                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
MARGARET D. NEWTON,                  )
                                     )
      Plaintiff,                     )
                                     )
      v.                             )      Civil Action No. 11–2302
                                     )
OFFICE OF THE ARCHITECT OF           )
THE CAPITOL,                         )
                                     )
      Defendant.                     )
____________________________________ )


                                MEMORANDUM OPINION


I.     INTRODUCTION

       Before the Court is defendant’s Motion to Dismiss or for Summary Judgment. July 30,

2012, ECF No. 6. Upon consideration of defendant’s motion, plaintiff’s opposition, ECF No. 13,

defendant’s reply, ECF No. 16, applicable law, and the record in this case, this Court will

GRANT defendant’s motion to dismiss and will dismiss plaintiff’s claims with prejudice.

II.    BACKGROUND

       This is the third case filed by plaintiff Margaret Newton against her employer, the Office

of the Architect of the Capitol (“OAC”), for employment discrimination and related offenses

under the Congressional Accountability Act (“CAA”), 2 U.S.C. §§ 1311 & 1317. See Newton v.

Office of the Architect of the Capitol (“Newton I”), 840 F. Supp. 2d 384 (2012) (granting

summary judgment in favor of defendant OAC on discrimination, hostile work environment and

retaliation claims); Newton v. Office of the Architect of the Capitol (“Newton II”), 839 F. Supp.

2d 112 (2012) (dismissing later-filed retaliation and hostile work environment claims). The
Court presented a more detailed background in its Newton I opinion, see 840 F. Supp. 2d at 388–

90, and will now review only the facts relevant to this action.

         Ms. Newton, an African-American, works as a Human Resources Specialist in the

Employee Benefits & Services Branch of the OAC’s Human Resources and Management

Division (“HRMD”). Compl. ¶ 3, ECF No. 1. This suit is based on events that occurred

between April and August of 2011. During this period, two employment discrimination suits

were pending in this Court that Ms. Newton had filed against her employer. Newton I, 840 F.

Supp. 2d 384 (complaint filed August 18, 2009; case decided March 12, 2012); Newton II, 839 F.

Supp. 2d 112 (complaint filed September 14, 2010; case decided March 14, 2012).

         In April 2011, Mary Yates, Ms. Newton’s first line supervisor and Chief of the Employee

Benefits and Services Branch, asked Ms. Newton to submit for review two retirement cases she

had completed as part of her duties. Compl. ¶¶ 14 & 16; Pl.’s Opp’n at 5. Ms. Newton

subsequently learned that a lawyer representing the OAC in the pending Newton cases had

communicated with Yates about reviewing her work. Compl. ¶ 17; Pl.’s Opp’n at 2 & 6.

         In June 2011, Lisa Maltbie was appointed as acting branch chief while Ms. Yates was on

leave.    Compl. ¶ 20.          Ms. Maltbie referred retirement inquiries from some “disgruntled

employees” to Ms. Newton—a retirement specialist. Compl. ¶ 23; Pl.’s Opp’n at 7.

         In July 2011, Ms. Newton attended a meeting with Ms. Yates and Robert Wied, her

second line supervisor, in which they confronted her with allegations regarding her deficient

performance based on customer complaints. See id. ¶ 27; Def.’s Br. at 2–3. After this meeting,

Ms. Newton received a letter of counseling. Compl. ¶¶ 25–26; Pl.’s Opp’n at 7. 1



1
 Ms. Newton’s Complaint also cites an August 2011 letter of counseling, see Compl. ¶ 35. However, OAC pointed
out that there was no written record of such a letter. See Def.’s Br. at 3 n.2. In her opposition brief, Ms. Newton
continues to assert that she received such a letter, Pl.’s Opp’n at 9, but in her declaration filed with that brief, she
actually acknowledges that she received no such letter. See Pl.’s Opp’n to Def.’s Statement of Material Facts Not in
                                                           2
III.    LEGAL STANDARD

        A motion to dismiss is appropriate when the complaint fails “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). Such a failure occurs when the complaint is so

factually deficient that the plaintiff’s claim for relief is not plausible on its face. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). A court must accept all factual statements made by the

non-moving party as true when deciding a Rule 12(b)(6) motion to dismiss. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). However, conclusory legal allegations devoid of any factual support

do not enjoy the same assumption of truth. Id. at 679. “Factual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

IV.     ANALYSIS

        Ms. Newton raises retaliation claims under 2 U.S.C. § 1317 based on three incidents: (1)

the request by Ms. Yates that she submit two cases; (2) Ms. Maltbie’s referring of “disgruntled

employees” with retirement inquiries to Ms. Newton; and (3) the July 2011 letter of counseling.

She also asserts that this chain of events created a hostile work environment in violation of 2

U.S.C. §§ 1302 & 1311.

        Finally, Ms. Newton also argues that courts have systematically erred by referring to

Title VII judicial caselaw rather than the decisions of the Office of Compliance Board 2 when

ruling on discrimination and retaliation claims brought under the CAA. Pl.’s Opp’n at 11–18.



Dispute at 8, Oct. 10, 2012, ECF No. 13. Accordingly, the Court takes this assertion as withdrawn and will not
address it further.
2
  The Office of Compliance is the administrative body charged, among other responsibilities, with hearing
complaints brought by Congressional employees under the various federal statutes made applicable to Congressional
employers under the CAA. After completing the first two preliminary steps—counseling and mediation—an
employee may elect to pursue his complaint either in federal court or administratively through the Office of
Compliance. 2 U.S.C. § 1404. The employee may appeal an administrative decision to the Office of Compliance
Board, and then to the Federal Circuit. § 1407(a). The D.C. Circuit explained that the CAA
        extended the protections of Title VII of the Civil Rights Act of 1964, as well as ten other remedial
        federal statutes, to employees of the legislative branch. In Subchapter IV Congress specified a
        three-step process that requires counseling and mediation before an employee may file a complaint
                                                         3
        These arguments all fail. The Court will consider each in turn.

        A. Applicability of Title VII Caselaw to CAA Discrimination and Retaliation Cases

        Ms. Newton argues that her hostile work environment and retaliation claims should be

governed by principles outlined in Office of Compliance Board rulings rather than judicial

interpretations of Title VII. Pl.’s Opp’n at 11-17.

        Ms. Newton has not identified any case in support of this theory, and precedent weighs

against her.     Courts have consistently relied on judicial interpretations of Title VII when

addressing the substance 3 of employment discrimination, hostile work environment, and

retaliation claims brought under the CAA. See, e.g., Blackmon-Malloy v. U.S. Capitol Police

Bd., 575 F.3d 699, 706 (D.C. Cir. 2009) (“The CAA incorporates much of Title VII’s substantive

law, but it establishes its own comprehensive administrative regime—including jurisdictional

provisions.”); Brady v. Office of Sergeant at Arms, 520 F.3d 490, 492 (D.C. Cir. 2008) (noting

that Title VII “applies to offices in the Legislative Branch as a result of the Congressional

Accountability Act” and analyzing CAA discrimination and hostile work environment claims as

Title VII claims); Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 15 (D.C. Cir. 2006)

(presuming that Title VII principles apply to retaliation under the CAA); Moran v. U.S. Capitol

Police Bd., 2012 WL 3561420 at *4 (D.D.C. Aug. 20, 2012) (“Although the CAA contains its

own retaliation provision, courts refer to the body of case law regarding discrimination under

Title VII to evaluate claims of retaliation under the CAA.”); Herbert v. Office of the Architect of

the Capitol, 839 F. Supp. 2d 284, 291 n.2 (D.D.C. 2012) (noting that discrimination and

        seeking administrative or judicial relief. However, rather than use the pre-complaint regimes in
        place for other federal employees, Congress created an Office of Compliance and vested it with
        broad responsibility for counseling and mediation and adoption of rules of procedure.
Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 701 (D.C. Cir. 2009).
3
 The contrast here is between the substance or merits of the discrimination or retaliation claim, which the CAA
borrows from Title VII, with jurisdictional counseling and mediation requirements, which are specific to the CAA.
See Blackmon-Malloy, 575 F.3d at 706.
                                                        4
retaliation “[c]laims brought under the CAA are analyzed under Title VII’s familiar framework

and standards. . . . Although the CAA includes its own anti-retaliation provision . . . courts

routinely rely upon Title VII case law when evaluating whether a challenged employment action

is sufficiently adverse under the CAA’s anti-retaliation provision.”); Hollabaugh v. Office of the

Architect of the Capitol, 847 F. Supp. 2d 57, 66 (D.D.C. 2012) (“Claims arising under Section

1317 are analyzed under the framework and standards governing Title VII’s anti-retaliation

provision.”).

       Even setting aside the weight of precedent, Ms. Newton’s argument also fails as a matter

of statutory interpretation. First, the CAA provisions incorporating Title VII and prohibiting

retaliatory conduct do so without reserving any deference to the decisions of the Board. See 2

U.S.C. §§ 1302, 1311 & 1317. Second, the statute suggests judicial, not Board, primacy by

providing that courts, rather than the Board, shall (if necessary) have the final word on all

complaints. An aggrieved employee may, after completing the counseling and mediation steps,

choose to bring a complaint either administratively through the Office of Compliance, or in U.S.

District Court, see § 1404, but administrative decisions are ultimately appealable to the Federal

Circuit. § 1407(a)(1). Even within the administrative review process, the statute expressly

endorses judicial primacy; hearing officers in those cases are to be “guided by judicial decisions

under the laws made applicable by section 1302 of this title [i.e. Title VII] and by Board

decisions under this chapter”—Board decisions which are themselves ultimately subject to

judicial review. See 2 U.S.C. §§ 1302 & 1407(a)(1) (emphasis added). Third, the CAA does not

give the Board any power to issue regulations defining the substance of employees’ Title VII and

retaliation based claims; while the Board may promulgate regulations to implement other

incorporated statutes, such as the Family and Medical Leave Act, See § 1312(d), and the Fair



                                                5
Labor Standards Act, see § 1312(b), there is no equivalent provision authorizing such regulations

under Title VII. 4

           Accordingly, this Court will not look to Office of Compliance Board rulings to decide

whether Ms. Newton’s CAA retaliation and hostile work environment claims survive this Motion

to Dismiss, but will instead rely on the CAA, caselaw interpreting that statute, and caselaw

interpreting Title VII. 5

           B. Retaliation Claims

           CAA retaliation claims under 2 U.S.C. § 1317 are analyzed under the same standards as

Title VII retaliation claims. See Herbert, 839 F. Supp. 2d at 291 n.2. Thus, to state a prima facie

case, Newton must plausibly allege that “(1) [she] engaged in statutorily protected activity; (2)

[she] suffered a materially adverse action by her employer; and (3) that a causal link connects to

two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). A “materially adverse” action is a

“significant change in employment status.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir.

2009). An action only qualifies as “materially adverse” if it could conceivably dissuade a

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

Fe Ry. Co. v. White, 548 U.S. 53, 70 (2006); 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). Under these standards, “not everything that makes

an employee unhappy is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818

(D.C. Cir. 2001).




4
  Moreover, as defendants point out, the Office of Compliance’s own manual states that the Board “has not adopted
regulations on Title VII rights and protections. However, employing offices and covered employees may find it
helpful to refer to court decisions interpreting Title VII.” See Def. Ex. 1 at 2–A–1.
5
    Nothing here should be taken as suggesting that this would make any difference for Ms. Newton’s case.
                                                          6
       In Baloch v. Kempthorne, 550 F.3d 1191, 1199 (2008), the D.C. Circuit held that an

employer issuing “a letter of counseling, letter of reprimand, and unsatisfactory performance

review” containing “job-related constructive criticism” could not itself rise to the level of a

materially adverse action necessary to sustain a claim of unlawful retaliation. The Circuit also

held that sick leave restrictions did not constitute a “materially adverse” action where the

restrictions had never actually affected the plaintiff, id. at 1198, nor did a proposed suspension

that was never imposed, id. at 1199.

               1. April 2011 — Yates’ Request

       Ms. Newton argues that she suffered illegal retaliation when her supervisor, Ms. Yates,

allegedly acting on behalf of the lawyer representing her employer in one of her pending cases,

requested that she submit two samples of her work for review. Compl. ¶¶ 14–17. She has not

alleged any harm or change to her employment status as a result of this request, but rather

appears to suggest that the request itself constitutes a materially adverse action.

       A supervisor’s request to examine the workproduct of an employee, without more, cannot

itself constitute a “materially adverse” action—if it did, any manager’s authority to review a

subordinate’s workproduct would essentially disappear once the employee engaged in a

protected activity. See Zelaya v. UNICCO Serv. Co., 733 F. Supp. 2d 121, 131 (D.D.C. 2010)

(concluding that mere monitoring did not constitute a materially adverse action). Here, the

nature of the request makes it an especially unlikely candidate for material adversity: Ms. Yates’

request allowed Ms. Newton to choose which of her completed cases to present for review. This

kind of request would not dissuade a reasonable worker from making or supporting a charge of

discrimination and thus may not form the basis of a retaliation claim. See White, 548 U.S. at 70.

And, even if there were some potential for the request to lead towards some actionable harm, Ms.

Newton has not alleged that she suffered any such harm—or any other consequences from the
                                                  7
request. Cf. Baloch, 550 F.3d at 1198-99. Accordingly, this portion of her retaliation claim fails

for want of material adversity.

               2. June 2011—Maltbie Reference of Disgruntled Employees

       Ms. Newton argues that she suffered illegal retaliation when her interim supervisor, Ms.

Maltbie, referred “disgruntled” employees with retirement inquiries to her. Compl. ¶ 23.

       Ms. Newton worked in the retirement area, and fails to explain how these references of

additional retirement cases could constitute a “significant change in employment status.” See

Douglas, 559 F.3d at 552. Her supervisor’s directing of unpleasant customers in her direction

may have made Ms. Newton unhappy or annoyed, but does not count as an “adverse

employment action.” As the Supreme Court noted, Title VII does “not set forth a general civility

code for the American workplace.” White, 548 U.S. at 68 (internal quotations and citations

omitted). At most, this action amounts to a disagreement in management style and not the basis

of a CAA retaliation claim. See Douglass, 559 F.3d at 552.

               3. July 2011—Letter of Counseling

       Finally, Ms. Newton alleges that the July 2011 letter of counseling she received was

illegal retaliation. Compl. ¶¶ 25–26. The letter was based on a prior meeting between Ms.

Newton and her supervisors in which they discussed several customer service complaints against

Ms. Newton.

       Ms. Newton does not allege any harm that resulted from this letter, but rather appears to

insist that the letter itself constitutes a materially adverse action. However, the D.C. Circuit has

held that “letter[s] of counseling” based on unsatisfactory performance and offering “job-related

constructive criticism” are not themselves “materially adverse.” Baloch, 550 at 1199.

Accordingly, this claim also fails.

       In sum, all three of Ms. Newton’s retaliation claims fail for lack of material adversity.
                                                 8
          C. Hostile Work Environment Claim

          Hostile work environment claims brought under the CAA are also analyzed under the

principles of Title VII. See, e.g., Brady v. Livingood, 456 F. Supp. 2d 1, 9 (D.D.C. 2006), aff’d

sub nom. Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008). A workplace

becomes “hostile” for the purposes of Title VII only “[w]hen 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 and create an abusive working environment.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993). “[C]onduct must be extreme to amount to a change in

the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998).

          Ms. Newton’s allegations do not meet this standard. She has alleged that her supervisors

requested samples of her work, referred some difficult cases for her attention, and issued a letter

of counseling. These allegations do not come close to portraying a workplace that is “permeated

with discriminatory intimidation, ridicule and insult,” nor do they effectively amount to a

“change in the terms and conditions of employment.” See Harris, 510 U.S. at 21; Faragher, 524

U.S. at 788. Accordingly, Ms. Newton has not stated a prima facie case of a hostile work

environment.

V.        CONCLUSION

          For the foregoing reasons, the defendant’s motion to dismiss is GRANTED, and

plaintiff’s claims are DISMISSED with prejudice. A separate order consistent with this Opinion

shall issue on this date.

          Signed by Royce C. Lamberth, Chief Judge, on November 21, 2012.




                                                  9
