                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA


    MICHAEL WOODBERRY,

                   Plaintiff,

          v.
                                                           No. 18-cv-3081 (DLF)
    JAMES D. BERRY, JR., Deputy Director of
    Court Services and Offender Supervision
    Agency,

                   Defendant.


                                   MEMORANDUM OPINION

         Michael Woodberry brings this Title VII action against James D. Berry, Jr., in his official

capacity as Deputy Director of the Court Services and Offender Supervision Agency (CSOSA).

Woodberry asserts three counts: discrimination based on race, color, and sex; a hostile work

environment; and retaliation for engaging in protected activity. Before the Court is Berry’s

Motion to Dismiss, Dkt. 10. For the following reasons, the Court will grant in part and deny in

part the motion.

I.       BACKGROUND1

         Woodberry is an African American male. Am. Compl. ¶ 6, Dkt. 9. He started working at

CSOSA in 2005 as a treatment specialist in the young adult department. Id. ¶¶ 5–6.




1
 Because Berry has moved to dismiss Woodberry’s claims under Federal Rule of Civil
Procedure 12(b)(6), the Court must treat Woodberry’s “factual allegations as true . . . and must
grant [him] ‘the benefit of all inferences that can be derived from the facts alleged.’” Ctr. for
Responsible Sci. v. Gottlieb, 311 F. Supp. 3d 5, 8 (D.D.C. 2018) (quoting Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)).
       He found early success. From 2009 to 2013, Woodberry’s ratings were among the

highest compared to his peers. Id. ¶ 6. He received salary-step increases, annual bonuses, and

on-the-spot bonuses in each of those years. Id. His supervisors at the time gave him outstanding

reviews and recommended him as employee of the year. Id. And he received the highest rating

possible—“exceeds expectations”—in multiple years before 2014. Id.

       The trouble began in June 2013. That is when Sheri Lewis, an African American female,

became Woodberry’s direct supervisor. Id. ¶ 7. Soon after she assumed that role, Lewis forced

Woodberry to visit her office so that she could tell him stories. Id. Her stories focused on past

boyfriends and people she had dated who worked for CSOSA. Id. The tales included personal

information about Woodberry’s coworkers. Id. They happened two or three times a week and

sometimes lasted several hours. Id. And they kept Woodberry from doing his work and made

him feel uncomfortable. Id. Woodberry noticed that Lewis did not force the stories on the two

other treatment specialists in the young adult department—Christofer Barno, a Caucasian male,

and Melissa Blackwell, an African American female. Id. ¶¶ 6–7. Woodberry complained about

the stories to his second-line supervisor, Rufus Felder, but Lewis kept telling them until about

May 2014. Id. ¶ 7.

       Lewis posed other problems. Lewis gave more work to Woodberry than she gave to

Barno and Blackwell. Id. ¶ 8. In 2013, after the treatment specialists saw their caseload increase

by 45 cases, Woodberry had 11 more cases than Barno and 32 more cases than Blackwell. Id.

Lewis swore angrily at Woodberry. Id. ¶ 9. In September and October 2013, Lewis publicly

told Woodberry that she was his “f***ing supervisor” and that he would do what she told him to

do. Id. In October 2013, she cursed at him during a meeting of treatment specialists. Id. But

Woodberry never heard Lewis use profanity when she spoke with other treatment specialists. Id.




                                                 2
       Woodberry clashed with Felder too. On March 10, 2014, Woodberry and Blackwell had

cut short a meeting with contractors because the contractors were unprepared for the meeting.

Id. ¶ 13. Felder and Lewis reprimanded Woodberry three times for leaving the meeting early but

met with Blackwell only once about it. Id. Two days later, on March 12, Felder and Lewis held

an unplanned meeting with Woodberry about 30 minutes before his shift was to end. Id. ¶ 14.

Woodberry told them as the meeting started that he had to leave on time so that he could see his

doctor for a medication adjustment. Id. But Felder and Lewis said he could not leave and kept

him for an hour after his shift had ended. Id. In the meeting they questioned, berated, and

criticized Woodberry for leaving the March 10 meeting. Id. He missed his appointment, and his

doctor could not adjust his medicine. Id.

       Woodberry’s experience worsened. On March 13, 2014, Lewis again reprimanded

Woodberry based on their March 10 and March 12 interactions. Id. ¶ 15. That same day an

ambulance rushed Woodberry to the hospital for “dangerously high blood sugar and blood

pressure.” Id. Lewis and Felder allegedly caused this medical incident by forcing Woodberry to

miss his doctor’s appointment the day before. Id. ¶ 37. That summer, Lewis caused Woodberry

to miss another doctor’s appointment. Id. ¶ 15. On another occasion, Woodberry had to leave

work for an emergency medical appointment. Id. He couldn’t reach Lewis before leaving but he

told her secretary on his way out. Id. Lewis called Woodberry on his way to the doctor and told

him that she did not authorize him to leave. Id. He explained the situation, but Lewis remained

angry. Id. So he skipped the appointment and returned to work to assuage Lewis’s anger. Id.

       At the end of June 14, 2014, Felder told Woodberry that Woodberry would be transferred

from the Taylor Street location to the South Capitol location. Id. ¶ 16. Woodberry objected and

suggested that other, more junior treatment specialists could transfer instead. Id. But Felder said




                                                 3
that the South Capitol location needed a “strong African American male presence” and so Barno

and Blackwell—two of the other treatment specialists—were unsuitable. Id. Woodberry told

Felder that suitability for a position should be based on credentials, not sex or race. Id. Felder

told Woodberry that they would speak again before the decision became final, but they did not.

Id. ¶¶ 16–17. Soon thereafter Woodberry learned that the transfer decision was final. Id. ¶ 17.

       On July 3, 2014, Woodberry emailed his objections to Felder. Id. In his email, he told

Felder that he believed a “hidden agenda” motived the transfer and asked Felder for the “truth.”

Id. ¶ 17. He objected to the transfer’s abrupt nature and to the allegedly discriminatory basis for

the transfer. Id. But he said that he was willing to transfer if he could fulfill an actual need. Id.

He also requested that Felder delay the transfer so that he could make new childcare

arrangements because the South Capitol location was farther from his son’s school. Id. ¶ 18.

Felder said no, so Woodberry requested the same from Felder’s supervisor. Id. Woodberry does

not say whether his request was granted.

       Woodberry ultimately incurred some costs from the transfer. His monthly childcare and

fuel expenses increased by about $1,000 per month. Id. He added over an hour to his commute.

Id. And the transfer “impeded” his career. Id. ¶ 19. In his 10 years at Taylor Street, he had

developed relationships with clients, coworkers, and community partners. Id. At the South

Capitol location, he had to rebuild those connections. Id.

       While Woodberry awaited his transfer, his clashes with Felder and Lewis continued. On

July 10, 2014, Felder and Lewis issued a “Letter of Caution” to Woodberry based on the March

10 meeting with contractors that Woodberry and Barno had left early. Id. ¶ 20. The human

resources department concluded that the letter was issued untimely and that the consequences

Woodberry experienced after the March 10 incident appeared to be punitive rather than




                                                  4
corrective. Id. Based on this letter, Woodberry felt that Felder and Lewis could “add to his file”

at any time. Id. ¶ 21. He was afraid to meet with Felder and Lewis alone because he felt that

they treated him like a “dartboard.” Id.

       Woodberry’s 2014 performance review was also contentious. On July 10, 2014, Felder

and Lewis warned Woodberry not to talk with coworkers about his performance evaluation. Id.

¶ 22. He interpreted this to mean that Felder and Lewis planned to give him a negative review

no matter how well he performed. Id. So he requested that John Milam, CSOSA’s Deputy

Associate Director, review him instead. Id. That did not happen. Lewis conducted his 2014

review and scored Woodberry more than 100 points lower his coworkers. Id. Woodberry

alleges that she did so because he “spoke with coworkers regarding their reviews” and based on

events that predated both the review period and the date that Lewis started supervising him. Id.

Woodberry went from having the highest rating score among his peers to the lowest. Id. The

rating kept him from receiving regular salary step increases and bonuses, and he became

ineligible for a promotion. Id.

       Woodberry transferred to the South Capitol location in July 2014. Id. ¶ 23. At about that

same time, Sabrina Estes, a treatment specialist who was female, voluntarily transferred into the

Taylor Street location. Id. Blackwell also remained at Taylor Street. Id.

       When Woodberry arrived at the South Capitol location, he told his new supervisor, Kevin

Moore, about his past Equal Employment Opportunity (EEO) activity. Id. ¶ 24. The two

exchanged emails about Woodberry using administrative leave for EEO activities and to appeal

the 2014 performance review and transfer. Id.

       Moore soon became another source of friction. In September 2014, Woodberry was

away to attend a group therapy retreat. Id. ¶ 25. While Woodberry was out, Moore asked




                                                5
Woodberry’s coworker about Woodberry’s absence and said that Woodberry had lied on his

leave request. Id. Moore then spoke with Felder and a third-party about this conversation. Id.

Moore continued to ask Woodberry’s coworkers about his leave use and work performance

without talking to Woodberry about it. Id. This behavior went on until Woodberry was detailed

to another department in October 2017. Id.

       Woodberry brought this action on December 26, 2018. See Dkt. 1. He amended his

complaint on August 8, 2019. See Am. Compl. His amended complaint asserts counts of

discrimination (Count I), hostile work environment (Count II), and retaliation (Count III), in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. See id. ¶¶ 26–

44. Berry moved to dismiss all claims for failure to state a claim upon which relief can be

granted.2 See Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s Br.”) at 8, Dkt. 10-1. That

motion is now ripe.

II.    LEGAL STANDARD

       Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient

to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). A plaintiff’s well-pleaded factual allegations are “entitled to [an] assumption of

truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). And the Court construes the complaint “in

favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from


2
  In its reply, Berry included materials that arguably present matters outside the pleadings. See
Def.’s Reply Ex. A, Dkt. 13-1; id. Ex. B, Dkt. 13-2. But the Court can resolve this motion
without relying on these materials. The Court thus need not decide whether it may consider
those materials without treating Berry’s motion to dismiss as a motion for summary judgment.
See Fed. R. Civ. P. 12(d).



                                                  6
the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal

quotation marks omitted).

III.    ANALYSIS

        Woodberry fails to state a discrimination claim in Count I, states a hostile work

environment claim in Count II, and states one, but not two, retaliation claims in Count III.

        A.      Count I: Discrimination

        Woodberry alleges two personnel actions that he believes constituted discrimination

based on his race, color, and sex: his transfer to the South Capitol location and his negative 2014

performance review. Am. Compl. ¶ 30. But as currently alleged, each action lacks an essential

element of a Title VII discrimination claim. The Court will dismiss Count I.

        Title VII requires that all federal executive agencies make “personnel actions affecting

employees . . . free from any discrimination based on race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e–16(a). “Under Title VII . . . the two essential elements of a

discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because

of the plaintiff's race, color, religion, sex, national origin, age, or disability.” Baloch v.

Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).

                1.      Performance Review

        As currently pled, the amended complaint fails to allege that Lewis gave Woodberry a

negative review because of his race, color, or sex. For starters, the amended complaint itself

offers a legitimate, nondiscriminatory rationale for the negative review. Recall that Lewis and

Felder told Woodberry not to discuss the 2014 performance evaluations with others. Am.

Compl. ¶ 22. Woodberry alleges that Lewis “specifically lowered his [2014 performance] rating

review because [he] spoke with coworkers regarding their reviews” and thus disobeyed this




                                                    7
instruction. Id. (emphasis added). That allegation is inconsistent with Woodberry’s ultimate

legal conclusion that his race, color, or sex caused the negative performance. Id. ¶ 30.

       The same goes for the other allegedly problematic aspects of the review. Woodberry

alleges that Lewis “cited criticisms [from] as early as April 2013” in justifying the negative

rating. Id. ¶ 22. And he suggests that it was improper for Lewis to include these criticisms

because they predated the 2014 review period and happened before Lewis became Woodberry’s

supervisor. Id. He also alleges that because he was a historically good performer and because

his workload had increased in 2013, he deserved a positive review. See id. ¶¶ 8–12, 22; see also

Pl.’s Opp. at 17. He might be right about all of that. But the question is not whether the review

was “wise, fair, or correct.” Kelly v. Mills, 677 F. Supp. 2d 206, 229 (D.D.C. 2010). The

question is whether it was discriminatory. And these allegations do not connect Woodberry’s

protected characteristics to Lewis’s review.

       The closest Woodberry comes to adequately alleging such a connection is when he points

out that his score was the lowest among his peers—a white man and a black woman. Am.

Compl. ¶ 22. But here too he comes up short because he has not alleged that “all of the relevant

aspects of [his] employment situation were nearly identical to those” of his peers. Neuren v.

Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995). For all these reasons

and at this time, Woodberry’s amended complaint fails to state a discrete claim for

discrimination based on the 2014 performance review.

               2.      Transfer

       Woodberry’s transfer to the South Capitol location was not an adverse employment

action. The general rule is that a lateral transfer is not “an actionable injury” under Title VII.

Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) (quoting Brown v. Brody, 199 F.3d 446,




                                                  8
457 (D.C. Cir. 1999)). A transfer is “lateral” if it causes “no diminution in pay or benefits.” Id.

But lateral transfers that involve “‘materially adverse consequences affecting the terms,

conditions, or privileges of [the plaintiff’s] employment or her future employment

opportunities’ . . . could be considered adverse employment actions.” Id. The D.C. Circuit

contrasts these consequences with “purely subjective injuries,” which are not actionable.

Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002).3

       Woodberry does not allege that the transfer caused him to lose pay or benefits. It was

thus a lateral transfer and is actionable only if it caused materially adverse consequences.

Woodberry alleges three: an increase in childcare and fuel expenses of about $1,000 per month;

an hour-longer commute; and a need to rebuild certain professional relationships. But the

increased expenses and commute are too far removed from Woodberry’s job to materially affect

the “terms, conditions, or privileges” of his employment or his future employment opportunities.

Stewart, 352 F.3d at 426 (quoting Brown, 199 F.3d at 457).

       And while need to develop new relationships at the South Capitol location does relate to

his job, it is not a severe enough consequence to transform a lateral transfer into a materially

adverse employment action. That consequence likely attends most lateral transfers. To

recognize it as a materially adverse consequence would be to turn the D.C. Circuit’s general rule

that lateral transfers are not actionable inside out. Woodberry has not alleged “a significant

change in his job responsibilities,” a demotion, or a newfound inability to “complete his job

satisfactorily.” Forkkio, 306 F.3d at 1131. For these reasons, the transfer was not an adverse



3
  Berry notes that the U.S. Solicitor General clarified last year in a Supreme Court brief that the
government interprets Title VII to cover lateral transfers even when they do not involve
prejudice or adversity to the employee. See Def.’s Br. at 13 n.4. But the Court agrees with Berry
that for now the D.C. Circuit precedent just cited forecloses this interpretation.



                                                  9
action for discrimination purposes, and Woodberry thus fails to state a discrete claim for

discrimination based on the transfer.

       B.      Count II: Hostile Work Environment

       Woodberry alleges that Lewis, Felder, and Moore created a discriminatory and retaliatory

hostile work environment that “was sufficiently harassing to send him to the hospital,” “impeded

his ability to work,” and made him “feel hopeless.” Am. Compl. ¶ 37. Because Woodberry’s

allegations suffice to plead a hostile work environment claim, the Court will deny Berry’s

motion to dismiss Count II.

       To establish a hostile work environment claim, Woodberry “must show that his employer

subjected him to ‘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.’” Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993)). This standard applies both to discriminatory and to retaliatory hostile work environment

claims. See Bergbauer v. Mabus, 934 F. Supp. 2d 55, 79, 82–83 (D.D.C. 2013). Courts examine

the totality of the circumstances, considering among other factors: “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.” Harris, 510 U.S. at 23.

       Title VII is not a “general civility code”—the alleged conduct “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) (internal quotation marks omitted); see also Baloch, 550 F.3d at

1201. The alleged conditions must be both “objectively and subjectively hostile, meaning that a

reasonable person would find [the work environment] hostile or abusive, and that the victim




                                                 10
must subjectively perceive the environment to be abusive.” Hill v. Assocs. for Renewal in Educ.,

Inc., 897 F.3d 232, 237 (D.C. Cir. 2018) (alteration adopted and internal quotation marks

omitted).

       Woodberry has alleged workplace conduct that was subjectively and objectively abusive.

There were unwanted, inappropriate stories. For nearly a year, Lewis, Woodberry’s direct

supervisor, forced him to visit her office to hear her tales of romantic encounters with past

boyfriends. Am. Compl. ¶ 7. She sprinkled those stories with personal information about

Woodberry’s coworkers. Id. This unwanted story time lasted several hours and happened

multiple times per week. Id. And Lewis shared these stories only with Woodberry. Id. ¶¶ 6–7.

They kept him from doing his job and made him feel uncomfortable. Id. ¶ 7. Woodberry also

complained about them to Felder, Lewis’s supervisor, but to no avail. Id.

       There was yelling and berating. Lewis swore angrily at Woodberry. Id. ¶ 9. On more

than one occasion, she told him that she was his “f***ing supervisor” and that he would do what

she told him to do. Id. And she cursed at him during meetings with his peers. Id. But she

treated none of his peers this way. Id. Lewis again reported this behavior in vain to Felder. Id.

Woodberry was afraid to meet with Felder and Lewis alone because they treated him like a

“dartboard.” Id. ¶ 21.

       There was interference with medical care. Lewis and Felder knew that Woodberry

suffered from various health issues because he requested an accommodation. Id. ¶ 10. But on

multiple occasions, Woodberry alleges that they deliberately caused him to miss medical

appointments. See id. ¶¶ 14–15. One of these missed appointments led to Woodberry being

rushed to the hospital by ambulance and spending a week there to recover. Id. ¶ 15.




                                                 11
       There was also punitive, disparate, and disproportionate reprimand. Recall that both

Woodberry and Barno left a meeting earlier than they should have. Id. ¶ 13. But while Barno

received one reprimand from Lewis and Felder, Woodberry received several. Id. And

Woodberry’s reprimands were not run of the mill. In one discussion, they berated him for

leaving the meeting and kept him from the medical appointment that ultimately landed him in the

hospital a day later. Id. ¶ 14–15. Another reprimand came as “Letter of Caution” that the human

resources department concluded was untimely—having been issued four months after the

relevant event—and was punitive rather than corrective. Id. ¶¶ 20–21. And as set forth in Part I

above, these are not Woodberry’s only hostile work environment allegations.

       Viewed together, these allegations suffice to state a claim for hostile work environment

based on discrimination, at least at the motion-to-dismiss stage. First, Woodberry has said just

enough to connect these allegations of abuse to his protected characteristics. Woodberry’s

fundamental claim is that neither of his coworkers—a white man and a black woman—faced this

treatment. He presses an inference that his status as a black man is to blame for the environment

he faced. While ultimately it may be challenging for Woodberry to prove that claim with record

evidence, he has cleared the bar for now.

       Second, Woodberry has shown that the environment was sufficiently severe or pervasive

to support a hostile work environment claim. In evaluating this element, the Court has

considered: how often and for how long the conduct took place; whether it happened within the

actual work environment; whether it happened over multiple offices; whether it emanated from

just a few individuals; whether it involved verbal or physical abuse; and whether it merely

concerned advancement prospects. See Moore v. U.S. Dep’t of State, 351 F. Supp. 3d 76, 91–92

(D.D.C. 2019); see also Harris, 510 U.S. at 23.




                                                  12
       Here, as alleged, Woodberry faced abusive conduct, including verbal assaults, in one

office primarily, multiple times per week, for a discrete period of less than a year. The alleged

abuse emanated from one person primarily, and, for the most part, did not concern Woodberry’s

advancement prospects. Based on these factors and taking every allegation of this amended

complaint as true, Woodberry has alleged an environment that was sufficiently abusive—both

subjectively and objectively—to support a hostile work environment claim based on

discrimination.

       That said, Woodberry has not alleged facts sufficient to support a hostile work

environment claim based on retaliation. Most of the events described above happened before

Woodberry first engaged in any protected activity around July 2014. See Am. Compl. ¶ 40; id.

¶ 17. The environment that Woodberry faced after July 2014 was not sufficiently severe or

pervasive to support a hostile work environment claim based on retaliation.

       Though Woodberry’s hostile work environment claim survives this motion to dismiss,

ultimately, he will have to support his claims with record evidence. Not only will he need to

prove that the alleged abuse that forms the basis of his hostile work environment claim actually

occurred, he also will have to show that discrimination based on his race, color, or sex was a

motivating factor for the abuse. Casting these allegations in the light most favorable to

Woodberry, his hostile work environment claim survives the motion to dismiss.

       C.      Count III: Retaliation

       Woodberry alleges that CSOSA retaliated against him for engaging in two protected

activities. Am. Compl. ¶ 43. One allegation fails and one succeeds, so the Court will dismiss

Count III only in part.




                                                13
       Title VII’s antiretaliation provision prohibits an “employer” from discriminating against

an employee because the employee “has opposed any practice made an unlawful employment

practice by [Title VII]” or because the employee “has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under [Title VII].”

42 U.S.C. § 2000e-3(a). The D.C. Circuit applies the antiretaliation provision against the federal

government. See, e.g., Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015).

       To prove a retaliation claim, an employee “must show (1) that [the] employee engaged in

statutorily protected activity; (2) that the employee suffered a materially adverse action by the

employee’s employer; and (3) that a causal link connects the two.” Howard R.L. Cook & Tommy

Shaw Found. ex rel. Black Emps. of Library of Cong., Inc. v. Billington, 737 F.3d 767, 772 (D.C.

Cir. 2013). “To survive [a] motion to dismiss, [a] complaint must contain sufficient factual

matter, accepted as true, to plausibly establish those three elements.” Id. (internal quotation

marks omitted).

       Woodberry alleges two instances of retaliation. First, he alleges that he engaged in

protected activity when he objected to his discriminatory transfer to the South Capitol location,

Am. Compl. ¶ 40, and that Lewis retaliated by giving him a lowered 2014 performance review,

id. ¶ 43. Second, he alleges that he engaged in protected activity when he told Moore about past

EEO activity and asked about using leave to appeal the 2014 performance review and transfer,

id. ¶ 40, and that Moore retaliated by accusing him of lying about his leave usage and regularly

questioning Woodberry’s coworkers about his absences and work performance, id. ¶ 43.

               1.      Performance Review

       Woodberry’s relation claim based on his 2014 performance review states a claim for

retaliation. First, his objection to the transfer was statutorily protected activity. He told Felder




                                                  14
that a vacancy should be filled based on credentials, not based on gender or race. Am. Compl.

¶ 16. He thus “oppose[d] [a] discrete practice that [he] reasonably could have believed

discriminated on the basis of race, color, [or] sex.” Morris v. McCarthy, 825 F.3d 658, 673

(D.C. Cir. 2016).

       Second, the negative performance review was plainly a materially adverse action because

it kept Woodberry from receiving regular salary step increases and bonuses and made him

ineligible for a promotion. Am. Compl. ¶ 22; see also Def.’s Br. at 22–23 (not disputing this

element).

       And third, Woodberry has—just barely—alleged a causal link between his objection and

the performance review. For retaliation claims, “causation is often the most difficult element to

show in advance of discovery.” Bryant v. Pepco, 730 F. Supp. 2d 25, 31 (D.D.C. 2010). So a

plaintiff may establish the causal connection element of a retaliation claim “by showing that the

employer had knowledge of the employee’s protected activity, and that the adverse personnel

action took place shortly after that activity.” Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir.

2000) (quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985)). There is no bright-line

rule for what “shortly after” means, but courts seem to have coalesced around a dividing line of

three months. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (approvingly

citing cases finding three- and four-month intervals insufficiently close in time); McIntyre v.

Peters, 460 F. Supp. 2d 125, 133 (D.D.C. 2006) (collecting cases for the proposition that D.D.C.

judges have “often followed a three-month rule to establish causation on the basis of temporal

proximity alone”).

       Woodberry objected to the transfer in late June and early July 2014. Am. Compl. ¶ 16.

And he appears to have received his 2014 rating in early August 2014. See id. ¶ 22. This period




                                                15
of about one month between the protected activity and the materially adverse action is short

enough to allege a causal link at the motion-to-dismiss stage.

               2.      Moore’s Actions

       But Woodberry’s retaliation claim based on Moore’s actions is insufficient. First,

Woodberry has not responded to Berry’s argument that there is no causal connection between

Moore’s alleged adverse actions and Woodberry’s protected activity. See Def.’s Reply at 16.

The Court treats that argument as conceded. See, e.g., Buggs v. Powell, 293 F. Supp. 2d 135,

141 (D.D.C. 2003).

       Second, and regardless of that concession, Woodberry also has failed to allege that

Moore took materially adverse actions against him. An employer’s action is sufficiently adverse

for a retaliation claim if it “well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Baird v, Gotbaum, 662 F.3d 1246, 1249 (D.C. Cir. 2011)

(internal quotation omitted). Such actions “are not limited to discriminatory actions that affect

the terms and conditions of employment.” Id. (internal quotation marks omitted). Yet “while the

scope of actions covered by Title VII’s substantive provision and its anti-retaliation provisions

differ, the magnitude of harm that [the] plaintiff must suffer does not”—in both cases, the

plaintiff must suffer “objectively tangible harm.” Hornsby v. Watt, 217 F. Supp. 3d 58, 66

(D.D.C. 2016).

       Moore’s questioning of Woodberry and a few others about Woodberry’s leave and work

performance are not such actions. Woodberry seeks support in Mitchell v. District of Columbia,

304 F. Supp. 3d 110, 118 (D.D.C. 2018). But Moore’s actions fall short of the publicly

displayed notice on the main entrance barring an employee from entering her old facility that the

court in Mitchell deemed materially adverse. See id. at 113, 118. They are more akin to the




                                                16
“petty slights or minor annoyances that often take place at work and that all employees

experience,” which Title VII’s antiretaliation provisions do not prevent. Burlington Northern

and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

                                        CONCLUSION

       For the foregoing reasons, the Court grants in part and denies in part Berry’s Motion to

Dismiss. A separate order consistent with this decision accompanies this memorandum opinion.




                                                            ________________________
                                                            DABNEY L. FRIEDRICH
June 5, 2020                                                United States District Judge




                                               17
