Woodberry v. Berry ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL WOODBERRY,
Plaintiff,
v.
No. 18-cv-3081 (DLF)
JAMES D. BERRY, JR., Deputy Director of
Court Services and Offender Supervision
Agency,
Defendant.
MEMORANDUM OPINION
Michael Woodberry brings this Title VII action against James D. Berry, Jr., in his official
capacity as Deputy Director of the Court Services and Offender Supervision Agency (CSOSA).
Woodberry asserts three counts: discrimination based on race, color, and sex; a hostile work
environment; and retaliation for engaging in protected activity. Before the Court is Berry’s
Motion to Dismiss, Dkt. 10. For the following reasons, the Court will grant in part and deny in
part the motion.
I. BACKGROUND1
Woodberry is an African American male. Am. Compl. ¶ 6, Dkt. 9. He started working at
CSOSA in 2005 as a treatment specialist in the young adult department. Id. ¶¶ 5–6.
1
Because Berry has moved to dismiss Woodberry’s claims under Federal Rule of Civil
Procedure 12(b)(6), the Court must treat Woodberry’s “factual allegations as true . . . and must
grant [him] ‘the benefit of all inferences that can be derived from the facts alleged.’” Ctr. for
Responsible Sci. v. Gottlieb, 311 F. Supp. 3d 5, 8 (D.D.C. 2018) (quoting Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)).
He found early success. From 2009 to 2013, Woodberry’s ratings were among the
highest compared to his peers. Id. ¶ 6. He received salary-step increases, annual bonuses, and
on-the-spot bonuses in each of those years. Id. His supervisors at the time gave him outstanding
reviews and recommended him as employee of the year. Id. And he received the highest rating
possible—“exceeds expectations”—in multiple years before 2014. Id.
The trouble began in June 2013. That is when Sheri Lewis, an African American female,
became Woodberry’s direct supervisor. Id. ¶ 7. Soon after she assumed that role, Lewis forced
Woodberry to visit her office so that she could tell him stories. Id. Her stories focused on past
boyfriends and people she had dated who worked for CSOSA. Id. The tales included personal
information about Woodberry’s coworkers. Id. They happened two or three times a week and
sometimes lasted several hours. Id. And they kept Woodberry from doing his work and made
him feel uncomfortable. Id. Woodberry noticed that Lewis did not force the stories on the two
other treatment specialists in the young adult department—Christofer Barno, a Caucasian male,
and Melissa Blackwell, an African American female. Id. ¶¶ 6–7. Woodberry complained about
the stories to his second-line supervisor, Rufus Felder, but Lewis kept telling them until about
May 2014. Id. ¶ 7.
Lewis posed other problems. Lewis gave more work to Woodberry than she gave to
Barno and Blackwell. Id. ¶ 8. In 2013, after the treatment specialists saw their caseload increase
by 45 cases, Woodberry had 11 more cases than Barno and 32 more cases than Blackwell. Id.
Lewis swore angrily at Woodberry. Id. ¶ 9. In September and October 2013, Lewis publicly
told Woodberry that she was his “f***ing supervisor” and that he would do what she told him to
do. Id. In October 2013, she cursed at him during a meeting of treatment specialists. Id. But
Woodberry never heard Lewis use profanity when she spoke with other treatment specialists. Id.
2
Woodberry clashed with Felder too. On March 10, 2014, Woodberry and Blackwell had
cut short a meeting with contractors because the contractors were unprepared for the meeting.
Id. ¶ 13. Felder and Lewis reprimanded Woodberry three times for leaving the meeting early but
met with Blackwell only once about it. Id. Two days later, on March 12, Felder and Lewis held
an unplanned meeting with Woodberry about 30 minutes before his shift was to end. Id. ¶ 14.
Woodberry told them as the meeting started that he had to leave on time so that he could see his
doctor for a medication adjustment. Id. But Felder and Lewis said he could not leave and kept
him for an hour after his shift had ended. Id. In the meeting they questioned, berated, and
criticized Woodberry for leaving the March 10 meeting. Id. He missed his appointment, and his
doctor could not adjust his medicine. Id.
Woodberry’s experience worsened. On March 13, 2014, Lewis again reprimanded
Woodberry based on their March 10 and March 12 interactions. Id. ¶ 15. That same day an
ambulance rushed Woodberry to the hospital for “dangerously high blood sugar and blood
pressure.” Id. Lewis and Felder allegedly caused this medical incident by forcing Woodberry to
miss his doctor’s appointment the day before. Id. ¶ 37. That summer, Lewis caused Woodberry
to miss another doctor’s appointment. Id. ¶ 15. On another occasion, Woodberry had to leave
work for an emergency medical appointment. Id. He couldn’t reach Lewis before leaving but he
told her secretary on his way out. Id. Lewis called Woodberry on his way to the doctor and told
him that she did not authorize him to leave. Id. He explained the situation, but Lewis remained
angry. Id. So he skipped the appointment and returned to work to assuage Lewis’s anger. Id.
At the end of June 14, 2014, Felder told Woodberry that Woodberry would be transferred
from the Taylor Street location to the South Capitol location. Id. ¶ 16. Woodberry objected and
suggested that other, more junior treatment specialists could transfer instead. Id. But Felder said
3
that the South Capitol location needed a “strong African American male presence” and so Barno
and Blackwell—two of the other treatment specialists—were unsuitable. Id. Woodberry told
Felder that suitability for a position should be based on credentials, not sex or race. Id. Felder
told Woodberry that they would speak again before the decision became final, but they did not.
Id. ¶¶ 16–17. Soon thereafter Woodberry learned that the transfer decision was final. Id. ¶ 17.
On July 3, 2014, Woodberry emailed his objections to Felder. Id. In his email, he told
Felder that he believed a “hidden agenda” motived the transfer and asked Felder for the “truth.”
Id. ¶ 17. He objected to the transfer’s abrupt nature and to the allegedly discriminatory basis for
the transfer. Id. But he said that he was willing to transfer if he could fulfill an actual need. Id.
He also requested that Felder delay the transfer so that he could make new childcare
arrangements because the South Capitol location was farther from his son’s school. Id. ¶ 18.
Felder said no, so Woodberry requested the same from Felder’s supervisor. Id. Woodberry does
not say whether his request was granted.
Woodberry ultimately incurred some costs from the transfer. His monthly childcare and
fuel expenses increased by about $1,000 per month. Id. He added over an hour to his commute.
Id. And the transfer “impeded” his career. Id. ¶ 19. In his 10 years at Taylor Street, he had
developed relationships with clients, coworkers, and community partners. Id. At the South
Capitol location, he had to rebuild those connections. Id.
While Woodberry awaited his transfer, his clashes with Felder and Lewis continued. On
July 10, 2014, Felder and Lewis issued a “Letter of Caution” to Woodberry based on the March
10 meeting with contractors that Woodberry and Barno had left early. Id. ¶ 20. The human
resources department concluded that the letter was issued untimely and that the consequences
Woodberry experienced after the March 10 incident appeared to be punitive rather than
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corrective. Id. Based on this letter, Woodberry felt that Felder and Lewis could “add to his file”
at any time. Id. ¶ 21. He was afraid to meet with Felder and Lewis alone because he felt that
they treated him like a “dartboard.” Id.
Woodberry’s 2014 performance review was also contentious. On July 10, 2014, Felder
and Lewis warned Woodberry not to talk with coworkers about his performance evaluation. Id.
¶ 22. He interpreted this to mean that Felder and Lewis planned to give him a negative review
no matter how well he performed. Id. So he requested that John Milam, CSOSA’s Deputy
Associate Director, review him instead. Id. That did not happen. Lewis conducted his 2014
review and scored Woodberry more than 100 points lower his coworkers. Id. Woodberry
alleges that she did so because he “spoke with coworkers regarding their reviews” and based on
events that predated both the review period and the date that Lewis started supervising him. Id.
Woodberry went from having the highest rating score among his peers to the lowest. Id. The
rating kept him from receiving regular salary step increases and bonuses, and he became
ineligible for a promotion. Id.
Woodberry transferred to the South Capitol location in July 2014. Id. ¶ 23. At about that
same time, Sabrina Estes, a treatment specialist who was female, voluntarily transferred into the
Taylor Street location. Id. Blackwell also remained at Taylor Street. Id.
When Woodberry arrived at the South Capitol location, he told his new supervisor, Kevin
Moore, about his past Equal Employment Opportunity (EEO) activity. Id. ¶ 24. The two
exchanged emails about Woodberry using administrative leave for EEO activities and to appeal
the 2014 performance review and transfer. Id.
Moore soon became another source of friction. In September 2014, Woodberry was
away to attend a group therapy retreat. Id. ¶ 25. While Woodberry was out, Moore asked
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Woodberry’s coworker about Woodberry’s absence and said that Woodberry had lied on his
leave request. Id. Moore then spoke with Felder and a third-party about this conversation. Id.
Moore continued to ask Woodberry’s coworkers about his leave use and work performance
without talking to Woodberry about it. Id. This behavior went on until Woodberry was detailed
to another department in October 2017. Id.
Woodberry brought this action on December 26, 2018. See Dkt. 1. He amended his
complaint on August 8, 2019. See Am. Compl. His amended complaint asserts counts of
discrimination (Count I), hostile work environment (Count II), and retaliation (Count III), in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. See id. ¶¶ 26–
44. Berry moved to dismiss all claims for failure to state a claim upon which relief can be
granted.2 See Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s Br.”) at 8, Dkt. 10-1. That
motion is now ripe.
II. LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to
dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient
to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). A plaintiff’s well-pleaded factual allegations are “entitled to [an] assumption of
truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). And the Court construes the complaint “in
favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from
2
In its reply, Berry included materials that arguably present matters outside the pleadings. See
Def.’s Reply Ex. A, Dkt. 13-1; id. Ex. B, Dkt. 13-2. But the Court can resolve this motion
without relying on these materials. The Court thus need not decide whether it may consider
those materials without treating Berry’s motion to dismiss as a motion for summary judgment.
See Fed. R. Civ. P. 12(d).
6
the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal
quotation marks omitted).
III. ANALYSIS
Woodberry fails to state a discrimination claim in Count I, states a hostile work
environment claim in Count II, and states one, but not two, retaliation claims in Count III.
A. Count I: Discrimination
Woodberry alleges two personnel actions that he believes constituted discrimination
based on his race, color, and sex: his transfer to the South Capitol location and his negative 2014
performance review. Am. Compl. ¶ 30. But as currently alleged, each action lacks an essential
element of a Title VII discrimination claim. The Court will dismiss Count I.
Title VII requires that all federal executive agencies make “personnel actions affecting
employees . . . free from any discrimination based on race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–16(a). “Under Title VII . . . the two essential elements of a
discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because
of the plaintiff's race, color, religion, sex, national origin, age, or disability.” Baloch v.
Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).
1. Performance Review
As currently pled, the amended complaint fails to allege that Lewis gave Woodberry a
negative review because of his race, color, or sex. For starters, the amended complaint itself
offers a legitimate, nondiscriminatory rationale for the negative review. Recall that Lewis and
Felder told Woodberry not to discuss the 2014 performance evaluations with others. Am.
Compl. ¶ 22. Woodberry alleges that Lewis “specifically lowered his [2014 performance] rating
review because [he] spoke with coworkers regarding their reviews” and thus disobeyed this
7
instruction. Id. (emphasis added). That allegation is inconsistent with Woodberry’s ultimate
legal conclusion that his race, color, or sex caused the negative performance. Id. ¶ 30.
The same goes for the other allegedly problematic aspects of the review. Woodberry
alleges that Lewis “cited criticisms [from] as early as April 2013” in justifying the negative
rating. Id. ¶ 22. And he suggests that it was improper for Lewis to include these criticisms
because they predated the 2014 review period and happened before Lewis became Woodberry’s
supervisor. Id. He also alleges that because he was a historically good performer and because
his workload had increased in 2013, he deserved a positive review. See id. ¶¶ 8–12, 22; see also
Pl.’s Opp. at 17. He might be right about all of that. But the question is not whether the review
was “wise, fair, or correct.” Kelly v. Mills, 677 F. Supp. 2d 206, 229 (D.D.C. 2010). The
question is whether it was discriminatory. And these allegations do not connect Woodberry’s
protected characteristics to Lewis’s review.
The closest Woodberry comes to adequately alleging such a connection is when he points
out that his score was the lowest among his peers—a white man and a black woman. Am.
Compl. ¶ 22. But here too he comes up short because he has not alleged that “all of the relevant
aspects of [his] employment situation were nearly identical to those” of his peers. Neuren v.
Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995). For all these reasons
and at this time, Woodberry’s amended complaint fails to state a discrete claim for
discrimination based on the 2014 performance review.
2. Transfer
Woodberry’s transfer to the South Capitol location was not an adverse employment
action. The general rule is that a lateral transfer is not “an actionable injury” under Title VII.
Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) (quoting Brown v. Brody, 199 F.3d 446,
8
457 (D.C. Cir. 1999)). A transfer is “lateral” if it causes “no diminution in pay or benefits.” Id.
But lateral transfers that involve “‘materially adverse consequences affecting the terms,
conditions, or privileges of [the plaintiff’s] employment or her future employment
opportunities’ . . . could be considered adverse employment actions.” Id. The D.C. Circuit
contrasts these consequences with “purely subjective injuries,” which are not actionable.
Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002).3
Woodberry does not allege that the transfer caused him to lose pay or benefits. It was
thus a lateral transfer and is actionable only if it caused materially adverse consequences.
Woodberry alleges three: an increase in childcare and fuel expenses of about $1,000 per month;
an hour-longer commute; and a need to rebuild certain professional relationships. But the
increased expenses and commute are too far removed from Woodberry’s job to materially affect
the “terms, conditions, or privileges” of his employment or his future employment opportunities.
Stewart, 352 F.3d at 426 (quoting Brown, 199 F.3d at 457).
And while need to develop new relationships at the South Capitol location does relate to
his job, it is not a severe enough consequence to transform a lateral transfer into a materially
adverse employment action. That consequence likely attends most lateral transfers. To
recognize it as a materially adverse consequence would be to turn the D.C. Circuit’s general rule
that lateral transfers are not actionable inside out. Woodberry has not alleged “a significant
change in his job responsibilities,” a demotion, or a newfound inability to “complete his job
satisfactorily.” Forkkio, 306 F.3d at 1131. For these reasons, the transfer was not an adverse
3
Berry notes that the U.S. Solicitor General clarified last year in a Supreme Court brief that the
government interprets Title VII to cover lateral transfers even when they do not involve
prejudice or adversity to the employee. See Def.’s Br. at 13 n.4. But the Court agrees with Berry
that for now the D.C. Circuit precedent just cited forecloses this interpretation.
9
action for discrimination purposes, and Woodberry thus fails to state a discrete claim for
discrimination based on the transfer.
B. Count II: Hostile Work Environment
Woodberry alleges that Lewis, Felder, and Moore created a discriminatory and retaliatory
hostile work environment that “was sufficiently harassing to send him to the hospital,” “impeded
his ability to work,” and made him “feel hopeless.” Am. Compl. ¶ 37. Because Woodberry’s
allegations suffice to plead a hostile work environment claim, the Court will deny Berry’s
motion to dismiss Count II.
To establish a hostile work environment claim, Woodberry “must show that his employer
subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.’” Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). This standard applies both to discriminatory and to retaliatory hostile work environment
claims. See Bergbauer v. Mabus, 934 F. Supp. 2d 55, 79, 82–83 (D.D.C. 2013). Courts examine
the totality of the circumstances, considering among other factors: “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.” Harris, 510 U.S. at 23.
Title VII is not a “general civility code”—the alleged conduct “must be 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) (internal quotation marks omitted); see also Baloch, 550 F.3d at
1201. The alleged conditions must be both “objectively and subjectively hostile, meaning that a
reasonable person would find [the work environment] hostile or abusive, and that the victim
10
must subjectively perceive the environment to be abusive.” Hill v. Assocs. for Renewal in Educ.,
Inc., 897 F.3d 232, 237 (D.C. Cir. 2018) (alteration adopted and internal quotation marks
omitted).
Woodberry has alleged workplace conduct that was subjectively and objectively abusive.
There were unwanted, inappropriate stories. For nearly a year, Lewis, Woodberry’s direct
supervisor, forced him to visit her office to hear her tales of romantic encounters with past
boyfriends. Am. Compl. ¶ 7. She sprinkled those stories with personal information about
Woodberry’s coworkers. Id. This unwanted story time lasted several hours and happened
multiple times per week. Id. And Lewis shared these stories only with Woodberry. Id. ¶¶ 6–7.
They kept him from doing his job and made him feel uncomfortable. Id. ¶ 7. Woodberry also
complained about them to Felder, Lewis’s supervisor, but to no avail. Id.
There was yelling and berating. Lewis swore angrily at Woodberry. Id. ¶ 9. On more
than one occasion, she told him that she was his “f***ing supervisor” and that he would do what
she told him to do. Id. And she cursed at him during meetings with his peers. Id. But she
treated none of his peers this way. Id. Lewis again reported this behavior in vain to Felder. Id.
Woodberry was afraid to meet with Felder and Lewis alone because they treated him like a
“dartboard.” Id. ¶ 21.
There was interference with medical care. Lewis and Felder knew that Woodberry
suffered from various health issues because he requested an accommodation. Id. ¶ 10. But on
multiple occasions, Woodberry alleges that they deliberately caused him to miss medical
appointments. See id. ¶¶ 14–15. One of these missed appointments led to Woodberry being
rushed to the hospital by ambulance and spending a week there to recover. Id. ¶ 15.
11
There was also punitive, disparate, and disproportionate reprimand. Recall that both
Woodberry and Barno left a meeting earlier than they should have. Id. ¶ 13. But while Barno
received one reprimand from Lewis and Felder, Woodberry received several. Id. And
Woodberry’s reprimands were not run of the mill. In one discussion, they berated him for
leaving the meeting and kept him from the medical appointment that ultimately landed him in the
hospital a day later. Id. ¶ 14–15. Another reprimand came as “Letter of Caution” that the human
resources department concluded was untimely—having been issued four months after the
relevant event—and was punitive rather than corrective. Id. ¶¶ 20–21. And as set forth in Part I
above, these are not Woodberry’s only hostile work environment allegations.
Viewed together, these allegations suffice to state a claim for hostile work environment
based on discrimination, at least at the motion-to-dismiss stage. First, Woodberry has said just
enough to connect these allegations of abuse to his protected characteristics. Woodberry’s
fundamental claim is that neither of his coworkers—a white man and a black woman—faced this
treatment. He presses an inference that his status as a black man is to blame for the environment
he faced. While ultimately it may be challenging for Woodberry to prove that claim with record
evidence, he has cleared the bar for now.
Second, Woodberry has shown that the environment was sufficiently severe or pervasive
to support a hostile work environment claim. In evaluating this element, the Court has
considered: how often and for how long the conduct took place; whether it happened within the
actual work environment; whether it happened over multiple offices; whether it emanated from
just a few individuals; whether it involved verbal or physical abuse; and whether it merely
concerned advancement prospects. See Moore v. U.S. Dep’t of State, 351 F. Supp. 3d 76, 91–92
(D.D.C. 2019); see also Harris, 510 U.S. at 23.
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Here, as alleged, Woodberry faced abusive conduct, including verbal assaults, in one
office primarily, multiple times per week, for a discrete period of less than a year. The alleged
abuse emanated from one person primarily, and, for the most part, did not concern Woodberry’s
advancement prospects. Based on these factors and taking every allegation of this amended
complaint as true, Woodberry has alleged an environment that was sufficiently abusive—both
subjectively and objectively—to support a hostile work environment claim based on
discrimination.
That said, Woodberry has not alleged facts sufficient to support a hostile work
environment claim based on retaliation. Most of the events described above happened before
Woodberry first engaged in any protected activity around July 2014. See Am. Compl. ¶ 40; id.
¶ 17. The environment that Woodberry faced after July 2014 was not sufficiently severe or
pervasive to support a hostile work environment claim based on retaliation.
Though Woodberry’s hostile work environment claim survives this motion to dismiss,
ultimately, he will have to support his claims with record evidence. Not only will he need to
prove that the alleged abuse that forms the basis of his hostile work environment claim actually
occurred, he also will have to show that discrimination based on his race, color, or sex was a
motivating factor for the abuse. Casting these allegations in the light most favorable to
Woodberry, his hostile work environment claim survives the motion to dismiss.
C. Count III: Retaliation
Woodberry alleges that CSOSA retaliated against him for engaging in two protected
activities. Am. Compl. ¶ 43. One allegation fails and one succeeds, so the Court will dismiss
Count III only in part.
13
Title VII’s antiretaliation provision prohibits an “employer” from discriminating against
an employee because the employee “has opposed any practice made an unlawful employment
practice by [Title VII]” or because the employee “has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under [Title VII].”
42 U.S.C. § 2000e-3(a). The D.C. Circuit applies the antiretaliation provision against the federal
government. See, e.g., Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015).
To prove a retaliation claim, an employee “must show (1) that [the] employee engaged in
statutorily protected activity; (2) that the employee suffered a materially adverse action by the
employee’s employer; and (3) that a causal link connects the two.” Howard R.L. Cook & Tommy
Shaw Found. ex rel. Black Emps. of Library of Cong., Inc. v. Billington, 737 F.3d 767, 772 (D.C.
Cir. 2013). “To survive [a] motion to dismiss, [a] complaint must contain sufficient factual
matter, accepted as true, to plausibly establish those three elements.” Id. (internal quotation
marks omitted).
Woodberry alleges two instances of retaliation. First, he alleges that he engaged in
protected activity when he objected to his discriminatory transfer to the South Capitol location,
Am. Compl. ¶ 40, and that Lewis retaliated by giving him a lowered 2014 performance review,
id. ¶ 43. Second, he alleges that he engaged in protected activity when he told Moore about past
EEO activity and asked about using leave to appeal the 2014 performance review and transfer,
id. ¶ 40, and that Moore retaliated by accusing him of lying about his leave usage and regularly
questioning Woodberry’s coworkers about his absences and work performance, id. ¶ 43.
1. Performance Review
Woodberry’s relation claim based on his 2014 performance review states a claim for
retaliation. First, his objection to the transfer was statutorily protected activity. He told Felder
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that a vacancy should be filled based on credentials, not based on gender or race. Am. Compl.
¶ 16. He thus “oppose[d] [a] discrete practice that [he] reasonably could have believed
discriminated on the basis of race, color, [or] sex.” Morris v. McCarthy, 825 F.3d 658, 673
(D.C. Cir. 2016).
Second, the negative performance review was plainly a materially adverse action because
it kept Woodberry from receiving regular salary step increases and bonuses and made him
ineligible for a promotion. Am. Compl. ¶ 22; see also Def.’s Br. at 22–23 (not disputing this
element).
And third, Woodberry has—just barely—alleged a causal link between his objection and
the performance review. For retaliation claims, “causation is often the most difficult element to
show in advance of discovery.” Bryant v. Pepco, 730 F. Supp. 2d 25, 31 (D.D.C. 2010). So a
plaintiff may establish the causal connection element of a retaliation claim “by showing that the
employer had knowledge of the employee’s protected activity, and that the adverse personnel
action took place shortly after that activity.” Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir.
2000) (quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985)). There is no bright-line
rule for what “shortly after” means, but courts seem to have coalesced around a dividing line of
three months. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (approvingly
citing cases finding three- and four-month intervals insufficiently close in time); McIntyre v.
Peters, 460 F. Supp. 2d 125, 133 (D.D.C. 2006) (collecting cases for the proposition that D.D.C.
judges have “often followed a three-month rule to establish causation on the basis of temporal
proximity alone”).
Woodberry objected to the transfer in late June and early July 2014. Am. Compl. ¶ 16.
And he appears to have received his 2014 rating in early August 2014. See id. ¶ 22. This period
15
of about one month between the protected activity and the materially adverse action is short
enough to allege a causal link at the motion-to-dismiss stage.
2. Moore’s Actions
But Woodberry’s retaliation claim based on Moore’s actions is insufficient. First,
Woodberry has not responded to Berry’s argument that there is no causal connection between
Moore’s alleged adverse actions and Woodberry’s protected activity. See Def.’s Reply at 16.
The Court treats that argument as conceded. See, e.g., Buggs v. Powell, 293 F. Supp. 2d 135,
141 (D.D.C. 2003).
Second, and regardless of that concession, Woodberry also has failed to allege that
Moore took materially adverse actions against him. An employer’s action is sufficiently adverse
for a retaliation claim if it “well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Baird v, Gotbaum, 662 F.3d 1246, 1249 (D.C. Cir. 2011)
(internal quotation omitted). Such actions “are not limited to discriminatory actions that affect
the terms and conditions of employment.” Id. (internal quotation marks omitted). Yet “while the
scope of actions covered by Title VII’s substantive provision and its anti-retaliation provisions
differ, the magnitude of harm that [the] plaintiff must suffer does not”—in both cases, the
plaintiff must suffer “objectively tangible harm.” Hornsby v. Watt, 217 F. Supp. 3d 58, 66
(D.D.C. 2016).
Moore’s questioning of Woodberry and a few others about Woodberry’s leave and work
performance are not such actions. Woodberry seeks support in Mitchell v. District of Columbia,
304 F. Supp. 3d 110, 118 (D.D.C. 2018). But Moore’s actions fall short of the publicly
displayed notice on the main entrance barring an employee from entering her old facility that the
court in Mitchell deemed materially adverse. See id. at 113, 118. They are more akin to the
16
“petty slights or minor annoyances that often take place at work and that all employees
experience,” which Title VII’s antiretaliation provisions do not prevent. Burlington Northern
and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Berry’s Motion to
Dismiss. A separate order consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
June 5, 2020 United States District Judge
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