1

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

________________________________ 

 )

MIRLIN S. TOOMER, )

 )

Plaintiff, )

 ) 

v. ) Civil Action No. 11-2216 (EGS) 

 ) 

JIM MATTIS,1 in his official )

capacity as Secretary of )

Defense, ) 

 )

Defendant. )

________________________________) 

MEMORANDUM OPINION

This case is before the Court on plaintiff Mirlin Toomer’s 

objections to Magistrate Judge G. Michael Harvey’s Report and 

Recommendation (“R & R”), issued on March 24, 2016. Magistrate 

Judge Harvey recommends that the Court grant defendant’s motion 

for summary judgment and deny Ms. Toomer’s motion for partial 

summary judgment, her motion for spoliation sanctions, and her 

motion for a hearing on spoliation of evidence. Upon 

consideration of the R & R, Ms. Toomer’s objections, defendant’s 

response to those objections, the above-referenced motions, the 

responses and replies thereto, the relevant law, and the entire 

record, this Court ADOPTS Magistrate Judge Harvey’s R & R, 

GRANTS defendant’s motion for summary judgment, and DENIES Ms. 

 

1 Jim Mattis has been substituted as the named defendant pursuant 

to Federal Rule of Civil Procedure 25(d). 
2

Toomer’s motion for partial summary judgment, her motion for 

spoliation sanctions, and her motion for a hearing on spoliation 

of evidence.2

I. Background

A. Federal Rule of Civil Procedure 56(e) and Local Civil 

 Rule 7(h)

 When a party moves for summary judgment, it must accompany 

its motion with a statement of material facts as to which it 

contends there is no genuine issue. LCvR 7(h)(1). That statement 

must reference the specific parts of the record relied on to 

support the assertions of fact in the statement. Id. In turn, 

the non-movant’s opposition brief must be accompanied by a 

concise statement of genuine issues setting forth all material 

facts as to which it is contended there exists a genuine issue. 

Id. That statement of genuine issues also must include specific 

references to the evidentiary record. Id. But if it “fails to 

properly address another party’s assertion of fact . . . the 

court may . . . consider th[at] fact undisputed for purposes of 

the motion.” Fed. R. Civ. P. 56(e)(2). That is, a court “may 

assume that facts identified by the moving party in its 

statement of material facts are admitted, unless such a fact is 

 

2 The Court also DENIES as moot Ms. Toomer’s motion for a status 

hearing. See Mot. for Status Hr’g, ECF No. 103. 
3

controverted in the statement of genuine issues filed in 

opposition to the motion.” LCvR 7(h)(1).

 Magistrate Judge Harvey determined that Ms. Toomer’s 

statement of genuine issues filed in response to the statement 

of material facts that accompanied defendant’s motion for 

summary judgment was “replete with legal argument, argument 

regarding the inferences to be drawn from the facts, and 

assertions of other facts which [Ms. Toomer] apparently believes 

ought to be considered in connection with the asserted fact.” R 

& R, ECF No. 96 at 7 (citing Pl.’s Statement of Material Facts 

in Dispute (“Pl.’s Resp. SMF”), ECF No. 73 ¶¶ 7-8, 14, 16, 28, 

31-33, 36, 39, 41, 43, 46, 48, 51, 55-56, 59-60, 62). 

Accordingly, Magistrate Judge Harvey concluded that many of the 

assertions of fact in defendant’s statement of material facts 

were not adequately controverted and, as a result, were 

undisputed. Id. at 4, 7. Thus, for purposes of his summary 

judgment analysis, he drew “from facts submitted by defendant 

which went undisputed or were inadequately disputed by [Ms. 

Toomer], the undisputed facts submitted by [Ms. Toomer] in 

connection with her motions, as well as the factual record 

submitted to the Court.” Id. at 7. Where facts were properly 

disputed, he addressed those disputes as they arose in his 

analysis. Id. at 4. 
4

 Ms. Toomer objects to Magistrate Judge Harvey’s 

characterization of the statement of genuine issues that she 

filed in response to defendant’s statement of material facts. 

Obj. to Magistrate’s R & R (“Pl.’s Objs.”), ECF No. 99 at 5-10. 

This Court overrules that objection. The relevant rules make 

clear that, for purposes of summary judgment analysis, a court 

may deem undisputed assertions of fact in a movant’s statement 

of material facts that are not properly “controverted.” LCvR 

7(h)(1); see also Fed. R. Civ. P. 56(e)(2). An assertion of fact 

properly presented in a movant’s statement of material facts is 

not “controverted” when a non-movant supplies additional facts 

and “factual context,” see Pl.’s Objs., ECF No. 99 at 5, that do 

not actually dispute the movant’s asserted fact. See Gibson v. 

Office of the Architect of the Capitol, No. 00-2424, 2002 WL 

32713321, at *1 n.1 (D.D.C. Nov. 19, 2002) (“Plaintiff’s 

Statement is almost completely unhelpful to the Court as its 

provisions rarely address the facts outlined in Defendant’s 

Statement, instead describing in lengthy detail the ‘contextual 

and structural background’ surrounding Defendant’s stated 

facts.”); Learnard v. Inhabitants of the Town of Van Buren, 182 

F. Supp. 2d 115, 119-20 (D. Me. 2002) (disregarding a 

plaintiff’s responsive factual statements in part because many 

of those statements “do not actually controvert the Defendants’ 

facts that they purport to address”); cf. Graves v. District of 
5

Columbia, 777 F. Supp. 2d 109, 111-12 (D.D.C. 2011) (“Where the 

opposing party has additional facts that are not directly 

relevant to its response, it must identify such facts in 

consecutively numbered paragraphs at the end of its responsive 

statement of facts.”). This Court’s review of defendant’s 

statement of material facts and Ms. Toomer’s statement filed in 

response reveals a consistent pattern of Ms. Toomer failing to 

controvert defendant’s asserted facts and, instead, providing 

additional, non-responsive facts. Compare Def.’s Statement of 

Material Facts Not in Dispute (“Def.’s SMF”), ECF No. 68 ¶¶ 7-8, 

14, 17, 19, 31-33, 36, 39, 43, 46-49, 51, 55-56, 60, 62, with

Pl.’s Resp. SMF, ECF No. 73 ¶¶ 7-8, 14, 17, 19, 31-33, 36, 39, 

43, 46-49, 51, 55-56, 60, 62. Accordingly, Magistrate Judge 

Harvey did not err in his determination of disputed and 

undisputed facts for purposes of the summary judgment analysis. 

He properly deemed undisputed those facts which the parties 

explicitly stated were not in dispute and those facts which the 

parties failed to adequately controvert, and he appropriately 

filled in factual gaps by scrutinizing the record submitted to 

the Court. See R & R, ECF No. 96 at 7. 

B. Relevant Facts

Having found no error in Magistrate Judge Harvey’s 

determination of the undisputed facts for purposes of summary 

judgment analysis and overruling Ms. Toomer’s objection 
6

otherwise, this Court fully adopts Magistrate Judge Harvey’s 

thorough recitation of the facts in his R & R and incorporates 

that recitation by reference here. See id. at 7-21. 

II. Standards of Review

A. Review of Objections to Magistrate Judge’s Report and

 Recommendation 

“[A] district court may review only those issues that the 

parties have raised in their objections to the Magistrate 

Judge’s report . . . .” Taylor v. District of Columbia, 205 F. 

Supp. 3d 75, 79 (D.D.C. 2016) (internal quotation marks 

omitted). When specific written objections have been filed with 

respect to a report and recommendation concerning a dispositive 

motion, the district court’s review of the portions of the 

report and recommendation implicated by those objections is de 

novo. Fed. R. Civ. P. 72(b)(2), (3). But “[w]hen a party objects 

. . . to a magistrate judge’s determination with respect to a 

non-dispositive matter, the Court must modify or set aside all 

or part of the magistrate judge’s order if it is ‘clearly 

erroneous’ or ‘contrary to law.’” Intex Recreation Corp. v. Team 

Worldwide Corp., 42 F. Supp. 3d 80, 86 (D.D.C. 2013) (quoting 

Fed. R. Civ. P. 72(a)). 

B. Summary Judgment 

 Pursuant to Federal Rule of Civil Procedure 56, summary 

judgment should be granted “if the movant shows that there is no 
7

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); 

Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 

2002). The moving party must identify “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 Corp. v. Catrett, 477 U.S. 317, 323 

(1986) (internal quotation marks omitted). To defeat summary 

judgment, the nonmoving party must demonstrate that there is a 

genuine issue of material fact. Id. at 324. A material fact is 

one that is capable of affecting the outcome of the litigation. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 

genuine dispute is one where “the evidence is such that a 

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

Id. Further, in the summary judgment analysis “[t]he evidence of 

the non-movant is to be believed, and all justifiable inferences 

are to be drawn in his favor.” Id. at 255. 

III. Analysis

 In her complaint, Ms. Toomer asserts four distinct claims: 

(1) racially hostile work environment; (2) retaliation; (3) 

racial discrimination; and (4) age discrimination. Compl., ECF 

No. 1 ¶¶ 48-76. Defendant filed a motion for summary judgment as 

to all of those claims, Def.’s Mot. for Summ. J. (“Def.’s 
8

Mot.”), ECF No. 68, and Ms. Toomer filed a motion for partial 

summary judgment as to the racially hostile work environment 

claim. Pl.’s Mot. for Partial Summ. J. and for Spoliation 

Sanctions (“Pl.’s Mot.”), ECF No. 70. Ms. Toomer also moved for 

spoliation sanctions, id., and later filed a motion for a 

hearing on the earlier-filed motion for spoliation sanctions. 

Pl.’s Mot. for Expedited Hr’g on Spoliation of Evid. (“Pl.’s 

Mot. for Hr’g”), ECF No. 92. Magistrate Judge Harvey’s R & R 

recommends that this Court grant defendant’s motion for summary 

judgment and deny Ms. Toomer’s motion for partial summary 

judgment, her motion for spoliation sanctions, and her motion 

for a hearing. 

 In addition to her objection addressed above concerning the 

R & R’s disentanglement of disputed from undisputed facts, Ms. 

Toomer has only objected to Magistrate Judge Harvey’s R & R as 

it concerns her racially hostile work environment claim, Pl.’s 

Objs., ECF No. 99 at 10-20, 34-35, her retaliation claim, id. at 

20-34, and her motion for spoliation sanctions. Id. at 36-41. 

The Court limits the analysis that follows to those objections, 

see Taylor, 205 F. Supp. 3d at 79 (“[T]he district court may 

review only those issues that the parties have raised in their 

objections to the Magistrate Judge’s report . . . .”) (internal 

quotation marks omitted), and, for the reasons articulated 

below, overrules them. 
9

 A. Ms. Toomer’s Objections Concerning Her Racially 

 Hostile Work Environment Claim

To prevail on a hostile work environment claim “a plaintiff 

must show that his employer subjected him to ‘discriminatory 

intimidation, ridicule, and insult’ that is ‘sufficiently severe 

or pervasive to alter the conditions of the victim’s employment 

and create an abusive working environment.’” Baloch v. 

Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris 

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The relevant 

analysis has both a subjective and an objective component: The 

victim must subjectively perceive the environment to be abusive, 

and the complained about conduct must be so severe or pervasive 

that it objectively creates a hostile or abusive work 

environment. Harris, 510 U.S. at 21-22. “To determine whether a 

hostile work environment exists, the court looks to the totality 

of the circumstances, including the frequency of the 

discriminatory conduct, its severity, its offensiveness, and 

whether it interferes with an employee’s work performance.” 

Baloch, 550 F.3d at 1201 (citing Faragher v. City of Boca Raton, 

524 U.S. 775, 787-88 (1998)). 

 Magistrate Judge Harvey concluded that none of Ms. Toomer’s 

proffered facts, taken alone or in combination, suffices to make 

out a claim of a racially hostile work environment. R & R, ECF 

No. 96 at 29. Thus, Magistrate Judge Harvey concluded that the 
10 

display of the action figure, supervisor Diane Stiger’s comments

to Ms. Toomer regarding the action figure, and certain 

disciplinary actions taken against Ms. Toomer do not sustain a 

claim of a racially hostile work environment. Id. Accordingly, 

Magistrate Judge Harvey recommends that this Court grant summary 

judgment to defendant as to Ms. Toomer’s racially hostile work 

environment claim and deny Ms. Toomer’s motion for partial 

summary judgment as to that claim. 

 Ms. Toomer specifically objects to Magistrate Judge 

Harvey’s hostile work environment analysis as it concerns the 

display of the action figure. She argues that however one might 

characterize the action figure at issue in this case——e.g., as a 

monkey, ape, monkey-ape, Bigfoot, etc.——that that action figure 

was a “black object with its hands held in the air” wrapped in 

and hanging by a rope that she saw “every time that she left 

[her cubicle] to use the bathroom or walked into her cubicle” 

sustains a hostile work environment claim. Pl.’s Objs., ECF No. 

99 at 11-14. She contends that the photographic evidence in the 

record, which she confirmed shows how the action figure appeared 

to her from June 8 through June 23, 2010, see Dec. 2, 2013 Dep. 

of Mirlin Toomer (“Dec. 2, 2013 Toomer Dep.”), ECF No. 68-1 at 

192:4-7, standing alone “raises a specter on its face of a 

hostile workplace environment.” Pl.’s Objs., ECF No. 99 at 14. 

She asserts that Magistrate Judge Harvey erred in his assessment 
11 

that the action figure display was not threatening, “especially 

not in the way that an obvious noose-tied rope would be,” R & R, 

ECF No. 96 at 39-40, because such an assessment suggests some 

“threshold standard” for determining “an African-American’s 

perception” of when a lynching has been depicted. Pl.’s Objs., 

ECF No. 99 at 4, 12, 14. She further contends that Magistrate 

Judge Harvey engaged in semantic gymnastics to conclude that 

there was merely a racially benign “doll” wrapped in “cord” 

rather than a racially invidious “monkey-ape” wrapped in “rope,” 

id. at 3-4, 13-14, 18, and she contends that Magistrate Judge 

Harvey erroneously concluded that it is undisputed that the 

action figure at issue is supposed to represent the mythical 

creature Bigfoot rather than a monkey or an ape. Id. at 2, 4. 

And, finally, Ms. Toomer contends that Magistrate Judge Harvey 

erred in his conclusion that there was a benign explanation for 

the presence of the action figure display in the workplace. Id.

at 18-20. 

 Ms. Toomer also specifically objects to Magistrate Judge 

Harvey’s hostile work environment analysis as it concerns Ms. 

Stiger’s alleged comments to Ms. Toomer in response to the 

latter’s complaints to the former about the action figure 

display. Ms. Toomer contends that Ms. Stiger’s alleged 

comments——especially her question to Ms. Toomer, “[D]o you think 

of yourself as a monkey?,” Dec. 2, 2013 Toomer Dep., ECF No. 68-
12 

1 at 147:17-25——sustains a hostile work environment claim. See 

Pl.’s Objs., ECF No. 99 at 15-16. She argues that Magistrate 

Judge Harvey erred in categorizing Ms. Stiger’s comments as a 

non-actionable “stray remark” because those comments were 

“connected to an ongoing racially offensive event,”——i.e., the 

action figure display. Id. Ms. Toomer contends that Ms. Stiger’s 

comments were not merely insensitive, unresponsive, or 

indifferent, as Magistrate Judge Harvey characterized them, but 

rather were “a callous validation of an extremely offensive 

workplace action.” Id. at 17. 

The Court agrees with Magistrate Judge Harvey’s analysis of 

Ms. Toomer’s hostile work environment claim and therefore 

overrules Ms. Toomer’s objections to the contrary. 

 1. The Action Figure Display 

 It is undisputed that the action figure at issue in this 

case “was brown in color, made of hard plastic, had reticulating 

arms and legs, had fur engraved in the plastic and was 

approximately six to eight inches in length.” Def.’s SMF, ECF 

No. 68 ¶ 21; Pl.’s Resp. SMF, ECF No. 73 at page 30. There is 

also no dispute that the photographs of the action figure 

display in the record accurately depict the action figure 

display as it appeared to Ms. Toomer from June 8 through June 

23, 2010. Def.’s SMF, ECF No. 68 ¶ 29; Pl.’s Resp. SMF, ECF No. 

73 at page 30; see also Compl., Attach. of Photograph, ECF No. 1 
13 

at 19; Photographs, ECF No. 68-13 at 11-14. Properly viewing the 

facts in the light depicted by the photographs, see Pl.’s Resp. 

SMF, ECF No. 73 ¶ 30 (“The [p]hoto of the item speaks for 

itself.”); cf. Armbruster v. Frost, 962 F. Supp. 2d 105, 110 

(D.D.C. 2013) (explaining that where a court has the benefit of 

video evidence, it should view the facts in the light depicted 

by the videotape when deciding summary judgment motions), it is 

undisputed that there was a monkey-like, ape-like, or Bigfootlike action figure tightly wrapped——as if mummified——by a thin 

white cord or rope from the action figure’s ankles to its chest, 

with additional strands wrapped around the action figure’s neck 

and arms. See Compl., Attach. of Photograph, ECF No. 1 at 19; 

Photographs, ECF No. 68-13 at 11-14. The action figure is 

hanging in the air, with the thin white cord or rope extending 

upwards from the action figure’s chest. See Compl., Attach. of 

Photograph, ECF No. 1 at 19; Photographs, ECF No. 68-13 at 11-

14. Magistrate Judge Harvey got it exactly right when he 

concluded that the action figure was wrapped in cord or rope “in 

a manner that is not fairly described as a ‘noose.’” R & R, ECF 

No. 96 at 39. 

 Thus this case is readily distinguished from those where an 

actual noose or noose-like object was part of the totality of 

circumstances that gave rise to a viable racially hostile work 

environment claim. See, e.g., Tademy v. Union Pac. Corp., 614 
14 

F.3d 1132, 1137 & n.1, 1141, 1156 (10th Cir. 2008) (holding that 

a jury could believe that a life-size noose prominently 

suspended from a large industrial wall clock was meant to evoke 

a hangman’s noose); Burkes v. Holder, 953 F. Supp. 2d 167, 178-

79 (D.D.C. 2013) (Sullivan, J.) (holding that a plaintiff stated 

a claim of hostile work environment where the Court accepted as 

true the allegation that a monkey doll was hung by its neck in a 

noose-like fashion in a public work area of an office); Williams 

v. New York City Hous. Auth., 154 F. Supp. 2d 820, 822-26 

(S.D.N.Y. 2001) (holding that a noose displayed prominently in a 

supervisor’s office gave rise to an actionable hostile work 

environment claim); Gooden v. Timpte, Inc., No. 99-795, 2000 WL 

34507333, at *10-11 (D. Colo. June 29, 2000) (holding that a 

reasonable jury could conclude that there was a racially hostile 

work environment when plaintiff was subjected to several 

statements involving racial epithets and a nude black doll was 

hung from a noose in his locker). This Court has said in the 

past——and reaffirms here——that “the noose is among the most 

repugnant of all racist symbols.” Burkes, 953 F. Supp. 2d at 179 

(internal quotation marks omitted). But it is undisputed that 

that racist symbol was not part of the action figure display 

that lies at the heart of Ms. Toomer’s racially hostile work 

environment claim. 
15 

 Ms. Toomer’s argument otherwise is that there is no 

“standard” that permits a court to determine “as a matter of 

law” when an African-American perceives a noose. Pl.’s Objs., 

ECF No. 99 at 14. Thus, she contends that whether or not the 

white cord in this case could fairly be described as a noose, 

she was confronted by “a horrific and frightening image,” and 

thus she was subjected to a hostile work environment. Id. But 

that line of reasoning ignores the objective component of the 

hostile work environment analysis. See Harris, 510 U.S. at 21 

(holding that a viable hostile work environment claim requires 

“an environment that a reasonable person would find hostile or 

abusive”) (emphasis added). A reasonable observer of the images 

that Ms. Toomer has confirmed show the action figure displayed 

as she observed it in her workplace would not describe that 

action figure as being hung in a noose. 

 Although there is no noose at issue here, the action figure 

is an ape- or monkey-like creature. This Court has said in the 

past that it is reasonable to conclude “that the use of monkey 

imagery is intended as a racial insult where no benign 

explanation for the imagery appears.” Burkes, 953 F. Supp. 2d at 

179 (internal quotation marks omitted). Here, however, there is 

an undisputed benign explanation for the presence of the ape- or 

monkey-like action figure in the workplace: Michael Shane 

Protka, a white male who worked in Ms. Stiger’s branch, was 
16 

jokingly referred to by a colleague as “Bigfoot” due to his 

large size and full beard, and he received the action figure 

through a holiday gift exchange that took place in the office. 

Def.’s SMF, ECF No. 68 ¶¶ 20-25; Pl.’s Resp. SMF, ECF No. 73 at 

page 30. When Mr. Protka moved on from Ms. Stiger’s branch, the 

action figure was left behind, and it became a source of office 

hijinks——for instance, it was placed in a toy Rock ‘em Sock ‘em 

Robots ring. Def.’s SMF, ECF No. 68 ¶ 26; Pl.’s Resp. SMF, ECF 

No. 73 at page 30. There is thus a benign explanation for the 

ape- or monkey-like action figure’s presence in the office. 

Accordingly, that action figure’s presence in the office did not 

contribute to a racially hostile work environment. 

Ms. Toomer’s argument to the contrary does not dispute the 

benign explanation for the presence of the action figure in the 

workplace. Instead, it focuses on the absence of a benign 

explanation for that action figure being wrapped in cord or 

rope. See Pl.’s Objs., ECF No. 99 at 18-20. But the action 

figure being wrapped in cord or rope in a manner that, as 

explained above, a reasonable observer would not describe as a 

noose, is consistent with the office hijinks of which the action 

figure was a part. Its mummified display appears no more nor no 

less invidious than its prior display in a boxing ring for toy 

robots. 
17 

 Accordingly, Magistrate Judge Harvey correctly concluded 

that the action figure display, standing alone, cannot sustain a 

hostile work environment claim. That correct conclusion does not 

rest on semantic designations——e.g., whether the action figure 

was a “doll” or an “ape” or a “monkey” and whether it was 

wrapped in “cord” or “rope”——but rather rests on an assessment 

of the undisputed record evidence, particularly the photographic 

evidence. And, contrary to Ms. Toomer’s suggestions, see Pl.’s 

Objs., ECF No. 99 at 2, 4, 10, it is not material whether or not 

the action figure was originally purchased in packaging bearing 

the designation “Bigfoot.” Even if the action figure came in 

packaging emblazoned with the designation “Monkey,” there is no 

dispute that the action figure was intended as a humorous gift 

for a white employee who was jokingly referred to as “Bigfoot.”

Def.’s SMF, ECF No. 68 ¶¶ 20-25; Pl.’s Resp. SMF, ECF No. 73 at 

page 30. Thus the action figure display, standing alone, does 

not sustain a racially hostile work environment claim. 

 2. Ms. Stiger’s Comments 

 

 Magistrate Judge Harvey also correctly concluded that Ms. 

Stiger’s comments to Ms. Toomer in response to the latter’s 

complaints about the action figure display also are not 

sufficient to sustain a viable racially hostile work environment 

claim. Ms. Toomer alleges that on June 8, 2010 she went to Ms. 

Stiger to complain about the action figure display that she 
18 

found offensive. Dec. 2, 2013 Toomer Dep., ECF No. 68-1 at 

128:20-22. Ms. Stiger purportedly responded by laughing and by 

telling Ms. Toomer that she did not find the action figure 

display offensive and that the action figure was an ape, not a 

monkey. Id. at 146:4-147:14. Ms. Stiger also allegedly asked Ms. 

Toomer, “[D]o you think of yourself as a monkey?” Id. at 147:19-

23. Assuming Ms. Stiger responded to Ms. Toomer’s complaint in 

the manner that Ms. Toomer alleges——Ms. Stiger denies having 

made the comments, Dep. of Diane Stiger (“Stiger Dep.”), ECF No. 

68-3 at 133:7-16——as a matter of law there still was no hostile 

work environment. 

 To prevail on her racially hostile work environment claim, 

Ms. Toomer must show that she was subject to discriminatory 

intimidation, ridicule, and insult that was “sufficiently severe 

or pervasive to alter the conditions of [her] employment and 

create an abusive working environment.” See Harris, 510 U.S. at 

21. A reasonable jury could certainly conclude that asking an 

African-American person, “Do you think of yourself as a monkey?” 

when that person is complaining about an ape- or monkey-like 

action figure displayed in the workplace is insensitive and 

offensive. Even so, that offensive question is not sufficiently 

severe to constitute a racially hostile work environment. In 

Ayissi-Etoh, the D.C. Circuit suggested, without holding, that 

“the use of an unambiguously racial epithet such as ‘nigger’ by 
19 

a supervisor” could alone be sufficient to establish a hostile 

work environment. Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 

(D.C. Cir. 2013) (emphasis added) (some internal quotation marks 

omitted); see also id. at 580 (Kavanaugh, J., concurring) 

(“[B]eing called the n-word by a supervisor——as Ayissi-Etoh 

alleges happened to him——suffices by itself to establish a 

racially hostile work environment.”). But the severity of a 

supervisor’s use of “probably the most offensive word in 

English,” id. (Kavanaugh, J., concurring) (internal quotation 

marks omitted), is far greater than a somewhat bizarre and 

ambiguous, albeit offensive, question allegedly posed by a 

supervisor in response to a complaint about an unambiguously 

non-racial workplace display. Rather, Ms. Stiger’s offensive 

question is more akin to the sort of derogatory remarks that 

courts in this Circuit have deemed non-actionable in the past.

See, e.g., Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 848 

(D.C. Cir. 2001) (holding that there was no hostile work 

environment where a supervisor, after negotiating with another 

supervisor for a printer, told a Jewish employee, “Soon I’m 

going to be the only one at this terminal wearing a Yarmulka”); 

Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1513 

(D.C. Cir. 1995) (holding that a supervisor’s use of the term 

“bitch” in a written evaluation, when viewed in context, was 

“possibly inappropriately phrased” but “not . . . conclusive of 
20 

sex discrimination”); Caldwell v. ServiceMaster Corp., 966 F. 

Supp. 33, 51 (D.D.C. 1997) (holding that a supervisor’s remarks 

to an African-American employee——calling her “girl,” “gal,” 

“rascal,” and “you people”——were “race-related” but lacking the 

“racial animus that is so severe and pervasive as to create a 

hostile environment”). Thus Ms. Stiger’s comments were not 

sufficiently severe to sustain a hostile work environment claim. 

 As concerns pervasiveness, see Ayissi-Etoh, 712 F.3d at 579 

(Kavanaugh, J., concurring) (“The test set forth by the Supreme 

Court is whether the alleged conduct is ‘sufficiently severe or

pervasive’——written in the disjunctive . . . .”), Ms. Toomer has 

not pointed to a sufficiently pervasive pattern of racially 

hostile conduct. Ms. Stiger’s “singular stray comment does not a 

hostile environment make.” See Freedman, 255 F.3d at 848. Ms. 

Toomer contends that Ms. Stiger’s comment was not a mere stray 

remark because it was “connected to [the] ongoing racially 

offensive event” of the action figure display and Ms. Toomer’s 

complaints about that display. Pl.’s Objs., ECF No. 99 at 15-17. 

But, as explained above, a reasonable observer would not view 

the action figure display as a “racially offensive event,” so 

Ms. Stiger’s comment——“Do you think of yourself as a monkey?”——

was not “part of a pervasive pattern of hostility and ridicule”

that is necessary to sustain a hostile work environment claim on 

pervasiveness grounds. See Dickerson v. SecTek, Inc., 238 F. 
21 

Supp. 2d 66, 83-85 (D.D.C. 2002) (emphasis added) (holding that 

female security guards had asserted viable hostile work 

environment claims when their male supervisor regularly 

threatened them, yelled at them, called them “chick,” used the 

word “bitch” in their presence, discussed trips to strip clubs 

with male co-workers in the workplace, and stated that “[w]omen 

don’t belong in security”). Ms. Toomer also suggests that Ms. 

Stiger’s failure to remove the action figure after Ms. Toomer 

allegedly voiced her complaints about it contributed to the 

pervasiveness of the hostile work environment. See Pl.’s Objs., 

ECF No. 99 at 16-17. But Ms. Stiger cannot be said to have 

contributed to a racially hostile work environment by not 

removing a display that, as explained above, was devoid of a 

racially invidious connotation. 

The Court thus overrules Ms. Toomer’s specific objections 

to Magistrate Judge Harvey’s analysis of her racially hostile 

work environment claim. Accordingly, defendant’s motion for 

summary judgment as to that claim is GRANTED, and Ms. Toomer’s 

motion for partial summary judgment as to that claim is DENIED. 

B. Ms. Toomer’s Objections Concerning Her Retaliation 

 Claim 

“Both Title VII and the ADEA prohibit the federal 

government from retaliating against employees who complain of 

employment discrimination.” Jones v. Bernanke, 557 F.3d 670, 677 
22 

(D.C. Cir. 2009). A retaliation claim is subject to the familiar 

burden-shifting framework of McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973). See Walker v. Johnson, 798 F.3d 1085, 1091 

(D.C. Cir. 2015). “Under that framework, a plaintiff must first 

establish a prima facie case of retaliation by showing (1) that 

he engaged in statutorily protected activity; (2) that he 

suffered a materially adverse action by his employer; and (3) 

that a causal link connects the two.” Jones, 557 F.3d at 677. 

 If a plaintiff establishes a prima facie case, the burden 

shifts to the employer to articulate a legitimate, nonretaliatory reason for its actions. Id. “If the employer does 

so, the burden-shifting framework disappears, and a court 

reviewing summary judgment looks to whether a reasonable jury 

could infer . . . retaliation from all the evidence . . . .” Id.

(internal quotation marks omitted). Thus the central question 

reduces to whether the plaintiff has produced sufficient 

evidence for a reasonable jury to find that the employer’s 

asserted non-retaliatory reason was not the actual reason for 

its adverse action and that the employer intentionally 

retaliated against the plaintiff. Walker, 798 F.3d at 1092. To 

support an inference that the employer’s stated reasons were 

pretextual and that its real reasons were prohibited 

retaliation, a plaintiff can cite “the employer’s better 

treatment of similarly situated employees outside the 
23 

plaintiff’s protected group, its inconsistent or dishonest 

explanations, its deviation from established procedures or 

criteria, or the employer’s pattern of poor treatment of other 

employees in the same protected group as the plaintiff, or other 

relevant evidence that a jury could reasonably conclude evinces 

an illicit motive.” Id. 

 Even after the employer articulates a legitimate, nonretaliatory reason for its action and, consequently, the 

plaintiff’s prima facie case “drops out of the picture,” Brady

v. Office of the Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. 

Cir. 2008) (internal quotation marks omitted), a court “still 

first must determine whether [a] plaintiff has suffered an 

adverse employment action.” Adesalu v. Copps, 606 F. Supp. 2d 

97, 103 (D.D.C. 2009); see also Taylor v. Solis, 571 F.3d 1313, 

1320 n.* (D.C. Cir. 2009) (“The court can resolve [the question 

of retaliation vel non] 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——here that 

her employer took a materially adverse action against her.”).

“‘Adverse actions’ in the retaliation context encompass a 

broader sweep of actions than those in a pure discrimination 

claim.” Baloch, 550 F.3d at 1198 n.4. Such actions are those 

that “might have dissuaded a reasonable worker from making or 

supporting a charge of discrimination.” Burlington N. & Santa Fe 
24 

Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation 

marks omitted). 

 The D.C. Circuit has also recognized “a special type of 

retaliation claim based on a ‘hostile work environment.’” Baird 

v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015). A retaliatory 

hostile work environment claim “consists of several individual 

acts that may not be actionable on their own but become 

actionable due to their cumulative effect.” Id. (internal 

quotation marks and alteration omitted). The relevant acts must 

be “adequately linked such that they form a coherent hostile 

environment claim.” Id. (internal quotation marks omitted). “In 

addition, the acts must be of such severity or pervasiveness as 

to alter the conditions of . . . employment and create an 

abusive working environment.” Id. at 169 (internal quotation 

marks omitted). As in the racially hostile work environment 

context, severity and pervasiveness are assessed by looking to 

the totality of the circumstances. Id.

 Magistrate Judge Harvey concluded that Ms. Toomer was 

unable to prevail on her retaliation claim because, whether 

considered as discrete retaliatory actions or collectively, each 

allegedly retaliatory incident about which she complains “either 

does not rise to the level of a materially adverse action or is 

justified by legitimate, non-discriminatory reasons which [Ms. 

Toomer] has not shown to be pretext for retaliation.” R & R, ECF 
25 

No. 96 at 46. Accordingly, Magistrate Judge Harvey recommends 

that this Court grant summary judgment to defendant as to Ms. 

Toomer’s retaliation claim.

 Ms. Toomer objects to various aspects of Magistrate Judge 

Harvey’s analysis of her retaliation claim. She contends that in 

his analysis of her retaliation claim Magistrate Judge Harvey 

should have considered her allegations that Mark Dial, the 

deputy director of her office, verbally assaulted her on 

September 9, 2010 and that Tom Guercio, a human resources 

representative, physically assaulted her on September 22, 2010. 

Pl.’s Objs., ECF No. 99 at 21. She also contends that Magistrate 

Judge Harvey erred in his analysis of five other retaliatory 

incidents that he did address, arguing that he erroneously 

concluded that certain actions were not materially adverse 

actions and that she failed to rebut as pretext defendant’s 

proffered non-retaliatory reasons for certain actions. Id. at 

22-34. And she contends that Magistrate Judge Harvey did not 

adequately address her retaliatory hostile work environment 

theory, as she asserts that his analysis considered the alleged 

retaliatory incidents in isolation instead of assessing them as 

part of an “ongoing and continuous” pattern of retaliation. Id.

at 21-22. 

Ms. Toomer’s objections are without merit and, accordingly, 

are overruled. 
26 

 1. Mr. Dial’s Verbal Assault and Mr. Guercio’s 

 Physical Assault 

 As concerns her first specific objection, the Court 

overrules that objection because even if Magistrate Judge Harvey 

erred when he failed to consider Mr. Dial’s alleged verbal 

assault and Mr. Guercio’s alleged physical assault in the 

context of Ms. Toomer’s retaliation claim, see R & R, ECF No. 96 

at 45 n.14, neither of those incidents is sufficient to sustain 

a retaliation claim. On the morning of September 9, 2010 when 

Ms. Toomer was inadvertently emailed Privacy Act-protected 

materials, Mr. Dial ordered Ms. Toomer to report to his office. 

Dec. 12, 2013 Dep. of Mirlin Toomer (“Dec. 12, 2013 Toomer 

Dep.”), ECF No. 68-2 at 42:4-16; Def.’s SMF, ECF No. 68 ¶¶ 43-

49; Pl.’s Resp. SMF, ECF No. 73 ¶¶ 43, 46-49 and at page 30. 

When she did so, he allegedly yelled at her to shut the door and 

sit down, threatened to terminate her employment, and pounded 

his fists on a table. Dec. 12, 2013 Toomer Dep., ECF No. 68-2 at 

42:17-45:22; Pl.’s Corrected Opp. to Def.’s Mot. for Summ. J.

(“Pl.’s Opp.”), ECF No. 73 at 5. This conduct standing alone 

cannot sustain a retaliation claim because “merely being yelled 

at by your supervisor does not rise to the level of an adverse 

employment action.” Moore v. Ashcroft, 401 F. Supp. 2d 1, 26 

(D.D.C. 2005) (internal quotation marks omitted); see also

Baloch, 550 F.3d at 1199 (“[S]poradic verbal altercations or 
27 

disagreements do not qualify as adverse actions for purposes of 

retaliation claims.”). 

 Even if Mr. Dial’s yelling and table pounding did 

constitute a materially adverse employment action, Ms. Toomer’s 

retaliation claim based on that conduct still fails because she 

has not rebutted as pretext his non-retaliatory reason for 

engaging in such conduct: Her undisputed refusal to delete her 

electronic copies and destroy or return her paper copies of the 

Privacy Act-protected materials inadvertently emailed to her 

despite being ordered by Mr. Dial and others to do so. See Sept. 

9, 2010 Email from Mirlin Toomer to Mark Dial, ECF No. 68-12 at 

6 (email from Ms. Toomer stating that she told Mr. Dial that she 

“could not” delete the Privacy Act-protected materials despite 

being ordered to do so); Def.’s SMF, ECF No. 68 ¶ 46; Pl.’s 

Resp. SMF, ECF No. 73 ¶ 46. For the same reason, Mr. Guercio’s 

alleged physical assault against Ms. Toomer on September 22, 

2010, see Dec. 12, 2013 Toomer Dep., ECF No. 68-2 at 80:1-9, 

does not sustain a viable retaliation claim: Ms. Toomer has not 

produced evidence sufficient to permit a reasonable jury to 

conclude that Mr. Guercio grabbed her arm for any reason other 

than because she refused to participate in a meeting with him 

and Mr. Dial concerning the Privacy Act breach. See Decl. of 

Mark Dial, ECF No. 68-12 ¶ 17. 
28 

 2. Ms. Stiger’s Alleged Threat

 Ms. Toomer contends that Magistrate Judge Harvey erred 

when he concluded that her self-serving allegations regarding an 

alleged threat rendered by Ms. Stiger in response to her 

complaints about harassment by a co-worker do not raise a 

triable issue of fact. See Pl.’s Objs., ECF No. 99 at 22-23. Ms. 

Toomer alleges that she was harassed by a co-worker and when she 

complained to Ms. Stiger about the harassment, Ms. Stiger said, 

“If anything happens to [Ms. Toomer’s co-worker], I’m going to 

make sure it happens to you.” Dec. 2, 2013 Toomer Dep., ECF No. 

73-5 at 74:1-20. Ms. Toomer contends that she eventually 

withdrew her complaint about her co-worker’s harassment because 

of this threat and because Ms. Stiger ordered her to attend a 

“Respect in the Workplace” training session. Pl.’s Objs., ECF 

No. 99 at 23. 

 The Court agrees with Magistrate Judge Harvey that Ms. 

Toomer offers no evidence of Ms. Stiger’s threat other than her 

own self-serving assertions and that such unsupported, selfserving assertions do not give rise to a triable issue of fact. 

See, e.g., Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997) 

(when scrutinizing motions for summary judgment courts “examine 

the facts in the record and reasonable inferences in the light 

most favorable to the nonmoving party, but do not accept bare 

conclusory allegations as fact”) (internal citations omitted); 
29 

Ward v. District of Columbia, 950 F. Supp. 2d 9, 17 (D.D.C. 

2013) (“[S]elf-serving assertions are not sufficient to create 

an issue of material fact.”); Musgrove v. Gov’t of the District 

of Columbia, 775 F. Supp. 2d 158, 170 (D.D.C. 2011) (holding 

that self-serving deposition testimony, standing alone, is 

insufficient to survive a motion for summary judgment). Even if 

unsupported, self-serving assertions were sufficient to surmount 

summary judgment, Ms. Toomer’s own deposition testimony 

contradicts her assertions elsewhere that she withdrew her 

complaint concerning her co-worker’s harassment because Ms. 

Stiger threatened her. See Dec. 2, 2013 Toomer Dep., ECF No. 68-

1 at 80:1-82:4 (Ms. Toomer explaining that “what made [her] 

withdraw the complaint” was a conversation with another 

supervisor regarding her co-worker’s youth and immaturity and 

the need for Ms. Toomer to give that co-worker a second chance). 

Such contradictory testimony belies the conclusion that there is 

a triable issue of fact here. See Pina v. Children’s Place, 740 

F.3d 785, 799 (1st Cir. 2014) (holding that summary judgment was 

appropriate where plaintiff’s admissions in her deposition 

undermined her claims); Washington, Marlboro & Annapolis Motor 

Lines v. Maske, 190 F.2d 621, 621-22 (D.C. Cir. 1951) (reversing 

a judgment in a plaintiff’s favor because it was supported only 

by her self-serving testimony which was undermined by proof of 
30 

her earlier statement that the opposite of that testimony was 

true).

 3. Reprimand Due to a Disruptive Phone Call 

 Ms. Toomer contends that Magistrate Judge Harvey erred when 

he concluded that she does not have a viable retaliation claim 

based on her being reprimanded for having made a disruptive 

phone call to the Equal Employment Opportunity (“EEO”) office 

while she was in the workplace. Pl.’s Objs., ECF No. 99 at 23-

25. But Magistrate Judge Harvey’s conclusion as to this claim 

rested on two independent grounds——(1) that Ms. Toomer’s receipt 

of a letter of reprimand issued in part due to her disruptive 

phone call was “not a materially adverse employment action under 

the standard applicable to retaliation claims” and (2) that Ms. 

Toomer fails to rebut defendant’s non-retaliatory reasons for 

reprimanding her as pretext, R & R, ECF No. 96 at 48——and Ms. 

Toomer’s objections to the R & R fail to address the first of 

those two grounds. See Pl.’s Objs., ECF No. 99 at 23-25, 27-28. 

Having failed to object to Magistrate Judge Harvey’s conclusion 

that being issued a letter of reprimand was not a materially 

adverse employment action, Ms. Toomer has waived review of that 

conclusion in this Court. See Taylor, 205 F. Supp. 3d at 79 

(“[T]he district court may review only those issues that the 

parties have raised in their objections to the Magistrate 

Judge’s report . . . .”) (internal quotation marks omitted). 
31 

Even if Ms. Toomer had properly lodged a specific objection, 

such an objection would be overruled. See, e.g., Baloch, 550 

F.3d at 1199 (holding that issuing a letter of counseling and a 

letter of reprimand was not a materially adverse employment 

action for purposes of a retaliation claim because the letter 

“contained no abusive language” and, instead, contained “jobrelated constructive criticism, which can prompt an employee to 

improve her performance”) (internal quotation marks omitted); 

Hyson v. Architect of the Capitol, 802 F. Supp. 2d 84, 102 

(D.D.C. 2011) (“A letter of counseling, written reprimand, or 

unsatisfactory performance review, if not abusive in tone or 

language or a predicate for a more tangible form of adverse 

action, will rarely constitute materially adverse action under 

Title VII.”).

 Additionally, the specific objection that Ms. Toomer has 

properly presented to this Court——objecting to Magistrate Judge 

Harvey’s conclusion that she failed to produce sufficient 

evidence to rebut as pretext defendant’s stated non-retaliatory 

reason for reprimanding her——is without merit. Ms. Toomer 

contends that Magistrate Judge Harvey erred because Ms. Stiger, 

who issued the letter of reprimand, testified that she had only 

been informed of the allegedly loud and disruptive phone call by 

Ms. Toomer’s co-workers and, according to Ms. Toomer, that 

testimony is inadmissible hearsay. Pl.’s Objs., ECF No. 99 at 
32 

23-25. But that testimony is not inadmissible hearsay because 

the statements of Ms. Toomer’s co-workers are not being offered 

for their truth; rather, they are only being offered to show the 

effect they had on Ms. Stiger’s decision-making as a supervisor. 

See Moore v. Hartman, 102 F. Supp. 3d 35, 147 (D.D.C. 2015) 

(“[O]ut-of-court statements may be admissible when offered not 

for the truth of the matter asserted but to show the effect on 

the state of mind of the listener.”). Whether or not Ms. Toomer 

made a loud and disruptive phone call to the EEO office from her 

workspace, Ms. Stiger honestly and reasonably believed that such 

a disruptive phone call was made, and Ms. Toomer has “not 

produce[d] evidence sufficient to show that [Ms. Stiger’s] 

conclusion was dishonest or unreasonable.” Brady, 520 F.3d at 

496. Additionally, Ms. Toomer has not produced sufficient 

evidence to rebut Ms. Stiger’s contention that it was the loud 

and disruptive nature of the call——not the fact that the call 

was made to the EEO office——that undergirded her decision to 

reprimand Ms. Toomer. See Stiger Dep., ECF No. 68-3 at 156:16-18 

(“It wasn’t the fact that she was calling EEO. It was the fact 

that she was making a disruptive phone call in the workplace.”). 

Accordingly, Ms. Toomer does not have a viable retaliation claim 

based on being reprimanded for having made a disruptive phone 

call to the EEO office. 
33 

 4. “Respect in the Workplace” Session and Suspension 

 Ms. Toomer contends that Magistrate Judge Harvey erred when 

he concluded that she failed to rebut as pretext defendant’s 

non-retaliatory reasons for ordering her to attend a “Respect in 

the Workplace” training session and suspending her from work for 

one day for failing to attend that session. Pl.’s Objs., ECF No. 

99 at 25-27. This objection is also without merit. Ms. Stiger 

ordered Ms. Toomer to attend the same “Respect in the Workplace”

training session as the co-worker who allegedly harassed her 

because Ms. Stiger’s assessment was that, while Ms. Toomer’s coworker had engaged in some inappropriate and unacceptable 

workplace conduct, Ms. Toomer was “feeding the repartee” with 

that co-worker. Stiger Dep., ECF No. 68-3 at 93:20-94:15. Ms. 

Toomer contends that Ms. Stiger’s stated rationale for her 

action is pretextual, as it is consistent with her alleged 

threat to punish Ms. Toomer in the same manner that she would 

punish the harassing co-worker. Pl.’s Objs., ECF No. 99 at 26. 

But undisputed record evidence confirms that Ms. Toomer did

engage in the sort of repartee with her co-worker that would 

likely lead to further words and conduct inappropriate for the 

workplace. See Email from Mirlin Toomer to Matthew Esteves, ECF 

No. 68-11 at 6 (Ms. Toomer referring to her co-worker as 

“Pumpkin” and telling him, “If you continue to ignore me then I 

am going to come over there an[d] smooch you until you 
34 

acknowledge me!”). Accordingly, Ms. Toomer has not produced 

sufficient evidence for a reasonable jury to find that 

defendant’s stated reason for ordering Ms. Toomer to attend the 

“Respect in the Workplace” training session and for subsequently 

suspending her for one day due to her failure to attend that 

session was not its actual reason. 

 5. Negative Performance Review and Letter of 

 Reprimand 

 Ms. Toomer appears to object to Magistrate Judge Harvey’s 

conclusion that she cannot prevail on a retaliation claim based 

on Ms. Stiger issuing to her a negative performance review and 

the letter of reprimand referred to above. Pl.’s Objs., ECF No. 

99 at 27-28. This apparent objection fails at the outset because 

it is devoid of any specificity and, consequently, waived. See 

id. (calling Magistrate Judge Harvey’s conclusion concerning the 

negative performance review and the letter of reprimand 

“astounding” but then merely restating various of Ms. Toomer’s 

retaliation-related grievances and baldly asserting that the 

retaliation continued after Ms. Toomer was transferred out of 

Ms. Stiger’s branch); Taylor, 205 F. Supp. 3d at 79 (“[T]he 

district court may review only those issues that the parties 

have raised in their objections to the Magistrate Judge’s report 

. . . .”) (internal quotation marks omitted). 
35 

 Even assuming that Ms. Toomer has adequately articulated a 

specific objection to Magistrate Judge Harvey’s analysis as 

concerns these allegedly retaliatory incidents, this Court again 

finds no error in the Magistrate Judge’s analysis. As explained 

above, issuance of the letter of reprimand was not a materially 

adverse employment action. Similarly, issuance of the negative 

performance review to Ms. Toomer also was not a materially 

adverse action because Ms. Toomer has nowhere linked that 

negative review to financial harms or other negative tangible 

job consequences nor has she alleged that it contained abusive 

language. See, e.g., Baloch, 550 F.3d at 1199 (“[P]erformance 

reviews typically constitute adverse actions only when attached 

to financial harms.”); Durant v. District of Columbia, 932 F. 

Supp. 2d 53, 69 (D.D.C. 2013) (“In this circuit, evaluations and 

written warnings do not constitute materially adverse actions 

unless they have tangible job consequences.”) (internal 

quotation marks omitted); Hyson, 802 F. Supp. 2d at 102 (“A 

letter of counseling, written reprimand, or unsatisfactory 

performance review, if not abusive in tone or language or a 

predicate for a more tangible form of adverse action, will 

rarely constitute materially adverse action under Title VII.”). 

 And, additionally, Ms. Toomer has again failed to rebut 

defendant’s legitimate, non-retaliatory reasons for its actions 

as pretext. The letter of reprimand was grounded in part, as 
36 

explained above, in Ms. Stiger’s reasonable belief that Ms. 

Toomer had had a disruptive workplace phone call and in part in 

Ms. Stiger’s reasonable belief that Ms. Toomer had failed to 

comply with the agency’s sick-leave policy. See June 17, 2010 

Letter of Reprimand, ECF No. 68-13 at 7-8. Ms. Toomer does refer 

to a co-worker who, based on overheard workplace conversations 

and a later conversation between Ms. Toomer and the co-worker, 

allegedly was not reprimanded or otherwise punished for 

violating the sick-leave policy. Dec. 2, 2013 Toomer Dep., ECF 

No. 68-1 at 168:2-170:13. But that co-worker was an “astute 

employee” who regularly complied with the workplace rules, 

Stiger Dep., ECF No. 68-3 at 163:18-164:16, whereas Ms. Toomer 

was cited in her letter of reprimand for two infractions 

occurring in quick succession and was reminded in that letter 

that she had been “counseled several times on the established 

leave procedure.” See June 17, 2010 Letter of Reprimand, ECF No. 

68-13 at 7-8. Accordingly, because Ms. Toomer has not identified 

a similarly-situated comparator, an inference of falsity as to 

defendant’s proffered reason for issuing its letter of reprimand 

to her is unwarranted. See Dudley v. WMATA, 924 F. Supp. 2d 141, 

162 (D.D.C. 2013) (“When relying on a comparator to overcome the 

employer’s proffered legitimate explanation, there must be a 

very close relationship between the compared employees.”). And 

as concerns the negative performance review, that review was 
37 

already in the works before Ms. Toomer engaged in any protected 

activity. See Email from Diane Stiger to Selina Pendleton, ECF 

No. 76-2 at 7. Accordingly, no reasonable jury could conclude 

that Ms. Stiger eventually issued it because Ms. Toomer engaged 

in protected activity. See Clark Cty. Sch. Dist. v. Breeden, 532 

U.S. 268, 272 (2001) (“[P]roceeding along lines previously 

contemplated, though not yet definitively determined, is no 

evidence whatever of causality.”).

 6. Termination 

Ms. Toomer objects to Magistrate Judge Harvey’s conclusion 

that she has failed to rebut defendant’s proffered legitimate, 

non-retaliatory reason for terminating her employment. Pl.’s 

Objs., ECF No. 99 at 28-34. Once again, the Court agrees with 

Magistrate Judge Harvey’s conclusion and overrules this 

objection. 

 David White, the deciding official for Ms. Toomer’s 

termination decision, has explained that he terminated Ms. 

Toomer not because she engaged in protected activity but rather 

because she repeatedly refused to delete Privacy Act-protected 

materials that had been inadvertently emailed to her and refused 

to destroy or return the hard copies of those materials that she 

had printed. Dep. of David White (“White Dep.”), ECF No. 81-1 at 

79:17-80:6, 93:9-12, 98:11-15. Ms. Toomer contends that this 

non-retaliatory reason is pretext because the evidentiary record 
38 

does not make clear “that she was non-cooperative or 

insubordinate in the return” of the Privacy Act-protected 

materials. Pl.’s Objs., ECF No. 99 at 30. Ms. Toomer points to a 

series of events between September 14 and September 20, 2010 

intended to support that contention. Id. at 29-30. Her ultimate 

aim seems to be to demonstrate pretext by showing that defendant 

is lying about the insubordination proffered as its reason for 

her termination. See Walker, 798 F.3d at 1093 (“[I]f the only 

reason an employer offers for firing an employee is a lie, the 

inference that the real reason was a forbidden one . . . may 

rationally be drawn.”) (internal quotation marks and some 

alterations omitted). Ms. Toomer falls well short of 

demonstrating any lie. It is undisputed that Ms. Toomer was 

ordered to delete electronic copies and destroy paper copies of 

the Privacy Act-protected materials almost immediately after 

they were inadvertently sent to her, but she refused to do so. 

See Sept. 9, 2010 Email from Mirlin Toomer to Mark Dial, ECF No. 

68-12 at 6 (email from Ms. Toomer stating that she told Mr. Dial 

that she “could not” delete the Privacy Act-protected materials 

despite being ordered to do so); Def.’s SMF, ECF No. 68 ¶¶ 45-

46; Pl.’s Resp. SMF, ECF No. 73 ¶ 46. When Ms. Toomer eventually 

mailed documents to the agency on September 20, the agency’s 

analysis of those documents indicated that the paper and ink 

were different from that used when Ms. Toomer originally printed 
39 

the documents, strongly suggesting that Ms. Toomer remained noncompliant after more than a week of being repeatedly told to 

delete electronic copies of and return or destroy hard copies of 

the Privacy Act-protected materials. Email from Charlotte Owen 

to Mark Dial, ECF No. 68-12 at 14; Def.’s SMF, ECF No. 68 ¶ 60; 

Pl.’s Resp. SMF, ECF No. 73 ¶ 60. Ms. Toomer has thus not 

“demonstrate[d] that [her] employer is making up or lying about 

the underlying facts” of her insubordination. See Brady, 520 

F.3d at 495.3

 Ms. Toomer also argues that defendant’s stated reason for 

firing her was pretextual because Mr. Dial and Mr. Guercio 

participated in the termination process. Pl.’s Objs., ECF No. 99 

at 30-34. She contends that although Mr. White made the final 

decision to terminate her, Mr. Dial and Mr. Guercio were 

“integral parts of the decision making process” and thus 

influenced Mr. White’s decision. Id. at 32. Ms. Toomer contends 

that that alleged influence is sufficient to demonstrate pretext 

because Mr. Dial and Mr. Guercio harbored retaliatory animus 

 

3 For this same reason, Ms. Toomer’s allegations that Mr. White 

did not consider her “past disciplinary record, past work 

record, potential for rehabilitation, mitigating circumstances 

and availability of alternative sanctions” when deciding to 

terminate her employment are unavailing. See Pl.’s Objs., ECF 

No. 99 at 33-34. Even assuming Mr. White failed to consider 

these factors in his decision, that still would not be enough to 

rebut his proffered legitimate reason for her termination——her 

insubordination concerning the Privacy Act-protected materials——

as pretext. 
40 

against her. See id. at 30-31. That retaliatory animus allegedly 

stemmed from Ms. Toomer having filed an EEO complaint 

implicating Mr. Dial on September 13, 2010 and from a pending 

criminal investigation as to Mr. Guercio based on his 

altercation with Ms. Toomer in Mr. Dial’s office on September 

22, 2010. See id. Ms. Toomer thus advances a “cat’s-paw theory” 

where “a formal decision maker may be an unwitting conduit of 

another actor’s illicit motives.” Walker, 798 F.3d at 1095 

(citing Griffin v. Wash. Convention Ctr., 142 F.3d 1308, 1311-12 

(D.C. Cir. 1998)). She can prevail on such a theory only “‘if 

[1] a supervisor performs an act motivated by [retaliatory] 

animus, [2] that is intended by the supervisor to cause an 

adverse employment action, and . . . [3] that act is a proximate 

cause of the ultimate employment action.’” Burley v. Nat’l 

Passenger Rail Corp., 801 F.3d 290, 297 (D.C. Cir. 2015) 

(quoting Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011)). 

 It is undisputed that Mr. Dial and Mr. Guercio participated 

in the termination process in some capacity. See, e.g., White 

Dep., ECF No. 81-1 at 66:12-20. Even assuming that they were 

“integral” to that process, see Pl.’s Objs., ECF No. 99 at 32-

33, Ms. Toomer fails to satisfy the first step in the cat’s-paw 

analysis: demonstrating that they were motivated by retaliatory 

animus. Ms. Toomer has pointed out that she filed an EEO 

complaint on September 13, 2010 that referred to the threats Mr. 
41 

Dial allegedly made against her on September 9, 2010 after she 

refused to delete the Privacy Act-protected materials, and she 

has pointed out that Mr. Guercio was subject to police 

investigation based on her allegation that he assaulted her 

during the course of a September 22, 2010 meeting related to the 

Privacy Act breach. See Pl.’s Objs., ECF No. 99 at 30. Even so, 

Ms. Toomer has not produced any evidence that would permit a 

reasonable jury to find that Mr. Dial and Mr. Guercio wanted to 

terminate her employment because of those incidents. In the 

absence of sufficient evidence to suggest that they harbored 

retaliatory animus, the Court has no need to proceed to the 

second and third steps of the cat’s-paw analysis. See Burley, 

801 F.3d at 297. 

 7. Retaliatory Hostile Work Environment 

 

 Finally, the Court overrules Ms. Toomer’s objection that 

Magistrate Judge Harvey erroneously rejected her retaliatory 

hostile work environment claim. See Pl.’s Objs., ECF No. 99 at 

21-22. It certainly can be the case that “several individual 

acts that may not be actionable on [their] own . . . become 

actionable due to their cumulative effect.” Baird, 792 F.3d at 

168 (internal quotation marks omitted). That being said, it can 

also be the case that even when a plaintiff “accumulate[s] a 

long list of slights” a court might not be able to “discern a 

collective retaliation claim greater than the sum of its parts.” 
42 

Lurensky v. Wellinghoff, 167 F. Supp. 3d 1, 21 (D.D.C. 2016) 

(internal quotation marks omitted). This case falls into the 

latter of those two categories. As explained above, each of the 

allegedly retaliatory incidents about which Ms. Toomer complains 

either does not constitute a materially adverse employment 

action or is readily justified by a non-retaliatory explanation 

that Ms. Toomer fails to rebut as pretext. The Court does not 

see how bundling these various alleged grievances together 

crosses the threshold for a retaliatory hostile work environment 

claim, particularly given that Ms. Toomer’s complaints involve 

“different people doing different things in different contexts,” 

see Baird, 792 F.3d at 171, and, additionally, in view of the 

requirement that the complained of acts “must be of such 

severity or pervasiveness as to alter the conditions of . . . 

employment and create an abusive working environment.” Id. at 

169 (internal quotation marks omitted). Accordingly, Magistrate 

Judge Harvey correctly concluded that Ms. Toomer does not have a 

viable retaliatory hostile work environment claim. 

In sum, the Court overrules Ms. Toomer’s specific 

objections to Magistrate Judge Harvey’s analysis of her 

retaliation claim. Accordingly, summary judgment for defendant 

as to that claim is GRANTED.
43 

C. Ms. Toomer’s Objections Concerning Her Motion for 

 Spoliation Sanctions and Her Motion for a Hearing 

Ms. Toomer also objects to Magistrate Judge Harvey’s 

recommendation that this Court deny her motion for spoliation 

sanctions against the defendant and deny her motion for a 

hearing on her motion for spoliation sanctions. See Pl.’s Objs., 

ECF No. 99 at 36-41. This objection is meritless and thus 

overruled. 

 First, the primary piece of evidence that is the subject of 

Ms. Toomer’s motion for spoliation sanctions——the action 

figure——was found by defendant during the course of this 

litigation. See Notice, ECF No. 90. Because that evidence has 

been located and presented to Ms. Toomer for inspection, 

spoliation sanctions are unwarranted. See McGuire v. Acufex 

Microsurgical, Inc., 175 F.R.D. 149, 156-57 (D. Mass. 1997) 

(holding that there was no prejudice to a plaintiff and thus no 

basis for sanctions when evidence believed to be lost was found 

and promptly turned over to the plaintiff). And because it is 

clear that the recently recovered action figure is the same 

action figure as that depicted in the photographs showing the 

action figure as it was displayed to Ms. Toomer between June 8 

and June 23, 2010, compare Photographs, ECF No. 68-13 at 11-14, 

with Photograph, ECF No. 91-1 at 3, there is no need to conduct 

an evidentiary hearing to “verify” the “identity” of the 
44 

recently recovered action figure. See Pl.’s Objs., ECF No. 99 at 

41. 

 Second, it is undisputed that photographic evidence in the 

record shows how the action figure was displayed to Ms. Toomer 

between June 8 and June 23, 2010. Def.’s SMF, ECF No. 68 ¶ 29; 

Pl.’s Resp. SMF, ECF No. 73 at page 30. As explained above, see 

supra Part III.A, it is that undisputed photographic evidence 

that entitles defendant to summary judgment as to Ms. Toomer’s 

racially hostile work environment claim and, accordingly, 

spoliation sanctions are unwarranted. See Grosdidier v. Broad.

Bd. Of Governors, Chairman, 709 F.3d 19, 28-29 (D.C. Cir. 2013) 

(holding that even if the plaintiff were given a favorable 

inference because of spoliation, “other evidence” in the record 

prevented the plaintiff from surmounting summary judgment). 

Accordingly, Ms. Toomer’s motion for spoliation sanctions and 

her motion for a hearing on spoliation of evidence are DENIED.

IV. Conclusion 

For the foregoing reasons, Ms. Toomer’s objections to 

Magistrate Judge Harvey’s R & R are overruled, and Magistrate 

Judge Harvey’s R & R is ADOPTED in its entirety. Accordingly, 

the Court GRANTS defendant’s motion for summary judgment and 

DENIES Ms. Toomer’s motion for partial summary judgment, her 

motion for spoliation sanctions, and her motion for a hearing on 
45 

spoliation of evidence. A separate Order accompanies this 

Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 July 19, 2017