Howard v. Kerry: Court Denies Motion to Dismiss One Retaliation Claim

Posted: 10:52 am EDT
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Excerpt from Civil Action No. 14-727 (JDB) by Judge John D. Bates of the United States District Court of the District of Columbia:

Kerry Howard, a former Community Liaison Officer at the American consulate in Naples, did not enjoy her working environment. That is an understatement, to be fair: she refers to it as a “cesspool.” Pl.’s Opp’n [ECF No. 21] at 3. In this suit, Howard asserts that she suffered from a hostile work environment that was discriminatory to women, and from discrete instances of retaliation for her attempts to aid fellow employees. But these claims do not match precisely with those she raised during the administrative process. As a result, some must be dismissed, based on the defendant’s motion to do so.
[…]
Here, Howard filed administrative charges alleging only two discrete retaliatory acts: her poor evaluation on April 19, 2012, and being placed on a performance improvement plan that same day. See Notice of Dismissed Allegations [ECF No. 13-2] at 5. Both were dismissed administratively for failure to contact an EEO counselor within forty-five days, as required by the first step of the exhaustion process. See id. Since then, however, it has become clear to both parties that Howard did timely request an EEO counselor on May 7, 2012—regarding her performance improvement plan. See Pl.’s Supp. at 2; Def.’s Resp. at 3. This claim was therefore appropriately exhausted. The Court will accordingly deny defendant’s motion to dismiss as to the retaliation claim regarding that performance improvement plan.1
[…]
Odious the allegations may be—but Title VII “does not set forth a general civility code for the American workplace.” Burlington, 548 U.S. at 68 (internal quotation marks and citations omitted) (citing precedent that courts “must filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language” (internal quotation marks omitted)). Thus, the Court will grant the government’s motion to dismiss the remainder of Count I.

More straightforward is the government’s assertion that Howard failed to exhaust her hostile work environment claim. In the hostile work environment context—as opposed to discrete instances of retaliation—it is settled that claims “like or reasonably related to the allegations of the administrative charge may be pursued in a Title VII civil action, notwithstanding the failure to otherwise exhaust administrative remedies.” Bell, 724 F. Supp. 2d at 8 (internal quotation marks, citation, and alteration omitted); see also Morgan, 536 U.S. at 115 (“Hostile environment claims are different in kind from discrete acts.”). “A new claim is ‘like or reasonably related’ to the original claim if it ‘could have reasonably been expected to grow out of the original complaint.’” Bell, 724 F. Supp. 2d at 8–9 (quoting Weber v. Battista, 494 F.3d 179, 183 (D.C. Cir. 2007)).

“Claims of ideologically distinct categories of discrimination and retaliation, however, are not ‘related’ simply because they arise out of the same incident.” Id. at 9 (internal quotation marks omitted). As this Court has pointed out before, “[t]he EEOC charge form makes it easy for an employee to identify the nature of the alleged wrongdoing by simply checking the labeled boxes that are provided. When an employee is uncertain which type of discrimination has occurred, she need only describe it in the text of the charge form.” Williams v. Spencer, 883 F. Supp. 2d 165, 174 (D.D.C. 2012) (internal quotation marks and citation omitted). In Howard’s formal complaint, she checked the box for reprisal—not for sex discrimination. See Formal Compl. of Discrimination [ECF No. 13-1] at 2. And the explanation she attached to the form similarly focuses on reprisal alone. See id. at 3–4. Thus, “[t]o the extent that [Howard] is attempting to claim that [the hostile work environment] was discriminatory based on [sex], as opposed to retaliatory, [the government] is correct that [Howard] did not exhaust her administrative remedies.” Williams, 883 F. Supp. 2d at 174. As a result, the Court will grant the government’s motion to dismiss as to Count II (hostile work environment based on discrimination).

Read in full at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0727-25.

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