United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
Clare Harrigan brings this lawsuit alleging that her
supervisors discriminated and retaliated against her while
she was an attorney in the Department of Housing and Urban
Development’s Office of General Counsel (OGC). In her
amended complaint, Harrigan asserts nine counts alleging
various theories of gender discrimination and retaliation
under Title VII. Defendant Benjamin S. Carson, named in his
official capacity as head of the Department, has moved to
dismiss seven counts in full and two in part. For the reasons
explained below, the Court will grant Defendant’s
motion in part and deny it in part: Counts I, VII, VIII, and
IX will proceed, and the Court will dismiss Counts III
through VI in full and Count II in part.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A Rule 12(b)(6) motion to
dismiss tests the legal sufficiency of a plaintiffs
complaint; it does not require a court to ‘assess the
truth of what is asserted or determine whether a plaintiff
has any evidence to back up what is in the
complaint.’” Herron v. Fannie Mae, 861
F.3d 160, 173 (D.C. Cir. 2017) (quoting Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). When
considering a Rule 12(b)(6) motion, the Court construes the
complaint in favor of the plaintiff and grants her the
benefit of all reasonable inferences from the facts alleged.
Hettinga v. United States, 677 F.3d 471, 476 (D.C.
Gender Discrimination (Count I)
Count I of her amended complaint, Harrigan alleges that her
supervisors discriminated against her because of her gender
by denying her the chance to detail or transfer to other
federal government offices. See ECF No. 8
(“Compl.”) ¶¶ 86-109. Defendant moves
to dismiss this count in part, to the extent that it is based
on a detail opportunity she was allegedly denied in February
2007. ECF No. 11 (“Def’s Mot.”) at 5-7.
Harrigan alleges that at that time her supervisors denied her
a detail to a different section of the OGC, where she would
“learn a new and interesting area of the law, ”
receive “career enhancing opportunities, ” and
“avoid further discrimination” by her
supervisors. Compl. ¶¶ 18, 88.
argues that denial of a detail opportunity cannot be the
basis of a discrimination or retaliation claim because it is
not, under D.C. Circuit precedent, adverse enough to state a
Title VII claim. Def’s Mot. at 6. But the two cases
Defendant cites for this proposition do not reflect such an
ironclad rule. Rather, those cases-Maramark v.
Spellings, No. 06-5099, 2007 WL 2935411 at *1 (D.C. Cir.
Sept. 20, 2007), and Kangethe v. District of
Columbia, 206 F.Supp.3d 661, 670 (D.D.C. 2016)-hold that
denial of a temporary position can support a Title
VII discrimination or retaliation claim when the plaintiff
alleges it deprived her of an objective, tangible benefit.
See also Ortiz-Diaz v. U.S. Dep ’t of Hous. &
Urban Dev., 867 F.3d 70, 73 (D.C. Cir. 2017) (using the
“objectively tangible harm” standard for
asserts that, when her supervisors denied her the detail, she
lost out on “career enhancing opportunities” and
the ability to “avoid further discrimination” by
her supervisors. Compl. ¶ 88. The two cases cited by
Defendant suggest that the former allegation, standing alone,
might well be too generalized and speculative to meet the
pleading standard. Def.’s Mot. at 7–8. But when
combined with the latter allegation, it appears to be same
type of “adverse impact on the employee’s
potential for career advancement” that the Circuit
found adverse enough to support a discrimination claim in
Ortiz-Diaz, which postdates them. 867 F.3d at 74.
The Court thus concludes that Harrigan has adequately pleaded
her denial of a detail as an adverse action undergirding her
discrimination claim in Count I.
Retaliation (Count II)
II involves some of the same factual allegations in Count I,
this time cast as a retaliation claim. Again, Harrigan
alleges that her supervisors denied her a detail opportunity
in February 2007, a chance to transfer to another office in
April 2007, and another detail opportunity in August 2010.
Compl. ¶¶ 97–106. As with Count I,
Defendant moves to dismiss this count in part, to the extent
that it is based on her supervisors’ denial of her
detail opportunities. Def.’s Mot. at 5–6.
Defendant also asserts that any denial of Harrigan’s
February 2007 detail could not have been retaliatory because
it predated her protected activity. Def.’s Mot. at
also correctly points out that in Harrigan’s
opposition, she failed to respond to any of his arguments
about Count II. ECF No. 18 (“Def.’s Reply”)
at 6; see also ECF No. 13 (“Pl.’s
Opp’n”) at 8–15 (addressing arguments only
as to Count I). Harrigan has thus conceded Defendant’s
motion to dismiss part of Count II. Wannall v. Honeywell,
Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a
party files an opposition to a motion and therein addresses
only some of the movant’s arguments, the court may
treat the unaddressed arguments as conceded.”). The
Court will therefore dismiss Count II to the extent that it
is based on her supervisors allegedly denying Harrigan detail
opportunities in February 2007 and August 2010.
Discriminatory and Retaliatory Hostile Work Environment
(Counts V and VI) and Forced Transfer (Counts III and
Counts V and VI, Harrigan alleges that her supervisors
discriminated against her because of her gender and
retaliated against her by creating a hostile work
environment. Compl. ¶¶ 124–36. And in Counts
III and IV, Harrigan alleges that her supervisors forced her
to transfer to another section within the OGC to escape that
hostile work environment. Id. ¶¶
110–23; Pl.’s Opp’n at 18, 27. Defendant
moves to dismiss all these claims ...