RUDOLPH CONTRERAS, United States District Judge
Plaintiff Nadia Mokhtar, an employee at the United States Department of State (the "Department"), brings this lawsuit pro
Mokhtar, a sixty-seven year-old female, was at all relevant times, and remains today, a GG-11 Language and Culture Instructor at the Foreign Service Institute ("FSI") of the State Department in the School of Language Studies, Near Eastern Central, and South Asian Languages Division. See Report of Investigation ("ROI") Excerpts, ECF No. 87-3, Ex. A at 2425, 59, 122-23. Dr. Tagesir Elrayah, a GG-14 Supervisory Language Training Specialist, has been Mokhtar's first-line supervisor since October 2006. See id. at 58-59. Dr. James Bernhardt, a GG-15 Division Director, has been Mokhtar's second-line supervisor since 1993, except for a period from approximately 2002 to 2006, see id. at 96, which was when Mokhtar was assigned to work overseas as a Deputy Consular Officer. See Mokhtar Depo., ECF No. 87-4, Ex. B at 14:225. Mokhtar returned to work as a Language and Culture Instructor at the FSI's School of Language Studies after her overseas assignment concluded. See id.
According to the description for the Language and Culture Instructor position, Mokhtar's responsibilities include "administer[ing] proficiency tests, both in the capacity of a tester and examiner[.]" ROI Excerpts, ECF No. 87-3, Ex. A at 124. Also according to the position description, Mokhtar's role as a Language and Culture Instructor requires her to possess "[s]kill in administering FSI language proficiency tests." Id. at 125. While Mokhtar was working overseas as a Deputy Consular Officer, the "procedures, policies, and practices" for administering language proficiency examinations changed. See id. at 60, 84. In addition, between 2008 and January 2011, the FSI required that all testers and examiners get recertified, which Mokhtar had not done. See id. at 71-73; Mokhtar Depo., ECF No. 87-4, Ex. B at 132:915.
In March 2008, Philippe Casteuble, an employee in the School of Language Studies' Continuing Testing and Training ("CTT") unit who was responsible for validating test scores as a quality control measure, observed that Mokhtar, when
On March 14, 2008, during a meeting attended by Mokhtar and Dr. Elrayah, Casteuble recommended that Mokhtar attend refresher training courses before she administrated any more tests. See id. In response, Mokhtar insisted that she did not want to attend the same training courses as new FSI employees and contractors, but she agreed to attend Individualized Refresher Training courses as an alternative. See id. at 85; Mokhtar Depo., ECF No. 87-4, Ex. B at 130:614, 142:9-16, 147:24-148:1. As a result, CTT personnel sent an examiner and tester Individualized Refresher Training plan to Mokhtar and discussed the plan with her. See ROI Excerpts, ECF No. 87-3, Ex. A at 77-80, 87; Mokhtar Depo., ECF No. 87-4, Ex. B at 142:9-16. As of June 2010, however, Mokhtar had not completed the examiner portion of the Individualized Refresher Training plan. See ROI Excerpts, ECF No. 87-3, Ex. A at 88; Mokhtar Depo., ECF No. 87-4, Ex. B at 146:11-21. Thus, on June 14, 2010, CTT personnel informed Dr. Elrayah that Mokhtar had not complied with, nor responded to, the examiner training plan that was sent to her in March 2008. See ROI Excerpts, ECF No. 87-3, Ex. A at 84, 88.
On July 14, 2010, Mokhtar signed a mid-year performance review form that was presented to her by Dr. Elrayah in which she agreed to obtain both the testing and language examiner recertifications before the end of the ratings year in December 2010. See id. at 61, 118; Mokhtar Depo., ECF No. 87-4, Ex. B at 117:23-118:9. Mokhtar had completed the testing recertification in April 2010, but she did not complete the examiner recertification by the end of 2010. See ROI Excerpts, ECF No. 87-3, Ex. A at 60; Mokhtar Depo., ECF No. 87-4, Ex. B at 119:21-120:5. For example, Mokhtar failed to properly administer an exam under observation as part of the examiner recertification, see Mokhtar Depo., ECF No. 100-1, Ex. 3 at 87:17-88:20, and she made other examiner errors as well. See Mokhtar Depo., ECF No. 87-4, Ex. B at 148:16-22. Mokhtar has acknowledged that in 2010, she was expected to perform testing and examining as part of her job duties and for her end-of-year performance review. See id.; Mokhtar Depo., ECF No. 100-1, Ex. 3 at 149:1-18.
On June 15, 2010, Mokhtar mentioned to Dr. Elrayah during a meeting and in a follow-up email that she was not selected for two management positions for which she had applied, though the names of those positions were not provided. See ROI Excerpts, ECF No. 87-3, Ex. A at 82. In addition, Mokhtar complained to Dr. Elrayah that she was not respected by the section and that she had been humiliated through the denial of her promotions for
Around August and September 2010, Mokhtar began working on a consular training module project in which she attempted to prepare a training module that would be used to teach the Egyptian Arabic dialect. See ROI Excerpts, ECF No. 87-3, Ex. A at 41-56. Mokhtar was not assigned this module project by anyone at the FSI, but rather came up with the idea on her own. See Mokhtar Depo., ECF No. 100-1, Ex. 3 at 28:1-4. Her tasks for this project included preparing the content and setting up audio and video recordings. See id. at 28:6-10; ROI Excerpts, ECF No. 87-3, Ex. A at 53; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 9. Before Mokhtar could complete the project, however, FSI received authorization to simultaneously develop uniform consular training modules for all Arabic dialects. See Bohsali Depo., ECF No. 87-7, Ex. E at 12:8-13:1. FSI then started a new development project for a consular module that was designed for multiple dialects, and FSI also cancelled the development of Mokhtar's Egyptian Arabic-specific dialect module, which did not follow the same design as the multi-dialect module. See id. An Egyptian Arabic-specific module project was restarted a few months later with Dalia Abdelmaguid in charge. See Mokhtar Depo., ECF No. 100-1, Ex. 3 at 36:8-18, 37:7-10.
In December 2010, Mokhtar was involved in a verbal altercation with a School of Language Studies student regarding a classroom reservation. See ROI Excerpts, ECF No. 87-3, Ex. A at 92-93. Mokhtar and the student later resolved the matter through a mediation session. See Mokhtar Depo., ECF No. 87-4, Ex. B at 166:4-7, 167:21-168:4. Following this incident, the student informed Dr. Elrayah that Mokhtar had missed two language consultation appointments. See ROI Excerpts, ECF No. 87-3, Ex. A at 89-91; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 5. On January 4 and January 7, 2011, Dr. Elrayah asked Mokhtar to provide him with a report of her learning consultation meetings with students in 2010, including the number of meetings she scheduled, conducted, and missed with each of the students who were assigned to her as their learning consultant. See ROI Excepts, ECF No. 87-3, Ex. A at 91. Dr. Elrayah explained that this report would be considered as part of Mokhtar's performance evaluation for the 2010 ratings year. See id. As of January 20, 2010, Mokhtar had not provided the report to Dr. Elrayah. See id. at 89-91.
On January 26, 2011, Dr. Elrayah issued Mokhtar's 2010 performance evaluation, which rated Mokhtar as "Not Successful" in two "critical performance" elements: demonstrating "job knowledge" and "interpersonal skills and communication." Id. at 111, 114. According to the evaluation form, a "Not Successful" rating is appropriate
In Dr. Elrayah's narrative summary for the 2010 performance evaluation, he provided the following reasons for his rating decisions: "Mokhtar did not keep good track of her consultees . . . and poorly communicated with her supervisor in this matter"; "Mokhtar was re-certified as [a] tester, and started toward an examiner re-certification[, but] [s]he missed some scheduled tests during the year and did not get her recertification as [an] examiner before the end of 2010, as stipulated in her mid-year review"; there "were concern[s] about the interpersonal skills and communication level of [Mokhtar] during this rating year[, and] [s]he missed some consultation sessions with her students without rescheduling or talking with the students"; and Mokhtar "did not keep complete records of her consultees, and did not respond in [a] timely manner to her supervisor's requests to provide [a] complete consultation report that reflects scheduled, conducted, and missed [Learning Consultation] sessions." Id. at 115.
After receiving the evaluation, Mokhtar submitted a "request for a higher level review by the reviewing official," and Dr. Bernhardt then reviewed the performance evaluation. See id. at 117. On February 16, 2011, Dr. Bernhardt approved the "Not Successful" ratings, explaining in his comments: "We expected Mokhtar to complete her recertification as an examiner. She did not do that. Her work as a language consultant and her record keeping for that job were also less than successful." Id.
The FSI's policy regarding discretionary performance awards provides that such awards are intended "to provide appropriate incentives and recognition for employees to encourage and reward outstanding performance," and "it is essential that monetary awards be given only to those employees who are exceptionally deserving." Id. at 94. Neither Dr. Elrayah nor Dr. Bernhardt nominated Mokhtar for an award based on her performance during the 2010 ratings year. See id. at 66, 104. Dr. Elrayah explained that he did not nominate Mokhtar because her "performance in [2010] was not successful." Id. at 66. Similarly, Dr. Bernhardt explained that "[a]wards are not automatic and are not entitlements[,]" and "[i]t is not likely that an award would have been [given] to Mokhtar . . . even if Dr. Elrayah had written a nomination for her since Mokhtar's Performance was rated `Unsuccessful' for the previous rating year." Id. at 104, 106. Dr. Bernhardt also noted that the FSI's "award committee often verifies performance ratings when considering awards and has been known to turn down awards when the ratings are low." Id. at 106. Thus, Mokhtar did not receive an award for her work during the 2010 ratings year when the awards were announced on July 20, 2011. See id. at 103.
On January 13, 2011, Mokhtar initiated contact with an Equal Employment Opportunity ("EEO") counselor, and on March 2, 2011, she filed a formal EEO complaint. See id. at 1-2, 5. In her EEO complaint, Mokhtar checked the boxes for discrimination based on age and reprisal. See id. at
On May 13, 2011, the Department, through its Office of Civil Rights, issued a letter to Mokhtar accepting the following claims for investigation (the "acceptance-of-claims letter"):
Id. at 16. On August 15, 2011, in response to correspondence from Mokhtar dated July 14, 2011, the Department issued a second letter in which it accepted a third claim for investigation:
Id. at 21. An administrative investigation was conducted between March 2, 2011, and February 1, 2012, and a Report on Investigation was sent to Mokhtar in a letter dated February 22, 2012. See Final Agency Decision, ECF No. 87-8, Ex. F at 2. The Department issued a Final Agency Decision on September 26, 2012, concluding that Mokhtar had "not established her claims of discrimination" or hostile work environment. Id. at 8.
On October 24, 2012, Mokhtar filed a complaint in this Court asserting various allegations about her time at the Department.
Summary judgment may be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Holcomb, 433 F.3d at 895. When Rule 56 is invoked, the moving party has the initial burden of demonstrating the absence of a genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the moving
Once the moving party has met its burden, the nonmoving party, to defeat the motion, must designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (citation omitted). Though courts must view this evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor, see Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23-24 (D.C.Cir.2013), the nonmoving party must show more than "[t]he mere existence of a scintilla of evidence in support of" his position—"there must be evidence on which the jury could reasonably find for [the nonmoving party]." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The nonmoving party, moreover, "may not rest upon mere allegation or denials of his pleading but must present affirmative evidence showing a genuine issue for trial." Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987) (internal citation and quotation marks omitted).
Of particular relevance here, this Court has explained that "[s]ummary judgment for a defendant is most likely when a plaintiff's claim is supported solely by the plaintiff's own self-serving, conclusory statements." Bonieskie v. Mukasey, 540 F.Supp.2d 190, 195 (D.D.C.2008) (citations omitted). That is because "conclusory allegations" and "unsubstantiated speculation," whether in the form of a plaintiff's own testimony or other evidence submitted by a plaintiff to oppose a summary judgment motion, "do not create genuine issues of material fact." Id. at 200 n. 12 (internal citation and quotation marks omitted); Sage v. Broad. Publ'ns, Inc., 997 F.Supp. 49, 53 (D.D.C.1998) ("Conclusory allegations made in affidavits opposing a motion for summary judgment are insufficient to create a genuine issue of material fact.").
Finally, although the pleadings of a pro se party are to be "liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (internal citation and quotation marks omitted), "[t]his benefit is not . . . a license to ignore the Federal Rules of Civil Procedure[.]" Sturdza v. United Arab Emirates, 658 F.Supp.2d 135, 137 (D.D.C. 2009) (citations omitted). Accordingly, in the context of Rule 56, a "pro se plaintiff must meet his burden of proving that there exists a genuine dispute as to a material fact to survive a motion for summary judgment."
In language parallel with Title VII, the ADEA provides, in relevant part, that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in executive agencies . . . shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). In addition, both Title VII and the ADEA prohibit federal agencies from retaliating against an employee for engaging in protected activity, see Holcomb, 433 F.3d at 901; Forman v. Small, 271 F.3d 285, 297-99 (D.C.Cir.2001), and from creating a hostile work environment based on an employee's membership in a protected class. See Blackwell v. SecTek, Inc., No. CV 13-1536, 61 F.Supp.3d 149, 161-62, 2014 WL 3834984, at *9 n. 9 (D.D.C. Aug. 5, 2014); Adams v. District of Columbia, 740 F.Supp.2d 173, 187-88 (D.D.C.2010).
The Supreme Court has cautioned courts that these federal employment discrimination statutes are not intended to be used as "general civility code[s]" for dissatisfied employees, Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), nor do such statutes permit courts to act as "super-personnel departments that reexamine an entity's business decisions." Holcomb, 433 F.3d at 897 (internal citation, quotation, and alterations omitted). But that is exactly what Mokhtar seeks here. Thus, whether framed as discrete-act discrimination claims, retaliation claims, or hostile work environment claims, the Court concludes that Mokhtar fails to establish any legally cognizable workplace harm, but rather only the "ordinary tribulations of the workplace" for which there is no statutory remedy. Faragher, 524 U.S. at 788, 118 S.Ct. 2275. Accordingly, the Court will rule as follows: first, the Court will grant summary judgment for the Department as to those claims that Mokhtar failed to administratively exhaust before filing this lawsuit; and second, the Court will grant summary judgment for the Department as to the merits of each remaining Title VII and ADEA claim. In the end, none of Mokhtar's claims survive the Department's motion.
Before bringing a Title VII or ADEA claim in federal court, a federal employee must initiate informal contact with an Equal Employment Opportunity Commission ("EEOC") counselor within forty-five days of the alleged discriminatory conduct.
Failure to exhaust administrative remedies under Title VII and the ADEA is an affirmative defense, not a jurisdictional requirement, and the burden therefore falls on the defendant to plead and prove the defense. See Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1996); Koch v. Walter, 935 F.Supp.2d 143, 150 (D.D.C. 2013); Pearsall v. Holder, 610 F.Supp.2d 87, 95 (D.D.C.2009). If the defendant succeeds in meeting its burden, the burden then shifts to the plaintiff to put forth evidence that would justify the equitable avoidance of the defense. See Rann v. Chao, 346 F.3d 192, 195 (D.C.Cir.2003); Noisette v. Geithner, 693 F.Supp.2d 60, 68 (D.D.C.2010). For exhaustion purposes, the EEO charge encompasses claims that are "like or reasonably related to the allegations of the charge and growing out of such allegations." Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995) (citation omitted). To be sufficiently related in this manner, a claim "must arise from `the administrative investigation that can reasonably be expected to follow the charge of discrimination.'" Id. (citation omitted).
Here, the Department moves for summary judgment on the basis that nearly all of the allegations in Mokhtar's complaint were not alleged in, and are not reasonably related to, the claims in her EEO complaint such that they were not administratively exhausted. See Def.'s Mem. Supp. Mot. Summ. J., ECF No. 87-2, at 7-9. Specifically, the Department seeks summary judgment in regard to potential discrete-act age discrimination and reprisal claims based on the following allegations from the complaint:
See id. at 9 (citing Compl., ECF No. 1 at 2-6). Separately, the Department seeks summary judgment based on Mokhtar's
According to the agency's acceptance-of-claims letters, the administrative investigation into Mokhtar's EEO complaint was limited to the following claims: (1) discrete-act age discrimination and reprisal based on Mokhtar's 2010 performance ratings; (2) an allegedly hostile work environment characterized by "false accusations"; and (3) discrete-act age discrimination and reprisal based on Mokhtar not receiving a performance award in July 2011. See ROI Excerpts, ECF No. 87-3, Ex. A at 16, 21. In the narrative section of the EEO complaint, however, Mokhtar explicitly alleged another example of age discrimination and retaliation: Dr. Bernhardt's decision to cancel the consular module project on which Mokhtar had been working.
The Department's exhaustion analysis, which is sparse in general, appears to be based on the fact that the agency's administrative acceptance-of-claims letters did not mention an intention to investigate the project cancellation, and as a result, the follow-up administrative investigation, as summarized through the Final Agency Decision, appears not to have looked into this issue.
In support of the Department's position, there are cases from this district holding that a plaintiff's "failure to respond to the [agency's] framing of the issue supports a finding that a plaintiff has failed to exhaust his administrative remedies with respect to those claims not approved by the EEO."
In particular, an acceptance-of-claims letter, though organizationally useful in clarifying the topics to be investigated, is not a mandated pre-investigation procedure under any statute or regulation insofar as the agency is not required to identify for the complainant the specific claims that it will investigate following an EEO complaint and the complainant is not required to respond within a certain time to avoid waiving those claims.
To be sure, in finding that a complainant "abandons" a claim by failing to respond to the agency's acceptance-of-claims letter, some district courts have relied on the exhaustion doctrine's requirement that the complainant must cooperate throughout the administrative investigation or risk having the complaint dismissed. See Payne v. Locke, 766 F.Supp.2d 245, 249 (D.D.C.2011) ("Exhaustion under Title VII demands a good faith effort by the employee to cooperate with the agency and EEOC and to provide all relevant, available information." (internal citation and quotation marks omitted)). For example, in Sellers v. U.S. Department of Defense, No. C.A. 07-418S, 2009 WL 559795 (D.R.I. Mar. 4, 2009), the court explained that the plaintiff "was afforded an opportunity to submit a declaration to clarify her claims during the EEO investigation, but [the plaintiff] failed to provide a declaration despite the EEO's investigator's request." Id. at *11. The court then held that because the plaintiff "had an obligation to respond to reasonable requests in the course of the agency's investigation of her discrimination and retaliation claims" but "did not fulfill that obligation, . . . she did not exhaust her administrative remedies[.]" Id. (internal citations omitted). Similarly, in Green v. Small, No. CIV.A. 05-1055, 2006 WL 148740 (D.D.C. Jan. 19, 2006), this district court explained that "when notified of the single alleged instance of retaliation it had accepted for investigation, plaintiff made no attempt to augment the `accepted allegation' or amend his complaint prior to the conclusion of the investigation." Id. at *6. Accordingly, the district court found that "[t]his is simply not a case where the plaintiff `diligently pursued' the retaliation claims challenged by defendant," and the claims therefore were not exhausted. Id.
This Court, however, finds that failure to cooperate during the administrative investigation must be treated as factually and legally distinct from failure to respond to the acceptance-of-claims letter. In particular, the acceptance-of-claims letter is more akin to an elective agency housekeeping procedure, not a legally mandated aspect of the administrative fact-finding investigative process. As an example of the latter, 29 C.F.R. § 1614.107(a)(7) provides that when "the agency has provided the complainant with a written request to provide relevant information or otherwise proceed with the complaint, and the complainant has failed to respond to the request" in a timely manner, the agency "shall" dismiss the complaint. See also Wilson v. Pena, 79 F.3d 154, 166 (D.C.Cir. 1996) ("Once a complainant files a complaint or appeal and cooperates with the agency or EEOC for 180 days, he is not required to take any further action to exhaust his administrative remedies." (emphasis added)). But the acceptance-of-claims letter is not a formal "written request" for information from the complainant
Though addressing a different factual scenario, this Court's recent decision in Dick v. Holder, No. CV 13-1060(RC), 80 F.Supp.3d 103, 2015 WL 691189 (D.D.C. Feb. 19, 2015), guides the analysis today and highlights why finding exhaustion of the project cancellation claim is appropriate. In Dick, the plaintiff contended that "the package containing his formal EEO charge" included a copy of a letter that he had sent to an EEO counselor prior to filing the formal charge, and this letter allegedly contained certain Rehabilitation Act claims that the plaintiff argued should be incorporated into his formal charge, despite not being raised in the charge itself. Id. at *6, 80 F.Supp.3d at 112-13. Accepting as true that the letter was attached to the EEO charge, the Court nevertheless concluded that the plaintiff had failed to exhaust his Rehabilitation Act claims. See id. at *8, 80 F.Supp.3d at 114-16. In so holding, the Court explained that "[a]n agency may not unreasonably omit claims from investigations, in hopes that a complainant's tardy realization of the omission will constitute a failure to exhaust." Id. at *7, 80 F.Supp.3d at 114 (emphasis added). By contrast, "where an agency reasonably fails to identify for investigation a claim indirectly asserted in a plaintiff's administrative charge, and where the plaintiff does not timely object to this omission before the agency, the plaintiff cannot show that he has exhausted administrative remedies as to this claim." Id. at *8, 80 F.Supp.3d at 114-15 (emphasis added). After finding that the plaintiff's "formal EEO charge neither explicitly incorporated the letter nor, . . . made any mention of discrete-act or hostile work environment Rehabilitation Act claims," the Court concluded that the agency's omission of the claims from its investigation was not unreasonable, and the plaintiff therefore had failed to exhaust those claims. Id. at *7-8, 80 F.Supp.3d at 114-16.
The instant case presents the opposite scenario from Dick. Here, Mokhtar's claim as to the cancellation of the module project was written plainly and directly on the face of the formal EEO complaint, and the agency has offered no justification for why it omitted this claim from the set of issues it agreed to investigate but included the "Not Successful" ratings claim, which was written just as
Finally, the Court emphasizes that today's holding is consistent with the policies underlying the exhaustion doctrine. Specifically, allowing a party to bring to court only those claims that are "like or reasonably related to the allegations of the charge and growing out of such allegations," Park, 71 F.3d at 907, balances two competing concerns:
Dick, 2015 WL 691189, at *5 (alterations in Dick). Thus, in Dick, the Court was influenced in part by the fact that the plaintiff's failure to contest a reasonably omitted claim denied the agency "`notice of [the] claim and [an] opportunity to handle it internally'" through no fault of the agency itself. Id. at *12, 80 F.Supp.3d at 120 (quoting Brown, 777 F.2d at 15); see also id. (explaining that the "reasonable omission of a claim without objection . . . is an indication that the agency neither has considered nor will consider the omitted claim").
The lack of investigation is less concerning, however, when the agency acted unreasonably by omitting the claim in the first place, which is the critical distinction between the Dick scenario and Mokhtar's situation. In other words, "viewed through the policies animating the exhaustion doctrine," id., Mokhtar did give the agency "notice of [her] claim and [an] opportunity to handle it internally," Brown, 777 F.2d at 15, but the agency failed to fulfill its part of the bargain by unreasonably omitting the claim from its investigation after receiving notice through the EEO charge. And at the same time, permitting an agency to unreasonably omit a claim in an acceptance-of-claims letter, and then also to shift the burden onto the complainant to object, would erect an unnecessary and confusing procedural hurdle that frustrates this Court's duty to ensure that the protections afforded by federal employment discrimination laws are "kept accessible to individuals untrained in negotiating procedural labyrinths." Id. at 14 (internal citations and quotation marks omitted).
Besides the cancellation of the module project, however, the Court agrees with the Department that Mokhtar failed to raise the other discrete-act allegations in her civil complaint, described above, in her EEO complaint, nor are such claims "like or reasonably related to the allegations of the charge and growing out of such allegations." Park, 71 F.3d at 907 (citation omitted). The Court therefore grants summary judgment in favor of the Department on the basis that Mokhtar failed to exhaust these separate claims before filing suit. Consequently, the Court finds that Mokhtar only exhausted claims for (1) discrete-act age discrimination and reprisal based on the 2010 performance ratings; (2) an allegedly hostile work environment characterized by "false accusations"; (3) discrete-act age discrimination and reprisal based on not receiving a performance award; and (4) discrete-act age discrimination and reprisal based on the cancellation of the module project.
Alternatively, the Department also asserts an exhaustion defense based on Mokhtar's failure to seek EEO counseling in a timely manner in regard to her allegations that Dr. Bernhardt did not select her for two supervisory positions in 2007 and 2008, and that Dr. Bernhardt prevented her from volunteering for two other positions in 2007 and 2008. Under Title VII and the ADEA, aggrieved individuals must "initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1). An employee satisfies the timeliness requirement if she (1) contacts "an agency official logically connected with the EEO process, even if that official is not an EEO counselor," and (2) "exhibit[s] an intent to begin the EEO process." Miller v. Hersman, 594 F.3d 8, 11 n. 1 (D.C.Cir.2010) (citation and quotation omitted; alteration in original). The Court agrees that Mokhtar failed to seek EEO counseling in a timely manner for
As to the non-selection claims, Mokhtar's complaint does not specify what those positions were or when Dr. Bernhardt's alleged interference occurred. See Compl., ECF No. 1 at 6. In her deposition, however, Mokhtar testified that she applied for two positions sometime in 2007 and 2008, and that she has not applied for any other positions since then. See Mokhtar Depo., ECF No. 87-4, Ex. B. at 190:3-20. Because Mokhtar did not make contact with an EEO counselor until January 13, 2011, at the earliest, see ROI Excerpts, ECF No. 87-3, Ex. A at 5, the Court grants summary judgment for the Department on the basis that Mokhtar failed to seek timely counseling for the non-selection claims. See Foster v. Gonzales, 516 F.Supp.2d 17, 28 (D.D.C.2007) (granting summary judgment for agency when plaintiff "failed to exhaust his administrative remedies under Title VII" by not "initiat[ing] contact with an EEO counselor within 45 days of the effective date of his termination").
For the same reason, the Court also grants summary judgment for the Department as to Mokhtar's allegations that she was not permitted to take volunteer positions in a passport office in 2007 and in Iraq in 2008. See Compl., ECF No. 1 at 5; Mokhtar Depo., ECF No. 100-1, Ex. 3 at 170:1-8 (discussing 2008 volunteer position in Iraq). By not seeking EEO counseling until January 13, 2011, Mokhtar failed to meet the 45-day statutory deadline.
The Court next turns to the merits of the following claims that remain at issue in this litigation: (1) age discrimination under the ADEA as to the performance ratings, the lack of awards, and the cancellation of the module project; and (2) reprisal under Title VII and the ADEA as to the performance ratings, the lack of awards, and the cancellation of the module project.
Traditionally, Mokhtar's Title VII and ADEA claims, whether for discrimination or retaliation, would be analyzed using the three-step framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C.Cir.2006) ("The McDonnell Douglas framework applies to both Title VII and ADEA claims."). Under this framework, a plaintiff first must establish a prima facie case of discrimination or retaliation; the burden then shifts to the employer to articulate a legitimate, nondiscriminatory and/or non-retaliatory reason for the adverse employment action; and if the employer meets its burden, the burden shifts back to the plaintiff to demonstrate that the offered non-discriminatory reason was, in fact, pretext for a prohibited reason. See McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668.
The D.C. Circuit has recognized, however, that when an employer
The Department moves for summary judgment as to Mokhtar's age discrimination and reprisal claims under Title VII and the ADEA on the basis that the agency had legitimate, nondiscriminatory reasons for the 2010 "Not Successful" ratings and for the decision not to nominate Mokhtar for an award based on her work during the 2010 ratings year. See Def.'s Mem. Supp. Mot. Summ. J., ECF No. 87-2, at 18. The Department does not challenge whether either of these events qualifies as an adverse employment action, but rather offers nondiscriminatory reasons and then jumps into Brady's "one central question" analysis. See, e.g., id. at 19; see also Martin v. District of Columbia, No. CV 11-01069(RC), 78 F.Supp.3d 279, 311, 2015 WL 294723, at *23 n. 43 (D.D.C. Jan. 23, 2015) ("Brady authorizes courts to ask the `one central question' only `where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision[.]'" (quoting Brady, 520 F.3d at 494; emphasis in Martin). The Court therefore does the same.
Once an adverse employment action has occurred, Brady next requires a district court to ask whether "an employer has asserted a legitimate, non-discriminatory reason for the [adverse employment] decision." Brady, 520 F.3d at 494. Here, the Court finds that the Department offers evidence of legitimate, non-discriminatory reasons for both the "Not Successful" performance ratings and the decision not to nominate Mokhtar for a performance award.
As to the "Not Successful" ratings, the Department offers, through Dr. Elrayah's evaluation, several non-discriminatory reasons for the ratings, including: "Mokhtar did not keep good track of her consultees . . . and poorly communicated with her supervisor in this matter"; there "were concern[s] about the interpersonal skills and communication level of [Mokhtar]
In addition, the Department provides evidence that Mokhtar's "Not Successful" ratings were based on her failure to complete the required examiner recertification by the end of the 2010 ratings year. See id. at 75, 115. In particular, Mokhtar signed a mid-year performance review form agreeing to obtain both the testing and examiner recertifications before the end of the year, see id. at 60-61, 118; Mokhtar Depo., ECF No. 87-4, Ex. B at 117:23-118:9, and although she completed the testing recertification in time, it is undisputed that she did not complete the examiner recertification by the end of December 2010. See ROI Excerpts, ECF No. 87-3, Ex. A at 60, 115; Mokhtar Depo., ECF No. 87-4, Ex. B at 119:21-120:5; see also Hoffman Depo., ECF No. 100-1, Ex. 7 at 35:1-6 (testifying that Mokhtar did not complete her examiner recertification because she could not meet the Department's standards). Indeed, Mokhtar, during her deposition, acknowledged that she was expected to perform testing and examining as part of her job duties, and that she was ordered to complete both recertifications but failed to do so. See Mokhtar Depo., ECF No. 87-4, Ex. B at 119:21-120:5, 148:16-22; Mokhtar Depo., ECF No. 100-1, Ex. 3 at 149:1-18. Mokhtar's failure to complete the required examiner recertification by the deadline constitutes another legitimate, non-discriminatory reason for her "Not Successful" performance ratings.
Regarding the decision not to nominate Mokhtar for a performance award, the evidence shows that it is the FSI's policy that awards are intended "to provide appropriate incentives and recognition for employees to encourage and reward outstanding performance," and "it is essential that monetary awards be given only to those employees who are exceptionally deserving." ROI Excerpts, ECF No. 87-3, Ex. A at 94. The Department then offers evidence that the decision not to nominate Mokhtar for an award was based on the "Not Successful" ratings in her 2010 performance review, which is a legitimate, non-discriminatory reason for the employer's decision. See id. at 66, 104, 106.
With the Department having met its burden, the Court next asks: "Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on [a prohibited basis]"? Brady, 520 F.3d at 494. Evidence of pretext might include variant treatment of similarly situated employees, discriminatory statements by decision makers, and irregularities in the offered reasons for the adverse employment decision. See id. at 495 & n. 3; Bennett v. Solis, 729 F.Supp.2d 54, 60 (D.D.C.2010). Here, Mokhtar fails to offer evidence creating a genuine dispute of material fact as to any circumstance that might even hint at pretext; instead, she almost exclusively relies on self-serving and conclusory testimony and her own opinions about what her employer should have done, none of which is
Starting with the performance ratings, to rebut the Department's evidence, Mokhtar relies on her opinion that she should not have been rated as "Not Successful" because, for example, she was sufficiently "knowledgeable" to perform her job without recertification based on her experience and the parts of the retraining she completed, the retraining involved skills that were not necessary for her position, the recertifications were a waste of the Department's resources, and her supervisors should have ignored errors she made during the retraining because they were not important. See Pl.'s Mem. Opp'n Mot. Summ. J., EFC No. 100, at 20-21; see also, e.g., Mokhtar Depo., ECF No. 87-4, Ex. B at 142:4-8 (opining that there was "no need" for retraining because "it had a lot of basic . . . information about testing that I already knew . . . and it's just a waste of resources and time"); id. at 146:8-9 (opining that "all of this is illegal because testing is not mandatory"); id. at 148:19-22 ("They should have just been more tolerable of small errors that were not fatal [during the retraining] and just eased me in back to the system instead of making a big deal out of every little thing."); Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 3 ("I did not think [getting recertified as an examiner] was necessary. . .").
The Court, however, "cannot credit [Mokhtar's] subjective assessment of [her] own qualifications," McNally v. Norton, 498 F.Supp.2d 167, 183 (D.D.C.2007), because a "plaintiff's perception of [herself], and of [her] work performance, is not relevant" at this stage of the Brady analysis. Waterhouse v. District of Columbia, 124 F.Supp.2d 1, 7 (D.D.C.2000). Instead, "[i]t is the perception of the decision-maker that is relevant to determining pretext, not a plaintiff's perception of [her]self." McNally, 498 F.Supp.2d at 183 (citation omitted); see also Harris v. Univ. of the District of Columbia, No. 87-2631, 1990 WL 99316, at *5 (D.D.C. July 6, 1990) ("[P]laintiff's subjective belief of qualifications is not evidence that can be used to establish that [s]he was qualified for the job." (citations omitted)).
Accordingly, when determining whether proffered reasons are a pretext, the Court "does not examine whether the reasons the [Department] offered were correct but instead focuses on whether the [relevant] officials at the [Department] honestly believed the reasons they offered." McNally, 498 F.Supp.2d at 183. Mokhtar, however, offers no evidence creating a genuine dispute about whether the relevant Department officials actually and honestly believed the reasons they provided for the performance ratings or their reasons for why she was required to complete the recertifications in the first place. Mokhtar's opinions that recertification was not important, that certain skills should not have been required for her position, or that certain errors were minor are insufficient to meet her burden.
Mokhtar also argues that the Department engaged in a conspiracy to prevent her from becoming recertified as an examiner. See Pl.'s Mem. Opp'n Mot. Summ. J., ECF No. 100, at 21. None of the evidence she cites, however, supports her position that the Department deliberately interfered with her completion of the recertification process; instead, Mokhtar is left to rely on her own unsubstantiated and conclusory statements to support this position, which is insufficient to create a genuine dispute of fact at summary judgment. Specifically, Mokhtar cites two deposition transcripts, but neither is probative of any plot by the Department to obstruct her. For example, Christina Hoffman stated during her deposition that Department examiners not in good standing were limited to walk-in candidates for their observations, which suggests nothing about discrimination or obstruction towards Mokhtar. See Hoffman Depo., ECF No. 100-1, Ex. 7 at 14:7-9. Similarly, Mokhtar cites a portion of David Red's deposition in which he testifies to not remembering whether the Department had a policy regarding walk-ins, which also does not support Mokhtar's conspiracy theory. See Red Depo., ECF No. 100-1, Ex. 9 at 16:6-20. Instead, Mokhtar relies on her own conclusory testimony to allege that she was permitted to use only walk-ins for her observations because of a purported scheme to delay her recertification, while younger employees were allowed to observe non-walk-ins, which enabled those employees to perform observations more frequently than Mokhtar. See Mokhtar Stmt. Facts in Dispute, ECF No. 100, at ¶ 14 (citing Mokhtar Depo., ECF No. 100-1, Ex. 3 at 127:2-11).
Thus, absent her own conclusory testimony, the evidence Mokhtar cites does not support her argument about a plan within the Department to prevent her from finishing the recertification process. But such conclusory, self-serving statements by a plaintiff do not create a genuine dispute of material fact for purposes of summary judgment. See, e.g., Lindsey v. Rice, 524 F.Supp.2d 55, 60 (D.D.C.2007) (granting summary judgment when plaintiff's "self-serving statements [were] too conclusory to survive [defendant's] summary judgment motion"). This is especially true when these statements are unsubstantiated by any non-self-serving evidence and, in fact, are rendered unreasonable given other undisputed evidence in the record—which is exactly the case here because undisputed evidence shows that the Department, rather than attempting to thwart Mokhtar, gave her more than two years to complete the process and actually went out of its way to accommodate her demand for special individualized recertification courses so that she would not have to take the same courses as new hires. See ROI Excerpts, ECF No. 87-3, Ex. A at 77-80, 87; Mokhtar Depo., ECF No. 87-4, Ex. B at 142:9-16; Hoffman Depo., ECF No. 87-6, Ex. 4 at 21:11-17 (alleged instruction to prevent Mokhtar from completing recertifications "would never, ever happen"); see also Anderson, 477 U.S. at 252 (a genuine dispute of material fact requires "evidence on which the jury could reasonably find for [the nonmoving party]" (emphasis added)); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993) ("[A] mere unsubstantiated allegation . . . creates no `genuine issue of fact' and will not withstand summary judgment."); Hastie v. Henderson, 121 F.Supp.2d 72, 81 (D.D.C. 2000) (finding no genuine issue of material
Similarly, Mokhtar testified that a number of younger employees were able to complete certain observation testing faster by using non-walk-ins. See id. at 122:20-25, 127:2-11. But the examples Mokhtar provided are not analogous to her situation for two reasons: first, Mokhtar offered examples of the timing and age for people who were receiving their original examiner certification, not the later recertification at issue here, see id. at 125:16-25; and second, Mokhtar demanded an individualized recertification plan rather than following the interactive training program used by other employees seeking recertification, thus placing her in a unique situation and making any comparison between her and those employees on the standard recertification path unhelpful. See id. at 142:1-16. Indeed, the evidence shows that Mokhtar received her individual recertification plan in March 2008 but did not respond for more than two years, which demonstrates that the lengthy delay was due to her decision to ignore the plan and the recertification requirements, see ROI Excerpts, ECF No. 87-3, Ex. A at 77, 88, and then once she did engage in the process, she still failed to meet the Department's standards. See, e.g., Hoffman Depo., ECF No. 100-1, Ex. 7 at 35:1-6 (in "the function of the examiner . . . you are supposed to follow very strict standards. That's where [Mokhtar] didn't seem to be able to be recertified. . .").
Similar flaws befall Mokhtar's attempted opposition to the Department's evidence that the "Not Successful" performance ratings were based, at least in part, on her failure to attend meetings with students and failure to provide a report that her supervisor requested. As to the missed meetings, Mokhtar admits that she missed appointments with students, see Mokhtar Depo., ECF No. 100-1, Ex. 3 at 160:21-161:4; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 5 ("I missed only two appointments with students in 2010."), and she fails to offer any evidence that the Department officials did not honestly believe that the missed meetings were a basis for her performance ratings. See McNally, 498 F.Supp.2d at 183. Rather, Mokhtar simply argues that the missed meetings were not her fault and that they should not have been given such importance by the Department in preparing her ratings, see, e.g., Mokhtar Depo., ECF No. 100-1, Ex. 3 at 160:21-161:4; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 5; such arguments are, of course, insufficient to establish pretext. See Waterhouse, 124 F.Supp.2d at 7-8 (plaintiff's "opinion" that "she was competent and performed well in her position, that her performance problems were not as serious as described by defendants, [or] that they were outweighed by her successes. . . is simply not relevant nor sufficient to raise an inference of pretext").
Likewise, Mokhtar concedes that she failed to provide the report for which Dr. Elrayah asked regarding her meetings with students and instead argues that the report was not necessary and her error was "de minimis" because she had provided the information through regular individual
Finally, Mokhtar argues that she received awards in the past and "expected" to receive an award for her work during the 2010 ratings year. See Pl.'s Mem. Opp'n Mot. Summ. J., ECF No. 100, at 23; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 8. Mokhtar, however, makes no argument and offers no evidence suggesting that the Department's offered non-discriminatory reason for her lack of an award for the 2010 ratings year—her "Not Successful" performance ratings—was a pretext; her subjective opinion and self-serving statements about whether she deserved in award are insufficient to create a genuine dispute of fact. See McNally, 498 F.Supp.2d at 183; see also Saunders v. DiMario, No. Civ. A. 97-1002, 1998 WL 525798, at *4 (D.D.C. Aug. 14, 1998) ("Plaintiff has otherwise offered the type of self-serving allegations that are simply insufficient to establish pretext."). Indeed, Mokhtar has acknowledged that employees who do not achieve "Successful" ratings do not receive performance awards. See Mokhtar Depo., ECF No. 87-4, Ex. B at 184:16-23. Mokhtar therefore fails to meet her burden.
In sum, the Department provides legitimate, non-discriminatory reasons for Mokhtar's 2010 "Not Successful" performance ratings and the decision not to nominate her for a performance award. Mokhtar, however, fails to meet her burden of showing that the Department's offered reasons are a pretext. Accordingly, the Court grants summary judgment in favor of the Department on Mokhtar's ADEA discrimination claim and Title VII and ADEA reprisal claims as to the 2010 performance ratings and the lack of awards.
The Court has rejected the Department's argument that Mokhtar failed to administratively exhaust her age discrimination and reprisal claims as to the cancellation of the module project. See Part IV.A.1., supra. But in its motion for summary judgment, the Department also attacks the merits of such claims by making two arguments: first, Mokhtar fails to satisfy the adverse employment action element required for a prima facie ADEA age discrimination claim; and second, the reprisal claim fails because Mokhtar cannot demonstrate a causal connection between her protected activity, a 1998 EEO complaint, and the Department's alleged adverse action in cancelling the project. See Def.'s Mem. Supp. Mot. Summ. J., ECF No. 87-2, at 14-15, 17.
As noted above, Brady requires a court to skip the prima facie case analysis and ask the "one central question" only when the employee has suffered an adverse employment action and the employer has offered a non-discriminatory reason
Thus, starting with the ADEA age discrimination claim, a plaintiff's prima facie case requires evidence that (1) she is a member of the protected class (i.e., over 40 years of age); (2) she was qualified for the position and was performing her job well enough to meet her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) she was disadvantaged in favor of a similarly situated younger person. See Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155 (D.C.Cir.2004); Williams v. Stake, No. 14-1210, 2014 WL 6765442, at *4 (D.D.C. Dec. 2, 2014). The Department seeks summary judgment as to the third element, namely that the cancellation of the module project was not an adverse employment action within the meaning of the statute.
The D.C. Circuit has defined an adverse employment action for purposes of a discrimination claim as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) (citation omitted). If, however, an employment action is not presumptively adverse, such as a hiring or firing, the "employee must experience materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009) (citation, quotation,
In opposition to the Department's motion, Mokhtar argues that through the development of the consular module, she "effectively act[ed] in a supervisory role over several other employees" such that cancellation of the project was "effectively" a demotion to a "non-supervisory role" and a loss of responsibilities. See Pl.'s Mem. Opp'n Mot. Summ. J., ECF No. 100, at 18-19. The D.C. Circuit has explained, however, that "changes in assignments or work-related duties do not ordinarily constitute adverse employment decisions if unaccompanied by a decrease in salary or work hour changes." Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C.Cir.1997). Though Mokhtar provides some uncorroborated evidence suggesting that she spent extra time working on this project under her own volition, see, e.g., Mokhtar Depo., ECF No. 100-1, Ex. 3 at 28:1-4, 185:8-9, it undisputed that her salary, title, position description, and official duties as a Language and Culture Instructor remained unchanged following the cancellation of the project.
Indeed, preparing the module was never part of Mokhtar's official duties as a Language and Culture Instructor, see ROI Excerpts, ECF No. 87-3, Ex. A at 123-24, and in fact, she chose to start the project on her own without orders to do so from any supervisor. See Mokhtar Depo., ECF No. 100-1, Ex. 3 at 28:1-3 ("I wasn't given a task. I was just there in the section. So I decided to do [the module project]."); Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 9 ("In 2010, on my own initiative, I began developing a consular training module. . ."). It therefore does not reasonably follow that cancellation of this voluntary, unofficial project would constitute a material change of assignments or responsibilities that might cause an "objectively tangible harm" to her employment condition. Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002); Holcomb, 433 F.3d at 902 (explaining that "dissatisfaction with a reassignment" is a "purely subjective injur[y]" not protected by statute unless and until it results in an "objectively tangible harm" to the employee (citation and quotation omitted)).
The same holds true for Mokhtar's assertion that she was "effectively" demoted from a supervisory role to a non-supervisory role through the project cancellation: her official position and responsibilities did not change in the slightest because her position never included supervisory duties to begin with, and there is no evidence that the cancellation of the project was of such a nature that it altered the objective terms of her employment or limited her future career opportunities, such as future promotions or pay increases. Cf. Cones v. Shalala, 199 F.3d 512, 521 (D.C.Cir.2000) (finding adverse employment action when employer's refusal to allow plaintiff "to compete for the promotion was tantamount to refusing to promote him"). In fact, the evidence suggests only that Mokhtar coordinated the work of others on the project, not that she "supervised" them in any meaningful sense. See Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 9 ("I worked on [the project] with many of my coworkers. At one point I was coordinating as many as nine or ten people in its development."); cf. Vance v. Ball State Univ., ___ U.S. ___, 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565
Further, Mokhtar mistakenly relies on Youssef v. FBI, 687 F.3d 397 (D.C.Cir. 2012), in an attempt to establish that the project cancellation constituted an adverse employment action even without any change in salary or benefits. See Pl.'s Mem. Opp'n Mot. Summ. J., ECF No. 100, at 18. In Youssef, the D.C. Circuit found an adverse employment action under Title VII based on the FBI's reassignment of the plaintiff, a FBI counterterrorism investigator, to a new department within the agency that "did not utilize his skills and expertise," that resulted in him performing menial tasks below those which he had been performing and alongside co-workers who were several pay-grades below him, and that, unlike his prior positions, involved no supervisory responsibilities. Id. at 401-02 (alterations omitted).
Here, by contrast, the Department did not "reassign" or "demote" Mokhtar by any definition of the words, nor did it reduce any of her official responsibilities as a Language and Culture Instructor, which never included preparing language modules or supervising employees. Instead, the Department merely cancelled one short-term project that Mokhtar had "begun developing" under "her own initiative," with no tangible harm to Mokhtar's employment condition. See Pl.'s Mem. Opp'n Mot. Summ. J., ECF No. 100, at 14; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 9. This is in stark contrast to the plaintiff in Youssef, who lost his official supervisory duties and many other responsibilities related to his former position through a "reassignment" that really was a significant demotion.
In sum, Mokhtar fails to provide evidence of any adverse change to the terms, conditions, or privileges of her employment resulting from the Department's decision to cancel the module project, regardless of her personal preference for the project to have continued to completion or her dissatisfaction with the Department's decisionmaking. See Lester v. Natsios, 290 F.Supp.2d 11, 90 (D.D.C.2003) ("Purely subjective injuries, such as dissatisfaction with reassignment, public humiliation or loss of reputation, or unhappiness over assigned duties are not adverse actions."); Childers v. Slater, 44 F.Supp.2d 8, 19 (D.D.C.1999) ("Mere inconvenience and alteration of job responsibilities will not rise to the level of an adverse action."); see also Leon v. Dep't of Educ., No. 10-CV-2725, 16 F.Supp.3d 184, 202, 2014 WL 1689047, at *13 (E.D.N.Y. Apr. 29, 2014) ("deprival of [plaintiff's] top-choice teaching assignment [and] exclusion from certain extracurricular school activities" did not rise "to the level of a materially adverse change in the terms and conditions of her employment"). Thus, rather than an adverse employment action, the project cancellation is more accurately characterized as one of the many "ordinary tribulations
The Court next turns to Mokhtar's retaliation claims under Title VII and the ADEA based on the cancellation of the module project.
Though not specified in the complaint, the only protected activity for which Mokhtar can claim she was retaliated against is her filing of an EEO complaint in 1998 about her then—immediate supervisor Dr. Joseph White.
A retaliation claim requires "proof that the desire to retaliate was the but-for cause of the challenged employment action." Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517,
Instead, the more "time that elapses between the protected activity and the alleged acts of retaliation, . . . the more difficult it is to demonstrate any causal connection." Saunders, 1998 WL 525798, at *5. Thus, something much stronger is needed to create a reasonable inference of a causal connection when the temporal proximity inference fails, beyond the mere fact that the employer knew of the protected activity. Cf. Bernhardt Depo., ECF No. 100-1, Ex. 2 at 7:12-14 (admitting awareness of 1998 EEO complaint). But Mokhtar does not provide any evidence suggesting a link or retaliatory pattern between any of the complained-about actions by the Department, including cancelling the project, and her EEO complaint from more than a decade earlier.
Further, an inference of causation is especially unlikely when the person who allegedly retaliated against Mokhtar years later (i.e., Dr. Bernhardt) was not the subject of her 1998 EEO complaint (i.e., Dr. White). See Vickers v. Powell, 493 F.3d 186, 195-96 (D.C.Cir.2007) (expressing skepticism about plaintiff's allegation that an official "might be lying to hide his retaliatory motive" when the official was not involved in or the subject of plaintiff's prior EEO activities). In fact, Mokhtar admits that since rejoining the FSI from overseas, no Department employee has made a comment about her prior EEO activity, which, though not dispositive, strongly gestures at the underlying weakness of her claim. See Mokhtar Depo., ECF No. 87-4, Ex. B at 188:7-14. Accordingly, without evidence supporting any reasonable inference of causation, Mokhtar fails to meet her burden, and the Court therefore grants summary judgment for the Department on the Title VII and ADEA retaliation claims as to the project.
Though it is not entirely clear that Mokhtar is alleging a hostile work environment claim in this case, the Court liberally construes her complaint to include such a claim.
To determine whether a hostile work environment exists, courts consider "all the circumstances," including: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating. . .; and whether it unreasonably interferes with an employee's work performance." Harris v.
Liberally construing the compliant, Mokhtar appears to allege that the following events created a hostile work environment: the "Not Successful" performance ratings; new FSI employees are "too young" and are "not professionally dressed"; Dr. Elrayah "made" Mokhtar sign a document stating that she would get recertified; Dr. Bernhardt persuaded employees to prevent Mokhtar from getting recertified; Dr. Bernhardt required employees to implement his policies and follow his instructions; Mokhtar was not permitted to complete the consular module project; Dr. Bernhardt did not involve Mokhtar in developmental assignments; Dr. Bernhardt attempted to prevent Mokhtar from volunteering for positions outside of the FSI in 2007 and 2008; Dr. Bernhardt did not assign unspecified projects to Mokhtar; and Dr. Bernhardt did not select Mokhtar for two unspecified supervisory positions. See generally Compl., ECF No. 1.
As an initial matter, there is no competent evidence in the record to support several of Mokhtar's allegations, while, at the same time, there is evidence that directly contradicts other allegations. For example, Mokhtar alleges that Dr. Elrayah "made" her sign a document, presumably the mid-year performance review form, which stated that Mokhtar would get recertified by the end of the year. See Compl., ECF No. 1 at 3; ROI Excerpts, ECF No. 87-3, Ex. A at 118 (mid-year review). There is no evidence, however, of any intimidation or coercion by Dr. Elrayah when Mokhtar signed the review form; rather, Mokhtar has testified to the exact opposite—that Dr. Elrayah did not intimidate her into signing the form and that she voluntarily signed it because she believed that she could meet the end-of-year deadline. See Mokhtar Depo., ECF No. 87-4, Ex. B at 84:20-85:22, 119:2-20 ("Q: Did you find [Dr. Elrayah's] behavior intimidating? A: No. Because at the time I had no doubts that I can meet the deadline."); see also Mokhtar Depo. ECF No. 100-1, Ex. 3 at 86:6-11 (stating that she signed the form to make her supervisor "happy" and because she had "no doubt that [she] would be able to meet" the deadline).
In addition, there is no evidence regarding how new employees dressed at the FSI or why they were "too young," but even if such evidence existed, these facts would not impact Mokhtar. There also is no evidence about how Dr. Bernhardt acted improperly by requiring employees to implement his policies and follow his instructions, which any supervisor would expect, nor is there evidence about why this would be discriminatory towards Mokhtar anyways. See, e.g., Mokhtar Depo., ECF No. 100-1, Ex. 3 at 172:7-11 (stating merely that Dr. Bernhardt is "the only one who speaks for the section" and "who makes decisions in the section"); ROI Excerpts, ECF No. 87-3, Ex. A at 27 ("No one else's
Likewise, besides the module project, there is no evidence of Dr. Bernhardt failing to involve Mokhtar in other developmental assignments or projects. The Court, moreover, already rejected Mokhtar's claim that a retaliatory motive was behind the project cancellation, and the Court also has rejected Mokhtar's suggestion that there was a conspiracy led by Dr. Bernhardt to prevent her from getting recertified, as no competent evidence in the record supports such a claim. Nor is there any competent evidence in the record that Dr. Bernhardt prevented Mokhtar from volunteering for positions in 2007 and 2008, as Mokhtar testified that Kathy Russell decided who could volunteer for the Iraq position and who could return to work at the FSI after volunteering, and there is no evidence of Dr. Bernhardt's involvement other than Mokhtar's conclusory testimony that Dr. Bernhardt must have convinced Russell not to let Mokhtar volunteer and not to grant Mokhtar a reemployment letter so she could return to the FSI. See Mokhtar Depo., ECF No. 100-1, Ex. 3 at 170:1-172:14. Finally, both supervisory positions to which Mokhtar applied were outside the FSI, which suggests that no FSI employees, including Dr. Bernhardt, were involved in the selection processes, and regardless, the non-selections occurred in 2007 and 2008, several years before the relevant events in this lawsuit. See Mokhtar Depo., ECF No. 87-4, Ex. B at 179:23-180:20.
But even looking past the fact that nearly all of the underlying allegations either lack evidentiary support or were rejected on other grounds by the Court, Mokhtar still falls well short of meeting her prima facie burden because none of the acts she alleges, whether considered alone or cumulatively, come close to meeting the demanding standard for a hostile work environment claim. In particular, "even genuinely troublesome conduct"—very little, if any, of which Mokhtar has established in this case—generally "is not sufficient when the incidents are [isolated] and spread out over a period of years, as is the case here," where Mokhtar alleges various unrelated slights between 2007 and 2011. Brantley v. Kempthorne, No. 06-1137, 2008 WL 2073913, at *8 (D.D.C. May 13, 2008); see also Akonji v. Unity Healthcare, Inc., 517 F.Supp.2d 83, 97-99 (D.D.C.2007) (granting summary judgment for employer despite five incidents of sexual harassment over two-year period, including physical acts such as unconsented touching of the plaintiff). Instead, the events about which Mokhtar complains merely are "the ordinary tribulations of the workplace" and not the type of pervasive or "extreme" conduct that creates a hostile work environment. Faragher, 524 U.S. at 788, 118 S.Ct. 2275.
In fact, these events are hardly indicative of workplace discrimination to begin with, let alone evidence of "a work environment that was pervaded by discrimination," as is required to sustain a claim.
In conclusion, the Court finds that Mokhtar failed to exhaust many of the allegations in her complaint before filing this lawsuit, and those remaining claims that she did exhaust fail on the merits either because the Department offers unrebutted non-discriminatory reasons for its decisions or because Mokhtar does not provide competent evidence to establish the necessary prima facie elements for her claims. As such, at the end of the day, none of Mokhtar's claims survive the Department's motion for summary judgment.
For the foregoing reasons, the Court
