Sierra v. Mao ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARTHA-LUCIA SIERRA, :
:
Plaintiff, : Civil Action No.: 16-1804 (RC)
:
v. : Re Document No.: 24
:
CARLA HAYDEN, 1 in her official capacity as
Librarian of Congress, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
On September 9, 2016, Library of Congress (“LOC”) employee Martha-Lucia Sierra
brought this employment discrimination action against Carla Hayden in her official capacity as
Librarian of Congress. Ms. Sierra alleged discriminatory non-promotions beginning in 2008,
Compl. ¶¶ 37–41, ECF No. 1, and from 2014 to 2016, id. ¶¶ 42–45. She additionally contended
that her supervisor’s “unwelcome harassment . . . because of her race (Hispanic), national origin
(Colombian), and/or sex (female)” created a hostile work environment. Id. ¶ 33. Defendant
moved to dismiss both Plaintiff’s 2008 to 2012 and 2014 to 2016 non-promotion claims. See
generally Def.’s Partial Mot. Dismiss, ECF No. 4. On June 1, 2017, this Court granted
Defendant’s motion, finding that Ms. Sierra had failed to timely administratively exhaust both
her 2008 to 2012 complaints and her failure-to-promote claims from 2014 to 2016 with the LOC.
1
Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Carla Hayden
for David Mao as Defendant.
See Sierra v. Hayden, 254 F. Supp. 3d 230, 233 (D.D.C. 2017). Because Defendant had not
moved to dismiss the 2013 non-promotion, this Court declined to move sua sponte to dismiss
that claim. Id. at 243. The Court noted, however, that Ms. Sierra’s 2013 non-promotion claim
was “likely dismissible because she did not seek out a promotion” in that year. Id.
After completing discovery, Defendant brought a Rule 12(b)(6) motion to dismiss Ms.
Sierra’s remaining 2013 non-promotion claim and a motion for summary judgment on her hostile
work environment claim. Def.’s Mot. Dismiss and Mot. Summary J. (“Def.’s Mot.”), ECF No.
24. Because this Court finds that Plaintiff has not established a plausible 2013 non-promotion
claim, that claim is dismissed. In addition, the Court will grant in part and deny in part
Defendant’s motion for summary judgment.
II. REGULATORY AND PROCEDURAL BACKGROUND
Title VII of the Civil Rights Act of 1964 protects employees of the Library of Congress,
providing that “[a]ll personnel actions affecting [LOC] employees or applicants for employment
. . . shall be made free from any discrimination based on race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-16(a). A party must fulfill several administrative prerequisites
before she may file a Title VII lawsuit in a federal district court. See Brown v. GSA, 425 U.S.
820, 832 (1976). As detailed in this Court’s June 1, 2017 Memorandum Opinion, the specific
regulations that apply to the LOC differ from many other federal agencies. See 29 C.F.R. §
1614.103(d)(3). Under Title VII, the Librarian of Congress is to exercise Equal Opportunity
Employment Commission authority over the LOC, see 42 U.S.C. § 2000e–16(b), which the
Librarian has done via LOC regulations, see LCR 2010-3.1 § 1, ECF No. 4-3. The LOC
regulations require a staff member “who believes that []she has been, or is being discriminated
against” to “notify and consult with a Counselor not later than 20 workdays after the date of the
2
alleged discriminatory matter.” Id. at § 6(B). Subject to a limited number of exceptions, this
requirement must be satisfied before a plaintiff may file a lawsuit in federal district court. Id. at
§ 4(B); see also Nichols v. Billington, 402 F. Supp. 2d 48, 69 (D.D.C. 2005), aff’d, No. 05-5326,
2006 WL 2018044 (D.C. Cir. Mar. 7, 2006).
Here, Plaintiff filed several administrative complaints related to her non-promotion
claims. The Court has already determined that Plaintiff’s employment discrimination complaints
for non-promotions before 2012 “did not adhere to the black letter of the library regulations.”
Sierra, 254 F. Supp. 3d at 239. Because she did not timely file within the LOC regulations’
twenty workday requirement and because she also did not make a request for an extension of the
deadline upon prior request, see LCR 2000–3.1 § 4(B), Ms. Sierra missed the regulatory
deadline. See id. The Court thus concluded that Ms. Sierra did not timely exhaust her pre-2012
administrative claims, that the LOC did not waive its non-exhaustion defense, and that Ms.
Sierra failed to demonstrate that she was entitled to equitable tolling on her claims for the years
2008 through 2012. See id. at 239–43. The Court also considered Plaintiff’s failure-to-promote
claims that occurred from 2014 to 2016. See id. at 243–44. Finding that Ms. Sierra did not
timely exhaust her 2014, 2015, and 2016 administrative claims of alleged non-promotion, it
granted Defendant’s partial motion to dismiss these claims. Id. at 244. Finally, the Court
considered Ms. Sierra’s claim for discriminatory non-promotion in 2013. Id. at 244–45.
Because Defendant did not move to dismiss Plaintiff’s 2013 non-promotion claim or brief the
issue, the Court declined to dismiss the claim sua sponte under Rule 12(b)(6). Id. at 245. The
Court noted, however, that the claim was likely dismissible because Plaintiff did not seek out a
promotion in 2013. Id.
3
On December 10, 2018, Defendant filed a second motion to dismiss addressing the 2013
non-promotion claim. See generally Def.’s Mot. In this same filing, Defendants moved for
summary judgment on Plaintiff’s hostile work environment claim. See id. These motions are
now ripe for the Court’s consideration.
III. FACTUAL BACKGROUND 2
Because this Court has already dismissed all of Plaintiff’s claims other than Ms. Sierra’s
2013 discriminatory non-promotion claim and hostile work environment claim, see Sierra, 254
F. Supp. 3d at 235 (discussing discriminatory and retaliatory refusal to promote as well as “other
discriminatory actions”), the instant description of the facts will focus on, first, the employee-
supervisor relationship in the year 2013, and second, details from the record that are relevant for
Plaintiff’s discriminatory hostile work environment claim.
Ms. Sierra worked as a contractor at LOC from 1993 to 1996, Pl.’s Opp’n Def.’s Mot.
(“Pl’s Opp’n”) 2–3, ECF No. 27, and was then hired as a Paper Conservator for the LOC’s
Conservation Office in April 1996, Def.’s Mot. 2; Pl.’s Opp’n 3. 3 In 2007, Plaintiff applied for a
career ladder GS-13/14 management analyst position in the LOC’s Strategic Planning Office
2
In general, a court will not accept facts from a defendant’s filings in a motion to dismiss
at the pleading stage. See Angelex Ltd. v. United States, 123 F. Supp. 3d 66, 88 n.11 (D.D.C.
2015). At the motion for summary judgment stage, however, a court may look beyond the
complaint. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting Fed. R. Civ.
P. 56(c)). Because the pending motion includes both a motion to dismiss and a motion for
summary judgment, the Court’s reporting of facts incorporates facts from beyond the four
corners of the complaint. However, in deciding Defendant’s motion to dismiss, it considers only
facts from Plaintiff’s complaint or “documents upon which the plaintiff’s complaint necessarily
relies.” Angelex Ltd., 123 F. Supp. 3d at 88 n.11.
3
The Court cites to original pagination when it is available. For documents that were not
originally paginated, the Court cites to the ECF page numbers. Because the parties did not
consistently label their exhibits, the Court refers to them using the ECF numbers.
4
(“SPO”). Compl. ¶ 11. She was selected for the management analyst position after an interview
by Karen Lloyd, who became Ms. Sierra’s immediate supervisor from May 2007 to July 2015.
See Pl.’s Opp’n 3; Def.’s Statement Material Facts (“Def.’s SMF”), ECF No. 24-1 ¶¶ 4, 6. Ms.
Sierra was hired into this position at the GS-13 level. Def.’s SMF ¶ 4. As a “career ladder
position” employee, Ms. Sierra was eligible for non-competitive promotion to the GS-14 if she
demonstrated an ability to perform at that level. Id. ¶ 12; see also Pl.’s Opp’n 4–5 (“[I]n order to
move up in a career ladder position, ‘an individual must demonstrate that they are performing
satisfactorily at the next higher grade level for a period of three (3) months.’” (quoting Def.’s
Resps. Pl.’s Interrogs. 5, ECF No. 27-7)). Ms. Sierra has not been promoted to the GS-14 level
since she was hired into the management analyst position in 2007. Pl.’s Opp’n 3 (citing Compl.
¶ 11).
Ms. Sierra’s complaint alleges discrimination based on race (Hispanic), sex (female), and
national origin (Colombian). Compl. ¶ 1. Because Plaintiff alleges discriminatory conduct over
a period of time, as opposed to making a claim derived from one or more discrete acts, the Court
will summarize several categories of issues that Ms. Sierra describes: shifting work performance
standards; presentations and meetings; interactions within the office and at external events; and
one-on-one conversations with Ms. Lloyd.
A. Shifting Work Performance Standards
According to Ms. Sierra, her performance was continually found inadequate, even when
she “rose to the challenge[s]” that Ms. Lloyd laid out for her. Pl.’s Opp’n 5. First, in Plaintiff’s
2008–2009 performance evaluation, Ms. Sierra was told that she needed to “take the Internal
Control Program (“ICP”) out of the Library” to be ready for her GS-14 promotion. Id. at 4
(citing Sierra Aff. 4, ECF No. 27-8). But even when Ms. Sierra performed this task and was
5
invited to participate at the 2016 Association of Government Accountants (“AGA”) Fraud and
Internal Controls National Meeting, Plaintiff asserts that Ms. Lloyd did not recognize her
accomplishment. Id. at 5–6. Instead, according to Plaintiff, Ms. Lloyd “took the project
leadership role away” and told Ms. Sierra not to contact the AGA. Id. at 6 (citing Sierra Aff. 4).
Ms. Lloyd contests this allegation, averring that she did not strip Ms. Sierra of any leadership
role. Id. at 6 (citing Lloyd Dep. 125:22–126:9, ECF No. 27-4).
In 2010, when Plaintiff again asked about a possible promotion based on her work with
the ICP, Ms. Lloyd allegedly characterized Ms. Sierra’s work as “fine” but told her that she was
not ready for a promotion because she lacked supervisory skills. Id. at 11 (citing Sierra Dep. 89,
ECF No. 27-3). Again, Ms. Lloyd disputes this account and states that she “could not have said
this because” of her knowledge that the position is non-supervisory. Lloyd Aff. 7, ECF No. 27-
6. Ms. Sierra offers that she worked to redress this issue in two ways. First, she enrolled in
“Management Concepts,” a professional training resource for the ICP, to gain supervisory
training. Pl.’s Opp’n 12. Second, she began managing a LOC intern and met weekly with Ms.
Lloyd “to discuss her task as a supervisor.” Id. (citing Sierra Aff. 6). According to Ms. Sierra,
Ms. Lloyd abruptly fired the intern before the end of the intern’s assignment term and told
Plaintiff that she lacked supervisory skills. Id. (citing Sierra Dep. 92; Sierra Aff. 7). According
to Ms. Lloyd, it was Ms. Sierra who suggested that she fire the intern. Lloyd Aff. 8. There is no
evidence of further discussion of supervisory skills development or of the importance of such
skills for promotion.
The next year (2011), at her annual performance evaluation, Ms. Sierra states that she
was informed for the first time that her writing skills were deficient. Pl.’s Opp’n 12 (citing
Sierra Dep. 100; Lloyd Dep. 119:5–6); see also Def.’s SMF ¶ 17 (citing Compl. ¶¶ 16, 25(b)).
6
According to Ms. Sierra, Ms. Lloyd’s critique of her writing “perplexed” her because coworkers
generally complimented her work. Pl.’s Opp’n 12–14 (citing Morse Dep. 57:3–9, 57:10–15,
ECF No. 9). Ms. Walfall, a coworker, affirms that Ms. Sierra’s work was “usually well-written”
and did not require any more editing than that of her coworkers. Walfall Aff. 3, ECF No. 27-14.
Ms. Morse, a coworker who reviewed Plaintiff’s work under the office’s peer review system,
found Ms. Sierra’s writing to be grammatically sound and “fine, though perhaps a bit verbose.”
Pl.’s Opp’n 13 n.12; see also Morse Dep. 55:19–57:9. Mr. Lambert, a third coworker, suggests
that there were more issues with Ms. Sierra’s writing, stating that she has “some messaging
challenges with what message is being communicated to who[m].” Lambert Dep. 22:15–17,
ECF 31-4. 4
Ms. Sierra ultimately enrolled in writing courses after Ms. Lloyd requested that she “take
‘writing courses’ or ‘English courses’” through the LOC online training portal, Def.’s Mot. 13
(quoting Compl. ¶ 16, 25(b); Sierra Dep. 105:20–106:8), because her writing was “not clear and
concise” and required multiple rounds of edits, id. (quoting Lloyd Dep. 61:8–10, 80:7–10). Ms.
Sierra characterizes many of these edits as “stylistic,” citing examples such as replacing the
phrase “Good day” with “Dear Internal Control Program Accountable Officials.” Pl.’s Opp’n 13
& n.11. Nonetheless, Ms. Sierra completed five or six online classes concerning English, in the
sense of effective writing skills and not in the sense of learning to speak the language. Sierra
Dep. 107:7–25, 109:14–17, ECF No. 24-3. She completed these courses in addition to her
4
The full Lambert Deposition was inadvertently not attached to the motion for summary
judgment that Defendant uploaded to the Court’s Electronic Filing System. Instead, it was
subsequently attached to Defendant’s Reply. See Def.’s Reply 1 n.2, ECF No. 31. Although the
Court will not consider arguments or claims raised for the first time in a reply, see In re Asemani,
455 F.3d 296, 300 (D.C. Cir. 2006), because the Lambert Deposition’s missing pages include no
new arguments or claims, it will consider Mr. Lambert’s full testimony.
7
regular workload, although Ms. Sierra was permitted to take these courses at her desk during
work hours and does not appear to have been expected to complete them on her own time. See
id. at 109–11.
B. Presentations and Meetings
Several incidents occurred at LOC presentations and meetings. The earliest reported
incident occurred on September 15, 2009, when Plaintiff was practicing for a presentation the
next day at the Association of Government Accountants’ Internal Control Program/Fraud
Conference. Def.’s Mot. 10 (citing Sierra Dep. 38:4-44:7, ECF No. 24-4); see also Pl.’s Opp’n
7. According to Plaintiff, Ms. Sierra had invited several colleagues to help her polish her
presentation. Pl.’s Opp’n 6–7 (citing Sierra Dep. 43–44; Sierra Aff. 4–5). Plaintiff avers that
Ms. Lloyd was late to the rehearsal, “which was ‘disruptive,’” and then, upon her arrival,
frequently interrupted Ms. Sierra’s presentation and critiqued it as “incoherent.” Def.’s Mot. 10
(quoting Sierra Dep. 44:8–17); see also Pl.’s Opp’n 6–8. At this same rehearsal, Ms. Lloyd is
alleged to have mocked Ms. Sierra’s accent with the comment, “you’re talking like wa wa wa.”
Def.’s Mot. 10 (quoting Sierra Dep. 44:21); see also Pl.’s Opp’n 7. Plaintiff additionally proffers
that these comments were made “with disgust in her [Ms. Lloyd’s] face.” Pl.’s Opp’n 7 (citing
Sierra Dep. 44). An employee at the LOC Office of Opportunity, Inclusiveness, and
Compliance, Ida Hernandez, corroborates Ms. Sierra’s account. Ms. Hernandez attended Ms.
Sierra’s rehearsal at Plaintiff’s personal invitation and states that Ms. Lloyd was “harshly
criticizing Plaintiff’s presentation” and “aggressively harass[ing] Plaintiff by interrupting and
bombarding Plaintiff with criticism while she was practicing.” Id. at 8 (quoting Hernandez Aff.
3, ECF No. 27-12). In addition, Ms. Sierra avers that, during multiple other presentations and
meetings, Ms. Lloyd asked others in the room if they understood what Plaintiff was saying.
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Def.’s Mot. 11; Pl.’s Opp’n 18. Ms. Sierra specifically points to her October 2012 presentation
during a LOC class as a time when Ms. Lloyd frequently interrupted Ms. Sierra and questioned
whether the class understood her. Pl.’s Opp’n 17 (citing Lloyd Aff. 8), 38.
Two coworkers in the LOC’s Office of Strategic Initiatives (“OSI”) sustain Ms. Sierra’s
account. According to Carolyn Claypoole, who is not supervised by Ms. Lloyd and who serves
as an internal control program coordinator for OSI, Claypoole Aff. Addendum 4, ECF No. 27-
15, Ms. Lloyd “continually” interrupted Ms. Sierra at Internal Control Program (“ICP”) meetings
in 2010 and 2012, id. at 3. Ms. Claypoole labels Ms. Lloyd’s interruptions of Ms. Sierra’s
presentations as “blatantly racist.” Pl.’s Opp’n 37 (quoting Claypoole Aff. 4). Ms. Sierra also
specifically underscores December 2, 2010, March 7, 2012, June 6, 2012, and August 8, 2012, as
“a few dates where Ms. Lloyd interrupted Ms. Sierra in the ICP meetings.” Id. at 37 n.22.
Beyond these dates, the record does not indicate what proportion of the monthly ICP meetings
involved such interruptions. Ms. Morse separately concurs with Plaintiff’s account that, on
multiple occasions, Ms. Lloyd asked Ms. Sierra to repeat herself during staff meetings in ways
that Ms. Morse did not find necessary. Morse Dep. 53:14–55:4. Furthermore, Ms. Claypoole
and Plaintiff each contend that Ms. Lloyd never similarly interrupted white, male employees
whom she supervised. See Pl.’s Opp’n 37; see also id. at 9 (citing Hernandez Aff. 7; Page Aff.
3, ECF 27-13). However, Tom Lambert, a third supervisee of Ms. Lloyd, avers that Ms. Lloyd
critiqued the presentations of all her staff. See Lambert Aff., ECF No. 24-13 (“Karen Lloyd . . .
regularly attended presentations given by her staff members, including me, took notes on those
presentations, and provided the presenters with critiques and criticisms.”).
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C. Interactions Within the Office and at External Events
Ms. Sierra also describes a number of more specific interactions with Ms. Lloyd that took
place both in the office and at external events. She contends that Ms. Lloyd tended to at times
“unnecessarily separate[] Plaintiff from some groups, and other times unnecessarily lumped her
in with other groups,” Pl.’s Opp’n 15 (citing Sierra Dep. 117), and “took many actions to subtly
and overtly humiliate Ms. Sierra,” id. at 43.
First, Plaintiff states that Ms. Lloyd disfavored Ms. Sierra and did not appoint Ms. Sierra
to be her subordinate in charge when Ms. Lloyd was away from the office unless Plaintiff “was
the only one available.” Id. at 16 (citing Lloyd Dep. 84); see also Walfall Aff. 5, ECF No. 27–
14 (stating that Ms. Walfall could not recall Ms. Sierra ever acting on Ms. Lloyd’s behalf and
noting that Ms. Walfall was only asked to act on Ms. Lloyd’s behalf “if the following conditions
were met: (1) [Ms. Sierra] was the only one in the office other than me [and] (2) I was the only
person in the office”). Ms. Lloyd contends, however, that she did not select Plaintiff to supervise
in her absence because Ms. Sierra’s position in the ICP tended to receive fewer questions than
other areas of the office, and so Ms. Sierra’s area of expertise was less germane. Def.’s Mot. 16–
17; see also Letter Re Decision of the Office of Opportunity, Inclusiveness and Compliance 7–8,
ECF No. 24-10 (citing Ms. Lloyd’s explanation that she “put the individual in charge who has
the most experience with regard to the areas in which issues or questions are expected to come
up and will need to be resolved”).
Second, Ms. Sierra argues that Ms. Lloyd treated her differently from other employees
because Ms. Lloyd did not approve a detail opportunity for Ms. Sierra to work at an office
outside of the LOC. During Ms. Lloyd’s tenure as Ms. Sierra’s supervisor, other employees
whom Ms. Lloyd supervised went on details. See Def.’s SMF ¶ 17 (citing Compl. ¶ 25(a)).
10
According to Ms. Sierra, she first requested a detail during her 2013 performance review, but
Ms. Lloyd was unsupportive of her detail request during her remaining two years supervising
Ms. Sierra. Def.’s Mot. 16. Although Ms. Lloyd “never explicitly told Plaintiff [that] she
refused to allow [Ms. Sierra] to be detailed for an assignment, she continuously ‘pushed back’
the prospective detail under the guise of Plaintiff having ‘a lot of work.’” Pl.’s Opp’n 20
(quoting Sierra Dep. 148). In addition, Ms. Sierra avers that Ms. Lloyd actively provided detail
opportunities for a white, male coworker, Mr. Lambert, id. at 21 (citing Lambert Dep. 25:18–
26:1), whereas Ms. Lloyd advised Plaintiff that she needed to locate her own “developmental
assignment,” id. at 20 (quoting Def.’s Resp. Pl.’s Interrogs. 8). Although Ms. Lloyd disputes this
account and states that Mr. Lambert located his own detail, see Lloyd Dep. 88:7–90:8, Mr.
Lambert’s own testimony supports Ms. Sierra’s account, see Lambert Dep. 25:20–26:8, ECF No.
27-25 (stating that he never sought a detail opportunity and that Ms. Lloyd approached him about
a “developmental” detail).
Plaintiff also proffers that Ms. Lloyd’s communications and protocols within SPO
represent Defendant’s differential treatment of Ms. Sierra as compared to Ms. Lloyd’s other
supervisees. Ms. Sierra notes Ms. Lloyd’s failure to include her on two SPO internal emails, one
a notice that Ms. Lloyd was ill on November 25, 2013, and the other an email regarding the
death of a coworker’s mother on December 5, 2013. Def.’s Mot. 18. Plaintiff avers that these
omissions represent an attempt to exclude Ms. Sierra from office communications. Pl.’s Opp’n
42–43. Defendant proffers a non-discriminatory explanation for both omissions. Ms. Lloyd
contends that she did not include Plaintiff on the November 25, 2013, email because it “had
nothing to do with the content of the internal control program that Sierra was responsible for,”
Def.’s Mot. 18 (citing Lloyd Dep. 86:15–17; Def.’s Suppl. Interrog Resp. 7-9-18, ECF 24-17),
11
and that her failure to include Ms. Sierra on the December 5, 2013, email was inadvertent, id.
(citing Def.’s Suppl. Interrog. Resp. 7-9-18).
Ms. Sierra additionally suggests that Ms. Lloyd treated her differently by restricting her
communications with Chief Financial Officer Jeff Page. In approximately March 2010, Ms.
Lloyd began “pre-screening” all communications between Ms. Sierra and Mr. Page. Def.’s Mot.
12; see also Pl.’s Opp’n 39. According to Plaintiff’s deposition, this restriction did not affect
Ms. Sierra’s ability to complete her work duties. See Def.’s Mot. 12 (citing Sierra Dep. 76:2–8).
However, it did not apply to any of Ms. Lloyd’s other supervisees, male or female. Pl.’s Opp’n
39; see also Def.’s Mot. 12 (citing Sierra Dep. 75:21–23). Ms. Lloyd states that she expects all
her supervisees to brief her or her representative before going to the CFO and that she expects all
staff to inform her should the CFO contact them directly. Lloyd Aff. 14. Nothing in the record
specifically explains why Ms. Lloyd restricted Ms. Sierra’s communications in this manner.
Finally, Ms. Sierra points to Ms. Lloyd’s comments and conduct towards her in group
settings. Plaintiff highlights two incidents. First, at an unidentified time, Plaintiff alleges that
Ms. Lloyd compared a sweater that Ms. Sierra was wearing to the LOC’s carpet. See Def.’s Mot.
20 (quoting Sierra Dep. 78:15–16). Plaintiff argues that this comment was “meant to embarrass
her (Sierra) because ‘everybody knew that nobody liked the carpet.’” Id. (quoting Sierra Dep.
78:11). She contends, moreover, that Ms. Lloyd was judgmental about her clothing on multiple
occasions and would look at “Plaintiff’s attire from top to bottom in a judgmental fashion” when
Ms. Sierra arrived at the office each morning. Pl.’s Opp’n 14 (quoting Sierra Dep. 79). Second,
in 2011, Ms. Lloyd and Ms. Sierra were attending an internal control conference together and
conversing with other attendees during a break in proceedings. Pl.’s Opp’n 43. In the presence
of this group, Plaintiff alleges that Ms. Lloyd did not permit Ms. Sierra to excuse herself to use
12
the restroom, saying in front of the other attendees, “[n]o, you go to the ladies’ room after the
session is over, and you go to the second floor” restroom, which was not the facility used by
others at the conference. Id. (quoting Sierra Dep. 83).
D. One-on-One Communications
In addition, Ms. Sierra describes a series of one-on-one interactions with Ms. Lloyd as
further support for her discriminatory hostile work environment claim.
1. Private Communications
Ms. Sierra contends that Ms. Lloyd subjected her to offensive comments in private
conversations between them. In 2010, after Ms. Sierra was asked to assist with a teleconference
involving the American Embassy in Mexico, Ms. Lloyd allegedly became angry that Ms. Sierra’s
help had been requested and called her a “traitor,” Pl.’s Opp’n 9 (citing Sierra Dep. 63–66; Sierra
Aff. 12; Walfall Aff. 3), warning her that she should “tell [her] friends not to give [Plaintiff’s]
name for any other projects,” id. at 10 (citing Sierra Dep. 70; Sierra Aff. 12). Plaintiff alleges
that Ms. Lloyd’s lack of support forced her to turn down the opportunity. See id. at 9. Ms.
Lloyd denies any recollection of this incident. Id. at 10 (citing Def.’s Resp. Pl.’s Interrogs. 9;
Lloyd Dep. 130:15–131:4). Approximately one month later, Ms. Sierra avers that Ms. Lloyd
again raised the incident and compared Plaintiff to Jerry Sandusky, a notorious child molester,
during her performance evaluation, which Ms. Lloyd similarly denies. Id. (citing Sierra Dep.
73–74; Sierra Aff. 17; Lloyd Dep. 131:5–131:21). And on November 18, 2011, Ms. Sierra
alleges that Ms. Lloyd chastised her for going to talk to Mr. Page and referred to her as a
“betrayer” for her conduct. Pl.’s Opp’n 40 (citing Sierra Aff. 8). Plaintiff further contends that,
during this same conversation, Ms. Lloyd invoked matrilineal concepts in a way that was
offensive and disrespectful of her culture. See id.; Def.’s Mot. 20.
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In addition, Ms. Sierra argues that the interaction centering on the event with the
American Embassy in Mexico is part of a pattern: Ms. Lloyd “seemed to specifically disdain
when Ms. Sierra would participate in events involving other Latin American countries.” Pl.’s
Opp’n 40. For instance, when Ms. Sierra asked to participate in the LOC’s 2013 “Celebration of
Mexico” event, she argues that Ms. Lloyd suddenly required her to complete a “non-urgent
assignment,” such that Plaintiff could only attend during her lunch break. Id. at 41; see also
Compl. ¶ 25(i). Defendant contests this reporting, asserting that the task in question was the
preparation of the Internal Control Program Annual Report, which was a major part of Ms.
Sierra’s professional duties each year. Def.’s Mot. 14 (citing Sierra Dep. 160:8, Lloyd Aff. ¶
18). Ms. Lloyd further proffers that she was in fact quite supportive of Ms. Sierra’s participation
in the event. See id. at 15 (quoting Nov. 23, 2018 Email from Lloyd, ECF No. 31-1 (“Thank you
for selecting Martha-Lucia to join your team as the Library celebrates Mexico. I am certain she
will add value to the program.”)).
2. Staff Communications
Finally, Plaintiff argues that Ms. Lloyd’s ongoing interactions with her staff contributed
to a hostile work environment. For instance, Plaintiff argues that Ms. Lloyd “frequently showed
favoritism towards the other members of the office, particularly the two white males,” as was the
case when she “arbitrarily changed” Plaintiff’s May 23, 2011, meeting to an earlier time in favor
of one of the white male employees. Pl.’s Opp’n 42. Ms. Lloyd’s supervisor, Jeff Page,
confirms this account, stating that he “found that Ms. Lloyd was often more critical of the
[Plaintiff] than of other members of Ms. Lloyd’s staff. . . . [and] [m]ale employees generally
seemed to be treated with more respect than the women who were supervised by Ms. Lloyd.”
Page Aff. 3. Ms. Sierra’s coworker, Ms. Walfall, also separately alleged that Ms. Lloyd was
14
creating a hostile work environment, as documented in an email chain between Mr. Page and
April McCarty, the LOC’s Senior Employee Relations Specialist. Pl.’s Opp’n 20 (citing Jan. 2,
2019 Email from McCarty, ECF No. 27-17). This environment was so stressful that “it
overwhelmed Plaintiff, to the point where Plaintiff fainted while at work.” Id. at 15 (citing
Morse Dep. 85:16–87:2).
The question facing this Court is whether the incidents that Ms. Sierra documents amount
to a cognizable claim for, first, discriminatory and retaliatory non-promotion in 2013 and,
second, a discriminatory hostile work environment.
IV. LEGAL STANDARD
A. Rule 12 Motion
Defendant brings a Rule 12 motion that was originally styled as a Rule 12(b)(6) motion
to dismiss Plaintiff’s 2013 non-promotion claim. 5 This Court will first address why it treats this
motion as a Rule 12(b)(6) motion and then describe the controlling legal standard.
1. Second Rule 12(b)(6) Motion
The plain text of the Federal Rules of Civil Procedure might seem to disallow a second
Rule 12(b)(6) motion. Rule 12(g)(2) states that “a party that makes a motion under . . . [R]ule
[12] must not make another motion under this rule raising a defense or objection that was
5
Defendant originally filed its motion as a second Rule 12(b)(6) motion to dismiss. See
generally Def.’s Mot. Defendant’s reply subsequently “acknowledge[d] that its dispositive
motion, while inadvertently styled under Rule 12(b)(6), should have been brought under Rule
12(c)” as a motion for judgment on the pleadings. Def.’s Opp’n 1 n.1. This Court disagrees that
the dispositive motion is properly construed as a Rule 12(c) motion. Because Defendant has not
filed an answer, the pleadings are not closed. See Maniaci v. Georgetown Univ., 510 F. Supp. 2d
50, 60 (D.D.C. 2007) (“Pleadings are closed within the meaning of Rule 12(c) if no counter or
cross claims are at issue when a complaint and an answer have been filed.” (citing Fed. R. Civ.
P. 7(a))). A 12(c) motion for judgment on the pleadings is thus premature. As discussed infra
Section IV.A.1, this Court concludes that it may address Defendant’s motion as a second Rule
12(b)(6) motion to dismiss.
15
available to the party but omitted from its earlier motion,” unless one of the exceptions provided
in Rule 12(h)(2) or (3) applies. Fed. R. Civ. P. 12(g)(2). Here, Defendant already brought one
12(b)(6) motion to dismiss and this Court’s June 2017 Memorandum Order found that Plaintiff’s
original complaint alleged a claim with respect to the 2013 non-promotion that is at issue here.
See Sierra, 254 F. Supp. 3d 244 n.11. Accordingly, Defendant could have brought the present
Rule 12(b)(6) motion as part of the earlier motion to dismiss. None of the Rule 12(h) exceptions
apply, moreover, because Defendant does not contest subject matter jurisdiction, the pleadings
have not yet closed, and the case is not at the trial stage. See Fed. R. Civ. P. 12(h)(2)–(3). In the
instant case, then, Rule 12 might seem to disallow a second 12(b)(6) motion.
However, “in a limited number of cases[,] the district court has exercised its discretion to
permit a second preliminary motion to present a Rule 12(b)(6) defense.” Lindsey v. United
States, 448 F. Supp. 2d 37, 55 (D.D.C. 2006) (quoting Stoffels ex rel. SBC Concession Plan v.
SBC Commc’n, Inc., 430 F. Supp. 2d 642, 647 (W.D. Tex. 2006)). A court is most likely to
permit a second such motion if “the problem [Rule] 12(g) was designed to prevent—unnecessary
delay—[is] not a concern.” Id. (alteration in original) (quoting Stoffels, 430 F. Supp. 2d at 648
(internal citation omitted)); see also Campbell–El v. District of Columbia, 881 F. Supp. 42, 43
(D.D.C. 1995) (entertaining renewed 12(b)(6) motion “in order to avoid undue delay” and noting
that Defendants were not “repeating arguments on which the Court ha[d] already substantively
ruled”); Donnelli v. Peters Sec. Co., No. 02 C 0691, 2002 WL 2003217, at *4 (N.D. Ill. Aug. 29,
2002) (permitting second Rule 12(b)(6) motion where “defendants’ motion was not filed for the
purpose of delay and . . . adjudication of the instant motion w[ould] narrow the scope of th[e]
matter, greatly expediting resolution of the case”).
16
Here, unnecessary delay is not a concern because the parties have articulated their
arguments regarding the 2013 non-promotion claim and the Court has not already ruled on this
issue. In fact, this Court expressly declined to rule on this issue in its 2017 Opinion. See Sierra,
254 F. Supp. 3d at 245. Moreover, the second motion to dismiss is being considered
simultaneously to the post-discovery motion for summary judgment. As such, there is no delay
that has resulted from seriatim motions to dismiss delaying the commencement of discovery.
And if anything, a failure to consider the instant motion could cause delay because a strict
construal of Rule 12 could still permit Defendant to file an answer, such that the pleadings would
be formally closed, and then file a new motion for judgment on the pleadings under Rule 12(c).
Furthermore, this Court’s adjudication of the 12(b)(6) motion to dismiss Plaintiff’s claim will
efficiently resolve the non-promotion issues pending in this case, regardless of the fact that an
answer has, apparently, inadvertently never been filed. Accordingly, particularly because
Plaintiff adopts the Rule 12(b)(6) language in its own opposition and has not raised any Rule
12(g) objection, this Court will treat Defendant’s Rule 12 Motion as a Rule 12(b)(6) Motion to
Dismiss.
2. Motion to Dismiss
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” in order to give the defendant fair notice of the claim and the grounds
upon which it rests. Fed. R. Civ. P. 8(a)(2); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate
likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint’s factual allegations are to be
taken as true, and the court is to construe them liberally in the plaintiff’s favor. See, e.g., United
17
States v. Philip Morris, 116 F. Supp. 2d 131, 135 (D.D.C. 2000). Notwithstanding this liberal
construal, the court deciding a Rule 12 motion must parse the complaint for “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
This plausibility requirement means that a plaintiff’s factual allegations “must be enough to raise
a right to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted).
A plaintiff’s “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” are insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678.
A court need not accept a plaintiff’s legal conclusions as true, see id., nor must a court presume
the veracity of legal conclusions that are couched as factual allegations, see Twombly, 550 U.S.
at 555.
The court ruling on a Rule 12(b)(6) motion to dismiss “may consider the facts alleged in
the complaint, documents attached as exhibits or incorporated by reference in the complaint, or
documents upon which the plaintiff’s complaint necessarily relies even if the document is
produced not by [the parties].” Busby v. Capital One, N.A., 932 F. Supp. 2d 114, 133–34
(D.D.C. 2013) (alteration in original) (internal citations and quotations omitted); see also Mpoy
v. Rhee, 758 F.3d 285, 291 n.1 (D.C. Cir. 2014) (citations omitted); Vila v. Inter–Am. Inv.,
Corp., 536 F. Supp. 2d 41, 46 n.5 (D.D.C. 2008) (citation omitted). The court may also take
“judicial notice of facts on the public record . . . when an undisputed fact on the public record
makes it clear that the plaintiff does not state a claim to relief upon which relief could be
granted.” See Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)
(quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993)).
18
B. Motion for Summary Judgment
Defendant also moves for summary judgment on Plaintiff’s hostile work environment
claims. Summary judgment is proper when “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). A “material” fact is one capable of affecting the substantive outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is
enough evidence for a reasonable finder of fact to decide in favor of the non-movant. See Scott
v. Harris, 550 U.S. 372, 380 (2007).
Summary judgment endeavors to streamline litigation by disposing of factually
unsupported claims or defenses and thereby determining whether trial is genuinely necessary.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial burden
of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-
movant must point to specific facts in the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must
“eschew making credibility determinations or weighing the evidence[,]” Czekalski v. Peters, 475
F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the
light most favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless,
conclusory assertions offered without any evidentiary support do not establish a genuine issue
for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
V. ANALYSIS
As a threshold matter, the Court will clarify which of Plaintiff’s factual allegations and
associated evidence it considers in assessing her claims. Plaintiff’s original complaint included a
19
discriminatory non-promotion claim, Compl. ¶ 41, a retaliatory non-promotion claim covering
2014 to 2016, id. at ¶¶ 43–44, and a hostile work environment claim asserting that “Ms. Sierra
has been subjected to unwelcome harassment” based on race, sex, and nationality,” id. at 33. As
discussed previously, this Court granted in part Defendant’s first 12(b)(6) motion and dismissed
the claims “related to the allegedly discriminatory and retaliatory non-promotions that occurred
from 2008 to 2012 and from 2014 to 2016,” Sierra, 254 F. Supp. 3d at 233, while reserving
judgment on Plaintiff’s 2013 non-promotion claim, see id. at 245. It is thus clear that the 2008 to
2012 and 2014 to 2016 failure to promote claims are non-actionable as discrete discriminatory
acts. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The question is
whether the non-promotion claims, even if not individually actionable, may enter the Court’s
hostile work environment analysis.
A footnote in Plaintiff’s opposition argues that the answer is yes: Plaintiff links the non-
promotion and hostile work environment theories of relief, asserting that “[t]he failure to
promote claims from 2008 to 2013 are still a part of the hostile work environment claim, even if
not discrete acts standing alone.” Pl.’s Opp’n 33 n.20. Defendant’s reply does not address this
point. Given Defendant’s failure to address this issue, this Court considers Plaintiff’s non-
promotion claims from 2008 to 2013 as evidence in support of her hostile work environment
claim, regardless of the merits of Plaintiff’s non-promotion claims as individual claims for
relief. 6
6
Because Plaintiff does not at any point argue that the 2014 to 2016 retaliatory failure to
promote allegations should be considered in the context of her hostile work environment claim,
the Court will not address whether Plaintiff might have raised a retaliatory hostile work
environment theory of relief. The Court considers only the 2008 to 2013 discriminatory failure
to promote allegations.
20
“[T]he D.C. Circuit has made clear that the same acts may ‘simultaneously support
different types of Title VII claims’ since ‘plaintiffs are free to plead alternative theories of harm
that might stem from the same allegedly harmful conduct.’” Peters v. District of Columbia., 873
F. Supp. 2d 158, 195 (D.D.C. 2012) (citing Baird v. Gotbaum (Baird I), 662 F.3d 1246, 1252
(D.C. Cir. 2011). A distinct legal standard applies to each theory of relief. In deciding a hostile
work environment claim, a court’s “task is to determine whether the acts about which [the
plaintiff] complains are part of the same actionable hostile work environment practice, and if so,
whether any act falls within the statutory time period.” Singletary v. D.C., 351 F.3d 519, 528
(D.C. Cir. 2003) (quoting Morgan, 536 U.S. at 120). The Supreme Court recently clarified that
Title VII’s charge-filing requirement is not a jurisdictional requirement, but rather stands as a
mandatory claim-processing rule. See Fort Bend County v. Davis, 139 S. Ct. 1843, 1848–52
(2019). A court must enforce a claim processing rule “if a party ‘properly raises it.’” Id. at 1849
(quoting Eberhart v. United States, 546 U.S. 12, 15, 19 (2005) (per curium)). But an objection
based on a mandatory claim-processing rule may be forfeited” if not timely raised. Id. (quoting
Eberhart, 546 U.S. at 15).
Here, Defendant has not argued in either of its motions to dismiss the non-promotion
claims or in its motion for summary judgment on the hostile work environment claim that
Plaintiff failed to timely file an administrative complaint associated with her discriminatory
hostile work environment theory of relief. Nor does Defendant argue that Ms. Sierra’s
discriminatory non-promotion claims are analytically distinct from her hostile work environment
claim. Accordingly, the Court accepts as undisputed that Plaintiff’s non-promotion allegations
form part of the same chain of events as the rest of her discriminatory hostile work environment
claim and considers Ms. Sierra’s 2008 to 2013 failure to promote allegations as one piece of
21
relevant evidence in assessing Defendant’s motion for summary judgment on Plaintiff’s hostile
work environment claim. Parsing the evidence before it in this way, for the reasons laid forth
below, the Court will grant Defendant’s motion to dismiss Plaintiff’s 2013 failure to promote
claim and deny in part Defendant’s motion for summary judgment on Plaintiff’s hostile work
environment claim.
A. 2013 Non-Promotion
Even construing the pleadings in the light most favorable to Plaintiff, as it must, the
Court concludes that Ms. Sierra has not established a plausible discriminatory or retaliatory non-
promotion claim for the year 2013. As discussed in this Court’s June 2017 memorandum
opinion, to establish a prima facie non-promotion claim in a case involving denial of a grade or
salary promotion, a plaintiff “must show that (1) [s]he sought and was denied a promotion (2) for
which [s]he was qualified, and (3) that other employees of similar qualifications . . . were indeed
promoted at the time the plaintiff’s request for promotion was denied.” See Sierra, 254 F. Supp.
3d at 244–25 (alterations and omission in original) (quoting Nurriddin v. Bolden, 40 F. Supp. 3d
104, 120 (D.D.C. 2014) (internal alterations and quotation marks omitted)); see also Taylor v.
Small, 350 F.3d 1286, 1294 (D.C. Cir. 2003), aff’d, 818 F.3d 751 (D.C. Cir. 2016); Cones v.
Shalala, 199 F.3d 512, 517 (D.C. Cir. 2000). Although a plaintiff need not plead all the elements
of a prima facie case to survive a 12(b)(6) motion to dismiss, see Jones v. Air Line Pilots Ass’n,
Int’l, 642 F.3d 1100, 1104 (D.C. Cir. 2011) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506,
511 (2002)), she must still plead factual allegations that suffice to make out a plausible claim for
relief.
Here, Plaintiff’s factual allegations do not sustain a plausible retaliatory or discriminatory
non-promotion theory of relief for the year 2013. Ms. Sierra has not established that she sought
22
out an increase in salary or grade in the year 2013. To be sure, Ms. Sierra contends that she did
in fact seek a promotion from the GS-13 to the GS-14 level in 2013 because she “discussed the
prospect of promotion regularly” with her supervisor and has “sought a career ladder promotion
since 2008.” Pl.’s Opp’n 29–30. She argues that she expected a promotion because “[i]t was
explained to [her], and [she] believed based upon observing practice within the Library, that she
would be promoted to the GS-14 level within two years of the commencement of her position of
Management Analyst.” Compl. ¶ 17. Plaintiff thus appears to urge the Court to connect the
dots: if her understanding of LOC practices led her to expect a promotion within two years of
being hired in 2007, yet she was not promoted by 2009 and still had not been promoted as of
2013, then of course she must have sought a promotion in 2013. But this inference does not
support Ms. Sierra’s complaint as a legal matter. A court “need not accept inferences . . . if such
inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Here, Plaintiff fails to present any factual allegations to support the premise that she
formally sought a promotion in the year 2013. Nothing in Plaintiff’s original complaint or
subsequent pleadings, including Plaintiff’s opposition to Defendant’s motion to dismiss her 2013
non-promotion claim, establishes that Ms. Sierra specifically “sought and was denied a
promotion” in 2013. Nurriddin, 40 F. Supp. 3d at 120 (quoting Taylor, 350 F.3d at 1294); see
also Bundy, 641 F.2d at 953. Plaintiff thus cannot plausibly establish the first element required
to make out a non-promotion claim in a case involving denial of a grade or salary promotion.
Furthermore, Ms. Sierra does not plead facts that plausibly indicate that “other employees
of similar qualifications . . . were indeed promoted at the time the plaintiff’s request for
promotion was denied.” Nurriddin, 40 F. Supp. 3d at 120 (omission in original) (quoting Taylor,
23
350 F.3d at 1294). Plaintiff has not alleged that any other promotions were made in Ms. Sierra’s
department in the year 2013. In fact, according to Defendant, “[LOC] records show that no one
else was promoted in the SPO office during the entire time Karen Lloyd was the supervisor.”
Def.’s Mot. 5–6. Plaintiff offers no contrary factual allegations that indicate that there were any
promotions during her tenure in the SPO office. In short, even construed in the light most
favorable to Ms. Sierra, none of Plaintiff’s factual allegations suggest either that she sought a
promotion in the year 2013 or that others were promoted in that year. As such, she cannot state a
non-promotion claim for relief that is plausible on its face, see Iqbal, 556 U.S. at 678, and the
Court will thus grant Defendant’s motion to dismiss Plaintiff’s 2013 non-promotion claim.
B. Discriminatory Hostile Work Environment
In addition to her failure to promote claims, Plaintiff’s discriminatory hostile work
environment claim seeks relief for her “supervisor’s demonstrable bias and hostility toward her.”
Compl. ¶ 1. Plaintiff specifically contends that she was subjected to severe and persistent
harassment by her supervisor, Ms. Lloyd, because of her race (Hispanic), national origin
(Colombian), and/or sex (female), creating a hostile work environment that unreasonably
interfered with her job performance. Id. ¶¶ 33–34. Defendant argues that this hostile work
environment claim fails because Plaintiff neglects to provide adequate non-conclusory evidence
to sustain her allegations and because the incidents that she identifies do not rise to a legally
actionable level. Def.’s Mot. 8–9. Defendant makes two arguments. Id. First, Defendant
asserts that the claims “warrant summary judgment because they fall far short of the ‘severe or
pervasive’ showing that courts in this Circuit require.” Id. at 6. Second, Defendant contends that
Ms. Sierra cannot establish the requisite “linkage between the hostile behavior and the plaintiff’s
membership in a protected class” for any of her claims based on race, national origin, or sex. Id.
24
at 8 (quoting Román v. Castro, 149 F. Supp. 3d 157, 170 (D.D.C. 2016)); see also Def.’s Reply 4
(“Plaintiff’s [a]lleged [a]cts [s]upporting the [h]ostile [w]ork [e]nvironment [c]laim [l]ack [a]ny
[c]onnection to [h]er [s]ex, [r]ace, or [n]ational origin.”). 7 As detailed below, the Court lands
between the parties’ positions. The Court concludes that Plaintiff has established that there are
genuine issues of material fact regarding both the severity or pervasiveness of the alleged
conduct and the linkage between the alleged conduct and her membership in a protected class for
Plaintiff’s claims of race/national origin discrimination, and it will deny Defendant’s motion for
summary judgment on that basis. It further finds, however, that Ms. Sierra has not alleged facts
that would permit a reasonable juror to conclude that the conduct at issue was because of her
status as a woman. Thus, there are no genuine disputes of material fact for this aspect of
Plaintiff’s claim, and the Court will grant Defendant’s motion for summary judgment with regard
to Plaintiff’s sex-based discriminatory hostile work environment claim.
1. Hostile Work Environment Legal Standard
Title VII protects employees against hostile and abusive working environments. “When
the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
7
Defendant’s motion for summary judgment centers on severity or pervasiveness,
whereas its reply emphasizes the lack of requisite linkage between Plaintiff’s allegations and her
membership in a protected class. Plaintiff’s opposition does not explicitly engage with this
argument, instead focusing on what Plaintiff asserts are material facts in dispute. See, e.g., Pl.’s
Opp’n 44. Although this Court will not consider arguments raised for the first time in reply, see
In re Asemani, 455 F.3d at 300 (citation omitted), Defendant’s original motion for summary
judgment specifically alleges that Plaintiff cannot prove the required “linkage” between the
alleged conduct and her “membership in a protected class,” Def.’s Mot. 8 (quoting Román, 149
F. Supp. 3d at 170); see also id. at 11 (“Sierra’s perception that she was being selectively
criticized because of her national origin, race, or sex finds no support in the record.”). Thus, the
issue of causation is not raised for the first time in reply, and the Court considers both of
Defendant’s arguments.
25
abusive working environment,’ Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). Yet Title
VII’s protections do not set out a “general civility code for the American workplace.” Casey v.
Mabus, 878 F. Supp. 2d 175, 189 (D.D.C. 2012) (quoting Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80 (1998)). Even if a plaintiff alleges a stressful or harsh work environment,
not every such workplace is “discriminatorily abusive” such that it is actionable under Title VII.
Harris, 510 U.S. at 22; see also Tucker v. Johnson, 211 F. Supp. 3d 95, 101 (D.D.C. 2016)
(discussing Title VII’s “demanding legal standard” (quoting Bergbauer v. Mabus, 934 F. Supp.
2d 55, 77 n.20 (D.D.C. 2013))).
To make out a hostile work environment claim for relief, the allegedly discriminatory
conduct must not only be subjectively perceived as abusive, but also be so “severe or pervasive”
that it “create[s] an objectively hostile or abusive work environment.” Casey, 878 F. Supp. 2d at
188 (quoting Harris, 510 U.S. at 21). There is no “mathematically precise test,” Harris, 510
U.S. at 22, for what makes a workplace “so objectively offensive as to alter the ‘conditions’ of
the victim’s employment,” Oncale, 523 U.S. at 81. To determine whether the allegedly
discriminatory conduct rises to this level, a court is to analyze the totality of the circumstances.
In assessing the totality of the circumstances, a court must “consider the frequency of the
harassing conduct, its severity, whether it is physically threatening or humiliating, and whether it
unreasonably interferes with an employee’s work performance.” Stewart v. Evans, 275 F.3d
1126, 1134–35 (D.C. Cir. 2002) (citing Harris, 510 U.S. at 21–23); see also Baloch v.
Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008). This Circuit has emphasized that “[t]he test
set forth by the Supreme Court is whether the alleged conduct is ‘sufficiently
severe or pervasive’—written in the disjunctive—not whether the conduct is ‘sufficiently
26
severe and pervasive.’” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 579 (D.C. Cir. 2013)
(Kavanaugh, J., concurring); see also Baloch, 550 F.3d at 1201 (disaggregating “severe” and
“pervasive” analysis).
In addition, to successfully make out a hostile work environment claim, a plaintiff must
show that the alleged “harassment occurred because of the plaintiff's protected status.” Peters v.
District of Columbia, 873 F. Supp. 2d 158, 189 (D.D.C. 2012) (citation omitted); see also Dorns
v. Geithner, 692 F. Supp. 2d 119, 135–36 (D.D.C. 2010) (internal citations omitted). Critically,
there must be a “‘linkage between the hostile behavior and the plaintiff’s membership in a
protected class’ for a hostile work environment claim to proceed.” Douglas-Slade v. LaHood,
793 F. Supp. 2d 82, 101 (D.D.C. 2011) (quoting Na’im v. Clinton, 626 F. Supp. 2d 63, 73
(D.D.C. 2009)); see also Baloch, 550 F.3d at 1201. The same totality of the circumstances
analysis applies in assessing whether there is such a linkage. See Baloch, 550 F.3d at 1201.
2. Severity or Pervasiveness of Alleged Conduct
In assessing whether the conduct at issue here is so severe or pervasive that it creates an
objectively hostile work environment, the Court bears two competing principles in mind. First,
the Court must be certain to assess the facts before it in toto. See Iyoha v. Architect of the
Capitol, 927 F.3d 561, 568 (D.C. Cir. 2019) (“A district court errs in ‘reviewing each racially
charged remark individually and finding it insufficient’ rather than considering the statements
‘alongside any additional statements—and all other evidence.’” (quoting Morris v. McCarthy,
825 F.3d 658, 670 (D.C. Cir. 2016))). Second, at the same time that it reviews the alleged facts
in the aggregate, the Court must take care to consider whether the alleged conduct has the
requisite heft to be actionable—or whether it amounts to a series of “slights” that are “no more a
27
hostile work environment than a pile of feathers is a crushing weight.” Baird v. Gotbaum (Baird
II), 792 F.3d 166, 171–72 (D.C. Cir. 2015).
Here, Defendant paints Plaintiff’s account as a series of events that are not severe or
pervasive enough to be actionable, whether considered individually or collectively. Def.’s Mot.
9. Defendant characterizes the alleged incidents as “a handful of events and comments that
occurred over the course of more than four years” and are disconnected from Plaintiff’s national
origin, race, or sex, such that summary judgment is warranted. Id. at 21–22. The Court agrees
with Defendant that, if Ms. Lloyd’s acts are taken individually, then none of the alleged actions
that Ms. Sierra describes are of the sort deemed severe enough to make out a hostile work
environment claim for relief. There is no single event that meets the high threshold—such as the
use of a universally offensive racial epithet—that suggests an objectively hostile or abusive work
environment. Compare Brooks v. Grundmann, 748 F.3d 1273, 1277–78 (D.C. Cir. 2014)
(outbursts and “tactless and ill-mannered” supervisors and coworkers do not establish hostile
work environment), with Ayissi-Etoh, 712 F.3d at 577 (suggesting that reasonable factfinder
might be able to conclude that use of extremely offensive racial epithet while yelling at
employee was sufficiently severe or pervasive to create hostile work environment). But conduct
can be actionable if it is severe or pervasive. See Ayissi-Etoh, 712 F.3d at 579 (Kavanaugh, J.,
concurring). And as set forth below, the Court finds that a reasonable jury could conclude that
Plaintiff’s supervisor’s conduct, assessed in its totality, was pervasive in a way that created a
discriminatory hostile work environment.
Considering, first, the frequency of the alleged incidents, it is not clear as a matter of law
that they were too diffuse to qualify as actionable. Ms. Sierra’s complaint includes a period that
runs from 2008 to 2016, yet focuses on events from 2009 to 2013. Defendant also homes in on
28
this four-year period in its motion for summary judgment. See Def.’s Mot. 9 (referring to “a
series of events that occurred from 2009-2013”). Within this window, Ms. Sierra’s filings
canvass a significant number of incidents.
For one, Plaintiff alleges that Ms. Lloyd repeatedly “moved the goal posts” for success in
her position, Pl.’s Opp’n 2, by adding new requirements during each of the evaluation periods in
2009 (take the ICP out of the library), 2010 (acquire supervisory experience), and 2011 (improve
writing), respectively, see id. at 4, 11–12. She further points to incidents at the monthly ICP
meetings wherein Ms. Lloyd interrupted Ms. Sierra and “would literally ‘interpret’ what Ms.
Sierra was saying,” Pl.’s Opp’n 37, in a fashion that Ms. Sierra’s coworkers have characterized
as “blatantly racist,” id. (quoting Claypoole Aff. Addendum 4). Plaintiff states that these
interruptions occurred “[d]uring multiple monthly Internal Control Program meetings” and
identifies the specific dates of four such interruptions between 2010 and 2012. Id. at 37 & n.22
(emphasis added). Ms. Sierra avers that “Ms. Lloyd frequently ordered Ms. Sierra to repeat her
statements” and “looked at Ms. Sierra during her presentations with disdain.” Id. at 37. She also
provides a different coworker’s statement that, during staff meetings, Ms. Lloyd would “ask Ms.
Sierra to restate something” in a manner that the coworker found unnecessary “because [Ms.
Sierra] had described it sufficiently the first time.” Morse Dep. 53:14–55:4.
Above and beyond these incidents, and in addition to the specific 2009 rehearsal at which
Ms. Lloyd allegedly mocked Ms. Sierra’s accent and compared her speech to a “wah wah wah”
sound, Plaintiff describes a number of other problematic interactions with Ms. Lloyd. Her
allegations include Ms. Lloyd’s restriction of her direct communications with Mr. Page
beginning in March 2010, see Pl.’s Opp’n 39, criticism of Ms. Sierra for volunteering for a
teleconference for preservation by the American Embassy in Mexico held in 2010, id. at 40
29
(citing Page Aff. 2), and calling Plaintiff a “traitor” as well as forbidding her to give her name to
her “friends” for any similar projects, id. The next year, in 2011, Ms. Lloyd allegedly called Ms.
Sierra a “betrayer” for a conversation with Mr. Page. Id. In this same conversation, Ms. Sierra
states that Ms. Lloyd invoked her matriarchy in a manner that was extremely disrespectful of her
culture. Id. Plaintiff further points to Ms. Lloyd’s restriction of her ability to participate in the
LOC’s 2013 “Celebration of Mexico” event as evidence of the way in which “Ms. Lloyd seemed
to specifically disdain when Ms. Sierra would participate in events involving other Latin
American countries.” Id. Moreover, Plaintiff suggests that Ms. Lloyd humiliated her in public
on multiple occasions, such as by comparing her outfit to carpet that “nobody liked,” Sierra Dep.
78:11, and by forbidding her to use the common restroom at a work event in 2011, Sierra Dep.
82:18–25 to 83:1–8. This last allegation, to have one’s bathroom use restricted like a child
before one’s colleagues, could be considered public humiliation by any reasonable juror.
In this Circuit, allegedly discriminatory conduct has been found non-actionable in cases
that, like this one, spanned four to five years. For instance, in Brooks v. Grundmann, the D.C.
Circuit found that the identified conduct essentially amounted to isolated “expression[s] of
frustration” over several years. 748 F.3d at 1277. And several district courts in this Circuit have
followed a hard line and found conduct non-actionable when it did not occur with great
frequency. See, e.g., Nurriddin v. Bolden, 674 F. Supp. 2d 64, 93–94 (D.D.C. 2009) (finding no
hostile work environment where, over an approximately four-year period, plaintiff was subjected
to “disparaging remarks, criticisms of his work, and other negative comments” as well as
“removal of important assignments, lowered performance evaluations, and close scrutiny of
assignments”); Akonji v. Unity Healthcare, Inc., 517 F. Supp. 2d 83, 97–99 (D.D.C. 2007)
(finding no hostile work environment despite five distinct instances of sexual harassment by
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coworkers over eighteen months). But see Richardson v. Petasis, 160 F. Supp. 3d 88, 126–27
(D.D.C. 2015) (denying motion for summary judgment when employer made physical threats of
violence, removed supervisory duties, reassigned plaintiff, and took disciplinary actions within
the span of several months).
Critically, the Supreme Court in Harris did not set out a mathematical test for what
amounts to pervasively abusive conduct. See 510 U.S. at 22; see also Dominguez-Curry v.
Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th. Cir. 2005) (rejecting district court’s
characterization of conduct as “a handful” of “isolated, sporadic incidents” that occurred “over a
five year period” in the face of testimony that the alleged acts “were like everyday jokes” that
occurred “so many different times” (internal quotation marks omitted)); Rodgers v. Western-
Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) (“[T]here is neither a magic number of
harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of
incidents below which a plaintiff fails as a matter of law to state a claim.”). What matters is the
totality of the circumstances. And here, the Court finds that Plaintiff has offered specific
evidence that she was subjected to ongoing incidents that occurred “frequently,” Pl.’s Opp’n 37,
and perhaps as often as every month at ICP meetings between 2010 and 2012. Thus, the Court is
unable to say that these acts were so diffuse as to be non-actionable as a matter of law.
Moreover, Ms. Lloyd’s purported pattern of behavior is distinct from the kinds of
“ordinary tribulations of the workplace,” Brooks, 748 F.3d at 1277–78 (quoting Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998)), that “are not actionable under Title VII,” id. at 1278.
Pairing the allegations regarding Ms. Sierra’s accent and participation in Latin American events
with the allegations regarding Ms. Lloyd’s publicly humiliating comments and repeated denial of
workplace opportunities, such as the approval of a detail and the fact that she was not promoted
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despite apparently meeting the goals set out for her, a reasonable juror could conclude that the
alleged conduct amounts to more than dismissible “slights.”
To assess the totality of the circumstances, the Court cannot single out just one aspect of
this evidence. This is not a case that alleges only that a supervisor criticized and was rude to an
employee, such that the court found the conduct “insufficient as a matter of law for a hostile
work environment case.” Singh v. U.S. House of Representatives, 300 F. Supp. 2d 48, 54–56
(D.D.C. 2004) (granting motion for summary judgment on hostile work environment claim
where supervisor purportedly overlooked employee, spoke to her in a hostile and patronizing
manner, shut her out of meetings, and denied travel opportunities); see also Brooks, 748 F.3d
(granting motion for summary judgment on hostile work environment claim where plaintiff was
subjected to criticism and in which voices were raised in meetings two-and-a-half years apart).
Nor is it a case that centers only on supervisory choices such as “the removal of important
assignments, lowered performance evaluations, and close scrutiny of assignments by
management,” which other courts in this circuit have concluded cannot “be characterized as
sufficiently intimidating or offensive in an ordinary workplace context[]” to be actionable.
Nurriddin, 674 F. Supp. 2d at 94 (citing Bell v. Gonzales, 398 F. Supp. 2d 78, 92 (D.D.C. 2005)).
Nor is it a case that alleges only stress and tension with a supervisor, and as such falls short of
Title VII’s legal standard. See, e.g., Cooper v. Nielsen, No. CV 17-10 (ABJ), 2019 WL
1254933, at *7 (D.D.C. Mar. 19, 2019) (concluding that “stress” and “confusion” as well as
feeling “always on guard,” “demeaned,” “excluded,” “harassed and badgered” were “subjective
feelings [that] are not enough to defeat summary judgment”).
Rather, the facts offered to the Court combine many of the factors that individually might
not cross the pervasiveness threshold. But this Court will not focus so closely on individual
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aspects of the complaint that it becomes myopic about the bigger picture. Here, taking all facts
in favor of Plaintiff—as the Court must—the combination of alleged incidents over time,
coupled with evidence that Plaintiff was not permitted to go on a detail or promoted over seven
years despite meeting specified performance goals, and adding in a number of incidents
involving public humiliation, could lead a reasonable juror to find the alleged conduct so
pervasive that it altered the conditions of Ms. Sierra’s employment and created an abusive work
environment. Cf. Singletary, 351 F.3d at 526–28 (declining to grant summary judgment and
finding genuine dispute of material fact as to severity or pervasiveness where employer failed to
give employee a formal job description for six years, which meant that he was denied promotion
opportunities, and also forced him to work in an unventilated storage room for a year and a half).
Where such a genuine dispute of material fact exists, summary judgment is not warranted. Thus,
the Court cannot grant Defendant’s motion for summary judgment on the basis that the alleged
work hostility was insufficiently severe or pervasive.
3. Linkage between Alleged Conduct and Protected Attributes
Having found that there is a question of fact concerning whether the work hostility that
Plaintiff experienced was sufficiently severe or pervasive, the Court must turn to Defendant’s
argument that summary judgment is warranted because there is not the requisite linkage between
Ms. Lloyd’s alleged conduct and Ms. Sierra’s membership in a protected class. See Def.’s Mot.
8; Def.’s Reply 4–8. Defendant initially discounts Ms. Lloyd’s alleged conduct based on the
“same actor inference:” because Ms. Lloyd hired Ms. Sierra, it is “probative evidence” that she
did not discriminate against Plaintiff. Def.’s Mot. 9 (quoting Vatel v. All of Auto Mfrs., 627 F.3d
1245, 1247 (D.C. Cir. 2011)). Defendant contends that, in any event, there simply is no
connection between the alleged conduct and Ms. Sierra’s race, national origin, or sex. Id. at 11.
33
Plaintiff’s opposition counters by pointing to specific evidence that Ms. Sierra contends leave
“material facts in dispute.” Pl.’s Opp’n 1, 44–45. For the reasons detailed below, the Court
agrees with Plaintiff that—notwithstanding the “same actor inference”—the evidence in the
record leaves genuine disputes of material fact regarding the connection between the alleged
conduct and Ms. Sierra’s race/national origin, and thus will deny summary judgment on this
basis. But the Court finds that Plaintiff has not established an adequate linkage between the
alleged conduct and her sex, such that no reasonable juror could find in her favor on this aspect
of her claim. Thus, the Court will grant in part Defendant’s motion for summary judgment
regarding Ms. Sierra’s sex-based hostile work environment claim.
a. Race and National Origin 8
Defendant asserts that Ms. Sierra has failed to establish the requisite linkage between Ms.
Lloyd’s alleged discrimination and her status as a Colombian, Hispanic individual. See Def.’s
Mot. 11. Defendant emphasizes, in particular, Plaintiff’s own admission that there was no direct
connection between Ms. Lloyd’s comments or conduct and Ms. Sierra’s accent. Id. (citing Sierra
Dep. 151:15–20). Unsurprisingly, Plaintiff construes the facts differently and argues that “the
uncontroverted facts presented by Plaintiff prove that Plaintiff’s direct supervisor,” Ms. Lloyd,
“made multiple discriminatory comments to Ms. Sierra based on Ms. Sierra’s national origin[]
[and] race.” Pl.’s Opp’n 2. Ms. Sierra’s argument also emphasizes the way in which Ms. Lloyd
“routinely ridiculed Plaintiff for her accent.” Id. Because both parties foreground the allegations
regarding Plaintiff’s accent, the Court begins its analysis there.
8
The parties do not distinguish between Plaintiff’s nationality (Colombian) and race
(Hispanic). This is not a case in which such a distinction is important (e.g., a Colombian
plaintiff alleges that her Venezuelan supervisor subjected her to a hostile work environment, or
favored her Panamanian coworkers). Accordingly, this Court will consider Plaintiff’s race and
national origin claims jointly.
34
The allegations regarding Ms. Sierra’s accent are essential in evaluating the claim that
Plaintiff was subjected to national origin discrimination. As the D.C. Circuit has made clear, “a
foreign accent and national origin are often intertwined, and courts can look to evidence of
discrimination on the basis of one’s accent in support of a claim of national origin
discrimination.” Iyoha, 927 F.3d at 567 (citing In re Rodriguez, 487 F.3d 1001, 1008–10 (6th
Cir. 2007); Fragante v. City & Cty. of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989)). Moreover,
mockery of an employee’s name and accent can permit a jury to infer national origin
discrimination, even where there is no “direct connection” between the disparaging comments
and the alleged discrimination. 9 Mayorga v. Merdon, 928 F.3d 85, 94 (D.C. Cir. 2019).
Accordingly, a court assessing allegations of a hostile work environment must not conclude its
analysis simply because there is no explicit connection between comments about an employee’s
accent and other specific acts comprising the hostile work environment. The Court has already
determined that Ms. Lloyd subjected Plaintiff to a work environment that a reasonable juror
could find to be pervasively hostile. The next question becomes, “why?” Any evidence that
sheds light on that question must be considered. Mockery of one’s accent certainly qualifies.
Here, Ms. Sierra describes a single incident during which Ms. Lloyd allegedly mocked
her accent and suggests that this incident was part of a pattern of discriminatory behavior.
Plaintiff avers that, during her September 15, 2009, presentation rehearsal, Ms. Lloyd interrupted
her repeatedly, called her presentation “incoherent,” and mockingly said, “you’re talking like wa
wa wa” with a look of “disgust.” Pl.’s Opp’n 7. Ms. Sierra proffers corroboration from a
coworker, Ms. Hernandez, who states that Ms. Lloyd “harshly criticized” and “aggressively
9
Although Mayorga involved a non-promotion claim, not a hostile work environment
claim, this analytic point holds: mockery of an accent is to be considered alongside other
evidence of national origin discrimination to determine whether a plaintiff has met her burden.
35
harassed” Ms. Sierra “by interrupting and bombarding Plaintiff with criticism while she was
practicing.” Id. at 8 (quoting Hernandez Aff. 3). In addition, Plaintiff details other meetings at
which Ms. Lloyd repeatedly interrupted her and asked others in the room if they understood what
Ms. Sierra was saying in a way that suggested she needed “an interpreter.” Id. at 17–18.
Coworkers again sustain this account, with one coworker, Ms. Claypoole, characterizing Ms.
Lloyd’s interruptions as “blatantly racist.” Id. at 37 (quoting Claypoole Aff. 4). Moreover, Ms.
Lloyd’s own supervisor confirmed that Ms. Lloyd treated Plaintiff worse than other employees
under her supervision. See Page Aff. 3. And there is no indication that any of these other
employees are from Latin America.
Taking these allegations to be true, as it must, the Court finds that a reasonable juror
could find Ms. Lloyd’s conduct regarding Ms. Sierra’s accent to be evidence of national origin or
race-based discrimination. Unlike suits in which courts in this circuit have granted summary
judgment, this is not a case in which Plaintiff bases her claims of discrimination “on her own
conclusory allegations.” Douglas-Slade, 793 F. Supp. 2d at 101; see also Dawson v. Reukauf,
751 F. Supp. 2d 146, 151 (D.D.C. 2010) (“[Plaintiff] has not alleged that any of her supervisors .
. . subjected her to derogatory insults because of her race. . . . Plaintiff merely asserts, based
solely upon her own statements, that she was subjected to frequent harassment and hostile
actions.” (internal quotation marks omitted)). In this case, Plaintiff offers specific evidence that
connects Ms. Lloyd’s responses to her accent with her claim of race/national original
discrimination.
Moreover, the Court rejects Defendant’s argument that summary judgment is warranted
because Ms. Lloyd never “said anything derogatory about Plaintiff’s national origin[] [or] race.”
Def.’s Reply 4–5. As stated previously, the Mayorga court emphasized that discrimination can
36
exist even where there is not a “direct connection” between disparaging comments and the
alleged discrimination. See 928 F.3d at 94. In determining the cause for Ms. Lloyd’s hostility
towards Plaintiff, the Court must look at all evidence that sheds light on her motivations. These
incidents clearly do. With these principles in mind, and assessing the situation in its totality, see
Iyoha, 927 F.3d at 568, this Court cannot conclude that the alleged incidents have no relationship
to Plaintiff’s membership in a protected class, as a matter of law. Ms. Sierra points to specific,
corroborated evidence that Ms. Lloyd mocked her accent and thought she required interpretation.
The presence of particularized evidence of this sort makes this case a far cry from those in which
other courts in this Circuit have found no connection between the allegedly offensive comments
and the protected class at hand. See, e.g., Kline v. Springer, 602 F. Supp. 2d 234, 243 (D.D.C.
2009) (finding plaintiff had not provided record evidence to support hostile work environment
claims where “[n]one ‘of the comments or actions directed at [the plaintiff] expressly focused on
[her] race.’” (second and third alterations in original) (quoting Baloch, 550 F.3d at 1201)), aff’d
sub nom. Kline v. Berry, 404 F. App’x 505 (D.C. Cir. 2010); Stewart v. Evans, 275 F.3d 1126,
1129, 1131–33 (D.C. Cir. 2002) (affirming dismissal of sex discrimination-based hostile work
environment claim that centered on single phone call in which individual used offensive
profanities that were not explicitly connected to plaintiff’s sex). In the instant case, a reasonable
juror could conclude that the alleged incidents demonstrate a pattern of hostility towards Ms.
Sierra’s language/accent that a reasonable juror could consider evidence of national origin and/or
race-based discrimination. Accordingly, the Court cannot conclude, as a matter of law, that the
requisite linkage between Ms. Lloyd’s conduct and Ms. Sierra’s race and/or nationality does not
37
exist here. 10 The Court thus denies Defendant’s motion for summary judgment on Plaintiff’s
claim that she was subjected to a hostile work environment based on her national origin and/or
race.
b. Sex 11
The final issue facing the Court is whether Plaintiff has established the requisite link
between Ms. Lloyd’s alleged conduct and Ms. Sierra’s sex. For the following reasons, the Court
finds that a reasonable juror could not conclude that the alleged discriminatory treatment was
because of her status as a woman.
The majority of Ms. Sierra’s factual allegations focus on race and/or national origin
discrimination, not sex. The sole factual allegation regarding sex-based discrimination that
Plaintiff proffers is a single incident wherein Ms. Lloyd “arbitrarily changed” Ms. Sierra’s May
23, 2011, meeting to an earlier time in order to accommodate a white, male employee. Pl’s
Opp’n 42. Plaintiff’s only other sex-specific discussion comes in the form of third-party
statements, including, most notably, Mr. Page’s affidavit statement that “Ms. Lloyd was often
more critical of the [Plaintiff] . . . and [male employees] generally seemed to be treated with
more respect than the women who were supervised by Ms. Lloyd.” Page Aff. 3.
But even crediting this statement, such corroboration is not the same as specific facts. To
survive a motion for summary judgment, a plaintiff must point to “specific facts showing that
there is a genuine issue for trial.” Celotex, 477 U.S. at 323. And here, Ms. Sierra fails to provide
10
Because it reaches this conclusion based on the alleged accent-related comments alone,
the Court need not parse Ms. Sierra’s other allegations regarding writing classes or attendance of
Latin American events, which reinforce this same conclusion.
11
Both parties’ arguments regarding sex-based discrimination are, in a word, conclusory,
and the Court addresses them despite the fact that many of the contentions on both sides lump
sex in alongside race and national origin, without offering any further specificity or
argumentation about alleged sex discrimination.
38
the requisite specific facts to rebut Defendant’s contention that there is no connection between
her sex and Ms. Lloyd’s alleged acts. See Def.’s Reply 4–8. Other than the meeting incident,
Plaintiff does not point to any specific facts at all that link Ms. Lloyd’s alleged conduct to
Plaintiff’s status as a woman. To be sure, Plaintiff does state that there was favoritism toward
“the two white males” in the office, Pl.’s Opp’n 42, and notes that another “minority (non-white)
female[]” also alleged that Ms. Lloyd created a hostile work environment, id. at 20. But Ms.
Sierra does herself a disservice by alleging race/nationality and sex-based allegations in the same
clause. Without more that links the conduct to sex, in more specific terms, there is not non-
conclusory backing to permit the inference that the conduct at issue was because of sex. Even in
deciding a motion for summary judgment, the Court need not accept conclusory inferences as
true. See Greene, 164 F.3d at 675 (“Although, as a rule, statements made by the party opposing
a motion for summary judgment must be accepted as true for the purpose of ruling on that
motion, some statements are so conclusory as to come within an exception to that
rule.” (citations omitted)). Thus, Plaintiff’s evidentiary showing is insufficient to establish
specific facts in support of her claim.
Moreover, Plaintiff has failed to specify which facts are in dispute in a manner that
creates a genuine issue for trial. There is a genuine issue for trial when a rational juror could find
for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (“Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no ‘genuine issue for trial.’” (quoting First Nat’l Bank of Ariz. v.
Cities Servs. Co., 391 U.S. 253, 289 (1968))). “At the summary judgment stage, facts must be
viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as
to those facts.” Scott, 550 U.S. at 380 (quoting Fed. Rule Civ. Proc. 56(a)).
39
In this case, although Plaintiff asserts in broad strokes that there are disagreements with
the Defendant about key facts, such that summary judgment is inapposite, see Pl.’s Opp’n 35–36,
she does not present any particular disputes that involve alleged sex discrimination. As such, she
has not established any genuine dispute regarding the facts in the record. It is therefore
noteworthy that other parts of the record, like the fact that Ms. Lloyd did approve a detail for
another female supervisee, see Lloyd Dep. 91:4–92:11, and the fact that at least one female
employee was allowed to contact Mr. Page directly, see Sierra Dep. 142:23–143:1, can be read to
undercut the claim that Ms. Lloyd discriminated in a way that created a hostile work
environment on the basis of sex. See Def.’s Reply at 6–7 (arguing that Ms. Lloyd’s conduct was
“neutral with respect to Plaintiff’s status as a woman.”). The existence of these facts, along
with—as discussed above—Plaintiff’s own failure to point to specific facts that link up the
alleged conduct with her status as a woman, amount to a lack of evidence upon which a
reasonable juror could decide in Ms. Sierra’s favor on the question of causation—i.e., whether
her sex was the reason that Ms. Lloyd subjected her to a hostile work environment.
Accordingly, the Court concludes that Plaintiff has not met her burden to show specific
facts establishing that she was subjected to discriminatory conduct because of her status as a
woman. Without this showing, there is no genuine dispute as to a material fact that could affect
the substantive outcome of the litigation on this claim. See Scott, 550 U.S. at 380. The Court
will thus grant Defendant’s motion for summary judgment regarding Plaintiff’s sex-based hostile
work environment claim.
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VI. CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED and Defendant’s
motion for summary judgment is GRANTED IN PART and DENIED IN PART. So at the end
of the day, Plaintiff’s only claim remaining for a jury to decide at trial is whether Ms. Lloyd
subjected Ms. Sierra to a hostile work environment based on Ms. Sierra’s race (Hispanic) and/or
national origin (Colombian). An order consistent with this Memorandum Opinion is separately
and contemporaneously issued.
Dated: August 13, 2019 RUDOLPH CONTRERAS
United States District Judge
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