UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

LAURA M . LAUG HLIN, P laintif f,
v. Civil Action No. 11-1869 (JD B) ERIC H. HOL DER, JR., Att orney Ge neral, Defendan t.

MEMORAN DUM OP INION Plaintiff L aura

M. L aug hlin has sued def endant Er ic H. Holder , J r., in his capa city as Attorney Gene ral, for

g ender discrimination and re taliation under Title VI Iof the Civil Ri g hts Act of 1964, 42 U .S.C. § 2000e et seq., and a g e discrimination under the Ag e Discr imination and Employ ment Act (" ADEA" ), 29 U.S.C. § 621 et seq. De fenda nt has moved to dismiss t he complaint under F eder al Rule of Civil P roce dure 12( b)(6) on the g rounds of fa ilure to exhaust administrative re medies and f ailure to state a

claim upon which r elief ma y be g rante d. For

the following rea sons, the Court will gra nt in part and de ny

in part def

endant' s motion. BACK GR OUND I. F actual Background L aug hlin is t he Specia l Ag ent-in-Char g e (" SAC") of the Seattle Division of the F BI , a position she has held since Ma rch 1, 2005. Compl. [EC F 1] ¶¶ 1, 6. She ha s worked f or the F BI since 1985. I d. ¶ 11. In 1997, L aughlin filed an Equal Employ ment Opportunity

(" EEO" ) complaint of g ender

1discrimination reg ardingthe conduc t of J eff rey L ampinski, then-Inspector- in-Charg e of the FB I ' s Campaig n Financ ing T ask F orce . I d. ¶¶ 13, 15. L aug hlin settled this EEO complaint in 2003. I d. ¶ 19. In the summer of 2004, a bout six months after the settlement of her EEO complaint, L aug hlin applied but was not selec ted for two pr omotions, t o SAC of the Philadelphia Division and SAC of the L os Ang eles Division. I d. ¶¶ 43- 44, 46-47. In 2005, L aughlin was promoted to SAC of the Seattle Division. See id. ¶ 6. Shortly afte r she be g an ser

ving in this position, L aug hlin reviewe d the Seattle Division' s ong oing investigation of a major murde r, desig nated Ma jor Case 186. I d. ¶ 20. Duringher r eview of the investigation, L aug hlin observed what she believe d to be unlawf ul rac e- a nd sex-based discrimination by

two white male Spec ial Ag ents ag ainst a Supervisory Special Ag ent (" SSA") on Major Case 186. I d. ¶¶ 21- 23. As a re sult, L aughlin removed the two Spec ial Ag ents from the ca se and r eassig ned them to other duties. I d. ¶ 24. She re ported the discr imination to FBI ' s senior lea dership, but the ag ency did not follow up on her complaints. I d. ¶ 28-29. L aug hlin's de cision to reassign the two Special Ag ents was strong ly opposed by

a Specia l Assistant U.S. Attorney

(" SAUSA") on the ca se. I d. ¶ 25. In J une 2005, the F BI rea ssigne d the 1 manag ement of Ma

jor Case 186 fr om plaintiff, as SAC of the Seattle Division, to the male SAC of the Portland Division, despite the fa ct that the murde r beinginvestigated had ha ppened in Seattle. I d. ¶ 96. In addition, the two Special Ag ents that L aug hlin had rea ssigne d wer e put bac k on the ca se. I d. ¶ 97. L aug hlin alleg es that her

manag ement of the Seattle Division was impeded by the

L aughlin describes the SAUSA as a " close a ssociate" of F BI Direc tor Robert S. Mueller 1 I I Iand hig h-leve l Depar

tment of J ustice (" DOJ") off icials. Compl. ¶ 25. 2rea ssignment of Major Case 186 to the Portland D ivision and by the followingpersonne l actions: (1) the F BI

delayed appr oval of L aug hlin's re quest for a Bor der L iaison Offic er f

or the Seattle Division for more than f

our year s, from June 2005 to J uly 2009; (2) the F BI

"ta bled" L aug hlin's job posting for

the newly

vacated position of supervisor of Ma jor Case 186 in September 2009; and (3) the FB I

ref used L aug hlin's re quest for a repla ceme nt Media Repre sentative whe n the Seattle Division's Me dia Repre sentative re tired in Dec ember 2009. I d. ¶¶ 88, 92- 93, 100, 116, 121-23, 125, 129-32, 135. In Dec ember

2006, an F BI

inspection team investig ated the Seattle Division for the second time that year . I d. ¶ 101. The pe rfor mance repor

t based on the inspec tion ge nera lly 2 praised L aughlin's job per formanc e but listed two manag ement def iciencie s: first, that L aug hlin had not consulted the SAUSA be fore removingthe two Special Ag ents from Major Case 186, and sec ond, that the Seattle Division lacke d "a strongand ef

fec tive executive level media prog ram." I d. ¶¶ 105. L aug hlin did not receive a bonus in 2006, 2007, or 2008, eve n though he r per formanc e rating s were equal to or be tter than the pe rfor mance rating s of other SACs who re ceive d bonuses and eve n though unde r L aug hlin's lea dership the Seattle Division receive d sever al FB I and DOJ

awa rds for e x cellenc e. I d. ¶ 109. Be tween 2007 a

nd 2010, L aug hlin applied but was not selec ted for te n promotions within

The Seattle Division had been inspec ted in April 2006, but L aug hlin had ref used to sign 2 off on the inspe ction repor ts beca use, in her vie w, they

inacc urate ly

faulted the SSA on Major Case 186 for

manag ement def

iciencie s and we re ba sed on unlawf ul discrimination. Com pl. ¶¶ 26- 28. After

L aug hlin reported the perc eived inac cura cies to Dire ctor Mueller , he said that the Seattle Division would be re inspected. I d. ¶ 29. 3the FB I : (1) SAC of the Ne war k Division (Febr

uary 2007); (2) Assistant Dire ctor (" AD" ) of the

3 Security Division of FB Iheadqua rters ( April 2007); (3) A D of the Tr ainingDivision at Quantico, Virg inia (May

2007); (4) D eputy

AD of the Criminal I nvestig ative Division at FB IHea dquarte rs (Oc tober 2007); ( 5) SAC of the Philadelphia Division (Dec ember 2007); (6) SAC of the Ba ltimore Division (Febr uary 2008); (7) SAC of the O ffice of I nterna tional Opera

tions (Aug ust 2008); (8) A D of L os Ang eles Division (August 2009); (9) Assistant Direc tor-in-Char g e of the New Y ork Division (May 2010); and (10) SAC of the Philadelphia Division (J uly 2010). I d. ¶¶ 50- 87. After L aug hlin applied to be SAC of the Off ice of International Operations, a male wa s named a s Deputy

Assistant Director

of that off

ice. I d. ¶ 70. Ther eaf

ter, the of fice was re named the International Operations Divisi on, to be led by an AD r ather

than an SAC. I d. ¶ 71. The duties of the " upg rade d and re named" position, AD of the International Operations Divisi on,

wer e identica l to the duties of the position for which L aug hlin had applied. I d. ¶ 73. In October 2009, the male pr eviously named a s Deputy

Assistant Director

was named to the " upg rade d and

rena med" position. I d. ¶ 72-73. L aug hlin has felt pre ssure to re tire fr om the FB I since January

2007. See id. ¶ 110. Deputy Direc tor J ohn Pist ole first aske d L aug hlin in S eptember 2007 if she would be r etiring soon, then told L aughlin in May 2008 that she would neve r be pr omoted within the FB I , and finally , in Aug ust 2008, ag ain aske d L aug hlin when she planne d to retire a nd sug g ested that she find a job in the private sector. I d. ¶¶ 111, 113- 14.

Eac h date noted in pa

renthe ses re prese nts the date on whic h L aug hlin applied for a 3 g iven position. 4II. P roce dural B ackground

On September

25, 2008, L aughlin contacted a n EEO counse lor about her claims of discrimination. I d. ¶ 138. She filed a formal EEO complaint ag ainst the FB Ion Dec ember 16, 2008. I d. Ba sed on that complaint, the followingclaim was a ccepted for inve stigation: whether the Ag ency

discriminated ag ainst Complainant on the bases of he r sex (fe male), a g e (dob 9/14/57), a nd repr isal, when mana g ement continuously hara ssed her , treated her

disparate ly , denied he r promotion opportunities from J une 2004 to the pre sent; and whe n, on August 11, 2008, the Deputy Direc tor sug g ested that Complainant re tire and state d that she should find another job outside of the F BI

. Orde r (Apr . 25, 2011), De f.' s Mot. to Dism iss [ ECF 11] ("D ef.' s MTD" ), Ex. A ("A J Orde r" ) 1. After the investig ation, L aug hlin requested a hear ing be fore an administrative judg e. Compl. ¶¶ 139- 40. On Dec ember 18, 2009, an administrative judg e notified L aug hlin that her complaint had bee n assig ned to him. I d. ¶ 143. On F ebrua ry 1, 2010, L aug hlin moved to amend her complaint to add five c laims conce rning : (1) her 2009 non-promotion to AD of the L os Ang eles Division; (2) her non- promotion to S AC of the Of fice of International Operations, a position eff ectively filled by a male in Oc tober 2009; (3) the 2009 tablingof L aug hlin's job posting f or supervisor of

Major Case 186; ( 4) the 2005-2009 de lay in approvingher r equest for a B order L iaison Offic er; a

nd (5) the 2009 r efusa l to replac e the Seattle Division's Media Repr esentative. 4 I d. ¶ 146. On Nove mber 3, 2010, L aughlin filed a sec ond motion to amend her c omplaint, to add claims conc erning(1) he r 2010 non-pr omotion to Assi stant Direc tor-in-Char g e of the New Y ork Division and (2) he r 2010 non-pr omotion to S AC of the Philadelphia Division. I d. ¶ 148.

On J anuar

y 6, 2010, L aug hlin had moved to postpone discover y , stating that she 4 intended to file a

motion to amend but was awa iting its approva l by the FB I ' s Civil Discover

y Review Unit. Compl. ¶ 145. 5The a dminist rative judg e ac cepte d for amendment claims (4) and (5) of L aug hlin's fir st

motion to amend, but rejec ted the re maining c laims as untimely , rea soning that claims (1), (2) , and (3) of L aug hlin's fir st moti on to amend and both c laims in her sec ond motion had occur red more than 45 da

y s befor e her

respe ctive ame ndments. See AJ Order 4. In addition, although L aug hlin had not raised de nial of bonuses to her EEO counse lor, the administrative judg e interpre ted her

claims reg ardingbonuses as a n amendment to her

complaint and found that they

wer e like or r elated to the a cce pted issues. I d. at 2. He f ound that L aug hlin's c laims of being denied bonuse s in 2006 and 2007 wer e untimely , but acc epted f or ame ndment the denial of a bonus in Dece mber 2008. I d. at 2-3. The administrative judg e orde red a supplemental investigation of the new c laims acc epted. I d. at 5. After the dismissal of her a dminist rative c omplaint in J uly 2011, L aughlin filed suit in this Court. S ee Compl. ¶ 151. STANDARD OF REVIEW To survive a

Rule 12(b)(6) motion to di smiss, a complaint must contain "' a short and plain statement of the c laim showing that the pleade r is entitled to relief,' in order to ' g ive the defe ndant fa ir notice of what the . . . cla im is and the g rounds upon which it re sts.'" Be ll Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quotingConley v. Gibson, 355 U.S. 41, 47 (1957)) ; acc ord Eric kson v. Pardus, 551 U.S. 89, 93 (2007) (pe r cur iam). Althoug h "de tailed fac tual alleg ations" a

re not ne cessa

ry , to provide the " g rounds" of " entitle[m ent] to relief," plaintiffs must furnish "more than labels a nd conclusions" or " a for

mulaic re citation of the elements of a

cause of ac tion." Twombly , 550 U.S. at 555-56 (inter nal quotation marks omitted). "T o survive a motion to dismiss , a complaint must contain suffic ient fac tual matter, a cce pted as

6true, to ' state a c laim to relief that is plausible on its fac e.' " A shcrof t v. I qbal, 129 S. Ct. 1937, 1949 (2009) ( quoting Tw ombly , 550 U.S. at 570); ac cord A therton v. D.C. Off ice of the Mayor, 567 F.3d 672, 681 ( D.C. Cir. 2009). "[I ]n passing on a motion to dismis s, . . . the alleg ations of the complaint should be construed f

avora bly to the pleade r." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also L eathe rman v. Ta

rra nt Cnty . Nar cotics Intellige nce & Coordination Unit, 507 U.S. 163, 164 (1993). The ref

ore, the fac tual alleg ations must be presumed true , and plaintiffs must be g iven

ever y favor able infe renc e that may be dra wn from the a lleg ations of fa ct. See Sche uer, 416 U .S. at 236; Sparrow v. United Air L ines, Inc., 216 F .3d 1111, 1113 (D.C. Cir. 2000). Howe ver, the Court need not ac cept a s true " a leg al conc lusion couched a s a fa ctual alleg ation," nor infere nces that are unsupported by

the fa cts set out in the complaint. Trudea u v. Fe d. Trade Comm'n, 456 F.3d 178, 193 ( D.C. Cir. 2006) (quoting Papasan v. A llain, 478 U.S. 265, 286 (1986)). In ruling on a motion to dism iss, a court may consider " only

the fa cts alleg ed in the complaint, any

documents either

attache d to or incorpor ated in the c omplaint and matters of which [it] may

take judicial notice ." See EEOC v. St. Franc is Xavier Par ochial Sch., 117 F .3d 621, 624-25 (D.C. Cir. 1997). In this case, the Court ha s considere d L aug hlin's for mal administrative complaint and the a dminist rative judg e' s order on her motions to amend. The se documents, thoug h not attache d to L aug hlin's c omplaint, are r efe rre d to in the complaint, see Compl. ¶¶ 138, 149, are integ ral to L aug hlin's e x haustion of administrative re medies, and a re public rec ords subject to judicial notice; he nce, the y may be conside red w ithout converting defe ndant' s motion i nto one for summar y judgme nt. See id.; see a lso Kaempe v. My ers, 367 F .3d 958, 965 (D.C. Cir. 2004); Bow e-Connor v. Shinseki, 845 F. Supp. 2d 77, 89 n.6 (D .D.C. 2012);

7Gre en v. Small, No. 05-1055, 2006 WL148740, at *6 n.4 (D.D .C. J an. 19, 2006). 5 DISCUSSIO N I. F ailure to Exhaus t Adm inis trat ive Rem edies A fe dera l gove rnment employ ee must exhaust his or her a dminist rative r emedies be fore bring ing T itle VI Iclaims in fede ral c ourt. See Ha milton v. Geithner, 666 F.3d 1344, 1349 ( D.C. Cir. 2012). Under

29 C.F.R. § 1614.105(a) (1), the e mploy ee must first conta ct an EEO counselor " to try

to informally

resolve the matter," and must do so "within 45 day s of the date of the matter a lleg ed to be discr iminatory or, in the ca se of pe rsonnel ac tion, within 45 day s of the eff ective da te of the a ction." I f the matter is not resolved, then the e mploy ee ma y file a f ormal complaint with the ag ency . I d. §§ 1614.105(d), 1614.106( a). The employ ee ma y amend the complaint "at any

time prior to the conc lusion of the investigation" or, if he or she ha s reque sted a hea ring , by motion to t he administrative judg e, " to include issues or cla ims li ke or r elated to those raise d in the complaint." I d. § 1614.106(d). I f final a ction has not bee n taken a fter 180 da y s from the filingof the c omplaint, the employ ee ma

y file a c ivil action. See id. § 1614.407(b). A T itle VI I lawsuit is "limited in scope to claims that are like or re asonably related to the alleg ations of the [administrative complaint]." Park v. Howa

rd Univ., 71 F .3d 904, 907 (D.C. Cir. 1995) (inter nal quotation marks omitted). At a minimum, the claims "must arise f rom the administrative investig ation that can r easona bly be expected to follow the c harg e of discr imination." I d. (interna l quotation marks omitted). For purposes of e x haustion, there a re two ty pes of Title VI Iclaims: (1) c laims of discrete

L aughlin does not argue that the EEO documents should not be consider ed her e, or that 5 defe ndant' s motion shoul d be conve rted into one for summary judgme nt. 8reta liatory or discriminatory

acts a nd (2) hostile work e nvironment claims. See Nat'l R.R. Passeng er Corp. v. Mor g an, 536 U.S. 101, 110, 115 (2002). ATitle VI Iplaintiff must tim ely exhaust administ rative r emedies f or ea ch discre te ac t alleg ed. See id. a t 110. I f time-bar

red, discrete acts will not be ac tionable, " even when they are related to acts a lleg ed in timely filed char g es." I d. at 113. Hostile work e nvironment claims, on the other hand, ar e " differ ent in kind" from discre te ac t claims. I d. at 115. They are "c omposed of a se ries of se parate ac ts that collectively

constitute one ' unlawful e mploy ment prac tice.' " I d. at 117 (quoting42 U.S.C. § 2000e-5( e)( 1)). He nce, " [p] rovided that a n act c ontributing to the c laim occur s within the filing pe riod, the entire time period of the hostile e nvironment may be conside red by

a cour t for the purposes of

deter mining liability ." I d. And that ac t need not be the last act; subseque nt events " may

still be par

t of the one hostile wor

k environment c laim." I d. Def endant a rgues that L aug hlin failed to timely exhaust her discre te ac t and hostile work environment c laims under Title VI I . "B eca use untimely

exhaustion of administ rative r emedies is an af firmative de fense , the def endant be ars the bur den of ple adingand proving it." B owden v. United States, 106 F.3d 433, 437 ( D.C. Cir. 1997). A. Discre te Acts In Counts Iand I I

of her complaint, L aug hlin alleg es g ender discrimination and re taliation based on the following discrete acts that oc curr ed betwe en 2006 and 2010: ( 1) ten nonpromotions between 2007 a nd 2010; (2) de nial of a bonus in 2008; (3) two inve stigations of the

6 Seattle Division in 2006; and (4) the re assig nment of Major Case 186 to the SAC of the Portland

L aughlin claims retaliation base d on all ten non-promotions, but, beca use fe males we re 6 selec ted for thr ee of

the ten positions, she claims g ender discrimination based on onlyseven nonpromotions. See Compl. ¶¶ 155-56, 157-69. 9Division in 2006. S ee Compl. ¶¶ 152- 75. To deter mine which of the se cla ims L aughlin tim ely 8 exhausted, the Court will ex amine first the c laims in L aug hlin's for mal administrative complaint and then the c laims in her motions to amend that complaint.

1. L aughlin's orig inal claims In L aug hlin's for

mal administrative complaint, she c laimed discrimination based on se x , ag e, and r eprisal. See Compl. of Discrimination (Dec . 16, 2008), De f.' s MTD, Ex. D ("Admin. Compl."). The ag ency

descr ibed the cla ims ini tially acc epted f

or investig ation as follows: whether the Ag ency

discriminated ag ainst Complainant on the bases of he r sex (fe male), a g e (dob 9/14/57), a nd repr isal, when mana g ement continuously hara ssed her , treated her

disparate ly , denied he r promotion opportunities from J une 2004 to the pre sent; and whe n, on August 11, 2008, the Deputy Direc tor sug g ested that Complainant re tire and state d that she should find another job outside of the F BI

. See AJ Order 1. In support of these c laims, L aug hlin had alleg ed a se ries of discr iminatory and reta liatory

acts da ting ba ck to her

2004 non-promotions that included, amongothers, the 2007 and 2008 non-pr omotions, t he 2008 denia l of a bonus, the 2006 investig ations of the Seattle Division, and the 2006 rea ssignment of Major Case 186. See Admin. Compl . ¶¶ 35- 65. Untimely Claims Discrete c laims based on most of these a cts, howeve r, we re not timely exhausted. Be cause L aug hlin did not s eek E EO counse ling until September 25, 2008, a ny acts that occur red more than 45 day s befor e that date – that is, before August 11, 2008 – were time-

Although L aug hlin alleg es other a ctions taken a g ainst her e lsewher e in her complaint, 8 the Court construes the complaint as asse rting only the discre te ac ts list ed in Counts Iand I Ias the base s for the c laims in those counts. Other ac ts that are not listed there include: the 2004 non-promotions, the 2006 and 2007 de nials of bonuses, the 2009 tablingof the job posting f or supervisor of

Major Case 186, the 2005-2009 dela y in approvingL aug hlin's re quest for a Bor der L iaison Offic er, a

nd the 2009 re fusal to re place the Seattle Division' s Media Repre sentative. See infra a t p.15 and note 10. 10barr ed. See Mor g an, 536 U.S. at 113; 29 C.F.R. § 1614.105(a )(1) . The five 2007 nonpromotions, the 2008 non-promotion to SAC of the B altimore Division, and the 2006 ac tions in Seattle all occ urre d befor e August 11, 2008; hence, the y are not independently

actionable . See Morg an, 536 U.S. at 113; Compl. ¶¶ 50-68, 152-75. L aug hlin appear s to conce de as muc h in 9 her opposition to defe ndant' s motion t o dismiss . Of the c laims in her orig inal administrative complaint, she ar g ues that she timely exhausted administrative reme dies onlyas to her nonpromotion to S AC of the Of fice of International Operations and the denial of a bonus in 2008. See Pl.'s O pp' n to Def.' s MTD [ECF 13] (" Opp' n") 13-15. De fenda nt argues that these c laims, too, were not timely

exhausted. SAC-OI O Non-Promotion As alleg ed in her administrative complaint, L aug hlin applied for the position of SAC of the Of fice of International Operations ("SAC-OI O" ) on Aug ust 4, 2008. See Admin. Compl. ¶ 65. On August 5, 2008, three male s rec eived tempor ary duty assig nments to that positi on. See id. As of the date L aug hlin filed her a dminist rative c omplaint, she had not be en conta cted a bout a tempora

ry duty assig nment to the position, and the position had not bee n perma

nently filled. See id. Althoug h L aug hlin applied for the SAC-OI O position on August 4, 2008, one wee k outside the 45-day window, her

claim of non-pr omotion may

never theless have been timely . First, to the extent that L aug hlin was complainingabout not

rec eivinga tempora

ry duty assig nment, it is notclea r that she lea

rned of the three males' assig nments on August 5. See Admin. Compl. ¶ 65 (stating that a t least one of the males g iven a temporar y duty assig nment had not applied f or it and that " [n] o one has c ontacted me to ask if I

For the same r eason, the 2004 non-promotions and the 2006 a nd 2007 denials of 9 bonuses, eve n if construe d as beingasser ted in the complaint, see supra note 8, w ould be timebarr ed. 11would be intere sted in a [temporary duty ] assignment to OI O" ). And e ven if she did, it is not clea r that a de cision was made befor e August 11 not to give he r a te mporary duty assig nment (or that L aug hlin learne d of any such dec ision before that date) . Second, bec ause the SAC-OI O position had not been filled on the date she filed he r complaint, L aug hlin's c laim of nonpromotion to the permane nt positi on, though it may have be en pre mature, w as not too late. Henc e, on this rec ord, def endant ha s not shown that L aug hlin's SAC-OI O claim wa s not tim ely exhausted. Denial of 2008 Bonus In her a dminist rative c omplaint, L aughlin alleg ed that she w as not

awa rded a bonus in 2008 beca

use of " g ender

discrimination and re taliatory animus for [her]

ear lier EEO c harg e and f

or [her] defense of [the SS A' s] right to be fr ee f rom rac e [redac ted] discrimination." Admin. Compl. ¶ 74. L aug hlin did not raise the issue of bonuses in EEO counseling , but the administrative judg e ac cepte d her 2008 bonus c laim any way beca use he interpre ted it as an amendment to her c omplaint and found that it was like or r elated to the c laims in her orig inal complaint. See AJ Order 2- 3. Def endant doe s not challeng e the a dminist rative judge ' s treatment of

the bonus claim as a

n amendment. See Def

.' s MTD 14-15; Def

.' s Reply in Supp. of MTD [ECF 17] (" Reply ") 3. Given that EEO r egulations permit amendments to a complaint "at any

time prior to the conc lusion of the investigation," and in this ca se the investigation had not y et begun at the time L aug hlin sought to " amend" the bonus claim, this treatment appea

rs appr opriate. See 29 C.F.R. § 1614.106(d); see also Weber v. B attista, 494 F.3d 179, 183 ( D.C. Cir. 2007); Kalinoski v. Gutierre z, 435 F. Supp. 2d 55, 77 (D.D.C. 2006) (" Nor doe s the Court interpre t the regulations as demandingthat a complainingparty , rathe r than (or pr ior to) utiliz ing the amendment pr ocedur e of se ction 1614.106, initiate a sepa rate informal

12proce edingunder se ction 1614.105 for e very subsequent matter

that is 'like or

related to' an ong oing inve stigation."); 29 C.F.R. § 1614.107(a )(2) (providingfor dismissal of complaint " that raises a matter that ha s not been brought to the attention of a Counselor a nd is not li ke or r elated to a matter that has bee n broug ht to the attention of a Counselor" (empha sis added)) . Howeve r, only "issues or

claims like or re lated to those ra ised in the complaint" may be adde d by amendment, a

nd defe ndant ar g ues that the a dminist rative judg e er red in a cce pting L aug hlin's 2008 bonus claim bec ause it wa s not like or related to the other c laims that had bee n acc epted. See De f.' s MTD 15. "[A] new claim is ' like or re lated to' a pendingclaim if it ' could have rea sonably been expected to g row out of the or igina l complaint duringthe investig ation.' " See Weber, 494 F .3d at 183 (quoting Core v. B rownlee , No. 01A34550, 2004 WL189570, at *1 (E.E.O .C. J an. 23, 2004)). Citing this Court' s decision in Be ll v. Donley , 724 F. Supp. 2d 1, 12 (D.D .C. 2010), defe ndant contends the denial of a bonus in 2008 is a "se parate, discre te ac t" not " like or re lated to" the othe r discre te ac ts in her complaint. Def .' s MTD 15. In Be ll, this Court concluded that two amende d claims (base d on demotion and transf er to a cubicle a nd on denial of ove rtime work) w ere not "like or

related to" the two orig inal claims (base d on non-promotion and on denial of a

perf ormanc e aw ard) beca

use the four

incidents underly

ing the claims " share [d] littl e fac tual simil arity ," sa

ve the f act that " they

[were] all alleg edly

violations of Title VI I ." See Be ll, 724 F. Supp. 2d at 12. It is certainly true that a

claim base d on a denie d bonus will not alway s be "like or rela ted to" c laims based on other discrete acts, he re primarily non-promotions. But for

sever al re asons par

ticular to this case , the Court conclude s that L aug hlin's 2008 bonus cla im was sufficie ntly

"like or related to" he r other c laims to go for war d as an a

mended c laim.

13First, viewe d along side the other c laims in L aughlin's a dminist rative c omplaint, her cla im

of beingdenied a

bonus plainly

"r elate[s] t o" he r other c laims. L aug hlin's a dminist rative complaint prese nts a narr ative of suc cessive a ctions taken a g ainst her since she bec ame SAC of the Seattle Division, and her bonus claim fits naturally into that narrative. I t appea rs under a headingstating that L aughlin "continued to r ece ive discriminatory and re taliatory

treatment" a s SAC of the Seattle Division, which follows the alleg ations about her opposition to discrimination ag ainst the SSA and the ensuingevents, includingthe re assig nment of Major Case 186, the reinspec tion of the Seattle Division, the perf ormanc e re port citing L aug hlin's mana g ement defic iencies, se vera l non-promotions, and L aug hlin's be ing told that she w ould never be promoted. See A dmin. Com pl. 20; id. at 5-23. L aug hlin also alleg ed knowledg e of g ender discrimination ag ainst other fe male SACs "in eva luations, bonus determinations, and inspections." See id. ¶ 82. The de nial of a bonus is a pe rfor mance -base d action that " could have

rea sonably

been e x pecte d to gr ow out of" an investig ation of the other perf ormanc e-ba sed ac tions alleg ed, all of which, like the bonus denia l, L aug hlin attributed to both ge nder discr imination and reta liation. See Weber, 494 F .3d at 184; Admin. Compl . ¶ 79. He nce, unlike in B ell, there was fac tual overla

p betwee n the new a

nd orig inal claims. See B ell, 724 F. Supp. 2d at 12. Moreove r, L aughlin raised the issue of her 2008 bonus de nial ear ly in the administrative proce ss, and just one wee k afte r she f ound out about it, thus giving the ag ency ample notice a

nd a fair oppor tunity to resolve he r cla im. See L oe v. He ckler , 768 F.2d 409, 418 ( D.C. Cir. 1985); Admin. Compl . ¶ 79; cf. B ell, 724 F. Supp. 2d at 12 (" The re taliation claims were added at the eleve nth hour of the investig ation on Be ll's e arlier unrela ted claims, and he nce w ent virtually nowher e in the EEO pr ocess." ). I n fac t, beca

use L aughlin raised her

bonus claim in her f

ormal

14administrative complaint, it "c ould have r easona bly been e x pecte d" not only

to gr ow out of, but to be included in, the a g ency' s investigation of that complaint. See Weber, 494 F .3d at 183. Finally , althoug h the Court is not bound by an administrative judg e' s ruling, it is noteworthy that the administrative judg e her e ac cepte d L aughlin's 2008 bonus cla im for amendme nt after specific ally

finding that it was " like or re lated to the ac cepte d issues." See AJ Orde r 2-3. Such was not the c ase in B ell. See B ell, 724 F. Supp. 2d at 12 (" [T] he Administrative Judge' s one-pa g e orde r conta ins no determination that the new claims wer e ' like or re lated to' the orig inal claims under 29 C.F .R. § 1614.106(d), nor doe s it refe r to the re g ulation.") . Acc ording ly , for a ll these re asons, L aug hlin's 2008 bonus cla im will not be dismissed for fa ilure to exhaust.

2. Other c laims sought to be a dded Next, the Court turns to t he cla ims in L aug hlin's two motions to amend her administrative complaint. Be cause , as discussed a bove, the Court construe s L aug hlin's c omplaint as alleg ing discrete act c laims in Count s Iand I Ibased only on the ac ts list ed ther ein, it need not dec ide whether the administrative judg e should have acc epted f or ame ndment the claims re g arding the tabled super

visory position, t he B order

L iaison Offic er, a

nd the Media Repr esentative. That 1 0 Despite makingno mention of defe ndant' s alleg ed interf ere nce w ith her ef

forts to fill 1 0 these thre e positions in C ounts Iand I Iof her complaint, L aug hlin asserts in her opposition that her c laims based on that interf ere nce w ere "like or

related to" the claims in her or igina l complaint. See Opp' n 21. The Court will briefly addre ss that argument. In g ener al, claims about staffingone' s office are nothing like c laims about promotions, bonuses, perfor mance evaluations, and the like. And no pa

rticular f acts made L aug hlin's c laims about her trouble filling the thre e positions reasonably

likely to gr ow out of the a dminist rative inve stigation here. See Weber, 494 F.3d at 183. As with the amende d issues in Bell, these three claims " share littl e fa ctual simil arity " w ith those in the origina l complaint, save the f act that " they

are all alleg edly violations of Title VI I ." See Be ll, 724 F. Supp. 2d at 12; see a lso Opp' n 21 (ar g uing only that three claims " ref

lect ac tions taken by

many of the same individuals out of discriminatory and reta liatory

animus") . To the extent that L aug hlin is bringingdiscrete act c laims related to f illing these thre e positions, then, the claims wer e not timely exhausted and will be dismissed. 15leave s L aug hlin's c laims of discriminatory and re taliatory

non-promotion to: (1) AD of the L os Ang eles Division in September 2009; (2) AD of the International Operations Divisi on (the re

titled SAC -OI O position) in October 2009; (3) Assistant Director -in-Charg e of the New Y ork Division in August 2010; and (4) SAC of the Philadelphia Division in S eptember 2010. The administrative judg e denie d L aug hlin leave to ame nd these c laims, concludingthat they wer e untimely beca use ea ch of the four non- promotions had occur red more than 45 day s befor e L aug hlin raised them in her two motions t o amend. See AJ Orde r 3-4. The administrative judg e did not determine whe ther a ny of the non-pr omotion claims were like or related to L aughlin's orig inal claims. Be cause 29 C.F.R. § 1614.106(d) e x plicitly require s that amende d claims be "like or rela ted to" c laims raised in the c omplaint, the Court will address the like or r elated question first, and then, a s to any like or re lated cla ims, the 45-day question. AD-I OD Non- Promotion I n the Court' s view, L aug hlin's c laim of non-promotion to AD of the International Operations Divisi on (" AD-I OD" ) is unquestionably like or re lated to her claim of non-pr omotion to S AC-OI O. L aug hlin alleg es in her c omplaint that the positi on of SAC of the Of fice of I nternational Operations, for which she a pplied in Aug ust 2008, was subsequently

"upgrade d and re named" AD of the International Operations Divisi on, althoug h the duties of the two positions were identical. Compl. ¶¶ 69, 71, 73. L aug hlin's late r cla im, then, was that a male wa s selecte d over he r for essentially

the same position identified in, and not y et filled at the time of, he r orig inal complaint. Acc eptingL aug hlin's a lleg ations as true a nd g iving her a ll favora

ble infer ence s, an investig ation of her orig inal SAC-OI O non-sele ction claim would likely have r evea led that the position was upgrade d and re named a nd that a male w as selec ted for it. Hence , the new c laim is "like or r elated to" the orig inal claim. See Weber , 494 F.3d at 184

16(holding that claim of discr iminatory nonselec tion as Deputy

Ex ecutive Sec reta

ry was " like or related to" c laim of nonselec tion as ActingDeputy Ex ecutive Sec reta

ry ). Other 2009- 2010 Non-Promotions The other thre e non-pr omotion claims raised in L aug hlin's motions to amend pre sent a c loser question. L aug hlin argues that these c laims were like or re lated to the non-pr omotion claims in her orig inal complaint beca use they "r epre sent the

same c ourse of

conduct a

nd implicate many

of the same decisionmake rs." Opp' n 21. Def endant counter s that L aug hlin has not cited any case s indicating that "a

non-selec tion for one position is like or re lated to the non-se lection for a nother position that has a diff ere nt titl e, re quires diffe rent skills and is i n a diffe rent location than the first non-sele ction." Re ply 9. Def endant ha s a point, as it cannot be that any

alleg edly discriminatory

or re taliatory

non-promotion is like or related to a pre vious non-promotion. And requiringonly that later non- selec tions "re prese nt the same

course of conduc t and implicate many of the same decisionmake rs" would not seem to provide a worka ble limit. I f so, then any

senior-le vel employ ee who files an a dminist rative c omplaint

conce rninga non-pr omotion mi g ht apply for other senior-le vel positions and, if she is rejec ted, no matter how dispar ate the job de scriptions or qualifications of other applica nts or g eog raphic locations, then tac k new non- promotion claims onto her complaint indefinitely

. On the other

hand, L aug hlin stated in her administrative c omplaint that she had " soug ht,

on numerous occ asions, opportunities to advance [her] caree r while movingcloser to [her or her] husband' s families," but that she believe d eac h of those opportunities had be en denie d to her " to discriminate and r etaliate a g ainst [her]" for he r 1997 EEO c omplaint and for he r def ense of the SSA in S eattle. Admin. Compl. ¶ 58. An investig ation into these non-promotions may eventua lly

have le d to the three subsequent non-pr omotions t o simil ar positions of leade rship in

17various F BI office s located outside Seattle. The Court is skeptical, g iven the diffe rent titles of, locations of, and pe rsons selec ted for the three positions (itbear s noting that a fema le was selec ted for one of the thre e). See Compl. ¶¶ 76-87. B ut it is at least c onceiva ble that additional claims of beingdenied c are er a dvance ment opportunities "c ould have r easona bly been e x pecte d to gr ow out of the orig inal complaint duringthe investig ation." See Weber, 494 F .3d at 183 (interna l quotation marks omitted). A problem he re, how ever , is that L aug hlin's subseque nt non-promotion claims, the first of which ar ose in September 2009, c ould not have " arisen f rom the administrative investig ation" that followed he r orig inal complaint beca use that investig ation ended on July 6, 2009. See Pay

ne v. Salazar, 619 F .3d 56, 65 (D.C. Cir. 2010) (" But a s Pay ne conc eded at oral ar g ument, her c laim

conce rningthe re taliatory conduct that took plac e in J anuar y 2008 could not possibly

have ' arisen from the a dminist rative inve stigation' that f ollowed the EEO c omplaints she filed with Interior in 2004. This is necessa

rily so beca use the a dminist rative inve stiga tion of those complaints ended in September 2007, we ll before J anuar y 2008." ( citation omitted)); Compl. ¶¶ 78, 139. Although the administrative judg e orde red a supplemental investig ation of the ne w claims ac cepte d for amendment, the ne w non-promotion claims we re not a mong the claims ac cepte d. See AJ Order 4-5. His dec ision (although ba sed on a diff ere nt rationale) not to permit amendment to add the three new non- promotion claims is supported by the EEO r egulation gove rningamendments, which distinguishes be tween like or related claims ra ised befor e the c onclusion of the administrative investig ation and those ra ised afte r the investig ation is complete and a hear ing ha s been r equeste d. See 29 C.F.R. § 1614.106(d) (providingfor amendment of like or r elated c laims "at any time" be fore investigation complete but, once he aring has bee n reque sted, only if

18administrative judg e g rants motion to amend).

The 2009 a

nd 2010 non-promotion claims also diffe r fr om the 2008 bonus claim, eve n though, in the a

bstract, a non-promotion may

be thoug ht to be simil ar to a denied bonus. B oth

are personne l actions, and in this case L aug hlin alleg es that the F BI repe atedly

denied he r both promotions and bonuses as pa rt of one disc riminatory

and re taliatory

hostile work environme nt. See infra Parts I .B a

nd I I .A. B ut just as tim e-ba rre d discrete acts a

re not a ctionable " even when they are related to acts a lleg ed in timely filed cha rg es," there also must be some limiton subsequent ac ts that may

be adde d by

amendment e ven whe n they relate in some way

to claims raised in the a dminist rative c omplaint. See Morg an, 536 U.S. at 113. He re, the 2009 and 2010 non-promotion claims did not even a rise, and c lear ly

wer e not ra ised, until after the investigation of L aug hlin's a dminist rative c omplaint had ended, where as the 2008 bonus cla im was raise d in that complaint. Moreove r, the 2009 a nd 2010 non-promotions involved positions in L os Ang eles, Ne w York, a

nd Philadelphia, place s far remove d from a Seattle-based inve stiga tion, wher eas the 2008 bonus denial happe ned (at least from L aughlin's pe rspec tive) in Seattle, like most of the other a cts alleg ed in her administrative complaint. Be cause L aughlin's thre e new non-promotion claims involved positions nowhere mentioned in her or igina l complaint, that differ ed fr om the positions i n her c omplaint in material way s, and for

which she a

pplied only

afte r the c onclusion of the initial investigation, the Court conclude s that they

wer e not suffic iently

"like or related to" he r orig inal claims as to have been proper for a mendment. Henc e, the c laims were not timely exhausted and will be dismissed. Applicability

of the 45-D ay

Rule The administrative judg e denie d L aug hlin leave to amend he r AD- I OD non-pr omotion claim because she moved to ame nd it more than 45 day s 19afte r the F BI selec ted a man f

or the position. See AJ Order 3-4. L aug hlin contends that this was incorre ct bec ause the 45-day time limi t for initiating EEO counselingdoes not set the time for filing a mendments to a complaint. See O pp' n 17. The Court agree s. The re g ulations state just

one re quirement for

claims or issues soug ht to be added by amendment: that they

be like or related to those raise d in the initial complaint. S ee 29 C.F .R. § 1614.106(d). Section 1614.106(d) c ontains no time lim it, and the Court sees no r eason to re ad one into it. See Kalinoski, 435 F. Supp. 2d at 76; see a lso Ramirez v. S ec' y , U.S. Dep' t of Tra nsp., 686 F.3d 1239, 1246-47 & n.4 (11th Cir. 2012). Compare 29 C.F .R. § 1614.105(a) ( specify ing 45- day time limi t), with id. § 1614.106(d) (no time limit specified). The Court also rejec ts defenda nt's

asser tion that L aug hlin sim ply "w aited too long " to f

ile her motions to amend. See Re ply 6-7. L aug hlin filed her f

irst motion t o amend just over two months af ter the a ssignment of

an administrative judg e to her complaint, and af

ter having to g ain appr oval from the F BI ' s Civil Discover y Review Unit. See Compl. ¶¶ 143- 46. And as discussed a bove, L aug hlin's AD -I OD claim is prec isely

the ty pe of " like or re lated" claim that is proper for a mendment, bec ause it "a dd[ed] to" a

nd "c ould have r easona

bly been e x pecte d to gr ow out of" the SAC-OI O claim in her or igina l complaint. See Core, 2004 WL189570, at *1, cited in Weber , 494 F.3d a t 183-84. Henc e, " prag matic consider ations of fa irness to the def endant" do not support its di smissal. S ee Reply 8. In summary , defe ndant has not met its burden of show ing that L aughlin failed to exhaust her c laims of discriminatory and re taliatory

(1) non- promotion to S AC of the Of fice of International Operations (or, as re titled, AD of the International Operations Divisi on), and ( 2) denial of a

bonus in 2008. See Bow den, 106 F .3d at 437. L aug hlin's other discrete act c laims

20will be dismiss ed for failure to timely

exhaust administ rative r emedies. B. Hostile Work Environment In Count I I Iof her

complaint, L aug hlin claims that defenda nt has subjected he r to a hostile work environme nt, on acc ount of her g ender and her protec ted ac tivity . See Compl. ¶ 177. She alleg es that the followingseries of acts c onstitut ed a hostile wor k environment: [T] he F BI repe atedly

failed to promote Plaintiff to positions for which she was qualified, interf

ere d with her e ffor

ts to hire a B order

L iaison Offic er, r emoved Major Case 186 f

rom her supe rvision, manipulated her perf ormanc e eva luations, denied he r bonuses to which she was e ntitled, repeatedly pressure d her to re tire, interfe red w ith her ability to fill a supervisory

position related to the investig ation of Major Case 186, and interf ere d with her e ffor

ts to hire a Media

Represe ntative. I d. Def

endant a sserts, in conclusory fashion, that L aug hlin's hostile work e nvironment claim should be dismissed because it is unt imely . See De f.' s MTD 17-18. Its sole argument in support seems to be that L aug hlin cannot use a hostile work environme nt theory to "save" her untimely discrete acts c laims. See Reply 10, 12. True e noug h. But the D .C. Circuit made clea r in Ba ird v. Gotbaum, 662 F.3d 1246, 1252 ( D.C. Cir. 2011), that a cour t may not dismi ss a hostile work environment c laim "mer ely beca use it contains discre te ac ts that the plaintiff claims (c orre ctly or incorre ctly

) ar e ac tionable on their own." L aug hlin's c laim will not be dism issed for that r eason here . Any

argument that L aug hlin has tried to "c ombine discrete acts to for m a hostile work environment c laim without meeting the r equire d hostile work environme nt standard," see id., which def endant a ppear s to make in its reply , see Reply 12-13, g oes to whethe r L aug hlin has stated a c laim rather

than to whether

she has timely

exhausted administrative reme dies. A hostile work envir onment claim may be timely as longas " an ac t contributing to the

21claim occ ur[ed] wit hin the filing pe riod," even if other a cts alleg ed would not be a ctionable on their own be cause time-barr ed. See Mor g an, 536 U.S. at 117; Singleta ry v. District of Columbia, 351 F.3d 519, 527 ( D.C. Cir. 2003). L aug hlin's c laim here includes the F BI ' s "r epeated[] pressure [] " to r etire, the last instance of which occ urre d on August 11, 2008, when De puty Direc tor Pistol e ag ain aske d L aug hlin about retireme nt and sug g ested that she f ind a job in the private se ctor. See Compl. ¶¶ 114, 177. Be cause this act occ urre d within 45 day s of September 25, 2008, the date L aug hlin first contacte d an EEO c ounselor, L aug hlin may be able to rec over for a ny acts that, a long w ith the asserte d pressure to retire on Aug ust 8, 2011, "c ollectively constitute one unlawf

ul employ

ment prac tice." See Morg an, 536 U.S. at 117 (inter nal quotation marks omitted). He nce, the Court will not di smiss L aughlin's hostile work e nvironment claim as untimely

. 1 1 II. F ailure to State a Claim Def endant a lso argues that many of L aug hlin's c laims should be dismi ssed for f ailure to state a c laim. See Fe d. R. Civ. P . 12(b)( 6). The Court ne ed only consider this ar g ument as to claims that will not be dismis sed for failure to exhaust admini strative re medies. This leave s L aug hlin's Title VI Iclaims of g ender discrimination and re taliation based on non-pr omotion to the SAC-OI O or AD -I OD positions, denial of a bonus in 2008, and a hostile work environme nt, and her ADEA c laim. Defe ndant does not ar g ue that the non- promotion or bonus claims do not

Def endant ha s not argued, much less shown, that L aug hlin failed to exhaust her 1 1 administrative re medies bec ause she did not alleg e a hostile wor k environment in her administrative complaint. In any case , her hostile wor

k environment c laim appea rs " like or rea sonably

related to" he r EEO a lleg ations, both beca use the a g ency

acc epted L aug hlin's c laim that "ma nag ement continuously

hara ssed her ," a

nd beca use her administrative complaint and motions t o amend c ontained " fac tual alleg ations supporting suc h a cla im." See Par k, 71 F.3d a

t 907-08 (inter

nal quotation marks omitted); AJ Order 1. 22state a c laim, so they will go f orwa rd at this time; the hostile work envir onment and ag e 1 1 discrimination claims will be analy zed under Rule 12(b) (6). A. Hostile Work Environment A hostile work envir onment exis ts, for purpose s of Title VI I , "[w]hen the workpla ce is perme ated with discriminatory intimi dation, ridicule, a

nd insult t hat is sufficiently sever e or perva sive to alter the c onditions of the victim's employ ment and cr eate an abusive working environment." See Ha

rris v. F orklift Sy s., Inc., 510 U.S. 17, 21 (1993) ( internal quotation marks and citation omitted); see a lso Bair d, 662 F.3d at 1250. Although Morg an per mits consideration of time-bar

red a cts as par

t of a hostile work e nvironment claim, it is not "an ope n sesame to

rec overy for time-ba

rre d violations." B aird, 662 F .3d at 1250. " Both incide nts barre d by the statute of limitations and ones not barre d can qua lify as ' part of the same a ctionable hostile environment c laim' only

if they are adequately

linked into a coher ent hostile environment cla im – if, for e x ample, they

' involve the same ty

pe of e mploy

ment actions, occ ur re latively fre quently , and ar e per

petrated by

the same ma

nag ers.' " B aird, 662 F .3d at 1251 (quotingMorg an, 536 U.S.

L aug hlin is claiming that the F BI did not promote her a

nd denied he r a bonus both 1 1 beca use of he r g ender

and in re taliation for her

protec ted ac tivity . See Compl. ¶¶ 156, 166. With respe ct to her r etaliation claims, the Court assumes that he r opposition to dis crimination in Seattle constitutes protec ted ac tivity under Title VI I . But to the e x tent that her r etaliation claims are based on he r 1997 EEO c omplaint, the Court thinks it unlikely that she will be able to show the re quisite causal link betwe en that complaint and the 2008 and 2009 ac ts she complains of here . Although te mporal proximi ty is not an element of a

reta liation claim, the substantial ga p in time betwee n L aug hlin's e arlier EEO ac tivity

and the a lleg edly

reta liatory

acts, not to mention her interveningpromotion to S AC of the Seattle Division, will make it difficult to show a ca usal link betwee n the two. Cf. Hamilton, 666 F.3d at 1357-58 (discussingsignific ance of tempora l proxi mity in establishing pr ima fac ie ca se); Winston v. C lough, 712 F . Supp. 2d 1, 11 (D.D.C. 2010). And of c ourse, L aug hlin cannot claim re taliation based on he r 2009 par ticipation in a g roup addr essingg ender

inequities amongthe FB I ' s senior executives for acts that oc curr ed befor e her

participation in that group. See Compl. ¶¶ 163-66. 23at 120-21) ( alterations omi tted).

Applying the se principles he re, the Court must determine, first, whe ther the a cts alleg ed to constitute a hostile work environme nt are "a dequate ly connec ted to eac h other (i.e ., [t hat] 'a ll acts whic h constitute the claim ar e par t of the same unla

wful employ

ment prac tice' [under] Morg an, 510 U.S. at 21)," and sec ond, whether they "c ollectively

meet the indepe ndent require ments of that claim (i.e ., [are] 'suf ficiently sever e or pe rvasive' [under] Harris, 510 U.S. at 122)." See id. at 1252.

1. Adequately

connec ted There is no precise formula f or dete rmining whether

a ser ies of sepa

rate acts a re " ' part of the same unla

wful employ

ment prac tice' " or

are instead " an ar

ray of unre lated discriminatory or reta liatory

acts." See B aird, 662 F .3d at 1251-52 (quotingMorg an, 536 U.S. at 122) ( collecting g ener al formulations of inquiry takinginto account, f

or example, ty

pe, fr equenc y , rela

tedness, and seve rity

of sepa rate acts); se e also Mason v. G eithner, 811 F . Supp. 2d 128, 178 (D.D.C. 2011) (" That does not mea n that it will alway s be nec essar y for the c omponent-ac ts comprising a hostile work environme nt to be identical or to take the same f orm; howeve r, there must be a

' common threa d' amongthem.") . Def endant de scribes the acts for ming L aug hlin's hostile work environment c laim as " a see mingly unrelated serie s of complaints about her work e nvironment." Def .' s MTD 19 (citingBa ird, 662 F.3d at 1252; Mason, 811 F. Supp. 2d at 178-79). L aug hlin puts it di ffe rently , stating that the acts a lleg ed re sulted from " decisions made by a small g roup of FB Iexecutives" and ar e suff iciently related to one anothe r to " coher e" into a hostile work environment. See Opp' n 26. Acc ordingto L aug hlin: After twenty -seve n y ear s in the FB I , Plaintiff has worke d her w ay up to a position

24with a hig h level of r esponsibility , only to find that she no long er ha s the opportunity

for a dvance ment that her pe ers have (he nce the multipl e denia ls of promotion), she no long er ha s control of a ll Bure au oper ations in her jurisdiction (henc e the tra

nsfer of Major Case 186), she doe s not have the same opportunity to staff he r off

ice that he r pee rs have (henc e the longdelay s in filling the B order L iaison Offic er, Me dia Repre sentative, a nd Supervisory

Special Ag ent positions), and – as a combined ef

fec t of all these matter s – she is not respec ted as a leade r by her subor dinates and ma

nag ement cha in in the way that SACs normally

are . See id. at 24-25; see also id. at 26-27 (linking"r epeated pre ssure to re tire" to other ac ts comprisingclaim). L aug hlin's c ontention appea rs to be that her

timely alleg ation that the FB Iput pressure on her to re tire in August 2008 plausibly relates to her a lleg ations reg ardingtime-barr ed and subseque nt acts as f

ollows: in pressuringL aughlin to retire the F BI told her that she would not be promoted within the ag ency ; she was not, in fa ct, promoted to a numbe r of positions for which she a

pplied; the ag ency

impeded her

job perfor

mance by denying he r nee ded per sonnel and under cut her

leade rship by

removinga ca se fr om her jurisdiction; and eve n though L aug hlin did her job we ll in spi te of a ll this , she re ceive d poor per formanc e eva luations and no bonuses. See Opp' n 16, 24-27; see a lso Morg an, 536 U.S. at 117. Viewe d in the light most favor able to L aug hlin, the acts in Count I I Iof her complaint could " collectively

constitute one unlawf

ul employ

ment prac tice" since L aug hlin beg an as SAC of the Seattle Division, perpetrated by a cor e g roup of se nior dec isionmakers, and de signe d to make he r job less desira

ble and more difficult. See Morg an, 536 U.S. at 117 (inter nal quotation marks omitted). Compare , e.g ., Mason, 811 F. Supp. 2d at 179 ( concluding that acts we re not part of sa me hostile work envir onment wher e plaintiff made "no a ttempt – none – to cry stalliz e for the Court how the se disparate ac ts could be see n by a trier of fa ct as suff

iciently related to coale sce into a sing le hostile work envir onment") . I t is perhaps doubtful that all of the acts

25alleg ed we re in fa ct conne cted ( and motivated by discrimination or reta liation, or both), but L aug hlin is correc t that the relationships, i f any , amongthese a cts and the r easons be hind them

are matters best lef

t for discove ry . See Opp' n 25, 29. Be cause L aug hlin has put forth a plausible theory tying the acts of he r hostile work e nvironment claim tog ether , the claim will not be dismiss ed for

lack of an ade quate c onnection under Morg an. See Mor g an, 536 U.S. at 121-22; Ba ird, 662 F.3d at 1251-52.

2. Sufficiently

sever e or pe rvasive To deter mine whether

an employ er' s actions wer e " sufficie ntly sever e or pe rvasive to a lter the conditions of the victim' s employ ment and cr eate an abusive workingenvironment," see Har ris, 510 U.S. at 21, a cour t should consider " all the circ umstances, includingthe fre quency of the discriminatory

conduct; its sever ity ; whether it is phy sically

threateningor humiliating, or a

mere offe nsive utteranc e; and whe ther it unrea sonably interfe res with an e mploy ee' s work perf ormanc e," see F ara g her v. City of B oca Raton, 524 U.S. 775, 787-88 (1998) (inter nal quotation marks omitted); see a lso Baloc h v. Kempthorne , 550 F.3d 1191, 1201 ( D.C. Cir. 2008). The c omplained-of c onduct must be " extreme" to constitute "a chang e in the ter

ms and conditions of employ

ment." F ara g her, 524 U .S. at 788. The Court notes, as a

n initial matter, that L aug hlin is notalleg ing a ty pical hostile work environment c laim. She argues that def endant' s actions unre asonably interfe red w ith her work perf ormanc e, see id., but is notrea lly complainingabout her

actua l phy sical workpla ce, se e, e.g ., Har ris, 510 U.S. at 21 (" Conduct that is not severe or perva sive enough to cre ate a n objectively hostile or abusive wor

k environment – a

n environment that a

rea sonable pe rson would find hostile or abusive – is beyond Title VI I ' s purview." (empha sis added)) ; Bra ntley v. Kempthorne , 26No. 06-1137, 2008 WL2073913, at *8 (D.D .C. May 13, 2008) (" A hostile work envir onment under Title VI Imust be based on ' one unlawf ul employ

ment prac tice' of per

vasive, insulting, discriminatory

conduct that make s the plaintiff' s day -to-day work e nvironment sever ely

' abusive.' " ( quoting Morg an, 536 U.S. at 118; Onca le v. Sundowner O ffshore Servs., Inc., 523 U.S. 75, 81 (1998))) . L aug hlin's c omplaint contains no alleg ations of discriminatory or reta liatory

"intimidation, ridicule, [or] i nsult" in her da y -to-day work e nvironment. See Ha rris, 510 U.S. at 121; Bra

ntley , 2008 WL2073913, at *8. Indeed, a s the Special-A g ent-in-Char g e of the Seattle Division, L aug hlin sit s at the top of her office . Her

hostile work environme nt claim is not based on the c onduct of he r co- worke rs in Seattle, but on that of her superiors a

nd other F BI officia ls located e lsewher e. It is thus unl ikely that a re asonable person would f ind L aug hlin's daily work e nvironment " hostile or abusive." See Ha rris, 510 U.S. at 121. At the motion to dis miss st ag e, howe ver, a plaintiff nee d not show that she is likely to

succe ed on her

claims. She nee d only

plead " sufficie nt fac tual matter, a cce pted as true , to 'state a claim to relief

that is plausible on its face.' " See I qbal, 129 S. Ct. at 1949 (quoting Twombly , 550 U.S. at 570). He nce, the Court will not di smiss L aug hlin's hostile work e nvironment claim solely beca use her claim is aty

pical – i.e., she is the leade r of he r off ice a nd her c laim is based on the actions of de cisionmakers e lsewher e. In cer tain circ umstances, the c ombined eff ect of outside decisions af

fec ting a plaintiff' s job responsibiliti es, ac cess to re source s, and adva nceme nt opportunities may

be to alter

the terms and c onditions of her employ ment for the w orse. Cf. Gre er v. Paulson, 505 F .3d 1306, 1314 (D.C. Cir. 2007) (" There are various wa y s in which a hostile environment may

extend bey ond the phy sical workpla ce, a nd thus contribute to and for m part of a hostile environment claim." ); Wise v. Fer riero, 842 F . Supp. 2d 120, 126 (D.D.C. 2012)

27(deny

ing motion to dismiss hostile work environme nt claims based in par t on denied promotions). Her e, howe ver, e ven ac ceptingL aug hlin's fa ctual alleg ations as true, the Court concludes that she has not alleg ed conduc t that is "suffic iently sever e or pe rvasive" to state a plausible hostile work environme nt claim. See Ha rris, 510 U.S. at 121. Althoug h L aughlin has offe red a theory to link together

the ac ts comprising he r cla im, the acts span a period of se vera l y ear s and

wer e re latively

infreque nt. The ac ts actually impactingL aug hlin's job per formanc e, for example, consist of the June 2006 reassig nment of Major Case 186 from L aug hlin's mana g ement, the foury ear delay in approvinga B order

L iaison Offic er, a

nd the re fusal to fill the ca se super visor and Media Repr esentative positions requested by L aug hlin in 2009. These isolated incidents ar e not fairly char acte rized as per

vasive. See Nurriddin v. Goldin, 382 F. Supp. 2d 79, 108 (D .D.C. 2005). Nor, in the Court' s view, we re the y particula rly sever e. The y

wer e not " phy sically threatening " or

"of fensive" in the traditional sense. See Fa ragher, 524 U .S. at 787-88. And eve n if L aug hlin can show that de fenda nt's a ctions made he r job more diff icult – she alleg es, for example, that the case rea ssignment hur t her re putation and under mined her le ader ship of the Seattle Division, see Compl. ¶¶ 96-100, a nd that not havinga Media Represe ntative impeded he r ability to cure any

defic iencies in he r handlingof the media , see id. ¶¶ 105, 134-35 – the c onduct simply is not so "extreme [as] t o amount to a cha ng e in the ter

ms and conditions of [her] employ ment" a nd hence is not actionable. See Fa ragher, 524 U .S. at 787-88. Simi larly , despite 1 2 Also, as def

endant points out, L aug hlin's c laim that the FB I ' s actions " unrea sonably 1 2 interfe re[d] wit h [her] work perfor mance ," se e F ara g her, 524 U .S. at 788, is undermined by the fac t that the Seattle Division rece ived seve ral a war ds for e x cellenc e under her le ader ship. See Def .' s MTD 19 (citingCompl. ¶ 109); see also Nur riddin v. Bolden, 674 F . Supp. 2d 64, 94 (D.D.C. 2009) ( noting that pr omotion, performa nce a war d, and per

mission t o do one-year

detail 28L aug hlin's c laim that servingas SAC of the same division for more than seve n y ear s while nea rly all of one' s peer s are promoted ca n be " objectively

and subjec tively

humiliating," see O pp' n 27, the Court simply

does not find that the non-pr omotions and other per formanc e-ba sed ac tions alleg ed rise to the le vel of a n actionable hostile work environme nt. See Nurr iddin, 674 F. Supp. 2d at 94 (dismissing hostile work e nvironment claim alleg ing, a mong othe r thing s, opposition t o

car eer advanc ement, re moval of important assig nments, and lower ed per formanc e eva luations). Acc ording ly , L aug hlin's hostile work e nvironment claim will be dismissed. B. Ag e Discr imination L aug hlin alleg es in Count I V of he r complaint that the F BI has discriminated a g ainst her based on he r ag e since J anuar y 2007 "by repe atedly

pressuringher to re tire." See Compl. ¶ 180. Under the ADEA , "the two essential ele ments of a discr imination claim are that (i) the plaintiff suffe red a n adver se employ

ment action (ii) be cause of the plaintiff' s [age ]." Ba loch, 550 F.3d at 1196. Def

endant a rgues that L aug hlin has failed to state a claim for a g e discrimination under the ADEA be cause she has not alleg ed an a dverse employ ment action. See D ef.' s MTD 20. Citi ngSwierkiewic z v. S orema N.A., 534 U.S. 506 (2002), L aug hlin argues that defe ndant' s argument is premature at the motion to dism iss stage . See Opp' n 30 & n.157. I n that

case , the Supreme Court he ld that a plaintiff cla iming unlawf ul discrimination need not plead the elements of a

prima fa cie c ase unde r McDonne ll Dougla s Corp. v. Gree n, 411 U.S. 792 (1973), to survive a motion to dismi ss. See Swierkiew icz, 534 U.S. at 511. L aug hlin's re liance on Swierkiewic z and relate d case s is mis place d, howeve r. As the Court explained in Swierkiewic z, "the prima fa cie c ase r elates to the e mploy ee' s burden of prese nting e vidence that raises a n duringperiod at issue "substantially undermine[d]" plaintiff' s hostile work environment c laim).

29infere nce of discrimination" but will not apply in ever y employ ment discrimination case – for example, "if a

plaintiff is able to produc e dire ct evidenc e of discr imination, he may preva il without proving a ll the elements of a prima fa cie c ase." See id. at 510-11. B y contra st, an employ ment discrimination plaintiff will alway s have to prove that she suffe red a n adver se employ ment action, re g ardle ss of whethe r she r elies on direc t evidence of discrimination or circ umstantial evidence raisingan infe renc e of discr imination. S o while L aughlin need not have set forth a prima fa cie c ase of

ag e discrimination to survive def endant' s motion t o dismiss , her complaint must neverthele ss "pr esent fa cts that would establish the ele ments of [her] claim." See Bow e-Connor, 845 F . Supp. 2d at 91-92. I t is therefor e appr opriate to c onsider whe ther L aug hlin has pled fa cts that, if true, c ould plausibly amount to an adve rse e mploy ment action. The Court conclude s that she has not. An ac tionable adve rse e mploy ment action is one having " materia lly adver se conseque nces a ffe ctingthe terms, conditions, or privileg es of e mploy ment or future employ

ment such that a r easona

ble trier of

fac t could find objectively tang ible harm." See id. (interna l quotation marks omitted); see a lso Doug las v. Donovan, 559 F .3d 549, 552 (D.C. Cir. 2009). L aug hlin asserts that re peate dly pressuringan employ ee to r etire c an g ive rise to an a g e discrimination claim. Opp' n 29 & n.156. She c ites a number of case s stating that r efe renc es or inquiries conce rningretire ment may g ive rise to an inf

ere nce of ag e discrimination. B ut in all of the ca ses cited, the so- called pr essure to retire w as not itself cha lleng ed as a n adver se employ ment action but ra

ther wa s used as e vidence to support a claim base d on a tang ible employ ment action. See K aniff v. A llstate Ins. Co., 121 F.3d 258, 263 (7th Cir. 1997) (termination); Gr eenbe rgv. Union Camp Corp., 48 F.3d 22, 28-29 ( 1st Cir. 1995) (termination);

30Sischo-Nowneja d v. Merc ed Cmty . Coll. Dist ., 934 F.2d 1104, 1108, 1112 ( 9th Cir. 1991)

(re assig nment of hig h-enr ollment courses, not providingneede d supplies, and other a ctions amounting to " less favor able wor king c onditions"); Wils on v. Cox , 828 F. Supp. 2d 20, 34 (D.D.C. 2011) ( termination); Miller v. Har tford F ire I

ns. Co., 652 F. Supp. 2d 220, 234 (D. Conn. 2009) (termination); B rave rman v. Penobscot Shoe Co., 859 F . Supp. 596, 601 (D. Me. 1994) (ter mination). Pressure to re tire, without more, does not c onstitut e " objectively tang ible harm," and in claimingthat the FB Ihas pre ssured he r to retire , L aughlin has not alleg ed any chang e in her

employ ment status relatingto such pressur e. See D oug las, 559 F.3d at 552. She is still the SAC in S eattle. He nce, L aug hlin has failed to make out a plausible ADEAclaim, and that claim will be dismissed. CONCLUSION For the fore g oing r easons, de fenda nt's motion to dismis s will be g rante d in part and denied in par

t. L aughlin's g ender

discrimination and re taliation claims based on ( 1) hernonpromotion to S AC of the Of fice of International Operations or AD of the I nternational Oper ations Division and (2) the de nial of a bonus in 2008 may g o forwa rd; her r emainingclaims will be dismiss ed. A se parate orde r ac companies this opinion.

/s/ J OHN D. B ATES United States District J udg e Dated: F ebrua

ry 14, 2013

31