United States District Court, District of Columbia
JERRY W. JONES, Plaintiff
JULIAN CASTRO, Defendant
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Plaintiff Jerry Jones is an employee of the United States Department of Housing and Urban Development (“HUD”) and was formerly the Director of Alternative Dispute Resolution in the Office of Departmental Equal Employment Opportunity at HUD. He is an African-American man. In this case under Title VII of the Civil Rights Act of 1964, as amended, he claims that the agency discriminated against him on the basis of his race, his gender, and on the basis of the combination of his race and gender; he also claims that he agency retaliated against him as a result of his engaging in protected equal employment opportunity (“EEO”) activities. Presently before this Court is Defendant’s  Motion for Judgment on the Pleadings.Defendant argues that several of the purported bases for Plaintiff’s claims are not adverse actions that can serve as the basis for a discrimination or retaliation claim; that Plaintiff did not properly exhaust his administrative remedies in full with respect to all claims; and that, with respect to the remaining claims, the Complaint fails to state a claim upon which relief may be granted.
Upon consideration of the pleadings,  the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS IN PART and DENIES IN PART Defendant’s motion, for the reasons stated below. The Court grants the motion with respect to the retaliation claim and dismisses that claim. The Court also grants the motion with respect to the discrimination claims insofar as they are based on adverse actions other than Plaintiff’s five-day suspension and reassignment. The Court otherwise denies the motion.
A. Statutory and Regulatory Background
As Plaintiff brings claims under both the antidiscrimination and the antiretaliation provisions of Title VII, the Court reviews the law applicable to claims under each provision.
Title VII of the Civil Rights Act makes it unlawful for any employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “This statutory text establishes two elements for an employment discrimination case: (i) the plaintiff suffered an adverse employment action (ii) because of the employee’s race, color, religion, sex, or national origin.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). An adverse employment action is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009); see also Aliotta v. Bair, 614 F.3d 556, 566 (D.C. Cir. 2010).
“Title VII’s antiretaliation provision forbids employer actions that ‘discriminate against’ an employee (or job applicant) because he has ‘opposed’ a practice that Title VII forbids or has ‘made a charge, testified, assisted, or participated in’ a Title VII ‘investigation, proceeding, or hearing.’ ” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3(a)). “To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action ‘because’ the employee opposed the practice.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. C i r. 2012); accord Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013). “Materially adverse action would ‘dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.’ ” Id. (quoting Burlington N., 548 U.S. at 68). “To be materially adverse, the employer’s action must be more than ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’ ” Id. (quoting Burlington N., 548 U.S. at 68).
Before filing a claim for discrimination or retaliation under Title VII, an individual must “must seek administrative adjudication of the claim.” Scott v. Johanns, 409 F.3d 466, 468 (D.C. Cir. 2005); see also Hamilton v. Geithner, 666 F.3d 1344, 1349 (D.C. Cir. 2012) (exhaustion required for retaliation claim under Title VII). The D.C. Circuit Court of Appeals has summarized the process as follows:
Under regulations promulgated by the Equal Employment Opportunity Commission (EEOC) pursuant to Title VII, the employee must do so by filing a complaint with her agency. 29 C.F.R. § 1614.106(a). The employing agency then conducts an investigation and, if the employee so requests, refers the matter to an EEOC administrative judge for a hearing. Id. §§ 1614.106(e)(2), 1614.108-09. After the employing agency investigates, or the administrative judge issues a decision, the employing agency must take “final action.” Id. § 1614.110. If the employee never requests a hearing, the agency’s final action must “consist of findings ... on the merits of each issue ... and, when discrimination is found, appropriate remedies and relief.” Id. § 1614.110(b). If the employee requests a hearing, the employing agency’s “final order shall notify the complainant whether or not the agency will fully implement the administrative judge’s decision.” Id. § 1614.110(a). An employee who is aggrieved by the agency’s final disposition of her complaint may then either appeal to the EEOC or file suit in federal court pursuant to 42 U.S.C. § 2000e-16(c). Id. § 1614.110.
Payne v. Salazar, 619 F.3d 56, 58 (D.C. Cir. 2010). “A Title VII lawsuit following the EEOC charge is limited in scope to claims that are ‘like or reasonably related to the allegations of the charge and growing out of such allegations.’ ” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)).
B. Factual Background
The Court provides an overview of the factual background of this case, reserving additional presentation of the facts for the issues discussed below. For the purposes of the motion before the Court, the Court accepts as true the well-pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).
Plaintiff Jones began his service as the director of the Alternative Dispute Resolution (“ADR”) program of HUD in February 2005. Compl. ¶ 19. On June 10 or 11, 2010, a HUD employee informed Michelle Cottom, then the deputy director of the Office of Departmental Equal Employment Opportunity (“ODEEO”) at HUD, that Jones had raped her in July 2009. Id. ¶ 42. (Plaintiff disputes that allegation. Id.) That alleged incident occurred before that employee joined HUD as an employee. See Id. ¶ 39.
On June 16, 2010, Cottom placed Jones on paid administrative leave prior to being given notice of the charges against him. Id. ¶ 50. He was immediately escorted out of the HUD facility. Id. He was initially placed on paid administrative leave for a period of two weeks, and at that time, Cottom and/or other senior management officials asked HUD’s Office of Inspector General to investigate him. Id. ¶ 51. Jones’ paid administrative leave was renewed periodically through January 24, 2012. Id. ¶ 52.
Jones was interviewed by Office of Inspector General investigators on August 26, 2010. Id. ¶ 54. Jones responded orally to the wide ranging questions posed to him. Id. Cottom proposed to terminate Jones’ employment with HUD in a written notice dated January 6, 2011. The notice charged Jones with several instances of misconduct; those instances did not include the original allegation of rape. Id. ¶¶ 55-56. The charges included claims that Jones had acted inappropriately to four other women (including harassment) and that he lacked candor in denying those allegations to the Office of Inspector General. Id. ¶¶ 63, 68. On January 31, 2011, Jones filed his written reply to the notice of proposed removal. Id. ¶ 58. In his written reply, in addition to denying the allegations that were the basis of the charges in the notice of proposed removal, Plaintiff argued that he was a victim of disparate treatment in light of the charges against him and the inadequate investigation conducted. Id. ¶ 66. Plaintiff subsequently supplemented his written reply on February 4 and February 15, 2011. Id. n.1.
On March 29, 2011, Jones replied to HUD’s charges orally for the first time. Id. ¶ 67. The meeting was attended by Dan Lurie, the deciding official and a special assistant to the deputy secretary of HUD, and by George Corsoro, the official representative of HUD’s responsible employee and labor relations division. Id. No later than June 2011, Lurie concluded that the charges against Jones would not be sustained and that he would not be removed from federal service. Id. ¶ 69. However, Jones was not yet returned to active duty. Id. ¶ 71. On October 3, 2011, HUD informed Jones that it had appointed a new deciding official, Patricia Hoban-Moore, who was at that time the Director of HUD Field Policy and Management. Id. ¶ 72. On October 11, 2011, Jones appeared before Hoban-Moore for a second oral reply. Id. ¶ 73. No later than November 2011, Hoban-Moore determined that Jones was to be restored to active duty and reinstated in a suitable position. Id. ¶ 74. Plaintiff then alleges that, instead of issuing Hoban-Moore’s decision, HUD encouraged Plaintiff to retire or resign to avoid being terminated. Id. ¶ 76. Plaintiff was then given false and misleading information regarding retirement by a HUD representative in the Human Resources Department. Id. ¶¶ 77-79.
HUD then issued Hoban-Moore’s decision, which was dated January 24, 2012, which rejected the proposal to remove Jones and instead suspended him for five days. Id. ¶ 82. Hoban-Moore dismissed five of the seven charges against Jones and sustained two of the charges. Id. ¶¶ 83-84. Plaintiff maintains that the two sustained charges were improperly sustained. Id. ¶ 84. Hoban-Moore’s decision advised Jones that he was being reassigned from his former position as director of the ODEEO ADR program into a separate HUD division. Id. ¶ 86. On February 13, 2012, the date Jones was to return to active duty, HUD did not inform Jones where he was to report for work, and he remained in the lobby of a HUD building for over two hours because he could not access the building. Id. ¶ 88. Jones was then assigned to a non-supervisory position with fewer and less important responsibilities and fewer opportunities for advancement; the position was also outside of his career field. Id. ¶ 89.
C. Procedural Background
Jones initiated the informal EEO complaint process no later than March 8, 2012. Id. ¶ 90. On or before May 18, 2012, Jones filed his formal EEO complaint. Id. More than 180 days had elapsed after the filing of the formal complaint without the issuance of a final agency decision by HUD. Id.
Subsequently, Plaintiff filed this action on March 3, 2015. Plaintiff identifies the following actions as the bases for his discrimination claims and his retaliation claim:
• “on January 24, 2012, defendant suspended plaintiff for five days without pay, removed plaintiff from his position as Director of ADR in HUD ODEEO, and reassigned plaintiff to a nonsupervisory position with significantly reduced duties, professional exposure to senior officials of HUD, and opportunity for professional advancement”;
• “in June of 2011, failed to dismiss the notice proposing to terminate plaintiff’s employment and restore plaintiff to active duty in the position of Director of ADR in ODEEO”;
• “beginning on June 16, 2010, placed plaintiff on administrative leave and under investigation, which caused plaintiff to lose performance bonuses and to be denied annual leave for FY 2010 and FY 2011 that he would have accrued and ...