Reid v. Chao ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBENA G. REID,
Plaintiff,
v. Civil Action No. 20-1262 (TJK)
PETE BUTTIGIEG, in his official capacity as
Secretary of Transportation,
Defendant.
MEMORANDUM OPINION
Robena Reid contends that her federal employer tried for years to dissuade her from re-
porting illegal misconduct. Defendant, her employer, moves for partial summary judgment and
otherwise to dismiss her claims, arguing that it has already compensated her for any tangible harm
arising from the acts she identifies. Reid does not deny that she was compensated, but instead
points to other harms that she says remain unremedied. Because the Court finds that any unreme-
died harm to Reid is immaterial under the governing law, it grants partial summary judgment to
Defendant and dismisses the rest of the complaint.
I. Background
Title VII of the Civil Rights Act of 1964 forbids, among other things, retaliation against
those who invoke its protections. See generally Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 59–70 (2006). Retaliation is actionable if it “produces an injury or harm.” Id. at 67. Such
harm must be “materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Id. at 68 (quotation
omitted). By contrast, reporting alleged misconduct does not “immunize” a reporter from “petty
slights or minor annoyances.” Id. Whether a harm is material or petty “will often depend upon
the particular circumstances. Context matters.” Id. at 69.
The facts below are drawn mostly from Reid’s complaint and assumed to be true. Where
noted, her account is supplemented by other record evidence.
A. Factual Background
Reid is a financial economist for the Federal Transit Administration, a component of the
Department of Transportation. ECF No. 28 (“Compl”) ¶ 4. She has worked for the Administration
since 1999. Compl. ¶ 12. Several years into her tenure, Kimberly Gayle became Reid’s direct
supervisor. Compl. ¶¶ 6, 14–16. Most of the relevant events arise from conflicts between Reid
and Gayle. See generally Compl. ¶¶ 17–21, 30–34.
Reid is also a self-described equal-employment-opportunity “gadfly.” ECF No. 32-1
at 6, 10. She has long been “a staunch [antidiscrimination] advocate” on behalf of herself and her
colleagues. Id. at 6. On her own behalf, Reid filed some kind of complaint in 2006. See Compl.
¶¶ 7–8, 66–67. Around the same time, she filed another complaint alleging “harassment/discrim-
ination for a disability and failure to provide reasonable accommodations.” See Compl. ¶ 20. Reid
has also “represented” other Administration employees “in various employment matters . . . , in-
cluding numerous . . . cases involving Title VII discrimination and retaliation issues.” Compl.
¶ 13; see also Compl. ¶¶ 17, 21–28, 44–45, 58, 77–78, 98, 103–04, 133–35, 178–80. In many such
instances, Reid asked to use “official time”—that is, time for which she was paid—on those activ-
ities. See Compl. ¶¶ 13, 40, 103.
Reid believes her superiors wished to dissuade that activity. When Gayle became Reid’s
supervisor, other managers told Gayle that Reid was a “‘problem’ employee because she filed
numerous complaints.” Compl. ¶ 18. Reid describes many of her complaints as having been as-
serted “against” Gayle and other managers. Compl. ¶ 28. Gayle also complained about the number
2
of challenges Reid filed or helped file and claimed Reid was filing them to “intimidate” her.
Compl. ¶ 48. Another manager described the time Reid spent on complaints as “exorbitant” and
stated that Reid “does that over her job as much as she can.” Compl. ¶ 49.
Shortly after Gayle became Reid’s supervisor, the relationship between them “deterio-
rated.” Compl. ¶ 47. Reid attributes that decline to the fact that she is “ardent and passionate in
her efforts to protect employee rights.” Id. Gayle had the final say over whether Reid could use
official time to assist other employees with complaints or for any other purposes. See Compl.
¶¶ 83, 107. That authority spawned much conflict between Gayle and Reid.
Twice, Gayle denied Reid’s requests to use official time to deliver work-related presenta-
tions. A few months before an industry conference, Reid shared her plans to deliver a presentation,
which she believed had been approved. Compl. ¶¶ 51–53, 64. But in the lead-up to the presenta-
tion, Gayle made clear that she considered a poster that Reid had made for the presentation to be
unapproved. Compl. ¶¶ 55–57. While she was considering Reid’s request to use official time on
that presentation, Gayle also reviewed some of Reid’s requests to use official time to file antidis-
crimination complaints. Compl. ¶¶ 54, 58–59. Gayle also “consulted” another manager about
Reid’s requests. Compl. ¶ 60. Ultimately, Gayle told Reid “she was not authorized to give her
poster presentation while on duty time.” Compl. ¶ 63.
That decision, Reid says, “forced” her to use four hours of annual leave instead. Compl.
¶ 64. But the presentation was substantively related to Reid’s work, and it helped her achieve an
industry recertification. See Compl. ¶¶ 69–72. And Reid was the sole Administration employee
“who was required to take leave to present.” Compl. ¶¶ 74–75. Reid thus believes that her official-
time request was denied to punish her for her complaint-related official-time requests. Compl.
3
¶ 76. So Reid filed a new equal-employment-opportunity complaint about that alleged “reprisal.”
Compl. ¶ 79.
A similar incident happened the next year. Reid timely expressed a desire to attend the
same work-related conference. Compl. ¶ 87. But Gayle refused to approve an official-time request
until Reid completed an unrelated assignment. Compl. ¶¶ 88–89. No other Administration em-
ployee’s attendance at the conference was conditioned on completing a work assignment. Compl.
¶ 90. Because the conference began on a Sunday and Gayle did not confirm whether Reid was
allowed to attend by the end of the workweek, Reid was unsure about the status of her request
when the conference started. Compl. ¶¶ 89, 91–92. Other employees, though, got official-time
credit for attending on both Sunday and Monday. See Compl. ¶¶ 95–96.
Gayle again eventually denied Reid’s request. Compl. ¶¶ 95, 97. In the period between
the two conferences—and on top of the new retaliation complaint on her own behalf—Reid con-
tinued to help other employees file complaints. Compl. ¶¶ 77–78, 82. Again, Gayle discussed
Reid’s use of official time with another manager. See Compl. ¶¶ 84–86. Reid thus believes that
Gayle conditioned and then denied her request to use official time to attend the conference to
punish Reid for participating in complaints against the Administration. Compl. ¶ 85.
A few months later, Gayle denied another of Reid’s official-time requests. This time, Reid
asked to use seven hours to help a colleague file a complaint. Compl. ¶ 98. Gayle told Reid she
wished to discuss an assignment with her at the proposed time, so she denied the request. Compl.
¶¶ 99–100. But Reid says the assignment was not “urgent” and that, for various reasons, the as-
signment was not ripe for release. Compl. ¶¶ 101–02. She complains that this denial discouraged
her from helping colleagues file complaints. Compl. ¶ 107.
4
The conflicts escalated from there. Soon after Gayle denied that official-time request, Reid
and Gayle met to discuss an assignment. See Compl. ¶¶ 111, 114–16. According to Gayle, Reid
was “loud,” “defiant,” and “aggressive[ ]” in that meeting. Compl. ¶ 115. But Reid disputes that
characterization. Compl. ¶¶ 116–18. And on the same day, Gayle learned that she would need to
provide an affidavit in an investigation into one of Reid’s complaints. Compl. ¶ 112.
Two weeks after that meeting and affidavit request, Gayle sent Reid a “Letter of Caution.”
Compl. ¶ 119. The letter threatened Reid with “corrective action.” Compl. ¶¶ 121–22. Reid be-
lieves that Gayle sent the letter to dissuade her from filing discrimination complaints, in part be-
cause an agency “Human Resource Specialist” later said the letter’s impetus was Reid’s “exorbi-
tant” official-time requests to “represent people in their . . . complaints.” Compl. ¶ 123.
The conflict between Gayle and Reid came to a head during Reid’s performance review
that year. Reid recounts many details, but the upshot is that Gayle rated Reid’s performance “un-
acceptable” in part because Reid “was not sufficiently focused on her work.” Compl. ¶ 132. Right
before that review, Reid continued to participate in filing complaints, including by requesting that
Gayle allow her to use official time to do so. Compl. ¶¶ 125, 133–35. Gayle also had met with
other managers to discuss Reid’s use of official time and invited another manager to sit in on
Reid’s review. See Compl. ¶¶ 125–28. The discord at the meeting led Reid to inform agency
security that “she felt threatened and harassed” by Gayle. Compl. ¶ 131. Gayle, in turn, leveled a
similar accusation based on an alleged (and disputed) remark that the Court construes as a refer-
ence to a work-related mass shooting. See Compl. ¶ 140. 1 Reid also alludes to an accusation about
1
Plaintiff’s complaint relays the alleged remark as, “Remember the Navy Yard.” Compl.
¶¶ 140, 158. Elsewhere in the record, the alleged remark is recorded as “Remember the Navy Yard
shooting.” ECF No. 25-1 ¶ 21. The attributed comment thus appears to refer to the mass shooting
where a government contractor killed a dozen people at his military workplace. See generally
5
an offensive “hand gesture.” Compl. ¶ 158. 2
Whatever happened at the performance-review meeting, the Administration put Reid on
administrative leave four days later. See Compl. ¶¶ 136–39. The Administration did not warn
Reid that it would do so; it disabled her building access while she was attending a meeting over
lunch. See id. While she was on administrative leave, the Administration did not permit Reid to
access her work email remotely. See Compl. ¶¶ 147–48. Reid believes both steps were retaliatory.
See Compl. ¶¶ 151–52. She explains that she had information in her email account related to
pending antidiscrimination complaints (both hers and her colleagues’) and that her having to use
her personal email both made it harder for her colleagues to contact her for help and served as a
visible reminder of the consequences of complaining. See Compl. ¶¶ 151–55. The Administra-
tion’s procedures, she thinks, did not require her email access to be suspended. See Compl. ¶ 150.
After several months of administrative leave, Gayle proposed terminating Reid’s employ-
ment. Compl. ¶ 157. Another official later approved that termination. Compl. ¶ 176. But the
same official, like Gayle, “had knowledge” of Reid’s prior activism. Compl. ¶ 177. In fact, he
was “involved in” cases in which Reid had helped colleagues file complaints. Compl. ¶¶ 178–80.
Reid thus considers him “bias[ed]” against her. Compl. ¶ 181.
The Administration later “retracted” that firing. Compl. ¶ 182. So Gayle tried again, for
the same reasons as before. See Compl. ¶¶ 198–200. Another official approved that termination
too. Compl. ¶ 204. And again, that approving official knew about Reid’s reputation and proclivity
Michael S. Schmidt, Gunman Said Electronic Brain Attacks Drove Him to Violence, F.B.I. Says,
N.Y. Times (Sept. 25, 2013), https://www.nytimes.com/2013/09/26/us/shooter-believed-mind-
was-under-attack-official-says.html.
2
The record explains that Gayle claimed that Plaintiff “became visibly angry . . . stood up, pointed
in a fashion that reasonably could be interpreted as a gun, and said, ‘Remember the Navy Yard
Shooting?’” ECF No. 25-1 at 34; see also id. at 27, 202.
6
for protest. Compl. ¶¶ 205–06. Reid attributes the second firing to the same retaliatory animus
that she says motivated the first. See Compl. ¶ 209.
The Administration also retracted the second firing. Compl. ¶ 208. Gayle thus tried yet
again, and again she briefly succeeded. Compl. ¶ 211. But once more—for reasons outside the
scope of this case—Reid’s employment was “restored.” Compl. ¶ 211. 3 So as of the filing of the
operative complaint, Reid still works at the Administration.
During that ping-ponging series of firings and retractions, the Administration also denied
Reid a scheduled pay raise. Compl. ¶ 183. It based that denial on Gayle’s assessment that Reid’s
work performance was “unacceptable.” Compl. ¶ 184. Reid believes that assessment was flawed
because legitimate obstacles prevented her from completing the assignments used to justify that
rating. See Compl. ¶¶ 186–95. That denied raise, she explains, also “impacted her employment
benefits for” years. Compl. ¶ 197.
Despite three attempted firings and a denied pay raise, the Administration believes it has
wiped that slate clean. Not only has it rescinded its firings, ECF No. 25-1 at 48, 78, but it tried to
make it as though Reid had “never left [her] position,” id. at 78. That is, it gave her back pay and
retroactive benefits covering the periods for which she was away from the Administration. Id. at
44–46, 78–80. It also gave her the pay raise and made it retroactive so it would include back pay
and interest. See id. at 107–93. And it removed references to her termination from her personnel
file. Id. at 44, 78. The Administration did not, however, admit wrongdoing. See generally id.
Reid does not contradict those claims. See ECF No. 32-1 at 11 n.5. Instead, she highlights
other harms stemming from the abortive firings that she says are unremedied: “emotional distress,
3
Plaintiff explains that her complaint “explicitly does not raise any issues, claims[,] or demand for
damages” arising from this attempted firing or restoration. Compl. ¶ 36 (emphasis deleted).
7
attorneys’ fees, and other losses to be proved at trial,” id., which may include “damage to
her . . . reputation,” Compl. ¶ 217. And she observes that no “tribunal” has “made a determination
in [her] favor regarding whether retaliation was an illegal factor that tainted the [Administration’s]
decision-making.” ECF No. 32-1 at 12. Also uncovered by those redresses are other allegedly
retaliatory decisions, as summarized by Reid’s complaint: the two denials of official time to attend
conferences, another denial of official time to help a colleague file a complaint, the issuance of the
letter of caution, the “unacceptable” performance rating, and the imposition of administrative leave
and the accompanying email lockout. See Compl. ¶ 226.
B. Procedural History
In May 2020, Reid sued the Secretary of Transportation, alleging that she suffered discrim-
ination and unlawful retaliation and that she was subject to a hostile work environment. ECF No. 1
¶¶ 115–59. Defendant moved to dismiss for failure to state claims, ECF No. 9 at 11–20, and al-
ternatively sought partial summary judgment on putatively unexhausted or untimely aspects of
those claims, id. at 9–11. In response, Reid amended her complaint, ECF No. 16, and Defendant
reasserted his motion, ECF No. 18. Reid then sought leave to amend her complaint again, ECF
No. 23, which the Court granted, Minute Order of Feb. 4, 2022; see also ECF No. 28. As amended,
her complaint asserts only the retaliation claim. See Compl. ¶¶ 221–36.
Defendant now moves to dismiss Reid’s Second Amended Complaint. ECF No. 29. He
says the Court lacks subject-matter jurisdiction over the aspects of Reid’s claim that the Admin-
istration has already remedied. Id. at 10–11. He also seeks, alternatively, summary judgment on
claims he says are remedied, unexhausted, or otherwise untimely. Id. at 11–13. In remaining part,
he contends that Reid has failed to state claims because her unremedied allegations are de minimis
and, alternatively, because her allegations do not plausibly imply that the Administration retaliated
against Reid for protected activity. Id. at 13–19.
8
II. Legal Standards
Defendant’s Motion relies on Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 56.
Under Rule 12(b)(1), a plaintiff has the burden to establish the Court’s subject-matter ju-
risdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). Among other things, that
means showing “standing for each claim [a plaintiff] seeks to press and for each form of relief that
is sought.” Davis v. FEC, 554 U.S. 724, 734 (2008) (quotations omitted). In evaluating its juris-
diction at the pleading stage, the Court generally should “assume the truth of all material factual
allegations in the complaint and . . . grant[ Plaintiff] the benefit of all inferences that can be derived
from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quo-
tation omitted). But the Court may consider the allegations in a plaintiff’s complaint, undisputed
facts in the record, and, if necessary, its resolution of disputed facts. Coal. for Underground Ex-
pansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003).
Under Rule 12(b)(6), a plaintiff’s complaint must “contain sufficient factual matter . . . to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation omitted). A claim is plausible if “it contains factual allegations that, if proved, would
allow the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (quotation omitted).
Again, the Court must “accept all the well-pleaded factual allegations of the complaint as true and
draw all reasonable inferences from those allegations in the plaintiff's favor.” Id. (quotation omit-
ted). But it must disregard “a legal conclusion couched as a factual allegation.” Cason v. NFL
Players Ass’n, 538 F. Supp. 3d 100, 109 (D.D.C. 2021) (quotation omitted).
When moving to dismiss under Rule 12(b)(6), parties may also present “matters outside
the pleadings.” Fed. R. Civ. P. 12(d). If the Court considers those matters, “the motion must be
treated as one for summary judgment under Rule 56.” Id. In that event, the Court may grant
9
judgment to the moving party if “both sides had a reasonable opportunity to present evidence and
there are no genuine issues of material fact.” Wiley v. Glassman, 511 F.3d 151, 160–61 (D.C. Cir.
2007); see also Fed. R. Civ. P. 12(d), 56. A fact dispute is material if it “might affect the outcome
of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact dispute is genuine if the evidence would permit a “reasonable jury [to] return a verdict for
the nonmoving party.” Id. That procedure does not apply to motions under Rule 12(b)(1), which
do not restrict the Court to the face of the complaint anyway. See Haase v. Sessions, 835 F.2d
902, 906 (D.C. Cir. 1987).
III. Analysis
As amended, Reid’s complaint asserts only a retaliation claim. See Compl. ¶¶ 221–36.
That claim is based on all of the allegedly retaliatory actions already discussed, including the now-
rescinded terminations and denial of a pay raise. See Compl. ¶ 226. Reid seeks these forms of
relief: (1) a judgment declaring that the Administration unlawfully retaliated against her, (2) an
injunction against “future retaliation and discrimination,” (3) “compensatory damages,” which the
Court understands to refer to the alleged emotional and reputational harms already discussed,
(4) “reasonable attorneys’ fees, court costs, and expenses,” and, perhaps vestigially, (5) “full back
and front pay, including salary [and other] benefits . . . retroactive to the date of any unlawful ac-
tion . . . [and] expungement of her official personnel file.” Compl. at 47–48.
Of course, the Court cannot address her claim unless it first determines that it has subject-
matter jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). So it
begins by explaining why Reid has established that she has standing to seek each form of relief
requested in her complaint.
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A. The Court Has Subject-Matter Jurisdiction Because Reid Identifies Aspects of
Her Claims that Are Not Satisfied
The Court’s jurisdiction is limited to “actual cases or controversies.” Simon v. E. Ky. Wel-
fare Rts. Org., 426 U.S. 26, 37 (1976); see also U.S. Const. art. III, § 2. Among other things, a
live case or controversy requires that a party retains a “concrete interest, however small, in the
outcome of the litigation.” See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160–61 (2016)
(quotation omitted). “The doctrine of standing generally assesses whether that interest exists at
the outset” of litigation. Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021). The Supreme
Court has long recognized that litigants lack standing to bring claims where a claimant already
“has obtained everything that [she] could recover . . . by a judgment . . . in [her] favor.” California
v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314 (1893). Under that doctrine, “a complaint filed
in federal court cannot include” claims that have already been “satisfactorily resolved in [a claim-
ant’s] favor.” Payne v. Salazar, 619 F.3d 56, 60–61 (D.C. Cir. 2010).
Defendant says that principle divests the Court of jurisdiction here. He explains that Reid
“lacks standing for any claim for the . . . removals and the denial of a . . . pay increase because the
agency’s rescission of these actions means it resolved those claims in her favor.” ECF No. 29
at 10 (citing Payne, 619 F.3d at 61). He thus contends that the Court must dismiss Reid’s claim
under Rule 12(b)(1) insofar as it arises from those events. Id. at 11.
The Court disagrees. Although the parties agree that the Administration rescinded those
actions, scrubbed her files of references to them, and gave Reid back pay and interest—and even
if there were such a dispute, the record amply supports such a finding—that does not mean her
claim is fully resolved such that she lacks a concrete interest. Reid claims that, among other things,
the Administration must compensate her for emotional and reputational harms arising from the
same events. See Compl. ¶ 217. The Administration has not compensated her for those demands,
11
and so the Court cannot conclude that her claim has been “satisfactorily resolved.” Payne, 619
F.3d at 61. To whose satisfaction could that legal standard refer if not Reid’s?
Payne illustrates why Reid’s claim should not be dismissed for lack of subject-matter ju-
risdiction. There, the plaintiff did not wish to bring her already-successful claim. See Payne, 619
F.3d at 58–59. But the government argued she had to bring that claim alongside another that she
wished to assert because she had brought both claims during administrative proceedings, and it
argued judicial review of an agency decision was “an all-or-nothing proposition.” Id. at 60 (quo-
tation omitted). In rejecting that contention, the D.C. Circuit mentioned that federal courts lack
jurisdiction over claims where no relief remains contested. See id. at 61. But it knew the claim
had been “satisfactorily resolved” because the plaintiff did not “believe herself aggrieved.” See
id. (emphasis added). Not so here.
Other analogous cases involved offers to pay all damages a plaintiff sought. The Supreme
Court has, for example, confronted claims of mootness when a defendant tenders a settlement offer
that “fully satisfies a plaintiff’s claim.” E.g., Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66,
72–73 (2013) (assuming without deciding that such an offer renders a Fair Labor Standards Act
collective action moot). In such cases, defendants structured offers of judgment to satisfy every-
thing—including costs and, where available, attorney’s fees—that plaintiffs had identified as their
damages. See, e.g., id. at 69–70; Campbell-Ewald, 577 U.S. at 157–58. That is a far cry from
crediting a defendant’s assessment of what relief has fully “remedied” a plaintiff’s claim. See ECF
No. 29 at 10. And anyway, the Supreme Court has clarified that an unaccepted offer of judgment,
even one for all the relief an individual plaintiff seeks, does not nullify a plaintiff’s interest in
continuing suit. Campbell-Ewald, 577 U.S. at 162–65. A plaintiff thus retains some latitude to
define the scope of the controversy. See id. at 165.
12
The rule Defendant invokes is, after all, about adversity between the parties. The judicial
power, as the Supreme Court explained in San Pablo & Tulare, is limited to “determining rights
of persons or of property which are actually controverted.” 149 U.S. at 314. And it drew that
principle from cases in which the Court had refused to decide “feigned” disputes manufactured in
hopes of achieving some holding. See Lord v. Veazie, 49 U.S. (8 How.) 251, 255 (1850); see also,
e.g., Am. Wood-Paper Co. v. Heft, 75 U.S. (8 Wall.) 333, 336 (1869) (A “case should not be heard
by this court” if “there would be the same interest [in damages] on both sides.”). But adversity
remains on Reid’s claim because she demands compensation for emotional and reputational harms
that the Administration has not paid and does not wish to pay. In other words, some damages are
“actually controverted.” San Pablo & Tulare, 149 U.S. at 314.
Thus, even if Reid is not entitled to the forms of relief she seeks, that is not a jurisdictional
defect. The Supreme Court has warned against “profligate” uses of the term “jurisdiction.” See
Arbaugh v. Y&H Corp., 546 U.S. 500, 510 (2006). A plaintiff’s inability to satisfy “an element of
[her] claim for relief” does not vitiate “a court’s power to hear a case.” See id. at 514–16 (quotation
omitted). If that were so, there would be little if any distinction between dismissals under Rules
12(b)(1) and 12(b)(6). The distinction between such dismissals is, in this context, the difference
between the relief Reid seeks and that to which the law entitles her.
This Court has subject-matter jurisdiction over Reid’s claim because she alleges unreme-
died harms stemming from the challenged acts. The Court will thus deny Defendant’s motion
insofar as it seeks dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1).
B. Defendant Is Entitled to Partial Summary Judgment Insofar as Reid’s Claim
Arises from Acts the Administration Has Remedied
The Court will, however, grant Defendant partial summary judgment on Reid’s claim in-
sofar as it arises from the rescinded firings and denied pay raise.
13
At the outset, the Court finds Reid had adequate notice of Defendant’s motion for summary
judgment. Rule 12(d) requires that parties receive “a reasonable opportunity to present all the
material that is pertinent to the motion.” In deciding whether a party had such an opportunity
before discovery, courts have considered how the movant captioned the motion, whether the mo-
tion relies on attached exhibits, and whether the parties have filed statements of material facts
under Local Rule 7(h). See, e.g., Langley v. Napolitano, 677 F. Supp. 2d 261, 263 (D.D.C. 2010);
Dean v. Walker, 876 F. Supp. 2d 10, 12 (D.D.C. 2012). The goal is to ensure that the court’s
reliance on matters outside the pleadings does not take the nonmoving party “by surprise.” Tefera
v. OneWest Bank, FSB, 19 F. Supp. 3d 215, 221 (D.D.C. 2014) (quotation omitted).
Reid could not reasonably be surprised at the Court’s consideration of Defendant’s exhibits
showing that the Administration already gave her part of what she seeks. Defendant captioned his
motion, in the alternative, as one for “partial summary judgment,” ECF No. 29 at 1, specifically
asked for summary judgment on these claims, id. at 11–12, and, in doing so, relied on matters
outside the pleadings, including his statement of material facts, id. at 10–12; see also ECF Nos. 25-
1, 29-1. Reid’s response acknowledges Defendant’s request for partial summary judgment, see
ECF No. 32-1 at 1, and she filed a counterstatement of material facts, ECF No. 32-2. Because she
had a reasonable opportunity to respond to Defendant’s use of matters outside the pleadings, the
Court treats Defendant’s motion on the merits of Reid’s claim vis-à-vis the rescinded firings and
denied pay raise as one for summary judgment.
Reid may not, of course, recover for the same harms twice. Remedies under Title VII
should restore wronged parties to the “position where they would have been were it not for the
unlawful discrimination.” Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976) (quotation
omitted). For that reason, “courts can and should preclude double recovery.” See Gen. Tel. Co.
14
of the Nw. v. EEOC, 446 U.S. 318, 333 (1980). Summary judgment for an employer is thus ap-
propriate when a plaintiff seeks damages for “the exact injury she was compensated for already.”
Buter v. White, 67 F. Supp. 3d 59, 72 (D.D.C. 2014).
Moreover, the D.C. Circuit has recognized that “[a]n employer may cure an adverse em-
ployment action . . . before that action is the subject of litigation.” Taylor v. Small, 350 F.3d 1286,
1293 (2003). In Taylor, the plaintiff’s employer gave her a series of poor performance reviews,
which led to a lower bonus. Id. Although the loss of bonus money is cognizable under Title VII,
the Circuit held that her employer cured any violation when it “corrected the evaluation and paid
the proper bonus.” Id. at 1293–94. Asserting her claims in court required the plaintiff first to bring
her claims to an Equal Employment Opportunity counselor and then give the agency time to act
on the complaint. See Martini v. Fed. Nat’l Mortg. Ass’n, 178 F.3d 1336, 1347 (D.C. Cir. 1999).
Such an exhaustion requirement would be meaningless, as the D.C. Circuit explained, if “a plaintiff
were permitted a right to sue even if his or her employer had corrected the grievance.” Taylor,
350 F.3d at 1294 (quotation omitted).
Reid points out that Taylor was decided under the discrimination standard—“adverse ac-
tion”—not the retaliation standard—“materially adverse.” ECF No. 32-1 at 13 n.8. That distinc-
tion matters in some contexts, but not here. See generally Chambers v. District of Columbia, 35
F.4th 870, 876–77 (D.C. Cir. 2022) (en banc) (comparing the two types of claims). Retaliation
claims are subject to an exhaustion requirement too. See Tyes-Williams v. Whitaker, 361 F. Supp.
3d 1, 10–11 (D.D.C. 2019) (citing 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.105(a)(1)). Al-
lowing Reid to assert such a claim based on harms for which she already got compensation would
no less “undermine” Congress’s “policy of encouraging informal resolution” during the exhaustion
period, Murthy v. Vilsack, 609 F.3d 460, 464 (D.C. Cir. 2010) (quotation omitted), than it would
15
have in Taylor. And the legal standard for assessing whether acts are concrete enough to constitute
retaliation is irrelevant to whether a plaintiff’s damages have been remedied. Both rationales for
granting summary judgment thus apply with full force.
There is no genuine dispute about whether the Administration already gave Reid the back
pay, benefits, and expungement she seeks. Defendant has submitted the Administration’s employ-
ment records showing that. ECF No. 25-1 at 44–46, 78–80, 107–93. And Reid does not say
otherwise. 4 Thus, there is no evidence from which a “reasonable jury” could find that the Admin-
istration failed to render to Reid the back pay, retroactive benefits, and expungement associated
with nullifying the two attempted firings and the denied pay raise. See Anderson, 477 U.S. at 248;
Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150–51 (D.C. Cir.
1996) (holding that a nonmoving party must “point[ ] to ‘affirmative evidence’ showing disputed
material facts” to survive a summary-judgment motion (quoting Anderson, 477 U.S. at 256–57)).
Reid gestures at alleged emotional or reputational harms to try to preserve her claim, but
ultimately, she comes up well short of the mark. She is right that reinstatement and a retroactive
raise with back pay and interest do not automatically cure any past retaliation. Retaliation via “a
diminution in pay or benefits” can still qualify as a materially adverse action “even when the em-
ployer later provides back pay.” Greer v. Paulson, 505 F.3d 1306, 1317–18 (D.C. Cir. 2007).
That is because even a temporary loss of “cash flow can cause serious financial hardship.” Spector
v. District of Columbia, No. 17-CV-1884 (CJN), 2020 WL 977983, at *11 (D.D.C. Feb. 28, 2020).
4
Reid deflected in response to that evidence by noting that “Defendant has not compensated [her]
for emotional distress, attorneys’ fees, and other losses to be proved at trial.” ECF No. 32-1
at 11 n.5. Later, she explains that she also still needs an injunction against further retaliation and
a declaratory judgment. Id. at 11–13 & n.6. But her statement of disputed facts, submitted in
response to Defendant’s statement, see LCvR 7(h)(1), does not even mention the Administration’s
reparative actions.
16
It is thus conceivable that any hardship resulting from such a retaliatory act, including consequent
emotional harms, could remain remediable and prevent summary judgment. See 42 U.S.C.
§ 1981a(a)–(b) (permitting a plaintiff to recover for, among other things, “emotional pain”). 5
But Reid has provided no evidence—or even specific allegations—of such harms linked to
the specific allegedly retaliatory acts that the Administration remedied through back pay, benefits,
and expungement. Reid “bears the burden of proving she suffered noneconomic injuries such as
emotional distress, pain and suffering, [and] reputational harm.” Jean-Baptiste v. District of Co-
lumbia, 931 F. Supp. 2d 1, 14 (D.D.C. 2013). Such harms “cannot be presumed.” Peyton v.
DiMario, 287 F.3d 1121, 1126 (D.C. Cir. 2002). Because Reid opposes Defendant’s motion for
summary judgment based on these harms, she needs “affirmative evidence,” Jackson, 101 F.3d at150–51, that she, for example, “became depressed, angry, and suffered a loss of self-esteem” on
account of these specific allegedly retaliatory acts. Peyton, 287 F.3d at 1126. Instead, she simply
offers a vague reference, buried in a footnote in her opposition, that she suffered “emotional dis-
tress.” ECF No. 32-1 at 13 n.8. That won’t do. She has failed to provide “evidence on which the
jury could reasonably find” that she experienced such harm related to these specific allegations.
Anderson, 477 U.S. at 252.
Nor can attorney’s fees help Reid here. Title VII allows courts to award attorney’s fees to
the “prevailing party” in a civil action. 42 U.S.C. § 2000e-5(k). Such fees thus enter the picture
only once a party has prevailed—they cannot be the basis for a party’s prevailing. Cf. Doe v.
5
Emotional distress or reputational damage cannot themselves serve to make an alleged retaliatory
action materially adverse, such that a plaintiff may base a retaliation claim on them. See EEOC v.
Fox News Network, LLC, 806 F. Supp. 2d 128, 137 (D.D.C. 2011) (“Emotional distress and other
purely subjective injuries . . . have been consistently rejected in our Circuit as legally sufficient to
constitute a materially adverse action . . . .”); Rhone v. U.S. Capitol Police, 865 F. Supp. 2d 65, 70
(D.D.C. 2012) (rejecting the materiality of “loss[es] of reputation,” including those that stem from
“[f]alse accusations,” where there are no “accompanying negative employment consequences”).
17
Chao, 540 U.S. 614, 625 n.9 (2004) (explaining that a similar argument would “get the cart before
the horse”). Any award of attorney’s fees would be a “post-judgment matter collateral to a decision
on the merits.” McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1315 (2d Cir. 1993).
No injunction against future retaliation is appropriate either. Injunctions against future
unlawful retaliation, like other injunctions, require an “irreparable injury” and evidence showing
“imminence of further retaliation.” Wagner v. Taylor, 836 F.2d 566, 576 (D.C. Cir. 1987). Even
assuming that future retaliation against Reid would irreparably harm her, she has neither allega-
tions nor evidence that could satisfy the imminence requirement. Her complaint merely asks the
Court to “[e]njoin the [Administration] from future retaliation and discrimination,” Compl. at 48,
and her brief opposing Defendant’s motion notes that further relief is possible by “enjoining De-
fendant from taking illegal actions,” ECF No. 32-1 at 11 n.6. But the Administration, of course,
already must refrain from illegal retaliation. The Court cannot issue an obey-the-law injunction;
any order must “describe in reasonable detail . . . the act or acts restrained or required.” Fed. R.
Civ. P. 65(d)(1)(C). Without an imminent retaliatory act with particular form, the Court could not
produce “an operative command capable of enforcement.” Int’l Longshoremen’s Ass’n v. Phila.
Marine Trade Ass’n, 389 U.S. 64, 74 (1967) (quotation omitted).
Finally, a declaratory judgment would “serve no useful purpose.” Wilton v. Seven Falls
Co., 515 U.S. 277, 288 (1995). As both the Supreme Court and the D.C. Circuit have recognized,
it is within this Court’s discretion to decline to entertain a request for a declaratory judgment. See
Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 401 (D.C. Cir. 2012) (citing Wilton, 515 U.S.
at 288). In exercising that discretion, courts should strive for “practicality and wise judicial ad-
ministration.” Wilton, 515 U.S. at 288. And among the relevant factors is “whether other remedies
are available.” Gov’t Emps. Ins. Co. v. Rivas, 573 F. Supp. 2d 12, 14–15 (D.D.C. 2008) (quoting
18
Jackson v. Culinary Sch., 27 F.3d 573, 580 (D.C. Cir. 1994)). Here, not only are other remedies
available, but they have already become effective. The Court thus finds that it would be an unwise
use of judicial resources to exhume rescinded nullities for a purely declaratory order.
At bottom, insofar as Reid’s claim is based on the attempted terminations and the denied
pay raise, the Administration has already given her the cognizable element of what she seeks: “full
back and front pay, including salary [and other] benefits . . . retroactive to the date of any unlawful
action [and] expungement of her official personnel file.” Compl. at 47–48. So the Court will grant
partial summary judgment for Defendant.
C. Reid’s Remaining Allegations Do Not Identify a Materially Adverse Retalia-
tory Action by the Administration
That conclusion leaves several other allegedly retaliatory acts at issue. They are three de-
nials of the use of official time, a letter of caution, a performance evaluation, the imposition of
administrative leave, and the suspension of access to Reid’s official email. See Compl. ¶ 226.
Defendant moves to dismiss Reid’s claim insofar as it is based on those allegations, arguing that
the alleged acts do not state a claim because they are not materially adverse. ECF No. 29 at 16–
19. The Court agrees.
A materially adverse action is one that “might have ‘dissuaded a reasonable worker from
making or supporting a charge of discrimination.’” White, 548 U.S. at 68 (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). That standard requires “objectively tangible
harm.” Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (quotation omitted). Examples
include a “reduction in grade, pay, or benefits,” an “extraordinary reduction in responsibilities that
persisted for years,” id., and a transfer that diminishes the employee’s responsibilities, see Pardo-
Kronemann v. Donovan, 601 F.3d 599, 607 (D.C. Cir. 2010). The antiretaliation provision’s role
is to prevent “employer interference with unfettered access to Title VII’s remedial mechanisms,”
19
so the Court must focus on acts with an objectively realistic probability of doing so, not to enforce
a “general civility code.” See Chambers, 35 F.4th at 876–77 (quotations omitted).
At the pleading stage, a court should accept a plaintiff’s allegations as true and decide
whether, as a matter of law, the challenged acts were materially adverse. See, e.g., Hornsby v.
Watt, 217 F. Supp. 3d 58, 64–69 (D.D.C. 2016); Tyes-Williams, 361 F. Supp. 3d at 13–14; Zelaya
v. UNICCO Serv. Co., 733 F. Supp. 2d 121, 129–131 (D.D.C. 2010). That is, courts ask whether
the allegedly retaliatory act would “deter a reasonable employee from filing a discrimination
claim.” Zelaya, 733 F. Supp. 2d at 131. Alleged harms also must not be “unduly speculative” in
terms of whether or how the act affected the plaintiff. See Bridgeforth v. Jewell, 721 F.3d 661,
663–65 (D.C. Cir. 2013) (quotation omitted).
A threshold question is whether the Court should aggregate the alleged actions or consider
them individually. Some courts have suggested “that a series of independent actions taken to-
gether, none of which would be considered [material adversity] alone, can constitute [material
adversity] in totality.” Taylor v. Mills, 892 F. Supp. 2d 124, 148 (D.D.C. 2012) (quotation omit-
ted). As this Court explained in Tyes-Williams, courts in this district have split about how to decide
whether to aggregate. 361 F. Supp. 3d at 13–14 (collecting cases). This Court there endorsed a
“case-by-case” approach, and it adopts that approach again here. Id. at 13 (quotation omitted).
Individual consideration is more appropriate for these allegations. The incidents of which
Reid complains span many months. The denials of the use of official time happened in January
2013, Compl. ¶ 63, January 2014, Compl. ¶ 96, and March 2014, Compl. ¶ 99. Reid received the
letter of caution in April 2014, Compl. ¶ 113, the performance evaluation in August 2014, ¶ 127,
and was placed on administrative leave a few days later, ¶¶ 136–39. The diffuse timing of most
of those incidents does not support the inference that they had a collective deterrent effect.
20
Still, Reid repeatedly asserts that the whole effect was greater than the sum of the parts.
See ECF No. 32-1 at 29 (describing a “pattern of antagonism”); id. at 30 (describing “palpable,
daily fear, worry, and panic”); id. at 33 (describing an act as a “link in a chain of events”); id. at
35 (describing a “web of retaliatory antipathy”). She explains that, in federal service, termination
takes a long time and must be supported by a robust record of misconduct. Id. at 36–39. In that
context, she says, all these facts are “intertwined” with the Damoclean threat of eventual termina-
tion, which ultimately materialized here. Id. at 38–39.
But that argument amounts to nothing but an assertion of “subjective fears and perceptions
about [her] job security.” Taylor, 892 F. Supp. 2d at 149 (holding that such fears do not warrant
aggregating independent actions). Presumably, most employees who experience minor rebukes
are concerned that those may lead to more serious consequences. If anything, such fears are less
salient in federal service if, as Reid has described it, it is harder for an employer to fire an em-
ployee. And a termination or attempted termination can be considered for its own effect—as has
already happened here.
At bottom, Reid alleges nothing unique about the Administration’s actions that would war-
rant an “incidents-collectively-viewed” approach. See Baloch v. Norton, 517 F. Supp. 2d 345,
362–63 (D.D.C. 2007) (providing the example, from an Eleventh Circuit case, of a manager who
“mis-scheduled the plaintiff’s work hours, denied her a lunch break, surveyed co-workers for com-
plaints about her, reprimanded her, suspended her for one day and threatened to shoot her in the
head”). Mindful that most cases warrant treating alleged forms of retaliation as “discrete acts,”
the Court will do so here. See Tyes-Williams, 361 F. Supp. 3d at 13–14 (quoting Nat’l R.R. Pas-
senger Corp. v. Morgan, 536 U.S. 101, 114 (2002)).
21
Start, then, with Gayle’s restrictions on Reid’s use of official time. As Reid explains, the
use of official time for nonwork activities or for work during off hours is essentially a form of paid
leave because it allows employees either to take later time off from work or to avoid working
overtime. See ECF No. 32-1 at 15 n.9. So the problem for Reid’s position is that the denial of a
few hours’ leave is not a material harm. See Lurensky v. Wellinghoff, 167 F. Supp. 3d 1, 18 (D.D.C.
2016); Ramsey v. Moniz, 75 F. Supp. 3d 29, 54 (D.D.C. 2014); Dorns v. Geithner, 692 F. Supp.
2d 119, 133 (D.D.C. 2010). To be material, as one court has explained, such a denial must concern
“either a significant period of time—[at least] three to four weeks,” or some independent “financial
harm arising out of the denial.” Lurensky, 167 F. Supp. 3d at 17–18 (citing Childs-Pierce v. Utility
Workers Union, 383 F. Supp. 2d 60, 65 (D.D.C. 2005), and Diggs v. Potter, 700 F. Supp. 2d 20,
43 (D.D.C. 2010)).
Reid’s allegations of official-time denials concern four hours, Compl. ¶ 64, two hours,
Compl. ¶ 97, and seven hours, Compl. ¶ 98, of requested leave, falling far short of that line. Reid
also alleges no independent financial harm, such as the loss of pay, from these denials. See Diggs,
700 F.2d at 43. And her third allegation does not even represent that the seven hours of official-
time use was denied outright; instead she says Gayle told her she could not use official time on the
requested day because Gayle wished to meet with her about an assignment. See Compl. ¶¶ 98–
99. If the inability to use seven hours of leave is an immaterial harm, it follows a fortiori that
Gayle’s rescheduling of leave was immaterial.
The letter of caution and the “unacceptable” performance review were even less weighty.
Such warnings “typically constitute adverse actions only when attached to financial harms.”
Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008). Negative feedback, so long as it is
not “abusive,” is not necessarily harm at all because it “can prompt an employee to improve her
22
performance.” Id. (quotation omitted). An employee must therefore show that “her grade or salary
was adversely affect[ed] by any of her evaluations.” Hargrove v. AARP, 205 F. Supp. 3d 96, 115
(D.D.C. 2016).
Reid did not allege that Gayle or any other manager used abusive language in reprimanding
her. See Compl. ¶¶ 108–35. Instead, she contradicts apparent allegations that she acted abusively.
See Compl. ¶¶ 129–31. So even if abusive language can conceivably push negative feedback over
the materiality line, there is no basis for that inference here.
Reid does, however, allege that the performance review caused one form of tangible finan-
cial harm: She explains that it was the basis for the denied pay increase. See Compl. ¶¶ 183–84.
But the Administration nullified that harm, as the Court has already held, by retroactively awarding
that raise and paying the difference with interest. Reid alleges no other independent consequences
from that evaluation. So even if that allegation ordinarily would state a claim, having already
concluded that summary judgment is appropriate for the alleged consequence itself, there remains
no unremedied harm from the performance review. 6
Still, as the Court has already explained, “a diminution in pay or benefits can suffice even
when the employer later provides back pay,” Greer, 505 F.3d at 1317, because even a temporary
loss of “cash flow can cause serious financial hardship.” Spector, 2020 WL 977983, at *11. Given
that the focus of this inquiry is ultimately on the objective likelihood that a reasonable worker
would be dissuaded from making a discrimination claim, see White, 548 U.S. at 68–69, there are
cases in which a later remedy is inadequate to dispel the inference of material adversity. But this
is not such a case. For one thing, Reid does not here allege a “diminution” in pay, but a failure to
6
Insofar as this conclusion requires fresh consideration of matters outside the pleadings, the Court
treats this portion of Defendant’s motion as one for summary judgment under Rule 12(d) for the
reasons already stated. Supra Section II.B.
23
increase pay. See Greer, 505 F.3d at 1317; Compl. ¶ 197. She also alleges nothing about her
financial situation that would permit the inference that a stagnant salary caused her “serious finan-
cial hardship.” Spector, 2020 WL 977983, at *11. A temporary withholding of additional money
does not present the same power to dissuade as does the disruption of a regular salary on which an
employee may have based her extant financial commitments.
The Court cannot infer that the reproaches were delivered abusively, that they had unrem-
edied financial consequences, that they caused temporary diminutions in pay or benefits, or that
they exerted comparable dissuasive pressure. Thus, neither the letter of caution nor the “unac-
ceptable” performance review amounts to a materially adverse action.
The story is the same for Reid’s placement on administrative leave. “[P]lacing an em-
ployee on paid administrative leave does not, in and of itself, constitute a materially adverse ac-
tion.” Hornsby, 217 F. Supp. 3d at 66; accord Webster v. Spencer, No. 17-CV-1472 (DLF), 2020
WL 2104231, at *9 (D.D.C. May 1, 2020). One court in this district has recognized a distinction
between paid leave pending an investigation and paid leave as an explicit “punishment for a con-
cluded investigation.” Wesley v. Georgetown Univ., No. 18-CV-1539 (BAH), 2018 WL 5777396,
at *6 (D.D.C. Nov. 2, 2018). But any such distinction is immaterial here because Reid alleged that
her leave was instituted “pending investigation of allegations” of misconduct. Compl. ¶ 139. This
case is thus of the ordinary variety where paid leave imparts no tangible consequences.
Finally, that Reid could not access her official email account during that leave makes no
difference. Reid’s expressed desire to retain email access so that other “[e]mployees seeking to
assert their . . . rights [could] easily locate [her],” ECF No. 32-1 at 41, is precisely the sort of “un-
usual subjective feeling[ ]” that the objective standard for material adversity must discount, see
White, 548 U.S. at 68–69. No doubt, the ability to help coworkers assert their rights is important
24
to many people, including Reid. But it beggars belief to claim that the prospect of temporarily,
during a period of paid administrative leave, having to do so by one’s “personal” email account,
Compl. ¶ 154, is alone enough to “deter a reasonable employee from complaining about discrimi-
nation,” White, 548 U.S. at 69. Reid cites no caselaw suggesting that such a harm is material, or
even addressing a similar issue, see ECF No. 32-1 at 40–43—and that paucity may itself say some-
thing about the reasonableness of her assessment of harm. The few cases that address similar
circumstances have declined to hold such a harm is material. 7 This Court will do the same.
* * *
Having already rendered summary judgment for Defendant on the actions that imposed
tangible harm on Reid (but were remedied), the Court holds that none of the remaining allegedly
retaliatory acts are sufficiently likely to dissuade a reasonable employee from reporting discrimi-
nation. Reid thus has not stated a retaliation claim based on the live allegations. Because that
conclusion relies on the nature of the alleged harms and not insufficient information about them—
and because Reid has already amended her complaint twice—the Court finds that deficiency can-
not be cured with new factual allegations. See Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.
Cir. 1996). So Reid’s complaint will be dismissed in remaining part with prejudice.
7
See Parker v. Arizona, No. 17-CV-887 (DWL), 2019 WL 2136290, at *9 (D. Ariz. May 13,
2019); Anderson v. Hibu, Inc., 26 F. Supp. 3d 1019, 1027 (D. Or. 2014); Frey v. Berkley Specialty
Underwriting Managers, LLC, No. 10-CV-4114 (CAP), 2013 WL 12291870, at *3 (N.D. Ga. Feb.
13, 2013); cf. also Hashemian v. Louisville Reg’l Airport Auth., No. 3:09-CV-951 (TBR), 2010
WL 3001972, at *6 (W.D. Ky. July 28, 2010) (retaliation under the Family and Medical Leave
Act); Castro v. Chertoff, No. 06-CV-20512 (TEB), 2007 WL 9702154, at *7–8 (S.D. Fla. July 27,
2007) (revocation of email access where employee was not on leave); Toland v. Potter, Nos. 05-
CV-2409, 06-CV-2068 (JWL), 2007 WL 1695196, at *7 (D. Kan. June 8, 2007) (removal of com-
puter in antidiscrimination claim); but see EEOC v. Se. Telecomm., Inc., 780 F. Supp. 2d 667, 686–
87 & n.5 (M.D. Tenn. 2011) (holding that the revocation of email access could be materially ad-
verse where it was paired with a suspension and the employee was paid in part by commissions).
25
IV. Conclusion
For all the above reasons, the Court will deny Defendant’s motion insofar as it seeks dis-
missal for lack of subject-matter jurisdiction, grant partial summary judgment for Defendant on
Reid’s claim insofar as it stems from the rescinded firings and denied pay increase, and dismiss in
remaining part Reid’s complaint for failure to state a claim. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: February 23, 2023
26