                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

 OLGA HERNANDEZ,                                 )
                                                 )
                       Plaintiff,                )
                                                 )
                v.                               )      Civil Case No. 08-1716 (RJL)
                                                 )
                                                 )
 CARLOS M. GUTIERREZ, Secretary,                 )
 U.S. Department of Commerce,                    )
                                                 )
                       Defendant.                )
                                                 )
                                                ric--
                                MEMORANDUM OPINION
                               (September J!/-, 2009) [#9, #10]

       Plaintiff Olga Hernandez ("Hernandez") alleges her former employer, the

Secretary of Commerce (the "Secretary" or the "agency"), discriminated against her based

on her sex, national origin, and in retaliation for asserting her discrimination claims.

Before the Court is the Secretary's Motion to Dismiss in part and Motion for Summary

Judgment in part addressing certain allegations by Hernandez of disparate treatment and

hostile work environment. I For the following reasons, the Court GRANTS the

Secretary's motion.


IThe agency does not argue that the Court should dismiss Hernandez's claims in total or that the
agency should be awarded summary judgment for all of Hernandez's claims. (See Mem in
Support of Def.'s Mot. to Dismiss in Part for Summ. J. in Part ("Def.'s Mem.") [Dkt. #9] at 3.)
Therefore, this Court's ruling is confined to the agency's motion to dismiss Hernandez's
unexhausted retaliation claim on the basis of her non-selection for three patent examiner
positions and the agency's motion for summary judgment based on hostile work environment on
the basis of sex. At this time, the Court expresses no opinion on any of Hemandez's claims that
may remain pending.
                                         BACKGROUND

       Hernandez, a hispanic female from Puerto Rico, worked as an engineer for the

Department of Commerce from May 2006 until she was fired in April 2007. (PI.'s Opp'n

to Def.'s Mot. to Dismiss in Part and Mot. for Summ. J. in Part ("PI.'s Opp'n") [Dkt.

# 13] ~ 2.) In 2006, Hernandez contacted the agency's Office of Civil Rights to raise

certain concerns of workplace harassment. (Id. ~ Sf

       Hernandez filed a formal administrative complaint, however, in February 2007

alleging the agency subjected her to a hostile work environment based on her sex and

national origin and in retaliation for having reported discrimination against her. (See

generally PI.' sEx. 1 [Dkt. # 13-14].) Indeed, Hernandez alleged a variety of actions in

support of her claim, including her co-workers' drinking alcohol at lunch, making

comments about each other's appearances, talking with her about sex, and even alleging

that one of her co-workers would touch his genitals while talking to her. (PI. 's Opp'n ~ 6

(quoting administrative complaint).) In April 2007, the agency terminated Hernandez's

employment, (id.   ~   8), and she amended her agency complaint thereafter to add a claim

for her termination, (id.   ~   9-10).

       In October 2008, Hernandez filed her suit in this Court, alleging discrimination

based on national origin, sexual harassment, and retaliation. She raised the same


2Due to her previous government employment as a patent examiner for the u.s. Patent and
Trademark Office, Hernandez was hired in a nonprobationary status when she began working as
an engineer for the agency. After she contacted the office, her status was changed from
nonprobationary to probationary. (First Am. CompI. [Dkt. #8] ~~ 7-10.)

                                               2
allegations as she had at the administrative level, and also raised additional allegations

she failed to raise earlier. She alleged that when she was interviewed for the engineer

position, "she was asked why she was not working at Indian Head since there were a lot

of Puerto Rican people working there." (Compi. [Dkt. #1]        ~   11.) She also claimed that

her "co-workers made fun of her accent." (Jd.     ~   12.) Additionally, she claimed her

supervisor gave her a low performance rating, lied to her about her failure to receive a

cash award, failed to take her to a seminar, and failed to explain and reevaluate her

performance review. (Jd.   ~~   25-29.) One month later, Hernandez applied for three other

positions. She was not selected for these patent examiner positions either, and she asserts

the agency told her it was because of her "unique situation." (First Am. Compi.       ~~


52-53.) As a result, Hernandez filed an amended complaint in this Court, but did not

pursue her administrative remedies as to this retaliation claim based on her non-selection.

(PI. 's Opp'n at 12.) The agency now moves to dismiss this claim.

                                         ANALYSIS

       In reviewing the agency's Motion to Dismiss in part and for Partial Summary

Judgment, the Court accepts Hernandez's factual allegations as true and draws all

reasonable inferences in her favor. See Broudy v. Mather, 460 F.3d 106, 116 (D.C. Cir.

2006) (stating standard for motion to dismiss); Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587-88 (1986) (stating standard for summary judgment).




                                              3
       The agency's motion, however, is entitled to be granted as to any claims

Hernandez failed to exhaust. Murphy v. Schafer, 579 F. Supp. 2d 110, 114-15 (D.D.C.

2008). Additionally, the agency is entitled to summary judgment for Hernandez's hostile

work environment claim when "the pleadings, the discovery and disclosure materials on

file, and any affidavits show there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter oflaw." Fed R. Civ. P. 56(c); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). For the following reasons, the Court

concludes: (1) that Hernandez failed to exhaust her administrative remedies regarding the

three patent examiner positions for which she applied and (2) that Hernandez failed to

meet the threshold level necessary to sustain a hostile work environment claim.

I.     Administrative Exhaustion

       Federal employees and applicants for employment are required to bring their

claims to their employer, or prospective employer, before filing suit in court. 42 U.S.C. §

2000e-16( c) (permitting court action only after the agency has been given an opportunity

to address the claim); West v. Gibson, 527 U.S. 212, 218-19 (1999). "The administrative

charge requirement serves the important purposes of giving the charged party notice of

the claim and narrowing the issues for prompt adjudication and decision." Park v.

Howard Univ., 71 F.3d 904,907 (D.C. Cir. 1995) (internal quotation and alteration

omitted). Exhaustion thus "give[s] federal agencies an opportunity to handle matters

internally whenever possible and ... ensure [s] that the federal courts are burdened only


                                              4
when necessary." Brown v. Marsh, 777 F2d 8, 14 (D.C. Cir. 1985). Here the agency

moves to dismiss Hernandez's unexhausted claims and allegations-specifically, her

claim of retaliation based on her non-selection for three patent examiner positions that she

raised for the first time in her amended complaint and the additional allegations,3 detailed

above, that she failed to raise at the appropriate time at the administrative level.

       First, with regard to her retaliation claim, Hernandez does not dispute that she

failed to exhaust her administrative remedies in furtherance of these claims, but instead

argues that she is not required to exhaust her administrative remedies for claims that

occur after the filing of her administrative complaint. (See Pl.'s Opp'n at 12.) I disagree.

       In 2002, the Supreme Court limited the continuing violations doctrine, on which

Hernandez implicitly relies. National Railroad Passenger Corporation v. Morgan, 536

U.S. 101 (2002). In National Railroad Passenger Corporation v. Morgan, the Court

specifically "rejected the so-called continuing violation doctrines that allowed plaintiffs to

recover for discrete acts of discrimination or retaliation that had not been separately

exhausted but were 'sufficiently related' to a properly exhausted claim." Romero-



3As for Hernandez's supplementary allegations that employees of the agency commented on her
national origin and accent, her co-workers drank alcoholic beverages and made inappropriate
comments, and her supervisor failed to take her to a seminar and denied her additional training,
Hernandez argues she alleged some of these allegations generally in the administrative process,
that others should be considered as background evidence. Others still she says should form the
basis of a hostile work environment claim for which the continuing violations doctrine still
applies. (Pl.'s Opp'n at 13-14.) Given this Court's ultimate conclusion, addressed below,
that-even considering these allegations-Hernandez has failed to plead facts sufficient to
establish a hostile work environment claim, this Court declines to address whether these
allegations were exhausted and whether exhaustion was required.

                                                5
Ostolaza, 370 F. Supp. 2d at 148 (quoting Morgan, 536 U.S. at 105). Indeed, in 2004, in

granting a motion to dismiss, I addressed the Morgan decision noting that "'each incident

of discrimination and each retaliatory adverse employment decision constitutes a separate

actionable unlawful employment practice' for which an administrative charge must be

filed." Murphy v. PriceWaterhouseCoopers, LLP, 357 F. Supp. 2d 230,239 (D.D.C.

2004) (quoting Morgan, 536 U.S. at 1l3); see also Brady v. Livingood, 360 F. Supp. 2d

94, 102 ("[T]he Supreme Court has subsequently held in the Title VII context that

'discrete discriminatory acts,' such as terminations and failure to promote, are not

actionable if time-barred, even when they are related to acts alleged in timely filed

charges.").

       While Morgan itself only addressed recovery for "discrete acts occurring before

the statutory time period," many courts have since interpreted it "to also bar discrete acts

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

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

these acts for the first time in federal court." Romero-Ostolaza, 370 F. Supp. 2d at 149

(emphasis added).4


4See also Adams v. Mineta, 2006 WL 367895 at *4 (D.D.C. Feb 16,2006)
("However, following Morgan, which emphasized the need for 'strict adherence to the
procedural requirements' of Title VII, some courts have begun to question whether the pre-
Morgan judicially created exception to the exhaustion doctrine for retaliation claims remains
good law. Those Courts that have squarely addressed this issue have concluded that it is not, and
this Court agrees."); Bowie v. Ashcroft, 283 F. Supp. 2d 25, 34 (D.D.C. 2003) ("Given
[Morgan's] clear directive, prior cases allowing plaintiffs to file subsequent, similar claims for
the first time in federal court simply do not survive Morgan.").

                                                6
       To date, Circuit Courts and judges within this District are split on how broadly to

construe the Morgan holding. s Nevertheless, I join with the majority of judges in this

District who interpret Morgan to bar a plaintiff from proceeding with non-exhausted

claims of discrete acts regardless of whether they occurred after the filing of an

administrative complaint and regardless of whether they are sufficiently related to

exhausted claims. See Randv. Geithner, 609 F. Supp. 2d 97,101 (D.D.C. 2009); More v.

Snow, 480 F. Supp. 2d 257,269-70 (D.D.C. 2007); Romero-Ostolaza v, 370 F. Supp. 2d

at 149; Adams v. Mineta, 2006 WL 367895 at *3-5 (D.D.C. Feb 16,2006);

Coleman-Adebayo v. Leavitt, 326 F. Supp. 2d 132, 138 (D.D.C. 2004). This approach, at

a minimum, seems more consistent with the spirit of the Morgan decision.

       Thus, the issue here is whether Hernandez's post-complaint allegations concerning

her non-selection constitute the type of discrete incidents of discrimination that require

administrative exhaustion as "unlawful employment practice[s]." Murphy, 357 F. Supp.

2d at 239; see also Rand, 609 F. Supp. 2d at 101 ("After Morgan, to determine whether a

claim must meet the procedural hurdles of the exhaustion requirement itself, or whether it




5See Weber v. Battista, 494 F. 3d 179, 183 (D.C. Cir. 2007) (noting Circuits are split as to
whether plaintiffs must exhaust additional claims of retaliation after the filing of an
administrative complaint and declining to address the issue); Lewis v. District of Columbia, 535
F. Supp. 2d 1,8 (D.D.C. 2008) (applying a narrow reading of Morgan and noting that under it,
"the court must consider whether an investigation arising from the plaintiff's EEOC complaint
would encompass the [non-exhausted claims]"); Hazel v. Washington Area Metro. Area Transit
Auth., 02-1375, 2006 WL 3623693 * 8 (D.D.C. Dec. 4, 2006) (finding "[i]t would be no surprise
ifthe D.C. Circuit adopted" a narrow reading of Morgan and holding "no exhaustion separate
and apart from [the plaintiff's] initial charge [was] required").

                                               7
can piggy-back on another claim that has satisfied those requirements ... , the Court must

decide whether the otherwise barred claim is for a 'discrete act' of discrimination."). Of

course they do. The Supreme Court itself in Morgan concluded that "termination, failure

to promote, denial of transfer, [and] refusal to hire," constitute discrete incidents. 536

U.S. at 114; Murphy, 357 F. Supp. 2d at 239. Thus, Hernandez's non-selection for the

patent examiner positions required her to exhaust her administrative remedies, and her

failure to do so warrants dismissal of these claims.

II.    Hostile Work Environment Claim

       Finally, in determining whether a work environment is a hostile work environment,

courts consider: "the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee's work performance." Faragher v. Boca

Raton, 524 U.S. 775, 777-78 (1998) (internal quotations omitted). The Supreme Court

has emphasized that the "standards for judging hostility are sufficiently demanding in

order to ensure that Title VII does not become a general civility code." Id. at 787 (internal

quotation omitted). Furthermore, "[a] hostile work environment under Title VII must be

based on [at least] 'one unlawful employment practice' of pervasive, insulting,

discriminatory conduct that makes the plaintiffs day-to-day work environment severely

'abusive.' Therefore, cobbling together a number of distinct, disparate acts will not [be

enough to] create a hostile work environment." Brantley v. Kempthorne, No. 06-1137,


                                              8
2008 WL 2073913, *8 (D.D.C. May 13,2008) (quoting and citing Morgan, 536 U.S. at

118). Unfortunately that is exactly what Hernandez is doing here.

       Hernandez's allegations involve numerous, unrelated instances over the five-

month course of her employment that her co-workers exhibited behavior and language

that made her uncomfortable. (See Pl.'s Opp'n ~~ 17-24.)6 While this conduct may well

be inappropriate workplace behavior, it can hardly be described as having constituted a

"practice of intimidation, insult and ridicule that pervades plaintiffs day-to-day working

life," as is required to establish a hostile work environment claim. Brantley, 06-1137,

2008 WL 2072913 at *8 (internal quotation omitted). Thus, "the acts that plaintiff

complains about are ... not the type of extreme conduct necessary to support a hostile

work environment claim." Id. (internal quotations omitted). Indeed, Hernandez's work

environment, although not a model of professionalism, was not "a work environment that



6Specifically, Hernandez alleges that "she was asked why she was not working at Indian Head
 since there were a lot of Puerto Rican people working there," that her co-workers made fun of her
accent and thought she said "butt," when she said "buttery," and that her co-workers "regularly
used foul language in her presence to see how [she] would react." (Pl.'s Opp'n at 13-14.) She
further alleges that one co-worker "frequently touched his private parts in front of' her, "told her
his marriage was not the same as it used to be," "talked to her about humans and animals having
 sex," "showed her sexually explicit pictures," and told her "that a paperclip could be used as a
weapon and then ... put a fist close to her face." (Id. ,-r,-r 17-18.) Additionally, Hernandez
alleges that another co-worker asked her "if she had guns and if she went to a hunting club to
look for men." (Id. ,-r 19.) She alleges that during an office luncheon, her co-workers drank
alcoholic beverages, and one co-worker told another "I would like to see you in that dress." (Id.
,-r 20-21.) Hernandez also vaguely alleges a that co-worker "has a photograph in her office of a
tattooed behind," and that onr co-worker asked another "how her skirt looked on her an said 'my
ass. '" (Id. ,-r,-r 22-23.) Hernandez also alleges that a co-worker sat on the lap of another co-
worker at an office party. (Id.,-r 24.) She alleges that she felt this behavior was offensive and
that a co-worker "treated her differently because she did not participate" in it. (Id.,-r,-r 25-26.)

                                                 9
was pervaded by discrimination." Singh v. Us. House o/Representatives, 300 F. Supp

2d 48,56 (D.D.C. 2004); see also Patterson v. Johnson, 391 F. Supp. 2d 140, 146

(D.D.C.2005). "[N]ot everything that makes an employee unhappy is an actionable

adverse action" under Title VII. Jones v. Billington, 12 F. Supp. 2d 1, 13 (D.D.C. 1997)

(internal quotation omitted).

       Moreover, plaintiff's additional allegations regarding her supervisor's giving her a

low performance rating, giving her a false reason for her failure to receive a cash award,

failing to take her to a seminar, and failing to explain and reevaluate her performance are

not-if true-the type of discriminatory conduct prohibited by law. (CompI.      ~~   25-29.)

Simply stated, incidents of this nature do not constitute discriminatory treatment based on

Hernandez's status. Smith v. Jackson, 539 F. Supp. 2d 116, 139 (D.D.C. 2008) ("[I]t

must be clear that the hostile work environment was the result of discrimination based on

a protected status otherwise the federal courts will become a court of personnel appeals."

(internal quotation omitted)).

       Thus, because the facts in this case do not meet the high threshold necessary to

establish a hostile work environment, the Court will also GRANT the agency's motion for

summary judgment as to this claim. See Carter v. Greenspan, 304 F. Supp. 2d 13,25

(D.D.C. 2004) (holding "caress[ing] [plaintiff] on his knee," "plac[ing] her breast on his

arm," and "plac[ing] her fingers on his buttocks" were not severe enough to establish a




                                            10
hostile work environment claim (internal alterations omitted». An Order consistent with

the foregoing accompanies this Memorandum Opinion.



                                               R1~~
                                               United States District Judge




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