Lurensky v. Wellinghoff , 167 F. Supp. 3d 1 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MARCIA A. LURENSKY, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-0890 (ABJ)
)
JON WELLINGHOFF, Chairman, )
Federal Energy Regulatory Commission )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
In this action, pro se plaintiff Marcia A. Lurensky has sued defendant Jon Wellinghoff, in
his capacity as Chairman of the Federal Energy Regulatory Commission (“FERC”), for a second
time, alleging that the agency discriminated against her based on her religion, in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); based on
her disability, in violation of the Rehabilitation Act, 29 U.S.C. § 794(a), and based on her age, in
violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633(a) (“ADEA”). 1
Plaintiff alleges that defendant took a number of distinct retaliatory and discriminatory steps, each
of which was due to one of her protected characteristics or her past EEO activity. The complaint
is primarily based on FERC’s handling of the requests for leave that plaintiff submitted after she
fractured her foot in the summer of 2005, and on a series of actions that took place after FERC
reassigned her from the Energy Projects Section of the Office of the General Counsel to the Office
of Administrative Litigation at FERC in November of that year.
1 Plaintiff’s first lawsuit against the agency, Lurensky v. Wellinghoff, 1:08-cv-1199, was filed
on July 14, 2008.
Defendant has moved to dismiss, and plaintiff has since moved for leave to amend her
complaint. Because plaintiff’s proposed amendments would be futile, and because plaintiff has
failed to state a claim upon which relief can be granted, the Court denies leave to amend, grants
defendant’s motion to dismiss, and dismisses this action.
BACKGROUND
Plaintiff is an approximately 67-year-old 2 woman, employed as a GS-15 attorney at the
Federal Energy Regulatory Commission in Washington, D.C. Compl. [Dkt. # 1] ¶ 3. Plaintiff
states that she is disabled, and she alleges that she has provided FERC with medical documentation
of her disabilities. Compl. ¶ 6. She alleges that from 1990 until 2003 when she first became an
EEO complainant, her performance reviews were “Highly Effective,” or higher. Compl. ¶ 7.
The complaint itemizes a number of events and actions, beginning in 2005, for which
plaintiff is seeking redress. On July 20, 2005, plaintiff fell as she approached FERC’s
Headquarters Building and fractured her right foot. Compl. ¶ 9. Plaintiff alleges that before that
happened, she had already voiced her dissatisfaction with the agency’s leave policies, including
the instruction “that advanced annual leave could not be used for medical purposes.” Compl. ¶ 9.
But in this action, she complains that “[b]y memorandum dated July 27, 2005, Plaintiff was told
that she would not be granted advanced leave for other than medical reasons.” Compl. ¶ 9;
Proposed Am. Compl. [Dkt. # 10-2] ¶ 10. See also Decl. of Marcia A. Lurensky, Ex. 1 to Pl.’s
Opp. to Def.’s Mot. to Dismiss [Dkt. # 7-2] (“Pl.’s Decl.”) ¶¶ 11–13; 18–22. 3 And according to
2 Plaintiff’s June 2012 complaint describes her as 64 years old.
3 While the issue to be resolved is the sufficiency of the complaint, the Court has consulted
the Declaration plaintiff submitted in opposition to the motion to shed light on allegations that are
confusing or unclear. While the complaint mentions the use of advanced annual leave, the
Declaration adds that the agency also informed plaintiff that she would not be granted advanced
sick leave.
2
the complaint, FERC also denied plaintiff’s request to work from home as she recovered. Compl.
¶ 12; Pl.’s Decl. ¶ 19.
In August 2005, plaintiff received a “Fully Satisfactory” performance appraisal rating,
which plaintiff asserts “does not reflect the quality, or credit her for the substance, of the work she
performed.” Compl. ¶ 10.
On the day after Thanksgiving in 2005, plaintiff was reassigned from her “sedentary” job
at FERC’s Office of the General Counsel to FERC’s Office of Administrative Litigation (OAL).
Compl. ¶ 10. OAL attorneys are assigned to perform duties in hearing rooms in FERC’s
Headquarters Building, which have fluorescent lighting. Id. Plaintiff adds in her Declaration that
FERC reassigned her to OAL “although having information that aspects of duties in OAL
exacerbate [her] disabilities, including exposure to fluorescent lighting in FERC’s hearing rooms.”
Pl.’s Decl. ¶ 24.
Plaintiff then turns to a period three years later and alleges that FERC delayed in
responding when she requested advanced sick leave in September and October 2008. Compl. ¶ 11.
FERC required plaintiff to submit additional medical documentation in support of her request, and
denied it in December 2008.
Also in December 2008, FERC denied plaintiff’s request that the agency remove a
Christmas garland off of a handrail in the lobby of the Headquarters Building at FERC as an
accommodation for her disabilities. Compl. ¶ 12.
On February 25, 2009, plaintiff filed a formal complaint alleging disability discrimination,
hostile work environment, and retaliation arising out of the Agency’s delayed response to her
inquiries about advanced sick leave, and its decision not to remove the garland from the lobby.
Ex. D. to Def.’s Mot. to Dismiss [Dkt. # 6-4].
3
In May 2010, FERC relocated OAL to the building located at 1110 First Street, N.E., which
plaintiff alleges did not have the same disability access, amenities, and security as her prior duty
station. Compl. ¶ 13. According to plaintiff, the equipment at the new duty station was on higher,
non-accessible countertops, and office supplies were kept in high cabinets above counters, which
plaintiff could not access, even with a stepstool. Id. The new duty station had a fitness center, but
it did not have a Health Unit or provide adequate transportation to the health unit at plaintiff’s
former duty station. Compl. ¶ 14. 4 The complaint does not specify whether this move alleviated
the fluorescent light problem posed by the previous location.
On July 2, 2010, plaintiff filed a formal complaint alleging age and disability
discrimination arising from “some 80 issues,” including the issues surrounding the relocation. Ex.
E. to Def.’s Mot. to Dismiss [Dkt. # 6-5].
Also in 2010, plaintiff complained that the Information Technology department failed to
facilitate her ability to access information about her leave and about the facilities and security at
the new building. Compl. ¶ 15. Plaintiff filed a formal EEO complaint on October 12, 2010, based
on those and other allegations. Ex. F to Def.’s Mot. to Dismiss [Dkt. # 6-6].
Plaintiff alleges that she learned in 2011 that her sensitive personal information could be
found on an unrestricted FERC shared network drive, available to all FERC employees. Compl.
¶ 16. On April 25, 2011, plaintiff filed another formal complaint alleging age and disability
discrimination, hostile work environment, and retaliation based on the disclosure of this
information and the agency’s failure to respond to her concerns. Ex. G. to Def.’s Mot. to Dismiss
[Dkt. # 6-7].
4 The Court notes that this action has been pending for some time, and that plaintiff is
currently working in a different environment and has a variable work schedule. See Hr’g Tr. [Dkt.
# 14] at 6–7.
4
In early 2011, FERC denied plaintiff’s request to telework for two specific days as an
accommodation for her disabilities. Compl. ¶ 18. Plaintiff also requested that her coworkers
undergo disability sensitivity training, but FERC never provided the training. Compl. ¶ 19. In
February 2011, plaintiff filed another complaint alleging age and disability discrimination, hostile
work environment, and retaliation arising out of those denials. Ex. H to Def.’s Mot. to Dismiss
[Dkt. # 6-8].
Plaintiff filed the instant pro se complaint on June 4, 2012. Her complaint does not allege
a specific cause of action, but rather, it sets forth the facts described above and concludes:
As a direct and proximate result of defendant’s intentional discrimination,
retaliation, and hostile work environment as set forth above, plaintiff has
suffered and will continue to suffer embarrassment, humiliation, emotional
distress, and other special and general damages.
Compl. ¶ 20. 5 Plaintiff requests that the Court permanently enjoin defendant from engaging in
illegal acts, and asks for damages under Title VII, the Rehabilitation Act, and ADEA, including:
[C]ompensatory damages, granting of accommodations, restoration of
leave, removal of performance evaluation from plaintiff’s record,
mandatory disability sensitivity training to be provided to FERC employees,
attorneys’ fees and costs expended during the administrative processes,
attorneys’ fees, if any, and costs incurred in this case, cessation of
discriminatory and retaliatory acts by the Agency against the [p]laintiff, and
such other relief as the Court may deem just and proper.
Compl. Request for Relief. At the time she filed her complaint, plaintiff filed a notice of related
case referring to the pending 2008 employment discrimination action which was then assigned to
a visiting judge, and this case was assigned to the same judge.
On August 6, 2012, defendant moved to dismiss under Federal Rule of Civil Procedure
12(b)(6). Def.’s Mot. to Dismiss [Dkt. # 6] (“Def.’s MTD”); Mem. of P. & A. in Supp. of Def.’s
5 The proposed amended complaint is also devoid of separate counts or claims, and it
concludes with a similar summary. Proposed Am. Compl. ¶ 22.
5
MTD [Dkt. # 6-1] (“Def.’s MTD Mem.”). Plaintiff opposed the motion on September 14, 2012,
Pl.’s Opp. to Def.’s Mot. [Dkt. # 7] (“Pl.’s MTD Opp.”); Pl.’s Mem. of P. & A. in Supp. of Pl.’s
Opp. [Dkt. # 7-1] (“Pl.’s MTD Mem.”), and defendant replied. Reply Mem. in Further Supp of
Def.’s Mot. [Dkt. # 9] (“Def.’s MTD Reply”).
About two weeks after the motion to dismiss was fully briefed, plaintiff moved for leave
to amend her complaint. Pl.’s Opposed Mot. for Leave to File Her First Am. Compl. & Mem. in
Supp. of Her Mot. [Dkt. # 10] (“Pl.’s Mot. for Leave”). Plaintiff’s proposed amended complaint
seeks to make three clarifications to her original complaint. Pl.’s Mot. for Leave at 2. First,
plaintiff seeks to add language to allege that prior to the 2005 incident in which she fractured her
foot, defendant had retaliated against her by revoking an existing accommodation that enabled her
to work varying hours. Id.; see also Proposed Am. Compl. ¶¶ 9–10. She alleges that she fell on
the morning of July 20, 2005 as she “tried to arrive at her duty station consistent with FERC’s
change in her duty hours.” Proposed Am. Compl. ¶ 10; see also Pl.’s Decl. ¶ 18 (“On July 20,
2005 I fell on the First Street sidewalk on approaching the FERC building because of the ongoing
discrimination, harassment, retaliation, hostile work environment, failure to be granted advanced
leave, and resultant pressure and stress to arrive at work on time (at my new, earlier, arrival time
– consistent with FERC’s 2005 change of my duty hours).”). Second, plaintiff seeks to add
clarification to her allegation that defendant reassigned plaintiff to OAL notwithstanding its
knowledge of plaintiff’s disabilities, and specifically, her “acknowledged need to avoid fluorescent
light.” Pl.’s Mot. for Leave at 2–3; see also Proposed Am. Compl. ¶ 11. Finally, plaintiff seeks
to make clear that her complaint also incorporates a claim of discrimination related to her religion.
Pl.’s Mot. for Leave at 3; see also Proposed Am. Compl. ¶ 21.
6
Defendant opposed plaintiff’s motion for leave to amend her complaint on November 2,
2012, arguing that any amendment would be futile. Def.’s Opp. to Pl.’s Mot for Leave [Dkt. # 11].
Plaintiff replied in support of her motion on November 13, 2012. Pl.’s Reply to Def.’s Mot. for
Leave Opp. [Dkt. # 12]. The case was reassigned to this Court on January 5, 2016.
STANDARD OF REVIEW
I. Motion for Leave to Amend
When a party seeks to amend its pleading after a responsive pleading has been served, the
Court should “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see
Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). When evaluating whether to grant
leave to amend, however, the Court must consider these factors: (1) undue delay; (2) prejudice to
the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff has
previously amended the complaint. Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir.
1996), quoting Foman v. Davis, 371 U.S. 178, 182 (1962). The Court may deny leave to amend
based on futility if the proposed claims would not survive a motion to dismiss. Rumber v. District
of Columbia, 598 F. Supp. 2d 97, 102 (D.D.C. 2009), citing James Madison Ltd. v. Ludwig, 82
F.3d 1085, 1099 (D.C. Cir. 1996).
II. Motion to Dismiss
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain 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). A claim
is facially plausible when the pleaded factual content “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 678, citing Twombly, 550
U.S. at 556. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
7
more than a sheer possibility that a defendant has acted unlawfully.” Id., quoting Twombly, 550
U.S. at 556. A pleading must offer more than “labels and conclusions” or a “formulaic recitation
of the elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555, and “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id., citing Twombly, 550 U.S. at 555.
When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed
liberally in the plaintiff’s favor, and the Court should grant the plaintiff “the benefit of all
inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994). Where the action is brought by a pro se plaintiff, a district court has
an obligation “to consider [her] filings as a whole before dismissing a complaint,” Schnitzler v.
United States, 761 F.3d 33, 38 (D.C. Cir. 2014), citing Richardson v. United States, 193 F.3d 545,
548 (D.C. Cir. 1999), because such complaints are held “to less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–21 (1972). 6
Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences
are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal
conclusions. See Kowal, 16 F.3d at 1276; see also Browning v. Clinton, 292 F.3d 235, 242 (D.C.
Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily
consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated
by reference in the complaint, and matters about which the Court may take judicial notice.”
6 Though plaintiff is an experienced attorney, and despite the fact that a pro se attorney “is
presumed to have a knowledge of the legal system and need less protections from the court,”
Richards v. Duke Univ., 480 F. Supp. 2d 222, 234 (D.D.C. 2007), the Court construes plaintiff’s
filings liberally in light of her pro se status.
8
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
ANALYSIS
Plaintiff’s complaint does not enumerate specific causes of action, and it points to a number
of discrete events that occurred over a five year time period. The Proposed Amended Complaint
begins with a heading: “Disability, Age, Discrimination, Religion, Retaliation, Hostile Work
Environment,” but nowhere in her complaint does plaintiff specifically tie any of the actions she
describes to any bias on the part of her employer against any particular protected characteristic or
set of characteristics. In an effort to construe plaintiff’s pleading liberally, the Court will assess
whether she has stated: a claim under Title VII for discrimination or hostile work environment
based on her religion or gender; a claim under the ADEA for discrimination or hostile work
environment based on her age; a claim under the Rehabilitation Act for discrimination or hostile
work environment based on her disability; or a claim under any of those statutes for retaliation for
protected activity.
Defendant has moved to dismiss on the grounds that some of plaintiff’s claims are barred
as duplicative of those raised in her previous suit, others are barred because plaintiff failed to
administratively exhaust them, and the remainder should be dismissed because plaintiff failed to
allege a materially adverse employment action. Accepting all of plaintiff’s allegations as true and
resolving all inferences in her favor, see Iqbal, 556 U.S. at 678, the Court finds that plaintiff has
failed to state a claim upon which relief can be granted in either her original complaint or her
Proposed Amended Complaint, and so the case will be dismissed and the motion for leave to
amend her complaint will be denied as futile.
9
I. Amendment of plaintiff’s complaint to add a claim of religious discrimination would
be futile
Plaintiff’s Proposed Amended Complaint mentions religion in just two places. She alleges
generally, without specifying a time frame, that “[p]laintiff has [] complained about harassment in
her work environment . . . including for accrual of religious compensatory time for observance of
religious holidays.” Proposed Am. Compl. ¶ 9. She also alleges that “[p]laintiff has been harmed
by [d]efendant’s actions of retaliation, and discrimination against her, including because of her
disabilities, age, and religion, that has been ongoing and pervasive in [d]efendant’s actions against
her.” Proposed Am. Compl. ¶ 21. Those conclusory statements are insufficient to give rise to a
cause of action.
Plaintiff’s reply in support of her effort to file the Proposed Amended Complaint suggests
that in 2005, the agency did not properly credit her for compensatory time that she worked before
the Jewish Holidays. See Pl.’s Mot. to Amend Reply at 2–3. But there are no facts set forth in the
complaint concerning the use of leave for religious observance in 2005. And even in the reply,
she merely points to allegations from 2003:
Allegations before the Court in [p]laintiff’s 2008 Complaint . . . do not
include the agency’s subsequent actions about religious compensatory time
about which she complaints [sic]. Paragraph 19 of [p]laintiff’s 2008
Amended Complaint in Case No. 1:08-cv-01199 . . . specifically references
[d]efendant denying [p]laintiff – in 2003 – credit for time worked for
accrual of religious compensatory time for the Jewish High Holy Days.
Pl.’s Mot. for Leave Reply at 2–3. Plaintiff cannot relitigate the 2003 incident that was resolved
in the previous action, and her hint in a pleading that the problem has recurred is insufficient to
state a new cause of action, even if one considers all of the allegations in this pro se plaintiff’s
pleadings when assessing the sufficiency of her claim. See Schnitzler, 761 F.3d at 38, citing
Richardson, 193 F.3d at 548.
10
The Court has entered summary judgment in favor of the defendant in the 2008 case, and
it found that plaintiff did not prove religious discrimination in the 2003 denial of her request for
religious compensatory time. See Lurensky, 1:08-cv-1199 [Dkt. # 109] at 23–26. Under the
doctrine of res judicata, a claim previously adjudicated on the merits is foreclosed from being
relitigated in a new action. Specifically, “a subsequent lawsuit will be barred if there has been
prior litigation (1) involving the same claims or cause of action, (2) between the same parties or
their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of
competent jurisdiction.” Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006). Because
the 2008 case between these exact two parties involved the claim of religious discrimination
arising out of the use of leave in 2003, and the Court, with jurisdiction, entered final judgment,
plaintiff may not get a second bite at the apple in this case.
Moreover, to the extent that plaintiff is claiming that there was a later denial of religious
compensatory time, she has failed to exhaust her administrative remedies with respect to that
claim. “Title VII ‘[c]omplainants must timely exhaust the[ir] administrative remedies before
bringing their claims to court.’” Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010), quoting
Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). Before commencing a suit in federal
court, a Title VII plaintiff must present a claim in an administrative complaint and afford the
agency the opportunity to act on the complaint. See generally 42 U.S.C. § 2000e–16; 19 C.F.R.
§ 1614.106(a) (requiring complainant to file formal complaint within 180 days of alleged
discriminatory event).
“These procedural requirements governing [a] plaintiff’s right to bring a Title VII claim in
federal court are not trivial.” Rattigan v. Gonzales, 503 F. Supp. 2d 56, 68 (D.D.C. 2007).
“Because timely exhaustion of administrative remedies is a prerequisite to a Title VII action
11
against the federal government,” a court may not consider a discrimination claim that has not been
exhausted. Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003).
None of plaintiff’s many complaints before the agency reference any religious
discrimination allegations. See Ex. A–I to Def.’s Mot. [Dkt. # 6-1, 6-2, 6-3, 6-4, 6-5, 6-6, 6-7, 6-
8, 6-9]. 7 Therefore, because plaintiff did not present a claim of religious discrimination to the
agency, she cannot raise it in federal court. See Stewart, 352 F.3d at 426.
Even if she had exhausted administrative remedies on this claim, plaintiff has not stated a
claim for religious discrimination in her Proposed Amended Complaint. Although the D.C. Circuit
has not articulated a framework for an employee’s claim of failure to accommodate religious
beliefs, other circuits require that a plaintiff must make a prima facie showing that “(1) he had a
bona fide religious belief that conflicted with an employment requirement; (2) he informed his
employer of this belief; and (3) he was discharged for failing to comply with the conflicting
employment requirement.” See, e.g., Daniels v. City of Arlington, 246 F.3d 500, 506 (5th Cir.
2001); see also Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 95 (D.D.C. 2006) (citing
cases from the Second, Third, Fourth, Fifth, and Eighth Circuits); Taub v. FDIC, No. 96-5139,
1997 WL 195521, at *1 (D.C. Cir. Mar. 31, 1997) (citing, but not officially adopting, this test).
7 While a court may not typically consider matters outside the pleadings in evaluating a
motion to dismiss under Rule 12(b)(6) without converting the motion to one for summary
judgment under Rule 56, documents that are referenced in, or are an integral part of, the complaint
are deemed not outside the pleadings. Mead v. Lindlaw, 839 F. Supp. 2d 66, 70 (D.D.C. 2012).
In this case, the plaintiff's discrimination claims filed in the EEOC proceedings are referenced in
the complaint and therefore may be considered without converting the motion to dismiss into a
motion for summary judgment. See Ward v. D.C. Dep't of Youth Rehab. Servs., 768 F. Supp. 2d
117, 120 n.2 (D.D.C. 2011) (noting that where “the complaint necessarily relies upon the fact of
the charge [of discrimination] and the letter [of determination] in pleading that administrative
proceedings were pursued before this action was begun, . . . the motion need not be converted to
one for summary judgment.”).
12
Once plaintiff establishes a prima facie case, “the burden shift[s] to the employer to show that it
was unable reasonably to accommodate [the plaintiff’s] religious needs without undue hardship.”
Daniels, 246 F.3d at 506.
It is true that “an employment discrimination plaintiff is not required to plead every fact
necessary to establish a prima facie case to survive a motion to dismiss.” 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). But a plaintiff must nonetheless plead sufficient facts to show a plausible
entitlement to relief. Iqbal, 558 U.S. at 683.
Other than the vague allegation of the “agency’s subsequent actions,” the allegation that
defendant harassed and harmed her related to her request for religious leave, see Proposed Am.
Compl. ¶¶ 9, 21, and the fact that plaintiff is Jewish and that FERC knows that she is Jewish, Pl.’s
Suppl. Decl. [Dkt. # 12-1] at ¶ 5, plaintiff has not alleged any facts to show a plausible entitlement
to relief under the applicable law.
Since the proposed new religious discrimination claim is barred by res judicata to the
extent that it is based on the 2003 incident litigated in the 2008 case, any subsequent claim has not
been administratively exhausted, and the Proposed Amended Complaint contains nothing but
“labels and conclusions,” see Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555,
amendment of the complaint to add a religious discrimination claim would be futile, and the motion
to do so will be denied. For the same reasons, any Title VII claim predicated on discrimination
based on religion in the original complaint, which says even less about religion than the Proposed
Amended Complaint, will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
13
II. Plaintiff’s age discrimination claim does not state a plausible claim for relief.
While age discrimination claims should be construed liberally at the motion to dismiss
stage, see Spaeth v. Georgetown Univ., 839 F. Supp. 2d 57, 62 (D.D.C. 2012), the Court cannot
“create something out of nothing.” Jianqing Wu v. Special Counsel, Inc., 54 F. Supp. 3d 48, 56
(D.D.C. 2014). Other than stating how old she is, see Proposed Am. Compl. ¶ 3, Compl. ¶ 3,
plaintiff does not allege any facts that would support a finding that she was discriminated against
based on her age. In her opposition to the motion to dismiss, plaintiff observes that “there is reason
to believe that age is implicitly a factor,” Pl.’s MTD Opp. at 12, but she does not specify what
reason that might be. Plaintiff’s declaration, which she cites as support for her age discrimination
claim, only restates that she “believe[s] age is implicitly a factor” underlying some of the alleged
discriminatory acts at issue in this case, and that “fairness warrants . . . an opportunity to discover
information about the agency’s actions and inactions.” Pl.’s Decl. ¶ 39.
Iqbal and Twombly make clear that to state a plausible claim for relief, a plaintiff must
provide more than an “unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 558 U.S. at 677–78, quoting
Twombly, 550 U.S. at 544, 557. Plaintiff’s age-discrimination complaint is that she is 64-years-
old, and that there is reason to believe her age must have been a factor in the workplace. Those
allegations – a textbook example of the kind of “naked assertions” prohibited by Iqbal – are
insufficient to support the initiation of discovery, and so the Court will grant defendant’s motion
to dismiss plaintiff’s age discrimination claims.
III. Plaintiff’s discrimination and retaliation allegations do not state a claim because she
fails to allege the necessary adverse employment actions.
In addition to the reference to age discrimination under the ADEA, plaintiff purports to
bring claims alleging disability discrimination under the Rehabilitation Act, and retaliation under
14
Title VII. Compl. ¶ 1. Title VII makes it “unlawful . . . to discriminate against an individual
. . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–
2(a)(1). The ADEA adds age as a protected characteristic, see 29 U.S.C. § 623, and the
Rehabilitation Act adds disability discrimination by federal employers to the mix. See 29 U.S.C.
§§ 791(b), (g); Ward v. McDonald, 762 F.3d 24, 28 (D.C. Cir. 2014). Plaintiff also alleges that
she was subjected to a hostile work environment, and that the agency’s conduct was retaliatory,
presumably in violation of the same statutes.
Assuming that plaintiff intended to bring a claim of discrimination based on disparate
treatment, she was required to allege (1) that she suffered an adverse employment action (2)
because of her protected status. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).
An adverse employment action requires a “tangible employment action,” meaning “a significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). This requirement guards against “judicial
micromanagement of business practices,” Mungin v. Katten, Munchin & Zavis, 116 F.3d 1549,
1556 (D.C. Cir. 1997), and “frivolous suits over insignificant slights.” Russell v. Principi, 257
F.3d 815, 818 (D.C. Cir. 2001). Thus, “[w]hile adverse employment actions extend beyond readily
quantifiable losses, not everything that makes an employee unhappy is an actionable adverse
action.” Id.
To the extent that plaintiff is seeking to claim that the complained-of events were
retaliatory, the standard for what is actionable is somewhat broader, but not without boundaries.
In the retaliation context, an adverse action is one that is “harmful to the point that [the employer’s
action] could well dissuade a reasonable worker from making or supporting a charge of
15
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006), quoting
Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006). Unlike in the discrimination context,
the “scope of the antiretaliation provision extends beyond workplace-related or employment-
related retaliatory acts and harm,” Burlington N., 548 U.S. at 67, and therefore, it does not require
a materially adverse change in the terms and conditions of employment. Steele v. Schafer, 535
F.3d 689, 695–96 (D.C. Cir. 2008); see also Bridgeforth v. Jewell, 721 F.3d 661, 664 n.* (D.C.
Cir. 2013) (explaining that retaliation “‘encompass[es] a broader sweep of actions’ than wrongful
discrimination.”).
But even in the retaliation context, the category of adverse events does not include trivial
harms: “Actionable retaliation claims are limited to those where an employer causes ‘material
adversity,’” and the plaintiff still must suffer some objectively tangible harm. Wiley v. Glassman,
511 F.3d 151, 161 (D.C. Cir. 2007); Allen v. Napolitano, 774 F. Supp. 2d 186, 199 (D.D.C. 2011),
quoting Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006). The standard is an objective one
that is phrased “in general terms because the significance of any given act of retaliation will often
depend upon the particular circumstances. Context matters.” Burlington N., 548 U.S. at 69.
Plaintiff identifies a long list of actions that she claims generally were either discriminatory
or retaliatory or both: 8
x Denial of advanced leave after plaintiff’s fall outside of FERC’s
Headquarters Building, and denial of a request to work from home to
recover in July 2005. Compl. ¶¶ 9, 12.
8 Defendant’s motion to dismiss focuses on the absence of an actionable adverse action, but
the Court notes that with the limited exception of the vague allegation in Proposed Amended
Complaint ¶ 10 concerning the change in her hours, plaintiff’s complaint includes few if any facts
that would support a plausible inference that these incidents were animated by discrimination
based on plaintiff’s age, gender, religion, or disabilities, or that they were undertaken in retaliation
for her prior protected activity.
16
x Revocation of the ability to work variable hours and/or changes to the duty
hours that had been previously available as accommodations for plaintiff’s
disabilities. Proposed Am. Compl. ¶¶ 9–10.
x Denial of requests to work from home in July and August 2005. Compl.
¶ 9.
x Delayed response to requests for advanced sick leave in 2008, and a
requirement that plaintiff provide medical documentation in support of her
request. Compl. ¶ 11.
x Denial of plaintiff’s request to telework on two specific days in 2011.
Compl. ¶ 18.
x A “Fully Satisfactory” performance appraisal rating in 2005. Compl. ¶ 10.
x Reassignment to the Office of Administrative Litigation where the work
would include duties in hearing rooms with fluorescent lighting. Compl.
¶ 10.
x Relocation of the Office of Administrative Litigation to a new physical
location that was less accommodating than the Headquarters Building.
Compl. ¶¶ 13, 14.
x Denial of plaintiff’s request to remove a holiday garland off of a handrail in
FERC’s lobby. Compl. ¶ 12.
x Placement of plaintiff’s personal information on an unrestricted FERC
shared network drive. Compl. ¶ 16.
x The IT Department’s refusal to assist plaintiff in obtaining access leave
information, and information about the new office space and security at the
new building. Compl. ¶ 15.
x Denial of plaintiff’s request that her coworkers undergo disability
sensitivity training. Compl. ¶ 19.
But this is not plaintiff’s first lawsuit arising out of her grievances at FERC, and the Court
resolved all issues surrounding the 2005 performance evaluation, and the alleged revocation of
plaintiff’s variable work schedule, in its opinion in the 2008 case. See Lurensky, 1:08-cv-1199, at
10–23 (plaintiff’s variable work schedule); 42–44 (performance evaluation). Applying the
principles of res judicata set forth above, those issues cannot be relitigated here. See Smalls, 471
17
F.3d at 192. 9 And none of the other incidents gives rise to a plausible claim of an adverse
employment action.
1. Plaintiff’s allegations about her leave and telework
Plaintiff claims that the agency informed her “[b]y memorandum dated July 27, 2005
. . . that she would not be granted advanced leave for other than medical reasons,” Compl. ¶ 9, and
that defendant delayed its response to a request for advanced sick leave three years later and
required her to submit medical documentation. Compl. ¶ 11. She also complains that on specific
occasions in 2005 and 2011, her requests to work from home were denied. Compl. ¶ 9, 18;
Proposed Am. Compl. ¶ 9. While those decisions clearly caused plaintiff some consternation,
there are no facts alleged that would indicated that they brought about any change, much less a
“significant change,” in plaintiff’s employment status, and therefore, they are not actionable as
adverse actions supporting a discrimination claim. See Ellerth, 524 U.S. at 742.
The disputes over leave and leave policy also do not constitute adverse events for claims
of retaliation because those denials would not “dissuade a reasonable worker from making or
supporting a charge of discrimination.” Burlington N., 548 U.S. at 57. Although some courts in
this district have found a denial of advanced sick leave to be an adverse action, those cases involved
either a significant period of time – three to four weeks of sick leave, Childs-Pierce v. Utility
Workers Union of Am., 383 F. Supp. 2d 60, 65 (D.D.C. 2005) – or a showing of financial harm
arising out of the denial. Diggs v. Potter, 700 F. Supp. 2d 20, 43 (D.D.C. 2010). Plaintiff has not
9 Indeed the language in plaintiff’s complaint suggests that plaintiff may have been
recounting those incidents as background. See Proposed Am. Compl. ¶ 9 (“Plaintiff has
complained that after she engaged in protected activity [d]efendant revoked her accommodations
for disabilities . . . .”); Proposed Am. Compl. ¶ 10 (“After plaintiff engaged in protected activity
at FERC, FERC revoked [p]laintiff’s variable hours that were an accommodation for her
disabilities and changed her duty hours. On the morning of July 20, 2005, [p]laintiff tried to arrive
at her duty station consistent with FERC’s changes in her duty hours but fell as she approached
FERC’s Headquarters Building.”).
18
alleged that she experienced any financial harm as of the result of any ruling on a request for
advanced leave, from the delay in the processing of the request in 2008, or from the need to submit
medical documentation to support her request. See Diggs, 700 F. Supp. 2d at 41. Moreover, she
has not alleged facts from which one could draw the inference that the adverse ruling on a request
for leave was material: as the EEOC decision explains, the 2008 denied request was for less than
three days of advanced sick leave and was therefore de minimis. Ex. D to Def.’s Mot. at 2; see
Dorns v. Geithner, 692 F. Supp. 2d 119, 133 (D.D.C. 2010) (explaining that, “assuming that the
denial of advanced sick leave is actionable, the amount in question here” – three hours – “is too de
minimis to be considered ‘material’ or ‘significant’”).
Each of plaintiff’s complaints about her leave and telework fall into this de minimus and
trivial threshold because they do not allege a significant change in plaintiff’s pay or benefits. See
id.; see also Beckham v. Nat’l R.R. Passenger Corp., 736 F. Supp. 2d 130, 149 (D.D.C. 2010)
(“Being denied the ability to work from home on, at most, three occasions is a minor annoyance,
not an adverse action.”).
2. Plaintiff’s challenge to her reassignment, and to the physical relocation
of the office
Plaintiff claims that defendant discriminated or retaliated against her when it reassigned
her from the Office of the General Counsel to the Office of Administrative Litigation (“OAL”) in
2005. Compl. ¶ 10. And plaintiff complains that the agency discriminated or retaliated against
her when, five years later, OAL moved to a new building with different amenities than those
available at the Headquarters Building. Compl. ¶¶ 13, 14. She adds in her Proposed Amended
Complaint that the agency reassigned her to OAL with knowledge of her sensitivity to fluorescent
19
lighting. Proposed Am. Compl. ¶ 11. 10 These new claims do not state a cause of action for
discrimination or retaliation.
Plaintiff has failed to plead any facts demonstrating that the transfer to OAL was
accompanied by a reduction in pay or grade, and her dissatisfaction with the resources available
to her at the new building do not alter the conditions of her employment. See Mungin, 116 F.3d at
1557; Ndonji v. InterPark, Inc., 768 F. Supp. 2d 264, 282 (D.D.C. 2011) (holding that a transfer
to an undesirable office location is not a materially adverse employment action where it is not
accompanied by a reduction in salary or benefits). As the D.C. Circuit explained:
A plaintiff who is made to undertake or who is denied a lateral transfer –
that is, one in which she suffers no diminution in pay or benefits – does not
suffer an actionable injury unless there are some other materially adverse
consequences affecting the terms, conditions, or privileges of her
employment or her future employment opportunities such that a reasonable
trier of fact could conclude that the plaintiff has suffered an objectively
tangible harm. Mere idiosyncrasies are not sufficient to state an injury.
Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003), quoting Brown v. Brody, 199 F.3d 446,
457 (D.C. Cir. 1999). Because plaintiff has not alleged another “materially adverse consequence”
associated with the reassignment or the transfer to the new office location, she has failed to state a
claim for discrimination on those claims.
The Court recognizes that the Court of Appeals observed in Pardo-Kronemann v.
Donovan, that the question of “[w]hether a particular reassignment of duties constitutes an adverse
action . . . is generally a jury question.” 601 F.3d 599, 607 (D.C. Cir. 2010), quoting Czekalski v.
10 The Court observes that in her successive complaints, plaintiff has advanced a series of
varying positions on the question of whether she did or did not wish to remain in the Office of the
General Counsel, and that her 2012 allegation that the transfer out was discriminatory is
inconsistent with her insistence in her 2008 action the agency’s failure to reassign her was
discriminatory. See Lurensky, 1:08-cv-1199, at 5–6 (describing plaintiff’s efforts to be reassigned,
and the agency’s denial of those requests), 41–42 (finding that the denial of plaintiff’s request for
reassignment was not an adverse employment action).
20
Peters, 471 F.3d 360, 365 (D.C. Cir. 2007). However, the court subsequently reaffirmed: “[w]hen
a Title VII plaintiff rests a claim of materially adverse action on a transfer that does not involve
loss of pay or benefits,” a court must apply the test from Brown. Youssef v. FBI, 687 F.3d 397,
401 (D.C. Cir. 2012).
Plaintiff has not alleged that the assignment to another nonsupervisory GS-15 attorney
position involved significantly different responsibilities; nor has she alleged that the job at OAL
caused any material harm. She simply states that she was reassigned from her job in FERC’s
Office of the General Counsel to the Office of Administrative Litigation, and that OAL attorneys
can be assigned to perform duties in hearing rooms with fluorescent light. Compl. ¶ 10. The
proposed amended complaint adds only that this reassignment was made with knowledge of
plaintiff’s sensitivity to the lighting. Proposed Am. Compl. ¶ 11. With that, plaintiff has failed to
allege that either the lateral move or the relocation of the OAL office in its entirety were materially
adverse as that term has been interpreted by the applicable case law. 11 Therefore, the allegations
related to the transfer and move fail to state a claim, and the proposed amendment of the complaint
would be futile.
3. Plaintiff’s remaining claims
Plaintiff also claims that FERC discriminated against her and retaliated against her when
it denied her 2008 request to remove holiday decorations from a handrail in FERC’s lobby. Compl.
¶ 12 (plaintiff requested “that FERC have at least one stair hand rail in its lobby unencumbered by
11 Plaintiff does not seem to be asserting that the reassignment to OAL violated the
Rehabilitation Act’s failure to accommodate provision. To state a claim for failure to
accommodate, plaintiff must show the “fundamental element” that “the plaintiff-employee has
requested an accommodation which the defendant-employer has denied.” Flemmings v. Howard
Univ., 198 F.3d 857, 861 (D.C. Cir. 1999). The Proposed Amended Complaint is devoid of any
allegations that plaintiff requested and was denied any accommodation related to the hearing
rooms. For that reason, even if plaintiff intended to assert a failure to accommodate claim in her
complaint or proposed amended complaint, it would fail to state a claim.
21
a Christmas garland/bough wrapped around its banister.”). She further alleges that FERC denied
her request that her coworkers undergo disability sensitivity training. Compl. ¶ 19. She avers that
her personal information should not have been available on an unrestricted network drive, Compl.
¶ 16, and she complains that she was denied IT assistance. Compl. ¶ 15.
Though a Christmas garland may have annoyed or inconvenienced the plaintiff, this
allegation also fails to state a claim for discrimination or retaliation because it does not amount to
an adverse employment action. The complaint does not state how the decoration or the decision
to leave it in place affected the plaintiff, or why its removal was requested or necessary “as an
accommodation.” But even if one grants plaintiff the benefit of every doubt and infers that the
garland in fact made the banister more difficult to grasp, records from the administrative
investigation into this issue reflect that plaintiff could have entered the building through another
entrance, which was located closer to her office, had no stairs or banisters, and lacked the offending
decorations. See Ex. D to Def.’s Mot. at 4. Because the holiday garland did not affect the terms
and conditions of plaintiff’s employment, and the decision to leave it in place is not sufficiently
adverse to chill a complainant’s exercise of her rights, this circumstance does not give rise to a
claim for discrimination or retaliation. 12
Plaintiff next alleges that in March 2011, FERC placed her personal information on an
internal network drive where it could be viewed by all FERC employees. Compl. ¶ 16. She further
alleges that FERC discriminated against her when it failed to provide her with certain information
about the duplication, custody, and control of her EEO files. Compl. ¶ 17. Plaintiff has failed to
plead any facts to suggest that these incidents were animated by discrimination based on her age,
12 Moreover, neither the complaint nor the proposed amended complaint includes a claim for
failure to accommodate under the Rehabilitation Act, and the factual predicate for such a claim is
absent from the pleading in any event.
22
gender, religion, or disability, or as retaliation for protected activity. Plaintiff has also not alleged
that either incident caused her any material harm, other than the kind of “purely subjective injuries,
such as . . . public humiliation, or loss of reputation, [that] are not adverse actions” in this Circuit.
Holcomb, 433 F.3d at 902, quoting Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C. Cir. 2002).
Therefore, neither of those allegations state a claim for discrimination or retaliation.
Finally, plaintiff asserts that the departmental IT specialists declined to help her access
certain information on FERC’s servers. Compl. ¶ 15. She also alleges that the agency
discriminated against her and retaliated against her by not ordering its employees to undergo
disability sensitivity training. Compl. ¶ 19. But the Court is not permitted to serve as a “super-
personnel department that reexamines an entity’s business decisions,” Holcomb, 433 F.3d at 897,
quoting Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999), and it cannot remedy
“common workplace shortfalls.” Casey v. Mabus, 878 F. Supp. 2d 175, 185 (D.D.C. 2012).
Because those circumstances did not modify the conditions of plaintiff’s employment, and they do
not rise to the level of actions that would dissuade a reasonable employee from filing an EEO
complaint, the Court finds that they fail to state a claim.
IV. Plaintiff cannot assert a claim of “collective retaliation.”
In plaintiff’s opposition to defendant’s motion to dismiss, she asserts that her
discrimination and retaliation claims are “implicit,” and argues that her retaliation claim can be
proven based on the “totality of the Agency’s actions over the course of years.” Pl.’s MTD Opp.
at 16. While courts in this district have observed that under some circumstances, “a series of
independent actions taken together, none of which would be considered an adverse employment
action alone, can constitute an adverse employment action,” Turner v. Shinseki, 824 F. Supp. 2d
99, 114–15 (D.D.C. 2011), they have been quick to add that “there is no bright line rule for
23
determining when such impact has occurred.” Dorns, 692 F. Supp. 2d at 134, citing Baloch v.
Norton, 517 F. Supp. 2d 345, 362–63 (D.D.C. 2007). In the Turner case, the court concluded that
even when viewed in the aggregate, the evidence fell far short of what is required to establish an
adverse action in this Circuit. 824 F. Supp. at 116. “While adverse employment actions extend
beyond readily quantifiable losses, not everything that makes an employee unhappy is an
actionable adverse action . . . . [I]f all employment decisions with a negative or adverse effect
were actionable, minor and even trivial employment actions that an irritable, chip-on-the-shoulder
employee did not like would otherwise form the basis of a discrimination suit.” Id. at 115 (internal
quotations omitted). The court in Baloch v. Norton cautioned that “courts must exercise their
judgment carefully on a case-by-case basis.” 517 F. Supp. 2d at 363. While that plaintiff had
accumulated a long list of slights, the court decided that it could not “discern a collective retaliation
claim greater than the sum of its parts.” Id. 13
The Court finds that even the combination of the disconnected trivialities and isolated
actions with no material consequences presented here does not meet the threshold for stating a
claim, particularly in the absence of any facts that would give rise to an inference of retaliatory
intent. The record of the two actions in this Court reveals that dating back to 2003, plaintiff has
blanketed the agency with an avalanche of lengthy EEO complaints, each containing myriad
allegations, see, e.g., Ex. E to Def.’s Mot. (plaintiff’s July 2, 2010 EEO complaint arising from
13 The court in Norton also recognized that there are “a number of difficulties” in proving
what the court described as an “incidents-collectively-viewed retaliation claim.” 517 F. Supp. 2d
at 362. The court expressed concerns that such a claim would be virtually indistinguishable from
a hostile work environment claim, and it noted that the plaintiff had not explained “how viewing
the incidents collectively establishes any element of retaliation to greater effect than viewing them
separately.” Id.
24
“some 80 issues, some of which are multi-part”), and the instant complaint does not point to any
actionable adverse consequences that the GS-15 attorney has suffered as a result.
V. Plaintiff has failed to allege severe and pervasive conduct to support a hostile work
environment claim.
Plaintiff also includes the words “hostile work environment” in the summary of her claim.
See, e.g., Compl. ¶ 1, 20. To state a claim of a hostile work environment under Title VII, plaintiff
must demonstrate that the “workplace is permeated with ‘discriminatory intimidation, ridicule, and
insult’” and that this behavior is “sufficiently severe or pervasive [as] to alter the conditions of the
victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., 510
U.S. 17, 21 (1993), quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986).
Examining such a claim requires both a subjective and an objective inquiry: no violation is present
“if the victim does not subjectively perceive the environment to be abusive” or if the conduct “is
not severe or pervasive enough to create an objectively hostile or abusive work environment.” Id.
at 21–22. The same basic elements apply to a claim of hostile work environment based on
disability, see Bowden v. Clough, 658 F. Supp. 2d 61, 79 n.12 (D.D.C. 2009), and a claim of hostile
work environment based on age. Nguyen v. Mabus, 895 F. Supp. 2d 158, 187–89 (D.D.C. 2012).
To determine whether a hostile work environment exists, courts “look to ‘all the
circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Nat’l Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 116 (2002), quoting Harris, 510 U.S. at 23; see also Baloch, 550 F.3d at 1201.
“Severity and pervasiveness are complementary factors and often go hand-in-hand, but a hostile
work environment claim could be satisfied with one or the other.” Brooks v. Grundmann, 748
F.3d 1273, 1276 (D.C. Cir. 2014). The Supreme Court has made clear that the conduct must be so
25
extreme “to amount to a change in the terms and conditions of employment.” Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998). This “ensure[s] that Title VII does not become a general
civility code” that would involve the courts in policing “the ordinary tribulations of the
workplace.” Id.
Plaintiff does not set out any of the claims in her complaint individually, so the hostile
work environment claim is based on the same allegations that form the basis for her substantive
discrimination and retaliation claims. Other courts in this district have found it problematic when
a plaintiff attempts to “‘bootstrap’ the same series of incidents alleged as retaliation ‘into a broader
hostile work environment claim.’” Edwards v. EPA, 456 F. Supp. 2d 72, 96 (D.D.C. 2006),
quoting Keeley v. Small, 391 F. Supp. 2d 30, 51 (D.D.C. 2005). But more important, plaintiff’s
allegations do not rise to the level of severe and pervasive discrimination. The incidents alleged
to have taken place over a six year period are dissimilar and disconnected in time, so they cannot
be described as pervasive. Nor are they severe: none manifests a discriminatory bias of any sort,
none can be characterized as abusive, and none involved a physical threat or posed an unreasonable
impediment to plaintiff’s performance of her duties.
26
CONCLUSION
For the reasons stated above, and pursuant to Federal Rule of Civil Procedure 12(b)(6),
plaintiff’s complaint fails to state a claim upon which relief can be granted, and it will therefore
be dismissed. Further, because plaintiff’s proposed amended complaint would be futile, plaintiff’s
motion for leave to amend her complaint will be denied.
A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: March 1, 2016
27