United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION TO
DISMISS; GRANTING IN PART AND DENYING IN PART DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.
September 9, 2016, Library of Congress (“LOC”)
employee Martha-Lucia Sierra brought this employment
discrimination action against Carla Hayden in her official
capacity as Librarian of Congress. Ms. Sierra alleged
discriminatory non-promotions beginning in 2008, Compl.
¶¶ 37-41, ECF No. 1, and from 2014 to 2016,
id. ¶¶ 42-45. She additionally contended
that her supervisor's “unwelcome harassment . . .
because of her race (Hispanic), national origin (Colombian),
and/or sex (female)” created a hostile work
environment. Id. ¶ 33. Defendant moved to
dismiss both Plaintiff's 2008 to 2012 and 2014 to 2016
non-promotion claims. See generally Def.'s
Partial Mot. Dismiss, ECF No. 4. On June 1, 2017, this Court
granted Defendant's motion, finding that Ms. Sierra had
failed to timely administratively exhaust both her 2008 to
2012 complaints and her failure-to-promote claims from 2014
to 2016 with the LOC. See Sierra v. Hayden, 254
F.Supp.3d 230, 233 (D.D.C. 2017). Because Defendant had not
moved to dismiss the 2013 non-promotion, this Court declined
to move sua sponte to dismiss that claim.
Id. at 243. The Court noted, however, that Ms.
Sierra's 2013 non-promotion claim was “likely
dismissible because she did not seek out a promotion”
in that year. Id.
completing discovery, Defendant brought a Rule 12(b)(6)
motion to dismiss Ms. Sierra's remaining 2013
non-promotion claim and a motion for summary judgment on her
hostile work environment claim. Def.'s Mot. Dismiss and
Mot. Summary J. (“Def.'s Mot.”), ECF No. 24.
Because this Court finds that Plaintiff has not established a
plausible 2013 non-promotion claim, that claim is dismissed.
In addition, the Court will grant in part and deny in part
Defendant's motion for summary judgment.
REGULATORY AND PROCEDURAL BACKGROUND
VII of the Civil Rights Act of 1964 protects employees of the
Library of Congress, providing that “[a]ll personnel
actions affecting [LOC] employees or applicants for
employment . . . shall be made free from any discrimination
based on race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-16(a). A party must
fulfill several administrative prerequisites before she may
file a Title VII lawsuit in a federal district court. See
Brown v. GSA, 425 U.S. 820, 832 (1976). As detailed in
this Court's June 1, 2017 Memorandum Opinion, the
specific regulations that apply to the LOC differ from many
other federal agencies. See 29 C.F.R. §
1614.103(d)(3). Under Title VII, the Librarian of Congress is
to exercise Equal Opportunity Employment Commission authority
over the LOC, see 42 U.S.C. § 2000e-16(b),
which the Librarian has done via LOC regulations,
see LCR 2010-3.1 § 1, ECF No. 4-3. The LOC
regulations require a staff member “who believes that
she has been, or is being discriminated against” to
“notify and consult with a Counselor not later than 20
workdays after the date of the alleged discriminatory
matter.” Id. at § 6(B). Subject to a
limited number of exceptions, this requirement must be
satisfied before a plaintiff may file a lawsuit in federal
district court. Id. at § 4(B); see also
Nichols v. Billington, 402 F.Supp.2d 48, 69 (D.D.C.
2005), aff'd, No. 05-5326, 2006 WL 2018044 (D.C.
Cir. Mar. 7, 2006).
Plaintiff filed several administrative complaints related to
her non-promotion claims. The Court has already determined
that Plaintiff's employment discrimination complaints for
non-promotions before 2012 “did not adhere to the black
letter of the library regulations.” Sierra,
254 F.Supp.3d at 239. Because she did not timely file within
the LOC regulations' twenty workday requirement and
because she also did not make a request for an extension of
the deadline upon prior request, see LCR 2000-3.1
§ 4(B), Ms. Sierra missed the regulatory deadline.
See Id. The Court thus concluded that Ms. Sierra did
not timely exhaust her pre-2012 administrative claims, that
the LOC did not waive its non-exhaustion defense, and that
Ms. Sierra failed to demonstrate that she was entitled to
equitable tolling on her claims for the years 2008 through
2012. See Id. at 239-43. The Court also considered
Plaintiff's failure-to-promote claims that occurred from
2014 to 2016. See Id. at 243-44. Finding that Ms.
Sierra did not timely exhaust her 2014, 2015, and 2016
administrative claims of alleged non-promotion, it granted
Defendant's partial motion to dismiss these claims.
Id. at 244. Finally, the Court considered Ms.
Sierra's claim for discriminatory non-promotion in 2013.
Id. at 244-45. Because Defendant did not move to
dismiss Plaintiff's 2013 non-promotion claim or brief the
issue, the Court declined to dismiss the claim sua
sponte under Rule 12(b)(6). Id. at 245. The
Court noted, however, that the claim was likely dismissible
because Plaintiff did not seek out a promotion in 2013.
December 10, 2018, Defendant filed a second motion to dismiss
addressing the 2013 non-promotion claim. See
generally Def.'s Mot. In this same filing,
Defendants moved for summary judgment on Plaintiff's
hostile work environment claim. See Id. These
motions are now ripe for the Court's consideration.
this Court has already dismissed all of Plaintiff's
claims other than Ms. Sierra's 2013 discriminatory
non-promotion claim and hostile work environment claim,
see Sierra, 254 F.Supp.3d at 235 (discussing
discriminatory and retaliatory refusal to promote as well as
“other discriminatory actions”), the instant
description of the facts will focus on, first, the
employee-supervisor relationship in the year 2013, and
second, details from the record that are relevant for
Plaintiff's discriminatory hostile work environment
Sierra worked as a contractor at LOC from 1993 to 1996,
Pl.'s Opp'n Def.'s Mot. (“Pl's
Opp'n”) 2-3, ECF No. 27, and was then hired as a
Paper Conservator for the LOC's Conservation Office in
April 1996, Def.'s Mot. 2; Pl.'s Opp'n
In 2007, Plaintiff applied for a career ladder GS-13/14
management analyst position in the LOC's Strategic
Planning Office (“SPO”). Compl. ¶ 11. She
was selected for the management analyst position after an
interview by Karen Lloyd, who became Ms. Sierra's
immediate supervisor from May 2007 to July 2015. See
Pl.'s Opp'n 3; Def.'s Statement Material Facts
(“Def.'s SMF”), ECF No. 24-1 ¶¶ 4,
6. Ms. Sierra was hired into this position at the GS-13
level. Def.'s SMF ¶ 4. As a “career ladder
position” employee, Ms. Sierra was eligible for
non-competitive promotion to the GS-14 if she demonstrated an
ability to perform at that level. Id. ¶ 12;
see also Pl.'s Opp'n 4-5 (“[I]n order
to move up in a career ladder position, ‘an individual
must demonstrate that they are performing satisfactorily at
the next higher grade level for a period of three (3)
months.'” (quoting Def.'s Resps. Pl.'s
Interrogs. 5, ECF No. 27-7)). Ms. Sierra has not been
promoted to the GS-14 level since she was hired into the
management analyst position in 2007. Pl.'s Opp'n 3
(citing Compl. ¶ 11).
Sierra's complaint alleges discrimination based on race
(Hispanic), sex (female), and national origin (Colombian).
Compl. ¶ 1. Because Plaintiff alleges discriminatory
conduct over a period of time, as opposed to making a claim
derived from one or more discrete acts, the Court will
summarize several categories of issues that Ms. Sierra
describes: shifting work performance standards; presentations
and meetings; interactions within the office and at external
events; and one-on-one conversations with Ms. Lloyd.
Shifting Work Performance Standards
to Ms. Sierra, her performance was continually found
inadequate, even when she “rose to the
challenge[s]” that Ms. Lloyd laid out for her.
Pl.'s Opp'n 5. First, in Plaintiff's 2008-2009
performance evaluation, Ms. Sierra was told that she needed
to “take the Internal Control Program
(“ICP”) out of the Library” to be ready for
her GS-14 promotion. Id. at 4 (citing Sierra Aff. 4,
ECF No. 27-8). But even when Ms. Sierra performed this task
and was invited to participate at the 2016 Association of
Government Accountants (“AGA”) Fraud and Internal
Controls National Meeting, Plaintiff asserts that Ms. Lloyd
did not recognize her accomplishment. Id. at 5-6.
Instead, according to Plaintiff, Ms. Lloyd “took the
project leadership role away” and told Ms. Sierra not
to contact the AGA. Id. at 6 (citing Sierra Aff. 4).
Ms. Lloyd contests this allegation, averring that she did not
strip Ms. Sierra of any leadership role. Id. at 6
(citing Lloyd Dep. 125:22-126:9, ECF No. 27-4).
2010, when Plaintiff again asked about a possible promotion
based on her work with the ICP, Ms. Lloyd allegedly
characterized Ms. Sierra's work as “fine” but
told her that she was not ready for a promotion because she
lacked supervisory skills. Id. at 11 (citing Sierra
Dep. 89, ECF No. 27-3). Again, Ms. Lloyd disputes this
account and states that she “could not have said this
because” of her knowledge that the position is
non-supervisory. Lloyd Aff. 7, ECF No. 27-6. Ms. Sierra
offers that she worked to redress this issue in two ways.
First, she enrolled in “Management Concepts, ” a
professional training resource for the ICP, to gain
supervisory training. Pl.'s Opp'n 12. Second, she
began managing a LOC intern and met weekly with Ms. Lloyd
“to discuss her task as a supervisor.”
Id. (citing Sierra Aff. 6). According to Ms. Sierra,
Ms. Lloyd abruptly fired the intern before the end of the
intern's assignment term and told Plaintiff that she
lacked supervisory skills. Id. (citing Sierra Dep.
92; Sierra Aff. 7). According to Ms. Lloyd, it was Ms. Sierra
who suggested that she fire the intern. Lloyd Aff. 8. There
is no evidence of further discussion of supervisory skills
development or of the importance of such skills for
next year (2011), at her annual performance evaluation, Ms.
Sierra states that she was informed for the first time that
her writing skills were deficient. Pl.'s Opp'n 12
(citing Sierra Dep. 100; Lloyd Dep. 119:5-6); see
also Def.'s SMF ¶ 17 (citing Compl.
¶¶ 16, 25(b)). According to Ms. Sierra, Ms.
Lloyd's critique of her writing “perplexed”
her because coworkers generally complimented her work.
Pl.'s Opp'n 12-14 (citing Morse Dep. 57:3-9,
57:10-15, ECF No. 9). Ms. Walfall, a coworker, affirms that
Ms. Sierra's work was “usually well-written”
and did not require any more editing than that of her
coworkers. Walfall Aff. 3, ECF No. 27-14. Ms. Morse, a
coworker who reviewed Plaintiff's work under the
office's peer review system, found Ms. Sierra's
writing to be grammatically sound and “fine, though
perhaps a bit verbose.” Pl.'s Opp'n 13 n.12;
see also Morse Dep. 55:19-57:9. Mr. Lambert, a third
coworker, suggests that there were more issues with Ms.
Sierra's writing, stating that she has “some
messaging challenges with what message is being communicated
to who[m].” Lambert Dep. 22:15-17, ECF
Sierra ultimately enrolled in writing courses after Ms. Lloyd
requested that she “take ‘writing courses' or
‘English courses'” through the LOC online
training portal, Def.'s Mot. 13 (quoting Compl. ¶
16, 25(b); Sierra Dep. 105:20-106:8), because her writing was
“not clear and concise” and required multiple
rounds of edits, id. (quoting Lloyd Dep. 61:8-10,
80:7-10). Ms. Sierra characterizes many of these edits as
“stylistic, ” citing examples such as replacing
the phrase “Good day” with “Dear Internal
Control Program Accountable Officials.” Pl.'s
Opp'n 13 & n.11. Nonetheless, Ms. Sierra completed
five or six online classes concerning English, in the sense
of effective writing skills and not in the sense of learning
to speak the language. Sierra Dep. 107:7-25, 109:14-17, ECF
No. 24-3. She completed these courses in addition to her
regular workload, although Ms. Sierra was permitted to take
these courses at her desk during work hours and does not
appear to have been expected to complete them on her own
time. See Id. at 109-11.
Presentations and Meetings
incidents occurred at LOC presentations and meetings. The
earliest reported incident occurred on September 15, 2009,
when Plaintiff was practicing for a presentation the next day
at the Association of Government Accountants' Internal
Control Program/Fraud Conference. Def.'s Mot. 10 (citing
Sierra Dep. 38:4-44:7, ECF No. 24-4); see also
Pl.'s Opp'n 7. According to Plaintiff, Ms. Sierra had
invited several colleagues to help her polish her
presentation. Pl.'s Opp'n 6-7 (citing Sierra Dep.
43-44; Sierra Aff. 4-5). Plaintiff avers that Ms. Lloyd was
late to the rehearsal, “which was ‘disruptive,
'” and then, upon her arrival, frequently
interrupted Ms. Sierra's presentation and critiqued it as
“incoherent.” Def.'s Mot. 10 (quoting Sierra
Dep. 44:8-17); see also Pl.'s Opp'n 6-8. At
this same rehearsal, Ms. Lloyd is alleged to have mocked Ms.
Sierra's accent with the comment, “you're
talking like wa wa wa.” Def.'s Mot. 10 (quoting
Sierra Dep. 44:21); see also Pl.'s Opp'n 7.
Plaintiff additionally proffers that these comments were made
“with disgust in her [Ms. Lloyd's] face.”
Pl.'s Opp'n 7 (citing Sierra Dep. 44). An employee at
the LOC Office of Opportunity, Inclusiveness, and Compliance,
Ida Hernandez, corroborates Ms. Sierra's account. Ms.
Hernandez attended Ms. Sierra's rehearsal at
Plaintiff's personal invitation and states that Ms. Lloyd
was “harshly criticizing Plaintiff's
presentation” and “aggressively harass[ing]
Plaintiff by interrupting and bombarding Plaintiff with
criticism while she was practicing.” Id. at 8
(quoting Hernandez Aff. 3, ECF No. 27-12). In addition, Ms.
Sierra avers that, during multiple other presentations and
meetings, Ms. Lloyd asked others in the room if they
understood what Plaintiff was saying. Def.'s Mot. 11;
Pl.'s Opp'n 18. Ms. Sierra specifically points to her
October 2012 presentation during a LOC class as a time when
Ms. Lloyd frequently interrupted Ms. Sierra and questioned
whether the class understood her. Pl.'s Opp'n 17
(citing Lloyd Aff. 8), 38.
coworkers in the LOC's Office of Strategic Initiatives
(“OSI”) sustain Ms. Sierra's account.
According to Carolyn Claypoole, who is not supervised by Ms.
Lloyd and who serves as an internal control program
coordinator for OSI, Claypoole Aff. Addendum 4, ECF No.
27-15, Ms. Lloyd “continually” interrupted Ms.
Sierra at Internal Control Program (“ICP”)
meetings in 2010 and 2012, id. at 3. Ms. Claypoole
labels Ms. Lloyd's interruptions of Ms. Sierra's
presentations as “blatantly racist.” Pl.'s
Opp'n 37 (quoting Claypoole Aff. 4). Ms. Sierra also
specifically underscores December 2, 2010, March 7, 2012,
June 6, 2012, and August 8, 2012, as “a few dates where
Ms. Lloyd interrupted Ms. Sierra in the ICP meetings.”
Id. at 37 n.22. Beyond these dates, the record does
not indicate what proportion of the monthly ICP meetings
involved such interruptions. Ms. Morse separately concurs
with Plaintiff's account that, on multiple occasions, Ms.
Lloyd asked Ms. Sierra to repeat herself during staff
meetings in ways that Ms. Morse did not find necessary. Morse
Dep. 53:14-55:4. Furthermore, Ms. Claypoole and Plaintiff
each contend that Ms. Lloyd never similarly interrupted
white, male employees whom she supervised. See
Pl.'s Opp'n 37; see also Id. at 9 (citing
Hernandez Aff. 7; Page Aff. 3, ECF 27-13). However, Tom
Lambert, a third supervisee of Ms. Lloyd, avers that Ms.
Lloyd critiqued the presentations of all her staff.
See Lambert Aff., ECF No. 24-13 (“Karen Lloyd
. . . regularly attended presentations given by her staff
members, including me, took notes on those presentations, and
provided the presenters with critiques and
Interactions Within the Office and at External
Sierra also describes a number of more specific interactions
with Ms. Lloyd that took place both in the office and at
external events. She contends that Ms. Lloyd tended to at
times “unnecessarily separate Plaintiff from some
groups, and other times unnecessarily lumped her in with
other groups, ” Pl.'s Opp'n 15 (citing Sierra
Dep. 117), and “took many actions to subtly and overtly
humiliate Ms. Sierra, ” id. at 43.
Plaintiff states that Ms. Lloyd disfavored Ms. Sierra and did
not appoint Ms. Sierra to be her subordinate in charge when
Ms. Lloyd was away from the office unless Plaintiff
“was the only one available.”
Id. at 16 (citing Lloyd Dep. 84); see also
Walfall Aff. 5, ECF No. 27- 14 (stating that Ms. Walfall
could not recall Ms. Sierra ever acting on Ms. Lloyd's
behalf and noting that Ms. Walfall was only asked to act on
Ms. Lloyd's behalf “if the following conditions
were met: (1) [Ms. Sierra] was the only one in the office
other than me [and] (2) I was the only person in the
office”). Ms. Lloyd contends, however, that she did not
select Plaintiff to supervise in her absence because Ms.
Sierra's position in the ICP tended to receive fewer
questions than other areas of the office, and so Ms.
Sierra's area of expertise was less germane. Def.'s
Mot. 16- 17; see also Letter Re Decision of the
Office of Opportunity, Inclusiveness and Compliance 7-8, ECF
No. 24-10 (citing Ms. Lloyd's explanation that she
“put the individual in charge who has the most
experience with regard to the areas in which issues or
questions are expected to come up and will need to be
Ms. Sierra argues that Ms. Lloyd treated her differently from
other employees because Ms. Lloyd did not approve a detail
opportunity for Ms. Sierra to work at an office outside of
the LOC. During Ms. Lloyd's tenure as Ms. Sierra's
supervisor, other employees whom Ms. Lloyd supervised went on
details. See Def.'s SMF ¶ 17 (citing Compl.
¶ 25(a)). According to Ms. Sierra, she first requested a
detail during her 2013 performance review, but Ms. Lloyd was
unsupportive of her detail request during her remaining two
years supervising Ms. Sierra. Def.'s Mot. 16. Although
Ms. Lloyd “never explicitly told Plaintiff [that] she
refused to allow [Ms. Sierra] to be detailed for an
assignment, she continuously ‘pushed back' the
prospective detail under the guise of Plaintiff having
‘a lot of work.'” Pl.'s Opp'n 20
(quoting Sierra Dep. 148). In addition, Ms. Sierra avers that
Ms. Lloyd actively provided detail opportunities for a white,
male coworker, Mr. Lambert, id. at 21 (citing
Lambert Dep. 25:18- 26:1), whereas Ms. Lloyd advised
Plaintiff that she needed to locate her own
“developmental assignment, ” id. at 20
(quoting Def.'s Resp. Pl.'s Interrogs. 8). Although
Ms. Lloyd disputes this account and states that Mr. Lambert
located his own detail, see Lloyd Dep. 88:7-90:8,
Mr. Lambert's own testimony supports Ms. Sierra's
account, see Lambert Dep. 25:20-26:8, ECF No. 27-25
(stating that he never sought a detail opportunity and that
Ms. Lloyd approached him about a “developmental”
also proffers that Ms. Lloyd's communications and
protocols within SPO represent Defendant's differential
treatment of Ms. Sierra as compared to Ms. Lloyd's other
supervisees. Ms. Sierra notes Ms. Lloyd's failure to
include her on two SPO internal emails, one a notice that Ms.
Lloyd was ill on November 25, 2013, and the other an email
regarding the death of a coworker's mother on December 5,
2013. Def.'s Mot. 18. Plaintiff avers that these
omissions represent an attempt to exclude Ms. Sierra from
office communications. Pl.'s Opp'n 42-43. Defendant
proffers a non-discriminatory explanation for both omissions.
Ms. Lloyd contends that she did not include Plaintiff on the
November 25, 2013, email because it “had nothing to do
with the content of the internal control program that Sierra
was responsible for, ” Def.'s Mot. 18 (citing Lloyd
Dep. 86:15-17; Def.'s Suppl. Interrog Resp. 7-9-18, ECF
24-17), and that her failure to include Ms. Sierra on the
December 5, 2013, email was inadvertent, id. (citing
Def.'s Suppl. Interrog. Resp. 7-9-18).
Sierra additionally suggests that Ms. Lloyd treated her
differently by restricting her communications with Chief
Financial Officer Jeff Page. In approximately March 2010, Ms.
Lloyd began “pre-screening” all communications
between Ms. Sierra and Mr. Page. Def.'s Mot. 12; see
also Pl.'s Opp'n 39. According to
Plaintiff's deposition, this restriction did not affect
Ms. Sierra's ability to complete her work duties.
See Def.'s Mot. 12 (citing Sierra Dep. 76:2-8).
However, it did not apply to any of Ms. Lloyd's other
supervisees, male or female. Pl.'s Opp'n 39; see
also Def.'s Mot. 12 (citing Sierra Dep. 75:21-23).
Ms. Lloyd states that she expects all her supervisees to
brief her or her representative before going to the CFO and
that she expects all staff to inform her should the CFO
contact them directly. Lloyd Aff. 14. Nothing in the record
specifically explains why Ms. Lloyd restricted Ms.
Sierra's communications in this manner.
Ms. Sierra points to Ms. Lloyd's comments and conduct
towards her in group settings. Plaintiff highlights two
incidents. First, at an unidentified time, Plaintiff alleges
that Ms. Lloyd compared a sweater that Ms. Sierra was wearing
to the LOC's carpet. See Def.'s Mot. 20
(quoting Sierra Dep. 78:15-16). Plaintiff argues that this
comment was “meant to embarrass her (Sierra) because
‘everybody knew that nobody liked the
carpet.'” Id. (quoting Sierra Dep. 78:11).
She contends, moreover, that Ms. Lloyd was judgmental about
her clothing on multiple occasions and would look at
“Plaintiff's attire from top to bottom in a
judgmental fashion” when Ms. Sierra arrived at the
office each morning. Pl.'s Opp'n 14 (quoting Sierra
Dep. 79). Second, in 2011, Ms. Lloyd and Ms. Sierra were
attending an internal control conference together and
conversing with other attendees during a break in
proceedings. Pl.'s Opp'n 43. In the presence of this
group, Plaintiff alleges that Ms. Lloyd did not permit Ms.
Sierra to excuse herself to use the restroom, saying in front
of the other attendees, “[n]o, you go to the
ladies' room after the session is over, and you go to the
second floor” restroom, which was not the facility used
by others at the conference. Id. (quoting Sierra
addition, Ms. Sierra describes a series of one-on-one
interactions with Ms. Lloyd as further support for her
discriminatory hostile work environment claim.
Sierra contends that Ms. Lloyd subjected her to offensive
comments in private conversations between them. In 2010,
after Ms. Sierra was asked to assist with a teleconference
involving the American Embassy in Mexico, Ms. Lloyd allegedly
became angry that Ms. Sierra's help had been requested
and called her a “traitor, ” Pl.'s Opp'n
9 (citing Sierra Dep. 63-66; Sierra Aff. 12; Walfall Aff. 3),
warning her that she should “tell [her] friends not to
give [Plaintiff's] name for any other projects, ”
id. at 10 (citing Sierra Dep. 70; Sierra Aff. 12).
Plaintiff alleges that Ms. Lloyd's lack of support forced
her to turn down the opportunity. See Id. at 9. Ms.
Lloyd denies any recollection of this incident. Id.
at 10 (citing Def.'s Resp. Pl.'s Interrogs. 9; Lloyd
Dep. 130:15-131:4). Approximately one month later, Ms. Sierra
avers that Ms. Lloyd again raised the incident and compared
Plaintiff to Jerry Sandusky, a notorious child molester,
during her performance evaluation, which Ms. Lloyd similarly
denies. Id. (citing Sierra Dep. 73-74; Sierra Aff.
17; Lloyd Dep. 131:5-131:21). And on November 18, 2011, Ms.
Sierra alleges that Ms. Lloyd chastised her for going to talk