                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
ELIZABETH RODRIGUEZ,             )
                                 )
               Plaintiffs,       )
                                ) Case No. 12-CV-434 (EGS)
          v.                     )
                                 )
SHAUN DONOVAN, Secretary         )
United States Department of      )
Housing and Urban Development    )
                                 )
               Defendant.        )
________________________________)

                         MEMORANDUM OPINION

       Plaintiff Elizabeth Rodriguez, proceeding pro se, brings

this action seeking damages for alleged violations of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

(“Title VII”) and the Age Discrimination in Employment Act, 29

U.S.C. § 633a (“ADEA”) based on plaintiff’s ethic background and

her age.    Defendant Shaun Donovan, the Secretary of the United

States Department of Housing and Urban Development (“HUD”) moved

to dismiss.    Upon consideration of the motion, the entire record

herein, and for the reasons stated below, the motion to dismiss

will be GRANTED.

  I.     BACKGROUND

       Plaintiff filed her complaint in this Court on March 20,

2012, attaching a copy of a December 21, 2011 Final Agency

Decision regarding her EEO complaint against HUD.    ECF No. 1.
Plaintiff alleges that she is a 58-year-old Mexican-American

woman.    In the Complaint, plaintiff states that she does not

agree with the Final Agency Decision.    She alleges that she

suffered discrimination in the form of verbal abuse, was

subjected to retaliation, her work products were unfairly

criticized, and her professional reputation was tarnished.

These actions, plaintiff alleges, caused a mental and physical

toll.    The alleged discrimination and mistreatment appear to

arise from plaintiff’s disagreement as to whether her supervisor

Makia Smith-Thomas was qualified to be her supervisor.    The

complaint fails to allege specific causes of action or to

specify which parts of the Final Agency Decision plaintiff seeks

to challenge and why.    The complaint also fails to set forth the

grounds for the court’s jurisdiction.    Because plaintiff is

proceeding pro se, the Court has considered the allegations in

the Final Agency Decision as incorporated within plaintiff’s

complaint.

     On May 21, 2012, defendant moved to dismiss plaintiff’s

complaint for failure to state a claim under Rule 12(b)(6).      ECF

No. 3.    In the motion, defendant appears to construe plaintiff’s

complaint broadly and also incorporates claims made by plaintiff

in the Final Agency Decision.    Nonetheless, defendant argues

that plaintiff has failed to exhaust administrative remedies as

to her retaliation claims.    Defendant further argues that even

                                  2
if plaintiff had exhausted administrative remedies, plaintiff’s

opposition to her supervisor is not protected activity.

Defendant also contends that plaintiff’s disparate treatment

claims fail because plaintiff was not the subject of an adverse

employment decision and she was not similarly situated to the

person she alleges was treated fairly.      Finally, defendant

argues that plaintiff cannot maintain a claim for hostile work

environment as a result of one alleged incident.

     On June 29, 2012, the Court issued a so-called Fox/Neal

Order, advising plaintiff of her obligation to respond to

defendant’s motion to dismiss.   ECF No. 4.     The Court advised

plaintiff that Local Civil Rule 7(b) required her to “file a

memorandum of points and authorities in opposition to the

motion.”   Id. at 1.   Plaintiff was further advised that if “such

a memorandum is not filed within the prescribed time, the Court

may treat the motion as conceded.”    Id.    The Court directed

plaintiff to respond to the motion to dismiss by no later than

July 23, 2012.

     On July 23, 2012, plaintiff filed a brief response to

defendant’s motion to dismiss.   ECF No. 5.     Plaintiff

essentially reiterates her claim that she was subjected to

retaliation and mistreatment, including that her work product

was criticized, and that she was required to report to Ms.

Smith-Thomas even though Ms. Smith-Thomas allegedly did not

                                  3
treat plaintiff well.   Plaintiff stated that she “does not trust

HUD’s Equal Opportunity Office” and chose to go directly to this

Court with her claims instead.   Plaintiff also stated that she

was seeking legal counsel “who can adequately address this

case.”

     On August 9, 2012, defendant filed a reply in further

support of its motion to dismiss.    ECF No. 8.   Defendant argued

that plaintiff had conceded all of defendant’s arguments by

failing to respond to them and that its motion to dismiss should

be granted.

     On January 11, 2013, the Court held a status conference to

address plaintiff’s efforts to obtain counsel.    Plaintiff stated

that she had been speaking with an attorney but was unsure

whether she would proceed with that attorney.     The Court advised

plaintiff that if she intended to obtain counsel, counsel would

be required to enter an appearance in this case by no later than

January 25, 2013, or the Court would proceed to decide the

motion to dismiss as it was currently briefed.    On January 25,

2013, plaintiff contacted the Court via telephone and confirmed

that counsel would not be entering an appearance on her behalf.

Plaintiff did not indicate that she wished to file any

additional briefing.

     The motion to dismiss is now ripe for the Court’s decision.



                                 4
  II.    STANDARD OF REVIEW

     An action will be dismissed where the complaint fails to

state a claim upon which relief can be granted.   Fed. R. Civ. P.

12(b)(6); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.

2002).   To avoid dismissal, 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 and citations omitted).   “Only a complaint that

states a plausible claim for relief survives a motion to

dismiss.”   Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing

Twombly, 550 U.S. at 556); see also Voinche v. Obama, 744 F.

Supp. 2d 165, 170–71 (D.D.C. 2010).

     A pro se plaintiff's complaint will be held to “less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)); see also Koch v. Schapiro, 699

F. Supp. 2d 3, 7 (D.D.C. 2010).   But even a pro se complaint

“must plead factual matter that permits the court to infer more

than the mere possibility of misconduct.”   Jones v. Horne, 634

F.3d 588, 596 (D.C. Cir. 2011) (internal citations and quotation

marks omitted).   Moreover, “[a] pro se complaint, like any

other, must present a claim upon which relief can be granted.”

                                  5
Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981).    Even

with the liberality afforded pro se complaints, the district

court “need not accept inferences unsupported by the facts

alleged in the complaint or legal conclusions cast in the form

of factual allegations.”    Kaemmerling v. Lappin, 553 F.3d 669,

677 (D.C. Cir. 2008) (quotation marks omitted).

  III. DISCUSSION

     “It is well understood in this Circuit that when a

plaintiff files an opposition to a motion . . . addressing only

certain arguments raised by the defendant, a court may treat

those arguments that the plaintiff failed to address as

conceded.”   McMillan v. Wash. Met. Area Transit Auth., --- F.

Supp. 2d ----, 2012 WL 4845641, at *3 (Oct. 12, 2012) (citing

Howard v. Locke, 729 F. Supp. 85, 87 (D.D.C. 2010)).    In her

opposition to defendant’s motion to dismiss, plaintiff fails to

address defendant’s arguments that plaintiff failed to exhaust

administrative remedies and that she failed to state a claim as

to disparate treatment and hostile work environment.    Defendant

argues that these arguments have thus been conceded.    Although

the Court agrees, the Court will address each argument in turn

in view of the fact that plaintiff is proceeding pro se.

  A. Retaliation Under Title VII and ADEA

     In her complaint, plaintiff alleges that she “was subjected

to retaliation.”    In its motion to dismiss, defendant argues

                                  6
that plaintiff has failed to exhaust any retaliation claims

because they were not properly raised below.    Specifically,

defendant notes that the Final Agency Decision states that

plaintiff raised the following three claims, none of which

allege retaliation:

     1) Your requests for personal development and training
        have been denied;
     2) You have been subjected to verbal harassment and a
        hostile work environment; and
     3) Management has continuously denied your requests to
        move to a quiet environment.

Final Agency Decision at 1. 1   Defendant argues that because these

claims do not allege retaliation, and because plaintiff provided

no evidence of challenging the administrative framing of her

claims, she has failed to exhaust administrative remedies under

Title VII.   Def.’s Mot. to Dismiss at 7-8 (citing Robinson v.

Chao, 403 F. Supp. 2d 24, 31 (D.D.C. 2005) (plaintiff did not

exhaust administrative remedies that agency did not accept for

investigation); McKeithan v. Boarman, 803 F. Supp. 2d 63, 68-69

(D.D.C. 2011) (failure to respond to framing of the issues

arguably supports a finding that plaintiff failed to exhaust

administrative remedies for claims not approved by EEO)).

     Similarly, defendant argues that plaintiff failed to

exhaust her retaliation claims under the ADEA, which requires


1
  The Final Agency decision is attached to plaintiff’s complaint
and was docketed as ECF No. 1. The Final Agency Decision begins
on page 7 of the Complaint.
                                  7
that plaintiff either file an administrative claim or sue

directly in federal court within 180 days, as long as she gives

the EEOC a 30-day notice of intent to sue.      Mot. to Dismiss at 9

(citing 29 U.S.C. § 633a(c), (d)).      Defendant argues that

failure to follow either approach bars plaintiff’s claims.      Id.

(citing Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003)).

Defendant contends that plaintiff failed to exhaust the

retaliation claims under the ADEA because she did not file an

administrative claim and because there is no allegation that she

provided the EEOC with notice of intent to sue.

     Plaintiff’s opposition fails to respond to the exhaustion

issue except to state that plaintiff “does not trust HUD’s Equal

Opportunity Office and chose to go directly” to this Court to

pursue her discrimination claims.      Pl.’s Opp. at 3.

Accordingly, the Court finds that plaintiff has failed to

exhaust administrative remedies as to her retaliation claims

under both Title VII and the ADEA. 2




2
  Defendant argues, and the Court agrees, that even if plaintiff
had exhausted her retaliation claims, the underlying activity is
not protected by Title VII or the ADEA. Specifically, plaintiff
appears to allege that she was retaliated against because she
opposed Ms. Smith-Thomas as her supervisor, which she believed
as the result of a poor management decision. FAD at 9-10.
Title VII and the ADEA protect opposition to unlawful
discrimination practices, not to disagreements over management
style. See Kelly v. Mills, 677 F. Supp. 2d 206, 221 (D.D.C.
2010).
                                 8
  B. Disparate Treatment Claims

     1. Claims Prior to September 11, 2010

     Defendant makes several arguments in support of dismissal

of plaintiff’s disparate treatment claims.    Defendant first

argues that plaintiff has failed to exhaust administrative

remedies for certain disparate treatment claims under both the

ADEA and Title VII because she did not contact an EEO counselor

within 45 days of each alleged discriminatory event.    See 42

U.S.C. § 2000e-16(c) (Title VII); 29 C.F.R. § 1614.105(a)(1)

(ADEA).   With respect to the ADEA disparate treatment claim,

defendant argues that plaintiff failed to pursue the alternative

option of bringing a federal court action within 180 days and

providing the EEOC with a 30-day notice of intent to sue.      29

U.S.C. § 633a(c), (d).   The Final Agency Decision states that

plaintiff contacted an EEO counselor on October 26, 2010.      FAD

at 1.   Defendant argues, therefore, that all allegations of

disparate treatment concerning denials of training and

development before September 11, 2010 are outside of the 45-day

limitations period.   Mot. to Dismiss at 7.   In its motion,

defendant lists three discrete claims outside of the 45-day time

period that are arguably time barred: 1) a 2007 denial of a

training opportunity to work with Senior Analyst Curt Bandle; 2)

a January 2008 conversation between plaintiff and a supervisor

in which plaintiff stated that she had been hired “as a Budget

                                  9
Analyst” but was being used as “a clerk typist;” and 3) training

and development opportunities allegedly provided to Ms. Smith-

Thomas in 2009 that none of the other staff members received.

     In her opposition to the motion to dismiss, plaintiff does

not challenge defendant’s arguments that plaintiff did not

exhaust administrative remedies as to the disparate treatment

claims occurring before September 11, 2010.    She does not

provide any evidence, for example, that she did bring those

claims before an EEO counselor prior to September 11, 2010.     Nor

does plaintiff make any allegations about those alleged

instances of disparate treatment.    Plaintiff also fails to

provide any equitable defenses for her failure to exhaust such

claims.   The Court finds, therefore, that plaintiff failed to

exhaust administrative remedies under both the ADEA and Title

VII for disparate treatment claims occurring before September

11, 2010.

     2. Claims After September 11, 2010

     Defendant alleges that the only three possible events

constituting disparate treatment claims in the Final Agency

Decision within the 45-day limitations period are disapprovals

of three training programs.   Defendant notes, however, that is

unclear from the Final Agency Decision whether approval was

denied for these programs before or after September 11, 2010.

Construing the complaint and attached Final Agency Decision in

                                10
the light most favorable to the plaintiff, the Court will

consider those claims to have occurred after September 11, 2010.

     The issue here is whether the disapprovals of training

programs can state a claim for discrimination.     To establish a

prima facie case of discrimination under Title VII and the ADEA,

a plaintiff must show that (1) she is a member of a protected

class; (2) she suffered an adverse employment action; and (3)

the unfavorable action gives rise to an inference of

discrimination.   Nguyen v. Mabus, --- F. Supp. 2d ----, 2012 WL

4475670, at *7 (D.D.C. Sept. 30, 2012) (citing Wiley v.

Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)).     However, “an

employment discrimination plaintiff is not required to plead

every fact necessary to establish a prima facie case to survive

a motion to dismiss.”   Jones v. Airline Pilots Ass’n, Int’l, 642

F.3d 1100, 1104 (D.C. Cir. 2011) (citing Swierkiewicz v. Sorema,

N.A., 534 U.S. 506, 508 (2002)).     A plaintiff must, however,

plead sufficient facts to show a plausible entitlement to

relief.   Spaeth v. Georgetown Univ., 839 F. Supp. 2d 57, 62-63

(D.D.C. 2012) (citing Fennell v. AARP, 770 F. Supp. 2d 118, 127

(D.D.C. 2011)).   The “two essential elements for a

discrimination claim are that (i) the plaintiff suffered an

adverse employment action (ii) because of [her] race, color,

religion, sex, or national origin.”     Id.



                                11
     Defendant argues these alleged denials of training

opportunities do not constitute “adverse employment action.”

Defendant argues that plaintiff has failed to allege, or even

suggest that any of the disapprovals of training actually hurt

her job performance or otherwise materially changed her

employment conditions, status, or benefits.       Rather, defendant

argues, plaintiff merely speculates that she was at a

“disadvantage because [she] can now be reprimanded for not

knowing [her job] at the GS-12 level.”      FAD at 2.   Defendant

argues that denials of “training, experience, and promotional

advancement opportunities” that are “vague and speculative” do

not rise to the level of adverse action.      Dorns v. Geithner, 692

F. Supp. 2d 119, 133 (D.D.C. 2010).

     Plaintiff does not address any denial of training

opportunities in her complaint or in her opposition to

defendant’s motion to dismiss.   The Court has reviewed the

information in the Final Agency Decision regarding the denial of

the three training opportunities and found that it does not

support an allegation of an adverse employment action.

Specifically, the FAD includes plaintiff’s allegation that a

supervisor told her which classes she needed to take but that

those classes were not approved.      FAD at 3.   There are no

allegations that plaintiff suffered an adverse employment action

as a result of the denial of training.      Moreover, the Final

                                 12
Agency Decision indicates that plaintiff received more training

than any other comparators in her office.      FAD at 10 (indicating

that plaintiff had attended 16 training programs between 2007-

2011; others in the office had attended 7 to 13 training

courses).

     Accordingly, the Court finds that plaintiff has failed to

state a claim for discrimination as a result of the denial of

three training courses.

  C. Hostile Work Environment

     Defendant alleges that plaintiff’s allegation that she was

subjected to a hostile work environment also fails because she

only describes one incident.    For there to be a hostile work

environment, the “workplace [must be] permeated with

discriminatory intimidation, ridicule, and insult” and the

behavior must be “sufficiently severe or pervasive [such that

it] alter[s] the conditions of the victim’s employment and

create[s] an abusive working environment.”      Harris v. Forklift

Systems, 510 U.S. 17, 21 (1993).      A “single incident” is

generally not severe or pervasive enough to be a hostile work

environment.   Clark County School Dist. v. Breeden, 532 U.S.

268, 271 (2001).   In Stewart v. Evans, this Circuit found that

an abusive and profane verbal tirade did not create a hostile

work environment because the “supervisor’s verbal barrage of

profanity was not sexually suggestive in any way or otherwise

                                 13
related to or caused by plaintiff’s gender.”    275 F.3d 1126,

1134 (D.C. Cir. 2002).

     Here, plaintiff’s allegation of a hostile work environment

arises from an incident in September 2010 after plaintiff

indicated she wanted to move her desk away from Ms. Smith-

Thomas.   The Final Agency decision describes the conversation:

     [Plaintiff] alleged that when [plaintiff], Ms. Smith-
     Thomas, and Mr. Reid met in his office, Ms. Smith-
     Thomas became livid and pointed her index finger at
     [plaintiff] and stated in an angry voice, “You mean
     you’re not woman enough to tell me to my face that I
     talk too much.” [Plaintiff] stated that Ms. Smith-
     Thomas stated, “You never did like me; you’re just
     like everyone else in the office.” [Plaintiff]
     alleged that Mr. Reid sat there and did nothing to
     stop Ms. Smith-Thomas or require her to exercise a
     sense of decorum.

FAD at 3.    Nothing about this incident suggests it arose from

plaintiff’s ethnic background or her age.    Moreover, even if it

had, this single incident is insufficient to create a hostile

work environment.    In response to defendant’s motion, plaintiff

only argues that “[i]n addition to the discrimination, plaintiff

was subjected to verbal abuse with the Director present!”    Pl.’s

Opp. at 3.    Plaintiff does not respond to defendant’s argument

that the single incident was not based on her age or gender, and

that the single incident cannot constitute a hostile work

environment.    Accordingly, plaintiff’s claim for hostile work

environment will be dismissed.




                                 14
  IV.     CONCLUSION

     For the reasons stated above, the Court finds that

plaintiff’s complaint alleging discrimination in violation of

Title VII and the ADEA should be dismissed.   Accordingly,

defendant’s motion is GRANTED.    An appropriate Order accompanies

this Memorandum Opinion.

Signed:     Emmet G. Sullivan
            United States District Judge
            February 12, 2013




                                 15
