1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

BLANCA ZELAYA )

)

Plaintiff, )

)

v. ) Civil Action No. 07-02311 (RCL)

)

UNICCO SERVICE COMPANY, et al., )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION

This matter comes before the Court on defendant UNICCO Service Company’s

(“UNICCO”) and defendant Carlos Alarcon’s “Motion [51] for Partial Summary 

Judgment”. Upon full consideration of the motion, the opposition and reply thereto, the 

applicable law, and the entire record herein, the Court finds, for the reasons set forth

below, that defendants’ motion for partial summary judgment will be DENIED in part 

and GRANTED in part.

I. BACKGROUND

Plaintiff Blanca Zelaya worked for defendant UNICCO as a custodian providing 

cleaning services at 1200 K Street in Washington, D.C., starting in 2004. (Compl. ¶ 9.) 

Plaintiff alleges that from January 2005 until November 2006, UNICCO discriminated 

and retaliated against her based on her gender, and defendant Carlos Alarcon sexually 

harassed her, creating a hostile work environment. (Compl. ¶¶ 15-60.)

With respect to the actions of individual defendants, plaintiff alleges that her 

problems at UNICCO began shortly after January 4, 2005, when UNICCO promoted 

Alarcon to the position of Building Operations Manager at 1200 K Street. (Compl. ¶ 13.) 
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As Manager, Alarcon supervised plaintiff. (Compl. ¶ 13.) According to plaintiff, almost 

immediately after becoming supervisor, defendant Alarcon began making offensive and 

unwelcome sexual comments and sexual advances toward her while she was pregnant. 

(Compl. ¶ 15.)

Plaintiff alleges that from January 2005 and continuing until April 2006, Alarcon

subjected plaintiff to an extensive campaign of explicit comments, sexual propositions, 

unwanted touching, harassment, and other retaliatory job-related conduct after she 

refused his advances. (Compl. ¶¶ 15-60.) Plaintiff further alleges that Alarcon facilitated 

the revocation of her health insurance benefits and enlisted the support of other 

individuals on his behalf. Specifically, Alarcon first involved Oscar Argueta to 

“monitor” plaintiff, and to seek a reason to fire her in early 2005. (Compl. ¶¶ 21-23.)

She subsequently took extended leave from her job, beginning of May 18, 2005, and gave 

birth to her child. (Compl. ¶¶ 21-23.)

Thereafter, beginning at some point after August 2005 when plaintiff returned to 

work following the birth of her son, Alarcon allegedly enlisted Carlos Fernandes to

monitor plaintiff. He allegedly issued inaccurate disciplinary notices, eliminated her

break, and attempted to drive her to a meeting with a human resources officer about her 

complaints of harassment. (Compl. ¶¶ 34, 35, 45, 56.)

Plaintiff filed a discrimination complaint with the District of Columbia Office of 

Human Rights (“DCOHR”) on April 18, 2006, listing UNICCO as the respondent and 

attaching her signed declaration. The first paragraph reads as follows:

I, Blanca Zelaya, this 14th day of April, 2006, am 

submitting this declaration in support of my claims against 

the UNICCO Services Company (“UNICCO”) for sexual 

harassment, creation of a hostile work environment, and 
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retaliation in violation of Title VII of the Civil Rights Act 

of 1964, as amended by the Civil Rights Act of 1991, 42

U.S.C. § 2000e et seq., and against UNICCO and Carlos 

Alarcon, Operations Manager, for sexual harassment, sex 

discrimination, and unlawful retaliation in violation of the 

District of Columbia Human Rights Act (“DCHRA”), D.C. 

Code §§ 1-2501 et seq. (emphasis added).

(DCOHR Compl. Form; Pl.’s Opp’n to Defs.’ Mot. to Dismiss, Ex. A [13-2].) The 

DCOHR complaint was cross-filed with the Equal Employment Opportunity Commission 

(“EEOC”). (Compl. ¶ 74.) The charge of discrimination generated during this process 

was sent via certified mail to UNICCO on April 28, 2006, lists UNICCO as the employer 

that discriminated against the plaintiff, and under the section allowing for description of 

the particulars of the charge, only generically refers to a singular “Respondent’s Building 

Operations Manager (Male).” (DCOHR Charge of Discrimination; Defs.’ Reply to Pl.’s 

Opp’n to Defs.’ Mot. to Dismiss, Ex. 1 [14-2].)

In addition, plaintiff alleges that UNICCO retaliated against her in July 2006 by 

denying her time off to attend a mediation of her claims by DCOHR. (Compl. ¶

58.) On November 9, 2006, UNICCO assigned plaintiff to a position at another building. 

(Compl. ¶ 63.) Plaintiff alleges that UNICCO’s retaliation culminated in her termination

by transferring her to another building, where she claims UNICCO knew it would soon 

lose the maintenance contract. (Compl. ¶¶ 63-64.) On April 23, 2007, UNICCO lost the 

contract on the building, and plaintiff was no longer employed by UNICCO as of that 

date. (Compl. ¶ 66.) 

A new company, Cavalier, took over responsibility for cleaning the building and 

offered plaintiff a position, which she turned down. (Compl. ¶¶ 66, 69.) However, 

plaintiff alleges Cavalier constructively discharged her by offering her a work schedule 
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preventing her from taking care of her son, even though other positions were available. 

(Compl. ¶¶ 68-69.) Plaintiff alleges that defendants UNICCO and Alarcon made false

and defamatory statements about the plaintiff, which caused Cavalier to offer her the 

untenable work schedule. (Compl. ¶¶ 68-69.) Plaintiff states that Cavalier should have 

offered her a different position because she had more seniority than the two other

employees at the work site who held daytime positions like her.

1

Plaintiff withdrew the complaint she previously filed with DCOHR on November 

14, 2007 and requested a Right to Sue Notice from the EEOC, which the EEOC issued on 

December 5, 2007. (Compl. ¶ 74.) On December 21, 2007, plaintiff filed the complaint 

in this matter. The complaint consisted of five counts as follows: (1) Title VII 

discrimination against defendant UNICCO; (2) DCHRA discrimination against defendant 

UNICCO and its individual employees, defendants Alarcon, Argueta, and Fernandes; (3) 

Title VII and DCHRA retaliation against defendant UNICCO; (4) DCHRA aiding and 

abetting of defendant UNICCO’s retaliation by defendants Alarcon, Argueta, and 

Fernandes; and (5) intentional interference with prospective contractual relations against

defendant UNICCO. The Court dismissed count (5) against defendant UNICCO and all 

counts against defendants Argueta and Fernandes, and denied defendant Alarcon’s 

Motion to Dismiss. Defendants’ motion for partial summary judgment targets counts (3)

and (4).

(Compl. ¶ 68.)

II. STANDARD OF LEGAL ANALYSIS

 1 This allegation appears to be a reference to the rights plaintiff may have enjoyed pursuant to the 

Collective Bargaining Agreement applicable to her as between the Service Employees International Union 

Local 82 and commercial office building cleaning contractors such as Cavalier and UNICCO. (See Defs’. 

Mot. for Partial Summ. J., Ex. C [51-6].) 
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Defendants request the Court to grant summary judgment on plaintiff’s retaliation 

complaint. Summary judgment is appropriate “if the pleadings, the discovery and 

disclosure materials on file, and any affidavits show that there is no genuine issue as to 

any material fact and that the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(c). “In assessing whether a genuine issue exists, we ‘view the evidence in the 

light most favorable to the nonmoving party.’” Porter v. Shah, 2010 U.S. App. LEXIS 

11033 at *7 (quoting Miller v. Hersman, 594 F.3d 8, 10 (D.C. Cir. 2010)). A genuine 

dispute of material fact concerning the lapse in plaintiff’s health benefits does not exist; 

thus, summary judgment on this issue is appropriate.2

Retaliation claims are governed by a three-step test established in McDonnell 

Douglas Corp. v. Green. 411 U.S. 792, 802 (1973). A movant must display that 1) she 

was part of a protected class; 2) suffered a materially adverse action, and; 3) the 

adverse action is causally connected to the plaintiff’s status within the protected class. 

Id. A materially adverse action is one that “could well dissuade a reasonable worker 

from making or supporting a charge of discrimination.” Burlington N. & Sante Fe Ry. 

v. White, 548 U.S. 53, 57 (2006) (other internal quotation omitted), or one resulting in 

“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.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. 

Cir. 2002). Examples of adverse employment actions include “a significant change in 

employment status, such as hiring, firing, failing to promote, reassignment with 

 2 Plaintiff’s claim arises from her retaliation claim, not her initial sexual discrimination claim, as defendant 

asserts. Summary judgment should be granted regardless of whether defendant’s motion falls under the 

auspices of plaintiff’s sexual discrimination or retaliation claim.
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significantly different responsibilities, or a decision causing significant change in 

benefits.” Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998).

“If the plaintiff [satisfies the McDonnell Douglas test], then the burden shifts to 

the employer to offer a legitimate, nondiscriminatory reason for its action.” Taylor v. 

Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009) (quoting Wiley v. Glassman, 511 F.3d 151, 

155 (D.C. Cir. 2007)). “If the employer does so, then the court ‘need not – and should 

not – decide whether the plaintiff actually made out a prima facie case under 

McDonnell Douglas.” Id. (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 

494 (D.C. Cir. 2008) (emphasis in original)). “The court should proceed to the question 

of retaliation vel non.” Id. “The court can resolve that question in favor of the 

employer based either upon the employee’s failure to rebut its explanation or upon the 

employee’s failure to prove an element of her case.” Id. 

III. TIMELINESS OF PLAINTIFF’S CLAIM FOR RETALIATORY DENIAL 

OF BENEFITS

Plaintiff brings a retaliation claim against defendant for revoking her health 

insurance benefits. Defendants submit that plaintiff’s retaliation claim for lapses of 

health insurance benefits is time-barred. The Court finds that plaintiff’s retaliation claim

for benefits lapses exceeds the statute of limitations in Title VII entirely, and exceeds the 

DCHRA statute of limitations in part.

A. Plaintiff’s Retaliation Claim Concerning Lapses of Insurance Benefits is TimeBarred under Title VII

Defendant contends that plaintiff’s retaliation claim concerning lapses of 

insurance benefits exceeds the 300 day statute of limitations under Title VII of the 1964 

Civil Rights Act. 42 U.S.C. § 2000e-5 (2006). When considering the timeliness of a 
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retaliation claim under Title VII, the charge must be filed with the EEOC within 300 days 

“‘after’ the unlawful practice ‘occurred.’” AMTRAK v. Morgan, 536 U.S. 101, 109-10 

(2002) (emphasis added). “A discrete retaliatory or discriminatory act ‘occur[s]’ on the 

day that it ‘happen[s].’” Id. at 110. 

Plaintiff discovered the first lapse in March 2005 and the second lapse on or about 

May 27, 2005, indicating that the acts “happened” no later than May 27, 2005. (Zelaya 

Dep. [64-3] 81:13-17.) Plaintiff’s claim, filed on April 18, 2006, must concern alleged 

retaliatory acts no more than 300 days prior, establishing June 23, 2005 as the critical 

date.3

Plaintiff fails to present evidence demonstrating a concrete injury after May 27, 

2005, which would permit this Court to hear her claim. Bazemore v. Friday, 478 U.S. 

385, 395 (1986) (holding that “each week’s paycheck that delivered less to a black than 

to a similarly situated white is a wrong actionable under Title VII” that would extend the 

limitations period). Accordingly, plaintiff’s Title VII claim for retaliatory denial of 

benefits is time-barred.

 (DCOHR Charge of Discrimination; Defs.’ Mot. for Partial Summ. J., Ex. GG

[51-35].) Neither discovery falls within the limitations period. 

Entertaining plaintiff’s claim would require the Court to consider defendant’s 

ongoing withholding of plaintiff’s benefits until restoration in August 2005. (Defs.’

Statement of Material Facts Not in Genuine Dispute ¶ 54.) Defendant compensated 

plaintiff for erroneously withholding plaintiff’s benefits in August 2005, within the 

 3 Plaintiff dated her discrimination charge April 27, 2006, and defendant submits that establishes the date 

on which plaintiff filed her claim with the DCOHR. The charge, however, was notarized on April 18, 

2006. The Court establishes the critical date based on the date upon which the charge was notarized, i.e., 

April 18, 2006. Plaintiff’s claim, nonetheless, would be time-barred under Title VII and partially timebarred under the DCHRA regardless of whether the Court found April 27, 2006 or April 18, 2006 to be the 

filing date.
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statutory timeframe, but the law does not classify compensation for withheld benefits as a 

retaliatory act.4

 Such incorporation would condone the continuing violation doctrine, 

which the Morgan Court specifically eschewed.5

B. Plaintiff’s Complaint with the District of Columbia Office of Human Rights is 

Partially Time-Barred

 Acts which are not independently 

discriminatory cannot be used to “pull in the time-barred discriminatory act.” Morgan, 

536 U.S. at 113 (quoting Delaware State College v. Ricks, 449 U.S. 250, 257 (1980)). 

“Each incident of discrimination and each retaliatory adverse employment decision 

constitutes a separate, actionable ‘unlawful employment practice.’” Id. at 114. Plaintiff 

demonstrates that the last allegedly “retaliatory adverse employment decision” regarding 

benefits lapses occurred on or about May 27, 2005. Thus, plaintiff had 300 days from the 

discovery of the second lapse to bring her claim. Plaintiff’s retaliation complaint, as it 

pertains to the two temporary lapses in benefits, is time-barred under Title VII.

The statute of limitations for claims before the District of Columbia Office of 

Human Rights (“DCOHR”) is one year. D.C. Code § 2-1403.16. Plaintiff filed her claim 

with the DCOHR on April 18, 2006, establishing April 18, 2005 as the critical date under 

the DCHRA. (DCOHR Charge of Discrimination; Defs.’ Mot. for Partial Summ. J., Ex. 

GG [51-35].) The initial lapse, which plaintiff discovered in March 2005, is time-barred; 

 4 See, e.g., 42 U.S.C. § 2000e-2(a) (classifying “...discriminat[ing] against any individual with respect to 

his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, 

religion, sex, or national origin...” as unlawful discrete, discriminatory acts). 

5 The Court rejected an assertion that “the language [of 42 U.S.C. § 2000e] requires the filing of a charge 

within the specified number of days after an ‘unlawful employment practice.’ ‘Practice,’ Morgan 

contend[ed], connotes an ongoing violation that can endure or recur over a period of time...In Morgan's 

view, the term ‘practice’ therefore provides a statutory basis for the Ninth Circuit’s continuing violation 

doctrine. This argument is unavailing, however, given that 42 U.S.C. § 2000e-2 explains in great detail the 

sorts of actions that qualify as ‘unlawful employment practices’ and includes among such practices 

numerous discrete acts.” 536 U.S. at 110-11.
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however, the second lapse is timely because it was discovered on or about May 27, 2005, 

within the limitations period. (Zelaya Dep. [64-3] 81:13-17; Fawehinmi Aff. [64-1] at 2.) 

Plaintiff’s DCOHR complaint reads, in relevant part, “I gave birth on May 25, 

2005 and took two months unpaid leave and paid for much of my medical expenses outof-pocket because [plaintiff] did not restore my health coverage until August of 2005.” 

(DCOHR Charge of Discrimination; Defs.’ Mot. for Partial Summ. J., Ex. GG [51-35].) 

Plaintiff definitively articulated that her grievance occurred not only in March 2005, but 

also on or about May 25, 2005. The aforementioned standards set forth in Bazemore and

Morgan that each retaliatory adverse employment decision constitutes a separate, 

actionable ‘unlawful employment practice’” therefore refute defendants’ timeliness 

claim. Plaintiff’s claim that defendants retaliated against her by withholding benefits on 

or about May 27, 2005, is not time-barred under the DCHRA. 

IV. RETALIATORY DENIAL OF BENEFITS

The Court considers only plaintiff’s retaliation claim for a lapse in benefits 

pursuant to the DCHRA because plaintiff’s Title VII claim is time-barred. “The Title 

VII prima facie case analysis established in McDonnell Douglas v. Green, 411 U.S. 

792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), has been held to apply to such suits under 

the District’s Human Rights Act.” Howard Univ. v. Green, 652 A.2d 41, 45 n.4 (D.C. 

1994). McDonnell Douglas and its progeny within our Circuit establish a series of 

factors to consider when determining whether to grant summary judgment.

Plaintiff claims “it is unlawful for an employer ‘to discriminate against any of 

[its] employees . . . because [she] has made a charge . . . or participated in any manner 
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in an investigation’ of discrimination.” Solis, 571 F.3d at 1320 (D.C. Cir. 2009) 

(quoting 42 U.S.C. § 2000e-3(a)). 

Denial of benefits, as defendant readily admits, adversely impacts protected 

parties under the DCHRA. (Defs’. Mot. for Partial Summ. J. at 11 (citing Ellerth, 524 

U.S. at 761).) Plaintiff was denied her health benefits on or about May 27, 2005 because 

defendant “dropped the ball,” according to defendant’s union benefits administrator and 

defendant’s employee, Barbara Guldan, and therefore suffered an adverse employment 

action. (Fawehinmi Aff. [64-1] at 2; Email from Barbara Guldan, UNICCO employee, to 

James Canavan, UNICCO employee (10/28/2005, 08:47:00 EST), Ex. 8 [64-1].) 

The Court, upon finding an adverse employment action, must then resolve

whether defendants assert a “legitimate, nondiscriminatory or nonretaliatory reason for 

each [allegedly retaliatory act],’” Shah, 2010 U.S. App. LEXIS 11033 at n.2 (quoting 

Brady, 520 F.2d at 494-95) and “whether a reasonable jury could infer retaliation based 

on all of the evidence, including ‘not only the prima facie case but also the evidence the 

plaintiff offers to attack the employer’s proffer for its action and other evidence of 

retaliation.’” Id. at *6 (citing Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010)); 

See also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) (holding that 

the question of retaliation should be reduced to whether a reasonable jury could find the 

defendants’ “proffered explanation . . . unworthy of credence”). 

Defendants offer a nondiscriminatory reason for the challenged action, positing 

that a “clerical error” caused plaintiff to lose her health benefits on or about May 27, 

2005. (Fawehinmi Aff. [64-1] at 2.) Neither party disputes that defendant restored 

plaintiff’s benefits on or about August 1, 2005, and compensated plaintiff for the 
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expenses she incurred. (Defs.’ Facts ¶ 54.) Plaintiff’s medical bills demonstrate that her 

insurance carrier reimbursed her for the lapse. (Dr. Thompson Billing R., Ex. HH [51-

36]; Sibley Hospital Billing R., Ex. II [51-37].) Plaintiff cites an internal UNICCO email 

admitting that it “dropped the ball” regarding plaintiff’s health insurance. However, a 

clerical error and “drop[ping] the ball” fail to establish animus and the Court proceeds to 

the question of retaliation vel non. Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 

2009). 

When the defendant offers a legitimate reason for engaging in the allegedly 

retaliatory act, the “‘central inquiry’ for the court is ‘whether the plaintiff 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 plaintiff on a prohibited basis.’” Shah, 2010 U.S. App. LEXIS 

11033 at *12-13 (quoting Adeyemi v. District of Columbia, 525 F.3d 1222, 1226-27 

(D.C. Cir. 2008). 

Two UNICCO agents submitted two separate leave forms on plaintiff’s behalf to 

the UNICCO human resources office. Oscar Argueta, an agent of UNICCO, submitted a 

second maternity leave form on plaintiff’s behalf with a leave code differing from the 

original leave form submitted by UNICCO agent Maria Delgado. (Separation/Leave 

Form, Exs. 5 & 6 [64-1].) Argueta unquestionably coded plaintiff’s leave form 

improperly. (Lyons Dep. [64-3] 94:14-20.) Argueta’s submitted form, however, is dated 

June 10, 2005, two weeks after plaintiff delivered her child and claims she was denied 

benefits. (Separation/Leave Form, Ex. 6 [64-1].) Plaintiff’s basis for claiming that a 

second retaliatory revocation of benefits occurred rests on Argueta’s miscoded form, 
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asserting that it is a “reasonable inference . . . that Mr. Argueta deliberately miscoded the 

leave form, which led to the second lapse in [plaintiff’s] health benefits.” (Mem. of P. & 

A. in Opp’n to Defs.’ Mot. for Partial Summ. J. at 9.) Plaintiff thus fails to present a

genuine issue as to the legitimacy of the lapse: Argueta’s miscoding on June 10, 2005 

could not have caused a lapse in benefits to occur on or about May 27, 2005. No 

reasonable jury could find that Argueta’s submission on June 10, 2005 resulted in a lapse 

two weeks prior.

Furthermore, plaintiff fails to “produce[] sufficient evidence for a reasonable jury 

to find that the employer’s asserted non-discriminatory reason was not the actual reason 

and that the employer intentionally discriminated against the plaintiff . . .” beyond her 

assumption that Argueta’s miscoded form caused the lapse. Shah, 2010 U.S. App. 

LEXIS 11033 at *12-13 (quoting Adeyemi v. District of Columbia, 525 F.3d 1222, 1226-

27 (D.C. Cir. 2008). “‘[S]peculations . . . are insufficient to create a genuine issue of fact 

regarding [an employer’s] articulated reasons for [its decisions] and avoid summary 

judgment.’” Id. at *18 (quoting Brown v. Brody, 199 F.3d 446, 458-59 (D.C. Cir. 1999).

Lastly, while defendant UNICCO admits it “dropped the ball” regarding 

plaintiff’s benefits lapse, no evidence of a discriminatory or retaliatory purpose exists, 

and hospital records reveal that plaintiff was reimbursed for her expenses. (Email from 

Barbara Guldan, UNICCO employee, to James Canavan, UNICCO employee 

(10/28/2005, 08:47:00 EST), Ex. 8 [64-1]; Dr. Thompson Billing R., Ex. HH [51-36]; 

Sibley Hospital Billing R., Ex. II [51-37].) The Court therefore grants defendants’

motion for partial summary judgment concerning plaintiff’s claim for retaliatory lapses of 

health insurance benefits.
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V. PLAINTIFF’S RETALIATION CLAIM

Defendants seek summary judgment on several points of plaintiff’s retaliation 

claim. Defendants claim that a change in plaintiff’s schedule, an attempt to give plaintiff 

a ride to a meeting, denial of a day off to attend a DCOHR meeting, assigning a colleague 

to monitor plaintiff, transferring plaintiff to another locale, and plaintiff’s ultimate job 

loss do not constitute retaliation. For the reasons stated below, the Court partially grants 

and partially denies defendants’ motion. 

A. Plaintiff’s Schedule Change, Defendants’ Agent’s Request to Drive Plaintiff to 

a Meeting, Amaya’s Presence, and Defendant’s Initial Refusal to Permit 

Plaintiff’s Leave Request are not Materially Adverse

Plaintiff’s claims that defendants retaliated against her by removing her fifteen

minute break, threatening her employment through a request to attend a meeting, and 

assigning an employee to monitor her do not satisfy the requisite material adversity to 

survive summary judgment. Such “minor ‘inconveniences and alteration[s] of job 

responsibilities [do] not rise to the level of adverse action’ necessary to support a claim.” 

Solis, 571 F.3d at 1321 (quoting Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 

2002)). “Petty slights and minor annoyances,” such as these, are not actionable. 

Burlington N., 548 U.S. at 68. 

1. Plaintiff’s schedule change is not materially adverse

Plaintiff contends that revocation of her fifteen minute break demonstrates 

retaliation. Assuming that plaintiff’s allegations bear truth, as the Court must do at this 

stage of the proceedings, defendants retaliated against plaintiff by removing a fifteen 

minute break. However, revocation of a fifteen minute break is not materially adverse to 

plaintiff. A materially adverse action is one that “could well dissuade a reasonable 
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worker from making or supporting a charge of discrimination,” Burlington N., 548 U.S. 

at 57, or one resulting in “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.” Forkkio, 306 F.3d at 1131. 

Defendants’ revocation of plaintiff’s break does not rise to the level of 

“objectively tangible harm,” nor did it significantly impact plaintiff’s potential for a 

promotion or compensation. Defendants maintained a one hour lunch break for plaintiff 

and simply required plaintiff to engage in the job for which she was hired. Revocation of 

a break exemplifies a minor inconvenience or petty slight, and defendants were required 

to provide only a thirty minute break for employees working over six hour shifts under 

the collective bargaining agreement with the Service Employees International Union. 

(Defs’. Mot. for Partial Summ. J., Ex. C [51-6] at Art. 3, § 4.) The Court thus considers 

whether revoking a fifteen minute break could dissuade a reasonable worker from making 

or supporting a charge of discrimination.

Assuming, as plaintiff asserts, that plaintiff and her colleague Ramon Gaitan were 

the only day porters to lose their break privilege among UNICCO service employees in 

Washington, D.C., revocation of a break nonetheless would not dissuade a reasonable

employee from making a claim. Plaintiff provides no legal justification demonstrating 

that revocation of a privilege constitutes materially adverse retaliation. Furthermore, 

plaintiff incurred neither financial detriment nor loss of potential advancement. Lastly, 

defendants allotted fifteen minutes more than required by the collective bargaining 

agreement for plaintiff’s break. Id. Plaintiff’s claim does not satisfy the requisite 

material adversity.
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2. Defendants’ agent’s request for plaintiff to accompany him to a 

meeting is not materially adverse

Plaintiff claims that defendants’ agent retaliated against her by threatening her

employment with UNICCO and rudely demanding that she accompany him to a meeting 

with defendants. This Circuit, however, “[has] been unwilling to find adverse actions 

where the [threatened action] is not actually served.” Baloch v. Kempthorne, 550 F.3d

1191, 1199 (2008). In Baloch, the Court of Appeals held that proposed suspensions that 

defendants never imposed on an employee were not materially adverse. Id. Similarly, 

defendants’ agent’s threat did not result in UNICCO’s termination of plaintiff. A 

“reasonable worker in [plaintiff’s] position would not have taken [defendant’s] brief, 

fleeting, and unadorned verbal statement as an act or threat of retaliation.” Gaujacq, 601 

F.3d at 578. Plaintiff ultimately lost her employment subsequent to defendants’ ability to 

terminate her. Plaintiff’s assertion that defendants retaliated against her by sending an 

agent to escort her to a meeting fails to reach material adversity. 

3. Defendants’ monitoring of plaintiff is not materially adverse

Plaintiff contends that defendants retaliated against her by transferring Ramon 

Gaitan, one of her colleagues, and assigning UNICCO employee Ruben Amaya to

monitor her. She claims that Amaya reported her to their superiors for delivering ice 

cream to an acquaintance in the building and consequently faced an investigation. For a 

performance evaluation or investigation to be materially adverse, it must dissuade a 

reasonable employee from bringing or supporting a claim of discrimination or affect the 

employee’s “position, grade level, salary, or promotion opportunities.” Baloch, 550 F.3d 

at 1199. “Petty slights and minor annoyances,” such as a temporary monitor, would not 
16

“deter reasonable employee[s] from making a charge of discrimination.” Solis, 571 F.3d 

at 1321. 

Plaintiff does not produce sufficient evidence that she suffered tangible job 

consequences resulting from the monitoring that would prevent a reasonable employee 

from bringing or supporting a discrimination claim. Furthermore, this case does not 

concern alleged retaliation against Mr. Gaitan and any harm inflicted upon him is nonadjudicable presently. Plaintiff herself demonstrates that no repercussions resulted from 

the investigation, admitting that her supervisors expressly stated that “if she wants to give 

[her acquaintance] ice cream, I don’t really care” and that such action would not have 

violated company policy. (Machak Dep. [64-3] 36:6-38:11; Fernandes Dep. [64-3] 

183:2-22.) Plaintiff’s claim that defendants retaliated against her by assigning a 

colleague to monitor is not a materially adverse action.

4. Defendants’ initial denial of plaintiff’s leave request is not 

materially adverse

Defendants’ initial denial of plaintiff’s leave request and subsequent approval to 

attend her DCOHR mediation hearing is not an adverse action because defendants failed 

to refuse plaintiff’s request and did not jeopardize plaintiff’s “position, grade level, 

salary, or promotion opportunities” by threatening to refuse her request. Baloch, 550 

F.3d at 1199. Such an action ostensibly should not deter a reasonable employee from 

filing a discrimination claim because, ultimately, defendants permitted plaintiff the 

requested leave without endangering compensatory or advancement potential. To 

reiterate, a petty slight or annoyance does not rise to the level of an adverse action. Solis, 

571, F.3d at 1321. 
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B. Plaintiff Raises a Genuine Issue of Material Fact Concerning Her Transfer 

from 1200 K Street to 2550 M Street

Plaintiff alleges that defendants retaliated against her by transferring her to 

another building under contract with UNICCO. As previously established, plaintiff must 

establish a prima facie case of retaliation by demonstrating that 1) she was part of a 

protected class; 2) suffered a materially adverse action, and; 3) the adverse action is 

causally connected to the plaintiff’s status within the protected class. See, e.g., 

McDonnell Douglas, 411 U.S. at 802. A materially adverse action is one that “could well 

dissuade a reasonable worker from making or supporting a charge of discrimination.” 

Burlington N., 548 U.S. at 57. Transferring defendant from 1200 K Street to 2550 M 

Street required plaintiff to sacrifice her seniority, adversely affecting her employment 

with UNICCO.

1. Plaintiff’s transfer was materially adverse

Defendants transferred plaintiff from 1200 K Street to 2550 M Street in 

November 2006. Such a reassignment, through which plaintiff sacrificed neither 

compensation nor benefits, constitutes a lateral transfer. See Stewart v. Ashcroft, 352 

F.3d 422, 426 (D.C. Cir. 2003). Defendants err in assuming that lateral transfers cannot 

reach material adversity simply because plaintiff was required to move less than two 

miles to another building without loss of pay or benefits. Id. When employers laterally 

transfer employees, our Circuit has held that “withdrawing an employee’s supervisory 

duties constitutes an adverse employment action,” id., as does “reassignment with 

significantly different responsibilities.” Forkkio, 306 F.3d at 1131. Plaintiff’s transfer 

reaches this echelon of material adversity because it could persuade a reasonable 

employee from bringing or supporting a claim of discrimination. 
18

Plaintiff contends that the transfer was an adverse action because she lost the 

relationships she fostered with the tenants at 1200 K Street as well as her seniority as a 

UNICCO employee. The Court first assesses whether losing plaintiff’s relationship with 

the tenants at 1200 K adversely impacted her. The record clearly indicates an array of 

views concerning plaintiff’s work ethic and preferences for her presence as a building 

employee among the tenants, demonstrating that loss of each of these relationships 

simply could not adversely impact plaintiff. (See, e.g., Alarcon Dep. 141: 6-14 [64-3]; 

Cheek Dep. 11:7-12:16 [64-3].) The Court agrees with defendants’ interpretation of 

Brown v. Brody that subjective dissatisfaction with working conditions, without more, 

does not create “materially adverse consequences affecting the terms, conditions, or 

privileges” of employment that would dissuade a reasonable employee from bringing a 

claim. Brown, 199 F.3d at 457. Additionally, the collective bargaining agreement 

governs which employees lose assignments when downsizes occur, not the subjective 

preferences of tenants. (Defs’. Mot. for Partial Summ. J., Ex. C [51-6] at Art. 7, § 1.) 

Zelaya’s lost relationships with the tenants at 1200 K Street, while subjectively 

detrimental, do not adversely impact her employment.

The Court agrees, however, that loss of seniority resulting from a transfer is a 

materially adverse action. The collective bargaining agreement reads, in relevant part, 

“Seniority, by classification, shall be the sole factor in determining the employees’ layoff 

and recall order.” (Id.) The SEIU and various service employers determine seniority 

based upon length of service with the employer or service in a building, whichever is 

longer. Loss of the benefits attached to accrued seniority could dissuade a reasonable 

employee from bringing a discrimination claim because the employee risks employment 
19

itself whenever faced with a transfer and subsequent downsize. Losing seniority is 

tantamount to a significant forfeiture of an employment benefit, which the Supreme 

Court classified as an adverse action. Ellerth, 524 U.S. at 761. Plaintiff’s transfer is 

materially adverse.

2. Plaintiff’s transfer and complaint are causally connected

Defendants contend that plaintiff’s discrimination complaint and her transfer to 

2550 M Street were not causally connected. The third facet of the McDonnell Douglas

test requires a movant to demonstrate a causal relationship between the retaliatory act and 

a protected activity. 411 U.S. at 802. Defendants claim that the transfer’s temporal 

proximity to plaintiff’s complaint of six months demonstrates a lack of causality, citing 

various cases within our Circuit holding that a two or three month gap between an alleged 

retaliatory action and a complaint disproves causation. (Defs.’ Mot. for Partial Summ. J. 

[51-1] at 21-22.) Plaintiff’s transfer, however, directly resulted from the alleged 

retaliatory actions of defendant Alarcon, and “. . . an adverse action following closely on 

the heels of a protected activity may in appropriate cases support an inference of 

retaliation even when occurring years after the initial filing of charges.” Jones v. 

Bernanke, 557 F.3d 670, 681 (2009).

Plaintiff alleges that defendant Alarcon issued two false disciplinary notices in 

retaliation for her discrimination complaint. For such a notice to be materially adverse, it 

must affect the employee’s “position, grade level, salary, or promotion opportunities.” 

Baloch, 550 F.3d at 1199. Based upon plaintiff’s proffer, a jury could reasonably infer 

that Alarcon’s notices affected plaintiff’s position and benefits. Robert Fuller, the 

property manager at 1200 K Street, approved plaintiff’s transfer to 2550 M Street because 
20

of unsatisfactory performance reviews he received from UNICCO supervisors. (Fuller 

Dep. [64-3] 155:9-156:19.) Defendants provide evidence of one isolated incident in 

which a building tenant complained of plaintiff’s performance, which the tenant 

subsequently retracted. (Cheek Dep. [64-3] 11:7-12:16.) Furthermore, Fuller states that 

a UNICCO employee suggested the transfer and that he would not have consented to a 

transfer solely because of the tenant’s initial complaint. (Fuller Dep. [64-3] 155:9-

156:19.) This raises a reasonable inference that the transfer, motivated by Fuller’s 

professional opinion of plaintiff as formed by UNICCO supervisors, was causally 

connected to plaintiff’s complaint. A dispute of material fact thus exists, and summary 

judgment concerning defendants’ alleged retaliatory notices and transfer is denied.

3. Defendants have not offered a legitimate, nonretaliatory reason for 

 transferring plaintiff 

Defendants argue that Fuller’s issuance of the transfer request legitimizes the 

transfer as nonretaliatory. If the defendant asserts a “legitimate, nondiscriminatory or 

nonretaliatory reason for each [allegedly retaliatory act], whether plaintiff ‘actually made 

out a prima facie case is . . . irrelevant.’” Shah, 2010 U.S. App. LEXIS 11033 at n.2 

(quoting Brady, 520 F.2d at 494-95). A question of fact exists, however, as to whether 

UNICCO or Alarcon falsified disciplinary notices and facilitated the reassignment. 

Fuller claims that a UNICCO employee suggested the transfer and that he ultimately 

authorized removing plaintiff from 1200 K Street because of professional insufficiencies. 

(Fuller Dep. [64-3] 111:11-112:21.) A jury may reasonably infer that discipline notices

contributed to Fuller’s decision, and whether the evaluations were purposely falsified 

remains a question of fact. Defendants have not offered a legitimate reason for the 
21

transfer; therefore, consideration of whether a reasonable jury could find defendants’ 

actions retaliatory vel non falls to the trier of fact. 

C. Plaintiff’s Termination may be Causally Connected to Her Complaint

Plaintiff establishes a prima facie case against defendants for her job loss because 

her termination is materially adverse and causally connected to her complaint. Plaintiff’s 

termination at 2550 M Street resulted from the tenant’s choice to downsize staff after 

UNICCO no longer held contract rights with the building. (Cavalier Dep. [51-27] 40:12-

20.) Plaintiff posits that she was treated differently than her colleagues because UNICCO 

offered them the choice of remaining at 2550 M Street as Cavalier employees or moving 

to another building to remain with UNICCO. (Saravia Dep. [64-3] 25:15-26:11; Zelaya 

Dep. [64-3] 125:14-126:11, 130:9-22.) Plaintiff claims defendants strayed from industry 

norm by not providing her the option to remain with Cavalier or transfer to a UNICCO 

building, and that she would have preferred to remain with UNICCO. (Zelaya Dep. [64-

3] 125:17-22; 126:17-21.) A reasonable trier of fact could find that plaintiff’s transfer 

and consequent termination are the result of plaintiff’s complaint; therefore, summary 

judgment concerning plaintiff’s retaliation claim for employment loss is denied.

Defendants provide ample evidence that they exerted a good faith effort to 

procure the contract rights to 2550 M Street. (See UNNICO Bid Proposal [51-24]; Defs.’ 

Facts No. 41.) They fulfill their obligation to assert legitimate, nonretaliatory reasons for 

losing the contract. Baloch, 550 F.3d at 1200. Plaintiff’s job loss nonetheless follows 

from defendants’ alleged retaliatory transfer, despite defendants’ lack of involvement in

Cavalier’s initial employment offer and ultimate determination not to employ plaintiff. 

The Court therefore considers plaintiff’s retaliation claim vel non and finds that a genuine 
22

dispute of material fact exists; thus, the question of whether defendants retaliated against 

plaintiff by transferring her to another building and her ultimate job loss is left to the jury. 

VI. CONCLUSION

Upon full consideration of the parties’ filing, applicable law, and the record 

herein, this Court concludes that defendant UNICCO’s and defendant Alarcon’s Motion 

for Partial Summary Judgment on Counts 3 and 4 of the Complaint [4] is GRANTED in 

part and DENIED in part. A separate order shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, on August 20, 2010.