                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

 JOHN KANGETHE,
      Plaintiff
      v.                                                    Civil Action No. 18-64 (CKK)
 THE DISTRICT OF COLUMBIA,
      Defendant

                          MEMORANDUM OPINION AND ORDER
                                 (January 18, 2019)

       Pro se Plaintiff John Kangethe, an employee of the District of Columbia Department of

Employment Services (“DOES”), brings retaliation, hostile work environment, and negligent

hiring and retention claims against his employer. Plaintiff alleges that he has faced numerous

adverse actions in his employment stemming from formal and informal complaints that he made

regarding his supervisor, Saikou Diallo. Plaintiff contends that these adverse actions have

resulted in a hostile working environment. He further alleges that it was negligent of DOES to

hire Mr. Diallo and to retain him in a supervisory position. Plaintiff brings this lawsuit against

the District of Columbia under the Age Discrimination in Employment Act (“ADEA”), the

District of Columbia Human Rights Act (“DCHRA”), and Title VII of the Civil Rights Act

(“Title VII”).

       Before the Court is Defendant District of Columbia’s [6] Motion to Dismiss. Defendant

argues that the Court should dismiss Plaintiff’s entire Complaint. First, Defendant claims that

Plaintiff’s retaliation claims should be dismissed because they fail to state a claim on which relief

can be granted. Second, Defendant contends that Plaintiff did not allege a protected class for his

hostile work environment claims, that his hostile work environment claims are unexhausted, and

that his allegations of a hostile work environment are not sufficiently pervasive to warrant relief.

Third, Defendant argues that Plaintiff’s common-law negligent hiring and retention claim is

                                                  1
preempted by the District of Columbia Comprehensive Merit Personnel Act of 1978 (“CMPA”)

and that Plaintiff’s allegations fall short of the standard for negligent hiring and retention claims.

       Upon consideration of the pleadings1, the relevant legal authorities, and the record for

purposes of this motion, the Court GRANTS IN PART and DENIES IN PART Defendant’s

Motion. The Court finds that three of the six allegedly retaliatory acts in Plaintiff’s Complaint

do not constitute “adverse actions” for which relief may be granted. Accordingly, Defendant’s

Motion is GRANTED and Plaintiff’s retaliation claims are DISMISSED to the extent that they

are premised on these three insufficient actions. The Court further concludes that Plaintiff failed

to exhaust his hostile work environment claims and GRANTS Defendant’s motion

DISMISSING those claims. Finally, the Court GRANTS Defendant’s motion DISMISSING

Plaintiff’s negligent hiring and retention claim as that claim is preempted by the CMPA.

Defendant’s Motion is DENIED in all other respects.

                                        I. BACKGROUND

       For the purposes of the motion before the Court, the Court accepts as true the well-

pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the

plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.

v. Comm. on Foreign Inv. in the United States, 758 F.3d 296, 315 (D.C. Cir. 2014). Further,

because Plaintiff proceeds in this matter pro se, the Court must consider not only the facts


1
  The Court’s consideration has focused on the following documents:
    • Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 6;
    • Pl.’s Mot. in Opp’n to Def.’s Mot. to Dismiss Pl.’s Compl. (“Pl.’s Opp’n”), ECF No. 9;
        and
    • Def.’s Reply in Support of its Mot. to Dismiss Pl.’s Compl. (“Def.’s Reply”), ECF No.
        10.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).

                                                  2
alleged in Plaintiff’s Complaint, but also the facts alleged in Plaintiff’s opposition to Defendant’s

motion to dismiss. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir.

2015) (“[A] district court errs in failing to consider a pro se litigant’s complaint ‘in light of’ all

filings, including filings responsive to a motion to dismiss.”); Fillmore v. AT & T Mobility Servs.

LLC, 140 F. Supp. 3d 1, 2 (D.D.C. 2015) (“The Court, as it must in a case brought by a pro se

plaintiff, considers the facts as alleged in both the Complaint and Plaintiff's Opposition to

Defendant's Motion to Dismiss.”).

        As Plaintiff is pro se, his Complaint is at times difficult to understand and contains

extraneous information. The Court has attempted to summarize the facts relating to Plaintiff’s

claims and recites only the background necessary for the Court’s resolution of the pending

Motion to Dismiss.

        Plaintiff John Kangethe was hired in 2002 as a Labor Economist for DOES and has been

employed there ever since. Compl., ECF No. 1, ¶ 12. In September 2014, Saikou Diallo was

promoted to supervise Plaintiff. Plaintiff had also applied for this supervisory position. Id. at ¶

23. Shortly after Mr. Diallo’s promotion, Plaintiff filed a discrimination claim, alleging that in

promoting Mr. Diallo rather than Plaintiff, DOES had discriminated against Plaintiff on the basis

of age. Id. at ¶ 26.

        During discovery in his age discrimination lawsuit, Plaintiff alleges that records revealed

that Mr. Diallo had been promoted and given a raise despite the fact that Mr. Diallo had deceived

DOES by falsely claiming that he had completed his PhD in economics. Id. at ¶¶ 30-40. The

records also revealed that DOES had initially hired Mr. Diallo at a salary almost $10,000 higher

than that of Plaintiff. Id. at ¶¶ 61-68. Based on the information obtained in discovery, in April

2017 Plaintiff began reporting Mr. Diallo’s alleged misrepresentations both formally to the



                                                   3
Office of the Inspector General and the Office of Risk Management and informally to officials at

DOES. Id. at ¶¶ 41-45.

       Plaintiff alleges that Mr. Diallo retaliated against him for his complaints by sending him

emails containing “offensive and disparaging language.” Id. at ¶¶ 170-73. Plaintiff also alleges

that he was stripped of his essential duties, namely producing the 2016 Annual Economic Report.

Id. at ¶¶ 87-96. Plaintiff further claims that Mr. Diallo instructed him to remove from the DOES

website certain documents that Plaintiff had produced, requiring Plaintiff to receive Mr. Diallo’s

pre-approval before posting documents. Id. at ¶¶ 97-101.

       Additionally, in lieu of producing his usual reports, Plaintiff alleges that Mr. Diallo gave

him an excessive and unreasonable workload. Id. at ¶¶ 69-86. Specifically, Plaintiff claims that

Mr. Diallo asked him to complete three economic reports in an unreasonable time-frame and to

complete a minimum wage study which Plaintiff contends an outside contractor was already

assigned to complete. Id. at ¶¶ 73-83, 102-14. Plaintiff also alleges that Mr. Diallo asked him to

complete a cost-benefit analysis on training programs and services at DOES. Id. at ¶¶ 121-33.

Plaintiff argues that, over his objections regarding time and experience limitations, his work on

these projects was included on his FY2017 performance plan and evaluation. Id. at ¶¶ 137-49.

Plaintiff claims that Mr. Diallo added these responsibilities to his FY2017 performance plan in

order to issue him a “marginal performer” rating on his evaluation. Id.at ¶¶ 150-55.

       In his performance evaluation meeting, Plaintiff alleges that Mr. Diallo “complain[ed]

about the lawsuits which Plaintiff had filed against DOES.” Id. at ¶ 157. Plaintiff further alleges

that Mr. Diallo said that Plaintiff’s lawsuits against DOES should not prevent him from

performing his duties. Id. At the end of the meeting, Plaintiff contends that Mr. Diallo refused to

revise the evaluation and that the evaluation was finalized by DOES. Id. at ¶¶ 158-60. Plaintiff



                                                 4
submitted a request for an appeal of his performance evaluation with the DOES Human

Resources Department but contends that the appeal has not occurred. Id. at ¶¶ 161-62.

       Plaintiff also complains that DOES continued to promote and praise Mr. Diallo despite

his misrepresentations about his academic credentials and his allegedly discriminatory and

retaliatory treatment of Plaintiff. Plaintiff specifically alleges one staff meeting in December

2017 where DOES officials recognized Mr. Diallo for outstanding service to DOES. Soon

thereafter, Mr. Diallo was raised in the organizational chart while Plaintiff was reassigned to be

under the supervision of a younger, newly-promoted employee. Id. at ¶¶ 182-85.

       Based on these alleged facts, Plaintiff contends that Defendant violated federal and

District of Columbia law by retaliating against him for engaging in legally-protected conduct, by

creating a hostile work environment, and by negligently hiring and retaining Mr. Diallo.

                                     II. LEGAL STANDARD

       Defendant moves to dismiss Plaintiff’s Complaint under Rule 12(b)(6). According to

Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not]

suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.




                                                  5
                                        III. DISCUSSION

       Defendant moves to dismiss each of Plaintiff’s three claims: retaliation, hostile work

environment, and negligent hiring and retention. The Court will address each of Defendant’s

arguments in turn.

   1. Retaliation Claims

       In order to state a claim of retaliation under Title VII or the DCHRA, the plaintiff must

allege a protected activity, a materially adverse action, and a causal link between the two. Allen

v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (discussing Title VII); Carpenter v. Fed. Nat’l

Mortg. Ass’n, 174 F.3d 231, 235 n.3 (D.C. Cir. 1999) (discussing DCHRA). These statutes

protect from retaliation those who have participated in filing a discrimination action and those

who have opposed employment practices reasonably believed to be discriminatory. See 29

U.S.C. § 623(d); see also D.C. Code § 2-1402.61. The plaintiff must allege that he engaged in

one of these types of protected activity and that he experienced a materially adverse action

because he engaged in that activity.

       An adverse action is “‘a significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different responsibilities, or a decision

causing significant change in benefits.’” Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)

(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). An employee must

“experience[ ] materially adverse consequences affecting the terms, conditions, or privileges of

employment or future employment opportunities such that a reasonable trier of fact could find

objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002); see also

Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (distinguishing between “purely

subjective injuries” which are not actionable, and “objectively tangible harm,” which is



                                                 6
actionable). Therefore, “not everything that makes an employee unhappy is an actionable

adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). For the purposes of

retaliation claims in particular, an employment action must be “materially adverse, ‘which in this

context means it 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, 1219 (D.C. Cir. 2006) (internal quotation marks

omitted)).

       Plaintiff contends that the following actions constitute “materially adverse actions”

causally connected to a protected activity: (1) Plaintiff was paid less than Mr. Diallo; (2) Plaintiff

was stripped of essential job-related duties; (3) Plaintiff was assigned an inequitable distribution

of work with unrealistic deadlines; (4) Plaintiff was issued a negative performance evaluation

predicated on the disproportionate workload; (5) Plaintiff was denied due process to appeal the

negative performance evaluation; and (6) Plaintiff was constructively demoted. Pl.’s Opp’n, ECF

No. 9, 7. Defendant argues that none of these incidents are actionable adverse actions causally

connected to a protected activity.

       The Court agrees in part and GRANTS Defendant’s motion to dismiss as to Plaintiff’s

claims for (1) being paid less than Mr. Diallo, (2) being denied due process to appeal his

performance evaluation, and (3) being constructively demoted. The Court otherwise DENIES

Defendant’s motion to dismiss Plaintiff’s retaliation claims.

        A. Being paid less than Mr. Diallo

       Plaintiff argues that in April 2014, Defendant hired Mr. Diallo at a starting salary of

$82,357, which was $10,000 higher than what Plaintiff was making at the time. Compl., ECF




                                                  7
No. 1, ¶ 64. Plaintiff contends that Mr. Diallo was given this higher salary based on “his material

misrepresentations of academic credentials.” Id.

        As an initial matter, Defendant argues that this claim is untimely because it occurred

outside the limitations period for Title VII and the DCHRA. Plaintiff counters that the claim is

timely because he only learned about the claim in March 2017 through the discovery process for

his age discrimination lawsuit. Pl.’s Opp’n, ECF No. 9, 9.

        Even if the Court assumes that this claim is timely, being paid less than Mr. Diallo is not

a materially adverse action causally connected to a protected activity. Throughout his Complaint

and his opposition to Defendant’s motion, Plaintiff repeatedly states that Mr. Diallo was paid this

higher salary “based on his material misrepresentations of his academic credentials.” Id. at 9, see

also Compl., ECF No. 1, ¶ 64. The fact that Mr. Diallo may have misrepresented his credentials

to obtain a higher salary fails to establish that Plaintiff was retaliated against.

        Plaintiff does make the conclusory allegation that Mr. Diallo was paid more than Plaintiff

due to Plaintiff’s “prior EEOC activities filed in January 2010, and an on-going discrimination

case arising from those EEOC activities.” Pl.’s Opp’n, ECF No. 9, 6. Plaintiff also contends that

Mr. Diallo and the decision-makers at DOES “were all younger than Plaintiff,” which “provides

proof of intentional retaliatory wage discrimination against Plaintiff on account of age.” Compl.,

ECF No. 1, ¶ 67.

        But, Plaintiff’s claim is premised on the fact that Mr. Diallo received a higher salary than

Plaintiff because Mr. Diallo misrepresented his credentials. Plaintiff never alleges that he himself

was paid less than he otherwise should have been paid based on his own government pay-grade

level. That Mr. Diallo was paid a higher salary due to his allegedly misrepresented credentials




                                                   8
fails to establish that Plaintiff was paid a lower salary due to his participation in protected

activities.

        Accordingly, the Court finds that Plaintiff has failed to state a claim of retaliation based

on being paid less than Mr. Diallo. The Court DISMISSES this retaliation claim.

         B. Removal of job-related duties

        Plaintiff argues that he was stripped of his essential job-related duties in retaliation for

engaging in protected activity. Compl., ECF No. 1, ¶¶ 87-96. Specifically, Plaintiff contends that

he was discharged from producing the 2016 Annual Economic Report despite having produced

the report in the past. Id.

        Defendant contends that being discharged from producing the 2016 Annual Economic

Report is not an adverse action because Plaintiff does not allege that his new assignments were

inferior to his old assignments. Instead, according to Defendant, Plaintiff alleges only that he had

previously been responsible for certain reports but that Mr. Diallo required him to complete other

reports instead.

        At the motion to dismiss stage, the Court is not prepared to find the reassignment of

Plaintiff’s duties was not an adverse action. “Whether a particular reassignment of duties

constitutes an adverse action for purposes of Title VII is generally a jury question. The court may

not take that question away from the jury if a reasonable juror could find that the reassignment

left the plaintiff with significantly diminished responsibilities.” Czekalski v. Peters, 475 F.3d

360, 365 (D.C. Cir. 2007) (internal citation omitted). On this record, it is not yet clear whether or

not Plaintiff will be able to establish that his reassignment of duties resulted in significantly

diminished responsibilities. Accordingly, dismissal of this claim is inappropriate at this time.

        Moreover, the Court finds that Plaintiff has alleged at least a plausible causal connection



                                                   9
between engaging in protected activity and his reassignment of duties. On April 4, 2017, Plaintiff

alleges that he engaged in statutorily protected activity by complaining of retaliatory harassment

to the DOES General Counsel. Compl., ECF No. 1, ¶¶ 73-84. The next day, Plaintiff alleges that

he was removed from the 2016 Annual Economic Report. Id. at ¶ 87. The Court finds that the

proximity in time between the alleged protected activity and the alleged adverse action

establishes a causal connection sufficient to overcome Defendant’s motion to dismiss at this

time. See Holcomb, 433 F.3d at 903 (explaining that a causal connection may be found when the

employer had knowledge of the protected activity and the adverse action took place shortly after

the activity).

        Accordingly, Defendant’s motion is DENIED WITHOUT PREJUDICE as to Plaintiff’s

claim for retaliation based on a withdrawal of job-related duties.

         C. Heavy workload with unrealistic deadlines

        Plaintiff next argues that he was given an increased workload with unrealistic deadlines

in retaliation for engaging in protected activity. Specifically, Plaintiff alleges that he was asked to

conduct a cost-benefit analysis on training programs and services at DOES which was not part of

his job responsibilities. Compl., ECF No. 1, ¶¶ 119-20. Additionally, Plaintiff alleges that he was

required to complete an unnecessary minimum wage study. Id. at ¶ 113. Plaintiff contends that

Mr. Diallo further altered Plaintiff’s required deliverables to create additional work for Plaintiff

by requiring him to produce short-term and long-term industry and occupational projections. Id.

at ¶ 130. Plaintiff contends that “[c]onsidering the heavy workload plaintiff was carrying at the

time, it was objectively unreasonable for [DOES] to require Plaintiff to do any additional

research.” Id. at ¶ 123.




                                                  10
       An excessive workload with unrealistic deadlines can constitute a materially adverse

action. See Mogenhan v. Napolitano, 613 F.3d 1162, 1166-67 (D.C. Cir. 2010) (finding that the

defendant was not entitled to summary judgment where the plaintiff alleged that her workload

had increased to five to six times that of other employees). The United States Court of Appeals

for the District of Columbia Circuit (“D.C. Circuit”) has explained that “[a] reasonable employee

might well be dissuaded from filing an EEO complaint if []he thought [his] employer would

retaliate by burying [him] in work.” Id.; see also Mayers v. Laborers' Health & Safety Fund of N.

Am., 478 F.3d 364, 369 (D.C. Cir. 2007) (explaining that “increas[ing an employee's] workload

and tighten[ing] her deadlines in retaliation for her seeking a reasonable accommodation ... might

suffice to defeat summary judgment on a retaliation claim”).

       But, Defendant argues that Plaintiff has not alleged that his workload was objectively

unreasonable. For instance, Plaintiff never alleged that he was given more work than other

employees at DOES. Rather, Defendant contends that Plaintiff alleged only that he was given an

amount of work which he found to be subjectively unreasonable. According to Defendant,

Plaintiff’s allegations are insufficient to establish a materially adverse action.

       However, on the limited record at this stage, the Court cannot say whether or not

Plaintiff’s additional assignments constituted an objectively unreasonable workload which would

dissuade a reasonable worker from making or supporting a charge of discrimination. Plaintiff has

alleged that he was assigned specific, additional assignments which equated to an excessive

workload in retaliation for his protected activities, such as filing discrimination claims against

Mr. Diallo and DOES. See, e.g., Compl., ECF No. 1, ¶¶ 115, 148. Without further development

of the factual record, the Court cannot say whether or not assigning Plaintiff these additional




                                                  11
responsibilities resulted in the type and magnitude of harm sufficient to constitute an adverse

action.

          Accordingly, Defendant’s motion is DENIED WITHOUT PREJUDICE as to Plaintiff’s

claim of retaliation based on an excessive workload.

           D. Negative performance evaluation

          In his fourth claim for retaliation, Plaintiff argues that he was retaliated against for

engaging in protected activity based on his FY2017 performance evaluation. Plaintiff alleges that

his FY2017 performance evaluation was conducted in an arbitrary and capricious manner.

Compl., ECF No. 1, ¶ 151. In his performance evaluation, Plaintiff was rated a “marginal

performer.” Id. at ¶ 150. Plaintiff contends that the evaluation was based on “bogus claim[s]” and

that it included disparaging remarks. Id. at ¶¶ 154-55. Plaintiff further alleges that the evaluation

is internally inconsistent, suggesting an ulterior motive not related to Plaintiff’s actual work

performance. Id. at ¶ 152.

          Defendant acknowledges that a poor performance review can be an actionable adverse

action. Def.’s Mot., ECF No. 6, 15. But, Defendant argues that Plaintiff has failed to properly

allege that his negative performance evaluation was a materially adverse action because Plaintiff

did not connect the evaluation to his salary or promotion potential. See Patzy v. Hochberg, 266 F.

Supp. 3d 221, 224 (D.D.C. 2017) (“[T]o be considered materially adverse, a poor performance

evaluation generally must affect an employee’s position, grade level salary, or promotional

opportunities.” (internal quotations omitted)). Because Plaintiff failed to connect his poor

performance evaluation to his salary or promotional potential, Defendant asks the Court to

dismiss this claim.




                                                    12
        On this record, it is unclear whether or not Plaintiff’s negative performance review is

linked to his salary or promotional potential. However, the Court notes that Plaintiff alleges that

“[t]he report included disparaging remarks suggesting Plaintiff’s character is severely flawed and

included demeaning terms like irresponsible, lack of inaptitude [sic], lack of flexibility and

adaptability, lack of initiative, carelessness, and general negligence.” Compl., ECF No. 1, ¶ 155.

Character allegations such as general negligence could lead to more tangible forms of adverse

action such as ineligibility for promotion. Absent future development of the factual record, the

Court cannot say that Plaintiff’s negative performance evaluation did not have tangible

employment effects.

        Moreover, the Court notes that Plaintiff has causally connected his negative performance

evaluation to a protected activity. Plaintiff alleges that during his FY2017 performance

evaluation meeting, Mr. Diallo complained about the lawsuits that Plaintiff had filed against

DOES in the past. Compl., ECF No. 1, ¶ 157. At the motion to dismiss stage, this allegation is

sufficient to causally connect the negative performance evaluation to Plaintiff’s protected

activity.

        Accordingly, Defendant’s motion is DENIED WITHOUT PREJUDICE as to this claim

of retaliation based on Plaintiff’s negative performance review.

            E. Delay in appeal of negative performance evaluation

        Fifth, Plaintiff alleges that he faced an adverse action due to his protected activity when

DOES failed to move forward on the appeal of his negative performance evaluation. Plaintiff

alleges that in November 2017 he submitted a “Request for Review of John Kangethe FY2017

Performance Evaluation” to DOES Human Resources Department. Id. at ¶ 161. Plaintiff

contends that, as of this date, he has not had a hearing for the appeal of his negative performance



                                                 13
evaluation. Id. at ¶ 162. Plaintiff argues that the failure to process his appeal is in violation of due

process guaranteed to him by the DC Personnel Manual. Pl.’s Opp’n, ECF No. 9, 13-14.

        The Court concludes that Plaintiff has not alleged a materially adverse action. In his

opposition to Defendant’s motion, Plaintiff explains that DOES has not denied the appeal of his

negative performance evaluation. Id. at 14. Instead, in December 2017 DOES indicated that it

was putting together a committee panel for the appeal, and, since then, Plaintiff has “yet to get

the requested review.” Id. That the appeal process is taking longer than Plaintiff would like is not

the type of act which “might well deter a reasonable employee from complaining about

discrimination.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 69. Instead, this delay is the sort

of “minor annoyance[]” which is an expected part of working life. Id.

        Because Plaintiff’s claim that DOES has delayed the appeal of his negative performance

evaluation is not a materially adverse action, the Court concludes that Plaintiff has failed to state

a claim of retaliation on this ground. Accordingly, this claim is DISMISSED.

         F. Constructive demotion

        Finally, Plaintiff claims that he was “constructively demoted” because of his complaints

about Mr. Diallo’s retaliatory discrimination and harassment. Pl.’s Opp’n, ECF No. 9, 14.

Specifically, Plaintiff alleges that at a December 2017 DOES staff meeting, a DOES official

recognized Mr. Diallo for outstanding service. Compl., ECF No. 1, ¶ 183. Plaintiff further

alleges that the DOES official shortly thereafter distributed a new organizational chart showing

that Mr. Diallo had been assigned to supervise two additional managers. Meanwhile, Plaintiff

had been reassigned to a younger, newly-appointed supervisor. Id. at 184.

        In order to constitute constructive demotion, the change to a plaintiff’s employment must

entail a material change in the plaintiff’s title, duties, salary, benefits, or working hours. See



                                                  14
Medina v. Henderson, No. 98-5471, 1999 WL 325497, at *1 (D.C. Cir. April 30, 1999) (per

curiam); see also Tressler v. Nat’l R.R. Passenger Corp., 819 F. Supp. 2d 1, 5 (D.D.C. 2011)

(finding constructive demotion where plaintiff took a different position for lower pay). Here,

Plaintiff does not allege actions sufficiently material to constitute constructive demotion.

       The fact that Mr. Diallo was praised and was given additional supervisory duties is not a

demotion, constructive or otherwise, of Plaintiff. DOES’s positive treatment of Mr. Diallo has no

impact on Plaintiff’s claims of adverse treatment. Moreover, Plaintiff’s allegation that he was

given a newer, younger supervisor does not constitute constructive demotion. Plaintiff was not

entitled to the supervisor of his choice. See Forkkio v. Powell, 306 F.3d 1127, 1132 (D.C. Cir.

2002) (explaining that the plaintiff was not objectively harmed by being assigned a supervisor

not of the plaintiff’s choice). And, Plaintiff does not allege that the assignment of a new

supervisor had any adverse impact on plaintiff’s title, duties, salary, benefits, or working

conditions.

       Accordingly, the Court concludes that Plaintiff has not stated a claim for retaliation based

on constructive demotion. This claim is DISMISSED.

        G. Summary of Plaintiff’s remaining retaliation claims

       Based on the above analysis, the Court has GRANTED Defendant’s motion and

DISMISSED Plaintiff’s retaliation claims for (1) being paid less than Mr. Diallo, (2) the delay in

Plaintiff’s appeal of his negative performance evaluation, and (3) constructive demotion.

However, the Court has DENIED WITHOUT PREJUDICE Defendant’s motion to dismiss

Plaintiff’s retaliation claims for (1) being stripped of his job-related duties, (2) being assigned an

excessive workload, and (3) Plaintiff’s negative FY2017 performance evaluation. Plaintiff may

proceed with these three retaliation claims.



                                                  15
   2. Hostile Work Environment Claims

       In addition to his retaliation claims, Plaintiff also brings hostile work environment claims

under Title VII and the DCHRA. To state a claim for a hostile work environment, a plaintiff must

allege that the conditions of his workplace were “so objectively offensive as to alter the

conditions of the victim’s employment.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81

(1998) (internal quotation marks omitted). “Conduct that is not severe or pervasive enough to

create an objectively hostile or abusive work environment—an environment that a reasonable

person would find hostile or abusive—is beyond Title VII’s purview.” Id. (internal quotation

marks omitted). Accordingly, “simple teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the terms and conditions of

employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation

marks and citation omitted).

       Defendant presents three arguments for why the Court should dismiss Plaintiff’s hostile

work environment claims. First, Defendant argues that Plaintiff’s Complaint did not identify the

protected status that he believes to have been the target of the allegedly hostile work

environment. It is true that Plaintiff’s Complaint does not identify a protected status for purposes

of his hostile work environment claims. But, in his opposition to Defendant’s motion, Plaintiff

clarifies that “he was subjected to an objectively hostile work environment because of his age.”

Pl.’s Opp’n, ECF No. 9, 17. Because Plaintiff proceeds pro se, the Court must consider

allegations not only in Plaintiff’s Complaint, but also in his opposition to Defendant’s motion.

See Brown, 789 F.3d at 152 (explaining that a court errs if it does not consider allegations in all

of a pro se plaintiff’s pleadings). Accordingly, the Court finds that Plaintiff alleged a protected

class of age and will not dismiss on this ground.



                                                 16
       Second, Defendant argues that the Court should dismiss Plaintiff’s hostile work

environment claims because Plaintiff failed to exhaust the claims. Title VII requires that a person

complaining of a hostile work environment file an administrative charge with the Equal

Employment Opportunity Commission (“EEOC”) and allow the agency time to act on the

charge. 42 U.S.C. § 2000e-5(f)(1); see also Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir.

1995). A lawsuit following the EEOC charge is “limited in scope to claims that are like or

reasonably related to the allegations of the charge and growing out of such allegations.” Park, 71

F.3d at 907 (internal quotations marks omitted). At a minimum, any claims in a plaintiff’s

complaint “must arise from the administrative investigation that can be reasonably expected to

follow the charge of discrimination.” Id. (internal quotation marks omitted).

       Though Plaintiff did not attach his EEOC charge to his Complaint, the Court can consider

Plaintiff’s EEOC charge because Plaintiff’s Complaint refers to his EEOC charge. Compl., ECF

No. 1, ¶¶ 7-8. Accordingly, the Court considers the charge incorporated by reference. See Kruger

v. Cogent Commc’ns, Inc., 174 F. Supp. 3d 75, 85 (D.D.C. 2016) (considering the plaintiff’s

EEOC charge incorporated by reference). Moreover, the Court can take judicial notice of

Plaintiff’s EEOC charge as it is a public document. Id. (explaining that the court could take

judicial notice of the plaintiff’s EEOC charge).

       Here, Plaintiff’s EEOC charge states:

       I am employed by above-named Respondent since on or about January 2002. My job
       classification is Laborer Economist. I believe I have been retaliated against due to my
       prior charge. On or about April 5, 2017, my job duties were removed from [sic] my
       Supervisor, Saikou Diallo as an act of retaliation against me. I believe I was
       discriminated and retaliated against for engaging in protected activity, in violation of the
       Title VII of the Civil Rights Act of 1964 and Age Discrimination Employment Act of
       1967 as amended.




                                                   17
Def.’s Mot., ECF No. 6-3, Ex. 1. Based on the plain terms of Plaintiff’s EEOC charge, Plaintiff

did not make a hostile work environment claim. Instead, Plaintiff alleged only retaliation and

discrimination. Accordingly, if Plaintiff’s hostile work environment claim is not “like or

reasonably related to the allegations of the charge,” Plaintiff did not exhaust his hostile work

environment claim. See Park, 71 F.3d at 907 (internal quotations marks omitted).

       In determining whether or not Plaintiff’s hostile work environment claim is like or

reasonably related to the allegations in Plaintiff’s EEOC charge, the Court considers the D.C.

Circuit’s decision in Park v. Howard University, 71 F.3d 904 (D.C. Cir. 1995). In that case, the

Plaintiff had filed a EEOC charge alleging, in part, that she was discriminated against on the

basis of her Korean national origin when she was passed over for a promotion in favor of an

American. The D.C. Circuit concluded that “[t]he bald statement that ‘[i]t is my belief that I was

denied the opportunity for advancement in my career because of … my national origin’ cannot be

read to encompass a hostile work environment claim.” Park, 71 F.3d at 908. The Court explained

that the goals of prior administrative relief would be frustrated if the filing of a general charge

with the EEOC allowed a plaintiff to challenge any conduct that took place during the

employment relationship. Id.

       Relying on Park, courts within this Circuit have regularly found hostile work

environment claims unexhausted where the plaintiff’s EEOC charge alleged only a discrete act.

See, e.g., Deppner v. Spectrum Health Care Res., Inc., 325 F. Supp. 3d 176, 185 (D.D.C. 2018 )

(finding hostile work environment claim unexhausted where plaintiff’s EEOC charge alleged that

she was terminated on the basis of her national origin); Panarello v. Zinke, 254 F. Supp. 3d 85,

102 (D.D.C. 2017) (finding hostile work environment claim unexhausted where plaintiff

identified only a few discrete acts of alleged discrimination and retaliation); Akridge v. Gallaudet



                                                  18
Univ., 729 F. Supp. 2d 172, 180 (D.D.C. 2010) (finding hostile work environment claim

unexhausted where plaintiff’s EEOC charge alleged only one act of discrimination). In order to

make a claim of a hostile work environment, the plaintiff must show that the “‘workplace is

permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment.’” Vickers v. Powell, 493 F.3d 186,

197 (D.C. Cir. 2007) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, (1993)). Accordingly,

if a plaintiff’s EEOC charge alleges only one discrete act of discrimination or retaliation, the

EEOC charge is insufficient to exhaust the plaintiff’s hostile work environment claim.

       Here, the Court concludes that Plaintiff’s hostile work environment claim is not

reasonably related to the allegations in Plaintiff’s bare and perfunctory EEOC charge. Plaintiff’s

EEOC charge alleges only one discrete act: that DOES discriminated and retaliated against

Plaintiff by having his job duties removed. Def.’s Mot., ECF No. 6-3, Ex. 1. Because “[d]iscrete

acts constituting discrimination or retaliation claims ... are different in kind from a hostile work

environment claim,” which “must be based on severe and pervasive discriminatory intimidation

or insult,” Plaintiff’s EEOC charge alleging only the removal of his job duties cannot reasonably

be transformed into a hostile work environment claim. Lester v. Natsios, 290 F. Supp. 2d 11, 33

(D.D.C. 2003), aff'd, 2004 WL 287128 (D.C. Cir. Feb. 4, 2004). If this bare charge were

sufficient to open the door to Plaintiff’s hostile work environment claim, the purposes behind

prior administrative review would not be served. After all, “[a] court cannot allow liberal

interpretation of an administrative charge to permit a litigant to bypass the Title VII

administrative process.” Park, 71 F.3d at 907. Accordingly, the Court finds that Plaintiff’s hostile

work environment claim is unexhausted.




                                                 19
         Because Plaintiff failed to exhaust his hostile work environment claim, the Court

GRANTS Defendant’s motion and DISMISSES Plaintiff’s Title VII hostile work environment

claim.

         Plaintiff’s hostile work environment claim brought under the DCHRA is DISMISSED for

similar reasons. The DCHRA does not normally require exhaustion. But, there is a statutory

exhaustion requirement for employees of the District of Columbia government. D.C. Code § 2-

1403.03; see Newman v. District of Columbia, 518 A.2d 698, 700 (D.C. 1986) (“For District of

Columbia government employees only, … the Human Rights Act requires the exhaustion of the

available administrative remedies.”). As an employee of DOES, Plaintiff is a District of

Columbia government employee required to exhaust his administrative remedies prior to

bringing a claim under the DCHRA.

         An employee of the District of Columbia government may exhaust his administrative

remedies under the DCHRA by filing a charge with the EEOC. Fowler v. District of Columbia,

122 F. Supp. 2d 37, 41-44 (D.D.C. 2000). Accordingly, the Court looks to Plaintiff’s EEOC

charge to determine whether or not he exhausted his administrative remedies as required under

the DCHRA. As was previously explained, Plaintiff’s EEOC charge did not allege a hostile work

environment, nor did the allegations in the EEOC charge reasonably relate to his hostile work

environment claim. For the same reasons that Plaintiff’s EEOC charge did not exhaust his hostile

work environment claim under Title VII, the charge did not exhaust his hostile work environment

claim under the DCHRA. See Ivey v. District of Columbia, 949 A.2d 607, 615 (D.C. 2008)

(finding plaintiff’s DCHRA claim exhausted because her EEOC charge “alleged all the facts

necessary to make out [her] claim under the DCHRA”).




                                                 20
       Accordingly, the Court GRANTS Defendant’s motion and DISMISSES Plaintiff’s

DCHRA hostile work environment claim.

       Because the Court has already determined that Plaintiff’s Title VII and DCHRA hostile

work environment claims are dismissed as unexhausted, the Court need not address Defendant’s

final argument that Plaintiff failed to allege conduct severe or pervasive enough to constitute a

hostile work environment.

   3. Negligent Hiring/Retention Claim

       Finally, Plaintiff brings a claim for the negligent hiring and retention of Mr. Diallo. In

order to establish a claim of negligent hiring or retention, a plaintiff must show that “the

employer knew or should have known its employee behaved in a dangerous or otherwise

incompetent manner, and that the employer, armed with that actual or constructive knowledge

failed to adequately supervise the employee.” Blair v. District of Columbia, 190 A.3d 212, 229

(D.C. 2018) (internal quotation marks omitted).

       Plaintiff contends that, as early as April 2014, DOES officials knew that Mr. Diallo had

falsified his academic and employment credentials. Compl., ECF No. 1, ¶ 194. Additionally,

Plaintiff alleges that DOES officials knew of “Mr. Diallo’s proclivity for retaliatory harassment

against Plaintiff.” Id. at ¶ 196. Despite this knowledge, DOES continued to retain Mr. Diallo and

allowed him to supervise Plaintiff. Accordingly, Plaintiff alleges that Defendant is liable for the

negligent hiring and retention of Mr. Diallo.

       Defendant argues that Plaintiff’s common-law tort claim for negligent hiring and

retention should be dismissed as preempted by the District of Columbia Comprehensive Merit

Personnel Act of 1978 (“CMPA”). See D.C. Code §§ 1-601.1-1-636.03. The CMPA “provides[s]

District employees with their exclusive remedies for claims arising out of employer conduct in



                                                 21
handling personnel ratings, employee grievance, and adverse action.” District of Columbia v.

Thompson, 593 A.2d 621, 635 (D.C. 1991) (emphasis added). The CMPA preempts “nearly all

employee claims arising out of workplace activity.” See Robinson v. District of Columbia, 748

A.2d 409, 411 (D.C. 2000). As Plaintiff’s claim arises from workplace personnel and grievance

issues, the Court agrees with Defendant and concludes that the CMPA preempts Plaintiff’s claim

for negligent hiring and retention.

       Plaintiff’s claim is based on DOES’s decision to hire and retain Mr. Diallo despite

alleged academic misrepresentations and despite allegations of retaliation and harassment.

Compl., ECF No. 1, ¶¶ 194, 196. These matters fall within the provisions for personnel actions,

grievances, and adverse actions covered by the CMPA. See D.C. Code § 1-603.01(10) (defining

“grievance’ as “any matter under the control of the District government which impairs or

adversely affects the interest, concern, or welfare of employees”). For example, in District of

Columbia v. Thompson, 593 A.2d 621 (D.C. 1991), the District of Columbia Court of Appeals

dismissed as preempted by the CMPA the plaintiff’s claims for defamation and intentional

infliction of emotional distress arising out of disputes with her supervisor about criticisms of her

performance, denials of leave, and a refusal to promote. Thompson, 593 A.2d at 635. But, the

Thompson Court concluded that the plaintiff’s claims for assault and battery were not preempted

by the CMPA because they were not personnel actions. Id. Accordingly, because the Court finds

that Plaintiff’s claim involves personnel issues, employee grievances, and adverse actions,

Plaintiff’s claim is preempted by the CMPA. See Wise v. District of Columbia, No. 03-310, 2005

WL 818622, at *5 (D.D.C. April 8, 2005) (finding plaintiff’s claims for intentional infliction of

emotional distress preempted by the CMPA where plaintiff alleged superiors retaliated against

him for reporting illegal conduct).



                                                 22
       Despite the CMPA, Plaintiff argues that this Court can proceed with his negligent hiring

and retention claim because “Plaintiff properly presented the tort claims to the D.C. Office of

risk Management … when on September 17, 2017, Plaintiff submitted an ‘Advanced Notice to

the District of Columbia Mayor,’ through the Office of Risk Management (ORM) for tort claims

of negligent hire, retention, and supervision.” Pl.’s Opp’n, ECF No. 9, 21 (citing Compl., ECF

No. 1, ¶ 43). But, regardless of whether or not Plaintiff provided timely notice of his claim, the

CMPA’s remedial scheme precludes Plaintiff from bringing a civil action in this Court for this

claim. Accordingly, this Court cannot hear Plaintiff’s claim.

       Because the Court has found that Plaintiff’s negligent hiring and retention claim is

preempted by the CMPA, the Court need not address Defendant’s second argument that

Plaintiff’s allegations fall short of the standard for common-law negligent hiring and retention

claims. Based on the above analysis, the Court GRANTS Defendant’s motion and DISMISSES

Plaintiff’s negligent hiring and retention claim.

                               IV. CONCLUSION AND ORDER

       For the foregoing reasons, it is hereby ORDERED that Defendant’s [6] Motion to

Dismiss is GRANTED IN PART and DENIED IN PART.

       It is further ORDERED that Defendant’s Motion is GRANTED and Plaintiff’s retaliation

claims are DISMISSED insofar as they rely on (1) Plaintiff being paid less than Mr. Diallo, (2)

the delay in Plaintiff’s appeal of his negative performance evaluation, and (3) Plaintiff’s

constructive demotion.

       It is further ORDERED that Defendant’s Motion is GRANTED and Plaintiff’s hostile

work environment claims are DISMISSED.




                                                    23
         It is further ORDERED that Defendant’s Motion is GRANTED and Plaintiff’s negligent

hiring and retention claim is DISMISSED.

         It is further ORDERED that Defendant’s Motion is DENIED in all other respects.

Specifically, Plaintiff can proceed with retaliation claims for (1) being stripped of his job-related

duties, (2) being assigned an excessive workload, and (3) being given a negative performance

evaluation.

         It is further ORDERED that Plaintiff shall file an Amended Complaint presenting only

those claims which are permitted to proceed by no later than FEBRUARY 15, 2019. And,

Defendant shall file a response to Plaintiff’s Amended Complaint by no later than MARCH 15,

2019.2

         It is further ORDERED that the clerk of the Court shall mail a copy of this Memorandum

Opinion and Order to Plaintiff at his address of record.

Dated: January 18, 2019
                                                         /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




2
  Plaintiff’s Amended Complaint should not contain his dismissed claims or the factual
allegations related to those dismissed claims. Plaintiff’s objections to the dismissal of his claims
will still be preserved for appellate review should Plaintiff so choose.

                                                 24
