                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


DEBORAH K. MINOR,                 :
                                  :
          Plaintiff,              :
                                  :
     v.                           : Civil Action No. 09-0288 (JR)
                                  :
TOM VILSACK, Secretary of         :
Agriculture,                      :
                                  :
          Defendant.              :

                             MEMORANDUM

          Deborah Minor sues the United States Department of

Agriculture (“USDA”) for violations of the Equal Pay Act, 29

U.S.C. §§ 206 and 215, and Title VII, 42 U.S.C. § 2000e, et. seq.

          Minor’s scattershot array of allegations against the

USDA include: lower compensation than four white male

counterparts; failure to provide her a performance appraisal or

award for the period ending September 2007; disparate

treatment(delayed email responses, greater scrutiny of her work

performance, failure to address her concerns promptly, lesser

operating budget); acts that “openly undermined her authority”;

mistreatment by the Assistant Administrator for Human Resources;

exclusion from meetings and removal of some duties; demeaning

remarks and mishandling of her leave requests; and failure to

provide file cabinets to protect the confidentiality of EEO

complaint files.

          The USDA moved to dismiss Minor’s Equal Pay Act claim

for lack of subject matter jurisdiction and moves for summary
judgment on her other claims.   [#9]    Shortly after that motion

was filed, Minor’s attorney withdrew from the case [#11].

Minor’s subsequent pro se opposition falls far short of the

showing necessary to defeat the government’s motion.

1. Equal Pay Act claim

          Minor asserts that, between July 2007 and February

2008, she was paid less than four white males who held

“substantially equal positions.”   [#1 at ¶ 6]    The USDA argues

that this court lacks subject matter jurisdiction of that claim,

because it can be inferred that Minor’s claim seeks more than

$10,000, and because and 28 U.S.C. § 1491 (“the Big Tucker Act”)

grants exclusive jurisdiction over such claims to the Court of

Federal Claims.    Even if Minor’s claim is for less than $10,000,

the venue provision of 28 U.S.C. § 1402(a)(1), (“the Little

Tucker Act”), limits the venue for such a claim to district in

which the plaintiff resides – in this case, the Eastern District

of Virginia. [#9] at 3-5.   The government is correct, and its

motion to dismiss Count 1 for lack of subject matter jurisdiction

must be granted.   See, e.g., Powell v. Castaneda, 390 F.Supp.2d

1, 7 (D.D.C. 2005).

2. Race and sex discrimination claims

          The USDA moves for summary judgment on Minor’s race

discrimination claims because Minor did not exhaust them, [#9] at

5-8, and on Minor’s gender discrimination claims because Minor


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did not show that she has suffered an adverse employment action,

[#9] at 16-19.   Minor does not oppose these parts of the

government motion.   Instead, she has shifted her focus to her

retaliation claims, conceding that she “may be willing to

withdraw [her] bases of race and sex.”

3. Retaliation claims

          To make out a prima facie case of illegal retaliation,

a plaintiff must show (1) that she engaged in statutorily

protected activity; (2) that her employer took a materially

adverse action against her; and (3) that there was a causal

connection between the protected activity and the adverse action.

See Burlington N. & Santa Ferry Co. v. White, 548 U.S. 53, 69

(2006).   The adverse action must be one that is severe enough to

“dissuad[e] a reasonable worker from making or supporting a

charge of discrimination.”   Id.    A prima facie case of

retaliation shifts to the employer the burden of offering a

legitimate, non-retaliatory explanation for its actions.    See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).     Then

the burden returns to the plaintiff, to show that the defendant’s

proffered reason is a pretext.     Id.

          The USDA has offered legitimate, non-retaliatory

reasons for its actions:   Mr. Thompson began his position as

Minor’s supervisor in April 2007, when mid-year reports were due;

given the timing, he did not complete mid-year evaluations for


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any of his managers.    Then, based on a consulting report prepared

before Mr. Thompson’s arrival that recommended a reorganization

of departments, Minor was reassigned to a new, more prestigious

position.    Minor’s conclusory response that the agency’s actions

would have “caused any reasonable person to want to leave the

Agency or have no other choice but to engage in protected

activity” is only argument, not evidence or even a colorable

allegation of pretext.

4. Hostile Work Environment

            To succeed on a hostile work environment claim under

Title VII, a plaintiff must show more than mere workplace

incivility.    Rather, plaintiff must show that she was subjected

to conduct that was “so severe or pervasive as to alter the

conditions of [the victim’s] employment and create an abusive

working environment” and that this conduct was a result of

discrimination based on protected status.    See, e.g., Faragher v.

City of Boca Raton, 524 U.S. 775, 786-7 (1998).

            Minor’s complaint lists distinct and sporadic acts of

incivility, none of which individually nor all of which

collectively amount to a hostile work environment.    Furthermore,

Minor does not show that those acts resulted from discrimination




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based on sex or gender or retaliation.   Again, Minor’s response

does not address the USDA’s arguments.

          An appropriate order accompanies this memorandum.




                               JAMES ROBERTSON
                         United States District Judge




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