United States District Court, District of Columbia
S. CHUTKAN United States District Judge
Ida Hernández brings this suit under Title VII of the
Civil Rights Act of 1964 against David Mao, Acting Librarian
of the Library of Congress, alleging sex discrimination and
sexual harassment (Count I), hostile work environment based
on both sex and race and national origin (Counts II, III),
and retaliation (Count IV). (Compl. ¶¶ 34-67).
Before the court is Defendant's partial motion to dismiss
under Rule 12(b)(6). (ECF No. 10). For the reasons stated
herein, Defendant's motion is GRANTED IN PART and DENIED
a Mexican-American woman, has been employed at the Library of
Congress's Office of Opportunity, Inclusiveness, and
Compliance (“OIC”) since 2006 as a Special
Assistant to the OIC Director. (Compl. ¶¶ 4, 35,
52). In June 2012, Kirk Rascoe joined OIC as its Director,
and Hernández alleges that once he began working at
OIC Rascoe made her feel “extremely uncomfortable,
” minimized her professional role, dismissed her ideas,
and told her not to “worry [her] little head
about” issues that had previously been part of her job
responsibilities. (Id. ¶¶ 7- 9). She
further alleges that Rascoe repeatedly commented on and
critiqued her clothing, including telling her that he did not
like her wearing men's sweaters, and that he once gave
her one of his own shirts and later asked why she had not
worn it. (Id. ¶¶ 10, 17).
also claims that Rascoe repeatedly referred to her as
“querida, ” a Spanish word meaning
“dear.” (Id. ¶ 11). In July 2012,
Hernández told Rascoe that, based on her upbringing in
Texas, where Spanish was her first language, she interpreted
querida to mean “a man's paid other woman or
lover.” (Id. ¶ 12). She asked him to stop
using it because she felt it was offensive and unwelcome, but
he disputed the meaning of the word and continued using it to
refer to her. (Id. ¶¶ 13, 16). She further
alleges that Rascoe patted a chair next to him at a meeting,
indicating that Hernández should sit there, which made
her feel embarrassed (id. ¶ 18), and that he
once spoke at a meeting where Hernández was present
about the Library's collection of adult books, calling
OIC both the “glue and lubricant” that holds the
Library together (id. ¶ 26).
Hernández alleges that after a disagreement in April
2013 about her role in reserving event space for Blacks in
Government, an affinity group at the Library, Rascoe issued
her a counseling memorandum for inappropriate conduct and
failure to follow supervisory orders. (Id. ¶
20). Rascoe allegedly then entered Hernández's
office and yelled that she was to “do as I tell you to
do.” (Id.). Later that summer, on August 6,
2013, Hernández further states that during a
one-on-one performance appraisal with Rascoe, he indicated he
was giving her a satisfactory, rather than outstanding,
review, and he discussed the counseling memorandum and room
reservation events at length. (Id. ¶ 28).
During that meeting, Hernández felt threatened when
Rascoe acted angrily, yelled, leaned across his desk, pointed
his finger, yelled “silence!” at one point to
prevent her from speaking, and physically blocked the door to
prevent her exit. (Id.).
she received the counseling memorandum, Hernández
filed an informal allegation of discrimination with the
Library's EEO office on May 15, 2013. (Def. Ex. 1 (ECF
No. 10-1)). Following her performance appraisal meeting with
Rascoe, she reported the incident to Lucy Suddreth on August
8, 2013, after which she was physically relocated to another
department in the Library, Integrated Support Services
(“ISS”), where she no longer had a personal
office and lacked any assigned job responsibilities for
months. (Def. Ex. 2 (ECF No. 10-2); Compl. ¶ 31).
Shortly after the reassignment, she filed an additional
allegation of discrimination, and then filed a formal
discrimination complaint in October 2013. (Def. Exs. 2, 3).
An administrative hearing was held in March 2015, and in July
2015 the hearing examiner issued its final agency decision,
finding no discrimination. (Compl. ¶¶ 32-33; Pl.
Ex. 1 (ECF No. 13-1)). Hernández subsequently
commenced this suit in February 2016.
motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002). For a plaintiff to prevail on a motion to dismiss, her
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). A claim is plausible
when the factual content allows the court to “draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Thus, although a
plaintiff may survive a Rule 12(b)(6) motion even where
“recovery is very remote and unlikely, ” the
facts alleged in the complaint “must be enough to raise
a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007) (internal quotation marks omitted). Evaluating a
12(b)(6) motion “requires the reviewing court to draw
on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
summary judgment is appropriate where there is no disputed
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). In
determining whether a genuine issue of material fact exists,
the court must view all facts in the light most favorable to
the non-moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant
must rely on record materials to demonstrate the absence of
any genuinely disputed issues of material fact. Fed.R.Civ.P.
56(a); Celotex Corp., 477 U.S. at 323. The nonmoving
party, in response, must present her own evidence beyond the
pleadings to demonstrate specific facts showing that there is
a genuine issue for trial. Celotex Corp., 477 U.S.
at 324. A fact is material if “a dispute over it might
affect the outcome of a suit, ” and an issue is genuine
if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Holcomb
v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006).
argues that Hernández failed to exhaust her
administrative remedies with regard to her race and national
origin harassment claim and her retaliation claim. Defendant
further argues that as a matter of law, the counseling
memorandum that Rascoe issued to Hernández in April
2013 cannot constitute a materially adverse employment
Exhaustion of Administrative Remedies
filing a Title VII claim, a federal employee must file an
administrative claim with her employing agency. 42 U.S.C.
§ 2000e-16; Brown v. Gen. Servs. Admin., 425
U.S. 820, 832 (1976). A court “may not consider a
discrimination claim that has not been exhausted.”
Steele v. Schafer, 535 F.3d 689, 693 (D.C. Cir.
2008). The primary purpose of the exhaustion requirement is
to provide the agency with sufficient notice to begin the
investigative process. Brown v. Marsh, 777 F.2d 8,
13 (D.C. Cir. 1985); Park v. Howard Univ., 71 F.3d
904, 907 (D.C. Cir. 1995). Thus, while the exhaustion
requirement “should not be construed to place a heavy
technical burden” on plaintiffs, it is “not a
mere technicality, ” and a plaintiff's “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, 71 F.3d at 907 (internal quotations omitted).
The failure to exhaust administrative ...