                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA


RHONGELYN MOORE,

            Plaintiff,

     v.

PENNY S. PRITZKER,                           Civil Action No. 15-1248 {GK)
Secretary, United States
Department of Commerce


            Defendant.


                             MEMORANDUM OPINION

     Plaintiff      Rhongelyn       Moore,        an   African    American          woman,

("Plaintiff"   or    "Moore")    brings       this     action    against      Penny S.

Pritzker in her official capacity as Secretary of the United States

Department of Commerce ("Defendant," "Employer" or "Government").

Plaintiff   alleges       retaliation        in    response      to   age     and     race

discrimination      and    retaliation       complaints       she     filed     against

Defendant    with    the    Equal     Employment         Opportunity        Commission

("EEOC"),   in violation of Title VII of the Civil Rights Act of

1964 ("Title VII"), 42       u.s.c.   §   2000e et seq.

     This matter is presently before                   the   Court on Defendant's

Motion to Dismiss or for Summary Judgment filed on November 3,

2015 ("Def.' s Mot.")      [Dkt. No. 10] . On December 1, 2015, Plaintiff
filed an Opposition      ("Pl.'s Opp.")         [Dkt. No.    13]. Defendant did

not file a Reply.

      Upon consideration of       the    Motion,      Opposition,     the   entire

record herein, and for the reasons stated below, Defendant's Motion

to Dismiss is granted in part and denied in part, and Defendant's

Motion for Summary Judgment is granted in part and denied in part.

I .   BACKGROUND

      A. Factual Background

      Rhongelyn Moore     ("Plaintiff,"         "Moore") ,   a black woman,    has

been employed by the United States Department of Commerce ("DOC,"

"Defendant") since 1990. Complaint          ~   9 ( "Compl. ")   [Dkt. No. 1] . In

December 2001,     Plaintiff was promoted to a GS-13 Public Affairs

Specialist ("PAS") position in the Office of Public Affairs ( "OPA")

of the DOC. Id.    ~   10. The OPA, which is located in the Office of

the Secretary,     acts as the primary point of contact for public

affairs and serves as       the   liaison to the White House and the

Executive Branch for all public         ~ffairs.     Def.'s Mot. at 2 (citing

United States Department of Commerce,              Office of Public Affairs,

https://www.commercegov/os/office-public-affairs).

      As a GS-13 PAS, Moore worked on press releases, provided the

Minority   Business     Development     Agency        ("MBDA")    with   support,

drafted advisories on events, and corresponded with reporters. See

Def.'s Mot. at 4,      6. Moore was supervised by Deputy Director of

                                      -2-
OPA, Shannon Gilson. Compl.    ~   11. Gilson was Moore's first-level

supervisor until she left the OPA in August 2011. Id. Gilson was

also Moore's documented rating official, which meant that she was

responsible for both Moore's interim and final work performance

evaluations for each fiscal year. See Pl.'s Opp. at 16, 19; Def.'s

Mot. at 5. Moore's second level supervisor was Kevin Griffis, who

was the Director of OPA until January 2012. Id.          ~   12. As the second

level supervisor,    Griff is participated in the final performance

evaluations   and,   when appropriate,        approved   the    final   ratings

completed by the documented rating official. Pl.'s Opp. at 20; see

also Griffis Deel.    (Def.'s Ex. 5)     ~~   4-6 [Dkt. No.    10~5]

     In August 2011.,   when Gilson left her position at the OPA,

Parita Shah effectively became Moore's first-level supervisor and

documented rating official. Griffis Deel. ~ 41; Def.'s Mot. at 2;

Pl.'s Opp. at 3. Prior to the promotion, Shah and Moore were co-

workers   and periodically worked together on assignments.                Pl. 's

Opp. at 18.    Following Shah's promotion,         she left the office to

work on a different assignment from August to September 2011 and

returned in October 2011, after the end of FY 2011. Compl. ~ 42.

In January 2012,     Jennifer Friedman replaced Griffis . and became

Plaintiff's new second-level supervisor when Griffis left the OPA.

Compl. ~~ 12-13.



                                   -3-
        As a GS-13 PAS, Moore was given a Performance Appraisal for

each fiscal year. See id.              ~    14. The employees were evaluated on

three critical elements known as Customer Service, Media Outreach

and Support, and Special Projects. Id.                 ~   48. Each element was rated

from a Level 1, which means unacceptable performance, to a Level

5, which signifies the highest level of performance. Def.'s Ex. 2

[Dkt.    No.    10-2]       Each employee was also given an overall final

rating based on the same rating scale. Id. Prior to an employee's

final Performance Appraisal, he or she was given an interim rating.

See Compl.       ~    51.     Included in the interim rating were notes on

specific areas for improvement in the three critical elements. Id.

        Prior    to     the    final   evaluation,         employees     were    given    the

opportunity           to      submit   to     their        supervisors      a      list    of

accomplishments that he or she achieved during that fiscal year.

See id.    ~    30; Def.'s Mot.         at 3.       The documented rating official

also looked to reviews about employees from other departments with

which     the    employee         worked     closely.        In   this     case,     Gilson

_corresponded with MEDA about                 the    quality of     Moore's        work and

overall performance for the fiscal year. Gilson Deel.                           (Def.'s Ex.

4) at 4 [Dkt. No. 1 O- 4] .

        The relevant evaluation period in this case is FY 2011, which

spanned October 1, 2010 to September 30, 2011. Id. With Gilson's

departure set for the end of August 2011, Gilson called Moore to
                                             -4-
    review her performance on August 26,                          2011.   Def.' s      Statement of

    Facts      ~   9 [Dkt. No. 10-15]. At the evaluation meeting, 1 Moore and

Gilson reviewed Moore's performance rating for the FY 2011. Compl.

    ~   49.    Moore gave Gilson a list of FY 2011 accomplishments up to

the date of the meeting. See id.                        ~   40.

              Gilson      gave   Moore        the   following      ratings:       4    in       Customer

Service;            3/4    in    Media    Outreach          and   Support;       3/4       in    Special

Projects.              Compl.      ~    50.     Moore       alleges       that    there         was   an

understanding between her and Gilson that the ratings were not

final.             See Compl.      ~    49; Def.'s Statement of Facts                  ~    21.   Moore

alleges that Gilson stated that "if [Moore] assisted MBDA with its

MED Week event, she did not see why her overall evaluation rating

would not be a level 4 or 5," and did not mention any other negative

comments during this phone call. Pl.'s Opp. at 25, 30.

              Moore alleges that she never received a hard copy of Gilson's

interim performance rating, which she would have reviewed in order

to respond and/or improve her performance. Pl.'s Opp. at 11; see

also Deel. of Gilson at 3. Griffis received an email from Gilson

on August            24,    2011       containing Moore's           interim      rating         and the

interim review comments.                      Pl.' s Opp.     at 27. However,           Griffis did




1 It is unclear- whether the phone call in late August 2011 was an
interim or an end-of-year performance appraisal meeting. See Aff.
of Spence (Def.'s Ex. 10) at 3 [Dkt. No. 10-10].
                                                    -5-
~ot    discuss the rating and review comments with Moore or provide

her with a copy of the rating.             Compl.   ~~   28-29,   52.   Other PAS

employees received a copy of their ratings from Griffis.                     Pl.' s

Interrog. at 8 [Dkt. No. 12]

        Unlike other employees who received an email on December 5,

2011 from Griff is to submit a         list of their accomplishments in

preparation for FY 2011 performance evaluations,                  Moore did not

receive such an email. 2 Compl.       ~~   30-31. Moore later learned about

the email, but when she brought it to Griffis' attention, Griffis

did not afford her the opportunity to submit a                    final   list of

accomplishments. Compl.       ~~   32, 39. Therefore, Moore was unable to

submit a final list of accomplishments at the end of the rating

cycle. Pl.'s Opp. at 16.

        Due to the significant number of staff turnovers at OPA during

FY 2011, the FY 2011 final evaluations were unusually delayed and

were not given to employees until well after FY 2011 had ended.

Def.'s Mot. at 5, 29. Moore received her FY 2011 final evaluation

from Shah in February 2012. Compl.           ~   47. At this point, Shah was

Moore's rating official and Griffis was her approving official.

Id.    Moore   received the    following     FY 2011     final    ratings:   3   in

Customer Service; 3 in Media Outreach and Support; and 4 in Special


2    The Government states that this was a "mistake." Def.'s Mot. at
3.
                                      -6-
Projects.     Pl.'s Opp.      at 30.     Moore received an overall FY 2011

rating of a 3. Id.       ~~   53, 54.

       Shah relied, at least in part, on Gilson's interim evaluation,

which included the        list of accomplishments             that Moore gave to

Gilson in August. Pl.'s Opp. at 12; see also Def.'s Mot. at 4-6.

Shah     stated   that     OPA       wanted     "Plaintiff        [to]     improve     her

relationship with MBDA."             Def.' s    Statement of       Facts    ~   17.   Shah

stated that Moore did not provide MBDA with additional support,

which Moore denies. Id:          ~   19; Pl.'s Opp. at 20. Griffis approved

Shah's FY 2011 final evaluation of Moore. Pl.'s Opp. at 20; Def.'s

Mot. at 23.

       As a result of Moore's FY 2011 final rating and DOC's limited

resources    in FY 2011,        she received a       $150 bonus          from Griffis.

Compl.   ~   57; Def.'s Mot.         at 5.     Pursuant to guidance from DOC's

Off ice of the Secretary and the Off ice of Personnel Management on

June 10, 2011, Griffis was required to limit all of the performance

awards given to the staff so that the cumulative amount of awards

did not exceed one percent of the total amount of salaries in OPA.

Def.'s Statement of Facts ~ 22; see also Griffis Deel. ~ 8. This

limit on performance awards decreased the agency's ability to give

them. Id. Moore alleges that Griffis authorized her bonus prior to

the    end   of   FY     2011    and     well     before     he     requested         staff

accomplishments in December 2011. Compl.               ~   58. Moore claims that
                                          -7-
her bonus did not properly reflect her final performance review.

Id.

       On February 6, 2012, following the award of FY 2011 bonuses,

Moore had a meeting with Friedman and Griffis to discuss her FY

2011 final evaluation.           Def.'s Statement of Facts                   ~   25. At that

meeting,     Griff is   told     Friedman         that   Moore    was    a       "malcontent"

employee who never signed her performance evaluations and that she

"always had something to complain about." Compl.                    ~   65. For example,

Defendant stated that in May 2011, Moore wrote Gilson to say that

she believed the kind of work she was doing was "extremely low

level" and that she needed "something more substantive." Def.' s

Mot. at 3.

      B. Procedural Background

       On February 28,      2011, Moore filed her administrative Equal

Employment Opportunity ("EEO")                  claim alleging age discrimination

against Griffis.        Compl.    ~       19.   The Equal Employment Opportunity

Commission     ("EEOC")   granted the Government's motion for summary

judgment on August 13, 2012. Id. On June 16, 2011, Moore filed a

complaint      against         Griff is          and     Gilson     alleging           racial

discrimination and retaliation for her prior EEO activity.                                Id.

~   21; Def. 's Mot. at 6. The complaint was based in part on Moore's

request for a promotion to the GS-14 of PAS in May 2011 that was

ultimately denied. Compl.             ~    20. The administrative judge granted

                                                -8-
the Government's motion for summary judgment on this complaint on

February 27,        2014. Def.'s Mot. at 7.               Plaintiff did not appeal.

Id.

        On March 6, 2012, Moore filed her third formal complaint of

retaliation with the EEOC which is the relevant administrative

action in the instant case. Def.'s Mot. at 7;                           Pl.'s Opp.          at 4.

Defendant accepted four counts of retaliation for investigation,

which included allegations               that     (1)    Griffis      refused to accept

Moore's final        list of FY 2011 performance accomplishments;                             (2)

Griff is       refused    to      complete        Moore's    FY        2011        performance

evaluation;        (3) Griffis recommended Moore for a $150 performance

bonus,     the    lowest amount ever awarded to a                     PAS;    and    ( 4)   in a

meeting on February 6, 2012, Griffis attempted to portray Moore as

a     "malcontent    employee"      in    front     of   Friedman,           the   new Public

Affairs Director. Pl.'s Opp. at 4-5. On April 30, 2015, following

discovery,        the EEOC granted the Government's motion for summary

judgment on all counts. Def.'s Mot. at 8; see Pl.'s Ex. B [Dkt.

No.     1-2]     Defendant's      Office     of    Civil    Rights       implemented          the

judgment on May 6, 2015. Def.'s Mot. at 8.

        On August 3, 2015, pursuant to 42 U.S.C.                  §   2000e-16(c), Moore

filed her Complaint alleging one count of retaliation under Title

VII under the Civil Rights Act of 1964 against Defendant. Compl.

~     69-70.     Moore   states    that    the     following          actions       constitute
                                           -9-
•\




     retaliatory       conduct      following        her     EEO     activity:       (1)    Griffis'

     refusal to provide Moore with a copy of her FY 2011 interim rating;

     (2)    Griffis'     refusal      to     accept        Moore's     FY    2011      performance

     accomplishments;        (3) Shah's ineligibility to rate Moore's FY 2011

     performance;      (4)   Griffis'        delay in timely completing Moore's FY

     2011    performance         evaluation;        (5)    Griff is'    FY    2011     performance

     evaluation     of     Moore;      (6)    Griffis'        recommendation           of    a   $150

     performance bonus for Moore; and (7) Griffis' attempt to undermine

     Moore after Griffis left his position. See generally Compl.

            Moore   claims        compensatory            damages,     upgraded        performance

     appraisals,     and a retroactive promotion to GS-14 grade level of

     PAS position as relief for the alleged retaliation. Compl. at 11-

     12. She also claims damages for disparate treatment, humiliation,

     stress,     anxiety,    and damage to personal and professional self-

     esteem. Pl.'s Interrog. at 11.

            On November      3,     2015,     the     Government       filed     its       Motion   to

     Dismiss or for Summary Judgment. On December 1,                           2015,       Plaintiff

     responded with her Opposition, and the Government failed to file

     a Reply.

     II.    STANDARD OF REVIEW

            A. Motion to Dismiss

            To   survive     a     motion     to    dismiss        under     Rule    12(b) (6),      a

     plaintiff need only plead "enough facts to state a claim to relief

                                                   -10-
that is plausible on its face" and to "nudge [ ] . [his or her] claims

across the line from conceivable to plausible." Bell Atlantic Corp.

v.    Twombly,    550 U.S.     544,    570     (2007).     "[O]nce a claim has been

stated adequately, it may be supported by showing any set of facts

consistent with the allegations                 in the complaint."           Id.     at 563.

Under the Twombly standard, a "court deciding a motion to dismiss

must not make any judgment about the probability of the plaintiffs'

success. . .     [,]   must assume all the allegations in the complaint

are    true    (even    if   doubtful    in fact) . . .        [,   and]   must     give    the

plaintiff the benefit of all reasonable inferences derived from

the facts alleged." Aktieselskabet AF 21.                       November 2001 v.           Fame

Jeans Inc.,       525 F.3d 8,     17    (D.C.       Cir.   2008)    (internal quotation

marks    and     citations     omitted).        A    complaint      will ·not       suffice,

however,      if it "tenders      'naked assertion[s]'               devoid of      'further

factual enhancement."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 557).

        "[M]otions to dismiss for failure to exhaust administrative

remedies are       .         appropriately analyzed under Rule 12 (b) ( 6) . "

Winston v.       Clough,     712 F.    Supp.    2d 1,      6   (D.D.C.     2010).    "Before

filing suit,       a federal employee who believes that her agency has

discriminated against her in violation of Title VII must first

seek.administrative adjudication of her claim." Payne v. Salazar,

619 F.3d 56, 58 (D.C. Cir. 2010)               (citation omitted); see 42 U.S.C.
                                             -11-
§   2000e-16(c). After receiving notice of the agency's final action,

a plaintiff must file his or her civil action in the appropriate

District Court within 90 days. 42 U.S.C.             §   2000e-16(c); see also

Colbert v. Potter, 471 F.3d 158, 160 (D.C. Cir. 2006).

        These   exhaustion requirements        are   not   jurisdictional,     but

rather are      "similar to a    statute of limitations."          Colbert,    471

F.3d at 167. Therefore, they are properly raised in a Rule 12(b) (6)

motion to dismiss. See Rosier v. Holder, 833 F.Supp.2d 1, 5 (D.D.C.

2011)    (citing Artis v.      Bernanke,     630 F.3d 103i,      1034 n.4     (D.C.

Cir.    2011));      see also Gordon v.    Nat'l Youth Work Alliance,           675

F.2d 356    (D.C. Cir. 1982)     (noting that proper method for raising

a defense of limitation is a motion under Rule 12(b) (6)).

       B. Motion for Summary Judgment

        A motion for summary judgment is granted only if, looking at

the totality of admissible evidence, there is no genuine issue as

to any material         fact and that the moving party is entitled to

judgment as a matter of law. See Arrington v. United States, 473

F.3d 329, 333        (D.C. Cir. 2006). To establish whether a fact is or

is not genuinely disputed, a party must cite to specific parts of

the record, including deposition testimony, documentary evidence,

affidavits      or    declarations,   or     other   competent    evidence,      to

support its position. Mason v. Geithner, 811 F. Supp. 2d 128, 174

(D.D.C. 2011). "Conclusory assertions offered without any factual

                                      -12-
basis in the record cannot create a genuine dispute sufficient to

survive       summary   judgement."     Id.   (citing     Ass' n     of     Flight

Attendants-CWA v. U.S. Dept. of Transp.,           564 F.3d 462, 465         (D.C.

Cir.     2009))   Pursuant to Federal Rule of Civil Procedure 56(a),

    "[i]f the evidence presented on a dispositive issue is subject to

conflicting interpretations, or reasonable persons might differ as

to     its   significance,   summary    judgment   is   improper."        Beard v.

Preston, 576 F. Supp. 2d 93, 101 (D.D.C. 2008)          (internal quotations

omitted) .

III. ANALYSIS

        A. Motion to Dismiss

                  1. Exhaustion of Administrative Remedies (Allegations
                     1 and 5) 3

        "Title VII requires that a person complaining of a violation

file an administrative charge with the EEOC and allow the agency

time to act on the charge." 42 U.S.C.          §   2000e-16; e.g.,         Park v.

Howard Univ.,      71 F.3d 904,   907   (D.C. Cir. 1995). This exhaustion

requirement allows the EEOC to investigate, and gives the employer

notice of the claim, narrowing the issue for prompt adjudication




3 Plaintiff has alleged only one Count of retaliation in her
Complaint, but she has proffered seven factual allegations in
support of that Count. The Court will address each of these seven
factual allegations, which correspond to both the seven section
headings in Plaintiff's Complaint and the seven "Claims" outlined
in Defendant's Motion.
                              -13-
 and decision. Ndondji v. InterPark Inc., .768 F. Supp. 2d 263, 276

 (D.D.C. 2011).

      For a    claim of       retaliation,      a    plaintiff           is   permitted to

 combine acts committed over a period of years,                      including acts by

 different supervisors,        into a single actionable claim. Bergbauer

 v. Mabus, 934 F. Supp. 2d 55, 82 (D.D.C. 2013).                   A lawsuit following

 an EEOC charge must be limited to the claims that were exhausted

 through    administrative       remedies      and       those     that       are     "like   or

- reasonably related to the allegations of the charge and growing

out of such allegations." Ndondj i,              768 F.          Supp.    2d at 276;          see

also Drewery v. Clinton, 763 F. Supp. 2d 54, 61 (D.D.C. 2011). "At

minimum, the Title VII claims must arise from the administrative

 investigation     that    can     reasonably       be    expected        to        follow    the

charge." Park, 71 F.3d at 907 (internal quotations omitted).

      Defendant alleges that Moore's Allegations 1 and 5, which it

refers     to as   "claims"      1 and 5 were not exhausted through the

available     administrative         remedies        and     therefore              should     be

dismissed by this         Court.    Def. 's Mot.         at 13 -15.       The Government

argue~   that these "claims" were not specifically alleged in Moore's

March 6, 2012 complaint to the EEOC. Id. at 14. Additionally, the

Government argues that the EEOC did not accept these two "claims"

for investigation at any point. Id.



                                        -14-
•.



            However,     a    reasonable       investigation of          the     original    four

     claims as listed in Moore's March 6, 2012 charge to the EEOC would

     have given the Government notice of these two "additional claims."

     Allegation     1    in Moore's       Complaint       alleges    retaliatory conduct

     based on Griffis' refusal to provide Moore with a copy of her FY

     2011 interim rating. Griffis' refusal is reasonably related to the

     second Claim that the EEOC accepted for investigation,                               namely,

     that    "Griff is       refused    to     complete     her     FY     2011     performance

     evaluation rating in a             timely manner,       and then assigned Pari ta

     Shah, an 'ineligible rating official' to rate her." Pl.'s Opp. at

     5, 11. In fact,         in its April 30, 2015 Order, the EEOC found that

     the    FY   2011    interim      review    was    missing.      Pl.'s        Ex.    B at    5.

     Therefore,     questions          regarding       Moore's      interim        rating    were

     addressed and investigated by the EEOC.

            In   addition,      the    Government       claims      that    Shah        relied   on

     Gilson' s    interim      comments      for   Moore's    final        FY    2011    ratings.

     Therefore,    an allegation that Griffis did not provide Moore an

     opportunity to review her interim ratings reasonably relates to

     the issues addressed and exhausted by the EEOC.                            Taken together,

     the EEOC's comments on the FY 2011 interim ratings are sufficient

     to exhaust the claim because they put the Government on notice of

     Moore's allegations regarding her interim rating.



                                                -15-
       Similarly, Allegation 5, relating to Griffis'                          final FY 2011

performance evaluation of Moore,                is     reasonably related to the

original four claims brought before to the EEOC. In its April 30,

2015 Order,      the EEOC addressed Moore's allegations that she was

not afforded an opportunity to submit a final list of performance

accomplishments before receiving her final                        FY 2011 performance

evaluation. This point directly relates to Moore's original four

claims       before     the   EEOC      because        an     employee's            list   of

accomplishments affects his or her final evaluation. Pl.'s Opp. at

12. Moreover, because the performance evaluation directly impacts

an employee's performance bonus,               this allegation is reasonably

related to Moore's award of a $150 performance bonus, which was

both raised in the EEO charge by Moore and investigated by the

EEOC. Compl.     ~    58; Def.'s Mot. at 28.

       A plaintiff's burden to state specific claims is not so strict

that Moore is barred from bringing these two claims because they

were   not     specifically     enumerated        as    claims          in    her   original

retaliation     complaint      before    the    EEOC.       All    of        Moore's   claims

identified in her Complaint relate                   to the       FY 2011 performance

evaluation      process,      which   the      EEOC     had       the    opportunity       to

investigate.     Because the acts outlined in all seven Allegations

can be tied to one of Moore's original four claims before the EEOC,



                                        -16-
>'·




      this court will address each of the seven Allegations outlined in

      Moore's Complaint and Defendant's Motion.

                           2. Failure   to  Establish   Prima                   Facie ·      Case    of
                              Retaliation (All Allegations)

                 The Government claims that Moore has failed to establish a

      prima facie case of retaliation under Title VII. In order to state

      a claim for retaliation under Title VII, Moore must demonstrate

      that       ( 1)    she engaged in protected behavior;                  ( 2)    the Government

      took        a     materially     adverse       action     against     her;       and     (3)   the

      Government took the action because the employee engaged in the

      protected behavior. See McGrath v.                       Clinton,     666 F.3d 1377, 1380

      (D.   C.    Cir.     2012) .   Both parties agree            that Moore          engaged in a

      protected           activity     when    she     filed     her    EEOC        Complaints.      The

      Government disputes that Moore satisfied the second two elements

      of a prima facie case of retaliation.

                            a. Failure to Allege a Materially                        Adverse     Action.
                               (Allegations 1, 2, 3, 4, and 7)

                                     i. Allegations 1, 3 and 4

                 Moore asserts that Griffis' refusal to complete her FY 2bll

      performance evaluation rating in a timely manner and assignment of

      Shah to rate her constituted a materially adverse action because

      they affected her promotional potential and materially lowered her

      performance          award.      See    Pl.'s     Opp.     at    20    (citing      Baloch      v.



                                                      -17-
Kempthorne,     550 F.       3d 1191,    1199         (D.C.   Cir.   2008)       and Weber v.

Battista, 494 F.3d 179, 185-86 (D.C. Cir. 2007).

       The Government argues,            without citing any controlling case

law, that Moore's allegations in these three claims do not rise to

the    level    of     materiality,            and     instead       are     merely     "minor

annoyances."        Taken    in the     light        most     favorable      to Moore,      the

Government's argument is conclusory at best. The Government has

not met its burden of showing that Moore's grievances do not rise

to the level of a materially adverse action with regard to these

claims.

                            ii.     Allegation 2

       Moore argues that Griffis' refusal to accept her performance

accomplishments after leaving her off the December 5, 2011 email

constituted     a    materially adverse               action.    She       argues    that   her

performance review was based on her earlier, unfinished list of

accomplishments and that her poor performance review kept her from

a promotion and a higher bonus. See Pl.'s Opp. at 16.

       The Government argues            that     these actions             do not meet      the

"materially adverse" bar because "a single critical email is not

an adverse action." Def.'s Mot. at 17 (citing Kline v. Berry, 404

Fed.    Appx.       505,      506     (D. C.         Cir.     2010).       The      Government

mischaracterizes Moore's allegations. Moore alleges far more than

one critical email; she argues that her supervisor denied her the

                                           -18-
opportunity to advocate for her performance review which in turn

denied her promotion and bonus opportunities. Moore has therefore

shown a materially adverse action for Allegation 2.

                       iii. Allegation 7

       Finally,    Moore     argues    that   Griffis'   alleged   attempt    to

undermine her relationship with her new supervisor was a materially

adverse action that          "could have undermined Plaintiff's working

relationship with Ms.         Friedman and her opportunity for a          fresh

start and for a promotion."            Pl.' s Opp.   at 32   (emphasis added).

Moore also claims that          "after Ms.      Gilson and Griff is left the

Agency,   Plaintiff's performance rating again climbed to a level

'4' rating." Pl.'s Opp. at 32. Thus, by Moore's own admission, the

hypothetical adverse action that could have resulted from Griffis'

statements failed to materialize. Moore has therefore failed to

show a materially adverse action for Allegation 7, and it shall be

dismissed.

                  b. Fail\1re to Allege that Retaliation Was the But-
                     For Cause of Each Alleged Adverse Action (All
                     Allegations)

       Moore argues that she has sufficiently plead that retaliation

was the but-for cause of each alleged adverse action, because each

such   action     occurred    within    close    temporal    proximity   to   her

protected activity.



                                       -19-
        The Government argues that Moore has failed to establish that

the employer's actions were                   the but-for cause of each alleged

adverse action because the adverse actions were not sufficiently

close in time to Moore's filing of the EEOC complaints.

        In support      of    its        argument,     the     Government cites Moore's

assertion that the alleged retaliatory actions occurred within "1-

2 years" of her protected activity,                          (Def. 's Mot.   at 19   (citing

Def.'s Ex.      9    [Dkt.    No.    10-9])),       and argues that a 1-2 year gap

between       the    protected           activity      and     adverse   actions     is   not

sufficiently close in time to establish but-for causation.                                See

Def.' s Mot.        at 19 n.        2.    However,     Moore clarifies that her age

discrimination complaint was filed on or about February 28, 2011,

and a final order on the administrative judge's decision was issued

by Defendant on or about August 13, 2012. Pl.'s Opp. at 33. Moore

further specifies that her retaliation complaint was filed with

the EEOC on June 16, 2011 with a final decision issued on or about

March    6,    2014.    Id.    Thus,        all   of    the    alleged   adverse     actions

occurred during the            time period between Moore's                   filing· of her

complaints and the administrative judges' final decisions. Viewed

in the    light most favorable                to Moore,        she has established the

element of but-for causation.

        In conclusion, Defendant's Motion to Dismiss will be denied

on all counts except for Allegation 7, which will be dismissed.
                                              -20-
       B. Motion for Summary Judgment

                 1 . Legal Framework

       Under the McDonnell Douglas framework,             411 U.S.      792   (1973),

in order to       establish a     prima facie      case of       retaliation,     the

plaintiff must demonstrate that he or she engaged in a protected

activity and       the    employer's    retaliation,      which was      materially

adverse, was based on that activity. See e.g., Johnson v. Perez,

823 F.3d 701, 706 (D.C. Cir. 2016).

       A plaintiff need only establish facts adequate to permit an

inference of retaliatory motive by a preponderance of the evidence.

Forman v. Small,         271 F.3d 285, 299 (D.C. Cir. 2001)            (noting that

the    initial     burden    is   not   great)~    Once        the   plaintiff    has

established a prima facie case of retaliation, the defendant can

rebut the plaintiff's case by producing evidence that the employer

took    the   adverse      employment    actions   for     a     legitimate,     non-

discriminatory reason. Id. at 102 (citing Aka v. Washington Hosp.

Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998).

       However,    if    the· defendant has    offered a         legitimate,     non-

discriminatory reason for          its actions,     the    court need not and

should not decide whether the plaintiff actually made out a prima

facie case. Brady v. Office of the Sergeant at Arms, 520 F.3d 490,

494 (D.C. Cir. 2008). Thus, the "district court must resolve one



                                        -21-
>'·




      central question:         Has the employee produced sufficient evidence

      for a reasonable jury to find that the employer's asserted non-

      discriminatory reason was not the actual reason." Id.

           Our    Court    of    Appeals    has    declined       to    serve   as   a       "super

      personnel    department        that    reexamines           an    entity's     business

      decisions." Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006).

      Once a legitimate, non-discriminatory reason is established, the

      Plaintiff must present sufficient evidence for a reasonable jury

      to find that the employer intentionally retaliated against the

      employee    to demonstrate pretext.               Dave,    60.6   F.   Supp.   2d at       50

      (internal quotations omitted).              "The plaintiff cannot rely on her

      view that    the employer's actions were                   imprudent or unfair;            an

      employer may make an employment decision for a good reason, a bad

      reason, or no reason at all so long as the decision is not made in

      reprisal    for     the    plaintiff's       protected        activity."       Mason       v.

      Geithner, 811 F. Supp. 2d 128, 187 (D.D.C. 2011).

           Defendant       argues     that        she      has     articulated           a     non-

      discriminatory reason for each of its actions.                         This Court will

      therefore only examine whether Plaintiff has provided sufficient

      evidence    to    establish    that    Defendant's          proffered      reasons        are

      merely pretext.




                                              -22-
               2. Allegations 1 and 2

      The Government asserts that denying Moore a hard copy of her

interim rating (Allegation 1) and Griffis' omission of Moore from

the December 5,    2011 email and subsequent refusal to accept her

FY2011     performance    requirements    (Allegation     2)    were    "'minor

procedural irregularit[ies]'       in personnel practices         [that]   do[]

not give rise to an inference of discrimination." Brown v. Broad

Bd.   Of Governors,   662 F.   Supp.   2d 41,   50   (D.D.C.    2009)   (citing

Kelly v. Hairston,       605 F. Supp. 2d 175, 179 n.      3     (D.D.C. 2009);

see also Diggs v. Potter, 700 F. Supp. 2d 20, 44 (holding that an

administrative error establishes a legitimate non-discriminatory

reason for an employer's action).

      With regard to Allegation 1,         Moore     counters    that because

Griff is was in possession of the emails which formed the basis for

Plaintiff's final interim performance appraisal,               his failure to

provide Plaintiff with a copy was deliberate and discriminatory.

Pl.'s Opp.    at 34-35    (citing Defendant's Ex.       11,    Emails between

Griffis and Gilson [Dkt. No. 10-11]).

      The Government notes that Gilson claimed that she misplaced

the written interim performance review. Defendant's Ex. 10, p. 21.

However,    the written interim review was based on the August 25,

2011 email exchanges between Gilson and Griff is that contained the

actual comments and rating.      Id.; Defendant's Ex. 11. Griffis had

                                   -23-
the August 25 emails in his possession at all times after Plaintiff

requested       a    copy   of     the     interim       rating   and        has   provided   no

legitimate reason why he refused to provide it to her.

        With    regard      to    Allegation        2,   Moore    argues       that   Griffis'

failure to include her on the December 5,                         2011 email could not

have been an oversight or minor procedural irregularity because

"Mr. Griffis either had to remove Plaintiff's name from the e-mail

list or create his own list of names." Pl.'s Opp. at 15; see also

Defendant's Ex. 9 at 14 [Dkt. No. 10-9]. Defendant has not provided

any legitimate,         non-discriminatory reason why it did not permit

Moore to submit her accomplishments after both parties realized

she had been left off the December 5, 2011 email. Because the list

of     accomplishments           was    used   to     determine    Moore's         performance

ratings,       Griff is'    refusal to correct his "oversight" amounts to

more than a minor procedural irregularity.

        Summary Judgment shall therefore be denied for Allegations 1

and 2.

                    3. Allegations 3 and 4

        The    Government        argues     that     Allegations        3,     "Parita Shah's

ineligibility to rate Plaintiff's FY2011 performance," Def.'s Mot.

at 7, and Allegation 4,                 "Mr. Griffis' delay in timely completing

Plaintiff's FY2011 performance evaluation,                        id.,       "concern nothing

more    than Defendant's               business     decisions."    Def. 's Mot.         at    22.

                                               -24-
Moreover, the Government has presented evidence to show that Moore

was not uniquely situated as to either of these complaints.

       As   to    Allegation       3,    the    Government        explained        that    OPA

experienced a        high number of            staff    turnovers    in FY 2011.           The

departing        staff   members        included       Gilson,    Moore's     first-level

supervisor. As a consequence of these departures, Griffis, in his

capacity as the Director of OPA,                   made the business decision to

appoint Shah to Gilson's former position. Def.'s Mot. at 22. Moore

was not the only one among Gilson's supervisees to be transferred

to and rated by Shah for FY 2011. Def.'s Mot. at 22 (citing Def.'s

Ex. 5 at 2 [Dkt. No. 10-2]). In fact, all of Gilson's supervisees

were    transferred      to   Shah,      who    gave     them    their   FY   2011        final

performance evaluations. See Def.'s Ex. 5 at 2.

       Similarly, as to Allegation 4, the Government stated that the

significant number of staff turnovers contributed to the delay in

Griffis' ability to complete the FY final evaluations. See Def.'s

Mot. at 22       (Citing Def.'s Ex.         7 at 1       [Dkt. No.   10-7]     and Def.'s

Ex. 5 at 2). The Government decided to allow "new employees to get

acclimated to OPA" before rating them. It was that decision that

caused the delay in issuing performance evaluations for FY 2011.

Id.    22-23.    Significantly,         Moore was not           the only employee who

received    her     FY   2011   final      evaluation        late.   Id.      at    26.     The

Government also submitted evidence that another employee received
                                           -25-
a rating after Moore did. Compare Compl.              ~   47 (alleging that Moore

received her rating in February 2012), with Def.'s Ex. 2 at 7 [Dkt.

No. 10-2]      (showing that Employee C received her FY2011 rating on

March 9, 2012).

      Moore argues that "there is no. indication as to when it was

a~tually     presented to the employee." Pl.'s Opp.              at 35. However,

Moore points to no concrete evidence beyond her speculation that

would suggest that the other employee's rating did not occur on

the date cited by the Government. Although the Court must consider

all allegations in the light most favorable to Plaintiff, the non-

moving      party,   mere   speculation      is    insufficient       to    establish

pretext. See Alexis v. District of Columbia, 44 F. Supp. 2d 331,

337   (D.D.C.   1999)   (holding that a non-moving party must present

"specific facts showing that there is a genuine issue for trial,"

and "may not rely on mere allegations or denials to prevail" in

order for the Court to deny a motion for summary judgment) .

      Plaintiff has therefore failed to carry her burden in showing

pretext with sufficient evidence for a reasonable jury to find

retaliatory motive regarding Allegations 3 and 4.

                4. Allegations 5 and 6

      The    Government     asserts   that    Griffis'       FY2011        Performance

Evaluation of Moore (Allegation 5) and Griffis' recommendation of

a $150 performance bonus for Moore                (Allegation 6)   were based on

                                      -26-
the   employer's                dissatisfaction        with     Moore's          work    performance.

There     is    no        question         that    dissatisfaction with                 an   employee's

performance may establish a legitimate, non-discriminatory reason

for an employee's performance rating and low bonus. See Johnson v.

Bolden,        492        F.     App'x     118     (D.C.   Cir.     2012)        (holding       that    an

employer's dissatisfaction with employee's work was a legitimate

non-discriminatory reason for a poor performance rating and a low

bonus).

      Moreover,                the Government articulated a number of legitimate

reasons        for        Moore's      low performance            rating.        For     example,      the

Government stated in Moore's performance rating that,                                        "[w]e would

like to see [Plaintiff] improve her relationship with MBDA," Def.' s

Ex.   8 at      3,        noting that            " [clients    at   MBDA]        say she has        been

collegial but say they would like her to improve press release

turnaround time which can take up to four days.                             11
                                                                                 Id. The Government

also noted that the MBDA was not "satisfied with                                       [Plaintiff]      as

its   liaison.       11
                               Id.   The   Government         listed additional              complaints

about Moore's work performance as explanation for her performance

·rating. See Def.'s Mot. at 24.

      Defendant also asserts that Moore's bonus of $150 was lower

than it might otherwise have been to reflect the Government's

above-mentioned concerns as well as the fact that, "the Office of

Public Affairs' budget was reduced and consequently the Office of
                                                    -27-
Public Affairs had significantly less money for bonuses." Def.'s

Ex. 5 at 2.

        Moore    asserts       that    the    Government's      reasons   are       merely

pretext,      relying on her assertions in Allegations 1,                      2,   and 3;

namely, that Shah was not qualified to review her performance and

that she was not given sufficient opportunity to review and respond

to the interim rating because she did not receive a hard copy.

Pl.'s Opp. at 36-37. Moore argues that with regard to her work on

press releases for MBDA, "any delay was not caused by [Plaintiff]

but resulted from the review process itself after a press release

from MNDA was forwarded by [Plaintiff]." Def.'s Ex. 9 at 7. Moore

further asserts that "Defendant's stated reasons do not explain

why    the    bonus      was   six    times    less   than    other    Public       Affairs

Specialists who were only one grade level above her and received

at least $1000." Id. at 37.

        The Court has already found that the fact of Shah's review of

Moore    was     not     discriminatory.         Moore's     disagreement       with    the

employer's assessment of her work is not, without more, sufficient

to establish pretext.             See Robertson v.         Dodaro,    767 F.    Supp.    2d

185,    192    (D.D.C.    2011)      ("an employee's subjective assessment of

her own performance            is     insufficient    to establish such pretext

evidence").



                                              -28-
                   5. Allegations 7

      Even if Moore had established a materially adverse action for

Claim 7, she has failed to present evidence' that the Government's

legitimate non-discriminatory reason for this action was pretext.

      The Government argues that Moore's allegation that Griffis.

attempted to undermine her after he left his position (Allegation

7)   lacks   merit     because        Griffis'     statements     about   Moore     were

factual.     For    examp],e,    Moore    alleges     that    Griffis     stated    that

Plaintiff never signed performance appraisals, and that Plaintiff

always had something to complain about. Compl.                    ~ 65.

      However, Moore concedes that she had not signed a performance

appraisal    since     2009.    Compl.     Ex.    B at     5-6.   Furthermore,     Moore

simply responds that her complaints were justified and permitted.

Pl.'s Opp. at 37-38. Moore points to no other evidence in support

of   her     assertion         that     the      Government's      legitimate       non-

discriminatory reason was pretext.                 Thus,    this Court will grant

summary judgment for Defendant on Allegation 7.

      In conclusion, Defendant's Motion for Summary Judgment will

be granted on all accounts except for Allegations 1 and 2, which

will survive the Motion.




                                          -29-
IV.   CONCLUSION

      For the foregoing reasons, Defendant's Motion to Dismiss is

granted in part and denied in part. Defendant's Motion to Dismiss

is granted as to the allegation that it has labeled "Claim 7," but

denied as to all other allegations.

      Defendant's Motion for Summary Judgment is granted in part

and denied in part.   Defendant's Motion for Summary Judgment is

granted as to the allegations that it has labeled "Claims" 3-7,

but denied as to the allegations that it has labeled "Claims" 1-

2.

      An Order shall accompany this Memorandum Opinion.




September 1, 2016
                                        G~~
                                      Gladys Kessler
                                      United States District Judge


Copies to: attorneys on record via ECF




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