UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FELICIA HARDY and BARRY POPE,

as personal representatives of the estate of 

Andre Hardy,

Plaintiffs, 

v. 

JEROME H. POWELL, in his official 

capacity as Chairman, Board of Governors 

of the Federal Reserve System,

Defendant. 

Case No. 1:16-cv-01572 (TNM)

MEMORANDUM OPINION

Felicia Hardy and Barry Pope seek $10 million in this Title VII retaliation case 

against Jerome Powell, whom they have sued in his official capacity as Chairman of the 

Board of Governors of the Federal Reserve System.1 As personal representatives of the 

estate of Andre Hardy, they allege that the Federal Reserve drove Mr. Hardy to commit 

suicide by retaliating against him for engaging in activity protected by Title VII. Because 

the Plaintiffs cannot show that they have exhausted their retaliation claims and because 

they cannot show that retaliation took place, the Defendant’s Motion for Summary 

Judgment will be granted.2

 1

 The Complaint named Janet Yellen as the Defendant, in her official capacity. Federal 

Rule of Civil Procedure 25(d) automatically substitutes her successor, Jerome Powell, as 

the Defendant.

2

 Summary judgment on Ms. Hardy’s claims will also be granted on the alternative 

ground that she cannot sue as a personal representative of Mr. Hardy’s estate because 

Mr. Pope is the sole personal representative of that estate. See Mot. Summary J. Ex. U. 

Ms. Hardy’s unsupported statement that she disagrees with this assertion does not create 
2

I.

Mr. Hardy worked for the Board of Governors of the Federal Reserve System as a 

law enforcement officer from 2011 to 2016. Compl. ¶ 22. In 2015, Mr. Hardy 

participated in tryouts for a new bike patrol unit. Opp. to Mot. Summary J. 5. Although 

he scored 95% on speed test, he scored 30% on a cone course test. Mot. Summary J. Ex. 

K. His supervisor, Lieutenant Kelly Graves, gave him a 100% recommendation, and he 

also earned a 100% “D.C. Code Score.” Id.; see also Opp. to Mot. Summary J. 5. 

Mr. Hardy’s overall score of 81% represents the average of these four scores and placed 

him 17 out of 21 tryout participants. See Mot. Summary J. Ex. K. Nine participants,

including three female officers, were selected for the bike team, but Mr. Hardy was not 

selected. Opp. to Mot. Summary J. 5.

In June 2015, Mr. Hardy contacted the Board’s Employee Relations office to 

discuss his concern that female officers were favored over him in the formation of the 

bike team. Id. at 6.3

 Employee Relations forwarded Mr. Hardy’s complaint to the 

Board’s Equal Employment Opportunity, or EEO, office. Id. In August 2015, Mr. Hardy 

 

a genuine factual dispute. See Pls.’ Response to Def.’s Statement of Undisputed Material 

Facts ¶ 28.

3

 The record does not reflect exactly how Mr. Hardy thought his non-selection for the 

bike team was discriminatory. But the Plaintiffs have offered their own explanation. The 

Plaintiffs assert that the scores on the speed and cone tests were percentiles rather than 

percentages and that, because the worst performer on the speed test scored 62%, 

Mr. Hardy could have been the worst performer on the cone test and still deserved a 62% 

score “at a minimum.” Pls.’ Response to Def.’s Statement of Undisputed Material Facts 

¶ 16. According to the Plaintiffs, this shows that the Board scored Mr. Hardy arbitrarily 

on the cone test to ensure female officers would score above him. Id. But what the 

Plaintiffs’ argument really shows is their own failure to understand mathematics. Being 

the worst performer and being in the sixty-second percentile are not the same. In any 

event, only the Board’s alleged retaliatory actions post-dating the tryouts are now before 

me.
3

spoke with Andre Smith, an EEO counselor, to discuss the bike selection process and 

other instances of perceived discrimination. Id.

The Plaintiffs allege that Mr. Hardy’s supervisors learned of his complaint as 

soon as he contacted the EEO office, and that Lt. Graves retaliated against Mr. Hardy 

because of it. Id. at 6-11. For example, they allege that when Mr. Hardy sought 

promotion to corporal, Lt. Graves denied his request to reschedule a necessary exam. Id. 

at 9-10.4

 They also allege that Lt. Graves denied Mr. Hardy’s request to transfer to a 

different location, where Mr. Hardy would no longer be under Lt. Graves’s supervision. 

Id. at 10-11.5

 Mr. Hardy complained about these incidents in a letter to Employee 

Relations. Id. Ex. 18. But rather than characterizing them as retaliation, he described 

them as examples of discrimination and complained that Lt. Graves made it clear from 

the time he first began to supervise Mr. Hardy that he “was coming for [him] personally.” 

Id. Ex. 18 1.

On March 14, 2016, Mr. Hardy submitted a resignation letter:

 4 According to the Board, Mr. Hardy could not reschedule his exam because of an 

unwavering rule against make-up exams that protects the integrity of testing. Mot. 

Summary J. 9-10; see also id. Ex. N ¶ 4. The Plaintiffs disagree, noting that the Board 

had never administered the corporal exam before and that nothing in the General Order 

setting guidelines for participation in the Corporal Program prohibited rescheduling the 

test. Pls.’ Response to Def.’s Statement of Undisputed Material Facts ¶ 19. They also 

argue that the Board’s willingness to accommodate a different employee’s travel 

schedule by conducting an interview by phone shows that the Board should have

accommodated Mr. Hardy’s rescheduling request. Opp. to Mot. Summary J. 21. But 

none of this undermines the Board’s position. A telephonic interview does not implicate 

the process integrity concerns that are raised by allowing one test taker to take a 

standardized test at a different time than his peers.

5 The parties dispute whether transfer required Mr. Hardy to submit a written request up 

the chain of command and whether Mr. Hardy did so. See Mot. Summary J. 10; Pls.’ 

Response to Def.’s Statement of Undisputed Material Facts ¶ 22. For purposes of this 

ruling, I assume the Plaintiffs’ version of events is correct.
4

I am writing to inform you that I am resigning from my position with The 

Federal Reserve. Thank you for the opportunities and professional 

development that I have received from the Federal Reserve Law 

Enforcement Unit. While I believe that that [sic] I am moving for good 

reasons. I am sorry to leave and I thank you for your support during my 

time with The LEU [Law Enforcement Unit], which I have found enjoyable 

and fulfilling.

I am putting in my two weeks’ notice and I hope this is sufficient for you. 

My last day in office will be Monday, March 28 2016. With an effective 

date of Tuesday, March 29 2016.

Id. Ex. 25. Tragically, on March 28, Mr. Hardy committed suicide after recording an 

audio note explaining his frustrations with Lt. Graves and his sense that he could never 

advance in his career. Id. at 11.

In April 2016, the Plaintiffs initiated an EEO complaint on behalf of Mr. Hardy’s 

estate, alleging that discrimination and retaliation had driven Mr. Hardy to resign his 

position and take his own life. Id. at 11-12. The Board dismissed their complaint 

because Mr. Hardy’s estate lacked standing. Id. at 26-27. The Plaintiffs then sued the 

Chairman of the Board of Governors in federal court, alleging that the Board violated 

Title VII by committing sex discrimination and by retaliating against Mr. Hardy for 

engaging in activity protected by Title VII. The Defendant moved to dismiss the 

Complaint. In response, the Plaintiffs dropped their claims of sex discrimination but 

added new allegations about retaliation. Id. at 3 n.1, 17. The Board’s Motion for 

Summary Judgment is now ripe.

II.

To prevail on a motion for summary judgment, a movant must show 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 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is 
5

material if it could alter the outcome of the suit under the substantive governing law. 

Anderson, 477 U.S. at 248. A dispute about a material fact is genuine “if the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party.” Id.

“[A] party seeking summary judgment always bears the initial responsibility of 

informing the district court of the basis for its motion, and identifying those portions of 

the pleadings, depositions, answers to interrogatories, and admissions on file, together 

with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of 

material fact.” Celotex, 477 U.S. at 323. Once the party seeking summary judgment 

makes this showing, the non-moving party bears the burden of setting forth “specific 

facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

III.

“Aggrieved persons who believe they have been discriminated against . . . must 

consult a Counselor prior to filing a [formal administrative] complaint in order to try to 

informally resolve the matter.” 29 C.F.R. § 1614.105(a).6

 This begins the process for 

seeking an administrative remedy—a process that a plaintiff must complete, or “exhaust,”

before bringing a Title VII claim in federal court. Nurriddin v. Goldin, 382 F. Supp. 2d 

79, 92 (D.D.C. 2005) (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 832 (1976)); 

see also 42 U.S.C. § 2000e-16(c). A plaintiff must satisfy the administrative exhaustion 

requirement for each discrete act of discrimination or retaliation of which he complains. 

 6

 The phrase “discriminated against” appears to include “retaliated against,” since Title 

VII’s anti-retaliation provision describes retaliation as discrimination based on 

engagement in protected activity. See 42 U.S.C. § 2000e-3(a). In any event, the 

Plaintiffs concede that 29 C.F.R. § 1614.105 governs exhaustion of their retaliation 

claims. See Opp. to Mot. Summary J. 27-29.
6

Nurriddin, 382 F. Supp. 2d at 93 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 

101, 122 (2002)).

The Plaintiffs claim that Lt. Graves discriminated against Mr. Hardy for engaging 

in Title VII activity. To satisfy the counseling requirement for this claim, which would 

be the first step toward showing exhaustion, Mr. Hardy would have had to believe that Lt. 

Graves retaliated against him and would have had to consult with an EEO Counselor 

about the alleged retaliation. This he did not do.

The Plaintiffs seek to satisfy the counseling requirement in three ways. First, they 

note that Mr. Hardy contacted EEO Counselor Andre Smith. Opp. to Mot. Summary J. 

23-24. Second, they note that Mr. Hardy complained about unfair treatment in a letter 

that he sent to Gina Lewis, who worked in Employee Relations. Id. at 24-26.7

 Third, 

they argue that they satisfied the counseling requirement on Mr. Hardy’s behalf by 

contacting an EEO Counselor as the representatives of his estate. Id. at 26-30.

But none of this shows Mr. Hardy believed that Lt. Graves retaliated against him 

and that he consulted with an EEO Counselor about the problem. Although Mr. Hardy 

complained to Mr. Smith and Ms. Lewis about sex discrimination, he did not complain 

that Lt. Graves mistreated him in retaliation for engaging in Title VII activity. The 

Plaintiffs do not allege that Mr. Hardy complained to Mr. Smith about retaliation. See

Opp. to Mot. Summary J. 23-24. In fact, they allege that the retaliation of which they 

complain took place after Mr. Hardy contacted Mr. Smith and in response to that contact. 

See id. at 6.

 7

 Because this argument fails on other grounds, I do not decide the parties’ dispute about 

whether Ms. Lewis may substitute for an EEO Counselor for purposes of 29 C.F.R. 

§ 1614.105.
7

The Plaintiffs do claim that Mr. Hardy’s letter to Ms. Lewis complained about 

Lt. Graves retaliating against him for Title VII activity. Pls.’ Response to Def.’s 

Statement of Undisputed Material Facts ¶ 21. But the letter does not reference retaliation, 

allege that Lt. Graves treated Mr. Hardy differently because of his Title VII activity, or 

even suggest that Lt. Graves knew of Mr. Hardy’s Title VII activity. See Opp. to Mot. 

Summary J. Ex. 18. To the contrary, the letter states that Lt. Graves mistreated 

Mr. Hardy because of his sex and that Mr. Hardy felt clear Lt. Graves “was coming for 

[him] personally” even before he engaged in Title VII activity. Opp. to Mot. Summary J. 

Ex. 18, 1. Thus, the record shows that Mr. Hardy did not initiate counseling for 

retaliation and suggests that he did not believe the treatment he experienced was 

retaliation for Title VII activity. This is fatal to the Plaintiffs’ retaliation claim. One can 

only sue for the specific Title VII violations that were complained of to one’s employer. 

Nurriddin, 382 F. Supp. 2d at 92. Swapping Title VII horses midstream frustrates the 

employer’s ability to address actual misconduct before litigation becomes necessary and 

increases the time and expense involved in defending against frivolous allegations.

As for the Plaintiffs’ argument that they have satisfied the counseling requirement 

on Mr. Hardy’s behalf, it is inconsistent with the requirement that “[a]ggrieved persons 

who believe they have been discriminated against” undergo counseling. See 29 C.F.R. 

§ 1614.105(a). The Plaintiffs emphasize that Title VII defines “person” broadly to 

include governments, agencies, unions, companies, and, most importantly here, legal 

representatives. 42 U.S.C. § 2000e(a). But no one disputes that the Plaintiffs are 

persons. The question is whether they have received counseling as “[a]ggrieved persons 

who believe they have been discriminated against.” And the Plaintiffs do not allege that 
8

Lt. Graves discriminated against them, but that he discriminated against Mr. Hardy for 

engaging in Title VII activity. Thus, they cannot satisfy the counseling requirement. 

This conclusion follows from the plain language of 29 C.F.R. § 1614.105(a).

8

Perhaps in recognition of their textual argument’s weakness, the Plaintiffs suggest 

two other reasons that their initiation of counseling should satisfy 29 C.F.R. 

§ 1614.105(a). First, they worry that requiring the aggrieved person to initiate counseling 

would prevent justice from being done when employees murder their colleagues. Opp. to 

Mot. Summary J. 27-28. Second, they argue that this requirement is inconsistent with 

precedents establishing that a decedent’s estate may pursue Title VII claims that the 

decedent initiated while living. Id. at 28.

Neither of these concerns swayed the court in what appears to be the only judicial 

opinion to have decided this question.

9

 The plaintiff in Wright ex rel. Wright v. United 

States was a man whose wife had been murdered. 914 F. Supp. 2d 837, 840 (S.D. Miss. 

2012). The woman’s supervisor, who had been in an affair with her, was indicted for the 

murder. Id. The plaintiff sought to initiate a Title VII sex discrimination and retaliation 

claim as the decedent’s legal representative. Id. at 840, 842. The court recognized that a 

Title VII claim initiated by an employee survives him and may be pursued by the 

employee’s legal representatives. Id. at 841-42. But it “found no case recognizing the 

 8

 It is also implicit in the regulation’s description of the purpose for counseling, which is

“to try to informally resolve the matter”—an effort that requires the involvement of the 

aggrieved party. See 29 C.F.R. § 1614.105(a).

9

 The Plaintiffs seek to distinguish Wright by pointing out its alternative holdings. Opp. 

to Mot. Dismiss 28-29. “But where a decision rests on two or more grounds, none can be 

relegated to the category of obiter dictum.” Woods v. Interstate Realty Co., 337 U.S. 535, 

537 (1949). That is, alternative holdings are still holdings.
9

authority of a deceased employee’s representative to initiate an administrative complaint 

on behalf of the deceased employee.” Id. at 842 (emphasis added). And it held that the 

husband could not assert a Title VII claim on behalf of his wife that she had not initiated

while still alive. Id. at 843.

Wright did not insist, as the Plaintiffs do, that Title VII provides a necessary 

remedy for murder. But if a Title VII claim were necessary to promote justice, the 

problem could likely be resolved by an equitable doctrine such as estoppel since 

exhaustion in the Title VII context is not jurisdictional but functions like a statute of 

limitations. See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). And 

Wright shows that, contrary to the Plaintiffs’ view, precedents allowing a decedent’s 

estate to pursue Title VII claims that the decedent initiated while still alive are 

distinguishable from situations like their own. This makes sense because an employee 

must satisfy the counseling requirement to initiate a Title VII claim, and once that 

requirement is satisfied it will not pose a bar to litigation.10 In short, the Plaintiffs’ 

arguments cannot overcome the fact that the text of the regulation and the only precedent 

that is on point show they cannot satisfy the counseling requirement on behalf of Mr. 

Hardy.

 10 The Equal Employment Opportunity Commission has reached the same conclusion. 

See, e.g., Powell v. Cohen, 2001 WL 135460 at *1 (E.E.O.C. Feb. 6, 2001); Katz v. 

Glickman, 1998 WL 321191 at *1 (E.E.O.C. June 5, 1998). Although this is persuasive 

authority, I note that Auer deference does not apply because the text of the regulation is 

unambiguous. See Auer v. Robbins, 519 U.S. 452, 463 (1997) (assessing “the Secretary’s 

power to resolve ambiguities in his own regulations”).