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Cooper v. Nielsen

United States District Court, District of Columbia

March 29, 2018

TOSHIA COOPER, Plaintiff,
v.
KIRSTJEN NIELSEN, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          AMY BERMAN JACKSON United States District Judge

         Plaintiff, appearing pro se, has sued her former employer, the Federal Emergency Management Agency (FEMA), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. She alleges race discrimination, retaliation, hostile work environment, harassment and wrongful termination.

         Defendant has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) for partial dismissal of the complaint based on plaintiff's failure to exhaust her administrative remedies on the retaliation claim. Partial Mot. to Dismiss Pl.'s Compl. [Dkt. # 15]. In addition, defendant seeks dismissal of plaintiff's race discrimination and hostile work environment claims to the extent that they are based on conduct that does not rise to level of an adverse employment action. Plaintiff admits that the retaliation claim was not raised at the administrative level, and the Court agrees that certain claims should be dismissed. So the motion will be granted for the reasons explained more fully below.

         BACKGROUND

         1. Plaintiff's Work History

         Plaintiff is an African American woman who worked for FEMA as a GS-7 legal secretary from October 2011 through April 2013. She was assigned to the Office of General Counsel's Mission Support Division and supervised by Ashley Darbo. The gravamen of plaintiff's complaint is that Darbo “harassed, discriminated, retaliated and wrongfully terminated her after she engaged in protected activity twice[.]” Compl. ¶ 4.

         The complaint sets out the following facts, which are accepted as true for purposes of this motion. Plaintiff alleges that she complained about Darbo to Darbo's supervisor, Joshua Stanton, on June 5, 2012 and November 28, 2012, and she “consulted with Mr. Doug Goudy, EEOC President, ” on October 24, 2012 and April 19, 2013. Id. Plaintiff told both Stanton and Goudy that she was “being harassed and treated differently than Caucasian employees in the office.” Id. ¶ 5.

         Plaintiff talked to Stanton about Darbo in particular. She told Stanton that Darbo “was cold and distant towards her . . . was unapproachable[, ] . . . failed to interact with her, [and] would single her out, which made her feel unwelcomed when she had asked questions concerning her work.” Id. Stanton informed Darbo's immediate supervisor, Leigh Hoburg, about plaintiff's complaints on June 5, 2012, and Hoburg, in turn, notified Darbo of the complaint that same day by email. Id. According to the plaintiff, “after the complaints, . . . Darbo got mad and got even and further mistreated [plaintiff] as she was singled out continuously[.]” Id. ¶ 6. Plaintiff lists a number of actions that her supervisor then took against her; the complaint alleges that Darbo:

• told plaintiff that she did not have two 15 minute breaks;
• reduced her lunch break to 30 minutes;
• ordered her to submit a weekly timed work summary;
• used her flexible schedule against her;
• issued a Letter of Reprimand (LOR) for sending an overnight mail request to a judge;
• brought her to tears when instructing her to use her personal sick leave for visiting the FEMA agency nurse;
• “rebelled against excused absence/administrative leave for visiting the FEMA nurse;”
• “adversely withheld []her annual performance rating on April 19, 2013, ...

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