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Behrens v. Tillerson

United States District Court, District of Columbia

August 30, 2017

NINA K. BEHRENS, Plaintiff,
REX W. TILLERSON,[1] Secretary, United States Department of State, Defendant.



         This action is brought by Plaintiff Nina K. Behrens pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). Plaintiff is a Senior Diplomatic Interpreter with the Department of State, and principally alleges that she was denied certain high-level interpreting assignments as retaliation for bringing earlier discrimination complaints against her supervisors, which were settled in April 2012. Two counts are alleged against Defendant in the complaint: one for the alleged retaliation, and the other for allegedly creating a hostile work environment, likewise due to the alleged retaliatory conduct. Compl. at 18–20.

         Pending before the Court is Defendant’s [9] Motion to Dismiss in Part pursuant to Federal Rule of Civil Procedure 12(b)(6). The government contends that certain claims were not administratively exhausted. At this stage, however, the Court cannot conclude that Plaintiff provided such insufficient notice of these claims during the administrative process that dismissal is warranted on exhaustion grounds. The government further contends that Plaintiff has not plausibly alleged a materially adverse action by Defendant, which is required to make out a Title VII retaliation claim. When all reasonable inferences are drawn in Plaintiff’s favor, however, the complaint plausibly alleges that she suffered a diminution of employment responsibilities, and thereby a material adverse action. Whether such inferences are ultimately warranted as a factual matter is to be decided following discovery. Finally, largely on the basis of this same deprivation of employment responsibilities, which Plaintiff alleges was severe and pervasive, the Court finds that Plaintiff has plausibly alleged that she suffered a retaliatory hostile work environment. Accordingly, upon consideration of the pleadings,[2] the relevant legal authorities, and the record for purposes of the pending motion, the Court shall DENY the [9] Motion to Dismiss in Part.


         Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiff’s complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted).[3] The court may also consider documents in the public record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).


         A. Dismissal is Not Appropriate on Exhaustion Grounds

         Defendant contends that Plaintiff failed to adequately exhaust two categories of claims: (i) two claims related to a 2013 performance appraisal, see Def.’s Mem at 7 (citing Compl. ¶ 71); and (ii) the hostile work environment claim, see Def.’s Mem. at 14. The parties’ dispute on this issue reduces to the following procedural history.

         Plaintiff filed a formal administrative complaint regarding her supervisor’s alleged retaliatory conduct on December 21, 2012. Compl. ¶ 4. A number of additional complaints and amendments followed between May 2013 and October 2015. Id. One of these requested amendments is at issue here. In particular, on March 24, 2014, Plaintiff requested that the presiding Administrative Judge allow, among other things, the following amendment to her complaint:

On or about March 6, 2014, Hufford provided [Plaintiff] with a final performance appraisal for 2013 that rated her only fully successful, as opposed to exceeds expectations, in two critical categories. The examples Hufford used to justify his rating relied on false information or statements [Plaintiff] made in support of her claims that she was being retaliated against.

         ECF No. 10-2, at 10. The requested amendment also included an allegation that Plaintiff’s supervisors “have now created a hostile work environment.” Id. On January 20, 2015, the parties filed a joint motion to consolidate, which asked the Administrative Judge to consolidate the complaint with the additional charges made in the March 24, 2014 request to amend, as well as an earlier request to amend filed on August 9, 2013. The parties also asked the Administrative Judge to remand these additional claims for further investigation. Id. at 2.

         The Administrative Judge issued an order on June 10, 2015, which permitted an amendment of the complaint “comprised of incidents, from July 2014 to March 20, 2015, where [Plaintiff] was denied high level interpreting assignments.” ECF No. 9-5, at 2. The June 2015 order is silent on the March 2014 request to amend. Defendant contends that silence indicates that the March 2014 request was denied, and that consequently, Plaintiff has not administratively exhausted claims stemming from the 2013 performance appraisal and the hostile work environment claim. Def.’s Mem. at 8–9. Before turning to the merits of this contention, there is one final step in the paper trail. On August 18, 2015, Plaintiff filed another motion for remand. ECF No. 10-3, at 1. In the brief, Plaintiff noted the ambiguity in the June 2015 order, indicating that “the order seems limited to remanding the claims in the first amendment and did not explicitly authorize the EEO office to investigate the additional claims in the second amendment.” Id. at 9. The proposed order attached to the motion sought remand of several claims, including the claims related to the 2013 performance appraisal, and again referenced a hostile work environment claim. Id. at 4. The fate of the August 2015 motion is not apparent from the record presently before the Court.

         “To administratively exhaust [her] . . . claim[s], [Plaintiff] had to timely provide the Department with ‘sufficient information to enable the agency to investigate the claims.’” Coleman v. Duke, __F. 3d__, No. 15-5258, 2017 WL 3480705, at *5 (D.C. Cir. Aug. 15, 2017) (citing Artis v. Bernanke, 630 F.3d 1031, 1034–1035 (D.C. Cir. 2011)). Under the pertinent administrative regulations, a “complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint.” 29 C.F.R. § 1614.106(d). The claims at issue are plausibly related to the original administrative complaint as they are, according to Plaintiff, part and parcel of a pattern of retaliatory conduct by Defendant’s supervisors.

         When an amendment is sought and obtained, the new claim will be deemed administratively exhausted even though informal counseling was not sought with respect to that claim, as would otherwise be required prior to the filing of an administrative complaint. Weber v. Battista, 494 F.3d 179, 184 (D.C. Cir. 2007) (citing 29 C.F.R. § 1614.107(a)(2)). As the above recitation makes clear, it is not apparent from the present record whether Plaintiff’s amendment was accepted or not, and this alone creates a fact issue not appropriate for resolution on a motion to dismiss. Furthermore, as to the ultimate question of whether Defendant was put on sufficient notice of the claims, the reasonable inference to draw from the complaint and the administrative record presently before the Court is that it was on notice. Plaintiff filed a request to amend, then a joint motion to amend, and then after the ambiguous order on the motion to amend, Plaintiff filed another motion to remand so that the claims at issue could be investigated. The first of these requests was lodged in March 2014, more than two years before this case was filed in August 2016.[4] What ultimately came of the requests is not apparent, but it is certainly plausible that Defendant was put on sufficient notice of the claims. Accordingly, dismissal on administrative exhaustion grounds is not appropriate at this procedural juncture. See Hampton v. Schafer, 561 F. Supp. 2d 99, 103 (D.D.C. 2008) (“Because his complaint was then pending with the EEOC, the USDA forwarded the amendment request to the EEOC for consideration. While, as defendant contends, the leave ...

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