Court grants summary judgment for the Department on the basis that Mokhtar failed to seek
timely counseling for the non-selection claims.
See Foster v. Gonzales
,
For the same reason, the Court also grants summary judgment for the Department as to Mokhtar’s allegations that she was not permitted to take volunteer positions in a passport office in 2007 and in Iraq in 2008. Compl., ECF No. 1 at 5; Mokhtar Depo., ECF No. 100-1, Ex. 3 at 170:1-8 (discussing 2008 volunteer position in Iraq). By not seeking EEO counseling until January 13, 2011, Mokhtar failed to meet the 45-day statutory deadline.
B. Title VII And ADEA Age Discrimination And Reprisal The Court next turns to the merits of the following claims that remain at issue in this litigation: (1) age discrimination under the ADEA as to the performance ratings, the lack of awards, and the cancellation of the module project; and (2) reprisal under Title VII and the ADEA as to the performance ratings, the lack of awards, and the cancellation of the module project. The Department moves for summary judgment on each of these claims. Because the Court’s analytical framework varies based on the type of arguments raised by the Department, the Court begins by addressing the performance ratings and lack of awards claims, before then addressing the project cancellation claims in Part IV.B.2-3., infra .
*26
1. Age Discrimination And Retaliation: Performance Ratings And Lack Of Awards
Traditionally, Mokhtar’s Title VII and ADEA claims, whether for discrimination or
retaliation, would be analyzed using the three-step framework established in
McDonnell Douglas
Corp. v. Green
,
The D.C. Circuit has recognized, however, that when an employer moves for summary
judgment in a lawsuit such as this one, “the employer ordinarily will have asserted a legitimate,
non-discriminatory reason for the challenged decision.”
Brady v. Office of Sergeant at Arms
,
The Department moves for summary judgment as to Mokhtar’s age discrimination and
reprisal claims under Title VII and the ADEA on the basis that the agency had legitimate, non-
discriminatory reasons for the 2010 “Not Successful” ratings and for the decision not to
nominate Mokhtar for an award based on her work during the 2010 ratings year. Def.’s
Mem. Supp. Mot. Summ. J., ECF No. 87-2, at 18. The Department does not challenge whether
either of these events qualifies as an adverse employment action, but rather offers non-
discriminatory reasons and then jumps into
Brady
’s “one central question” analysis.
See, e.g.
,
id
.
at 19;
see also Martin v. District of Columbia
, No. CV 11-01069 (RC),
a. The Department Offers Legitimate, Non-Discriminatory Reasons For Its Actions
Once an adverse employment action has occurred,
Brady
next requires a district court to
ask whether “an employer has asserted a legitimate, non-discriminatory reason for the [adverse
employment] decision.”
Brady
,
As to the “Not Successful” ratings, the Department offers, through Dr. Elrayah’s evaluation, several non-discriminatory reasons for the ratings, including: “Mokhtar did not keep good track of her consultees … and poorly communicated with her supervisor in this matter”; there “were concern[s] about the interpersonal skills and communication level of [Mokhtar] during this rating year[, and] [s]he missed some consultation sessions with her students without rescheduling or talking with the students”; and Mokhtar “did not keep complete records of her consultees, and did not respond in [a] timely manner to her supervisor’s requests to provide [a] complete consultation report that reflects scheduled, conducted, and missed [Learning Consultation] sessions.” ROI Excerpts, ECF No. 87-3, Ex. A at 115.
In addition, the Department provides evidence that Mokhtar’s “Not Successful” ratings were based on her failure to complete the required examiner recertification by the end of the 2010 ratings year. See id . at 75, 115. In particular, Mokhtar signed a mid-year performance review form agreeing to obtain both the testing and examiner recertifications before the end of the year, see id . at 60-61, 118; Mokhtar Depo., ECF No. 87-4, Ex. B at 117:23-118:9, and although she completed the testing recertification in time, it is undisputed that she did not complete the examiner recertification by the end of December 2010. ROI Excerpts, ECF No. 87-3, Ex. A at 60, 115; Mokhtar Depo., ECF No. 87-4, Ex. B at 119:21-120:5; see also Hoffman Depo., ECF No. 100-1, Ex. 7 at 35:1-6 (testifying that Mokhtar did not complete her examiner recertification because she could not meet the Department’s standards). Indeed, Mokhtar, during her deposition, acknowledged that she was expected to perform testing and examining as part of her job duties, and that she was ordered to complete both recertifications but failed to do so. *29 Mokhtar Depo., ECF No. 87-4, Ex. B at 119:21-120:5, 148:16-22; Mokhtar Depo., ECF No. 100-1, Ex. 3 at 149:1-18. Mokhtar’s failure to complete the required examiner recertification by the deadline constitutes another legitimate, non-discriminatory reason for her “Not Successful” performance ratings.
Regarding the decision not to nominate Mokhtar for a performance award, the evidence shows that it is the FSI’s policy that awards are intended “to provide appropriate incentives and recognition for employees to encourage and reward outstanding performance,” and “it is essential that monetary awards be given only to those employees who are exceptionally deserving.” ROI Excerpts, ECF No. 87-3, Ex. A at 94. The Department then offers evidence that the decision not to nominate Mokhtar for an award was based on the “Not Successful” ratings in her 2010 performance review, which is a legitimate, non-discriminatory reason for the employer’s decision. See id . at 66, 104, 106.
b. Plaintiff Fails To Show That The Department’s Non-Discriminatory Reasons Are A Pretext
With the Department having met its burden, the Court next asks: “Has the employee
produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-
discriminatory reason was not the actual reason and that the employer intentionally discriminated
against the employee on [a prohibited basis]”?
Brady
,
Starting with the performance ratings, to rebut the Department’s evidence, Mokhtar relies on her opinion that she should not have been rated as “Not Successful” because, for example, she was sufficiently “knowledgeable” to perform her job without recertification based on her experience and the parts of the retraining she completed, the retraining involved skills that were not necessary for her position, the recertifications were a waste of the Department’s resources, and her supervisors should have ignored errors she made during the retraining because they were not important. Pl.’s Mem. Opp’n Mot. Summ. J., EFC No. 100, at 20-21; see also, e.g. , Mokhtar Depo., ECF No. 87-4, Ex. B at 142:4-8 (opining that there was “no need” for retraining because “it had a lot of basic … information about testing that I already knew … and it’s just a waste of resources and time”); id . at 146:8-9 (opining that “all of this is illegal because testing is not mandatory”); id . at 148:19-22 (“They should have just been more tolerable of small errors that were not fatal [during the retraining] and just eased me in back to the system instead of making a big deal out of every little thing.”); Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 3 (“I did not think [getting recertified as an examiner] was necessary…”).
The Court, however, “cannot credit [Mokhtar’s] subjective assessment of [her] own
qualifications,”
McNally v. Norton
,
Accordingly, when determining whether proffered reasons are a pretext, the Court “does
not examine whether the reasons the [Department] offered were correct but instead focuses on
whether the [relevant] officials at the [Department] honestly believed the reasons they offered.”
McNally
,
Mokhtar also argues that the Department engaged in a conspiracy to prevent her from becoming recertified as an examiner. Pl.’s Mem. Opp’n Mot. Summ. J., ECF No. 100, at 21. None of the evidence she cites, however, supports her position that the Department deliberately interfered with her completion of the recertification process; instead, Mokhtar is left to rely on her own unsubstantiated and conclusory statements to support this position, which is insufficient to create a genuine dispute of fact at summary judgment. Specifically, Mokhtar cites two *32 deposition transcripts, but neither is probative of any plot by the Department to obstruct her. For example, Christina Hoffman stated during her deposition that Department examiners not in good standing were limited to walk-in candidates for their observations, which suggests nothing about discrimination or obstruction towards Mokhtar. See Hoffman Depo., ECF No. 100-1, Ex. 7 at 14:7-9. Similarly, Mokhtar cites a portion of David Red’s deposition in which he testifies to not remembering whether the Department had a policy regarding walk-ins, which also does not support Mokhtar’s conspiracy theory. Red Depo., ECF No. 100-1, Ex. 9 at 16:6-20. Instead, Mokhtar relies on her own conclusory testimony to allege that she was permitted to use only walk-ins for her observations because of a purported scheme to delay her recertification, while younger employees were allowed to observe non-walk-ins, which enabled those employees to perform observations more frequently than Mokhtar. Mokhtar Stmt. Facts in Dispute, ECF No. 100, at ¶ 14 (citing Mokhtar Depo., ECF No. 100-1, Ex. 3 at 127:2-11).
Thus, absent her own conclusory testimony, the evidence Mokhtar cites does not support
her argument about a plan within the Department to prevent her from finishing the recertification
process. But such conclusory, self-serving statements by a plaintiff do not create a genuine
dispute of material fact for purposes of summary judgment.
See, e.g.
,
Lindsey v. Rice
, 524 F.
Supp. 2d 55, 60 (D.D.C. 2007) (granting summary judgment when plaintiff’s “self-serving
statements [were] too conclusory to survive [defendant’s] summary judgment motion”). This is
especially true when these statements are unsubstantiated by any non-self-serving evidence and,
in fact, are rendered unreasonable given other undisputed evidence in the record — which is
exactly the case here because undisputed evidence shows that the Department, rather than
attempting to thwart Mokhtar, gave her more than two years to complete the process and actually
went out of its way to accommodate her demand for special individualized recertification courses
*33
so that she would not have to take the same courses as new hires.
See
ROI Excerpts, ECF No.
87-3, Ex. A at 77-80, 87; Mokhtar Depo., ECF No. 87-4, Ex. B at 142:9-16; Hoffman Depo.,
ECF No. 87-6, Ex. 4 at 21:11-17 (alleged instruction to prevent Mokhtar from completing
recertifications “would never, ever happen”);
see also Anderson
,
Similarly, Mokhtar testified that a number of younger employees were able to complete certain observation testing faster by using non-walk-ins. id. at 122:20-25, 127:2-11. But the examples Mokhtar provided are not analogous to her situation for two reasons: first, Mokhtar offered examples of the timing and age for people who were receiving their original examiner certification, not the later recertification at issue here, see id. at 125:16-25; and second, Mokhtar demanded an individualized recertification plan rather than following the interactive training program used by other employees seeking recertification, thus placing her in a unique situation *34 and making any comparison between her and those employees on the standard recertification path unhelpful. See id . at 142:1-16. Indeed, the evidence shows that Mokhtar received her individual recertification plan in March 2008 but did not respond for more than two years, which demonstrates that the lengthy delay was due to her decision to ignore the plan and the recertification requirements, see ROI Excerpts, ECF No. 87-3, Ex. A at 77, 88, and then once she did engage in the process, she still failed to meet the Department’s standards. See, e.g. , Hoffman Depo., ECF No. 100-1, Ex. 7 at 35:1-6 (in “the function of the examiner … you are supposed to follow very strict standards. That’s where [Mokhtar] didn’t seem to be able to be recertified…”).
Similar flaws befall Mokhtar’s attempted opposition to the Department’s evidence that
the “Not Successful” performance ratings were based, at least in part, on her failure to attend
meetings with students and failure to provide a report that her supervisor requested. As to the
missed meetings, Mokhtar admits that she missed appointments with students,
see
Mokhtar
Depo., ECF No. 100-1, Ex. 3 at 160:21-161:4; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 5 (“I
missed only two appointments with students in 2010.”), and she fails to offer any evidence that
the Department officials did not honestly believe that the missed meetings were a basis for her
performance ratings.
McNally
,
Likewise, Mokhtar concedes that she failed to provide the report for which Dr. Elrayah asked regarding her meetings with students and instead argues that the report was not necessary and her error was “ de minimis ” because she had provided the information through regular individual reports. See Pl.’s Stmt. Facts in Dispute, ECF No. 100, at ¶ 20; Mokhtar Depo., ECF No. 100-1, Ex. 3. at 161:19-162:14; see also Pl.’s Mem. Opp’n Mot. Summ. J., ECF No. 100, at 23. But, again, Mokhtar’s opinion about what reports her superior should have required is irrelevant and does not show that the Department’s offered non-discriminatory reason is a pretext. And in addition, the individual reports that Mokhtar had been providing to Dr. Elrayah did not contain all the information for which he asked, including when Mokhtar had missed meetings with students, nor did Mokhtar’s reports contain the aggregate information about the number of scheduled, conducted, and missed meetings that Dr. Elrayah requested. See ROI Excerpts, ECF No. 87-3, Ex. A at 91; Learning Consultation Activities Worksheets, ECF No. 100-1, Ex. 15.
Finally, Mokhtar argues that she received awards in the past and “expected” to receive an
award for her work during the 2010 ratings year. Pl.’s Mem. Opp’n Mot. Summ. J., ECF
No. 100, at 23; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 8. Mokhtar, however, makes no
argument and offers no evidence suggesting that the Department’s offered non-discriminatory
reason for her lack of an award for the 2010 ratings year — her “Not Successful” performance
ratings — was a pretext; her subjective opinion and self-serving statements about whether she
deserved in award are insufficient to create a genuine dispute of fact.
McNally
, 498 F. Supp.
2d at 183;
see also Saunders v. DiMario
, No. Civ. A. 97-1002,
* * *
In sum, the Department provides legitimate, non-discriminatory reasons for Mokhtar’s 2010 “Not Successful” performance ratings and the decision not to nominate her for a performance award. Mokhtar, however, fails to meet her burden of showing that the Department’s offered reasons are a pretext. Accordingly, the Court grants summary judgment in favor of the Department on Mokhtar’s ADEA discrimination claim and Title VII and ADEA reprisal claims as to the 2010 performance ratings and the lack of awards.
2. Age Discrimination: Cancellation Of The Module Project
The Court has rejected the Department’s argument that Mokhtar failed to administratively exhaust her age discrimination and reprisal claims as to the cancellation of the module project. See Part IV.A.1., supra . But in its motion for summary judgment, the Department also attacks the merits of such claims by making two arguments: first, Mokhtar fails to satisfy the adverse employment action element required for a prima facie ADEA age discrimination claim; and second, the reprisal claim fails because Mokhtar cannot demonstrate a causal connection between her protected activity, a 1998 EEO complaint, and the Department’s alleged adverse action in cancelling the project. Def.’s Mem. Supp. Mot. Summ. J., ECF No. 87-2, at 14-15, 17.
As noted above,
Brady
requires a court to skip the prima facie case analysis and ask the
“one central question” only when the employee has suffered an adverse employment action
and
the employer has offered a non-discriminatory reason for the decision.
Brady
, 520 F.3d at
494. Because the Department’s motion for summary judgment offers no explicit non-
*37
discriminatory reason for the decision to cancel the module project,
Brady
does not apply, and
the Court must return to the world of
McDonnell Douglas
, under which Mokhtar has the initial
burden of establishing a prima facie case of discrimination and retaliation.
See McDonnell
Douglas
,
Thus, starting with the ADEA age discrimination claim, a plaintiff’s prima facie case
requires evidence that (1) she is a member of the protected class (
i
.
e
., over 40 years of age); (2)
she was qualified for the position and was performing her job well enough to meet her
employer’s legitimate expectations; (3) she suffered an adverse employment action; and (4) she
was disadvantaged in favor of a similarly situated younger person.
Teneyck v. Omni
Shoreham Hotel
,
The D.C. Circuit has defined an adverse employment action for purposes of a
discrimination claim as “a significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities, or a decision causing
significant change in benefits.”
Taylor v. Small
,
In opposition to the Department’s motion, Mokhtar argues that through the development
of the consular module, she “effectively act[ed] in a supervisory role over several other
employees” such that cancellation of the project was “effectively” a demotion to a “non-
supervisory role” and a loss of responsibilities. Pl.’s Mem. Opp’n Mot. Summ. J., ECF No.
100, at 18-19. The D.C. Circuit has explained, however, that “changes in assignments or work-
*39
related duties do not ordinarily constitute adverse employment decisions if unaccompanied by a
decrease in salary or work hour changes.”
Mungin v. Katten Muchin & Zavis
,
Indeed, preparing the module was never part of Mokhtar’s official duties as a Language
and Culture Instructor,
see
ROI Excerpts, ECF No. 87-3, Ex. A at 123-24, and in fact, she chose
to start the project on her own without orders to do so from any supervisor. Mokhtar Depo.,
ECF No. 100-1, Ex. 3 at 28:1-3 (“I wasn’t given a task. I was just there in the section. So I
decided to do [the module project].”); Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 9 (“In 2010, on
my own initiative, I began developing a consular training module…”). It therefore does not
reasonably follow that cancellation of this voluntary, unofficial project would constitute a
material change of assignments or responsibilities that might cause an “objectively tangible
harm” to her employment condition.
Forkkio v. Powell
,
The same holds true for Mokhtar’s assertion that she was “effectively” demoted from a
supervisory role to a non-supervisory role through the project cancellation: her official position
and responsibilities did not change in the slightest because her position never included
supervisory duties to begin with, and there is no evidence that the cancellation of the project was
*40
of such a nature that it altered the objective terms of her employment or limited her future career
opportunities, such as future promotions or pay increases.
Cf. Cones v. Shalala
,
Further, Mokhtar mistakenly relies on
Youssef v. FBI
,
Here, by contrast, the Department did not “reassign” or “demote” Mokhtar by any definition of the words, nor did it reduce any of her official responsibilities as a Language and Culture Instructor, which never included preparing language modules or supervising employees. *41 Instead, the Department merely cancelled one short-term project that Mokhtar had “begun developing” under “her own initiative,” with no tangible harm to Mokhtar’s employment condition. Pl.’s Mem. Opp’n Mot. Summ. J., ECF No. 100, at 14; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 9. This is in stark contrast to the plaintiff in Youssef , who lost his official supervisory duties and many other responsibilities related to his former position through a “reassignment” that really was a significant demotion.
In sum, Mokhtar fails to provide evidence of any adverse change to the terms, conditions,
or privileges of her employment resulting from the Department’s decision to cancel the module
project, regardless of her personal preference for the project to have continued to completion or
her dissatisfaction with the Department’s decisionmaking.
See Lester v. Natsios
, 290 F. Supp. 2d
11, 90 (D.D.C. 2003) (“Purely subjective injuries, such as dissatisfaction with reassignment,
public humiliation or loss of reputation, or unhappiness over assigned duties are not adverse
actions.”);
Childers v. Slater
,
3. Retaliation: Cancellation Of The Module Project
The Court next turns to Mokhtar’s retaliation claims under Title VII and the ADEA based
on the cancellation of the module project.
[20]
To establish a prima facie case of retaliation under
both statutes, a plaintiff must demonstrate that (1) she engaged in statutorily protected activity;
(2) she suffered a materially adverse action by her employer; and (3) a causal connection existed
between the two.
See Broderick
,
Though not specified in the complaint, the only protected activity for which Mokhtar can
claim she was retaliated against is her filing of an EEO complaint in 1998 about her then-
immediate supervisor Dr. Joseph White.
[21]
See, e.g
., Mokhtar Depo, ECF No. 87-4, Ex. B. at
*43
173:4-174:11 (stating that “underlying activity” for retaliation claim is EEO complaint in “1998
or [19]99” about Dr. White);
id
. at 181:19-182:18 (agreeing that the “foundation of [the] reprisal
complaint” is the 1998 EEO complaint and there are “no” other activities that form the basis of
this claim);
see also Holcomb
,
A retaliation claim requires “proof that the desire to retaliate was the but-for cause of the
challenged employment action.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar
, --- U.S. ---, 133 S. Ct.
2517, 2528 (2013). In other words, “traditional principles of but-for causation” apply, and the
plaintiff must show that “the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.”
Id
. at 2533. In some cases, causation can
be established simply by showing that “the employer had knowledge of the employee’s protected
activity, and the adverse personnel action took place shortly after that activity.”
Pardo-
Kronemann v. Jackson
,
1431 (RC),
Instead, the more “time that elapses between the protected activity and the alleged acts of
retaliation,… the more difficult it is to demonstrate any causal connection.”
Saunders
, 1998 WL
525798, at *5. Thus, something much stronger is needed to create a reasonable inference of a
causal connection when the temporal proximity inference fails, beyond the mere fact that the
employer knew of the protected activity.
Cf.
Bernhardt Depo., ECF No. 100-1, Ex. 2 at 7:12-14
(admitting awareness of 1998 EEO complaint). But Mokhtar does not provide any evidence
suggesting a link or retaliatory pattern between any of the complained-about actions by the
Department, including cancelling the project, and her EEO complaint from more than a decade
earlier.
Cf., e.g.
,
Davis
,
Further, an inference of causation is especially unlikely when the person who allegedly
retaliated against Mokhtar years later (
i
.
e
., Dr. Bernhardt) was not the subject of her 1998 EEO
complaint (
i
.
e
., Dr. White).
See Vickers v. Powell
,
too great [a length of time] to support an inference of reprisal”). Alternatively, Mokhtar ignores the Department’s causation argument in her
opposition brief, thus conceding the issue.
See, e.g.
,
Burke v. Inter-Con Sec. Sys., Inc.
, 926 F.
Supp. 2d 352, 356 (D.D.C. 2013) (plaintiff conceded arguments raised in defendant’s motion for
summary judgment by failing to oppose those arguments in plaintiff’s opposition memorandum
and sur-reply);
Malik v. District of Columbia
, No. 05-1374,
C. Hostile Work Environment
Though it is not entirely clear that Mokhtar is alleging a hostile work environment claim
in this case, the Court liberally construes her complaint to include such a claim. Courts apply
the same analysis when evaluating a hostile work environment claim under Title VII and the
ADEA.
See, e.g.
,
Blackwell
,
To determine whether a hostile work environment exists, courts consider “all the
circumstances,” including: “the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating…; and whether it unreasonably interferes with an
employee’s work performance.”
Harris v. Forklift Sys., Inc.
,
Liberally construing the compliant, Mokhtar appears to allege that the following events created a hostile work environment: the “Not Successful” performance ratings; new FSI employees are “too young” and are “not professionally dressed”; Dr. Elrayah “made” Mokhtar sign a document stating that she would get recertified; Dr. Bernhardt persuaded employees to prevent Mokhtar from getting recertified; Dr. Bernhardt required employees to implement his policies and follow his instructions; Mokhtar was not permitted to complete the consular module project; Dr. Bernhardt did not involve Mokhtar in developmental assignments; Dr. Bernhardt attempted to prevent Mokhtar from volunteering for positions outside of the FSI in 2007 and 2008; Dr. Bernhardt did not assign unspecified projects to Mokhtar; and Dr. Bernhardt did not select Mokhtar for two unspecified supervisory positions. See generally Compl., ECF No. 1.
As an initial matter, there is no competent evidence in the record to support several of Mokhtar’s allegations, while, at the same time, there is evidence that directly contradicts other allegations. For example, Mokhtar alleges that Dr. Elrayah “made” her sign a document, presumably the mid-year performance review form, which stated that Mokhtar would get recertified by the end of the year. Compl., ECF No. 1 at 3; ROI Excerpts, ECF No. 87-3, Ex. A at 118 (mid-year review). There is no evidence, however, of any intimidation or coercion by Dr. Elrayah when Mokhtar signed the review form; rather, Mokhtar has testified to the exact opposite — that Dr. Elrayah did not intimidate her into signing the form and that she voluntarily signed it because she believed that she could meet the end-of-year deadline. Mokhtar Depo., *48 ECF No. 87-4, Ex. B at 84:20-85:22, 119:2-20 (“Q: Did you find [Dr. Elrayah’s] behavior intimidating? A: No. Because at the time I had no doubts that I can meet the deadline.”); see also Mokhtar Depo. ECF No. 100-1, Ex. 3 at 86:6-11 (stating that she signed the form to make her supervisor “happy” and because she had “no doubt that [she] would be able to meet” the deadline).
In addition, there is no evidence regarding how new employees dressed at the FSI or why they were “too young,” but even if such evidence existed, these facts would not impact Mokhtar. There also is no evidence about how Dr. Bernhardt acted improperly by requiring employees to implement his policies and follow his instructions, which any supervisor would expect, nor is there evidence about why this would be discriminatory towards Mokhtar anyways. See, e.g. , Mokhtar Depo., ECF No. 100-1, Ex. 3 at 172:7-11 (stating merely that Dr. Bernhardt is “the only one who speaks for the section” and “who makes decisions in the section”); ROI Excerpts, ECF No. 87-3, Ex. A at 27 (“No one else’s opinion matters[.] [Dr. Bernhardt] is the only one who runs everything in the section.”); cf . Aziz Depo., ECF No. 100-1, Ex. 1 at 15:16-18 (“There is a better way to [run the section,] … but there’s no specific thing that I can say I see corruption.”).
Likewise, besides the module project, there is no evidence of Dr. Bernhardt failing to involve Mokhtar in other developmental assignments or projects. The Court, moreover, already rejected Mokhtar’s claim that a retaliatory motive was behind the project cancellation, and the Court also has rejected Mokhtar’s suggestion that there was a conspiracy led by Dr. Bernhardt to prevent her from getting recertified, as no competent evidence in the record supports such a claim. Nor is there any competent evidence in the record that Dr. Bernhardt prevented Mokhtar from volunteering for positions in 2007 and 2008, as Mokhtar testified that Kathy Russell decided who could volunteer for the Iraq position and who could return to work at the FSI after *49 volunteering, and there is no evidence of Dr. Bernhardt’s involvement other than Mokhtar’s conclusory testimony that Dr. Bernhardt must have convinced Russell not to let Mokhtar volunteer and not to grant Mokhtar a reemployment letter so she could return to the FSI. Mokhtar Depo., ECF No. 100-1, Ex. 3 at 170:1-172:14. Finally, both supervisory positions to which Mokhtar applied were outside the FSI, which suggests that no FSI employees, including Dr. Bernhardt, were involved in the selection processes, and regardless, the non-selections occurred in 2007 and 2008, several years before the relevant events in this lawsuit. Mokhtar Depo., ECF No. 87-4, Ex. B at 179:23-180:20.
But even looking past the fact that nearly all of the underlying allegations either lack
evidentiary support or were rejected on other grounds by the Court, Mokhtar still falls well short
of meeting her prima facie burden because none of the acts she alleges, whether considered alone
or cumulatively, come close to meeting the demanding standard for a hostile work environment
claim. In particular, “even genuinely troublesome conduct” — very little, if any, of which
Mokhtar has established in this case — generally “is not sufficient when the incidents are
[isolated] and spread out over a period of years, as is the case here,” where Mokhtar alleges
various unrelated slights between 2007 and 2011.
Brantley v. Kempthorne
, No. 06-1137, 2008
WL 2073913, at *8 (D.D.C. May 13, 2008);
see also Akonji v. Unity Healthcare, Inc.
, 517 F.
Supp. 2d 83, 97-99 (D.D.C. 2007) (granting summary judgment for employer despite five
incidents of sexual harassment over two-year period, including physical acts such as unconsented
touching of the plaintiff). Instead, the events about which Mokhtar complains merely are “the
ordinary tribulations of the workplace” and not the type of pervasive or “extreme” conduct that
creates a hostile work environment.
Faragher
,
In fact, these events are hardly indicative of workplace discrimination to begin with, let
alone evidence of “a work environment that was pervaded by discrimination,” as is required to
sustain a claim.
Singh v. U.S. House of Reps., Comm. on Ways & Means
,
* * *
In conclusion, the Court finds that Mokhtar failed to exhaust many of the allegations in her complaint before filing this lawsuit, and those remaining claims that she did exhaust fail on the merits either because the Department offers unrebutted non-discriminatory reasons for its decisions or because Mokhtar does not provide competent evidence to establish the necessary prima facie elements for her claims. As such, at the end of the day, none of Mokhtar’s claims survive the Department’s motion for summary judgment.
V. CONCLUSION
For the foregoing reasons, the Court grants the Department’s motion for summary judgment. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: March 13, 2015 RUDOLPH CONTRERAS
United States District Judge
Notes
[1] Although Mokhtar filed her lawsuit pro se , she received assistance from an attorney in preparing her opposition to the Department’s motion for summary judgment. Pl.’s Mem. Opp’n Mot. Summ. J., ECF No. 100, at 1 n.1. The attorney’s representation was limited to providing editorial advice in regard to the opposition brief, and Mokhtar retained control over the final document. The attorney does not otherwise represent Mokhtar and will not enter an appearance in this case on her behalf, and the Court therefore will continue to treat Mokhtar as a pro se litigant.
[2] Mokhtar also alleges that she was not selected for a volunteer position at a passport office in 2007, see Compl., ECF No. 1 at 5, but the Court finds no evidence of this in the record.
[3] Mokhtar’s complaint named several Department employees as defendants, but on September 23, 2014, the Court granted the Department’s motion to dismiss all defendants other than the Secretary of the Department, as only the head of the Department is the appropriate defendant in Title VII and ADEA actions. Mem. & Order, ECF No. 95.
[4] As an initial evidentiary matter, Mokhtar attaches to her opposition brief several
affidavits from apparent co-workers in an attempt to buttress her claims, but these affidavits are
so conclusory and lacking in factual specificity that they cannot create genuine disputes of
material fact at summary judgment.
See, e.g.
,
Meijer v. Biovail Corp.
,
[5] An alternative path to the federal courthouse exists under the ADEA.
Specifically, a federal employee may bring the claim directly to federal court if she gives the
EEOC written notice of the intent to sue within 180 days of the allegedly discriminatory act and
then waits at least thirty days to file the action. 29 U.S.C. § 633a(d);
Wiggins v. Powell
, No.
CIV.A.02-1774,
[6] There is some uncertainty about whether Mokhtar was asserting a discrete-act claim based on age discrimination and reprisal as to the module project, or whether the project was one act constituting a hostile work environment claim, or both. This confusion arises in part because the agency agreed to investigate a hostile work environment charge “characterized by … false accusations,” ROI Excerpts, ECF No. 87-3, Ex. A at 16, and Mokhtar’s EEO investigative affidavit seems to treat the module project as one example of “false accusations.” See id . at 28. At the same time, however, Mokhtar’s EEO complaint plainly refers to the module project in the same vein as her description of the “Not Successful” ratings, which the agency accepted as a discrete-act claim for age discrimination and reprisal, as well as part of a hostile work
[8] At least two other district courts have taken a similar approach.
Sellers v.
U.S. Dep’t of Defense
, No. C.A. 07-418S,
[9] Importantly, the acceptance-of-claims letter here is fundamentally different than a
letter before or after the investigation that explicitly dismisses a part of the EEO complaint for
failure to state a claim. 29 C.F.R. § 1614.107(a)(1) (mandating agency dismissal for failure
to state a claim). In the partial dismissal scenario, the agency has “identif[ied] [the claim] in the
charge, consider[ed] the elements of the claim, and determine[d] whether the charge has alleged
each of the elements.”
Dick v. Holder
, No. CV 13-1060 (RC),
[10] The Department’s acceptance-of-claims letter stated: “[I]t is essential for you to notify this office in writing within 5 calendar days from receipt of this letter if you believe this statement does not correctly identify the circumstance surrounding your complaint for discrimination.” ROI Excerpts, ECF No. 87-3, Ex. A at 16-17.
[11] A closer look at the administrative process in this case reveals that Mokhtar did participate in the actual investigation. Of note, Mokhtar submitted a lengthy “EEO Investigative Affidavit” on October 13, 2011, in which she elaborated on her discrimination, reprisal, and hostile work environment claims. ROI Excerpts, ECF No. 87-3, Ex. A at 23-33. Mokhtar’s affidavit also explicitly discussed the module project as part of her claim against the Department. See id . at 28 (“[Dr. Bernhardt] would not allow me to complete my filmed project…”); id . (stating that she should have received a higher performance rating due to her work “writing and filming a consular module”).
[12] By finding that the agency was “unreasonable” in omitting the claim, the Court does not mean to imply that the agency acted intentionally to thwart Mokhtar’s efforts to seek redress; rather, the Court simply notes that unlike in Dick — where the agency reasonably overlooked a letter that was included in the same package as the EEO complaint but that was not mentioned in, nor incorporated by reference into, the complaint — the agency here presents no such attenuating circumstances that might justify its omission.
[13] The Court notes that although the non-exhausted allegations are not considered discrete claims, some of the allegations still bear on the discrete claims that Mokhtar did exhaust ( e . g ., Mokhtar’s allegations that she was forced to sign a document saying she would get recertified or that CTT employees were persuaded to prevent her from getting recertified are relevant to her discrete “Not Successful” performance ratings claim).
[14] Mokhtar’s hostile work environment claim is addressed in Part IV.C., infra .
[15]
Brady
does not expressly address age discrimination claims, but courts in this
Circuit regularly have extended
Brady
’s methodology to claims under the ADEA.
See, e.g.
,
Baloch v. Kempthorne
,
[16]
Wilson v. LaHood
,
[17] More specifically, the Department does not assert a non-discriminatory reason
argument for cancelling the project in its motion for summary judgment, but it does offer such
analysis in its reply brief. Def.’s Reply Supp. Mot. Summ. J., ECF No. 102, at 16-17. The
Court, however, will ignore the Department’s argument because it was not raised in the original
brief and a movant cannot use its reply brief to expand the scope of a summary judgment motion.
See McBride v. Merrell Dow & Pharm.
,
[18] In its motion for summary judgment, the Department asserts generalized arguments regarding the “qualified for the position” element and the “disadvantaged in favor of a younger person” element, but the Department’s analyses do not focus on the module project in particular. The Court therefore only discusses the Department’s more developed argument as to the “adverse employment action” element.
[19] A comparison with the facts in
Holcomb v. Powell
,
[20] Because the Department fails to make a non-discriminatory justification argument in its motion for summary judgment, the Court again follows McDonnell Douglas here.
[21] Mokhtar also testified that Dr. Bernhardt retaliated against her because he was jealous of her professional accomplishments and activities, but even if true, there is no suggestion that Mokhtar’s professional accomplishments or activities amounted to “protected activity” for purposes of Title VII or the ADEA. See, e.g. , Mokhtar Depo. ECF No. 87-4, Ex. B at 173:4-174:11, 179:15-20, 181:19-182:18. The same holds true for Mokhtar’s testimony that she was retaliated against for applying to other jobs within the Department. See id . at 180:14-21. In addition, Mokhtar appears to suggest that the module project was cancelled in retaliation for her filing the March 2, 2011, EEO complaint, see ROI Excerpts, ECF No. 87-3, Ex. A at 25, but the project was cancelled before the EEO complaint was filed, and in fact, the cancellation claim
[22] Cases in this Circuit consistently have found a lack of causal connection when a
year or more has passed between the protected activity and the alleged adverse action; the
twelve-year gap here is, of course, significantly more attenuated than even those scenarios.
See,
e.g.
,
Manuel v. Potter
,
[24] During the administrative process, the Department accepted for investigation a hostile work environment claim “characterized by, but not limited to, false accusations,” though there was confusion about what those “false accusations” were. ROI Excerpts, ECF No. 87- 3, Ex A at 16; Final Agency Decision, ECF No. 87-8, Ex. F at 4. Nonetheless, the Department does not raise an exhaustion defense as to the scope of the hostile work environment claim.
[25] Alternatively, Mokhtar’s opposition brief ignores the Department’s arguments for
summary judgment on the hostile work environment claims, and Mokhtar therefore concedes the
issues.
See, e.g.
,
Burke
,