United States District Court, District of Columbia
TRACY R. NEWELL, Plaintiff,
STEVEN T. MNUCHIN, SECRETARY OF U.S. DEPARTMENT OF TREASURY Defendant.
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Defendant's Motion for Summary Judgment
December 12, 2017, U.S Department of the Treasury employee
Tracy Newell brought this employment discrimination action
pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., as amended
(“Title VII”). Ms. Newell alleges that she was
discriminated against on account of race (African American)
and sex (female), retaliated against due to her prior Equal
Employment Opportunity (“EEO”) activity, and
subjected to a hostile work environment by the sexual
harassment of her white, male coworkers. More
specifically, Ms. Newell contends that she was subjected to
“different and disparate conditions” due to her
race and gender/sex, and that, when “she complained
[about] her disparate treatment, Defendant retaliated by
demoting her” in 2014. Compl. 1; see also id.
¶ 9. She further avers that “this retaliation
continued” when her employer “denied [her] a
bonus, denied the opportunity to take a leadership
development training class, ” and “promot[ed] at
least two less qualified co-workers who did not have to
compete for the supervisory position [that Ms.] Newell had
applied for.” Id. at 1. Defendant moved for
summary judgment on all claims, arguing, first, that Ms.
Newell failed to timely and properly exhaust her
administrative remedies for her claims of retaliation and
non-selection for a supervisory position; second, that
Defendant has put forth a legitimate, non-discriminatory
reason for her 2014 reassignment; and finally, that the
alleged incidents do not constitute an actionable hostile
work environment claim. See Def.'s Mem.
Supporting Def.'s Mot. Summ. J. (“Def.'s
Mem.”) 1-4. For the reasons set forth below, the Court
grants Defendant's motion for summary judgment on all
Newell's claims involve several categories of activity
occurring between 2012 and 2017. The Court will summarize
each of these categories in turn, beginning with the events
surrounding Plaintiff's removal from a Temporary Plate
Printer Assistant Supervisor position in March 2014; then
describing the events that give rise to Plaintiff's
harassment and hostile work environment claims; and then
concluding with the events surrounding Plaintiff's 2017
non-selection claim and subsequent claims of discrimination
Newell began working in the U.S. Treasury Department's
Bureau of Engraving and Printing (“BEP”) in 1987
and has held several positions in the BEP since that time.
See Pl.'s Statement of Material Facts
(“SMF”) 2, ECF No. 19-1. In 2004, she became a Plate
Printer, a position in which she worked on the day shift and
was directly supervised by Bob Smith. Id. at 3. In
2012, Ms. Newell applied for a Temporary Plate Printer
Assistant Supervisor (“Temporary Assistant
Supervisor”) position. Id. at 3. This position
was advertised with the statement that it was a
“temporary promotion not-to-exceed [‘NTE'] 1
year, ” id.; see also Pl.'s
Opp'n Ex. 13, Vacancy Announcement No. 2012-085M, ECF No.
19-15, which “may be made permanent without further
competition, ” Pl.'s Opp'n Ex. 13 at 1. With
this temporary promotion, Ms. Newell switched to the evening
shift and was directly supervised by Denita Simmons, with Mr.
Smith now acting as her second-line supervisor. Pl.'s SMF
one-year NTE temporary promotion was set to end on September
22, 2013. Id. at 5. However, Ms. Newell continued in
this position until March 2014, id., when she was
reassigned to her former Plate Printer position, effective
March 31, 2014, id. at 7-8. The core facts
concerning both Ms. Newell's time in this position
between September 2013 and March 2014 and her March 2014
reassignment are disputed. Ms. Newell asserts that her
position was made permanent after a one-year probationary
period, in keeping with past BEP practices, such that her
reassignment was a “demotion.” Id. at 7.
asserts that there was no such permanent assignment and
demotion, but rather a reassignment to her prior position
once the temporary term ended. On this version of events,
which Plaintiff contests, see generally Pl.'s
SMF 3-9, Ms. Newell's managers extended her initial
temporary assignment for six months (from September 23, 2013
to March 23, 2014) upon the approval of Patrick W. Zunker in
the agency's human resources (“HR”)
department, id. at 5. According to Defendant, Ms.
Newell's supervisors attempted to further extend her
temporary promotion in March 2014, but were informed by a new
HR representative, Patricia Mendoza, that the prior extension
of both Ms. Newell and another employee appointed to the same
temporary vacancy at the same time, Richard Gibel, had been
in error. Id. at 5-7. Because, on Ms. Mendoza's
read, the governing provisions in 5 C.F.R. 335 prohibited an
extension of these NTE positions beyond the advertised term
(here, one year), id. at 7, Mr. Smith informed
Plaintiff's direct supervisor, Ms. Simmons, that Ms.
Newell would not be continuing in her temporary promotion.
id. at 33. Defendant states that, based on this
information, Ms. Newell was returned to her non-supervisory
Plate Printer position on March 31, 2014. Id. at
7. Mr. Gibel was also returned to his previously held
position, Acting Plate Printer Assistant Supervisor, in late
March 2014. Id. at 8-9. Two other male employees,
Mr. Smith and Donovan Elliott, were also reassigned at this
time. Id. at 8. Defendant states that these two
individuals were in temporary promotional assignments and
denied extensions by Ms. Mendoza on the same grounds as her
denial of Ms. Newell's extension, id. at 8,
whereupon Mr. Smith was returned to his position as Plate
Printer Supervisor, effective April 6, 2014, id. at
9, and Mr. Elliott was returned to his position as Plate
Printer Assistant Supervisor, effective April 25, 2014,
id. at 9. Plaintiff disputes that these two
individuals were in fact in temporary positions at the time
of their reassignment. See id. at 8-9.
2, 2014, Ms. Newell initiated contact with an Equal
Employment Opportunity (“EEO”) counselor.
See Pl.'s Opp'n Ex. 33, EEO Counselor's
Report 2, ECF No. 19-35. A formal EEO complaint was filed on
June 2, 2014, id. at Ex. 34, ECF No. 19-36, and Ms.
Newell's claim was accepted on June 13, 2014,
id. at Ex. 38, EEO Acceptance Letter, ECF No. 19-40.
The complaint accepted for investigation was “[w]hether
Complainant was subjected to disparate treatment based on
race (African-American), sex (female), and age (over 40) when
she learned on March 31, 2014 that she was not made a
permanent Plate Printer Assistant Supervisor and told to
return to her former position as a Plate Printer.” EEO
Acceptance Letter 1. As the Court next describes, Ms. Newell
subsequently amended this complaint to include harassment and
hostile work environment claims.
Events Underlying 2014 Harassment and Hostile Work
sexual harassment and hostile work environment components of
Plaintiff's complaint arise from several incidents
involving co-workers and one incident involving a direct
supervisor that occurred during and soon after Ms.
Newell's time working as a Temporary Assistant
Supervisor. These events are clustered in early 2014. First,
while Ms. Newell was operating in her temporary supervisory
capacity, she alleges that a male co-worker asked her to go
to a strip club and to sexually engage with another female
employee. Def.'s Exhibits in Support of Def.'s Mot.
Summ. J. (“Def.'s Exhibits”) Ex. 19, Sept.
12, 2014 Declaration of Tracy R. Newell (“Second Newell
Decl.”), ECF No. 17-19; see also Pl.'s
Opp'n Ex. 45, Email to Dennis Wahkinney (documenting
incident for EEO counselor), ECF No. 19-47. The individual in
question was later identified as Plate Printer Peter
Steormann. Def.'s Exhibits Ex. 44, Pl.'s Resp.
Def.'s First Set of Interrogatories, ECF No. 17-44. In
response, Ms. Newell states that she “told him [she]
did not engage in that activity” and that she
“did not appreciate him saying anything in that manner,
” Second Newell Decl. ¶¶ 48, 53, whereupon
the male subordinate employee “apologized and said he
was only joking, ” id. ¶¶ 49, 54.
There were no witnesses to this interaction. Id.
¶ 52. However, Asa Soule, another Plate Printer, states
that Peter Steormann also asked her to go to a strip club
with him. Pl.'s Opp'n Ex. 52, Declaration of Asa
Soule 3, ECF No. 19-54. Ms. Newell adds that it was
“not unusual” for male employees to approach and
request “sexual favors under the guise of humor.”
Second Newell Decl. ¶ 55. She suggests that such
incidents were more frequent in February 2014, when she was
also “referred to as ‘Baby' and
‘Honey'” by another individual and
“touched on the buttock” by a third male.
Pl.'s Resp. Def.'s First Set of Interrogatories
¶ 1. She also suggests that there was ongoing sexual
behavior in the workplace and states that she observed two
unnamed superiors engaging in such conduct on “several
occasions” spanning “9 months in the year of 2013
and 2 months in the year 2014.” Second Newell Decl.
¶¶ 60-61. Ms. Simmons, Plaintiff's immediate
supervisor, avers that Ms. Newell never informed her of these
incidents. Def.'s Exhibits Ex. 11, Declaration of Denita
Simmons (“Simmons Decl.”) 12-13, ECF No. 17-11.
Ms. Newell declined to escalate the matter. Id. Mr.
Smith also states that he was unaware of these incidents.
Def.'s Exhibits Ex. 12, March 14, 2019 Declaration of
Robert E. Smith (“Third Smith Decl.”) ¶ 44,
ECF No. 17-12.
next incident occurred on or about February 21, 2014,
when a male co-worker, Dennis Dunn, approached Ms. Newell at
work. Id. ¶ 2. There were no direct witnesses to
this event. See Def.'s Exhibits Ex. 6, EEO
Investigative File Bates No. 00020-00022, ECF No. 17-6.
According to Ms. Newell, Mr. Dunn was “agitated about
work related issues” and approached Ms. Newell,
“became very aggressive, ” and then proceeded to
refer to to Ms. Newell as an “idiot.” Second
Newell Decl. 9. Because she was “afraid of him, ”
Ms. Newell did not speak with Mr. Dunn and instead reported
the incident to her direct supervisor, Ms. Simmons.
Id. at 10. Ms. Simmons in turn went to speak with
Mr. Dunn, who was “extremely agitated, ” and
“told him that he needed a cooling down period.”
Simmons Decl. 8.
incident was then further escalated internally. Ms. Simmons
raised the incident to Mr. Smith, her supervisor, as well as
to the agency's Employee Labor-Management Relations
Division (“EMLRD”). Id.; see
also Def.'s Exhibits Ex. 12-C, Email Chain between
Denita Simmons, Bob Smith, and ELMRD Representative, ECF No.
17-12. Mr. Smith and Ms. Simmons state that Mr. Dunn was
disciplined for his behavior with a one-day suspension and
assignment of a required anger management class. Third Smith
Decl. ¶ 14. Ms. Newell maintains that Mr. Dunn was never
required to serve his suspension. Pl.'s SMF 33 (citing
Pl.'s Opp'n Ex. 27, Dunn Statement of Earnings and
Leave, ECF No. 19-29).
next event on which Plaintiff bases her hostile work
environment and harassment claims also involves Ms. Newell
and Mr. Dunn. On March 27, 2014, both individuals as well Mr.
Smith, Ms. Simmons, and Union Representative Josh Goad were
present at a meeting to address the earlier incident between
Ms. Newell and Mr. Dunn. Ms. Newell alleges that Mr. Dunn
accused her of having an affair with a co-worker during this
meeting. Pl.'s SMF 10-11. Other individuals present at
the meeting have different recollections of this event. Ms.
Simmons recalls a comment about Plaintiff's relationship
with a co-worker and Mr. Smith recalls “a vague remark
about Plaintiff and a co-worker that Dunn had a separate
issue with, ” which “did not come across to Smith
as having a sexual connotation.” Id. at 11.
Neither Ms. Smith nor Ms. Simmons believed that the comment
warranted any discipline or further action. Id.
further support of these claims, Plaintiff points to a
separate conflict on May 19, 2014, after her reassignment to
Plate Printer. On this date, a co-worker, Charles Wheelock,
raised his voice at Ms. Newell and “treated her in a
hostile manner” following a dispute at the printing
presses concerning an overtime schedule. Pl.'s SMF 13. A
witness to the incident, employee Michael Nardozzi,
characterized Mr. Wheelock as “loud and
boisterous.” Id. (citing Def.'s Exs. Ex
20, Supervisors' Email Chain Regarding Wheelock Incident
2, ECF No. 17-20). Ms. Newell reported the incident to her
direct supervisor at the time, James Riddick, who escalated
the issue to his supervisor, Ms. Simmons. See
Supervisors' Email Chain Regarding Wheelock Incident.
Plaintiff also reported the issue to BEP security. Newell
Decl. 6. Ms. Newell states that Mr. Wheelock “got
counseled and was force[d] to stay a distance” away
from her. Id. at 8. The agency's formal
investigation concluded that the “supervisors took
actions to separate the involved parties, ” and that
Ms. Newell had “accepted the apology of the alleged
aggressor and [was] satisfied with the working environment,
” such that no further administrative action was
required to address the incident. Def.'s Exhibits Ex. 43,
Report of Investigation 2, ECF No. 19-45; see also
id. at Ex. 46, Memorandum Regarding Completed
Investigation (indicating “NEWELL is satisfied with the
actions taken”), ECF No. 19-48.
Plaintiff's hostile work environment claim also involves
a separate event with a supervisory official, Mr. Smith. On
an unspecified date in March 2014, while Ms. Newell was still
working on the night shift as a Temporary Assistant
Supervisor, Mr. Smith-the day shift supervisor-stayed late to
check in with shop floor employees. Pl.'s SMF 14-15. The
parties' accounts of this evening diverge. Ms. Newell
states that Mr. Smith held a segregated meeting that included
only white males. Id. 15. Mr. Riddick, an Assistant
Plate Printing Supervisor present on the floor, confirms that
“there was a meeting and all white males were present,
” while “four black females and one black male in
the room . . . were not made part of the meeting.”
Pl.'s Opp'n Ex. 51, Declaration of James Riddick 5,
ECF No. 19-53. Another employee, Intaglio Plate Printer
Deirdre Veney, witnessed the meeting and found it “to
be racially [biased] and sexist . .. due to the fact that all
the attending printers were Caucasian and male.”
Id. at Ex. 49, Declaration of Deirdre Veney, ECF No.
19-51. Mr. Smith contends that any such division was
happenstance: the meeting's demographics were a byproduct
of the fact that he began his rounds at the press occupied by
the most senior plate printers, all of whom were white males.
Second Smith Decl. ¶¶ 22-23. He states that he
proceeded to have the same informal conversation at other
printing presses, including African American female Plate
Printers. Id. ¶¶ 24-25. None of the other
incidents expressly involve race, although the individual
incidents described above each involved a confrontation
between Ms. Newell and a white, male co-worker.
August 7, 2014, Ms. Newell amended her initial EEO complaint
of discrimination to include claims related to the
above-described events. Pl.'s Opp'n Ex. 40, EEO
Amended Acceptance Letter, ECF No. 19-40. This complaint was
formally acknowledged in an August 11, 2015, letter accepting
for investigation whether Ms. Newell was “subjected to
sexual harassment and/or a hostile work environment based on
race (African American) and sex (female).” Id.
at Bates No. 00074. On September 29, 2017, the agency issued
a final decision with a “finding of no
discrimination” for all asserted claims. Pl.'s
Opp'n Ex. 41, Dep't of the Treasury Final Agency
Decision 10, ECF No. 17-41.
Non-Selection for Permanent Position
as previously mentioned, Ms. Newell's complaint includes
allegations of discriminatory and retaliatory non-selection
for a permanent Plate Printer Assistant Supervisor position.
In late March 2015, the agency posted a vacancy announcement
for two such positions, to which Plaintiff applied. Pl.'s
SMF 17. Ms. Newell advanced to the interview stage along with
eight other eligible candidates. Id. However, in
July 2015, this vacancy was canceled without explanation.
Id. at 18. In August 2015, the agency re-posted the
same vacancy announcement, this time for three available
positions. Id. at 18-19. Plaintiff again applied and
received an interview. Id. at 19, 21. In October
2015, she was notified that she had not been selected for the
position. Id. at 33. However, Ms. Newell asserts
that she “was unaware that [her] non-selection was
discriminatory until” 2017, when she “overheard a
conversation discussing” the selected individuals'
qualifications. Id. at 34. Thereafter, on August 25,
2017, Ms. Newell contacted an EEO counselor to initiate a
complaint alleging that she was “discriminated against
on the basis of race (African-American), sex (female) and
reprisal (prior EEO activity)” when she was not
selected for the 2015 Plate Printer Assistant Supervisor
position and when she learned on August 18, 2017 “that
several employees who were Acting Supervisors, at the time of
the announcement, and one employee who was not acting as a
supervisor, were made permanent for the position of Plate
Printer Assistant Supervisor.” Def.'s Exhibits Ex.
93-A, Notice of Right to File a Discrimination Complaint, ECF
No. 19-95. Ms. Newell filed a formal complaint on December 4,
2017, and the agency subsequently issued a final decision
dismissing the 2017 EEO complaint on the grounds that Ms.
Newell had failed to comply with Title VII's requirements
for timely filing of claims. Pl.'s Opp'n Ex. 94,
Dep't of the Treasury 2017 Final Agency Decision 1, ECF
“On the Spot” Bonus and Training Opportunity
initial 2017 EEO counseling outreach also mentioned two
further allegations that were not addressed by the agency in
its final decision, see Pl.'s Opp'n Ex. 94,
2017 Final Agency Decision, ECF No. 19-96, and which
Plaintiff now raises before the Court. Specifically, the
handwritten submission in the initial contact sheet for Ms.
Newell's 2017 EEO consultation stated that she
“ha[d] been denied classes that would help position
[her] for a promotion” and that “Richard Zachmann
was allowed to take th[is] class” and also that she
“wanted to file [a] retaliation complaint on the denial
of a bonus and these other issues on Monday, August 14[,
2014].” Pl.'s Opp'n Ex. 93, BEP Office of Equal
Opportunity and Diversity Management Initial Contact Sheet 5,
ECF No. 19-95; see also Pl.'s SMF 34-36. These
claims were not mentioned in the EEO notice of right to file
a complaint, see id. at Ex. 93-A, the informal EEO
complaint, see id. at Ex. 93-B, or the formal EEO
complaint filed on December 4, 2017, see Def.'s
Exhibits Ex. 35, ECF No. 17-35, all of which included only
the non-selection allegations described above.
allegations concerning denial of a bonus arise from BEP's
practice of giving “on the spot” awards at
management's discretion. Pl.'s SMF 34. The parties
agree that Ms. Newell was not initially granted such a bonus
in 2017, but their accounts of this event are disputed. Ms.
Newell asserts that her name was included for such a bonus
and that others on her team were granted this bonus, but she
was excluded until she filed a grievance. Pl.'s Resp.
Def.'s First Set of Interrogatories ¶ 17. Defendant
states that Ms. Newell was not selected for a bonus because
the employees who received the “on the spot”
award that year worked on the daytime shift, whereas
Plaintiff was employed on the nighttime shift during that
year. Pl.'s SMF 34. Plaintiff was ultimately awarded the
bonus after she internally appealed this matter. Pl.'s
Resp. Def.'s First Set of Interrogatories ¶ 17
(“I did not receive a bonus until I filed a grievance
about it. Only then was one approved.”); see
also Pl.'s Opp'n 24 (indicating Plaintiff
received the bonus after contesting the decision).
training opportunity at issue also arose in 2017. On February
16, 2017, Mr. Smith received an email from the coordinator
for BEP's Lean Sigma Six (“LSS”) courses,
Jeffrey Freeman, indicating that Ms. Newell had asked for
permission to attend an LSS “green-belt” course
that would require her to be off of the printing press for a
total of two weeks in March and April 2017. Id.
35-36. Defendant states that Mr. Smith denied this training
request due to staffing needs on the evening shift, where
Plaintiff works. Id. at 36. Plaintiff disputes this
explanation, asserting that “[t]here are at least 15
other evening shift employees to cover for [her]” and
pointing to the fact that “[a] white male with no
known EEO activity also had the same amount of coverage but
was approved for the training.” Id. Neither
this aspect of Plaintiff's complaint nor her allegations
concerning denial of a bonus were included in the formal
complaint accepted by the agency for investigation in 2017,
which was limited to the above-described discriminatory and
retaliatory non-selection allegation. See Dep't
of the Treasury 2017 Final Agency Decision 1 (dismissing
allegation that Ms. Newell was “discriminated against
on the basis of race[, ] . . . sex[, ] . . . and in
retaliation for prior protected activity . . . when, in 2015,
she was not selected for . . . permanent supervisor
Motion for Summary Judgment
judgment is proper when “the movant shows 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). A “material” fact is one capable of
affecting the substantive outcome of the litigation. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute is “genuine” if there is
enough evidence for a reasonable finder of fact to decide in
favor of the non-movant. See Scott v.
Harris, 550 U.S. 372, 380 (2007).
judgment endeavors to streamline litigation by disposing of
factually unsupported claims or defenses and thereby
determining whether trial is genuinely necessary. See
Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). The movant bears the initial burden of
identifying portions of the record that demonstrate the
absence of any genuine issue of material fact. See
Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323.
In response, the non-movant must point to specific facts in
the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering
a motion for summary judgment, a court must “eschew
making credibility determinations or weighing the evidence[,
]” Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007), and all underlying facts and inferences
must be analyzed in the light most favorable to the
non-movant, see Anderson, 477 U.S. at 255.
Nevertheless, conclusory assertions offered without any
evidentiary support do not establish a genuine issue for
trial. See Greene v. Dalton, 164 F.3d 671,
675 (D.C. Cir. 1999).
Procedural Requirements in Title VII Suits
VII “provides that before filing suit, an individual
alleging that a federal agency engaged in employment
discrimination must seek administrative adjudication of the
claim.” Scott v. Johanns, 409 F.3d
466, 468 (D.C. Cir. 2005) (citing 42 U.S.C. § 2000e-16).
More specifically, as relevant here, a federal government
employee who “believe[s] they have been discriminated
against on the basis of” race or gender “must
consult a Counselor prior to filing a [formal EEO] complaint
in order to try to informally resolve the matter.” 29
C.F.R. § 1614.105(a). Such contact must be initiated
“within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45
days of the effective date of the action.” Id.
at § 1614.105(a)(1). If an individual thereafter chooses
to file a formal complaint, the agency must, within 180 days
of the filing, “conduct an impartial and appropriate
investigation of the complaint, ” id. at
§ 1614.106(e)(2), “provide the complainant with a
copy of the investigative file, ” and notify the
individual “that, within 30 days of [receipt of] the
investigative file, ” she “may request . . . an
immediate final decision” from the relevant agency or,
in the alternative, pursue other forms of further
administrative relief, id. at § 1614.108(f).
Upon receipt of the final agency action on a complaint, the
individual may, within ninety days, file a civil action in
U.S. district court. Id. at § 1614.407. These
administrative deadlines “are not jurisdictional.
Rather, they function like a statute of limitations and
‘like a statute of limitations, [are] subject to
waiver, estoppel, and equitable tolling.'”
Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir.
1985) (quoting Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982)).
untimely exhaustion of administrative remedies is an
affirmative defense, the defendant bears the burden of
pleading and proving it.” Bowden v. United
States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citing
Brown, 777 F.2d at 13). If a defendant carries this
burden, dismissal is proper. See Payne v.
Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (affirming
trial court's dismissal of plaintiff's claim for
failure to exhaust administrative remedies); Sierra
v. Hayden (“Sierra I”),
254 F.Supp.3d 230, 236-37 (D.D.C. 2017) (dismissing
plaintiff's Title VII claim because of failure to exhaust
administrative remedies). More than meager, conclusory
allegations that the plaintiff failed to exhaust her
administrative remedies are required to discharge this
burden. Brown, 777 F.2d at 12.
in federal district court actions brought under Title VII, a
court has authority over only those claims that are contained
in the plaintiff's administrative complaint or claims
“like or reasonably related to” those claims in
the administrative complaints. Park, 71 F.3d at 907;
see also Haynes v. D.C. Water
& Sewer Auth., 924 F.3d 519, 526-27 (D.C. Cir. 2019)
(citing Park, 71 F.3d at 907); Kennedy v.
Whitehurst, 690 F.2d 951, 961 (D.C. Cir. 1982)). A
“reasonably related” claim “must[, ] at a
minimum[, ] . . . arise from the administrative investigation
that can reasonably be expected to follow the charge of
discrimination.” Haynes, 924 F.3d at 526-27
(citing Payne, 619 F.3d at 65) (internal quotation
marks and alteration omitted).
Newell's claims in the suit filed in this Court arise
from two EEO complaints that she filed in 2014 and 2017.
Defendant argues that, except for the discrimination claim
based on her 2014 reassignment and the claim for denial of a
bonus, all the claims that Ms. Newell has presented to the
Court suffer from procedural deficiencies and, accordingly,
summary judgment should be granted in the agency's
favor. See Def.'s Mem. 10
(“Plaintiff Failed to Timely Exhaust Her Administrative
Remedies for Each and Every Discrete Alleged Unlawful
Employment Action”). Defendant also argues that the
agency has offered a legitimate, non-discriminatory reason
for the 2014 reassignment and 2017 denial of a bonus,
respectively, and urges the Court to grant summary judgment
on these claims. For the reasons set forth below, the Court
agrees with Defendant: the claims alleging retaliation in
2014, non-selection in 2015, and discriminatory and
retaliatory denial of a training opportunity in 2017,
respectively, do not clear Title VII's procedural bar
because Plaintiff did not timely exhaust these claims
administratively, and Plaintiff does not establish a genuine
issue of material fact sufficient to survive summary judgment
on her other claims.
assessing the pending motion for summary judgment, the Court
discusses a procedural matter raised by Ms. Newell: whether
discovery sanctions are appropriate here. Plaintiff's
opening argument in her opposition to Defendant's motion
for summary judgment asserts, for the first time, that
Defendant should be sanctioned for its discovery conduct and
“reli[ance] upon information not timely produced during
the discovery period.” Pl.'s Mot. Opp'n
Def.'s Mot. Summ. J. (“Pl.'s Opp'n”)
8, ECF No. 19. This allegation centers on Defendant's
supplemental production of documents after the close of
discovery. The Court will briefly recount salient discovery
dates and litigation timing to contextualize the parties'
in this suit closed on November 5, 2018. See
Scheduling Order, ECF No. 9. Defendant's first
supplemental production came after this date. On March 8,
2019, one week before filing its motion for summary judgment,
Defendant emailed Plaintiff that “the Agency very
likely has additional responsive documents relating to the
2015 non-selection” and that it would therefore
“need to make a supplemental document
production.” Pl.'s Opp'n Ex. 98, ECF No.
19-100. Defendant initially proposed a thirty-day
postponement of briefing deadlines to accommodate the
supplemental production. Id. According to Defendant,
Plaintiff opposed this extension, see Def.'s
Mot. for Extension of Time 1, ECF No. 15, whereupon Defendant
moved for a two-day extension of the original summary
judgment briefing schedule, which Plaintiff also opposed,
id. at 1-2. The Court granted this two-day extension
over Plaintiff's objection, see Min. Order (Mar.
12, 2019), and Defendant subsequently filed its motion for
summary judgment on March 15, 2019, see Def.'s
Mot. Summ J., ECF No. 16.
further supplemental production followed. On April 5, 2019,
Defendant sent an email notifying Plaintiff's counsel
that it was again supplementing document production to
provide 150 pages of additional documents pertinent to
Plaintiff's 2015 non-selection claim. Pl.'s Opp'n
Ex. 100, ECF No. 19-102. Plaintiff then moved for a
forty-five-day extension of its deadline to respond to
Defendant's motion for summary judgment, which Defendant
did not oppose. Pl.'s Mot. for Extension of Time, ECF No.
18. This Court granted the unopposed motion, see
Min. Order (Apr. 12, 2019), and Plaintiff filed her
opposition on May 28, 2018, see Pl.'s Opp'n.
Plaintiff contests this supplemental production as part of
her opposition to Defendant's motion for summary
judgment. Plaintiff did not bring any further motions seeking
discovery sanctions or otherwise indicating that Defendant
improperly concealed the documents or that the supplemental
production unfairly prejudiced her. Although confusingly not
styled or filed as a separate motion for sanctions, the heart
of Plaintiff's present objection seems to be that the
late document production after the close of discovery was in
violation of the Court's May 5, 2018 Scheduling Order,
ECF No. 9, such that the Court should award sanctions
pursuant to its authority under Federal Rules of Civil
Procedure 16(f) and 37(b), see Pl.'s Opp'n
8-9. Plaintiff characterizes Defendant's late production
as a strategic move to “advantage its case and
prejudice Plaintiff's case by “prevent[ing] [her]
from seeking the deposition of pertinent witnesses or seeking
additional discovery.” Id. at 10. As such,
Defendant's untimely late production, Plaintiff argues,
cannot be excused under Rule 26(e)'s duty to supplement.
Id. at 9 (citing Shatsky v. Syrian Arab
Republic, 312 F.R.D. 219, 225 (D.D.C. 2015)). She thus
asserts that the Court should “either strike from the
record or, alternatively, disregard” the late-produced
material. Id. at 8.
retorts that Plaintiff's request is both procedurally
improper and unwarranted on the merits. First, Plaintiff
failed to file any motion for sanctions pursuant to Federal
Rule of Civil Procedure 37(b). Def.'s Reply 24. Second,
Defendant points out that there is no evidence of bad faith
or an abuse of the judicial process, such that sanctions are
warranted; to the contrary, Defendant's incomplete
initial production was a “inadvertent oversight on the
part of the agency, ” and Defendant “took
immediate steps to correct the error.” Id. at
25. Moreover, Defendant was open to an extension of the
briefing schedule-which it sought, as described above, over
Plaintiff's objection-and “informed Plaintiff prior
to filing its Motion [for Summary Judgment] that it would not
oppose a reasonable request to reopen discovery if Plaintiff
deemed it necessary.” Id. Defendant thus urges
the Court to deny Plaintiff's request for discovery