of Kimberly Marshall ("Marshall Decl.") PP 2-6.
Defendant has proffered legitimate nondiscriminatory reasons for each of the actions taken against Mr. Hayes. The burden thus shifts to Mr. Hayes to rebut these asserted reasons and to create the basis for an inference that Ms. Twombly acted out of illegal retaliatory motives. Mr. Hayes has presented affidavit evidence from which a reasonable factfinder could infer that Ms. Twombly was hostile to Mr. Hayes and that there was a causal connection between Mr. Hayes' protected activities and that hostility. See Lancaster Decl. PP 7-9; Marshall Decl. PP 2-6; Hayes Decl. PP 8-16; cf. Twombly Decl. PP 24-30, 33-36. Since the credibility of these witnesses itself raises a genuine issue of fact that might determine the outcome of this case, it would be inappropriate to grant summary judgment on this basis.
C. Failure to Exhaust
Defendant argues that Mr. Hayes failed to exhaust his administrative remedies with respect to his tenth claim regarding the Inspector General's report. While plaintiff did file an EEO claim and, subsequently, this action in a timely manner, defendant asserts that plaintiff frustrated the administrative process by failing to provide clarification to the administrative agency when requested to do so. See Decision Letter from HHS to John Hayes (May 18, 1994); Pack v. Marsh, 986 F.2d 1155, 1158 (7th Cir. 1993).
Assuming, arguendo, that plaintiff failed to exhaust his administrative remedies when he did not respond to HHS's request for further clarification, plaintiff's tenth retaliation claim nevertheless survives. A plaintiff may raise a retaliation claim, although not a claim of discrimination, for the first time in federal court and need not exhaust his or her administrative claims. Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992) (all circuits that have considered the matter agree that plaintiff need not exhaust administrative remedies for a retaliation claim); Webb v. District of Columbia, 864 F. Supp. 175, 184 (D.D.C. 1994) (requiring plaintiff to refile every new instance of discrimination would serve only to invite further retaliation and erect needless procedural barriers) (citing Nealon v. Stone, 958 F.2d at 590)).
D. Personnel Actions under Section 717
Defendant asserts that many if not all of Mr. Hayes' claims in Hayes II are nonactionable under section 717 of Title VII, 42 U.S.C. § 2000e-16, because they are not final "personnel actions." Defendant relies on Page v. Bolger, 645 F.2d 227 (4th Cir. 1981), in which the Fourth Circuit held that Section 717 addresses discrimination only in "ultimate employment decisions such as hiring, granting leave, discharging, promoting and compensating . . . [and not] the many interlocutory or mediate decisions having no immediate effect upon employment conditions." Id. at 233; see also Debose v. Stone, 1993 U.S. Dist. LEXIS 16720, *14 (E.D. La. 1993) (following Page). The Court in Page concluded that the racial composition of a review commission did not constitute an actionable personnel action. Defendant argues that many of Mr. Hayes' claims are aimed at similarly mediate supervisory decisions that did not affect the conditions of his employment.
First it should be noted that many of Mr. Hayes' allegations, if believed, might have affected the terms of his employment and thus have been actionable even under the analysis in Page. The inability to accrue credit hours, a reprimand, an unwarranted performance rating, and the Inspector General's report, all would have directly affected Mr. Hayes' work record or the terms of his compensation.
Even if some of plaintiff's claims did not directly affect his employment conditions, the Court rejects defendant's interpretation of Section 717. As a general matter, Section 717 extends the same protections to government employees as to employees in the private sector. Wagner v. Taylor, 266 U.S. App. D.C. 402, 836 F.2d 566, 574 (D.C. Cir. 1987) (citing Douglas v. Hampton, 168 U.S. App. D.C. 62, 512 F.2d 976, 981 (D.C. Cir. 1975)). Moreover, Title VII claims are not limited to final employer actions or decisions that have a lasting effect on an employee's record. Hostile work environment claims, for example, need not allege tangible or economic losses because, as the Supreme Court has reasoned, the language of "'terms, conditions, or privileges of employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women." Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 64, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). The Supreme Court has further held that
[a] discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality.