UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMILLE KEITH, : 

 : 

Plaintiff, : Civil Action No.: 21-2010 (RC)

 : 

 v. : Re Document No.: 24 

 : 

U.S. GOVERNMENT ACCOUNTABILITY : 

OFFICE, : 

 : 

Defendant. : 

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT

I. INTRODUCTION

Plaintiff Camille Keith (“Plaintiff” or “Keith”) brings the instant suit against her former 

employer, the United States Government Accountability Office (“GAO”), alleging claims of 

disability discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 

12101, et seq., and hostile work environment under Title VII of the Civil Rights Act of 1964 

(“Title VII”), 42 U.S.C. § 2000e, et seq. See Pl.’s Am. Compl. (“Pl.’s Am. Compl.”), ECF No. 

21. Keith’s initial complaint in this matter, see Pl.’s Compl., ECF No. 1, was dismissed under 

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, see Mem. Op. (“Mem. 

Op.”), ECF No. 15. She has since filed an amended complaint, and GAO now moves for 

dismissal, again arguing that Keith has failed to state a claim upon which relief can be granted. 

See Def.’s Mot. to Dismiss (“Def.’s Mot. to Dismiss”), ECF No. 24. For the reasons discussed 

below, GAO’s motion is granted. 
2 

II. BACKGROUND

A. Factual Background 

Keith’s amended complaint describes a series of events occurring in 2019, during which 

time she was employed as a “Band 1 Analyst” in GAO’s “Forensic Audits and Investigative 

Service” division. Pl.’s Am. Compl. ¶¶ 18, 46. In that capacity, she was assigned to a team that 

was “examining fraud risk management at the Federal Emergency Management Agency.” Id. ¶ 

19. Among other things, her work on the team included conducting “research and interviews,” 

“performing analyses,” drafting “written products” such as “records of interviews,” and 

developing relationships with individuals both “inside and outside” of GAO. Id. ¶ 18. 

Early in 2019, Keith informed “her team that she was suffering from [a] hearing 

impairment,” id. ¶ 23, that caused her “significant hearing loss in both [of her] ears” and required 

that she use hearing aids, id. ¶ 17. In the months that followed, she encountered a number of 

difficulties and unpleasant experiences at work. For instance, on February 27, Keith told team 

members that she was having “hearing problems during a call.” Id. ¶ 24. In response, she “was 

told that if she could not hear over the phone she needed to go into the office.” Id. That 

directive was rescinded, however, when another team member also reported having difficulty 

hearing the content of the discussion. Id.

Keith’s workplace challenges mounted as the year progressed. On April 1, for example, 

she “was assigned to complete a site selection on her own while other members of the team were 

allowed to work together.” Id. ¶ 26. Two weeks later, Keith’s supervisor told her that the “team 

could no longer review her meeting write-ups and add notes.” Id. ¶ 28. Then, on May 1, Keith 

received word that she had been given an “unacceptable rating . . . on her mid-year review.” Id.

¶¶ 29, 30. This rating was two levels lower than her previous rating, yet Keith was not given 
3 

prior “warning that her work was declining despite the GAO’s directive that a supervisor is 

supposed to inform an employee of a rating drop as soon as possible.” Id. ¶ 29. Keith sought 

“further clarification” from her supervisor regarding her unexpected performance rating, but did 

not initially “receive[] a reply.” Id. ¶ 30. Two weeks later, however, she was told that if she 

“asked for guidance, it would reflect poorly in her [future] evaluation.” Id. ¶ 31. As a result, 

Keith “was unable to attempt to learn or improve without it being held against her in later 

ratings.” Id. 

Keith’s situation at work continued to deteriorate. In June, she was told by human 

resources “that her telework arrangement was being canceled.” Id. ¶ 40. Human resources cited 

her “unacceptable work performance” as the reason for the cancellation. Id. The same reason 

was cited as a basis for denying Keith permission to travel with the rest of the engagement team 

to conduct in-person interviews on “two occasions” (it is not clear when).1

 Id. ¶ 33. Instead, she 

“was forced to listen to the interviews via phone despite having informed her office that her 

hearing loss made it difficult for her to listen in via phone.” Id. Even though Keith had been 

prohibited from attending the interviews in person, she was still required to complete “write-ups” 

in their aftermath. Id. The responsibility for drafting the “write-ups” “[n]ormally” fell to 

members of the team who had physically attended the interviews. Id. To attempt to remedy the 

situation, Keith asked to see “notes from team members who had” physically attended the 

interviews. Id. ¶ 38. She was told, however, that the “notes would not be shared.” Id.

Keith further alleges that, during “meetings [and interviews over the] phone,” she was 

given conflicting instructions as to whether she should make it known that she was having 

1 Keith was first told that the reason she was not permitted to attend the interviews was 

“team structure.” Pl.’s Am. Compl. ¶ 33. 
4 

difficulty hearing. Id. ¶ 34. She says that she was first “told not to interrupt the meetings if she 

had trouble hearing,” but was later instructed “that she should speak up if she could not hear.” 

Id. This caused her “extreme anxiety [because] it seemed that whether or not [she] spoke up, she 

would be in trouble.” Id. Further adding to Keith’s stress was the fact that, during at least some 

of the interviews, one of her supervisors “made it a point to ask if [Keith] could hear.” Id. ¶ 35. 

This “embarrassed” Keith and increased her “feelings of harassment.” Id.

Keith details other instances in which “negative comments regarding her disability . . . 

made her feel upset, uncomfortable, and belittled.” Id. ¶ 37. To that end, she cites one instance 

in which her supervisor replied that it was “good” that Keith was “getting help” after Keith told 

her that she was getting hearing aids. Id. Keith also refers to an unspecified number of meetings 

in which a colleague “kept asking ‘Can you hear, can you hear?’” Id. This, too, made Keith feel 

“uncomfortable” and “insult[ed].” Id. Finally, Keith felt that it was “offensive and 

inappropriate” when a colleague compared “[Keith] getting hearing aids to [the colleague’s]

sister getting glasses.” Id.

As 2019 was finally coming to a close, Keith “received a low rating” on her year-end 

performance review. Id. ¶ 45. The consequence, she was told, was that “she would be placed on 

a Performance Improvement Plan.” Id. By that point, however, Keith was convinced that “her 

efforts to succeed . . . would be frustrated without reason by” her supervisors. Id. Rather than 

continue to “endure the harassment she face[d] as a result of her disability,” she “chose to 

resign” from her position in the final month of the year. Id.

B. Procedural Background

Following Keith’s resignation, she filed suit in federal court, alleging claims under Title 

VII (for discrimination on the basis of race and sex as well as retaliation), the Age 
5 

Discrimination in Employment Act of 1967 (“ADEA”), and the ADA. See Pl.’s Compl. GAO 

moved for dismissal, see Def.’s Mot. to Dismiss Pl.’s Compl., ECF No. 4, and the Court granted 

the motion without prejudice to Keith’s right to seek leave to file an amended complaint, see 

Mem. Op. at 16–17. Keith sought (and was granted) such leave, and she filed her amended 

complaint on December 20, 2022. See Pl.’s Am. Compl. On January 24, 2023, GAO again 

moved for dismissal under Federal Rule of Procedure 12(b)(6) on grounds that Keith failed to 

state a claim upon which relief can be granted. See Def.’s Mot. to Dismiss.

III. ANALYSIS

Keith’s amended complaint alleges one count of discrimination under the ADA and a 

second count for hostile work environment under Title VII. Keith fails, however, to raise 

sufficient facts to state a plausible claim for relief under either statute. Both counts will, 

therefore, be dismissed. 

A. Legal Standard 

A plaintiff must provide a “short and plain statement of the claim,” Fed. R. Civ. P. 

8(a)(2), that “give[s] 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) (second alteration in 

original) (citation omitted). A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency 

of a complaint” by asking whether the plaintiff has properly stated a claim for which relief can 

be granted. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In considering such a 

motion, the complaint must be construed “liberally in the plaintiff’s favor with the benefit of all 

reasonable inferences derived from the facts alleged.” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 

169, 173 (D.C. Cir. 2006) (citing Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 

1994)). 
6 

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) 

motion, Twombly, 550 U.S. at 555, “a complaint must contain sufficient factual matter, [if] 

accepted as true, to state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (internal quotation omitted). “Threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements,” are insufficient to withstand a motion to 

dismiss. Id. Similarly, there is no obligation to accept the plaintiff’s legal conclusions as true, 

nor to presume the truth of legal conclusions that are couched as factual allegations. See 

Twombly, 550 U.S. at 555. 

B. ADA Discrimination Claim

Keith alleges that GAO (through its employees) discriminated against her on the basis of 

disability in six different ways: (1) by making insensitive and negative comments regarding her 

hearing impairment; (2) by giving her conflicting instructions as to whether she should alert 

others when she could not hear during meetings; (3) by failing to give her feedback regarding her 

performance; (4) by issuing her a bad year-end performance review; (5) by revoking her 

telework arrangement; and (6) by preventing her from physically attending interviews on two 

separate occasions. Pl.’s Am. Compl. ¶ 51. GAO argues that none of these alleged acts of 

discriminatory treatment constitute the type of adverse employment action necessary to state a 

discrimination claim under the ADA. GAO further contends that, even if they are sufficiently 

adverse, Keith has failed to allege a causal link between those actions and her disability.2

 

2 Before addressing the merits of Keith’s discrimination claim, GAO also argues that her 

claim for discrimination should be dismissed for failure to exhaust administrative remedies. See

Def.’s Mot. to Dismiss at 5–7. Specifically, GAO contends that Keith did not timely seek to 

informally resolve her claim within the forty-five day window required by the applicable GAO 

regulations. See id. It is true that GAO regulations require employees “to contact an [Office of 

Opportunity and Inclusion (“O&I”)] counselor within 45 days of the date of the matter alleged to 

be discriminatory” in order to attempt to resolve charges “alleging prohibited discrimination.” 
7 

1. Legal Framework

Title I of the ADA prohibits employers from “discriminat[ing] against a qualified 

individual on the basis of disability . . . [in the] terms, conditions, and privileges of 

employment.” 42 U.S.C. § 12112; see Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 

237 (D.C. Cir. 2018). In order to state a claim of discrimination under the ADA, a plaintiff must 

plausibly allege that “(i) [she] suffered an adverse employment action (ii) because of [her] 

disability.”3

 Waggel v. George Washington Univ., 957 F.3d 1364, 1373 (D.C. Cir. 2020) 

(quoting Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008)). 

Adverse Employment Action. Until recently, the D.C. Circuit had defined the phrase 

“adverse employment action” such that, to find an adverse employment action, a court needed to 

“conclude that ‘a reasonable trier of fact could find objectively tangible harm’ based on 

Heavans v. Dodaro, 2022 WL 17904237, at *6 (D.D.C. Dec. 23, 2022) (quoting GAO Order 

2713.2 at ch. 3)). But it is also true that an agency can “waive” an exhaustion defense if it 

“accepts,” “investigates,” and “decide[s] [a complaint] on the merits—all without mentioning 

timeliness.” Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997); see Nurriddin v. 

Bolden, 674 F. Supp. 2d 64, 86–87 (D.D.C. 2009). 

Keith does not meaningfully contend that she satisfied the forty-five-day informal 

consultation requirement. See Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 2–3, ECF 

No. 25 (arguing that she contacted an O&I counsel “months prior” to resigning). But Keith also 

notes that GAO “investigated” and resolved the formal complaint of discrimination that she later 

lodged. Id. at 3. The record suggests that GAO never relied upon—or even referred to—

timeliness in resolving Keith’s formal complaint. See Ex. 2 to Pl.’s Opp’n, ECF No. 25-4; see 

also Vasser v. McDonald, 228 F. Supp. 3d 1, 9–10 (D.D.C. 2016) (“In the context of exhaustion, 

courts are willing to rely upon administrative orders and administrative complaints without 

converting the motion into one for summary judgment when the documents are ‘referred to in the 

complaint, . . . are integral to [the plaintiff’s] exhaustion of administrative remedies, and are 

public records subject to judicial notice.’” (quoting Laughlin v. Holder, 923 F. Supp. 2d 204, 209 

(D.D.C. 2013))). In any event, because the Court will dismiss Keith’s discrimination claim on its 

merits, there is no need to definitively decide whether GAO waived an exhaustion defense here.

3

 Although the ADA does not apply to federal executive branch employees, it does apply 

to employees of the GAO because GAO is an “agency of the legislative branch.” See Duffy v. 

Dodaro, No. 16-cv-1178, 2020 WL 1323225, at *8 (D.D.C. Mar. 21, 2020) (citing 42 U.S.C. § 

12209(5)). 
8 

‘materially adverse consequences affecting the terms, conditions, or privileges of employment or 

future employment opportunities.’” Black v. Guzman, No. 22-cv-1873, 2023 WL 3055427, at *7 

(D.D.C. Apr. 24, 2023) (emphasis added) (quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. 

Cir. 2002)); see also Blackwell v. SecTek, Inc., 61 F. Supp. 3d 149, 158 (D.D.C. 2014) (requiring 

“objectively tangible harm” to state a claim for discrimination under the ADA). The objectivelytangible-harm requirement was intended to separate “[m]ere idiosyncrasies of personal 

preference” (which were not actionable) from “materially adverse consequences affecting the 

terms, conditions, or privileges of [the plaintiff’s] employment or her future employment 

opportunities” (which were actionable). Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). 

Last year, however, the D.C. Circuit’s decision in Chambers v. District of Columbia, 35 

F.4th 870 (D.C. Cir. 2022) (en banc), altered the calculus. In Chambers, the en banc court held, 

in the context of Title VII, that the objectively-tangible-harm requirement was inconsistent with 

the text of the statute and that, therefore, a plaintiff need not allege that she suffered an 

“objectively tangible harm” in order to state a claim for discrimination. See id. at 874–75. 

Rather, all that is required is that the plaintiff allege “that an employer has discriminated against 

an employee with respect to that employee’s ‘terms, conditions, or privileges of employment.’” 

Id.; see Bain v. Off. of Att’y Gen., No. 21-cv-1751, 2022 WL 17904236, at *18 (D.D.C. Dec. 23, 

2022) (explaining that “no more and no less” is required). While the standard “is not without 

limits” because “not everything that happens at the workplace affects an employee’s ‘terms, 

conditions, or privileges of employment,’” the court emphasized that the standard “is 

‘capacious,’ and ‘evince[s] [Congress’s] intent to strike at the entire spectrum of disparate 
9 

treatment . . . in employment.” Chambers, 35 F.4th at 874 (quoting Meritor Sav. Bank, FSB v. 

Vinson, 477 U.S. 57, 64 (1986)).4

Although Chambers could be read to apply only to allegations of discrimination under 

Title VII (or, even more specifically, to “cases involving [job] transfers,” see McCallum v. 

Mayorkas, No. 21-cv-1911, 2023 WL 3203011, at *9 n.9 (D.D.C. May 2, 2023)), several courts 

have reached the conclusion that Chambers sweeps more broadly, see Pressley v. Mgmt. Support 

Tech., Inc., No. 22-cv-2262, 2023 WL 5206107, at *6 (D.D.C. Aug. 14, 2023) (collecting cases). 

Those courts have therefore held that the “objectively tangible harm” requirement should no 

longer be applied when weighing allegations of discrimination under other antidiscrimination 

statutes, such as the ADEA, the Rehabilitation Act, and, most relevantly, the ADA. See

Pressley, 2023 WL 5206107, at *6 (ADA); Bain, 2022 WL 17904236, at *19 (ADEA and 

Rehabilitation Act). This Court will follow their lead. After all, the ADA’s antidiscrimination

provision is “indistinguishable” from the antidiscrimination provision in Title VII on which 

Chambers turned, Mogenhan v. Napolitano, 613 F.3d 1162, 1165 (D.C. Cir. 2010), and, as a 

result, “courts have [long] ‘applied Title VII principles in considering adverse employment 

actions under the ADA,’” Pressley, 2023 WL 5206107, at *6 (quoting Blackwell, 61 F. Supp. 3d 

at 158 n.6); Weigert v. Georgetown Univ., 120 F. Supp. 2d 1, 17 (D.D.C. 2000) (“Because the 

ADA incorporates the procedures of Title VII, rulings in this area applying to adverse actions are 

relevant [to evaluating adverse actions under the ADA].”). 

4

 Throughout its briefing, GAO argues that the Court should still apply a “material 

advers[ity]” standard to evaluate whether the allegedly discriminatory acts at issue constitute 

adverse employment actions. See Def.’s Mot. to Dismiss at 8–13. But Chambers rejects the 

notion that a plaintiff must demonstrate that an employer’s action was “materially adverse” in 

order to state a claim of discrimination. See Chambers, 35 F.4th at 876–77 (explaining that 

material adversity standard governs claims based on Title VII’s antiretaliation provision but not 

Title VII’s “fundamental[ly] differen[t]” antidiscrimination provision). 
10 

Causation. In addition to pleading facts sufficient to show that she suffered an adverse 

action, a plaintiff must show that the defendant took the action “because of [her] disability.” 

Walden v. Patient-Centered Outcomes Rsch. Inst., 304 F. Supp. 3d 123, 141 (D.D.C. 2018) 

(emphasis added). It remains an “open question in this circuit” as to whether a plaintiff must 

satisfy a “but-for or proximate causation” standard to state a claim under the ADA. KlotzbachPiper v. Nat’l R.R. Passenger Corp., No. 18-cv-1702, 2021 WL 4033071, at *10 n.5 (D.D.C. 

Sept. 3, 2021) (quoting Haughton v. District of Columbia, 819 F. App’x 1, 2 (D.C. Cir. 2020)); 

see Pressley, 2023 WL 5206107, at *9. Application of a “but-for causation standard would 

require a plaintiff to show that the defendant “‘would not have fired him but for his . . . 

disability,’ such that ‘proof of mixed motives will not suffice.’” Pressley, 2023 WL 5206107, at 

*9 (quoting Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir. 2010)). On the 

other hand, “a ‘motivating factor’ causation analysis would mean that a ‘claim can be sustained 

if discriminatory animus is merely one of several factors that precipitated the adverse 

employment action.’” Id. (quoting Drasek v. Burwell, 121 F. Supp. 3d 143, 154 (D.D.C. 2015)).

2. Application to Keith’s Discrimination Claim

With that backdrop in mind, the Court turns to the specific instances which Keith claims 

constitute discriminatory treatment. To refresh, Keith’s amended complaint cites six actions or 

categories of actions which she argues constitute adverse employment actions. Specifically, she 

cites (1) the “negative comments [made by her colleagues regarding] her disability”; (2) 

“conflicting directions [she received from supervisors] regarding her participation in work 

activities”; (3) her supervisors’ failure to provide her with “constructive feedback” to improve 

her performance; (4) her receipt of a “negative performance review for the 2019 appraisal 

period”; (5) GAO’s “cancel[lation] of her telework arrangement”; and (6) GAO’s decision to 
11 

“bar[] [her] from traveling with the team on site visits.” Pl.’s Am. Compl. ¶ 51. GAO argues 

that none of the challenged actions constitutes an adverse employment action sufficient to state a 

discrimination claim under the ADA, and even if they do, that Keith has failed to show that the 

actions were taken because of her disability. See Def.’s Mot. To Dismiss at 7–18. 

Negative Comments. Keith first alleges that the comments made by her colleagues 

relating to her disability constitute an adverse employment action. Although Keith’s opposition 

to GAO’s motion to dismiss does not specifically identify the comments which she found 

objectionable, her complaint details a few instances in which comments made by her colleagues 

could be construed as derogatorily referencing her hearing impairment. For example, Keith’s 

amended complaint alleges that one of her supervisors “made it a point to ask if Plaintiff could 

hear” during interviews, id. ¶ 35, while another colleague would ask Keith “Can you hear, can 

you hear?” during meetings, id. ¶ 37. Further, Keith’s amended complaint cites an instance in 

which her supervisor told her it was “good” that she was “getting help” after Keith had 

mentioned that she was getting hearing aids. Id. ¶ 37. And finally, the complaint refers to 

another instance in which a colleague compared getting hearing aids to getting glasses. Id.

Even viewed in their worst light, the remarks made by Keith’s colleagues do not 

plausibly amount to an adverse employment action. Rather, the comments are, at most, akin to 

the “rude and disrespectful” behavior that courts have “consistently held” fail to give rise to a 

discrimination claim. Taylor v. Haaland, No. 20-cv-3173, 2022 WL 990682, at *3 (D.D.C. Mar. 

31, 2022); Jones v. Bush, 160 F. Supp. 3d 325, 346 (D.D.C. 2016) (explaining that “acts of 

disrespect or rudeness are nothing like the ultimate employment decisions typically deemed 

adverse”). And although Keith alleges that her colleagues’ comments made her “upset,” 

“uncomfortable,” and “embarrassed,” Pl.’s Am. Compl. ¶¶ 35, 37, that is not enough to elevate 
12 

her colleagues’ behavior into an actionable claim for discriminatory treatment given the D.C 

Circuit’s guidance that “discrete episodes” of “‘public humiliation’ . . . fall[] below the 

requirements for an adverse employment action.” Baird v. Gotbaum, 662 F.3d 1246, 1249 (D.C. 

Cir. 2011) (quoting Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002)); see also 

Montgomery v. McDonough, No. 22-cv-1715, 2023 WL 4253490, at *9 (D.D.C. June 29, 2023) 

(holding that plaintiff’s “unpleasant” interactions with colleagues did not rise to level of an 

“adverse action” that “affected the terms of [plaintiff’s] employment”). 

Conflicting Instructions. Keith next alleges that the conflicting instructions she received 

from her supervisors constituted an adverse employment action. Specifically, Keith’s amended 

complaint charges that she received differing “directive[s]” as to whether she should “speak up” 

during meetings when she was unable to hear. Pl.’s Am. Compl. ¶ 34. She further alleges that 

the contradictory instructions caused her “extreme anxiety” because she did not know whether 

she would get “in trouble” for speaking up. Id.

Neither Keith’s amended complaint nor her opposition brief purport to explain how her 

supervisors’ instructions impacted the terms or conditions of her employment. Her brief simply 

argues that it is “plain” that they did so. Pl.’s Opp’n at 8. Even post-Chambers, plaintiffs must 

do more than “baldly stat[e] that the alleged employment action adversely affected the terms, 

conditions, or privileges of employment without proffering supporting facts or allegations.” 

Black, 2023 WL 3055427, at *8; see Chambers, 35 F.4th at 878 (emphasizing that plaintiff still 

must “plead sufficient factual matter to state a discrimination claim that is plausible on its face” 

(cleaned up)). Keith’s amended complaint fails to meet that very low bar. And though the Court 

does not doubt that conflicting instructions such as the ones given by Keith’s supervisors would 

have caused her a great deal of frustration and anxiety, that alone does not provide a sufficient 
13 

foundation upon which Keith may ground a discrimination claim. See, e.g., Heavans v. Dodaro, 

No. 22-cv-836, 2022 WL 17904237, at *8 (D.D.C. Dec. 23, 2022) (post-Chambers case finding 

that supervisor’s actions “undoubtedly caused [plaintiff] tribulations” and “eroded [his] morale” 

but nonetheless “did not adversely affect the conditions of plaintiff’s employment”). 

Insufficient Feedback. So, too, Keith’s supervisors’ unwillingness to provide her with 

feedback is not an adverse action. Keith alleges that, following her receipt of “an unacceptable 

[performance] rating” on her mid-year review, she sought to “discuss” her unexpectedly low 

rating with her supervisor but was met with silence. Pl.’s Am. Compl. ¶¶ 29, 30. A few weeks 

later, that same supervisor told Keith that “if [she] asked for guidance, it would reflect poorly in 

her [future] evaluation.” Id. ¶ 31. According to Keith, this rendered her “unable to attempt to 

learn or improve without it being held against her in later ratings.” Id.

Nevertheless, even favorably construed, the facts alleged do not give rise to the inference 

that Keith’s supervisors’ unwillingness to provide her with feedback had an impact on the terms 

or conditions of her employment. See Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 848 

(D.C. Cir. 2001) (explaining that plaintiff’s receipt of “inadequate . . . guidance or feedback 

regarding his job performance” did not constitute adverse action where plaintiff failed to show 

that lack of feedback effected “a sufficient change in the terms and conditions of his 

employment”); Nichols v. Vilsack, No. 13-cv-01502, 2015 WL 9581799, at *11 (D.D.C. Dec. 30, 

2015) (similar). Instead, her supervisors’ refusal to provide feedback “fall[s] into the category of 

a supervisor’s ordinary workplace exercise of authority that [does] not adversely affect the 

conditions of [Keith’s] employment.” Heavans, 2022 WL 17904237, at *8. 

Poor Performance Review. Next, Keith alleges that she suffered an adverse action when 

she “received a low [performance] rating at the end of 2019.” Pl.’s Am. Compl. ¶ 45. GAO 
14 

contends that that review does not represent an adverse employment action because Keith has not 

pled any facts showing that the negative review “affect[ed] [her] ‘position, grade level, salary, or 

promotion opportunities.” Def.’s Mot. to Dismiss at 9 (quoting Taylor v. Solis, 571 F.3d 1313, 

1321 (D.C. Cir. 2009)).

Prior to Chambers, courts had regularly held that poor performance reviews, by 

themselves, do not ordinarily constitute actionable adverse employment actions. See Douglas v. 

Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009); Walden, 304 F. Supp. 3d at 137 (collecting cases 

and showing “it is well established . . . that negative performance evaluations are not adverse 

employment actions”). The cases reasoned that, standing alone, the mere fact of one bad review 

was too “speculative” to be actionable. Douglas, 559 F.3d at 552 (explaining that “[t]he result of

[one bad] evaluation is often speculative” because “a single poor evaluation may drastically limit 

an employee’s chances for advancement, or it may be outweighed by later evaluations and be of 

no real consequence” (quoting Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001)). That 

being so, plaintiffs needed to allege additional facts showing that a bad review resulted in an 

“‘objectively tangible’ harm.” Id. at 552. And the principle way of doing so was by 

demonstrating that a negative review had detrimentally impacted the plaintiff’s “position, grade 

level, salary, or promotion opportunities.” Taylor, 571 F.3d at 1321 (quoting Baloch v. 

Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008)). 

It seems unlikely that the rule on which GAO relies survives Chambers. See Chambers, 

35 F.4th at 874 (“The unadorned wording of [Title VII] admits of no distinction between 

‘economic’ and “non-economic” discrimination or ‘tangible’ and ‘intangible’ discrimination.”). 

This is especially so given that that rule can be traced directly back to language in Brown, 199 

F.3d at 458, the case overruled by the D.C. Circuit in Chambers. See Taylor v. Small, 350 F.3d 
15 

1286, 1293 (D.C. Cir. 2003) (quoting Brown for the proposition that “‘formal criticism or poor 

performance evaluations are not necessarily adverse actions’ and they should not be considered 

such if they did not ‘affect the employee’s grade or salary’” (cleaned up)). The Court therefore 

disagrees with GAO that Keith needed to plead that her negative performance review had an 

adverse impact on her “position, grade level, salary, or promotion opportunities.” Baloch, 550 

F.3d at 1199. Rather, to survive a motion to dismiss, Keith only needed to plead facts sufficient 

to give rise to a reasonable inference that the bad performance review affected the “terms, 

conditions, or privileges of [her] employment.” See Chambers, 35 F.4th at 874–75. 

But Keith has not carried that burden here. Her complaint alleges no facts suggesting that 

the negative review she received for the 2019 performance period had an impact on a term, 

condition, or privilege of her employment. And although she argues in her opposition brief that 

the negative review “absolutely would have” had an adverse impact on her “potential for career 

advancement,” Pl.’s Opp’n at 9 (quoting Liu v. Georgetown Univ., No. 22-cv-157, 2022 WL 

2452611, at *5 (D.D.C. July 6, 2022)), her complaint does not allege any facts suggesting the 

precise manner in which that might have been so. See Black, 2023 WL 3055427, at *8 

(“[P]laintiff cannot avoid dismissal of her . . . discrimination claim by baldly stating that the 

alleged employment action adversely affected the terms, conditions, or privileges of employment 

without proffering supporting facts or allegations.”). Keith’s amended complaint only alleges 

that she was told that she would be put on a performance improvement plan following the bad 

review; her complaint does not allege that she was actually put on such a plan or, if she was, how 

such a plan impacted the terms or conditions of her work. See Garza v. Blinken, No. 21-cv02770, 2023 WL 2239352, at *5 (D.D.C. Feb. 27, 2023) (finding that plaintiff’s receipt of 

“proposed letter or reprimand” was insufficient, standing alone, to constitute an adverse action 
16 

under Chambers given that plaintiff did not plead any facts suggesting the proposed letter ever 

actually impacted the terms or conditions of her employment). Moreover, given that Keith 

resigned shortly after learning of the poor review, it seems unlikely that her working conditions 

were altered by the year-end performance rating or her potential placement on a performance 

improvement plan. See Harrison v. Off. of the Architect of the Capitol, 964 F. Supp. 2d 81, 99 

(D.D.C. 2013) (finding no adverse action where plaintiff was placed on a performance 

improvement plan but the “plan was never implemented because the Plaintiff went on extended 

sick leave the day after the plan was issued”).

Because Keith fails to allege facts giving rise to an inference that her poor performance 

review affected the terms or conditions of her employment, the Court concludes that the review 

does not constitute an adverse employment action. This holding accords with decisions reached 

by other courts in this district following Chambers. See McCallum, 2023 WL 3203011, at *12; 

Heavans, 2022 WL 17904237, at *8. 

In all events, even if Keith’s 2019 year-end performance review did constitute an adverse 

employment action, nothing in her complaint gives rise to a reasonable inference that Keith 

received the unfavorable review because of her disability. See Giles v. Transit Emps. Fed. 

Credit Union, 794 F.3d 1, 5 (D.C. Cir. 2015) (explaining that plaintiff must show she “suffered 

an adverse employment action because of [her] disability” (quoting Duncan v. Washington 

Metro. Area Transit Auth., 240 F.3d 1110, 1114 (D.C. Cir. 2001))). At the pleading stage, a 

plaintiff bears the burden of alleging “some facts” to give rise to the reasonable inference that her 

disability “was the reason for the defendant’s actions.” Doe #1 v. Am. Fed’n of Gov’t Emps., 554 

F. Supp. 3d 75, 103 (D.D.C. 2021) (quoting Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C. 1990)). 

As the Court previously explained, “[a] frequent means of pleading factual allegations sufficient 
17 

to ‘raise an inference of discrimination’ under . . . the ADA . . . is ‘by showing that [the plaintiff] 

was treated differently from similarly situated employees who are not part of the protected 

class.’” Mem. Op. at 6 (quoting Doe #1, 554 F. Supp. 3d at 103). 

Plaintiff attempts to follow that route here by alleging that another “Analyst” on the team 

“did not receive an unacceptable performance rating . . . during [the same] time period.” Pl.’s 

Am. Compl. ¶¶ 19, 44. But to plausibly plead the causation element in this way, Keith must 

“allege some facts to ground a reasonable inference that [she] was in fact similarly situated to 

[the] comparator employee[].” Mem. Op. at 7. Aside from the similarity in job titles, Keith’s 

amended complaint is devoid of facts suggesting that Keith and her colleague were similarly 

situated such that their receipt of disparate year-end reviews could give rise to a reasonable 

inference that Keith’s review was based, at least in part, on discriminatory animus. For one, 

Keith’s amended complaint does not contain anything to suggest that Keith and her proffered 

comparator had similar duties, responsibilities, or qualifications. And more importantly, Keith 

does not allege that she and her colleague performed work of a sufficiently similar caliber—in 

fact, her amended complaint does not make any allegations at all regarding how well (or poorly) 

her colleague performed throughout the year. See Kline v. Springer, 602 F. Supp. 2d 234, 240 

(D.D.C. 2009) (holding that “plaintiff failed to show that her performance was similar to” that of 

comparators and therefore had not shown that difference in evaluations gave rise to inference of 

discrimination). 

Nor does the rest of Keith’s amended complaint, even when favorably construed, 

plausibly suggest that discriminatory animus motivated her unfavorable 2019 review. To the 

contrary, it is apparent that Keith’s supervisors had issues with her performance even before they 

learned of her disability. To be more specific, the record makes clear that Keith also received a 
18 

review with which she was unsatisfied for the 2018 performance year. See Ex. 1 to Pl.’s Opp’n, 

ECF No. 25-3 (explaining that Keith “submitted an official grievance” regarding her “2018 

rating”). This fact, especially when coupled with Keith’s receipt of a low mid-year performance 

review in 2019, see Pl.’s Am. Compl. ¶ 29, suggests that Keith’s performance issues long predated her supervisors’ knowledge of her disability, and, as a result, further undermines any 

notion of a causal connection between her year-end review and discriminatory animus. Cf. 

Crandall v. Paralyzed Veterans of Am., 146 F.3d 894, 897 (D.C. Cir. 1998) (explaining that 

courts “overwhelmingly agree[] that for [a] causal link to be shown the employer must have 

acted with an awareness of the disability itself”).

Cancellation of Telework Arrangement. Contrary to the afore-analyzed actions, the 

Court has little difficulty concluding that Keith has plausibly alleged that GAO’s decision to 

revoke her telework arrangement constituted an adverse employment action. Keith’s amended 

complaint does not describe the extent to which GAO’s revocation of her telework arrangement 

impacted her daily or weekly working conditions. All the same, it is plausible that revocation of 

that arrangement forced Keith to work in-person rather than remotely, and thus amounted to an 

adverse change to the terms, conditions, or privileges of her employment. See Black, 2023 WL 

3055427, at *8 (holding that employer’s “suspension of plaintiff’s telework benefits amount[ed]

to an adverse change” to the terms, conditions, or privileges of her employment); Heavans, 2022 

WL 17904237, at *8 (holding that “the revocation of [plaintiff’s] flexible work schedule . . . 

[was] inarguably [a] major change[] to the conditions of his employment”). 

The issue, however, is that Keith has not plausibly alleged that her telework arrangement 

was cancelled “because of [her] disability.” Walden, 177 F. Supp. 3d at 341 (emphasis added). 

To the contrary, Keith’s amended complaint states that she was told that the reason her “telework 
19 

arrangement was being canceled [was] due to” the poor rating she received at her mid-year 

review. Pl.’s Am. Compl. ¶ 40. Keith does not allege that the reason provided to her was 

pretextual, and none of the well-pleaded facts in her amended complaint give rise to a reasonable 

inference that the revocation was based on discriminatory animus. See Easaw v. Newport, 253 F. 

Supp. 3d 22, 26 (D.D.C. 2017) (explaining that plaintiff can show discrimination through 

allegations demonstrating that an employer’s stated neutral reasons were pretextual). In other 

words, there is nothing to suggest that her disability was a “motivating factor,” Drasek, 121 F. 

Supp. 3d at 154, in GAO’s decision to terminate her telework arrangement. 

Denial of Permission to Travel. Finally, Keith has plausibly alleged that GAO’s decision 

to deny her permission to travel with the rest of the engagement team to conduct in-person 

interviews on two occasions, see Pl.’s Am. Compl. ¶¶ 33, 51, had an adverse effect on the terms 

or conditions of her employment. Keith’s complaint suggests that it was routine practice for 

team members to conduct such interviews on-site and then to record their findings and 

conclusions in formal write-ups after the fact. Id. ¶ 33. In contravention of the typical practice, 

Keith was forced to listen to the interviews over the phone—something that was difficult to do in 

light of her hearing loss. Id. And despite this added difficulty, Keith was still required to 

complete and submit written interview summaries. 

Before Chambers, it is unlikely that denying Keith permission to travel to attend 

interviews in-person would have constituted an adverse employment action. See, e.g., Nurriddin 

v. Bolden, 674 F. Supp. 2d 64, 89 (D.D.C. 2009); Edwards v. EPA, 456 F. Supp. 2d 72, 85 

(D.D.C. 2006). But after Chambers that is much less clear. See Pressley, 2023 WL 5206107, at 

*7 (holding that plaintiff suffered adverse employment action when employer excluded him from 

meetings and told him not to go to a work site). To be sure, the amended complaint does not 
20 

specifically allege that Keith had previously traveled with the team to conduct in-person 

interviews—a fact that would help the Court determine whether denial of travel permissions 

actually altered the terms or conditions of Keith’s employment. See Heavans, 2022 WL 

17904237, at *8 (explaining that employer’s decision to exclude plaintiff from meetings he had 

previously attended constituted a “notable alteration to the terms of his employment”). Nor does 

Keith plead facts specifically detailing how her inability to attend the two interviews negatively 

impacted her longer-term career prospects. But at the motion to dismiss stage, the Court is 

required to construe the amended complaint in the light most favorable to Keith and to draw all 

inferences in her favor. See Iqbal, 556 U.S. at 678. Doing so leads to the conclusion that Keith 

has sufficiently alleged that GAO’s decision to prevent her from traveling to interview sites 

made it more difficult for her to fulfill her job responsibilities and therefore constituted an 

adverse change to the terms of her employment. See Pressley, 2023 WL 5206107, at *7 

(explaining that challenged action “presumably . . . affected [plaintiff’s] ability to fulfill his job 

responsibilities” and, therefore, constituted an adverse employment action post-Chambers). 

That said, Keith again stumbles when it comes to causation. In her opposition brief, 

Keith argues that GAO did not give a “reason or explanation” for why it denied her the 

“opportunity to attend in-person interviews . . . only after [GAO] learned of [Keith’s] disability.” 

Pl.’s Opp’n at 10–11. However, her amended complaint itself states that she was provided with 

two different explanations for why she was not permitted to travel with the team to conduct 

interviews: “team structure” and her “rating.” Pl.’s Am. Compl. ¶ 33. Nothing in her pleadings 

gives rise to the plausible inference that these stated, neutral reasons were pretextual. See 

Easaw, 253 F. Supp. 3d at 26. And more fundamentally, it is Keith who—at the motion to 

dismiss stage—bears the burden of pleading some facts to support an inference that she was 
21 

denied permission to attend the interviews on account of her hearing impairment. See Iqbal, 556 

U.S. at 678. This, she has failed to do.

3. Conclusion 

To summarize, Keith has not plausibly alleged that many of the acts giving rise to her 

discrimination claim—including the negative comments made by her teammates and bosses, the 

conflicting instructions she received from supervisors, her supervisors’ failure to provide her 

feedback, and her negative year-end performance rating—affected the terms or conditions of her 

employment such that they can constitute actionable adverse actions. And although she has 

pleaded sufficient facts for the Court to conclude that GAO’s decision to revoke her telework 

arrangement and her supervisors’ decision to prevent her from attending in-person interviews 

could have impacted the terms or conditions of her employment, she has not alleged sufficient 

facts to give rise to a reasonable inference that those actions bore a connection to discriminatory 

animus. For those reasons, Keith’s discrimination claim will be dismissed.

C. Hostile Work Environment 

GAO next contends that Kieth’s amended complaint fails to state a hostile work 

environment claim. “A plaintiff asserting a claim based on a hostile work environment faces a 

high hurdle.” Fields v. Vilsack, 207 F. Supp. 3d 80, 92 (D.D.C. 2016). She must allege facts 

sufficient to “show that [her] employer subjected [her] to ‘discriminatory intimidation, ridicule, 

and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s 

employment and create an abusive working environment.’” Baloch, 550 F.3d at 1201 (quoting 

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Determining whether the plaintiff has met 

this burden requires courts to consider the totality of the circumstances, “including ‘the 

frequency of the discriminatory conduct; its severity; whether it is physically threatening or 
22 

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an 

employee’s work performance.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 

(2002) (quoting Harris, 510 U.S. at 23). What is more, “a plaintiff must also ‘establish that the 

allegedly harassing conduct . . . was based on a protected characteristic,’ or that there is ‘some 

linkage between the hostile behavior and [her] membership in a protected class.’” Montgomery, 

2023 WL 4253490, at *5 (quoting Byrd v. Vilsack, 931 F. Supp. 2d 27, 45 (D.D.C. 2013)).

In dismissing Keith’s initial complaint, the Court explained that one reason she had failed 

to state a hostile work environment claim was that “her ‘hostile work environment claim is 

essentially an amalgamation of [her] discrimination and [unrenewed] retaliation claims.’” Mem. 

Op. at 14 (quoting Massaquoi v. District of Columbia, 81 F. Supp. 3d 44, 53 (D.D.C. 2015)). 

And as the Court explained, courts are “reluctant to transform [allegations of disparate treatment] 

into a cause of action for hostile work environment.” Wade v. District of Columbia, 780 F. Supp. 

2d 1, 19 (D.D.C. 2011); see Townsend v. United States, 236 F. Supp. 3d 280, 312 (D.D.C. 2017) 

(“Use of the same discrete acts, upon which the plaintiff bases his discrimination . . . claims, to 

support a hostile work environment claim is disfavored.”). 

Despite the Court’s prior admonition, Keith’s amended complaint does not cure the 

defect identified in her initial complaint. She instead doubles down. See Pl.’s Opp’n at 12 (“The 

allegations stated in the preceding sections [discussing discrimination] all lend themselves to 

having created a hostile work environment that the Plaintiff was unable to receive a reprieve 

from.”). This strategy is not entirely misplaced, given that there are certain instances in which 

“incidents of disparate treatment can establish a hostile work environment if connected in [a] 

pervasive pattern of severe harassment,” Wade, 780 F. Supp. 2d at 19, but the actions on which 
23 

Keith’s amended complaint rest are simply insufficiently severe and insufficiently pervasive to 

rise to the level of a hostile work environment. 

For example, Keith cites a number of instances in which colleagues or supervisors made 

comments relating to her hearing impairment. Those instances include an unspecified number of 

meetings and interviews in which Keith’s supervisor or colleague asked her whether she was 

able to hear, Pl.’s Am. Compl. ¶¶ 35, 37, one occasion in which a colleague said that it was 

“good” that Keith was getting hearing aids, id. ¶ 37, and another occasion when a colleague 

compared getting hearing aids to buying glasses, id. These comments—though insensitive and 

perhaps ill-intentioned—were neither made on a sufficiently frequent basis nor were they so 

severe as to create a hostile work environment. Instead, they are more like the “isolated 

incidents” and “offensive utterances” that prior courts have held insufficient to give rise to a 

hostile work environment claim. George v. Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005) (quoting 

Harris, 510 U.S. at 23); see id. at 408, 416–17 (holding that plaintiff had not demonstrated a 

hostile environment despite fact that she had been told on “different occasions” and “by three 

separate employees to ‘go back to Trinidad’ or to ‘go back to where [she] came from,’” was 

“shouted at,” and told to “shut up”).

Nor does her receipt of a negative mid-year review and a poor year-end performance 

rating change the result. That is because “‘criticisms of work and expressions of disapproval 

(even loud expressions of disapproval)’ are not sufficiently severe to constitute a hostile work 

environment.” Brooks v. Grundmann, 851 F. Supp. 2d 1, 7 (D.D.C. 2012) (quoting Singh v. U.S. 

House of Representatives, 300 F.Supp.2d 48, 56 (D.D.C. 2004)); Walden, 177 F. Supp. 3d at 345 

(holding that plaintiff’s “negative performance evaluation” and placement on a performance 

improvement plan did not demonstrate hostile work environment); see also Grosdidier v. 
24 

Chairman, Broad. Bd. of Governors, 774 F. Supp. 2d 76, 110–11 (D.D.C. 2011) (“[C]ourts have 

generally rejected hostile work environment claims that are based on work-related actions by 

supervisors.”). 

To be sure, Keith’s hostile work environment claim does not rest entirely on the incidents 

on which she grounds her discrimination claim. Specifically, her amended complaint describes 

one instance in which she was told to “watch her tone,” Pl’.s Am. Compl. ¶ 27, another in which 

it was insinuated that Keith was impermissibly working a second job, id. ¶ 32, and a third 

instance when her supervisor questioned Keith as to whether her grandmother had “actually” 

passed away, id. ¶ 43. There is no obvious connection between these additional allegations and 

Keith’s hearing impairment, however, and Keith does not attempt to provide one. See Pl.’s 

Opp’n at 12; Byrd, 931 F. Supp. 2d at 45 (“[H]ostile behavior . . . cannot support a claim of 

hostile work environment unless there exists some linkage between the hostile behavior and the 

plaintiff’s membership in a protected class.” (quoting Motley–Ivey v. District of Columbia, 923 

F. Supp. 2d 222, 233 (D.D.C. 2013)). And even if there were a plausible connection, none of the 

additional allegations would come close to suggesting that Keith’s work environment was 

“permeated with discriminatory intimidation, ridicule, and insult” to the degree necessary to 

render the workplace hostile. Newton v. Off. of the Architect of the Capitol, 905 F. Supp. 2d 88, 

95 (D.D.C. 2012) (quoting Harris, 510 U.S. at 21); Peters v. District of Columbia, 873 F. Supp. 

2d 158, 188 (D.D.C. 2012) (“Bosses may be harsh, unfair and rude, but conduct so characterized 

does not necessarily rise to the level of a Title VII violation.”). 

For these reasons, Keith has failed to state a hostile work environment claim. Count II of 

her complaint will therefore be dismissed.
25 

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss the Amended Complaint (ECF 

No. 24) is GRANTED. An order consistent with this Memorandum Opinion is separately and 

contemporaneously issued. 

Dated: September 26, 2023 RUDOLPH CONTRERAS

United States District Judge