                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


   ALFREDA HYSON,

                            Plaintiff,

                       v.                                   Civil Action 08-00979 (HHK)

   ARCHITECT OF THE CAPITOL,

                            Defendant.


                            MEMORANDUM OPINION AND ORDER

       Alfreda Hyson brings this action against the Architect of the Capitol, alleging that the

Architect and its employees discriminated against her on the basis of her gender, retaliated

against her for undertaking protected activities, and harassed her, creating a hostile work

environment, in violation of the Congressional Accountability Act of 1995 (“CAA”), 2 U.S.C. §

1301 et seq.1 Before the Court is the Architect’s motion for summary judgment and dismissal for

lack of subject-matter jurisdiction [#21].2 Upon consideration of the motion, the opposition

thereto, oral argument of counsel, and the record of this case, the Court concludes that the

Architect’s motion must be granted in part and denied in part.


       1
                Although Hyson’s complaint cites Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and not the CAA, as the source of the cause(s) of action alleged therein,
Compl. at 5, it is in fact the CAA and not Title VII that creates a cause of action for legislative
employees who allege discrimination or retaliation. See 2 U.S.C. § 1311(a).
       2
               Although the Architect’s motion itself seeks only summary judgment, the
Architect’s memorandum in support of his motion argues that the Court has no subject-matter
jurisdiction over at least some of Hyson’s claims. Def.’s Mem. in Supp. of Mot. for Summ. J.
(“Def.’s Mem.”) at 14–22. Further, the Court has an affirmative obligation to ensure that it is
acting within the scope of its jurisdictional authority. See Herbert v. Nat’l Acad. of Scis., 974
F.2d 192, 196 (D.C. Cir. 1992). Accordingly, the Court treats the motion as requesting both
dismissal and summary judgment.
                                        I. BACKGROUND

A.     The Congressional Accountability Act

       The Congressional Accountability Act of 1995, 2 U.S.C. § 1301 et seq., extends the

protections of a number of federal remedial statutes, including Title VII of the Civil Rights Act

of 1964, to employees of the legislative branch.3 In passing the CAA, Congress created the

Office of Compliance, through which legislative employees must attempt to address their

grievances before seeking judicial or administrative redress. See id. § 1381(a). First, employees

must, within 180 days of the incident at issue, seek counseling with the Office of Compliance.

Id. § 1402(a). Next, they must seek mediation with the Office. Id. § 1403(a). Finally, they may

elect to pursue an administrative remedy or file a complaint in U.S. district court, between 30 and

90 days after the end of mediation. Id. §§ 1404–05, 1408. The CAA vests the district courts

with jurisdiction over CAA claims brought by covered employees, provided that the employee-

plaintiff has completed counseling and mediation for the violation in question. Id. § 1408(a).

All other judicial review is prohibited. Id. § 1410. This statutory framework has been in place

throughout the events that constitute the subject matter of this litigation.

B.     Factual Background

       Hyson began her employment with the Architect as a custodial team leader in September

of 2001. In that role, she was responsible for overseeing and performing custodial tasks in

various legislative branch buildings. Def.’s Mem. Ex. B (“Hyson Dep.”) at 18–19, 30. After



       3
               While the CAA does not extend to every employee of the legislative branch, the
Architect does not contest that Hyson is a “covered employee” under 2 U.S.C. § 1301, which
expressly includes “any employee of the Office of the Architect of the Capitol.” See id.
§§ 1301(3)(F), (5).

                                                  2
some time, Hyson came to feel that she was being singled out by management for blame when

other custodial employees did not complete tasks. Accordingly, she bid for and received a

reassignment to the “Tiger Team,” which would allow her to work alone. Hyson Dep. at 58.

       Hyson felt, however, that management continued to mistreat her after her reassignment to

the Tiger Team. At various times between 2002 and 2007, Hyson received memoranda of

counseling (essentially, written warnings) from various managers, asserting that she had

exhibited unprofessional behavior, failed to answer her radio, or failed to properly oversee or

support her custodial team. See, e.g., Def.’s Mem. Ex. C (Mem. of Counseling, Aug. 14, 2002),

Ex. D (Mem. of Counseling, Oct. 9, 2003), Ex. E (Mem. of Counseling, Sept. 26, 2005), Ex. F

(Mem. of Counseling, Nov. 14, 2005). Hyson disputes these allegations, asserting that they are

unfair or deliberately deceptive. See, e.g., Hyson Dep. at 65, 223.

       Hyson believed that the custodial managers had singled her out for mistreatment because

of her gender and because she had filed Equal Employment Opportunity (EEO) complaints and

testified in co-workers’ EEO proceedings. Her belief was based in part on remarks made by

supervisors Delano Reeves, who called Hyson “too delicate,” Hyson Dep. at 116, and Rick

Joyce, who said that employees were “either . . . with [him] or . . . “against [him].” Hyson Dep.

at 130. According to Hyson, this mistreatment escalated over time to include difficult or

impossible assignments and daily threats to her job by Joyce. Hyson Dep. at 122, 125–26.

Hyson also describes having difficulty obtaining accommodations for a medical condition that

required her to alter her work uniform. See Hyson Dep. at 133–98.

       In January of 2007, Hyson applied for a promotion to Laborer Assistant Supervisor via

the Avue online application service. The application service generated automated scores for each


                                                 3
applicant based on a set of preselected criteria; Hyson received a score of 96 out of a possible

100. Def.’s Mem. Ex. Z (Candidate List) at 2. Five candidates with scores ranging from 100 to

92, including Hyson, were selected to interview for the position. None of those candidates were

ultimately selected; instead, Rock Celin, who had occupied the vacant position in a temporary

capacity for the previous four months, was selected. Def.’s Mem. Ex. AA (Reeves Decl.) ¶¶ 2–4.

Celin, who had received an automated score of 88, was not interviewed before his selection.

Hyson attributes Celin’s selection — and her non-selection, despite a higher initial score — to

his gender. She also asserts that Celin was a favorite of supervisors, and would perform favors

for them. Hyson Dep. at 229–30.

       In September of 2007, Hyson received a memorandum of counseling from Alfred Brice,

in which he reprimanded her for failing to respond to repeated radio calls on the morning of

September 7. Def.’s Mem. Ex. H (Mem. of Counseling, Sept. 7, 2007). Hyson asserts that her

radio was broken, preventing her from responding, and that she was not authorized to obtain a

replacement. Hyson Dep. at 206.

       A few days later, Hyson attended a meeting with supervisors Alfred Brice, Delano

Reeves, and Rick Joyce, where they suggested that she enroll in the Employee Assistance

Program (“EAP”), which includes “free, voluntary, short-term counseling and referral for various

issues affecting employee mental and emotional well-being.”4 They asserted that Hyson suffered

from anger that impacted her workplace behavior. Hyson disagreed, asserting that she did not


       4
              The Court takes judicial notice of this description of federal agency EAPs, which
comes from the website of the U.S. Office of Personnel Management. See Hamilton v. Paulson,
542 F. Supp. 2d 37, 52 n.15 (D.D.C. 2008) (taking judicial notice of a document from OPM’s
website because it was “capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned” in the meaning of FED . R. EVID . 201(b)).

                                                 4
suffer from any anger problems that could impact her work, and declined to enroll in the EAP.

Hyson Dep. at 72–76. On the same day, Hyson requested sick leave. This request was initially

denied by Alfred Brice, but subsequently granted by Dennis Campbell. Hyson Dep. at 233;

Def.’s Mem. Ex. DD (Supplemental Mem.) at 2.

        In October of 2007, Hyson made a formal request for counseling with the Office of

Compliance. Def.’s Mem. Ex. BB (Certification, Case No. 08-AC-10) at 2. She submitted a

typed memorandum to accompany her request, in which she asserted that she had been passed

over for the Laborer Assistant Supervisor position because of her gender, that management had

retaliated against her for her involvement in prior Office of Compliance and EEO activity, that

management had created a hostile work environment for her by repeatedly threatening her job

without cause, and that she had been temporarily denied leave without justification. Def.’s Mem.

Ex. DD (Supplemental Mem.) at 1–2. After completing the Office of Compliance’s counseling

and mediation programs, Hyson commenced this action.


                                     II. LEGAL STANDARDS

A.      Lack of Subject-Matter Jurisdiction

        Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a

complaint, or a claim therein, for lack of subject-matter jurisdiction. FED . R. CIV . P. 12(b)(1);

see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“Federal courts are

courts of limited jurisdiction. . . . It is to be presumed that a cause lies outside this limited

jurisdiction . . . .”). In response to such a motion, the plaintiff must show that her claims lie

within “the judicial Power of the United States,” U.S. CONST . art. III, § 1, and that a federal



                                                    5
statute grants the Court jurisdiction to hear those claims. Micei Int’l v. Dep’t of Commerce, 613

F.3d 1147, 1151 (D.C. Cir. 2010) (citing Mayor v. Cooper, 73 U.S. 247, 252 (1868)); see also

Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). If the plaintiff cannot establish both

elements, the Court must dismiss the action. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

94 (1998) (citing Ex parte McCardle, 7 U.S. 506, 514 (1868)). The Court will, however,

“assume the truth of all material factual allegations in the complaint and ‘construe the complaint

liberally, granting plaintiff the benefit of all inferences that can be derived from the facts

alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v.

Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).

B.      Summary Judgment

        A motion for summary judgment should be granted only “if 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 that “might affect the outcome of the suit

under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

movant must support its factual positions by “citing to particular parts of materials in the record,

including depositions, documents, electronically stored information, affidavits or declarations,

stipulations . . . , admissions, interrogatory answers, or other materials.” FED . R. CIV . P.

56(c)(1)(A); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

        If the moving party meets its burden, the non-moving party must then establish that a

genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). To meet its burden, the non-moving party must show

that “the evidence is such that a reasonable jury could return a verdict” in its favor. Anderson,


                                                   6
477 U.S. at 248. Such evidence must consist of more than mere unsupported allegations or

denials and must set forth specific facts showing that there is a genuine dispute for trial. See FED .

R. CIV . P. 56(c)(1), (e); Celotex, 477 U.S. at 322 n.3. If the evidence is “merely colorable” or

“not significantly probative,” summary judgment may be granted. Anderson, 477 U.S. at

249–50.


                                         III. ANALYSIS

       Hyson alleges that the Architect engaged in three distinct unlawful employment practices:

disparate treatment on the basis of gender; retaliation for engaging in protected activity; and the

creation of a hostile work environment, both in retaliation for engaging in protected activity and

on the basis of gender.5 The Court will address each claim in turn; however, it must first clarify

the scope of the factual allegations it may consider while doing so. As explained below, there is

substantial doctrinal confusion regarding the scope of the allegations that an employment

discrimination plaintiff may raise for the first time in court. Here, however, the Court will not

attempt to resolve that confusion, because it concludes that the majority of Hyson’s allegations

are unexhausted regardless of which standard is applied.




       5
                Because Hyson’s complaint is less than entirely clear as to the contours of each
theory (and, for that matter, the unlawful motivations allegedly underlying the conduct
described), the Court looks to Hyson’s opposition to the Architect’s motion for summary
judgment for clarification. See Pegram v. Herdrich, 530 U.S. 211, 230 n.10 (2000) (“[W]e may
use [a party’s] brief to clarify allegations in her complaint whose meaning is unclear.” (citing
CHARLES ALLEN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1364
(1990))).

                                                  7
A.     Administrative Exhaustion of Claims Before the Office of Compliance

       As described above, the CAA requires that employees follow the counseling and

mediation procedures prescribed therein before bringing a CAA claim in federal court. 2 U.S.C.

§§ 1401, 1404, 1408. These exhaustion requirements are jurisdictional in nature. Id. §§ 1408,

1410; Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 705–06 (D.C. Cir. 2009)

(holding that the CAA’s counseling and mediation requirements deprive the courts of subject-

matter jurisdiction over non-exhausted claims). This Court thus lacks jurisdiction over any of

Hyson’s claims that were not properly exhausted.

       The parties agree that Hyson did exhaust some of her claims before the Office of

Compliance. See Def.’s Mem. at 16; Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”) at

19–20. They also agree on the specific content of the allegations she made there; the Architect

avers, and Hyson admits, that she raised before the Office of Compliance only those allegations

she recorded in the memorandum that she submitted to the Office, Def.’s Mem. Ex. DD

(Supplemental Mem.), to accompany her request for counseling. See Def.’s Statement of

Material Facts ¶ 62; Pl.’s Opp’n at 17. The parties disagree, however, on the scope of the factual

allegations that Hyson may now raise before this Court.

       The Architect argues that Hyson is now limited not merely to the “claims” qua theories of

CAA violation that she raised before the Office of Compliance, but also to the specific factual

allegations she made there. Def.’s Mem. at 16–22. Hyson rejoins that, by completing the

counseling and mediation process and commencing this action, she “exhaust[ed] her gender

discrimination, reprisal, and hostile work environment claims.” Pl.’s Opp’n at 20. This

statement, in combination with the plethora of factual allegations contained in the complaint but


                                                8
not raised before the Office of Compliance, demonstrates that Hyson believes that once a “claim”

in the broad sense of a type of violation has been raised before the Office of Compliance, any set

of factual allegations that could fit into such a theory may be raised for the first time before the

Court. As is explained below, this impression is only correct as to hostile work environment

claims, and then, only partially.6

       1.      The Scope of Title VII’s Exhaustion Requirement under Park v. Howard
               University and National Railroad Passenger Corp. v. Morgan

       Prior to 2002, courts in this Circuit considering whether an employment discrimination

plaintiff could raise specific factual allegations in court that were not raised during the

administrative exhaustion process applied the test articulated in Park v. Howard University, 71

F.3d 904 (D.C. Cir. 1995), which required new allegations to be “like or reasonably related to the

allegations of the [administrative] charge and growing out of such allegations.” Id. at 907

(quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)) (internal quotation

marks omitted); see Bowie v. Ashcroft, 283 F. Supp. 2d 25, 34–35 (D.D.C. 2003). Under this

standard, plaintiffs could only raise those allegations that would fit within the scope of “the

administrative investigation that can reasonably be expected to follow the charge of

discrimination.” Park, 71 F.3d at 907 (quoting Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491

(4th Cir. 1981)) (internal quotation marks omitted).




       6
               Although Hyson fails to squarely confront the Architect’s argument about the
scope of the exhaustion requirement, the Court cannot agree with the Architect’s assertion, see
Def.’s Reply at 5 n.4, that she has conceded it. She does argue, albeit erroneously, that her
claims need not be exhausted because they are based on non-discrete violations, and that the
continuing violation doctrine supports her claims. See Pl.’s Opp’n at 20.

                                                  9
       In 2002, however, the Supreme Court decided National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101 (2002).7 The Morgan Court held that an employee may not base any Title

VII claims on discrete incidents of discrimination that occurred beyond the statutory window for

commencing administrative action, “even when they are related to acts alleged in timely filed

charges.” Id. at 113. This holding largely vitiated the “continuing violation” doctrine employed

by some lower courts, which had “allow[ed] courts to consider conduct that would ordinarily be

time barred as long as the untimely incidents represent an ongoing unlawful employment

practice.” Id. at 107 (quoting Morgan v. Nat’l R.R. Passenger Corp., 232 F.3d 1008, 1014 (9th

Cir. 2000)) (internal quotation marks omitted).8

       The Morgan Court also held, however, that otherwise time-barred allegations could form

part of a hostile environment claim, so long as at least one incident had occurred within the

statutory time period and the incidents together created the hostile environment. Id. at 115–17.

In drawing this distinction between “discrete” acts of discrimination and hostile environment

claims, the Court relied on the observation that discrete acts, “such as termination, failure to

promote, denial of transfer, or refusal to hire,” can be traced to a particular moment of

occurrence, id. at 115, whereas hostile environment claims inherently involve a course of

repeated conduct and thus “cannot be said to occur on any particular day.” Id.



       7
               Although Morgan was a Title VII case, “[t]he rationale and holding in Morgan are
equally applicable to civil rights claims brought under the CAA.” Brady v. Livingood, 360 F.
Supp. 2d 94, 102 (D.D.C. 2004).
       8
                Thus, when Hyson argues that even if any of her allegations are deemed
unexhausted, they may now be raised “under the continuing violation doctrine,” Pl.’s Opp’n at
20, she is incorrect. See Mayers v. Laborers’ Health & Safety Fund of N. Am., 478 F.3d 364, 368
(D.C. Cir. 2007) (explaining Morgan’s constriction of the continuing violation doctrine).

                                                   10
       Although Morgan directly addressed only discrete acts occurring before the statutory

filing period, a number of lower courts have “understood [it] to also bar [claims regarding]

discrete acts occurring after the time period, after the filing of an administrative complaint, when

a plaintiff does not file a new complaint or amend the old complaint but instead presents these

acts for the first time in federal court.” Romero-Ostolaza v. Ridge, 370 F. Supp. 2d 139, 149

(D.D.C. 2005) (emphasis added). This interpretation relies on Morgan’s emphasis on both strict

compliance with procedural requirements and the severability of even closely related discrete

acts to conclude that “[r]equiring a plaintiff to exhaust each discrete claim of discrimination or

retaliation ‘comports with the purpose of the exhaustion doctrine to give the agency notice of a

claim and [the] opportunity to handle it internally and ensures that only claims plaintiff has

diligently pursued will survive.’” Id. (quoting Velikonja v. Mueller, 315 F. Supp. 2d 66, 74

(D.D.C. 2004)). A significant number of cases in this district have read Morgan this way,9 but

the D.C. Circuit has expressly declined to clarify whether this interpretation is correct. See

Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010); Weber v. Battista, 494 F.3d 179, 183 (D.C.

Cir. 2007).




       9
                See, e.g., Taylor v. Mabus, 685 F. Supp. 2d 94, 99 (D.D.C. 2010) (Robertson, J.);
Wada v. Tomlinson, 517 F. Supp. 2d 148, 183 (D.D.C. 2007) (Kollar-Kotelly, J.), aff’d 296 Fed.
App’x 77 (D.C. Cir. 2008); Camp v. District of Columbia, 2006 WL 667956, at *7 (D.D.C. Mar.
14, 2006) (Kollar-Kotelly, J.); Prince v. Rice, 453 F. Supp. 2d 14, 23–24 (D.D.C. 2006) (Bates,
J.); Graham v. Gonzales, 2005 WL 3276180, at *5 (D.D.C. Sept. 30, 2005) (Roberts, J.); Keeley
v. Small, 391 F. Supp. 2d 30, 40–41 (D.D.C. 2005) (Bates, J.); Romero-Ostolaza v. Ridge, 370 F.
Supp. 2d 139, 148–149 (D.D.C. 2005) (Lamberth, J.); Jeffers v. Chao, 2004 WL 3257069, at *6
(D.D.C. Sept. 21, 2004) (Collyer, J.); Coleman-Adebayo v. Leavitt, 326 F. Supp. 2d 132, 136–40
(D.D.C. 2004) (Friedman, J.); Bowie v. Ashcroft, 283 F. Supp. 2d 25, 34–35 (D.D.C. 2003)
(Facciola, J.). This reading of Morgan has also been adopted by the Tenth Circuit. See Martinez
v. Potter, 347 F.3d 1208, 1210–11 (10th Cir. 2003).

                                                 11
        Other courts, however, have rejected this reading of Morgan on the ground that “Morgan

deals with the timeliness of the administrative complaints that were made and not with whether

the failure to file any administrative complaint should be excused.” Higbee v. Billington, 246 F.

Supp. 2d 10, 16–17 (D.D.C. 2003). In this district, several courts have declined to apply Morgan

beyond its specific facts, and have instead “held that separate exhaustion is not required for acts

of retaliation occurring after the filing of an administrative complaint that would have come

within the ‘scope of any investigation that reasonably could have been expected to result from

[the] initial [administrative] charge of discrimination.’” Jones v. Bernanke, 685 F. Supp. 2d 31,

37 (D.D.C. 2010) (quoting Hazel v. Wash. Metro. Area Transit Auth., 2006 WL 3623693, at *8

(D.D.C. Dec. 4, 2006)).10 These courts thus continue to apply the Park v. Howard University

test.

        Atop the confusion created by these conflicting interpretations of Morgan lies another

layer of complexity: each of the aforementioned cases dealt with exhaustion under Title VII, not

the CAA. No case of which this Court is aware has yet addressed this issue as relates specifically

to the CAA, which employs language different from that of Title VII and which, unlike Title VII,

imposes a jurisdictional bar on non-exhausted claims. See 2 U.S.C. § 1408(a); compare Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393 (1982), with Blackmon-Malloy, 575 F.3d at

705–06. Thus, whichever school of thought is correct as to Title VII, it is unclear whether the

scope of the exhaustion requirement should be the same under both statutes.



        10
                See also Thomas v. Vilsack, 2010 WL 2507755, at *10–11 (D.D.C. June 22, 2010)
(Kay, J.); Lewis v. District of Columbia, 535 F. Supp. 2d 1, 6–8 (D.D.C. 2008) (Urbina, J.);
Hazel, 2006 WL 3623693, at *8 (Roberts, J.). The Eighth Circuit has also adopted this
interpretation of Morgan. See Wedow v. City of Kan. City, 442 F.3d 661, 673–74 (8th Cir. 2006).

                                                 12
       2.      The Majority of Hyson’s Discrimination and Retaliation Claims Are Barred
               for Non-Exhaustion, but her Hostile Work Environment Claim May Include
               Allegations Not Presented Below

       This case is not the proper vehicle for the Court to wade into the debate described above.

Many of Hyson’s arguments do not directly address the impact of Morgan on the scope of Title

VII’s exhaustion requirement, and neither party addresses the potential differences between Title

VII’s exhaustion requirement and that of the CAA. More importantly, it is not necessary for the

Court to reach this question in order to resolve this case. Under either Morgan’s test (which

limits claims to those discrete acts raised during the exhaustion process) or the more lenient Park

standard (which allows claims regarding incidents “like or related to” those acts) the result is the

same: all of Hyson’s new allegations are barred for non-exhaustion. Cf. Payne, 619 F.3d at 65.

       The parties agree that Hyson raised before the Office of Compliance only the following

allegations: (1) Hyson was not selected for the Assistant Supervisor position; (2) management

retaliated against Hyson for her participation in protected activity (testifying in a co-worker’s

case against the Architect and a prior administrative complaint of her own) by giving her an

unwarranted memorandum of counseling and by demanding without justification that she enroll

in the Employee Assistance Program; (3) Hyson was initially denied leave on September 13,

2007; and (4) Hyson was subjected to a hostile work environment resulting from constant threats

to her job. See Def.’s Mem. Ex. DD (Supplemental Mem.) at 1–2. An administrative

investigation of these allegations could not reasonably be expected to uncover, for example, the

difficulty Hyson allegedly had obtaining an accommodation for an allergy to her work uniform,

or a retaliatory demand that Hyson stop associating with a particular coworker. See Pl.’s Opp’n

at 10, 11. Simply put, all of the claims that Hyson raises for the first time before this Court are


                                                 13
simply too removed — in time, nature, or both — from those she raised below to go forward,

even under the more flexible Park standard. See Marshall v. Fed. Express Corp., 130 F.3d 1095,

1098 (D.C. Cir. 1997) (under Park, although not every detail of a civil claim must be raised

below, the substance thereof “must fall within the scope of ‘the administrative investigation that

can reasonably be expected to follow the charge of discrimination.’” (quoting Park, 71 F.3d at

907)). Accordingly, in evaluating Hyson’s discrimination and retaliation claims, the Court will

consider only those allegations contained in the memorandum she submitted at the beginning of

the Office of Compliance process. Any claims of discrimination or retaliation based on other

events are thus dismissed for lack of subject-matter jurisdiction.11

       Conversely, Hyson’s hostile work environment claim is not limited to those specific

allegations recorded in her memorandum. Whatever impact Morgan may have had on other

types of Title VII (and CAA) claims, there appears to be no confusion as to its holding regarding

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. See Morgan, 536 U.S. at 115–17;

Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107 n.10 (D.D.C. 2005) (“Unlike discrete claims of



       11
               One possible exception relates to the various memoranda of counseling that
Hyson received, some or all of which she alleges were retaliatory. See Pl.’s Opp’n at 26. An
administrative investigation based on the claims that Hyson raised before the Office of
Compliance — which included an allegation that she had received an unjustified memorandum
of counseling on September 10, 2007 — might reasonably be expected to reach some of the other
memoranda she received (although no other memorandum addressed the same alleged conduct).
As explained below, however, Hyson cannot show that the memoranda of counseling she
received constituted materially adverse action within the meaning of Title VII or the CAA.
Accordingly, even if these allegations meet either exhaustion test, they cannot serve as the basis
for a successful retaliation claim, and the Court will not consider them.

                                                 14
discrimination and retaliation, the exhaustion requirement on a hostile work environment claim is

less stringent. Plaintiff need only have filed an [administrative] complaint alleging some of the

claims that comprise the hostile work environment claim.” (citing Morgan, 536 U.S. at 122)).

Accordingly, in determining whether Hyson’s hostile environment claim can survive summary

judgment, the Court will consider all of the allegations in the complaint that could, along with

the exhausted allegations, constitute one hostile environment claim.

        3.      Hyson May Attribute Her Non-Selection, the Initial Denial of Leave, and the
                Hostile Work Environment to Both Gender Discrimination and Retaliation

        Although her discrimination and retaliation claims are restricted to the specific factual

allegations exhausted below, Hyson may now attribute the specific acts she alleges to

motivations not previously ascribed to them. Before the Office of Compliance, Hyson claimed

that her non-selection was gender-based and that the Architect’s retaliatory activity consisted of

an unjustified memorandum of counseling and the demand that she enter the Employee

Assistance Program. See Def.’s Mem. Ex. DD (Supplemental Mem.). Now, Hyson claims that

her non-selection was both discriminatory and retaliatory. See Compl. ¶ 30; Pl.’s Opp’n at 26.12

It is true that a plaintiff may not for the first time in a civil complaint attribute a particular alleged

act to an illicit motivation never mentioned during the exhaustion process. See, e.g., Nyunt v.

Tomlinson, 543 F. Supp. 2d 25, 34–36 (D.D.C. 2008) (refusing to consider a race discrimination

claim where the plaintiff had previously alleged only national origin and age discrimination).

Here, however, where Hyson alleged both gender discrimination and retaliation before the Office

of Compliance (albeit with regard to different acts), the Court cannot conclude that the Architect


        12
                The Architect does not address this issue and simply argues that Hyson has not
stated a claim regarding her non-selection under either theory.

                                                   15
and the Office were not properly on notice as to the types of animus that she believed had

motivated the actions against her. See Loe v. Heckler, 768 F.2d 409, 420 (D.C. Cir. 1985)

(naming “notice [to the employer] that its actions allegedly violated Title VII” as a core purpose

of the exhaustion requirement). Accordingly, the Court will consider Hyson’s non-selection

under both theories. By the same token, because Hyson’s memorandum did not expressly

attribute her initial denial of leave for September 13, 2007 or her hostile work environment to

either motivation, the Court will consider both.13

B.     The Merits of Hyson’s Claims

       The Court now turns to the substance of Hyson’s claims. Because the CAA incorporates

Title VII’s substantive protections, courts evaluate CAA claims with reference to the substantial

body of Title VII case law, and this Court will do likewise. See Herbert v. Architect of Capitol,

766 F. Supp. 2d 59, 74 n.13 (D.D.C. 2011); Johnson v. U.S. Capitol Police Bd., 2005 WL

3276305, at *1 (D.D.C. July 26, 2005); Brady v. Livingood, 360 F. Supp. 2d 94 (D.D.C. 2004).



       13
                In reaching this conclusion, the Court is mindful that it “must take care not to
construe the CAA in such a manner as to ‘erect a massive procedural roadblock to access to the
courts.’” Blackmon-Malloy, 575 F.3d at 713 (quoting President v. Vance, 627 F.2d 353, 362
(D.C. Cir. 1980)). Courts must be especially wary of this risk in the context of the CAA, which
prescribes a less formal administrative process than does Title VII. For example, there is no
indication that Hyson was required to submit any written charge or complaint whatsoever,
whereas private-sector Title VII complainants must file an administrative charge with the EEOC,
which, while not a formal legal filing, frequently describes the alleged violations with some
specificity (and even has check-boxes for the basis of the alleged discrimination), and which the
plaintiff has the opportunity to review and supplement before signing. See 42 U.S.C. § 2000e-
5(b) (“Charges shall be in writing under oath or affirmation . . . .”); Alfred v. Scribner Hall &
Thompson, LLP, 473 F. Supp. 2d 6, 8 (D.D.C. 2007) (explaining the EEOC administrative
charge process). To scrutinize Hyson’s informal memorandum with the same intensity that is
normally applied to an EEOC administrative charge would be to treat the exhaustion requirement
as “an end in itself” in contravention of Congressional intent. Blackmon-Malloy, 575 F.3d at 713
(quoting President, 627 F.2d at 362).

                                                16
The Court first addresses Hyson’s claim that she was passed over for the Assistant Supervisor

position on the basis of her gender.

       1.      A Reasonably Juror Could Conclude that Hyson’s Non-Promotion Was
               Based on her Gender

       For many years, a court ruling on a defendant’s motion for summary judgment in a Title

VII disparate treatment case was required to apply the complex burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). The D.C. Circuit, however,

has clarified that “where an employee has suffered an adverse employment action and an

employer has asserted a legitimate, non-discriminatory reason for the decision,” the district court

should move directly to the dispositive inquiry: “Has the employee produced sufficient evidence

for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the

actual reason and that the employer intentionally discriminated against the employee on the basis

of race, color, religion, sex, or national origin?” Brady v. Office of Sergeant at Arms, 520 F.3d

490, 494 (D.C. Cir. 2008). In other words, the Court must determine whether the proffered

explanation is truthful, or a mere pretext for discrimination. See id. at 495. Because Hyson’s

non-selection constituted an adverse employment action and the Architect has asserted a

legitimate, non-discriminatory reason therefor, the Court turns directly to that question.

       The Architect’s explanation for Hyson’s non-selection is essentially that Rock Celin, who

was ultimately selected for the Assistant Supervisor position, was the most qualified candidate by

virtue of his previous work experience with the Architect, his “familiarity with the paperwork

requirements of the [Assistant Supervisor] job,” and his performance as acting Assistant

Supervisor, a role he had held for four months prior to the hiring process in question. Def.’s



                                                 17
Mem. at 32. Hyson counters that this justification is unpersuasive — and thus pretextual —

because Hyson was “clearly more qualified.” Pl.’s Opp’n at 23. In support of this claim, Hyson

observes that she had post-secondary education, while Celin did not; that she scored higher than

he did on the online application (96 versus 88 points out of a possible 100); and that she had been

employed with the Architect for four years longer than he had. Pl.’s Opp’n at 23. The Architect,

in turn, responds that these facts do not bear directly on the candidates’ respective abilities to

succeed in the Assistant Supervisor position, whereas Celin’s prior experience in the precise

position at issue is highly probative. Def.’s Reply to Pl.’s Opp’n (“Def.’s Reply”) at 9–11.

       Where, as here, the parties’ quarrel focuses on a dispute over the relative qualifications of

candidates for a particular position, the courts “have consistently declined to serve as a

‘super-personnel department that reexamines an entity’s business decisions.’” Holcomb v.

Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (quoting Barbour v. Browner, 181 F.3d 1342, 1346

(D.C. Cir. 1999)). Accordingly, for the Court to infer discrimination on the basis of

qualifications alone, “the qualifications gap must be great enough to be inherently indicative of

discrimination.” Id. In a case of this sort, however, “the plaintiff is not limited to challenging

the employer’s explanation, but can also avoid summary judgment . . . by presenting other

evidence, either direct or circumstantial, that permits an inference of discrimination.” Aka v.

Wash. Hosp. Ctr., 156 F.3d 1284, 1295 n.11 (D.C. Cir. 1998) (en banc). Here, Hyson does both.

               a.      Relative Qualifications of the Candidates

       First, Hyson attacks Celin’s qualifications. One of her central arguments is that she out-

scored Celin on the electronic application, 96 to 88. In a vacuum, this fact might imply that

something was amiss; however, as the Architect points out, two other male candidates received


                                                  18
perfect scores of 100, and neither was selected. Additionally, the automated score was just one

of several factors considered in the hiring process. Thus, the Court cannot conclude that Hyson’s

score was improperly disregarded on the basis of her gender. Likewise, the fact that Hyson was

interviewed but Celin was not does not, by itself, raise an inference of gender discrimination,

given that the same two high-scoring male candidates were also interviewed but not ultimately

selected.14 Further, the Court is not in a position to discern a meaningful difference between the

value of Celin’s four months of experience in the position in question and Hyson’s longer service

with the Architect in a different position (or her post-secondary education in criminal justice).

See Aka, 156 F.3d at 1294 (“In a close case, a reasonable juror would usually assume that the

employer is more capable of assessing the significance of small differences in the qualifications

of the candidates, or that the employer simply made a judgment call.”). Accordingly, Hyson’s

arguments regarding the qualifications of the two candidates are not by themselves sufficient to

raise a genuine issue of material fact.

                b.      Discriminatory Remark Made by The Selecting Official

        Next, however, Hyson points to a remark made by Delano Reeves, the official charged

with filling the Assistant Supervisor vacancy, in which he chided her for being “too delicate.”

Hyson Dep. at 116. This remark, which the Architect fails to address, could easily be understood

as casting aspersions on Hyson’s gender or stereotyping her on that basis. The question thus

becomes how much weight should be accorded to this statement.



        14
               To the extent that Hyson argues that the application score or interview should
have played a larger role in the hiring decision, the Court “defer[s] to the Government’s decision
of what nondiscriminatory qualities it . . . seek[s] in filling the . . . position.” Stewart v. Ashcroft,
352 F.3d 422, 429 (D.C. Cir. 2003).

                                                   19
         Generally, courts are reluctant to infer unlawful discrimination on the basis of “stray

remarks” in the workplace. See, e.g., Wicks v. Am. Transmission Co., 701 F. Supp. 2d 38, 44

(D.D.C. 2010), aff’d, 2010 WL 4340376 (D.C. Cir. Oct. 1, 2010).15 Discriminatory comments,

however, are much more likely to raise an inference of bias in employment decisions where they

“refer directly to the plaintiff,” Prater v. FedEx Corp. Servs., Inc., 2009 WL 1725978, at *7

(D.D.C. June 18, 2009) (quoting Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1479

(10th Cir. 1996)), and where they are made by decisionmakers, rather than coworkers without

influence over the challenged decision. See Forman v. Small, 271 F.3d 285, 293 (D.C. Cir.

2001).

         Here, the fact that this remark was made directly to Hyson, in reference to her, by the

official responsible for selecting the new Assistant Supervisor, weighs heavily in Hyson’s favor.

It is, however, unclear whether the remark was made in relation, or temporal proximity, to the

promotion process. Hyson Dep. at 116–18 (“Q: And you don’t recall any other aspect of the

context of that statement? A: No.”); see Forman, 271 F.3d at 293 (explaining that discrimination

may be inferred where decisionmakers “express . . . discriminatory feelings around the relevant


         15
                This is especially true in the context of the prima facie burden-shifting scheme
and the direct-versus-indirect evidence inquiry. See Wicks, 701 F. Supp. 2d at 44 (“‘[D]irect
evidence does not include stray remarks in the workplace’” (quoting Ayala-Gerena v. Bristol
Myers-Squibb Co., 95 F.3d 86, 96 (1st Cir. 1996))); Prater v. FedEx Corp. Servs., Inc., 2009 WL
1725978, at *6–7 (D.D.C. June 18, 2009) (holding that, without a link to the challenged decision,
stray remarks did not constitute indirect evidence of discrimination sufficient to satisfy the final
prong of the McDonnell Douglas framework). Once the focus shifts to the ultimate inquiry of
discrimination vel non, however, “the court considers all relevant evidence.” Brady, 520 F.3d at
495. Accordingly, the Court considers cases addressing the significance of such remarks in these
other contexts, but does not treat them as dispositive of the ultimate inquiry here. See Pederson
v. Mills, 636 F. Supp. 2d 78, 82 n.2 (D.D.C. 2009) (“This Court will . . . review[] all of the
evidence (of a prima facie case, pretext, and discrimination) to decide if a jury could infer
discriminatory behavior by defendant.”).

                                                  20
time in regard to the adverse employment action complained of”). Consequently, it is difficult to

gauge the full significance of Reeves’s remark. See Bennett v. Solis, 2010 WL 2889741, at *13

(D.D.C. 2010) (emphasizing the importance of the context in which allegedly discriminatory

remarks were made to their probative value in establishing pretext).

        Ultimately, the Court must conclude that a reasonable juror could find that Hyson’s non-

promotion was based to some extent on her gender. Although, as described above, the facts that

Hyson was interviewed while Celin was not and that Hyson had a higher score than Celin on the

online test do not give rise to an inference of discrimination by themselves, they might do so in

combination with Reeves’s remark. Cf. Pederson v. Mills, 636 F. Supp. 2d 78, 84–85 (D.D.C.

2009) (holding that biased remarks by decisionmakers, in combination with evidence of a minor

qualification gap in favor of the plaintiff, were sufficient to “support . . . an overall inference of

discriminatory preference” and preclude summary judgment for the defendant). Such a

determination would likely come down to assessments of credibility and the drawing of

inferences from all of the evidence, which are tasks for a jury. See Crawford-El v. Britton, 523

U.S. 574, 599 (1998) (noting that “disputes about [a defendant’s] intent . . . frequently turn on

credibility assessments”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)

(“Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions . . . .”). Accordingly, the Court concludes that

summary judgment for the Architect as to this claim would be inappropriate.




                                                  21
         2.     Hyson Has Not Raised a Genuine Issue of Material Fact with Regard to
                Retaliation for Participation in Protected Activity

         Like discrimination claims, retaliation claims have long been governed by the McDonnell

Douglas framework; however, the D.C. Circuit has explained that the principles that led it to call

McDonnell Douglas a “sideshow” in the discrimination context “apply equally to retaliation

claims.” Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (quoting Brady, 520 F.3d at

494) (internal quotation marks omitted). Thus, because the Architect concedes that Hyson has

participated in protected activity, acknowledging Hyson’s testimony in a co-worker’s Office of

Compliance proceedings in 2001, her EEO complaint in 2004, and her Office of Compliance

proceedings in April 2006, the Court “proceed[s] to the ultimate issue of retaliation vel non

instead of evaluating whether [Hyson has] made out a prima facie case.” Jones, 557 F.3d at

678.16

         As explained above, Hyson’s retaliation claims are limited to those allegations she raised

before the Office of Compliance; thus, the Court cannot consider the raft of incidents that Hyson

now considers to be retaliatory, see Pl.’s Opp’n at 26, and focuses on her non-selection for the



         16
                 The parties also agree that Hyson commenced the October 2007 Office of
Compliance proceedings that resulted in the case at bar and filed an EEO complaint in April
2009. Because, however, neither of these events could have been the impetus for the acts of
retaliation alleged by Hyson during the October 2007 proceedings, the Court will not consider
them. Likewise, although Hyson also cites “regular[] complain[ts] to Dennis Campbell” as
protected activity that prompted retaliation, the Court will not consider this allegation because it
bears no resemblance to the instances of protected activity cited by Hyson before the Office of
Compliance See Johnson-Parks v. D.C. Chartered Health Plan, 713 F. Supp. 2d 39, 46 (D.D.C.
2010) (dismissing the plaintiff’s claim for failure to exhaust remedies where “the associated
protected activity in her EEOC filing [was] not the same as that identified in the . . . complaint”).
Conversely, the Court will consider both Hyson’s 2004 EEO complaint and her April, 2006
Office of Compliance proceedings, on the grounds that Hyson’s statement in the memorandum
that she was retaliated against “for my prior case” could refer to either one.

                                                 22
Assistant Supervisor position, the September 10, 2007 memorandum of counseling, the

September 13, 2007 meeting, and the initial September 13, 2007 denial of leave.

               a.      Non-Selection for the Assistant Supervisor Position

       Because the governing law is the same, see Jones, 557 F.3d at 678, the analysis

articulated above with regard to Hyson’s claim of non-selection on the basis of gender applies

equally to her claim of retaliation. Here, though, Rick Joyce’s remark regarding Hyson’s EEO

activity — “that she was either with him or against him,” Pl.’s Opp’n at 31 — stands in for

Delano Reeves’s “too delicate” comment. That difference is significant: there is no indication

that Joyce, unlike Reeves, played any role in the Assistant Supervisor selection process. See

Sewell v. Chao, 532 F. Supp. 2d 126, 138 n.8 (D.D.C. 2008) (“Evidence of discrimination ‘does

not include stray remarks . . . made by nondecision-makers . . . .” (quoting Ayala-Gerena v.

Bristol Myers-Squibb Co., 95 F.3d 86, 96 (1st Cir. 1996)) (emphasis added)).

       It is also notable that, as the Architect observes, significant time passed between Hyson’s

protected activities and her non-selection.17 Hyson was notified of her non-selection roughly one

year after the April 2006 Office of Compliance proceedings, three years after her 2004 EEO

complaint, and six years after testifying in Priscilla Rucker’s administrative case. In light of this

passage of time, and the fact that Joyce apparently had no influence over the selection process,

the Court cannot conclude that an inference of retaliation arises with regard to Hyson’s non-

selection for the Assistant Supervisor position.



       17
               Although temporal proximity (or a lack thereof) between the protected activity
and the alleged retaliation is generally considered during the prima facie case inquiry, “it tends to
support a circumstantial inference of retaliation,” and thus “applies to the ultimate inquiry as
well.” Jones, 557 F.3d at 679.

                                                   23
               b.      The September 2007 Memorandum, Meeting, and Initial Denial of
                       Leave

       Although the McDonnell Douglas framework has largely fallen away, one element

remains: because adverse action is not only part of a plaintiff’s prima facie case but also an

element of a Title VII retaliation claim, see Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir.

2002), an employment action, whatever the motive behind it, cannot constitute retaliation under

Title VII or the CAA unless it is materially adverse. See Baloch v. Kempthorne, 550 F.3d 1191,

1199 (D.C. Cir. 2008). A materially adverse action is one that “well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211,

1213 (D.C. Cir. 2006)) (internal quotation marks omitted). This standard is broader than the

adverse-action standard used in the discrimination context. Id. at 1198 n.4. Even so, not all

seemingly adverse actions constitute materially adverse action for Title VII purposes. See id.

(“We speak of material adversity because we believe it is important to separate significant from

trivial harms.”). Here, each event — the memorandum of counseling, the meeting, and the initial

denial of leave — does not rise to the level of materially adverse action.

                       i.      The September 10, 2007 Memorandum of Counseling

       The Architect argues that a reprimand like the memorandum of counseling that Hyson

received on September 10, 2007, which has no impact on an employee’s “grade, salary level, job

title, duties, benefits or work hours,” cannot constitute materially adverse employment action.

Def.’s Mem. at 25. Hyson essentially fails to challenge this argument, responding only that “a




                                                 24
reasonable trier of fact could find” a long list of actions, including the memorandum of

counseling, to be materially adverse. Pl.’s Opp’n at 26. Regardless, the Architect is correct.18

       A letter of counseling, written reprimand, or unsatisfactory performance review, if not

abusive in tone or language or a predicate for a more tangible form of adverse action, will rarely

constitute materially adverse action under Title VII. See Baloch, 550 F.3d at 1199 (collecting

cases). Here, the memorandum of counseling described Alfred Brice’s unsuccessful attempts to

reach Hyson via her radio and admonished her to keep it activated and report any malfunctions

promptly. See Def.’s Mem. Ex. H (Memorandum of Counseling, Sept. 7, 2007) at 2. It closed by

warning that “[t]his time . . . is just a counseling but if this happen[s] again, we will take the

appropriate action.” Given that the memorandum itself made clear that disciplinary action was

not forthcoming as a result of its issuance — and that “mere speculation that a letter of reprimand

may lead to future punishment is insufficient to establish an adverse employment action,”

Coleman v. District of Columbia, 2006 WL 2434926, at *4 (D.D.C. Aug. 22, 2006) — the Court

cannot conclude that a reasonable employee would have been deterred from pursuing a claim of

discrimination by the prospect of receiving a memorandum like this one. See Baloch, 550 F.3d at

1199; Herbert, 766 F. Supp. 2d at 75 (holding that a similar written reprimand provided to an

Architect of the Capitol employee was not materially adverse because it merely criticized his job

performance).


       18
                The Court notes, however, that the Architect adverts to the incorrect adverse-
action standard; an employer’s action need not affect an employee’s “grade, salary level, job title,
duties, benefits or work hours” to be materially adverse. See Baloch v. Kempthorne, 550 F.3d at
1198 n.4 (“Retaliation claims are ‘not limited to discriminatory actions that affect the terms and
conditions of employment’ and may extend to harms that are not workplace-related or
employment-related so long as ‘a reasonable employee would have found the challenged action
materially adverse.’” (quoting Burlington N., 548 U.S. at 64)).

                                                  25
                       ii.     The September 13, 2007 Meeting with Brice, Joyce, and Reeves

       Likewise, the Court finds that the September 13, 2007 meeting during which Brice, Rick

Joyce, and Delano Reeves suggested that Hyson enter the Employee Assistance Program does not

constitute materially adverse action. By Hyson’s own account, upon being asked to enter the

EAP, she refused, stating that she did not feel it was necessary. Hyson Dep. at 74. The Architect

asserts, and Hyson again fails to contest, that neither the meeting nor Hyson’s refusal to enroll in

the EAP led to any consequences whatsoever. Def.’s Mem. at 25. It may be that in some

circumstances a referral to counseling could have consequences sufficient to constitute materially

adverse action, but on the facts presented here, that is not the case. See Burlington N., 548 U.S.

at 71 (“Whether a particular [action] 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.’” (quoting Oncale v. Sundowner Offshore

Services, Inc., 523 U.S. 75, 81 (1998))). Thus, for the same reasons that it finds the

memorandum not to constitute materially adverse action, the Court concludes that the meeting

was not materially adverse.

                       iii.    The Initial Denial of Leave for September 13, 2007

       Finally, the Court concludes that Brice’s initial denial of Hyson’s September 13, 2007

leave request did not constitute materially adverse action. The Architect argues that because

Hyson’s request was eventually approved, albeit by a different manager, her denial of leave claim

was “moot ab initio.” Def.’s Mem. at 10 n.5, 30. As above, Hyson replies only that “a

reasonable trier of fact could find” a denial of leave to be materially adverse. Pl.’s Opp’n at 26.

The Architect has the stronger position. Although a denial of leave can constitute materially


                                                 26
adverse action, see Diggs v. Potter, 700 F. Supp. 2d 20, 43 (D.D.C. 2010), Hyson’s September

13, 2007 leave was never denied. Her request was eventually granted, albeit after a delay, see

Def.’s Mem. Ex. DD (Supplemental Mem.) at 2, and such a delay would not deter a reasonable

employee from pursuing a charge of discrimination. See Zelaya v. UNICCO Service Co., 733 F.

Supp. 2d 121, 131 (D.D.C. 2010) (holding that an initial denial of leave did not constitute

materially adverse action because the plaintiff was ultimately allowed to take the leave without

any other consequence to her).19

       3.      Hyson Has Not Raised a Genuine Issue of Material Fact with Regard to her
               Hostile Work Environment Claim

       Finally, the Court turns to Hyson’s hostile work environment claim. As explained above,

the Court will consider the hostile environment claim under both a retaliation theory and a gender

discrimination theory. To survive a motion for summary judgment, a plaintiff making a hostile

work environment claim must establish a prima facie case. To do so, she must demonstrate that:

(1) she is a member of a protected class or engaged in protected activity; (2) she was subject to

unwelcome harassment; (3) the harassment occurred because of her protected status or behavior;

(4) the harassment had the effect of unreasonably interfering with the plaintiff’s work

performance and creating an intimidating, hostile, or offensive working environment; and (5)

respondeat superior liability applies. Davis v. Coastal Int’l. Sec., Inc., 275 F.3d 1119, 1122–23

(D.C. Cir. 2002) (citing Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir.



       19
                Because the memorandum, meeting, and delay in granting leave did not constitute
adverse action, the Court will not consider whether they were motivated by retaliatory intent. For
the same reason, the Court also will not consider whether the delayed grant of Hyson’s leave
request constituted disparate treatment on the basis of gender (in which context “adverse action”
is also defined more narrowly).

                                                27
1997)). A work environment, even if objectionable, does not become actionable unless “the

offensive conduct ‘permeate[s] [the workplace] with discriminatory intimidation, ridicule, and

insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.’” Kilby-Robb v. Spellings, 522 F. Supp. 2d 148,

163 (D.D.C. 2007) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).

       Hyson argues that the Architect’s managers created a hostile work environment for her by

not selecting her for the Assistant Supervisor position, wrongfully denying her leave, removing

her from her Team Leader position, writing her unwarranted memoranda of counseling, failing to

take action against a co-worker who physically threatened Hyson, failing to provide a requested

medical accommodation, “harassing” her for medical documentation to support an

accommodation she had already received, assigning her unfavorable tasks, reprimanding her for

associating with a subordinate, and routinely threatening her with termination. Pl.’s Opp’n at 30.

       The Architect takes issue with Hyson’s hostile work environment claim on three grounds:

first, he avers that the conduct Hyson alleges was neither pervasive nor severe enough to

constitute a hostile environment under Title VII. See Def.’s Mem. at 39. Second, he asserts that,

severity aside, Hyson has produced no evidence that any of the conduct she identifies was

directed at her gender or protected activity. Def.’s Mem. at 37–38. Third, he argues that Hyson’s

hostile environment claim is built entirely on the same allegations that constituted her

discrimination and retaliation claims — most of which are barred for non-exhaustion — and that

she is attempting to “bootstrap” those claims into a hostile environment claim. Def.’s Mem. at

38. Hyson fails to squarely confront the Architect’s arguments, merely describing certain events

that she believes constitute “evidence of the hostile work environment” and asserting that “the


                                                 28
evidence shows that Plaintiff was discriminated against because of her protected status.” Pl.’s

Opp’n at 31. It is, however, precisely this causal connection that is missing from the vast

majority of Hyson’s allegations.

       Much of the conduct that Hyson describes may have been unjustified or unprofessional,

but “many bosses are harsh, unjust and rude. It is therefore important in hostile work

environment cases to exclude from consideration personnel decisions that lack a linkage of

correlation to the claimed ground of discrimination.” Bryant v. Brownlee, 265 F. Supp. 2d 52, 63

(D.D.C. 2003) (quoting Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002)). Thus, behavior,

even if offensive or hostile, that is not linked to Hyson’s gender or protected activity “cannot be

used to support a hostile work environment claim.” Nurriddin v. Goldin, 382 F. Supp. 2d 79,

108 (D.D.C. 2005). Accordingly, because Hyson is unable to tie the majority of her allegations

to her gender or protected activity, the Court is unable to consider them.

       The only conduct described by Hyson that does relate to her gender or protected activity

are the remarks, made by Delano Reeves and Rick Joyce, respectively, that Hyson was “too

delicate” and, with regard to her EEO activity, that “she was either with [Joyce] or against him.”

Pl.’s Opp’n at 22, 31. Isolated incidents, however, even if intimidating or offensive, “do not

amount to actionable harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002).

Alone, these two comments do not create harassment severe or pervasive enough to constitute an

actionable hostile work environment. Accordingly, the Court concludes that summary judgment

for the Architect is proper as to this claim.




                                                 29
                                      IV. CONCLUSION

       In sum: any discrete claims of discrimination or retaliation based on factual allegations

that Hyson did not raise before the Office of Compliance are dismissed for lack of subject-matter

jurisdiction. Further, the Court grants summary judgment to the Architect as to Hyson’s

retaliation claim and her hostile environment claim; however, Hyson’s claim that her non-

promotion was based on her gender may go forward.

       Accordingly, it is this 10th day of August 2011 hereby

       ORDERED that defendant’s motion to dismiss and for summary judgment [#21] is

GRANTED in part and DENIED in part.



                                                     Henry H. Kennedy, Jr.
                                                     United States District Judge




                                                30
