UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA F I L E D
SEP 28 2017
NORA THOMPSON, )
Clerk. U.S. D|str|ct & Bankruptcy
) Courts for the Dlstr|ct of Columbia
Plaintiff, )
)
v. ) Civil Action N0. 16-1662
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
MEMORANDUM OPINION

 

september gzow [Dkt. # 12]

Plaintiff, Nora Thompson (“Thompson” or “plaintift”), brings this action, alleging
that defendant, the District of Columbia (“District” or “defendant”), discriminated against
her, in violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § lZlOl, and
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621. Thompson also
alleges that she Was subjected to a hostile Work environment, in violation of the ADA,
and retaliation. This matter is now before the Court on defendant’s Motion to Dismiss or
for Summary Judgment [Dkt. # 12]. Upon consideration of the parties’ submissions and
the entire record herein, defendant’s motion is GRANTED and plaintiffs case Will be
DISMISSED With prejudice

BACKGROUND

Thompson_who was 6l-years-old at the time she filed her amended complaint in

this case_began Working as a library technician at the District of Columbia Department

of Corrections (“DOC”) on May 17, 2004. Am. Compl. 1[1[ 6-7 [Dkt. # 4]. Thompson

uses a walking cane, and she claims that she has a perceived disability to walk. Ia’. at jj 7;
Pl.’s ()pp. to Def."s l\/Iot. (“Pl.’s Opp.”), Ex. l (“Pl.’s Ex. l”). Although she accepted the
position of library technician “with the understanding that she would be eligible for
promotion to a higher paying law library position when it became available,” Thompson
was never given a promotion. Am. Compl. M 9-1(). ln May ol"20()9, Teresa A. Ward
("Wzlrd") was given the job ol`Legal Instruments Examiner, which pays a higher salary
than the position of library technician ld. at jj l l. Ward is 15 years younger than
plaintiff, and she was under the age of 40 when she began working as Legal lnstruments
Examiner. Id. Plaintiff alleges that Ward “did not have educational qualifications and
work experience comparable” to her, and that she did not have a disability. Id. at jljl l l-
12. When the position ot`Legal Instruments Examiner subsequently became vacant
again, plaintiff claims that she applied for thejob and was rejected. Ia’. at jj l3.
'l`hompson asserts that she “has been continually rejected” for that job and other open
positions at the D()C. ]d.

Beginning in approximately 20]2, 'I`homson alleges she has experienced
harassment from DOC Corporal Susan Briscoe-Armstrong (“Briscoe-Armstrong”), who
provides security for the prison library. Id. at jj l4. Plainti'l`f alleges that Briscoe-
Armstrong has attempted to intimidate her by “having prisoners verbally abuse [her],
falsely accusing [her] of not working, and tracking all of [her] movements in and around
the library.” Id. Plaintiff alleges that she “filed a Cease and Desist Order” against
Briscoe-Armstrong in April ot`2015, and again in October of20l5, but nothing was done

to resolve her complaints Ia’. at jl‘l[ 15-17. On November 15, 2015, Thompson “'l`iled a

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Civil Protection ()rder (CPO)” against Briscoe-Armstrong in the Civil Division of the
Supcrior Court of the District of Columbia, but again, nothing was done. Ia’. at jj 18.

ln December of 2015, Briscoe-Armstrong filed a complaint against Thompson for
harassment [d. at jj l9. Thompson did not respond to the complaint, despite direct
orders from her supervisors to do so. Def.’s Mot. to Dismiss, Ex. 2 (“Def.’s Ex. 2”).
Thompson’s immediate supervisor, Dr. James Greene (“Greene”) determined that
Thompson’s refusal to respond violated the D()C’s policies on investigations and the
chain ol"command, so Greene charged Thompson with insubordination Id. Thompson
was accordingly suspended without pay for five calendar days, from February 22, 2016
through liebruary 26, 2()l6. ld.; Am. Compl. jj 20. On l\/larch 29, 20l6, Thompson filed
a formal charge ol" discrimination with the Equal Employment Opportunity Commission
(“EEOC”). Def.’s l\/lot. to Dismiss, Ex. 3 (“Def.’s Ex. 3”); Am. Compl. jj 22. ln her
EEOC charge, Thompson claimed that she experienced discrimination based on her age
and disability, and that Briscoe-Armstrong created a hostile work environment by
harassing her and getting the inmates to harass her. See Def.’s Ex. 3.

()n l\/lay l2, 2016, Thompson received a Letter of Counseling from LaToya Lane
("Lane”), the Deputy Warden o’l"Programs. Am. Compl. jj 23; Def.’s Mot. to Dismiss,
Ex. 4 (“Def.’s Ex. 4”). According to Lane’s letter, Thompson violated DOC procedures
by allowing an inmate greater access to the library than what was permitted Icz’. The
letter stated, in relevant part, that the “counseling is expected to correct your behavior.
Any further non-compliance will result in corrective/adverse action being taken against

you.” Del".’s Ex. 4.

Plaintiff filed her original complaint in this case on August l7, 2016, and then
filed an amended complaint in November ofthat year. See Compl. [Dkt. # l]; Am.
Compl. In her amended coinplaint, plaintiff alleges one count of discrimination in
violation ofthe ADA, see Am. Compl. jjjj 25-32, one count of discrimination in violation
of the ADEA, see z'd. at jjjj 33-39, one count ofa hostile work environment in violation of
thc ADA, see z`a’. at jjjj 4()-45, and one count of retaliation see id. at jjjj 46-52.

ln particular, plaintiff alleges that, even though she has made “numerous attempts
to apply to open positions,” she “has been passed over for numerous promotional
opportunities,” despite “her educational qualilications and experience.” Id. at jjjj 29-30.
'l`hompson attributes this failure to promote to discrimination “on the basis of her
disability and a record or perception of disability” and “because of her age.” Id. at jjjj 31,
37. With respect to her hostile work environment claim, plaintiff alleges that Briscoe-
Armstrong “deliberately intimidated, frustrated and harassed jher] for over four years,”
and that, “despitc jher'j many complaints to her superiors,” the District did nothing,
thereby ""breachj:ingj its duty to Plaintiff by failing to prevent and remedy the harassment
and hostile workplace.” Ia’. at jjjj 42, 44. Finally, plaintiff alleges that the letter of
counseling she received was issued as retaliation for Thompson’s filing ofa charge of
discrimination Id. at jj 50; Pl.’s Opp. lO-l l.

Plaintiffclaiins that she has suffered, and continues to suffer “severe emotional
distress, fear, embarrassment, humiliation and mental anguish” as a result of defendant’s

actions and omissions /~\m. Compl. jjjj 32, 38, 45, 52. She accordingly requests

compensatory damages in excess of$3()(),()()0, as well as attorneys’ fees and costs. Id. at
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()n l`<`cbruary 6, 20l7, the District filed its l\/lotion to Dismiss Plaintiff`s Amended
Complaint, or in the Alternative, for Summary Judgment. See Def.’s Mot. to Dismiss
Pl.’s Am. Compl., or in the Alternative, for Summ. J. (“Def.’s l\/[ot”) [Dkt. # l2].
Among other arguments, thc District insists that plaintiff has failed to state a claim for
discrimination and hostile work environment, has failed to demonstrate that she is
disabled, and has failed to exhaust her administrative remedies. Ia’. 6-l3. The District’s
motion is fully briefed and is ripe for my review.

STANDARD OF REVIEW

De'fendant has filed a motion to dismiss, or in the alternative, for summary
judgment Because the parties have presented materials outside the pleadings, and l have
relied upon these materials in this l\/[emorandum Opinion, l will treat the motion as one
for summary judginent. See Fed. R. Civ. P. l2(d); House v. Salazar, 598 F. Supp. 2d 89,
9l (D.D.C. 2009). A party is entitled to summary judgment ifthe pleadings, the
discovery and disclosure materials on file, and any affidavits show “that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The party seeking suminaryjudgment bears the
initial burden ofdcmonstrating the absence ofa genuine issue ofmaterial fact Celotex
(,`0/~/9. v. Calrell, 477 U.S. 3l7, 322 (1986). And in deciding whether there is a disputed
issue of material fact the Court must draw all justifiable inferences in favor of the non-

moving party. Anderson v. Ll`berty L0bby, Inc., 477 U.S. 242, 255 (1986).

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DISCUSSION
A. Plaintiff’s Discrimination Claim under the ADA

To establish a prz`mafaci'e case of discrimination under the ADA, Thompson was
required to show: “(l) jsjhe is a member ofa protected class; (2) [sjhe suffered an
adverse employment action; and (3) the unfavorable action gives rise to an inference of
discrimination.” S/zel[er-Pa[re v. Gray, 888 F. Supp. 2d 34,41 (D.D.C. 2012).
Unfortunately for plaintiff, her ADA claim fails at step one because she has not shown
that she is disabled, and thus a member ofa protected class.

The law is clear that a plaintiff claiming discrimination under the ADA “must
adequately allege facts sufficient to support the claim that [shej has a ‘disability’ within
the meaning ofthe ADA, or else be subject to dismissal.” Mz'tchell v. Ycztes, 402 F. Supp.
2d 222, 227-29 (D.D.C. 2()05). ()ur Circuit has held that, within the meaning of the
Al)/\, a person is disabled if: “(l) js]he suffers from an impairment; (2) the impairment
limits an activity that constitutes a major life activity under the [ADA]; and (3) the
limitation is substantial." chynes v. Wz`l[iams, 392 F.3d 478, 482 (D.C. Cir. 2004)
(construing 42 U.S.C. § l2l()2(2)(A) (2()06)). Pursuant to EEOC regulations, an
“impairment is a disability . . . ifit substantially limits the ability of an individual to
perform a major life activity as compared to most people in the general population” 29
C.l".R. § lo3().2(j)(l)(ii) (2012). But the Supreme Court has clarified that “[i]fjobs
utilizing an individual’s skills (but perhaps not his or her unique talents) are available,

one is not precluded from a substantial class ofjobs.” Sutton v. Um'ted/lir Lz`nes, Inc.,

527 U.S. 471, 488-89, (1999), superseded by statute Orz other grouna's, ADA
Amendments Act of2()()8, Pub. L. No. 110~325, § 3(4)(e)(i), l22 stat 3553.

l'lere, plaintiffs only evidence to support her claim that she is disabled is her
assertion that she “has a perceived disability to walk,” Am. Compl. jj 7, and a letter from
the deputy warden authorizing her to use “a walking cane.” Pl.’s Ex. l. Plaintiff never
identifies this disability, nor does she allege whether_or how_this disability to walk
impacts her ability to perform certain jobs. To the contrary, Thompson alleges that “she
can perform the essential functions of her employment position with or without
reasonable accommodation despite her perceived disability.” [d. at jj 27. And she insists
that she performs her duties “at a high level.” ld. at jj lO. As such, Thompson concedes
that she was capable ()fiierf`orining the duties of herjob, as well as the other DOC
positions to which she applied

Similarly, plaintiffs conclusory assertion that she has “a record or perception of
disability” is plainly insufficient to show either that her superiors mistakenly regarded her
as having a disability or that she did, in fact, have a record of a disability. See Sutton,
527 U.S. at 478 (“[Tjo fall within th[e] definition [of disabled,] one must have an actual
disability . . . , have a record ofa disability . . . , or be regarded as having one.”).
fl`hompson accordingly has failed to satisfy her primafacie case of discrimination under
the ADA.
B. Plaintiff’s Discrimination Claim under the ADEA

Before turning to the merits ofplaintiff`s ADEA claim, l must first determine

which alleged adverse employment actions are subject to my review. lt is well-

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established that “Title Vll requires that a person complaining ofa violation file an
administrative charge with the EEOC and allow the agency time to act on the charge.”
Par/c v. Howard Urzi'v., 71 F.3d 904, 907 (D.C. Cir. 1995). The same standard applies in
the ADEA context See Dzmcan v. .]ohnsorz, 213 F. Supp. 3d 161, 175 (D.D.C. 2016)
(“Both the ADEA and 'l`itle VII require that before filing a lawsuit in federal court, a
plaintiff must timely pursue and exhaust administrative remedies.”). And our Circuit has
held that a discrimination lawsuit brought after an EEOC charge must be limited only to
claims that are “like or reasonably related to the allegations of the charge and growing
out of such allegations.” Par/c, 71 F.3d at 907. lmportantly, “the requirement of soine
specificity in a charge is not a mere technicality,” and “[aj court cannot allow liberal
interpretation of an administrative charge to permit a litigant to bypass the . . .
administrative process.” Ia’. (internal quotation marks and citations omitted).

Here, plaintiff does not mention the insubordination charge against her, the 5-day
suspension she received, or the letter of counseling anywhere in her EEOC charge.
lnstead, she claims only that she “applied for a clerical position in the director’s office in
Octobcr, 2()15” in order to escape Briscoe-Armstrong’s harassment, but that she did not
get hired for the position because of her age. Def.’s Ex. 3. Our Circuit has instructed that
“|:tjhe goals behind the requirement of prior resort to administrative relief would be
frustrated if the filing of a general charge with the EEOC would open up the possibility of
judicial challenges to any related conduct that took place in connection with the

employment relationship.” Park, 71 F.3d at 908. 1 accordingly will not consider any

allegations outside the scope of 'l`hompson’s EEOC charge in reviewing her ADEA
claim.

"l"hus the only question remaining is whether the DOC’s failure to hire 'l`hompson
for a clerical position in October, 2015 was motivated by age discrimination l hold that
it was not. Plaintiff’ s complaint makes no mention of her application for a clerical
position in October of 2015. Nor does she indicate whether the position to which she
applied was filled by a person outside the protected class. Indeed, the only allegation that
could possibly be construed as bearing on plaintiffs non-promotion claim is her assertion
that “jdjespite Plaintifl”s numerous attempts to apply to open positions, Defendant has
not considered Plaintiff for these positions.” Am. Compl. jj 30. But this assertion falls
well shy ofplcadingilet alone establishing#age discrimination See Teneyck v. Oznni
Shr)reha/n Hote[, 365 F.3d 1139, 1155 (D.C. Cir. 2004) (“To establish a prima facie case
under the ADE/-\, for a claim involving a failure to hire, the plaintiff must demonstrate
that (l) she is a member ofthe protected class (i.e., over 40 years of age); (2) she was
qualified for the position for which she applied; (3) she was not hired; and (4) she was
disadvantaged infavor ofa younger person.” (second emphasis added)).

And the evidence 'fhompson submitted with her opposition to defendant’s motion
in this case further undermines her theory that she was rejected for this clerical position
because ofher age. Attached as exhibit 2 to plaintiffs opposition is a print-out of
'l`hompson’s past and pending job applications Pl.’s Opp., Ex. 2 (“Pl.’s Ex. 2"’). These
positions variously note that her applications are “lncomplete,” have been “Received,”

are “Under Review,” or were “Rejected.” ]d. But the clerical position for which

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Thompson applied in October of 2015 is simply marked as “Application Received.” Ia’.
lt is thus doubtful whether the position at issue has even been filled yet, let alone whether
it has been filled by a person outside the protected class Plaintiffs ADE/-\ claim
accordingly fails

C. Plaintiff”S Hostile Work Environment Claim

'l`o establish apri/nafacie hostile work environment claim based on disability, a
plaintiff must allege facts demonstrating that: “(l) she is disabled or is perceived as
disabled; (2) she was subjected to unwelcome harassment; (3) the harassment occurred
because of her disability or the perception that she was disabled; (4) the harassment
affected a term, condition, or privilege of employment; and (5) there is a basis for holding
the employer liable for the creation of the hostile work environment.” Floyd v. Lee, 968
F. Supp. 2d 308, 328 (D.D.C. 2013). As l concluded in my earlier discussion of
Tliompson’s disability discrimination claim, plaintiff has failed to demonstrate that she is
disabled or is perceived as disabled and thus she has not satisfied the first element of her
hostile work environment claim.

But even it"l`hompson had shown that she is disabled, her hostile work
environment claim would still fail because she has not identified any comments or
actions directed at her that were “expressly focused” on her disability. See Ba[och v.
Ke)npthorne, 550 F.3d ll9l, 1201 (D.C. Cir. 2008). lnstead, plaintiff alleges only that
Briscoe-/\rmstrong “deliberately intimidated, frustrated and harassed jher] over four
years,” that she “continues to suffer from constant and pervasive harassment and ridicule

from other security guards within the Department of Corrections,” and that the District

10

has “failjedj to prevent and remedy the harassment” Am. Compl. jjjj 42-44. These
allegations fall far short ofshowing that Briscoe-Armstrong’s alleged harassment was
related to, or motivated by, plaintiffs disability. And 'l`hompson has proffered no
evidence of“tangible workplace consequences whether financial, physical, or
pro'fessional” arising from Briscoe-Armstrong’s alleged harassment Baloch, 550 F.3d at
1201. Based on the totality of the circumstances plaintiffs allegations plainly do not rise
to the level ofa hostile work environment
1). Plaintiff’s Retaliation Claim

l*`inally, plaintiff claims that the letter of counseling she received was issued to
retaliate against her for filing a charge of discrimination with the EEOC. Pl.’s Opp. 10.
’1`o survive the District’s motion on this claini, "l`hompson was required to show that: “(1)
|s jhe engaged in a statutorily protected activity, (2) a reasonable employee would have
found the challenged action materially adverse, and (3) there existed a causal connection
between the protected activity and the materially adverse action” Dadley v. Wash.
Metro. Area Transit Authority, 924 F. Supp. 2d 141, 176 (D.D.C. 2013) (internal
quotation marks omitted). 'l`hompson has satisfied the first element of her prima facie
case by showing that she filed a charge of discrimination with the EEOC, which is, in
fact a statutorily protected activity. See Slate v. Pubh'c Defender Serv. for the Dist. of
(.lolzt)nhia, 31 l". Supp. 3d 277, 292 (D.D.C. 2014). Thompson’sprirnafaci`e case,
however, fails at step two. flow so?

lt is well-settled that “jfjormal criticism is not necessarily an adverse action[,] and

it should not be considered such ifit did not affect the employee’s grade or salary.”

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Arnold v. Jewell, 6 F. Supp. 3d 101, 114 (D.D.C. 2013) (internal quotation marks and
alterations omitted). Here, Thompson does not allege that the letter she received
contained abusive or harassing language, or that it affected her position or salary. lndeed,
the letter of counseling merely explained that Thompson’s “decision to disregard [the
DOC’s] policy” with respect to extra library time compromised the DOC’s impartiality
and “indicated that [the DOC was] showing favoritism” to certain inmates Def.’s Ex. 4.
The letter discussed the negative impact that Thompson’s actions had on the D()C, and it
cautioned her that similar behavior in the future might result in corrective or adverse
action being taken against her. Id. Thus, the letter constituted nothing more than job-
related feedback and constructive criticism, “which can prompt an employee to improve
her performance.” Baloch, 550 F.3d at 1199. As such, Thompson has not demonstrated
that the letter of counseling qualifies as an adverse employment action, and her claim of
retaliation accordingly fails
CONCLUSION

For the foregoing reasons, defendant’s Motion to Dismiss or Motion for Summary
Judgment-construed as a Motion for Summary Judgement_is GRANTED, and
plaintiffs claims are DlSMlSSED with prejudice. A separate Order consistent with this

decision accompanies this Memorandum Opinion.

ZMW

Ri`CHARD`J.~ltEoN
United States District Judge

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