1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

KEVIN B. HOLSTON, 

Plaintiff, 

v. 

JANET YELLEN,1 Secretary of 

Treasury, 

Defendant. 

Civ. Action No. 20-3533 

(EGS) 

MEMORANDUM OPINION 

 Plaintiff Kevin B. Holston (“Mr. Holston”) brings this 

lawsuit against Defendant Janet Yellen (“Defendant”), Secretary 

of the Treasury, under Title VII of the Civil Rights Act of 

1964, as amended, 42 U.S.C. 2000e, et seq., alleging hostile 

work environment and retaliation based on race.2 See generally 

Am. Compl., ECF No. 9. 

Pending before the Court is Defendant’s Motion to Dismiss, 

ECF No. 19-1. Upon careful consideration of the motion, 

opposition, reply, the applicable law, and for the reasons 

1 Janet Yellen, Secretary of the Treasury, is automatically 

substituted as Defendant under Federal Rule of Civil Procedure 

25(d). 

2 In his Opposition briefing in response to Defendant’s Motion to 

Dismiss, Mr. Holston withdrew Count I in which he alleged 

discrimination based on race. See Pl.’s Opp’n, ECF No. 21 at 18. 
2 

explained below, Defendant’s Motion to Dismiss is GRANTED IN 

PART AND DENIED IN PART. 

I. Background 

A. Factual 

The Court assumes the following facts alleged in the 

complaint to be true for the purposes of deciding this motion 

and construes them in Mr. Holston’s favor. See Baird v. Gotbaum, 

792 F.3d 166, 169 n.2 (D.C. Cir. 2015). Mr. Holston was a 

federal employee for 30 years, and for 20 of those years he 

served as a Criminal Investigator/Special Agent (“SA”) for the 

U.S. Department of the Treasury (“Agency”), Treasury Inspector 

General for Tax Administration (“TIGTA”), working for the 

Forensic and Digital Science Library (“FDSL”). Am. Compl., ECF 

No. 9 ¶ 27. Mr. Holston received (1) “Exceeded” performance 

appraisals for 2016, 2017, and 2018; (2) “Individual Cash 

Awards” in 2015, 2017 and 2017; (3) “Individual Time-Off Awards 

in 2015 and 2018; and (4) letters of recognition from the 

President of the United States, TIGTA, the Department of 

Justice, and other federal agencies. Id. ¶¶ 28-30. 

 Mr. Holston’s first line supervisor was Mr. Robert 

Lesnevich, his second line supervisor was Mr. Jeffrey Long, and 

his third line supervisor was Mr. James Jackson. Id. ¶ 33. All 

three are white males. Id. From October 1, 2015 until June 2019, 
3 

Mr. Holston was the only African American male SA within his 

three supervisor’s lines of supervision. Id. ¶ 37. 

 From October 1, 2016 until September 30, 2017, Mr. Holston 

was “repeatedly denied the same training and training 

opportunities that his white peers were provided.” Id. ¶ 38. For 

example, he was denied specialized computer forensics and other 

high-tech training that his peers received or were receiving. 

Id. When, as a result of the denial of relevant training, Mr. 

Holston received a score of 89%, Mr. Lesnevich counseled him for 

failing to achieve a perfect score. Id. ¶ 39. However, the 

industry standard does not require a perfect score. Id. 

 In March 2017, Mr. Holston and a colleague submitted an 

email to a Human Resources Assistant, copying Mr. Lesnevich, 

regarding Desk Audit Procedures. Id. ¶ 40. Mr. Holston and his 

colleague made the inquiry after learning that in March 2016, 

two white peers with the same duties and responsibilities as Mr. 

Holston and his colleague were promoted to GS-14. Id. As a 

result, Mr. Holston and his colleague were the only special 

agents within DFS who remained at the GS-13 level. Id. Mr. 

Holston and his colleague followed up with Mr. Lesnevich and Mr. 

Jackson on May 18, 2017. Id. ¶ 41. 

 On July 17, 2017, Mr. Holston was having lunch at a 

restaurant in Beltsville, Maryland at which Mr. Lesnevich and 

Kathleen Farrell, Mr. Lesnevich’s Quality Assurance Manager, 
4 

were also dining. Id. ¶ 42. After the latter finished their 

lunch, Ms. Farrell greeted Mr. Holston and his companions, but 

“Mr. Lesnevich walked past [Mr. Holston’s] table without saying 

a word and departed the restaurant.” Id. The next day, Mr. 

Lesnevich disclosed sensitive, confidential personnel 

information about Mr. Holston to Kevin Trebel, a peer and nonsupervisor of Mr. Holston. Id. Thereafter, on or about July 19, 

2017, Mr. Lesnevich disclosed information about, among other 

things, Mr. Holston’s participation in the Agency’s Health 

Improvement Program (“HIP”) and his alleged misuse of his 

Government Owned Vehicle (“GOV”) to four TITGA employees, none 

of whom had a need to know the information. Id. ¶ 47. 

 On or about July 24, 2017, Mr. Holston complained about the 

disclosures to Mr. Lesnevich’s first-level superior and asked to 

be transferred or removed from Mr. Lesnevich’s line of 

supervision. Id. ¶ 49. However, the supervisor took no action. 

Id. 

 On or about January 23, 2018, Mr. Holston overheard Mr. 

Lesnevich disclosing to two TIGTA employees who had no need to 

know, private, sensitive information regarding an email exchange 

between he and Mr. Holston in which Mr. Lesnevich threatened to 

report Mr. Holston to the Internal Affairs Department (“IAD”) 

for alleged violations of the relevant time and attendance 

policy and integrity-related policies. Id. ¶ 52. Mr. Holston 
5 

interrupted the conversation and in a later meeting with Mr. 

Lesnevich learned that he had been promoted to a GS-14 position. 

Id. 

 On January 24, 2018, Mr. Holston filed an IAD Complaint 

against Mr. Lesnevich based on the July 19, 2017 and January 23, 

2018 disclosures, and alleging whistleblower reprisal and a 

pattern and practice of racial bias. Id. ¶ 53. Thereafter, on 

February 8, 2018, Mr. Lesnevich filed a meritless IAD Complaint 

against Mr. Holston, contending that: (1) Mr. Holston misused 

his GOV; (2) violated time and attendance policies on or about 

January 22, 2018; and (3) engaged in certain improper acts or 

omissions. Id. ¶ 55. However, prior to the filing of the IAD 

Complaint, and as of February 1, 2018, Mr. Lesnevich had 

received an email from TIGTA counsel stating that in her 

opinion, Mr. Holston had not violated time and attendance or 

travel voucher reimbursement policies. Id. ¶ 57. 

 On or about January 28, 2018, Mr. Lesnevich threatened to 

charge Mr. Holston with AWOL while Mr. Holston was on approved 

official government travel. Id. ¶ 50. On January 28, 2018, Mr. 

Holston sought and received medical treatment as a result of the 

workplace stress he was experiencing. Id. ¶ 51. He was 

diagnosed, for the first time in his life, with “physical and 

mental train related to work,” palpitations, hypertension, and 

abnormal electrocardiogram. Id. at n.8. He continued to receive 
6 

medical treatment for conditions attributable to the workplace 

stress until October 3, 2019. Id. 

 On or about February 21, 2018, Mr. Holston contacted the 

Agency’s EEO counselor. Id. ¶ 4. On May 30, 2018, Mr. Holston 

filed a Formal Complaint for Discrimination. Id. ¶ 59. 

Thereafter, on July 12, 2018, the Assistant Inspector General 

for Investigations (“AIGI”) issued to Mr. Holston a letter of 

counseling, which Mr. Holston alleges was meritless. Id. ¶ 59. 

 On July 12, 2018, the AIGI issued a Letter of Reprimand to 

Mr. Lesnevich for the July 19, 2017 disclosure in response to 

Mr. Holston’s IAD Complaint. Id. ¶ 58. On the same day, Mr. 

Ruben Florez issued to Mr. Holston a meritless letter of 

counseling. Id. ¶ 59. 

On or about July 25, 2019, Mr. Holston applied for 

entitlements and protections under the Family Leave Medical Act 

((“FMLA”) “due to the trauma and severe stress caused by the 

workplace hostility” and thereafter was prescribed medication 

and advised to seek mental/emotional services through employee 

assistance. Id. ¶ 60. His request for FMLA protections was 

initially denied, but then reversed by TIGTA’s Office of Mission 

Support. Id. ¶ 62. 

On August 1, 2019, the Agency subjected Mr. Holston to a 

meritless internal investigation regarding his 2016 tax return. 

Id. ¶ 61. 
7 

On or about August 12, 2019, Mr. Holston was placed on 

“light or limited duty” and his handgun and raid badge were 

seized. Id. ¶ 63. Mr. Holston intended to work as SA until his 

mandatory retirement age of 57, but was constructively 

discharged on December 31, 2019 at 50 years of age. Id. ¶ 68. 

B. Procedural 

 On April 26, 2021, Defendant filed the Motion to Dismiss. 

See Mot. to Dismiss, ECF No. 19-1. Mr. Holston filed his 

Opposition brief on May 17, 2021, see Opp’n, ECF No. 21; and 

Defendant filed the Reply brief on May 27, 2021, see Reply, ECF 

No. 22. The motion is ripe and ready for the Court’s 

adjudication. 

II. Standard of Review 

A motion to dismiss pursuant to Federal Rule of Civil 

Procedure 12(b)(6) tests the legal sufficiency of a complaint. 

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A 

complaint must contain "a short and plain statement of the claim 

showing that the pleader is entitled to relief, in order to give 

the defendant fair notice of what the . . . claim is and the 

grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555, (2007) (internal quotation marks omitted). 

Despite this liberal pleading standard, to survive a motion 

to dismiss, a complaint "must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible 
8 

on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) 

(internal quotation marks omitted). A claim is facially 

plausible when the facts pled in the complaint allow the court 

to "draw the reasonable inference that the defendant is liable 

for the misconduct alleged." Id. The standard does not amount to 

a "probability requirement," but it does require more than a 

"sheer possibility that a defendant has acted unlawfully." Id. 

"[W]hen ruling on a defendant's motion to dismiss [pursuant 

to Rule 12(b)(6)], a judge must accept as true all of the 

factual allegations contained in the complaint." Atherton v. 

D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) 

(internal quotation marks omitted). “In determining whether a 

complaint fails to state a claim, [the Court] may consider only 

the facts alleged in the complaint, any documents either 

attached to or incorporated in the complaint and matters of 

which [the Court] may take judicial notice.” EEOC v. St. Francis 

Xavier Parochial Schl., 117 F.3d 621, 624 (D.C. Cir. 1997). In 

addition, the court must give the plaintiff the "benefit of all 

inferences that can be derived from the facts alleged." Kowal v. 

MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). 
9 

III. Analysis 

A. Administrative Exhaustion 

Before bringing suit under Title VII, an aggrieved party is 

required to timely exhaust his administrative remedies. See 

Harris v. Gonzales, 488 F.3d 442, 443 (D.C. Cir. 2007); 

Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 

(D.C. Cir. 1998). These exhaustion requirements are not 

jurisdictional, but rather operate as a statute of limitations 

defense. Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir. 

2011) (citation omitted). “Because untimely exhaustion of 

administrative remedies is an affirmative defense, the defendant 

bears the burden of pleading and proving it.” Bowden v. United 

States, 106 F.3d 433, 437 (D.C.Cir.1997) (citation omitted). 

The Supreme Court's 2002 decision in National 

Railroad Passenger Corp. v. Morgan, 536 U.S. 

101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), 

has led many courts to change how they analyze 

Title VII's requirement that a plaintiff first

exhaust [his] administrative remedies before 

filing suit. In particular, since Morgan, 

district judges in this Circuit have split on 

how to apply this requirement where the 

plaintiff has alleged discrete acts of 

retaliation that occurred after the filing of 

the EEO charge, as Redding does here. See 

generally Poole v. U.S. Gov't Publ'g Office, 

258 F. Supp. 3d 193, 201-02 (D.D.C. 2017) 

(discussing split); Mount, 36 F. Supp. 3d at 

84-85 (similar). A majority of the judges who 

have addressed the issue have held that the 

plaintiff must separately exhaust each 

subsequent discrete act of retaliation. See 

Poole, 258 F. Supp. 3d at 201; Mount, 36 F.

Supp. 3d at 84-85. A minority, however, have 
10 

held that a plaintiff need not separately 

exhaust subsequent acts of retaliation that 

are “like or reasonably related to” the acts 

of retaliation described in the EEO charge. 

See Poole, 258 F. Supp. 3d at 201-02; Mount, 

36 F. Supp. 3d at 85-86. 

Redding v. Mattis, 328 F. Supp. 3d 136, 139-140 (D.D.C. 2018). 

Under the second approach, the analysis “centers on whether the 

allegations that were specifically put before the agency and the 

new allegations the plaintiff seeks to litigate constitute the 

same cause of action and are factually similar such that they 

would be discovered during the agency's investigation.” Mount, 

36 F. Supp. 3d at 85-86. 

1. Mr. Holston’s EEO Activity 

Mr. Holston first contacted the Agency’s EEO counselor on 

or about February 21, 2018, Am. Compl., ECF No. 9 ¶ 4; and filed 

a Formal Complaint of Discrimination (“EEO Complaint”) on or 

about May 30, 2018, id. ¶ 7. 

In his EEO Complaint, Holston alleges that he was 

discriminated against and harassed based on his race when: (1) 

his manager treated him differently from his co-workers with 

regard to (a) training opportunities, (b) the manner in which a 

proficiency exam was scored, (c) scrutiny of his investigative 

activities, (d) travel status notification, and (e) 

participation in the HIP; (2) his manager discussed with other 

managers, and in some instances Mr. Holston’s co-workers, (a) 
11 

how to target Mr. Holston for disciplinary action, (b) Mr. 

Holston’s alleged misuse of the HIP, his government vehicle, 

mishandling evidence, abusing time and attendance policies; and 

(3) his manager reported him to IAD for alleged misuses detailed 

at (2)(b) above. See Individual Complaint of Employment 

Discrimination (“EEO Complaint”), Exhibit 2 to Mot. to Dismiss, 

ECF No. 19-5 at 3, 5.3

2. Four of the Hostile Work Environment Claims Were Not 

Timely Presented to the EEO Counselor 

An employee of the federal government who believes he or 

she has been subject to discrimination is first required to 

“initiate contact” with an EEO counselor within forty-five days 

of the allegedly discriminatory action. 29 C.F.R. § 

1614.105(a)(1); see Steele, 535 F.3d at 693. The forty-five day 

period begins to run when an employee has a “reasonable 

suspicion” of a discriminatory action. Adesalu v. Copps, 606 F. 

Supp. 2d 97, 102 (D.D.C. 2009). If the matter is not resolved 

informally, the counselor shall inform the employee in writing 

of the right to sue, and the employee must file a formal 

complaint of discrimination with the agency. See 29 C.F.R. §§ 

1614.105(d), 1614.106(a)-(c); Bowie v. Ashcroft, 283 F. Supp. 2d 

25, 33 (D.D.C. 2003). The agency must then investigate the 

3 When citing to electronic filings throughout this Memorandum 

Opinion, the Court cites to the ECF header page number, not the 

original page number of the filed document.
12 

matter, after which the complainant may demand an immediate 

final decision from the agency or a hearing before an EEOC 

administrative judge. See 29 C.F.R. §§ 1614.106(e)(2), 

1614.108(f). A complainant may file a civil action within ninety 

days of receiving a final decision from the agency or after a 

complaint has been pending before the EEOC for at least 180 

days. See 42 U.S.C. § 2000e–16(c); 29 C.F.R. § 1614.407; Price 

v. Bernanke, 470 F.3d 384, 389 (D.C. Cir. 2006). 

Defendant argues that four of Mr. Holston’s claims must be 

dismissed because they occurred more than 45 days before he 

first contacted an EEO counselor on February 21, 2018. Def.’s 

Mot., ECF No. 19-1 at 14-15.4 These claims are: (1) denial of 

training requests during the 2015 to 2017 timeframe, see Am. 

Compl., ECF No. 9 ¶ 38; (2) the unfairly administered 2017 

proficiency exam, see id. ¶ 39; (3) Mr. Lesnevich discussing 

with Mr. Holston’s co-workers his alleged misuse of the HIP, see 

id. ¶¶ 42, 45-47; and (4) denial of training requests in 2017, 

see id. ¶ 38. 

Mr. Holston responds that the Agency was on notice of his 

EEO concerns as of July 24, 2017, when he raised his concerns 

with Mr. Jackson. Pl.’s Opp’n, ECF No. 21 at 17. He also points 

to his January 24, 2018 IAD Complaint against Mr. Lesnevich, 

4 The Court does not address claims included in the EEO Complaint 

that are not included in the Amended Complaint. 
13 

arguing that with this complaint he notified “Agency of the fact 

that his claims were ongoing and repeated in nature.” Id. at 18. 

Mr. Holston’s response is beside the point. 

“[C]ourts may treat otherwise untimely 

complaints as timely if the employee ‘did not 

know and reasonably should not have known that 

the discriminatory matter or personnel action 

occurred.’” Hairston v. Tapella, 664 F. Supp. 

2d 106, 114 (D.D.C. 2009) (quoting 29 C.F.R. 

§ 1614.105(a)(2)); see also Adesalu v. Copps, 

606 F. Supp. 2d 97, 101–02 (D.D.C. 2009) (“if 

plaintiff ‘knew or should have known’ of the 

nonpromotion decisions before ... 45 days 

prior to this initial contact, they are timebarred.” (citation omitted)). This is so

because “[a]n overly technical approach would 

improperly impede the goal of making federal 

employment free from proscribed 

discrimination.” Loe v. Heckler, 768 F.2d 409,

417 (D.C. Cir. 1985); accord Hairston, 664 F. 

Supp. 2d at 114. However, “[t]he court's 

equitable power to toll the statute of 

limitations will be exercised only in 

extraordinary and carefully circumscribed 

instances.” Smith–Haynie v. District of 

Columbia, 155 F.3d 575, 579–80 (D.C. Cir. 

1998) ( Mondy, 845 F.2d at 1058 n.3). It is 

the burden of the party seeking equitable 

tolling to prove “reasons that would support 

... tolling of the 45-day time limit.” 

Vasser v. McDonald, 228 F. Supp. 3d 1, 12 (D.D.C. 2016). Mr. 

Holston makes no argument that equitable tolling is warranted 

here. See generally Pl.’s Opp’n, ECF No. 21. Accordingly, 

Defendant’s Motion to Dismiss is GRANTED IN PART and the four 

claims listed above are DISMISSED. 
14 

3. Five of the Retaliation Claims Were Not 

Administratively Exhausted 

Mr. Holston states that his actionable retaliation claims 

are: (1) Mr. Lesnevich filed a meritless IAD Complaint against 

Mr. Holston on February 8, 2018, 15 days after Mr. Holston filed 

his IAD Complaint, Am. Compl., ECF No. 9 ¶ 54; (2) the meritless 

letter of counseling issued by Mr. Florez on July 12, 2018, id. 

¶ 59; (3) the August 1, 2019 Tax Investigation; see id. ¶ 61; 

(4) denial of FMLA request on August 8, 2019; id. ¶ 62; (5) 

placement on “light duty” seizure of his credentials and firearm 

on August 12, 2019, id. ¶¶ 1, 68; and (6) constructive discharge 

on December 31, 2019, id. ¶¶ 1, 68. 

Defendant argues that Mr. Holston failed to exhaust his 

administrative remedies with regard to these claims because he 

has not alleged that his EEO Complaint included a retaliation 

claim and he neither amended nor supplemented his EEO Complaint 

with a retaliation claim. Def.’s Mot. ECF No. 19-1 at 12. Mr. 

Holston does not dispute that that his EEO Complaint did not 

allege retaliation, nor that he did not amend or supplement his 

EEO Complaint. See generally, Pl.’s Opp’n, ECF No. 20. The Court 

can review Mr. Holston’s EEO Complaint without converting the 

motion to dismiss into one for summary judgment as it is 

necessarily incorporated into the complaint. See 
15 

Xavier Parochial Schl., 117 F.3d at 624. The EEO Complaint 

reflects that Mr. Holston did not check the “retaliation/ 

reprisal” box. See EEO Complaint, Exhibit 2 to Mot. to Dismiss, 

ECF No. 19-5 at 4. Furthermore, the incidents listed do not 

include the February 8, 2018 incident, the only alleged 

retaliatory incident that occurred prior to the filing of his 

EEO Complaint. See generally id. Under the majority approach, 

therefore, Mr. Holston did not exhaust his retaliation claims. 

Mr. Holston, however, argues that the Court should apply 

the second approach, arguing that the retaliation claims that 

arose after he filed his EEO Complaint are “excused from the 

exhaustion requirement” because they “are reasonably related to” 

his allegations of hostile work environment. Pl.’s Opp’n, ECF 

No. 21 at 18. Under this approach, the analysis “centers on 

whether the allegations that were specifically put before the 

agency and the new allegations the plaintiff seeks to litigate 

constitute the same cause of action and are factually similar 

such that they would be discovered during the agency's 

investigation.” Mount, 36 F. Supp. 3d at 85-86. “In Payne v. 

Salazar, 619 F.3d 56 (D.C. Cir. 2010), the D.C. Circuit 

concluded that the ‘like or reasonably related’ test (assuming, 

without deciding, that it remained good law) ‘necessarily’ did 

not encompass acts of retaliation occurring after end of the 

administrative investigation, because the investigation could 
16 

not have uncovered them.” Redding, 328 F. Supp. 3d at 140 

(quoting Payne, 619 F.3d at 65.). 

Here, the Agency’s investigation of Mr. Holston’s EEO 

complaint concluded on November 14, 2018. Am. Compl., ECF No. 9 

¶ 9. Four of the alleged retaliatory acts occurred after the 

conclusion of the Agency’s investigation: (1) the August 1, 2019 

tax investigation; (2) the August 8, 2019 denial of FMLA leave; 

(3) the August 12, 2019 placement of Mr. Holston on light duty 

and seizure of his raid badge and handgun; and (4) the December 

31, 2019 constructive discharge. Mr. Holston claims that all of 

his retaliation claims “grow out of the claims asserted in the 

administrative complaint and likely would have come within the 

scope of any investigation that reasonable could have been 

expected to result from the investigation.” Pl.’s Opp’n, ECF No. 

21 at 20. However, he does not explain how this could be since 

the investigation concluded before those incidents occurred. 

Accordingly, the Court concludes that Mr. Holston failed to 

exhaust his administrative remedies as to these four retaliation 

claims. 

 This leaves two incidents—the February 8, 2018 incident, 

see id. Am. Compl., ECF No. 9 ¶¶ 54-58; and the July 12, 2018 

incident, see id. ¶ 83. Mr. Holston points to his January 24, 

2018 IAD Complaint against Mr. Lesnevich in which he alleged a 

“pattern and practice of racial bias,” Pl.’s Opp’n, ECF No. 21 
17 

at 18 (quoting Am. Compl., ECF No. 9 ¶ 53; arguing that “[b]y 

using ‘pattern and practice’ language and reiterating his prior 

discrimination complaint, [Mr. Holston] duly notified the Agency 

of the fact that his claims were ongoing and repeated in 

nature,” id. This argument is beside the point, however, because 

the Court’s analysis “centers on whether the allegations that 

were specifically put before the agency [in the EEO Complaint] 

and the new allegations the plaintiff seeks to litigate 

constitute the same cause of action and are factually similar 

such that they would be discovered during the agency's 

investigation.” Mount, 36 F. Supp. 3d at 85-86 (emphasis added). 

The first allegation is that on February 8, 2018, Mr. 

Lesnevich filed an IAD Complaint against Mr. Holston, contending 

that: (1) Mr. Holston misused his GOV; (2) violated time and 

attendance policies on or about January 22, 2018; and (3) 

engaged in certain improper acts or omissions. Am. Compl. ¶ 55. 

This is in part the same allegation as in paragraph six of Mr. 

Holston’s EEO Complaint and so necessarily would have been part 

of the investigation. See EEO Complaint, Exhibit 2 to Mot. to 

Dismiss, ECF No. 19-5 at 3, 5. The second allegation is that on 

July 12, 2018, the Assistant Inspector General for 

Investigations issued to Mr. Holston a letter of counseling, 

which Mr. Holston alleges was meritless. Am. Compl., ECF No. 9 ¶ 

59. The EEO Complaint is devoid of any allegations regarding 
18 

actions taken by the Inspector General for Investigations. See 

generally EEO Complain, Exhibit 2 to Mot. to Dismiss, ECF No. 

19-5. Accordingly, this allegation would not have been 

discovered during the Agency’s investigation. 

 For the reasons explained above, Defendant’s Motion to 

Dismiss is GRANTED IN PART AND DENIED IN PART as to Mr. 

Holston’s retaliation claims. Mr. Holston’s claim that he was 

retaliated against when Mr. Lesnevich filed an IAD Complaint on 

February 8, 2018 was administratively exhausted. Mr. Holston’s 

other retaliation claims are DISMISSED. 

4. One of the Discrimination/Hostile Work Environment 

Claims Was Not Administratively Exhausted 

Defendant argues that two of Mr. Holston’s discrimination/ 

hostile work environment claims were not administratively 

exhausted because they were not included in the EEO Complaint 

and are not like or reasonably related to the claims presented 

there. Def.’s Mot., ECF No. 19-1 at 13. The claims are: (1) the 

March 6, 2017 inquiry regarding desk audit procedures after 

learning that two of Mr. Holston’s white peers were promoted to 

GS-14, leaving Mr. Holston at the GS-13 level, see Am. Compl., 

ECF No. 9 ¶¶ 40-21; and (2) during the 2017-2018 timeframe, Mr. 

Lesnevich engaging in pattern and practice of disclosing to 

Agency employees private, sensitive personnel and other 

confidential information about Mr. Holston, see id. ¶¶ 43-44. 
19 

Again, the Court’s analysis “centers on whether the 

allegations that were specifically put before the agency and the 

new allegations the plaintiff seeks to litigate constitute the 

same cause of action and are factually similar such that they 

would be discovered during the agency's investigation.” Mount, 

36 F. Supp. 3d at 85-86. The Court is persuaded that the 

allegation about discriminatory non-promotion is “too different 

in kind” from the allegations in the EEO Complaint to have been 

discovered during the Agency’s investigation because there is no 

allegation regarding Mr. Holston being treated differently based 

on non-promotion. Redding, 327 F. Supp. 3d at 140. However, the 

allegation about Mr. Lesnevich’s pattern and practice of 

disclosing private, sensitive, personnel and other confidential 

information about Mr. Holston to other Agency employees is 

factually similar to the allegations involving Mr. Lesnevich 

discussing Mr. Holston with other managers and Mr. Holston’s coworkers. EEO Complaint, Exhibit 2 to Mot. to Dismiss, ECF No. 

19-5 at 5. The Court therefore concludes that the allegation 

would have been discovered during the Agency’s investigation. 

Accordingly, Defendant’s Motion to Dismiss is GRANTED IN PART 

AND DENIED IN PART and the first claim discussed above is 

DISMISSED. 
20 

B. Mr. Holston Conceded That He Failed to Plead Adverse 

Action For His Remaining Retaliation Claim 

Mr. Holston’s remaining retaliation claim is based on Mr. 

Lesnevich filing an IAD Complaint against him on February 8, 

2018. Am. Compl., ECF No. 9 ¶ 54. Defendant argues that Mr. 

Holston failed to adequately allege facts such that this could 

be considered an adverse employment action. Def.’s Mot., ECF No. 

19-1 at 9-14; Reply, ECF No. 22 at 11, 12. Mr. Holston failed to 

respond to this argument in his opposition briefing, incorrectly 

stating that Defendant’s only challenge to the retaliation claim 

was on exhaustion grounds. See Pl.’s Opp’n, ECF No. 21 at 25. 

Accordingly, the Court treats this argument as conceded. Mjema 

v. United States, 881 F. Supp. 2d 89, 93 n.2 (D.D.C. 2012) 

(citing Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 

238 F. Supp. 2d 174, 178 (D.D.C. 2002)); Ali v. D.C. Ct. Servs., 

538 F. Supp. 2d 157, 161 (D.D.C. 2008). 
21 

C. Mr. Holston Alleges Sufficient Facts to Support a Hostile 

Work Environment Claim5

To state a claim under Title VII based on a hostile work 

environment, a plaintiff must allege facts establishing that his 

“workplace is permeated with discriminatory intimidation, 

ridicule, and insult that is sufficiently severe or pervasive to 

alter the conditions of the [plaintiff's] employment and create 

an abusive working environment.” Harris v. Forklift Sys., Inc., 

510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) 

(citations and internal quotation marks omitted). He must 

therefore establish that “(1) he ... is a member of a protected 

class; (2) he ... was subjected to unwelcome harassment; (3) 

the harassment occurred because of the plaintiff's protected 

status; (4) the harassment was severe to a degree which 

affected a term, condition, or privilege of employment; and 

(5) the employer knew or should have known about the 

harassment, but nonetheless failed to take steps to prevent 

it.” Peters v. Dist. of Columbia, 873 F. Supp. 2d 158, 189 

5 Mr. Holston argues that his allegations support his “remedial 

hostile-environment constructive discharge claim,” Pl.’s Opp’n, 

ECF No. 21 at 27-28; as well as a retaliatory hostile work 

environment claim, see id. at 28-30. However, and as Defendant 

points out, Mr. Holston’s Amended Complaint does not allege 

either claim. See generally Am. Compl., ECF No. 9. Accordingly, 

the Court need not address Mr. Holston’s arguments. See 

Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 87 n.4 (D.D.C. 

2010)(noting that a “plaintiff may not amend [its] complaint by 

the briefs in opposition to a motion to dismiss”). 
22 

(D.D.C. 2012). In evaluating these factors, 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 v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 

2008). 

This standard is a demanding one, as Title VII is 

not intended to function as a “general civility code” that 

regulates the “ordinary tribulations of the workplace, such as 

the sporadic use of abusive language, gender-related jokes, 

and occasional teasing.” Faragher v. City of Boca Raton, 

524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). 

“Although a plaintiff need not plead a prima facie case of 

hostile work environment in the complaint, the alleged facts 

must support such a claim.” McKeithan v. Boarman, 803 F. Supp. 

2d 63, 69 (D.D.C. 2011) (citation and internal quotation marks 

omitted). 

 Mr. Holston argues that he has stated a claim for hostile 

work environment because: (1) as an African American, he is a 

member of a protected class; (2) the harassment was unwelcome 

because he complained about it on at least four occasions; (3) 

he was the only African American male within Mr. Lesnevich’s 

line of supervision and the only employee experiencing 
23 

harassment; and (4) the harassment consisted of:6 (a) Mr. 

Lesnevich’s Privacy Act violation and his disclosure to Mr. 

Holston’s peer alleged improper acts by Mr. Holston, (b) 

threatening to report Mr. Holston to IAD after the July 17, 2017 

restaurant incident, (c) Mr. Lesnevich’s disclosure of improper 

personnel information, (d) the Agency’s denial of Mr. Holston’s 

request for voluntary transfer, (e) unfounded threat to report 

Mr. Holston AWOL, (f) Mr. Lesnevich discussing with other 

managers how to target Mr. Holston for disciplinary action on 

January 23, 2018, (g) disregarding Mr. Holston’s IAD complaint, 

and (h) Mr. Lesnevich’s filing of a meritless IAD Complaint 

against Mr. Holston. Pl.’s Opp’n, ECF No. 21 at 25-26. Mr. 

Holston further argues that he has alleged sufficient facts to 

establish that his employer was on notice and failed to take 

steps to address the harassment. See id. at 27. Finally, Mr. 

Holston argues that as a result of the abusive working 

environment, he was compelled to obtain medical treatment and 

miss time from work. See id. 

 Defendant disputes that Mr. Holston has stated a claim for 

hostile work environment, arguing that: (1) the alleged acts 

were not sufficiently severe or abusive enough to constitute a 

6 The Court excludes from this list the claims the Court has 

dismissed on exhaustion grounds. See supra section III.A.1, 2, 

3. 
24 

hostile work environment; and (2) his allegations are 

insufficient to plead that any abuse was because of his race. 

Defendant posits that that the allegations “consist of 

discrete instances of alleged discrimination or retaliation,” 

Williams v. District of Columbia, 317 F. Supp. 195, 202 (D.D.C. 

2018); arguing that courts in this Circuit “are reluctant to 

transform mere reference to alleged disparate acts of 

discrimination against plaintiff into a hostile work environment 

claim,” Reply, ECF No. 22 at 8 (quoting Williams, 317 F. Supp. 

at 202). Defendant further argues that “the facts alleged are 

not ‘sufficient to show that those decisions were part of a 

severe and pervasive patterns of harassment.’” Id. (quoting 

Outlaw v. Johnson, 49 F. Supp. 3d 88, 92 (D.D.C. 2014). 

To support this claim, Mr. Holston relies on the same 

allegation that he relied on for his now-dismissed 

discrimination claim. While courts in this Circuit are reluctant 

to bootstrap discrete acts into a hostile work environment 

claims, they have permitted a plaintiff to do so when the 

“discrete acts that the plaintiff claims .... are actionable on 

their own,” are “sufficient to show that those decisions were 

part of a severe and pervasive pattern of harassment.” Outlaw v. 

Johnson, 49 F. Supp. 3d 88, 92 (D.D.C. 2014). The Court is 

persuaded that Mr. Holston has adequately alleged a hostile work 

environment claim here. 
25 

Taking the allegations described above to be true, 

construing them in his favor, and making all inferences in his 

favor, as the Court must at this juncture, Mr. Holston has 

alleged that after coming under Mr. Lesnevich’s management, he 

went from being a long-term, valued federal employee who was the 

recipient of numerous honors and awards, to being subjected to 

harassment in a variety of ways after Mr. Lesnevich became his 

supervisor. The harassment resulted in Mr. Holston needing 

medical care and medication after being diagnosed for the first 

time in his life, with “physical and mental train related to 

work,” palpitations, hypertension, and abnormal 

electrocardiogram, and his ultimate retirement seven years 

earlier than he had planned. Accordingly, the Court is persuaded 

that Mr. Holston has sufficiently alleged facts that “were part 

of a severe and pervasive pattern of harassment” and that he has 

therefore stated a claim for hostile work environment.7 Cf. Doe 1 

v. George Washington University, 369 F. Supp. 3d 49, 69-73 

(D.D.C. 2019) (denying motion to dismiss hostile work 

environment claim); Bergbauer v. Mabus, 810 F. Supp. 2d 251, 260 

(D.D.C. 2011)(denying motion to dismiss hostile work environment 

claim). 

7 For these reasons, the Court is unpersuaded by Defendant’s 

arguments that the allegations are conclusory and are not 

adequately connected into a coherent claim. 
26 

Mr. Holston’s allegations are distinguishable from the 

cases upon which Defendant relies. In Williams, the plaintiff 

alleged that “denying him the opportunity to negotiate for his 

pay; mishandling his paperwork; requiring him to re-apply for 

the position he was hired for; terminating any interviews he had 

for that position; and subsequently terminating his employment” 

which the Court found insufficient to create a hostile work 

environment. Williams, 317 F. Supp. at 202. These allegations 

are entirely distinguishable from the “severe and pervasive 

pattern of harassment” Mr. Holston alleges. Similarly, in 

Stewart v. Evans, 275 F.3d 1126 (D.C. Cir. 2002) the Court of 

Appeals for the District of Columbia Circuit affirmed the 

district court’s denial of hostile work environment claim that 

was based on a single incident. Stewart, 275 F.3d at 1132-34. 

Here, Mr. Holston alleges numerous incidents. Finally, in Horsey 

v. U.S. Dep’t of State, 387 F. Supp. 3d 97 (D.D.C. 2019), the 

plaintiff alleged a hostile work environment based on, among 

other things: (1) violation of certain rights; (2) requiring him 

but not his white counterparts to undergo an evaluation; and (3) 

subjecting him to emails, phone calls, and letters, threatening 

[his] employment.” 387 F. Supp. 3d at 111. The court found these 

allegations to be insufficient because the plaintiff’s pleading 

did not “describe the volume, nature, or content of the alleged 

‘emails, phone calls, and letters’ that [plaintiff] allegedly 
27 

received.” Id. Here, Mr. Holston has provided detailed 

allegations supporting his hostile work environment claim. 

 With regard to whether Mr. Holston has sufficiently alleged 

that he was subject to abusive treatment because of his race, 

Mr. Holston argues that because he “was the only employee 

subjected to such treatment and the only African American male 

within the employ of the [relevant managers]—all of whom are 

white—th[e] Court can reasonable infer that the harassment 

occurred because of [Mr. Holston’s] race.” Pl.’s Opp’n, ECF No. 

21 at 26-27. Defendant argues that Mr. Holston’s conclusory 

allegation is insufficient. Def.’s Mot., ECF No. 22 at 10. 

However, the authority upon which Defendant relies is 

inapposite. In Massaquoi v. District of Columbia, 81 F. Supp. 3d 

44 (D.D.C. 2015), the Court concluded that the plaintiff was not 

entitled to an inference of discrimination based on disparate 

treatment because there were no allegations that the plaintiff 

was treated differently than similarly situated employees who 

not of the same national origin, gender or religion. Massaquoi, 

81 F. Supp. 3d at 49. Here, Mr. Holston has alleged that he was 

treated differently from his white peers. See e.g., Am. Compl., 

ECF No. 9 ¶¶ 42, 56, 72. Accordingly, he has sufficiently 

alleged that he was subject to abusive treatment because of his 

race. 
28 

 For these reasons, Defendant’s Motion to Dismiss as to the 

hostile work environment claim is DENIED. 

IV. Conclusion 

For the reasons explained above, Defendant’s Motion to 

Dismiss, ECF No. 19-1, is GRANTED IN PART AND DENIED IN PART. An 

appropriate Order accompanies this Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 September 20, 2022