United States District Court, District of Columbia
G. Sullivan United States District Judge
Sellers has worked for the Department of Homeland Security
(“DHS”), Immigration and Custom Enforcement
(“ICE”) for over 30 years. She alleges that DHS
has subjected her to several types of discrimination and
harassment on the basis of her gender and care-taker status
beginning in October 2013 after she took leave in connection
with the adoption of her daughter. Two broad categories of
discriminatory actions are alleged in Ms. Sellers'
complaint: (1) DHS's gradual removal of Ms. Seller's
substantive responsibilities with the purpose of putting her
in a marginal role; and (2) DHS's denial of several
promotions and other career-advancement opportunities from
2014 to 2017. As a result of these, and several other alleged
acts, Ms. Sellers brings this action against Kirstjen
Nielsen, in her official capacity as Secretary of DHS
(“Defendant or DHS”), alleging discrimination on
the basis of her gender and caregiver status, retaliation,
and hostile work environment, all in violation of Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e-2 et seq.
before the Court is defendant's motion for partial
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). Upon consideration of the motion, the
opposition and the reply thereto, the applicable law, the
entire record, and for the reasons stated below, the Court
will GRANT IN PART and DENY IN
PART defendant's motion.
facts set forth in this Memorandum Opinion reflect the
allegations in plaintiff's complaint, which the Court
assumes are true for the purposes of this motion and
liberally construes in the plaintiff's favor. See
Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994).
Pre-EEO Investigation Discriminatory Acts
Sellers is employed by Homeland Security Investigations
(“HSI”), an office within ICE, which is a
component of DHS. See Compl., ECF No. 1 at
¶¶ 1, 6. Beginning in 2008, HSI assigned Ms.
Sellers to the Department of State (“DOS”) as a
Liaison to the Bureau of International Narcotics and Law
Enforcement Affairs (“INL”). Id. ¶
15. While serving as a Liaison in 2013, Ms. Sellers took
leave under the Family and Medical Leave Act
(“FMLA”) in connection with the adoption of her
child. Id. ¶ 23. Although Ms. Sellers was on
leave, she continued to receive emails and calls from her
supervisors, requesting that she complete various tasks.
Id. ¶¶ 24-25. She reminded her colleagues
that she was on FMLA leave and caring for her adopted
daughter, but nonetheless completed the tasks when others
could not because she was expected to do so. Id.
conclusion of Ms. Sellers' leave on October 1, 2013, she
was prepared to return to her full-time Liaison position.
Id. ¶ 26. However, two weeks later, on October
15, 2013, she was told that she was being removed as Liaison
and would be reassigned to HSI headquarters. Id.
¶ 27. This came as a shock to Ms. Sellers because prior
to her leave, she had discussions with HSI regarding
significant projects, both long and short-term, that she
would work on as a Liaison. Id. ¶¶ 28-29.
Sellers was also informed that her duties would be assumed by
another employee, Mr. Charles Allen, an employee less
qualified for the position. Id. ¶¶ 27, 30.
She later discovered that Mr. Allen had assumed some of her
responsibilities while she was away on leave. Id.
¶ 31. Ms. Sellers was officially instructed to return to
HSI headquarters on December 13, 2013, and her Liaison
position was given to Mr. Allen. Id. ¶¶
27, 32. Although Ms. Sellers was no longer serving as a
Liaison, she remained on the INL team and supported Mr. Allen
on his projects. Id. ¶ 32.
Ms. Sellers lost her Liaison position, she suspected that she
may have been discriminated against because she used FMLA
leave. Id. ¶ 54. Accordingly, Ms. Sellers
contacted the agency's Equal Employment Opportunity
(“EEO”) office. Id. ¶ 54. She
explained that she was demoted immediately after taking FMLA
leave and the EEO office advised that, because DHS's
actions were potentially a violation of the FMLA, Ms. Sellers
needed to report her complaint to the leave office.
Id. ¶ 55. Ms. Sellers took this advice and
filed a complaint with the Office of Special Counsel for
violation of her FMLA rights. Id.
the following year, however, several actions by DHS led Ms.
Sellers to realize it was her gender and caregiver status,
rather than her choice to take FMLA leave, that motivated the
agency's alleged discriminatory conduct as well as its
hostile work environment. Id. ¶ 56. For
example, Mr. Allen treated her in an “increasingly
hostile and aggressive manner, which continues to this
day.” Id. ¶ 33. Mr. Allen has menaced Ms.
Sellers, telling her “how well he was doing in her job,
” loomed over her physically, passed needlessly close
to her on numerous occasions, blocked her path, criticized
her in public, took credit for her work, and otherwise
attempted to intimidate her. Id. ¶ 35-38.
Additionally, feeling the need to document that he had
successfully been appointed to her position, Mr. Allen took
photographs of Ms. Seller's personal possessions in boxes
when he moved into her office, and emailed their supervisor,
gloating about the fact he was taking over her office.
Id. ¶ 34.
Sellers reported Mr. Allen's hostility to her supervisor,
Ted Lopez, and sought his intervention. Id. ¶
39. Mr. Lopez took no action but rather, blamed Mr.
Allen's hostility on Ms. Sellers. Id.
¶¶ 40-41. For example, in April 2015, when Ms.
Sellers sought out Mr. Lopez's assistance with Mr.
Allen's aggressive behavior, Mr. Lopez insisted that Ms.
Sellers “drop it.” Id. ¶ 41.
Concerned for her safety, Ms. Sellers asked if it would take
Mr. Allen to actually physically assault her before DHS
intervened to which Mr. Lopez responded, “that's
correct.” Id. Ms. Sellers was also forced to
do administrative and secretarial tasks for Mr. Allen.
Id. ¶ 44. These duties were far below her
grade-level and experience and were an attempt by Mr. Allen
and Mr. Lopez to put her in her place as a subordinate to Mr.
Allen. Id. ¶ 44.
2014, Mr. Lopez informed Ms. Sellers that she was to have no
contact with INL whatsoever. Id. ¶ 45. Mr.
Lopez did not provide a reason for the no-contact order.
Id. Seeking a way out of her predicament, Ms.
Sellers began applying to other positions. Id.
¶ 46. In August 2014, Ms. Sellers applied to two GS-14
positions, Liaison to Europol, and Assistant Attaché
to Pretoria, and achieved scores of 99 and 90 respectively
for the positions. Id. ¶ 47. She was the most
qualified of all applicants, however, the positions were
given to two male employees. Id.
September 10, 2014, Ms. Sellers was notified that she would
be removed from the INL team entirely and her remaining
administrative responsibilities would be assumed by Mr. Allen
and Mr. Chris Nissen, another employee at HSI. Id.
¶ 49. Ms. Sellers often reported her concerns regarding
the increased marginalization and lack of responsibilities
and duties to Mr. Lopez, but to no avail. Id. ¶
53. Despite Ms. Sellers' many pleas to Mr. Lopez, no
changes were made to provide her with any meaningful duties
and responsibilities. Id. Furthermore, she applied
for a detail assignment to the National Security Council
(“NSC”) in November 2014 but was not selected for
that position. Id. ¶ 48.
EEO Investigation and Discriminatory Acts
by the fact that her duties had gradually diminished, and her
remaining duties were given to two men who were less
qualified than she was, Ms. Sellers again contacted the EEO
on October 23, 2014, alleging discrimination on the basis of
her gender and status as caregiver to her recently adopted
child. Id. ¶ 54. Ms. Seller's suspicions
that the agency's conduct was motivated by her gender and
status as a mother were confirmed soon after when Mr. Lopez
told her that the reason her substantive duties were replaced
was because she “was caring for her young
daughter” and explicitly stated he had his “wife
stay at home and take care of all that.” Id.
on her formal complaint, the agency accepted five claims,
three of which are relevant to this action:
U.S. Department of Homeland Security discriminated against
Complainant and subjected her to a hostile work environment
on the bases of sex (female) pregnancy and reprisal (prior
EEO activity) when the following events occurred:
1. On August 5, 2013, Complainant was asked to perform
significant amounts of work while on leave under the Family
Medical Leave Act (FMLA);
2. On October 15, 2013, Complainant was informed that she was
going to be removed as Liaison and was being assigned back to
Homeland Security Investigations (HSI) headquarters;
3. On December 13, 2013, Complainant was instructed to report
to HSI, where she was stripped of her Liaison duties and
consigned to performing administrative duties.
of Accepted Claims. Def.'s Mot., Ex. B., ECF No. 10-2 at
2. The Statement of Accepted Claims instructed that:
If you believe that your client's claim has not been
correctly identified, please provide to me written
clarification within seven (7) calendar days after receipt of
this letter, specifying why the claim has not been correctly
identified. If a reply is not received within the specified
time period, I will consider that you agree with the claim as
Id. It is undisputed that Ms. Sellers submitted no
clarification. However, in her formal administrative
complaint she referenced, among other things, that she was
“recently passed over for multiple positions for which
she was qualified.” ECF No. 10-1 at 6. She expressly
referenced the two non-selections for the positions she
applied for in August of 2014, the Liaison to Europol and
Assistant Attaché to Pretoria positions. Id.
Ms. Sellers' EEOC complaint was working its way through
the administrative process, life became worse for her at the
agency. Ms. Sellers alleges that throughout the
administrative process Mr. Allen became increasingly
aggressive towards her and threatened to file a formal
complaint if she did not stop “spreading rumors”
about him. Id. ¶ 59. Additionally, the agency
blocked several different attempts by Ms. Sellers to obtain
promotions. She applied for three positions while her
investigation was being conducted: (1) in May 2015, she
applied for an Assistant Attaché to London position,
Id. ¶ 62; (2) in 2015, on an unspecified date,
she applied for a Liaison to U.S. Customs and Border ...