United States District Court, District of Columbia
N. McFADDEC UNITED STATES DISTRICT JUDGE
Janice Hinds, who is proceeding pro se, alleges that her
employer, the Consumer Financial Protection Bureau,
discriminated against her on the basis of race and sex on
seven occasions and retaliated against her for opposing Title
VII violations on 14 occasions. Her complaint seeks $20
million in punitive damages, $300, 000 in compensatory
damages, $300, 000 in interest, a pay raise, and any
reasonable attorneys' fees and costs. Her case comes
before me on the Defendant's motion to dismiss in part
and for summary judgment. Because there is no genuine dispute
of material fact and the Defendant is entitled to summary
judgment, the Defendant's motion will be granted.
to the complaint, Ms. Hinds an African-American woman who was
initially hired by the Federal Government on June 19, 1992 at
the GS-7 level. Compl. ¶ 10. Ms. Hinds alleges that, in
the 21 years between that time and the time that she began
her current job as an examiner for the CFPB, she worked at a
number of federal agencies, where she received numerous
promotions and was never reprimanded. Id.
¶¶ 10-11. During her time at the CFPB, Ms. Hinds
alleges, she has been denied promotion, reprimanded, and
otherwise subjected to race and sex discrimination in
violation of Title VII. Id. ¶¶ 17-25. Ms.
Hinds also alleges that she has been repeatedly subjected to
retaliation for opposing Title VII violations. Id.
¶¶ 26-40. Each allegation will be discussed below,
in connection with its merits.
one allegation may be worth mentioning at the outset, given
that Ms. Hinds has emphasized it in at least nine subsequent
filings and because it provides some context for the
allegations that follow. Ms. Hinds claims that her
then-manager, Marsha Vaughn, “inappropriately
distributed a violent image to the Plaintiff and other
employees who reported to her.” Compl. ¶ 36. Ms.
Hinds' filings repeatedly refer to this
“[e]mail containing a horrifically violent
image depicting the overkill [of] a snowman that was
slaughtered by five machetes that the
Plaintiff's former manager, Marsha Vaughn, sent to her
and all of the employees who report to
her.” According to the complaint, the fact that
Ms. Vaughn sent this email supports Ms. Hinds' view that
the CFPB was retaliating against her by assigning her to work
under Ms. Vaughn. Id. The record reflects that, on
February 3, 2015, someone sent an email titled
“winter” to several people, including Ms. Hinds
and Ms. Vaughn. Id. The email asks, “Joe-is
this your thoughts?” and contains the following image:
Id. Ms. Vaughn's reply to the group
states, “I love this!!” Id. Although the
interpretation of Ms. Vaughn's reply email could perhaps
be subjective, Ms. Hinds appears to see the specter of the
slaughtered snowman as a particularly pointed and chilling
example of her mistreatment.
Hinds initially contacted the CFPB's Equal Employment
Opportunity (“EEO”) Office in September 2013, but
she did not have sufficient evidence to lodge a formal
complaint at that time. Id. ¶ 14. On March 28,
2014, Ms. Hinds again contacted the EEO Office, and on May
15, 2014, she filed her formal EEO complaint. Id.
Ex. A at 1. The CFPB's Office of Civil Rights
investigated Ms. Hinds' complaint, which it permitted her
to amend four times during the course of the investigation.
Id. On November 9, 2016, an initial adjudicator
issued a decision granting the Defendant's motion for
summary judgment on several grounds, including that there was
no evidence of discriminatory or retaliatory intent, that
there was no evidence linking the alleged harassment to Ms.
Hinds' race or sex, and that the preponderance of the
evidence did not show that the Defendant's legitimate,
non-discriminatory reasons for the allegedly retaliatory
actions were pretextual. Id. at 4-5. The decision
noted that “most of Ms. Hinds' claims were petty
disputes about agency policy or objection[s] to minor and
rote activities taken by the agency” and that Ms. Hinds
appeared to have read a report related to the CFPB's
diversity and to have “conclude[d] that she was a
victim of discrimination before she reported to work on her
first day.” Id. The CFPB adopted the
decision's findings and analysis in a final agency order
on November 18, 2016. Id. at 6.
receiving the CFPB's final order, Ms. Hinds filed a
timely complaint in this court. The Defendant filed a motion
to dismiss in part and for summary judgment on April 4, 2017.
The motion is now ripe, and I conclude that it should be
granted for the reasons explained below.
prevail on a motion for summary judgment, a movant must show
that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). A
factual dispute is material if it could alter the outcome of
the suit under the substantive governing law.
Anderson, 477 U.S. at 248. A dispute about a
material fact is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. “[A] party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. Once this showing has been
made, the non-moving party bears the burden of setting forth
“specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 250.
Although the Court applies “less stringent
standards” to pro se filings than to filings drafted by
lawyers, a pro se plaintiff's opposition to a motion for
summary judgment “must consist of more than mere
unsupported allegations and must be supported by affidavits
or other competent evidence setting forth specific facts
showing that there is a genuine issue for trial.”
Prunte v. Universal Music Grp., Inc., 699 F.Supp.2d
15, 21-22 (D.D.C. 2010).
The Defendant Is Entitled to Summary Judgment on Each of Ms.
Hinds' Unexhausted Discrimination and Retaliation
federal employee may only assert a Title VII claim in federal
court after presenting a timely complaint to the agency
involved and exhausting available administrative remedies.
Nurriddin v. Goldin, 382 F.Supp.2d 79, 92 (D.D.C.
2005) (citing Brown v. Gen. Servs. Admin., 425 U.S.
820, 832 (1976)); see also 42 U.S.C. §
2000e-16(c). To present a timely claim to an agency, a Title
VII claimant generally must “initiate contact with a[n
EEO] Counselor within 45 days” of the conduct of which
she complains and, if counseling does not resolve her
concerns, file a formal administrative complaint within 15
days after the counseling period ends. 29 C.F.R. §
1614.105(a)(1), (d). Only if she has followed these steps
without obtaining satisfactory relief may a federal employee
bring a Title VII claim in federal court. Bowie v.
Ashcroft, 283 F.Supp.2d 25, 33 (D.D.C. 2003). If a
federal employee alleges multiple Title VII violations, each
claim must be administratively exhausted, including claims
that arise after the filing of an initial administrative
complaint, with a possible exception for retaliation claims
that “are related to the claims in the initial
administrative complaint and were specified in that complaint
to be of an ongoing and continuous nature.” See
Thomas v. Vilsack, 718 F.Supp.2d 106, 121 (D.D.C. 2010)
(applying this exception while noting that the D.C. Circuit
has not addressed the issue and some D.C. District Court
opinions have not recognized an exception).
Hinds initiated contact with an EEO Counselor on March 28,
2014. Compl. Ex. A at 1. Accordingly, her Title VII claims were
not timely presented to the agency with respect to conduct
prior to February 11, 2014. See 29 C.F.R. §
1614.105(a)(1). Much of the conduct that Ms. Hinds complains
about in her first, second, and third discrimination claims
took place before this date. Compl. at ¶ 18-20. The
Defendant is entitled to summary judgment on these claims to
the extent that they involve concerns not timely presented to
the CFPB. See Rosier, 833 F.Supp.2d at 5. Ms.
Hinds' tenth, eleventh, and twelfth retaliation claims
concern conduct that took place after her initial
administrative complaint and more than 45 days before she
sought to amend her complaint to include her new concerns.
See EEOC Decision on Agency Motion for Summary
Judgment at 4; Def.'s Memo. ISO Mot. Summary Judgment at
30-32; id. Ex. II at 306-308. The Defendant is
entitled to summary judgment on these claims as well.
Ms. Hinds has not expressly opposed summary judgment for
failure to exhaust, she has opposed dismissal for failure to
exhaust based on 29 C.F.R. § 1614.105(a)(2), which
allows an extension of the 45-day limit for initiating
counseling if “despite due diligence [the aggrieved
person] was prevented by circumstances beyond his or her
control from contacting the counselor within the time
limits.” Pl.'s Opp. to Def.'s Mot. Dismiss at
¶¶ 39, 46, 47. According to Ms. Hinds, she
initiated contact with the EEO office “as soon as she
was aware of the alleged actions, ” and the CFPB's
Office of Civil Rights accepted her explanation for failing
to initiate counseling within the ordinary 45-day period.
Id. at ¶ 39. However, the actions in question
are ones of which she must have been aware soon enough to
satisfy the 45-day limit with the exercise of due
diligence. Ms. Hinds' allegation to the contrary
is unsupported by the record and does not satisfy her burden
of setting forth “specific facts showing that there is
a genuine issue for trial.” See Anderson, 477
U.S. at 250. Accordingly, the Defendant is entitled to
summary judgment on Ms. Hinds' unexhausted discrimination
and retaliation claims. Even if Ms. Hinds had satisfied Title
VII's exhaustion requirements, however, her claims would
fail on the merits for the reasons explained below.
The Defendant Is Entitled to Summary Judgment on Each of Ms.
Hinds' Discrimination Claims
VII makes it unlawful for an employer “to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment” or
“to limit, segregate, or classify his employees . . .
in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely
affect his status as an employee” on the basis of that
individual's race, color, religion, sex, or national
origin. 42 U.S.C. § 2000e-2(a). Title VII discrimination
claims are subject to the burden-shifting framework
established by McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). The plaintiff bears the initial burden of
establishing a prima facie case of discrimination by
establishing that: “(1) she is a member of a protected
class; (2) she suffered an adverse employment action; and (3)
the unfavorable action gives rise to an inference of
discrimination.” Stella v. Mineta, 284 F.3d
135, 145 (D.C. Cir. 2002). “[N]ot everything that makes
an employee unhappy is an actionable adverse action.”
Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir.
2001). Rather, “an employee suffers an adverse
employment action if he experiences materially adverse
consequences affecting the terms, conditions, or privileges
of employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible
harm.” Forkkio v. Powell, 306 F.3d 1127, 1131
(D.C. Cir. 2002).
plaintiff states a prima facie case of discrimination, the
employer then bears the burden of identifying “the
legitimate, non-discriminatory . . . reason on which it
relied in taking the complained-of action.” Walker
v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015). If the
employer provides such an explanation of its conduct, the
central question on a motion for summary judgment is whether
“the employee produced sufficient evidence for a
reasonable jury to find that the employer's asserted
non-discriminatory reason was not the actual reason and that
the employer intentionally discriminated against the
employee” on a protected basis. Brady v. Office of
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
Hinds' seven discrimination claims fail because the
conduct of which she complains has non-discriminatory
justifications and she has not raised a triable issue of fact
as to whether these justifications are pretextual. Many of
her claims fail for the additional reason that the conduct of
which she complains does not qualify as adverse employment
Hinds' first discrimination claim fails for both these
reasons. It alleges that Ms. Hinds' former HR
manager, Milton Pepin, verbally warned her about violating
the CFPB's travel policy and gave her a letter of
counseling. Compl. ¶ 18. Ms. Hinds alleges that, during
the time she worked for him, Mr. Pepin did not give other
employees letters of counseling, but she does not allege that
any other employees engaged in conduct similar to her own.
Id. Ms. Hinds also alleges that she later discovered
that a CFPB management official drafted a five-day suspension
letter but did not serve it to her. Id. These
allegations do not concern an adverse employment action.
See Turner v. Shinseki, 824 F.Supp.2d 99, 116
(D.D.C. 2011) (holding that verbal and written criticisms are
not adverse employment actions “unless they are tied to
the employee's bonus, or result in some other material
employment action”); Baloch, 550 F.3d at 1201
(“[C]ourts have been unwilling to find adverse actions
where the suspension is not actually served.”).
Moreover, the Defendant has explained the challenged conduct
on non-discriminatory grounds that Ms. Hinds has not
disputed: Ms. Hinds was reprimanded because she traveled from
her home in Connecticut to New York City for her
background-investigation interview without required
authorization after being specifically instructed not to
travel to New York for the interview and after confirming
with Mr. Pepin that the interview would be conducted locally.
Def.'s Memo. ISO Mot. Summary Judgment at 11-13. Thus,
the Defendant is entitled to summary judgment as to this
Hinds' second discrimination claim fails for similar
reasons. Ms. Hinds alleges that Mr. Pepin
micromanaged her and, specifically, that he questioned why
she chose a specific workstation when she was working on an
assignment in New York, even though other examiners selected
their workstations without being questioned by their
managers. Compl. ¶ 19. This allegation does not state a
prima facie case of discrimination because it does not
concern “materially adverse consequences affecting the
terms, conditions, or privileges of employment or future
employment opportunities such that a reasonable trier of fact
could find objectively tangible harm.”
Forkkio, 306 F.3d at 1131. Even if Ms. Hinds had
stated a prima facie case, the Defendant has satisfied the
burden of providing a non-discriminatory explanation of the
only conduct specifically alleged in this portion of the
complaint: Mr. Pepin asked Ms. Hinds why she picked the
workstation she did because he had heard there were
interpersonal issues that made her not want to sit with the
other examiners even though her assignment to the ...