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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JACQUELINE T. GORDON,

Plaintiff,

v. Civil Action No. 09-2211 (JEB)

RAND BEERS,

Defendant.

MEMORANDUM OPINION

Plaintiff Jacqueline Gordon, an employee of the Federal Emergency Management 

Agency, filed one discrimination complaint with the Equal Employment Opportunity 

Commission in September 2004 and another in May 2007. Both times, the Commission rejected 

her claims. In 2009, she filed this employment-discrimination suit. Suing under Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Gordon alleged that her EEOC complaints

had triggered numerous incidents of retaliatory conduct, as well as behavior among her coworkers that created a hostile work environment. The Court previously dismissed most of

Plaintiff’s claims on the ground that they were untimely. See Gordon v. Napolitano (Gordon I), 

786 F. Supp. 2d 82, 86-87 (D.D.C. 2001). The Court, however, did decide that it would be

premature to dismiss the three remaining claims before discovery. Id. Discovery now having 

closed, Defendant Rand Beers, Acting Secretary of the Department of Homeland Security,

moves to dismiss or, in the alternative, for summary judgment on these three surviving claims. 

Concluding that Plaintiff’s evidence is insufficient to create a material dispute of fact, the Court 

will treat Defendant’s filing as a motion for summary judgment and will grant it.
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I. Background

The facts in this case are largely set forth in Gordon I, 786 F. Supp. 2d at 83. To briefly 

recap, and taking the facts in the light most favorable to Plaintiff, Gordon, a black woman over 

40 years of age, was at all relevant times employed by the Federal Emergency Management 

Agency, a component of the Department of Homeland Security. See Def. First Mot. To Dismiss,

Exh. 15 (First Administrative Deposition of Jacqueline Gordon) at 6:6-6:22. In September 2004, 

Gordon filed a complaint with the EEOC alleging discrimination based on gender, race, color, 

and age, as well as reprisal for prior protected activity. See Am. Compl., ¶ 25. The EEOC found 

in favor of the Agency. See First Mot., Exh. 9 (First EEOC Decision) at 13.

Plaintiff believes that her EEOC complaint triggered retaliatory conduct, as well as

treatment by her colleagues and supervisors that constituted a hostile work environment. This

belief prompted Gordon to contact the EEOC again, in January of 2007, and to file a second 

complaint before that body in May of the same year. See First Mot., Exh. 17 (Second EEOC 

Decision) at 2. Reaction to this later complaint, she alleges, also contributed to her hostile work 

environment. The EEOC again resolved the matter in favor of DHS, see id. at 15, and Plaintiff 

received a Notice of Right To Sue. See Gordon I, 786 F. Supp. 2d at 83. She then brought an 

action against the Agency in this Court in November 2009, setting forth one count of retaliation 

and one count alleging a hostile work environment. See Am. Compl., ¶¶ 34-41. The Complaint 

alleged a large number of incidents of retaliation, see id, ¶¶ 7-21, 36-37, and it claimed that those 

incidents, when taken together, also created a hostile work environment. See id., ¶¶ 39-41. 

Then-Secretary Janet Napolitano sought to dismiss the suit in its entirety under Rule 

12(b) of the Federal Rules of Civil Procedure, claiming that Plaintiff had failed to exhaust her 

administrative remedies or state a claim upon which relief could be granted. See First Mot. at 1. 
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In the alternative, the Secretary argued, the suit should be decided in her favor on summary 

judgment under Rule 56. Id. After determining that “each incident was of a different kind from 

the others” and occurred “over the course of several years,” Gordon I, 786 F. Supp. 2d at 84, this 

Court dismissed almost all of Plaintiff’s claimed incidents of retaliation for lack of exhaustion. 

Id. at 87. The Court deemed it premature, however, to dismiss the two remaining retaliation 

incidents and the hostile-work-environment claim prior to discovery. Id. at 86-87. Those

surviving claims allege: (1) retaliation in connection with an overtime dispute that occurred on 

December 19, 2006; (2) mistreatment by a FEMA contractor, Eddie Cherriss, on February 6, 

2007; and (3) a litany of incidents of harassment that allegedly constitute a hostile work 

environment. Id. at 85 (citing Am. Compl., ¶¶ 16(b), 16(e), 17).1

With discovery now complete, Defendant has renewed his Motion To Dismiss or, in the 

Alternative, for Summary Judgment on the remaining claims. The Court is unsure why 

Defendant has labeled his pleading a Motion To Dismiss; as the Motion draws on evidence 

outside of the Complaint and associated documents, the Court must treat it solely as a Motion for 

Summary Judgment. See Fed. R. Civ. P. 10(c). 

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Holcomb v. 

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the 

substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 

 1 The Court notes that although Gordon I mistakenly stated that Paragraph 16(b) of Gordon’s Amended Complaint 

described the December 19, 2006, overtime dispute, see 786 F. Supp. 2d at 85 – the reference should have been to 

Paragraph 16(c) because Paragraph 16(b) had to do with an earlier overtime dispute that Plaintiff failed to exhaust –

the parties address the correct events in their briefs. 
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895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict 

for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 

U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely 

disputed must support the assertion” by “citing to particular parts of materials in the record” or 

“showing that the materials cited do not establish the absence or presence of a genuine dispute, 

or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 

56(c)(1).

When a motion for summary judgment is under consideration, “[t]he evidence of the 

nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.”

Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); 

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for 

summary judgment, the Court must “eschew making credibility determinations or weighing the 

evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

The nonmoving party’s opposition, however, must consist of more than mere 

unsupported allegations or denials and must be supported by affidavits, declarations, or other 

competent evidence, setting forth specific facts showing that there is a genuine issue for trial.

See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is 

required to provide evidence that would permit a reasonable jury to find in her favor. 

Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is 

“merely colorable” or “not significantly probative,” summary judgment may be granted. Liberty 

Lobby, 477 U.S. at 249-50.

III. Analysis
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Although the Court has already dismissed most of Gordon’s claims, pieces of two counts

remain from her Amended Complaint. Count I alleges retaliation, and Count II claims that

Gordon was subjected to a hostile work environment. See Am. Compl., ¶¶ 34-41. 

A. Retaliation

Title VII prohibits an employer from retaliating against an employee “because [the 

employee] has opposed any practice made an unlawful employment practice” under the statute. 

42 U.S.C. § 2000e-3(a). In cases like this one, in which there is no direct evidence of retaliation, 

the Court must begin with the familiar three-part burden-shifting framework set forth in 

McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See McGrath v. Clinton, 666 

F.3d 1377, 1383 (D.C. Cir. 2012). Under this framework, the plaintiff has the initial burden of 

establishing by a preponderance of the evidence a prima facie case of retaliation. 

To establish such a prima facie case, “a plaintiff must show: (1) that he opposed a 

practice made unlawful by [statute]; (2) that the employer took a materially adverse action 

against him; and (3) that the employer took the action because the employee opposed the 

practice.” Id. at 1380 (internal quotation marks omitted). In cases where the defendant offers a 

legitimate, non-retaliatory reason for its decision, the court “need not – and should not – decide 

whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. 

Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Instead, it simply looks at 

whether the employee has produced sufficient evidence for a reasonable jury to conclude that the 

asserted non-retaliatory justification for the action is a pretext for retaliation. Guajacq v. EDF, 

Inc., 601 F.3d 565, 577 (D.C. Cir. 2010). In this case, however, Defendant does not offer a 

reason for any action or decision; instead, it relies on Plaintiff’s failure to establish a prima facie

case of retaliation. In such circumstances, there is no Brady pretext question to reach. See
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Dudley v. Washington Metro. Area Transit Auth., 924 F. Supp. 2d 141, 181 (D.D.C. 2013)

(because Defendant “attack[ed] Plaintiff’s prima facie case directly” – here, whether adverse 

action occurred and whether it was reasonably proximate to alleged retaliation – court did not 

need to consider question of pretext). 

Just two alleged acts of retaliation by FEMA remain after Gordon I. First, Gordon

mentions a dispute about overtime that she claims occurred in retaliation for her 2004 EEOC 

Complaint. See Am. Compl., ¶ 16. Second, she alleges that Eddie Cherris, a FEMA contractor, 

approached her at her desk and threatened her. This treatment, she alleges, was similarly 

retaliatory. See id., ¶¶ 16(e), 17. In moving for summary judgment, Defendant asserts that 

Gordon cannot establish a prima facie claim for retaliation because neither act constitutes an 

adverse action and neither was motivated by the Agency’s desire to retaliate against her for her 

protected activity. See Def. Renewed Mot. at 12-14.

As a preliminary matter, there is no dispute that Gordon’s 2004 EEOC complaint satisfies 

the first prong of the test for a prima facie case of retaliation under Title VII – namely, that the 

plaintiff must have engaged in protected activity. The 2004 complaint alleged that Gordon’s

supervisors had discriminated against her on the basis of age and race, both of which are illegal 

under Title VII. Whether Gordon is entitled to a remedy on this count, then, depends on whether 

FEMA took any materially adverse action against her because she opposed those alleged illegal 

acts.

1. Overtime Dispute

The Court will begin with Gordon’s argument about the December 19, 2006, overtime 

dispute. Plaintiff makes two related allegations with respect to those events: first, that Michael 

White, then her acting supervisor, threatened her into approving a co-worker’s improper 
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overtime request, see Am. Compl., ¶ 16(c), and second, that Gordon’s own proper overtime 

request was denied. See id., ¶ 10(c); see also Def. First Mot. To Dismiss, Exh. 16 (Second 

Administrative Deposition of Jacqueline Gordon) at 20:22. To rise to the level of a materially 

adverse employment action, an employer’s behavior must be more disruptive than a mere 

inconvenience. See Forkkio v. Tanoue, 131 F. Supp. 2d 36, 40 (D.D.C. 2001). In considering 

retaliation claims, courts look “beyond workplace-related or employment-related retaliatory acts 

and harm” to any act that “a reasonable employee would have found . . . materially adverse, 

which in this context means it well might have dissuaded a reasonable worker from making or 

supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 

53, 67-68 (2006). 

A denial of overtime may well qualify as an adverse action because it is likely to have 

just such an effect. See Diggs v. Potter, 700 F. Supp. 2d 20, 43 (D.D.C. 2010) (denial of request 

for sick leave “may well constitute an adverse or materially adverse action”). Unfortunately for 

Plaintiff, the record reveals that her own overtime denial occurred in 2004, see Second Gordon 

Admin. Depo. at 20:22, falling well outside of the 45-day EEOC filing window, and is thus 

unexhausted. See Gordon I, 786 F. Supp. 2d at 85 (finding that alleged acts before December 11, 

2006, were unexhausted). As a result, that incident cannot be the basis for the retaliation claim 

Plaintiff sets forth here and should have been dismissed in the earlier Opinion. 

The White incident, conversely, was properly exhausted since it occurred on December 

19, 2006. See id. Forcing an employee to grant overtime to someone else, however, even if 

charitably viewed as a one-time removal of Gordon’s official duties, cannot constitute an adverse 

action because “changes in assignments or work-related duties do not ordinarily constitute 

adverse employment actions if unaccompanied by a decrease in salary or work hour changes.” 
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Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997). With no adverse 

action to speak of, Plaintiff’s claim with respect to the overtime incident cannot proceed.

2. Incident with Cherris

Although it is plausible that Plaintiff could make out a case that Cherris’s behavior 

toward her, if directed by Defendant or the Agency, did constitute an adverse action, this claim 

suffers from other fatal defects. Defendant argues first that there is no causal nexus between 

Cherris’s actions and Gordon’s protected activity. Before addressing that point, the Court will 

discuss a more fundamental flaw: an employer cannot be liable for retaliation if the employer 

itself is in no way responsible for the alleged adverse action. 

In the hostile-work-environment context, an employer may be held liable to an employee

for misconduct by her co-worker only if the employer is legally responsible for the actions of the 

individual who perpetrated the adverse action. See Davis v. Coastal International Security, Inc., 

275 F.3d 1119, 1123 (D.C. Cir. 2002) (noting that Title VII liability requires “the existence of 

respondeat superior liability”). In other words, a plaintiff must prove that the employer knew of 

the harassment and failed to take prompt and appropriate remedial action. See Curry v. District 

of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999); Coles v. Kelly Servs., 105 F. App’x 275, 276 

(D.C. Cir. 2004). The Sixth Circuit has held that this principle applies equally to retaliation 

claims. See Hawkins v. Anheuser–Busch, Inc., 517 F.3d 321, 347 (6th Cir. 2008) (employer is 

liable for co-worker’s actions only where supervisors have knowledge of coworker’s behavior

and condone, tolerate, or encourage those acts). 

The Court is persuaded that the Sixth Circuit’s approach is the correct one. When an 

employer acts promptly to remediate an employee’s retaliatory conduct, it serves Title VII’s goal 

of deterring employer conduct – or, indeed, an employer’s endorsement of an employee’s 
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conduct – that would dissuade employees from bringing meritorious complaints in the future. 

Here, it is undisputed that Plaintiff’s supervisor, Joyce Ard, not only refused to tolerate Cherris’s 

actions, but in fact supported Plaintiff’s complaint against him and ultimately had him 

terminated. See Mot., Exh. 13 (Administrative Deposition of Joyce Ard) at 18:2-25, 19:1-17. 

Plaintiff, tellingly, testified in her EEOC deposition that Ard “did the very best she could” in the 

situation. See Second EEOC Decision at 14; First Gordon Depo. at 51:9-10. Given Ard’s 

efforts, it would beggar belief to suggest that the contractor’s harassment in this case could 

reasonably discourage an employee like Gordon from speaking out against management in the 

future. On the contrary, the message is that harassers or retaliators must beware.

What is more, even were the Court to find that Defendant could be held responsible for 

Cherris’s actions, Plaintiff has still failed to establish the requisite causal nexus between her

protected activity and those actions. Indeed, she has never offered any evidence that Cherris’s 

behavior was a reaction to – or, indeed, had anything at all to do with – her 2004 EEOC 

Complaint. To establish causation, “the employee must proffer evidence from which a 

reasonable jury could infer the employer’s retaliatory intent.” McGrath, 666 F.3d at 1383 (citing 

Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008)). Although “such evidence may be 

direct, circumstantial, or both,” McGrath, 666 F.3d at 1383, and “there is no rule of law that the 

testimony of a discrimination plaintiff, standing alone, can never make out a case . . . that could 

withstand a summary judgment motion,” Desmond v. Mukasey, 530 F.3d 944, 964 (D.C. Cir.

2008), it is not enough for Plaintiff simply to testify that her employer had a retaliatory motive. 

Indeed, “[a]lthough, as a rule, statements made by the party opposing a motion for summary 

judgment must be accepted as true for the purpose of ruling on that motion, some statements are 

so conclusory as to come within an exception to that rule.” Greene v. Dalton, 164 F.3d 671, 675 
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(D.C. Cir. 1999); see also Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993) (discrimination 

plaintiff asserting superior qualifications “must support his allegations . . . with facts in the 

record; a mere unsubstantiated allegation of superior qualifications creates no genuine issue of 

fact and will not withstand summary judgment”). The problem for Plaintiff, then, is not that she 

is the one asserting that she was retaliated against, but that “[a]bsent supporting facts – and [she 

has] provided none – a jury would be in no position to assess [her] claim” that the Agency had in 

fact retaliated against her. Greene, 164 F.3d at 675. Because Plaintiff’s claim that Cherris was, 

somehow, acting on behalf of the Agency and in retaliation for her EEOC Complaint before he 

was fired for his conduct “rests entirely upon a conclusory representation,” Greene, 164 F.3d at 

675, the Court must dismiss it. 

Plaintiff has failed to make out a prima facie case of retaliation. The Court will, 

accordingly, grant Defendant’s Motion on Count I.

B. Hostile Work Environment

Plaintiff also alleges that she was subjected to a hostile work environment. In particular, 

she argues in her Opposition:

[T]he totality of [the harassment’s] frequency and severity . . . 

were sufficient to create an ongoing hostile work environment for 

Plaintiff, which . . . is on account of her gender, race, color, age, 

and reprisal. Note, in particular, that multiple incidents involved 

threatening physical confrontations with Agency staffers, and that 

the persistent harassments, by their nature, and due to their 

resulting medically-related leaves, were intended to, and did, 

substantially interfere with Plaintiff’s ability to do her job.

Pl. Opp. at 10. Defendant responds that there is no evidence that the complained-of conduct was 

sufficiently egregious to support Gordon’s claim or, indeed, that the events even happened as 

Plaintiff claims they did. See Reply at 6-7. Although the Court must refrain from weighing the 

credibility of the evidence at this stage, see Liberty Lobby, 477 U.S. at 255, it agrees that the 
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limited facts on the record, even as Gordon describes them, cannot support a hostile-workenvironment claim. 

To establish such a claim, a plaintiff must demonstrate that: (1) she is a member of a 

protected class; (2) she was subjected to unwelcome harassment; (3) the harassment occurred 

because of the plaintiff’s protected status; (4) the harassment affected a term, condition, or 

privilege of employment; and (5) the employer knew or should have known of the harassment in 

question but nonetheless failed to either take steps to prevent it or afford the plaintiff prompt 

remedial action. Kelley v. Billington, 370 F. Supp. 2d 151, 156 (D.D.C. 2005) (citing Jones v. 

Billington, 12 F. Supp. 2d 1, 11 (D.D.C. 1997), aff’d, 1998 WL 389101 (D.C. Cir. June 30, 

1998)). “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 v. 

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

It is impossible in the present case for the Court to look to the “totality of the 

circumstances,” however, because Plaintiff’s brief, quite surprisingly, does not point to any 

record evidence to support the allegations in her Complaint. The best she can offer is to

incorporate two documents by reference that could theoretically support her claims. Those 

documents, however, turn out to be unhelpful. First, Plaintiff “accepts the Defense statement of 

the factual background.” See Pl. Opp. at 4. That statement – presumably the factual background 

section of Defendant’s renewed Motion for Summary Judgment – however, alludes only 

obliquely to certain facts related to Plaintiff’s claims (without record citations), and those 

references are simply not enough to allow the Court to accurately assess those claims. Second, 

Plaintiff “adds through incorporation by reference herein each of the allegations of Plaintiff’s 
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Amended Complaint and the allegations of Plaintiff’s 2004 EEO complaint.” Id. That Amended 

Complaint contains allegations, not record evidence that can serve as the factual basis for 

Plaintiff’s argument. See Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact cannot be or is 

genuinely disputed must support the assertion by citing to particular parts of materials in the 

record.”). The 2004 EEO complaint, conversely, is not even before the Court. Plaintiff did not 

enter the complaint into the record, she has not provided the Court with a copy, and she has made 

no representation that the document even contains sworn testimony, as opposed to mere 

allegations like the Amended Complaint in this suit. In these circumstances, Plaintiff has offered

nothing to create a material dispute of fact on her hostile-work-environment count. See Fed. R. 

Civ. P. 56(c)(3) (“The court need consider only the cited materials.”).

Even if Plaintiff had made reference to the record and established treatment that rose to 

the level of a hostile work environment, her claim would fail for want of a causal nexus between 

her protected status or activity and the alleged mistreatment. Title VII does not ban all 

workplace hostility. Instead, it makes employers liable only when hostility is directed at a 

protected class or those engaging in protected activities:

Everyone can be characterized by sex, race, ethnicity or (real or 

perceived) disability; and many bosses are harsh, unjust and rude. 

It is therefore important in hostile work environment cases to 

exclude from consideration personnel decisions that lack a linkage 

of correlation to the claimed ground of discrimination. Otherwise, 

the federal courts will become a court of personnel appeals.

Bryant v. Brownlee, 265 F. Supp. 2d 52, 63 (D.D.C. 2003) (quoting Alfano v. Costello, 294 F.3d 

365, 377 (2d Cir. 2002)). Put another way, “the plaintiff must establish a causal connection 

between the harassment and her protected activity [or status] to succeed on the claim.” Lewis v. 

District of Columbia, 653 F. Supp. 2d 64, 81 (D.D.C. 2009). “There is an evidentiary component 

to this principle: evidence that bears no connection to the plaintiff’s protected status cannot 
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support a hostile work environment claim. Therefore, courts should exclude from consideration 

employment actions that ‘lack a linkage’ to discrimination or retaliation.” Mason v. Geithner, 

811 F. Supp. 2d 128, 179 (D.D.C. 2011) (internal citations omitted). 

One’s subjective belief alone is insufficient to establish a genuine issue of material fact as 

to whether discrimination motivated an employer’s action. See Betkerur v. Aultman Hosp. 

Ass’n, 78 F.3d 1079, 1094 (6th Cir. 1996); cf. Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at

324 (nonmoving party’s opposition must consist of more than mere unsupported allegations). 

Despite her protestations, Plaintiff has produced no other evidence that the Agency was 

motivated to treat her poorly in retaliation for her protected activity. 

Based on the evidence proffered – or, more precisely, the lack thereof – and drawing all 

reasonable inferences in favor of Plaintiff, the Court finds that she has failed to raise a genuine 

dispute of fact regarding a hostile work environment. In these circumstances, the Court must 

grant Defendant’s Motion with respect to Count II as well.

IV. Conclusion

For the aforementioned reasons, the Court will grant Defendant’s Motion for Summary 

Judgment on both remaining Counts. A separate Order consistent with this Opinion will be 

issued this day.

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: September 23, 2013