                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA



KIMBERLY SELLERS,

     Plaintiff,

     v.                              Civ. Action No: 17-2205 (EGS)

KIRSTJEN NIELSEN, Secretary,
Department of Homeland Security,

     Defendant.


                         MEMORANDUM OPINION

     Kimberly 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.

     Pending 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.

I. Background

     The 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).

     A. Factual Background

          1. Pre-EEO Investigation Discriminatory Acts

     Ms. 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. 1 Beginning in 2008, HSI assigned




1  When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
                                2
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. ¶ 25.

     At the 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.

     Ms. 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

                                3
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.

     After 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.

     Over 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

                                4
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.

     Ms. 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.

     In June 2014, Mr. Lopez informed Ms. Sellers that she was

to have no contact with INL whatsoever. Id. ¶ 45. Mr. Lopez did

                                5
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.

     On 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.

     2. EEO Investigation and Discriminatory Acts

     Disturbed 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

                                6
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. ¶ 57.

     Based on her formal complaint, the agency accepted five

claims, three of which are relevant to this action:

          Whether 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. 2

2 Defendant does not challenge the other two alleged adverse
actions which occurred in 2014. Def.’s Mot., ECF No. 1 at 1.
Additionally, defendant concedes that Ms. Sellers exhausted her
remedies for an alleged hostile work environment claim on the
                                7
Statement 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
          defined above

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.

     While 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



basis of caregiver status, and retaliation. Id.
                                8
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 Patrol position, Id. ¶ 63; and (3) in 2015,

on an unspecified date, she applied to a position with DHS’s

one-year Master’s Program through National Defense University.

Id. ¶ 67.

     3. Post-Investigation Discriminatory Acts

     After the conclusion of the investigation, on November 23,

2015, Ms. Sellers applied to at least eight more positions and

was not selected for any of them. In December 2016, she applied

for a detail assignment to the White House Situation Room. Id. ¶

65. In 2016, on unspecified dates, she applied for a position as

Liaison to the Office of National Drug Control Policy, Id. ¶ 64,

and for a leadership position in the Homeland Security Program,

Id. ¶ 68. In May and June 2017, she applied for several detail

assignments to the NSC including Director for Critical

Infrastructure, Director for Cybersecurity, Director for Health

and Development, and Director for Security Screening and

Vetting. Id. ¶ 66. Last, on an unspecified date in 2017, she

applied for another Leadership position in the Homeland Security

Program. Id. ¶ 68.

     In 2017, an administrative judge granted the agency’s

                                9
motion to dismiss the 2013 claims for failure to make timely

contact with an EEO counselor. Def.’s Mot., Ex. D., ECF No. 10-4

at 2. The administrative judge agreed with defendant that the

claims that occurred from August 5, 2013, through December 13,

2013, occurred well outside the 45-day regulatory time-frame

since Ms. Sellers contacted the EEO on October 23, 2014. Id. The

Administrative Judge later clarified that the 2013 claims were

only dismissed as discrete claims of discrimination but remain

part of Ms. Seller’s hostile work environment claim. Def.’s

Mot., Ex. E., ECF No. 10-5 at 2.

     B. Procedural Background

     Ms. Sellers filed this action alleging discrimination,

retaliation, and hostile work environment claims, based on her

gender and care-giver status. See Compl., ECF No. 1. Defendant

has moved for judgment on the pleadings as to the three 2013

alleged discrete discriminatory acts, and for all of the non-

selection claims. See Def. Mot., ECF No. 10. Plaintiff has filed

her opposition, ECF No. 13, and defendant has filed a reply, ECF

No. 14. The motion is ripe for determination by the Court.

II. Standard of Review

     Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter

the pleadings are closed--but early enough not to delay trial--a

party may move for judgment on the pleadings.” Fed. R. Civ. P.

12(c). A Rule 12(c) motion is “functionally equivalent” to a

                                10
Rule 12(b)(6) motion and governed by the same standard. Rollins

v. Wackenhut Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012). A

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)

“tests the legal sufficiency of a complaint.” Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)(internal quotation marks omitted; alteration in

original). While detailed factual allegations are not necessary,

a plaintiff must plead enough facts “to raise a right to relief

above the speculative level.” Id.

     “The court is limited to considering facts alleged in the

complaint, any documents attached to or incorporated in the

complaint, matters of which the court may take judicial notice,

and matters of public record.” Maniaci v. Georgetown Univ., 510

F. Supp. 2d 50, 59 (D.D.C. 2007)(citations omitted). The Court

must construe the complaint liberally in plaintiff's favor and

grant plaintiff the benefit of all reasonable inferences

deriving from the complaint. Kowal v. MCI Commc'ns Corp., 16

F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court must not

accept plaintiff's inferences that are “unsupported by the facts

set out in the complaint.” Id. “Nor must the court accept legal

                               11
conclusions cast in the form of factual allegations.” Id.

“[O]nly a complaint that states a plausible claim for relief

survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009).

III. Analysis

     Before bringing suit under Title VII, an aggrieved party is

required to timely exhaust his or her administrative remedies.

See Harris v. Gonzales, 488 F.3d 442, 443 (D.C. Cir. 2007).

These exhaustion requirements are not jurisdictional, but rather

operate as a statute of limitations defense. Artis v. Bernanke,

630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011)(citation omitted).

“Because 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)(citation omitted).

     An employee of the federal government who believes he or

she has been subject to discrimination is first required to

“initiate contact” with an EEO counselor within 45 days of the

allegedly discriminatory action. 29 C.F.R. § 1614.105(a)(1). The

45-day period begins to run when an employee has a “reasonable

suspicion” of a discriminatory action. Adesalu v. Copps, 606 F.

Supp. 2d 97, 102 (D.D.C. 2009). If the matter is not resolved

informally, the counselor shall inform the employee in writing

of the right to sue, and the employee must file a formal

                               12
complaint of discrimination with the agency. See 29 C.F.R. §§

1614.105(d), 1614.106(a)-(c). The agency must then investigate

the matter, after which the complainant may demand an immediate

final decision from the agency or a hearing before an EEOC

administrative judge. See 29 C.F.R. §§ 1614.106(e)(2),

1614.108(f). A complainant may file a civil action within ninety

days of receiving a final decision from the agency or after a

complaint has been pending before the EEOC for at least 180

days. See 42 U.S.C. § 2000e–16(c); 29 C.F.R. § 1614.407; Price

v. Bernanke, 470 F.3d 384, 389 (D.C. Cir. 2006).

     Critically, an employee must exhaust the administrative

process for each discrete act for which he or she seeks to bring

a claim. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

113–14 (2002). In Morgan, the Supreme Court held that “discrete

discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges.” Id.

at 113. This is because “[e]ach discrete discriminatory act

starts a new clock for filing charges alleging that act. The

charge, therefore, must be filed within the [45]-day time period

after the discrete discriminatory act occurred.” Id.

     A. 2013 Adverse Acts

     The parties agree that because at least one of Ms. Seller’s

allegations of discrete discriminatory acts, i.e., the 2014

acts, fall within the 45-day window, the Court may consider all

                               13
of the alleged acts as part of Ms. Seller’s hostile work

environment claim. See Def.’s Mot., ECF No. 10 at 12 n.2

(stating the agency does not challenge, at this stage, the 2013

claims offered in support of a hostile work environment claim).

Where the parties disagree is whether Ms. Sellers’ timely

exhausted her remedy for the discrete discrimination claims that

occurred in 2013. The two acts in dispute are as follows: (1) On

October 15, 2013, Ms. Sellers was informed that she was going to

be removed as Liaison and assigned back to Homeland Security

Investigations (HSI) headquarters; and (2) on December 13, 2013,

Ms. Sellers was instructed to report to HSI, where she was

stripped of her Liaison duties and assigned administrative

duties. 3

     A plaintiff does not have a claim for discrimination unless

and until she suffered from “adverse action.” See Czekalski v.

Peters, 475 F.3d 360, 364 (D.C. Cir. 2007). Pursuant to EEOC

Regulation 29 C.F.R. § 1614.105(a)(1), a complainant must

ordinarily contact an EEOC counselor within 45 days of the date

of the matter alleged to be discriminatory. Again, the 45-day


3 Defendant argues that all three 2013 acts are in dispute.
However, Ms. Sellers clarified in her opposition that she did
not bring the issue relating to DHS’s request for her to work
while on FMLA leave as a discrete act in her discrimination or
retaliation counts but rather only raised that issue as part of
her hostile work environment claim. Pl.’s Opp’n., ECF No. 13 at
17 n.2. Accordingly, there are only two discrete acts relevant
to this motion.
                               14
period begins to run when an employee has a “reasonable

suspicion” of a discriminatory action. Copps, 606 F. Supp. 2d at

102.

       It is undisputed that Ms. Sellers first contacted an EEO

counselor on October 23, 2014, and therefore, she only timely

exhausted “discrete discriminatory act[s]” of which she had a

reasonable suspicion that occurred within 45 days of this date.

See 29 C.F.R. § 1614.105(a)(1). Accordingly, this Court may

review any conduct that occurred on or after September 8, 2014,

45 days before Ms. Sellers made initial contact. See Morgan, 536

U.S. at 110. However, whether Ms. Seller’s 2013 claims fall

outside the 45-day window depends on how the discrete acts are

characterized.

       Defendant argues that the dates on which the discrete acts

occurred were October 15, 2013, for Ms. Seller’s removal from

the Liaison position and reassignment to HSI headquarters; and

December 13, 2013, for the removal of her Liaison duties and

assignment to administrative tasks. Def.’s Mot., ECF No. 10 at

10. Ms. Sellers argues that the removal from the Liaison

position and the removal of her substantive duties were the

initial steps in a multi-step process which culminated in an

adverse action on September 10, 2014, when she was removed from

the INL team and her INL duties were given to less-qualified

men. Pl.’s Opp’n., ECF No. 13 at 19.

                                 15
     Taking all inferences in Ms. Seller’s favor, at this stage

of the proceedings, the Court cannot say that as a matter of law

she did not timely make initial contact with the EEO counselor.

Cases in this District illustrate the difficulty in determining

when an adverse action occurs where the basis for the claim is

the removal of substantive duties. See, e.g., Kline v.

Archuleta, 102 F. Supp. 3d 24, 30 (D.D.C. 2015)(“Whether a

particular reassignment is materially adverse depends upon the

circumstances of the particular case, and ‘should be judged from

the perspective of a reasonable person in the plaintiff's

position, considering all the circumstances.’”). In Kline for

example, the court held that the plaintiff’s allegations that

she was stripped of her regular duties and that she was

assigned only “menial, clerical and/or administrative duties”

were not sufficient to meet the threshold of an adverse action

under Title VII. 102 F. Supp. 3d at 31. After engaging in a

fact-intensive inquiry, which included the plaintiff’s precise

duties prior to her reassignment, the court found that taking

all evidence in the plaintiff’s favor no reasonable jury could

find that there was an adverse action. Id. at 31–34.

     This case stands in stark contrast to Kline because there

simply is not enough information at this juncture to determine

when the adverse employment action occurred. Unlike a claim for

wrongful termination, where there is a set date for the adverse

                               16
employment action and a fixed event such as a firing, a material

adverse reassignment depends “on the circumstances of the

particular case . . . and should be judged from the perspective

of the reasonable person in the plaintiff’s position,

considering all the circumstances.” Kline, 102 F. Supp. 3d at

30. The Court agrees with the plaintiff that “[f]urther factual

development is necessary to determine exactly what duties were

removed and when, how her position description changed over

time, what the precise nature of her role was, [and] what duties

she was tasked with during the ensuing months” before the Court

may rule as a matter of law she failed to exhaust her remedies. 4

Pls.’ Opp’n., ECF No. 13 at 20. It is the defendant’s burden to

plead and prove untimely exhaustion of administrative remedies.

Bowden, 106 F.3d at 437 (citation omitted). The defendant has

failed to do so at this stage of the proceedings.

     Additionally, the Court is not convinced that Ms. Sellers

should have reasonably suspected she was being discriminated

against because of her gender and care-giver status in 2013.

Under Title VII, “if an employee did not at the time know or

have reason to know that an employment decision was




4 The parties agree that this conduct is part of the hostile-work
environment claim, so the parties will need to take discovery on
this issue regardless of whether it will ultimately survive as
part of her discrete discriminatory act claims.

                                17
discriminatory in nature, the time limits for filing an

administrative complaint may be tolled.” Loe v. Heckler, 768

F.2d 409, 418 (D.C. Cir. 1985)(internal citation omitted). “The

time within which EEO counseling must be sought is likewise

tolled until the claimant knows or has reason to know the facts

that would support a charge of discrimination.” Id. (citations

omitted).

     In this case, Ms. Sellers was first told by the agency that

she was to file her complaint with the Office of Special Counsel

because she likely had a claim for violations of the FMLA. See

Compl., ECF No. 1 ¶ 55. This is understandable because the

alleged discrimination occurred as Ms. Sellers took her FMLA

leave: she was removed from the Liaison position after she

returned from FMLA leave and alleges that the removal process

began while she was on leave. Id. ¶¶ 27, 31. Construing all

inferences in Ms. Sellers favor, it was not until the following

year—after being continually stripped of substantive duties that

were given to less qualified men—that she reasonably knew that

DHS’s actions were motivated by her gender and her status as a

caregiver. Specifically, when, on September 10, 2014, she was

removed from the INL team entirely. Because the October 23, 2014

EEO contact occurred within 45 days of the September 10, 2014

date, the Court cannot say at this stage of the proceedings that

she did not exhaust her administrative remedies as a matter of

                               18
law.

       Accordingly, the Court DENIES the defendant’s motion for

judgment on the pleadings as to Ms. Seller’s discrimination

claims related to the 2013 adverse acts, and Ms. Sellers’ claims

for discrimination based on the 2013 adverse acts may proceed.

       B. Non-selection Claims

       The parties agree that the non-selection claims are best

analyzed under three categories: (1) two non-selections

occurring in 2014 prior to Ms. Sellers filing her formal charge

of discrimination with the EEO; (2) three non-selections that

occurred after Ms. Sellers filed her formal charge of

discrimination with the EEO, but before the EEO concluded its

investigation, and (3) six non-selections that occurred after

the EEO concluded its investigation. The Court addresses each

claim in turn.

            1. 2014 Pre-EEO Complaint Non-Selections

       The first two non-selection claims concern two positions

that Ms. Sellers applied for in August 2014. Defendant argues

that these non-selections should be dismissed because Ms.

Sellers did not give the agency an opportunity to investigate

those claims when she failed to challenge the Agency’s Statement

of Accepted Claims which excluded the non-selections. Def.’s

Mot., ECF No. 10 at 13. Ms. Sellers argues that the non-

selections were included in her formal charge and it is the

                                 19
formal complaint that governs, not the agency’s informal

statement of accepted issues. Pl.’s Opp’n., ECF No. 13 at 34.

     Defendant acknowledges that Ms. Sellers raised the two

August 2014 non-selections in her formal administrative

complaint, but faults her for failing to correct the agency when

it did not include these two non-selections in its Statement of

Accepted Claims. Def.’s Mot., ECF No. 10 at 13. Because she

failed to correct the Statement of Accepted Claims, defendant

argues, Ms. Sellers has failed to exhaust her administrative

remedies. Id. In support of its position, defendant cites

several cases in which courts have adhered to the general rule

that “failure to respond to the [agency]’s framing of the issue

supports a finding that a plaintiff has failed to exhaust his

administrative remedies with respect to those claims not

approved by the EEO.” Def.’s Reply, ECF No. 14 at 12. Review of

these cases, however, reveals that courts in this District have

not taken such a hardline approach.

     For example, in McKeithan v. Boarman, 803 F. Supp. 2d 63,

68 (D.D.C. 2011), a plaintiff not only failed to respond to the

EEO’s letter that omitted his alleged gender and religion

discrimination claims, but had filed an affidavit affirmatively

stating that he was “discriminated against and subjected to a

hostile work environment ‘based on [his] age.’” Despite those

facts, the court found that plaintiff only “arguably abandoned

                               20
[the claims based on Sex and Religion] . . . by failing to

contest the EEO’s framing of his complaint and by affirmatively

stating that the actions taken against him were because of his

age.” Id. The court noted that although those actions “may well

constitute ground for dismissal,” it declined to “adopt such a

rigid position” and dismissed the claims on other grounds. Id.

Here, Ms. Sellers has not affirmatively limited her

discrimination claims to the removal of her substantive duties.

And even if she had, the Court is persuaded by McKeithan that

such a “rigid position” is not mandated by the statute or

regulation. Id.

     Defendant also relies on Robinson v. Chao, 403 F. Supp. 2d

24, 28 (D.D.C. 2005), but that case is inapposite. In Robinson,

the plaintiff failed to respond to requests for additional

information about certain of her discrimination claims. Id.

There, the EEO sent the plaintiff a formal request for

additional information so it could determine if certain claims

would be accepted for investigation. Id. at 27. The EEO warned

plaintiff that “her failure to respond within 15 calendar days

could result in dismissal of the additional claims.” Id. Because

plaintiff failed to respond to the formal request, the court

held that plaintiff did not fulfill her obligation to respond to

reasonable requests in the course of the agency’s investigation

of her claims, and therefore failed to exhaust her

                               21
administrative remedies as to those claims. Id. at 29.

     However, a “failure to cooperate during the administrative

investigation must be treated as factually and legally distinct

from failure to respond to the acceptance-of-claims letter.”

Mokhtar v. Kerry, 83 F. Supp. 3d 49, 66 (D.D.C. 2015). In

Mokhtar, the district court explained that acceptance-of-claims

letters are “more akin to an elective agency housekeeping

procedure” rather than “a legally mandated aspect of the

administrative fact-finding investigative process.” Id. Indeed,

a complainant need not respond to an acceptance-of-claims letter

for the agency to investigate his or her claim. Id. In contrast,

under 29 C.F.R. § 1614.107(a)(7), an agency “shall dismiss” a

complaint if the agency has sent to the complainant “a written

request to provide relevant information” and a complainant fails

to respond to that request, provided that “the request included

a notice of the proposed dismissal.” The acceptance-of-claims

letter sent to Ms. Sellers was not a formal written request for

information, and it contained no requirement that Ms. Sellers

respond to the letter for the agency to begin the investigation.

In light of these differences, the Court cannot conclude that

the failure to respond to an acceptance-of-claims letter is

tantamount to a failure to cooperate in the investigative

process.

     Defendant responds with several reasons for why rejecting

                               22
its rigid rule would lead to bad administrative policy.

Defendant argues that complainants would have an incentive to

file vague claims and leverage an oversight by the agency to

functionally expand those claims when they sued in federal

court. The Court is not persuaded. This is not a case in which

Ms. Sellers alluded to a general failure to select her for some

unnamed position at some undisclosed time, both August 2014 non-

selections were named by position and date in her formal

complaint to the agency. Def.’s Mot., Ex. A., ECF No. 10-1 at 6.

This is also not a case in which a plaintiff fails to allege a

particular type of discrimination (e.g., race) or claim (e.g.,

retaliation), and later brings that type of claim in federal

court. Such a case would surely fail on exhaustion grounds. See

McKeithan, 803 F. Supp. at 67 (dismissing retaliation claim for

failure to exhaust when plaintiff failed to include it in his

administrative complaint or any allegations that could be

construed as a retaliation claim).

     This Court does not believe that the hardline approach

suggested by the defendant is appropriate as a matter of law in

this case. Ultimately, the fact that the agency itself omitted

the non-selections that were clearly referenced in the formal

complaint from its statement of accepted issues does not bar the

claims from this case. The agency was free to send a formal

request for more information about those claims, but it failed

                               23
to do so. See generally Robinson, 403 F. Supp. 2d at 28

(dismissing claims because of plaintiff’s failure to respond to

formal written request for additional information). Ms. Sellers

presented the 2014 non-selection claims in her charge of

discrimination and this was all she was required to do. See

Mokthar, 83 F. Supp. 3d at 65 (stating there is no statutory or

regulatory requirement for a plaintiff to respond to an

acceptance-of-claims letter within a certain time to avoid

waiving plaintiff’s claims).

     Accordingly, the Court DENIES defendant’s motion for

judgment on the pleadings as to the 2014 non-selection claims,

and Ms. Sellers may proceed on her claims that she was

discriminated against based on gender and caregiver status when

she was not selected for two positions in August 2014.

          2. 2015 Post-Charge Non-Selections

     The next category of non-selections relate to three

positions Ms. Sellers applied for after she filed her complaint

but prior to the conclusion of the investigation. These

positions were: (1) an Assistant Attaché to London position she

applied for on May 2015; (2) a Liaison to U.S. Customs and

Border Patrol position she applied for at an unspecified time in

2015; and (3) a position through DHS’s Master’s Program through

National Defense University, she applied for at an unspecified

time in 2015. Ms. Sellers alleges that she was not selected for

                               24
these positions based on: (1) gender and care-giver status; and

(2) in retaliation for filing a complaint with the EEO. Pl.’s

Opp’n., ECF No. 13 at 29. It is undisputed that Ms. Sellers

failed to initiate EEO contact when these non-selections

occurred. Id. However, Ms. Sellers argues that she was not

required to do so once she initiated the EEO process, because

the post-charge non-selections were reasonably related to the

two non-selections cited within her formal complaint. Id. at 36.

     Defendant argues that Ms. Seller’s discrimination and

retaliation claims for these non-selections should be dismissed

for slightly different reasons. First, defendant argues that Ms.

Seller’s discrimination claim for these three non-selections is

foreclosed by this Court’s decision in Nguyen v. Mabus, 895 F.

Supp. 2d 158 (2012). In Nguyen, this Court granted summary

judgment to the defendant on plaintiff’s discrete acts of

discrimination claims for failure to exhaust administrative

remedies. Id. at 172–73. Relevant to this case were three acts

of non-selection which occurred after the investigation began

and more than 45-days after the plaintiff contacted the EEO. Id.

The Court found that the three acts of non-selection were

discrete acts of alleged discrimination and because the

plaintiff did not contact the EEO about these acts within 45-

days of when they occurred they were not timely exhausted and

therefore procedurally barred. Id. at 173.

                               25
     Defendant is correct that “courts should not treat

individual incidents of alleged discrimination as part of a

discriminatory pattern for exhaustion purposes.” Id. at 172

(citing Morgan 536 U.S. at 114). Under Morgan, a plaintiff who

alleges discrete acts of discrimination must initiate EEO

contact for every act which falls outside the 45-day window. 536

U.S. at 114. Ms. Sellers failed to do so for her post-charge

non-selection claims which did not occur within 45-days of the

October 24, 2014, EEO contact, and therefore did not exhaust her

remedies for her discrimination claims as to these three non-

selections. Accordingly, Ms. Sellers may not proceed with these

three non-selection claims under her theory of discrimination.

     As to the retaliation claim, defendant recognizes that

whether a plaintiff needs to exhaust post-charge retaliation

claims remains an open question for this Court. After the

Supreme Court's decision in Morgan, this Court has required

plaintiffs to exhaust their administrative remedies with respect

to each discrete act of discrimination. Several courts in this

District, however, have distinguished retaliation claims that

arise after a plaintiff has filed an administrative complaint,

holding that separate exhaustion is not required for those later

acts of retaliation that would have come within the “scope of

any investigation that reasonably could have been expected to

result from [the] initial [administrative] charge of

                               26
discrimination.” Hazel v. Wash. Metro. Area Transit Auth., No.

02–1375, 2006 WL 3623693, *8 (D.D.C. Dec. 4, 2006) (relying on

Wedow v. Kansas City, 442 F.3d 661, 673–74 (8th Cir. 2006) and

Lane v. Hilbert, No. 03–5309, 2004 WL 1071330, *1 (D.C. Cir. May

12, 2004)); see also Jones v. Bernanke, 685 F. Supp. 2d 31, 37

(D.D.C. 2010); Thomas v. Vilsack, 718 F. Supp. 2d 106, 121

(D.D.C. 2010); Smith–Thompson v. Dist. of Columbia, 657 F. Supp.

2d 123, 137 (D.D.C. 2009); Lewis v. Dist. of Columbia, 535 F.

Supp. 2d 1, 6–8 (D.D.C. 2008). 5 This Court has followed this

approach and has required claims of retaliation to be

administratively exhausted unless they were (1) related to the

claims in the initial administrative complaint, and (2)

specified in that complaint to be of an ongoing and continuous

nature. See Nguyen 895 F. Supp. 2d at 184. Because exhaustion of

administrative remedies is an affirmative defense, defendant

bears the burden of pleading and proving it. Bowden, 106 F.3d at

437.

       With respect to the three non-selection claims under the

retaliation theory, defendant argues that the non-selection

claims at issue are not reasonably related to the claims in the


5 The D.C. Circuit has declined to weigh in on this split. See
Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010)(“We need not
decide whether Morgan did in fact overtake that line of cases
[that permits federal employees to litigate unfiled retaliation
claims that are like or reasonably related to claims they did
file with the agency].”).
                                 27
administrative complaint because Ms. Seller’s administrative

complaint failed to “describe the same conduct and implicate the

same individuals.” Def.’s Mot., ECF No. 10 at 16–17 (quoting

Craig v. District of Columbia, 74 F. Supp. 3d 349, 366 (D.D.C.

2014)). In other words, there were no allegations that the

“selecting officials for the vacancies were the same as those

who allegedly discriminated against and harassed [Ms.] Sellers.”

Id. at 16.

     However, this argument supports plaintiff’s position more

than that of the defendant. Defendant bears the burden of

proving that the plaintiff failed to exhaust and “the

incompleteness of the factual record prevents the court from

determining [at the pleadings stage] whether the allegations in

question were ‘of a like kind’ to the retaliatory acts alleged

in the EEOC charge.” Smith-Thompson v. District of Columbia, 657

F. Supp. 2d 123, 137-38 (2009). Given the number of factual

issues that remain unresolved, the Court cannot conclude, on the

basis of the pleadings alone, that the plaintiff failed to

exhaust her administrative remedies. The record requires factual

development, and therefore defendant cannot carry its burden to

prove Ms. Sellers did not exhaust her claims on the pleadings as

to the retaliation claim for the post-charge non-selections.

     Accordingly, the Court will GRANT defendant’s motion for

judgment on the pleadings as to Ms. Seller’s 2015 post-charge

                               28
non-selection discrimination claims and will DENY defendant’s

motion for judgment on the pleadings as to Ms. Seller’s 2015

post-charge non-selection retaliation claims. Ms. Sellers may

proceed on her claim that she was not selected for the three

positions in 2015 in retaliation for filing her formal charge of

discrimination with EEO.

          3. 2016-2017 Post-Investigation Non-Selections

     The last category concerns several positions for which Ms.

Sellers applied that post-date the conclusion of the

investigation. Ms. Sellers concedes that binding authority in

this jurisdiction has held that acts that occur after an

investigation has concluded must be separately exhausted. Pl.’s

Opp’n., ECF No. 13 at 42; see Payne v. Salazar, 619 F.3d 56, 65

(D.C. Cir. 2010)(dismissing claim concerning retaliatory conduct

in January 2008 because it “could not possibly have arisen from

the administrative investigation” that “ended in September

2007”). Ms. Sellers argues, however, that the post-investigation

conduct may still be considered as part of her hostile work

environment claim. Id.

     Defendant makes two arguments against allowing such claims

to be considered as part of a hostile work environment claim,

one general to all non-selection claims, the other specific to

Ms. Seller’s post-investigation claims. The general argument is

that all non-selection claims may not be considered as part of a

                               29
hostile work environment claim because they are “discrete events

that occur at a specific time [and] do not constitute

initimidat[ion] ridicule, or insult.” Def.’s Mot., ECF No. 10 at

13–14 (citing Morgan, 536 U.S. at 114). The specific argument

with regard to her post-investigation non-selection claim is

that Ms. Sellers is attempting to bootstrap her concededly

unexhausted non-selection claims into a catch-all hostile work

environment claim. Def.’s Reply, ECF No. 14 at 21.

     As to defendant’s general argument that non-selection

claims may not be part of a hostile work environment, Morgan has

made clear that, with regard to hostile work environment claims,

“plaintiffs may incorporate non-exhausted allegations into a

hostile work environment claim so long as some allegations were

exhausted and all of the allegations together form one hostile

environment claim.” Nguyen, 895 F. Supp. 2d at 187 (citing

Morgan, 536 U.S. at 115). The Court of Appeals for the District

of Columbia Circuit (“D.C. Circuit”) has confirmed this view in

Baird v. Gotbaum, 662 F.3d 1246 (D.C. Cir. 2011). In Baird, the

D.C. Circuit explained that a court may not “dismiss a hostile

work environment claim merely because it contains discrete acts

that the plaintiff claims (correctly or incorrectly) are

actionable on their own.” Id. at 1252. Indeed, defendant

acknowledges as much in its reply brief. See Def.’s Reply, ECF

No. 14 at 21. (“[Ms. Sellers] is correct that there is no per se

                               30
prohibition on discrete acts being part of a hostile work

environment claim.”). As long as Ms. Sellers has alleged a

hostile work environment, and at least one of the non-selection

acts occurred within the 45-day window, she may rely on the

other non-selection claims in her hostile work environment claim

regardless of when they occurred. See Allen v. Napolitano, 774

F. Supp. 2d 186, 204-06 (D.D.C. 2011)(considering up to seven

non-selection claims in hostile work environment analysis).

     As to defendant’s bootstrapping argument, in Ms. Sellers’

complaint, she alleges public humiliation, and several instances

of actions that she alleges interfered with her work performance

for which she repeatedly asked her supervisor to intervene. See

generally Compl., ECF No. 1. In fact, she was told that it would

take nothing short of physical assault on the part of her abuser

before DHS intervened. See id. ¶ 41. This is not an instance of

a plaintiff “attempt[ing] to bootstrap their alleged discrete

acts of retaliation into a broader hostile work environment

claim.” See Baloch v. Norton, 517 F. Supp. 2d 345, 364 (D.D.C.

2007)(explaining that, as a general matter, this jurisdiction

frowns on such attempts). Because Ms. Sellers has alleged at

least one non-selection claim within the 45-day window, Morgan

applies and her other non-selection claims may proceed as part

of her hostile-work environment claims.

     Accordingly, the Court will DENY defendant’s motion for

                               31
judgment on the pleadings as to Ms. Seller’s post-investigation

hostile work environment non-selection claims.

     D. Non-Selections for Requested Detail Assignments

     Finally, defendant argues that Ms. Sellers has no Title VII

claim based on the agency’s decision to deny her a specific

detail assignment because that is not an adverse employment

action cognizable under the statute. Def.’s Mot., ECF No. 10 at

19. The D.C. Circuit has instructed that [a]dverse employment

actions are not confined to hirings, firings, promotions, or

other discrete incidents.” Holcomb v. Powell, 433 F.3d 889, 902

(D.C. Cir. 2006)(citation omitted). So long as a plaintiff meets

the statutory requirement of being “aggrieved” by an employer's

action, 42 U.S.C. § 2000e–16(c) (2000), a court may not

“categorically reject a particular personnel action as

nonadverse simply because it does not fall into a cognizable

type.” Id. (internal citations omitted)

     To the extent the defendant argues for a categorical rule

that the denial of a detail assignment generally does not

constitute an adverse employment action, under Holcomb this

Court cannot endorse such a rule. Id. Courts in this District

have found that a denial of a detail assignment is cognizable

under the statute as a claim for discrimination if the non-

selection has “materially adverse consequences . . . such that a

reasonable trier of fact could find objectively tangible harm.”

                               32
See Nichols v. Truscott, 424 F. Supp. 2d 124, 136 (D.D.C.

2006)(citing Holcomb, 433 F.3d at 902)). Courts have also

recognized denial of detail assignment claims in the retaliation

context. For example in Browne v. Donovan, a court refused to

endorse the rule that the “failure to detail does not constitute

an adverse employment action for purposes of Title VII’s anti-

retaliation provision.” 12 F. Supp. 3d 145, 154 (D.D.C. 2014).

The court instead engaged in a highly fact-specific analysis to

determine whether the detail was an adverse employment decision

and ultimately denied the defendant’s motion to dismiss after

analyzing the specific details of the position, the

opportunities for advancement the position would provide, and

whether the failure to detail might dissuade a reasonable

employee from making or supporting a charge of discrimination.

Id. (stating the failure to detail plaintiff into the Associate

General Counsel position constituted an adverse employment

action).

     To be sure, when a plaintiff alleges the denial of a detail

but only claims harms—or benefits—that are speculative, a court

may find that the failure to detail was not an adverse

employment action. See Maramark v. Spellings, No. 06–5099, 2007

WL 2935411, at *1 (D.C. Cir. Sept. 20, 2007) (denial of a five-

month detail that might have allowed plaintiff to secure a

permanent position was “too speculative to constitute an

                               33
objectively tangible harm”). However, Ms. Sellers has alleged

detail assignments that included, among other things, promotion

opportunities with increased pay. See Pl.’s Opp’n., ECF No. 13

at 44. At the pleading stage, it cannot be said that the

benefits from the detail assignments she was denied are “too

speculative to constitute an objectively tangible harm.”

Maramark, 2007 WL 2935411, at *1. Accordingly, the defendant’s

motion is DENIED as to Ms. Seller’s detailed related non-

selections, and Ms. Sellers may proceed on her Title VII claims

based on the denial of specific detail assignments.

IV. Conclusion

     For the foregoing reasons, defendant’s motion for partial

judgment on the pleadings is GRANTED IN PART and DENIED IN PART.

An appropriate Order accompanies this Memorandum Opinion.

   SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          March 26, 2019




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