UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BARBARA A. NICHOLS, Plaintiff ,

v. MIKE YOUNG, 1 Acting Secretary, United States Department of Agriculture, Defendant. Civil Action No. 13-1502 (RDM)

MEMORANDUM OPINION Proceeding pro se , Plaintiff Barbara Nichols brin gs this action against her form er employer, the United States Depa rtment of Agriculture (“USDA”), for alleged violations of Title VII of the Civil Righ ts Act of 1964, 42 U.S.C. § 2000e et seq . (“Title VII”), and the Age Discrimination in Employment Act, 29 U.S.C. § 633a et seq . (“ADEA”). The Court previously dismissed Nichols’s complaint for failure to state a claim, but simultaneously granted Nichols leave to file an amended complain t to address the deficiencies identified in the Court’s decision. Nichols has now filed an amende d complaint, Dkt. 23, and the US DA has moved for summary judgment or, in the alternative , for judgment on the pleadings, Dkt. 37. Because Nichols has failed to rectify the deficienci es in her original complaint, a nd because her amended complaint does not state a claim, the Court will grant the USDA’s motion for judgment on the pleadings and will dismiss the complaint, this time with prejudice.

1 The current officeholder is aut omatically substituted as the defendant. See Fed. R. Civ. P. 25(d).2 I. BACKGROUND The Court has previously set forth the factual and procedural h istory of the

case, see Nichols v. Vilsack , 13-cv-1502, 2015 WL 9581799, at *1–4 (D.D.C. Dec. 30, 2015) (“ Nichols I ”), and, accordingly, need only address recent developments. Although Nichols’s original compl aint contained few non-conclus ory allegations, because Nichols is proceeding pro se , the Court reviewed her administrative complaints in an effort to discern her specific allegations. Nichols I, 2015 WL 9581799 at *1–2. From those materials, the Court discerned the following allegations: Nich ols is an African-American woman, who was fifty-three year s old when she began her employm ent at the USDA in 2007.
Id. at *2. Problems began almost imme diately after Nichols starte d work at the USDA. Id. Among other things, she was assi gned a large caseload, which in cluded a backlog of cases that a younger, Caucasian employee had fa iled to process; she was not provided any training or guidance; and, when she sought gui dance, she was told not to as k work-related questions of other employees and not to send email messages with questions. Id. In addition, according to Nichols’s initial complaint and a dministrative complaints, she was subjected to a “no tolerance” policy with respect to her work, w hile others—including the you nger, Caucasian employee who had created the backlog that gree ted Nichols when she started w ork—were held to less stringent standards and, indeed, received “multiple, favorable career opp ortunities.” Id. (quoting Dkt. 1 at 3 (Compl. ¶ 9)). Nichols further alleged, moreover, that when she complained, the USDA harassed her and, more generally, t hat the USDA applied a “doub le standard” under which it “quickly redress[ed] any issue” involving her performance, id. (quoting Dkt. 1 at 2–3 (Compl. ¶¶ 7, 11)), but “failed to timely r esolve recurring complaints of inappropriate behavior and3 sexual harassment” involving a Caucasian, male employee, id. (quoting Dkt. 1 at 3 (Compl. ¶ 11)). The USDA moved to dismiss Nichols’ s original complaint, arguing that she failed to timely exhaust her administrative remedies with respect to some , but not all, of her claims and that, in any event, her original complaint failed to state a cl aim. Id. at *1. With respect to the first of these arguments—Nichol s’s failure to timely exhaust he r administrative remedies—the Court concluded that the defens e was non-jurisdictional and tha t the USDA had not, and could not, carry its burden of proving non- exhaustion at the motion-t o-dismiss stage of the proceeding.
Id. at *4–8. The Court, accordingl y, denied that portion of the U SDA’s motion without prejudice to the USDA’s right to r eassert the defense with an appropriate factual record. Id. at *7. The Court agreed with the USD A, however, that Nichols’s co mplaint, even as clarified based on the attached administrativ e complaint, failed to state a claim. Id. at *9–14. Of particular relevance here, the C ourt held that Nichols’s dispar ate treatment claims failed “to satisfy the adverse employment action requirement” necessary to state a claim under Title VII or the ADEA, id. at *10–11, and that her hostile wor k environment claims failed to raise “the type of severe or pervasive harassment necessary to state a claim,” id. at *12. The Court did, however, permit Nichols to “file an amended comp laint that “addresse[d] the deficiencies” it had raised, id. at *14, and on January 27, 2016, Nic hols filed an amended complaint that reasserted her race, sex, and age discrimination claims under Title VII and the ADEA, Dkt. 23. Nichols expanded her complaint from six to thirteen pages, and, although her amended complaint eliminated mos t of the exhibits that she had appended to her first complaint, 2

2 Nichols’s amended complaint a ttaches only correspondence from 2009 and an EEOC appeals document. See Dkt. 23 at 15–18. Her initial compl aint, in contrast, was “ac companied . . . by over [forty] pages of exhibits,” including emails, a newspaper article, and several EEO4 it includes numerous citations to her first complaint, Dkt. 1, her opposition to the USDA’s prior motion to dismiss, Dkt. 14, and the exhibits attached to both p leadings. On April 8, 2016, the USDA moved to dismiss or transfe r the amended complaint for imp roper venue, Dkt. 28, and the Court denied that motion on May 2, 2016, Dkt. 34. Shortly ther eafter, the USDA answered the amended complaint. Dkt. 35. On June 7, 2016, the USDA filed the pending motion for summary judgment or, in the alternative, for judgment on the pleadings. Dkt 37. With the benefit of a factual record, the USDA now renews its exhaustion defense, id. at 11–18, and, echoing its earlier motion to dismiss, it further argues that the amended complaint fails to remedy the pleading deficiencies that the Court identified in N ichols’s original complaint, id. at 4, 18–24. The Court advised Nichols of the need to file “a memorandum and supporting eviden ce in response” to the USDA’s motion. See Dkt. 39 at 1 (citing Neal v. Kelly , 963 F.2d 453, 456–57 (D.C. Cir. 1992) and Fox v. Strickland , 837 F.2d 507 (D.C. Cir. 1988)). On June 30, 2016, Nichols fi led her opposition, along with seventy pages of exhi bits, Dkt. 40, and the USDA sub sequently filed a reply, Dkt. 41.
II. DISCUSSION As in its original motion to dismiss, the USDA argues that Nich ols’s amended complaint must be dismissed for two, indepe ndent reasons: because Nichols failed to exhaust Title VII and ADEA administrative remedies i n a timely manner and because she fails to allege the essential elements of each of her claims. The Court, accordingly, once a gain faces the threshold question whether it must—or should—decide the exhaustion issue before ad dressing the sufficiency of Nichols’s allegations. As explai ned in the Court’s prior decis ion, the Court is not required to

documents, including her May 1, 2009, administrative complaint and the EEOC’s final decision regarding that complaint. See Nichols I, 2015 WL 9581799, at *1.5 decide the exhaustion issue firs t; failure to exhaust administr ative remedies under Title VII and the ADEA does not raise a jurisdi ctional hurdle, but rather con stitutes an affirmative defense. Nichols I, 2015 WL 9581799 at *5 (citing Bowden v. United States , 106 F.3d 433, 437 (D.C. Cir. 1997)). Moreover, because the Cour t premised its prior decisio n on the sufficiency of Nichols’s allegations, and because it provided her with an opportunity to attempt to cure the deficiencies it identified, it makes sense t o begin (and, for the reasons givenbelow, to conclude) the Court’s analysis by addressing the suffi ciency of the amended complaint

. In doing so, the Court will start with the claims that Nichols raised in her original complaint, which she has attem pted to bolster in her amended co mplaint, and then turns to her arguably new claim of c onstructive discharge. 3
A. Adequacy of Nichols’s Allegations Because the Court previously addr ess the sufficiency of Nichols ’s original complaint, there is no need to start from sc ratch or to repeat the Court’s prior analysis. The relevant question is simply whether the a mended complaint rectifies the problems the Court has previously identifie d or has added new cla ims that meet the gov erning pleading standards. Moreover, it makes no difference that the Court’s earlier opini on relied on Rule 12(b)(6), while the USDA’s present motion arises under Rule 12(c). The standar d of review under both rules is identical, see , e.g ., Vanderhorst v. Blue Cross Blue Shield Ass’n , 99 F. Supp. 3d 46, 48–49 (D.D.C. 2015); the sole differen ce is that a Rule 12(b)(6) moti on is the proper vehicle for challenging the legal sufficiency of a complaint before the def endant has answered, and a Rule

3 Although Nichols divides her am ended complaint into two count s—“disparaging treatment,” Dkt. 23 at 3–8 (Am. Compl. ¶¶ 7–30) , and “disparaging impact,” id. at 8–11 (Am. Compl. ¶¶ 31– 40)—the Court, as it did previous ly (and as the USDA does in it s motion to dismiss), “organizes its analysis of whether [Nichol s] has failed to state a claim a round the relevant theories of relief” rather than the labels she us es to describe her allegations. Nichols I, 2015 WL 9581799, at *9.6 12(c) motion is the proper vehicl e to raise such a challenge af ter the defendant has answered. Under both rules, the Court must d ecide whether the complaint c ontains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is p lausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)).
1. Disparate Treatment In its first opinion, the Court he ld that Nichols’s disparate t reatment claims under Title VII and the ADEA failed as a matter of law because she had “not alleged that she suffered an adverse employment action.” Nichols I, 2015 WL 9581799, at *10 (quotation marks and alteration omitted). The Court held, for example, that Nichols ’s allegations tha t she “was told not to ask work-related questions ” of employees other than her supervisor and was not permitted to “send email messages,” id. at *2 (quotation marks omitted), w hile potentially “unfair and embarrassing,” did not “materially affect[] the terms, conditio ns, or privileges of . . . [her] employment or . . . future employment,” id. at *11 (quotation marks omitted). Similarly, the Court held that Nichols’s alle gation that “she was given a larg er workload than a younger, Caucasian colleague” failed to state a claim because she did no t allege that the additional work caused a “concomitant adverse ch ange in the terms, conditions o r privileges of her employment.”
Id. (quotation marks and alteration omitted). Nichols’s amended complaint i ncludes some (although not much) additional detail in support of these allegations. Compare Dkt. 1 at 3–4 (Compl. ¶¶ 8, 13) with Dkt. 23 at 3–4 (Am. Compl. ¶¶ 8–12). That detail, how ever, does not cure the probl em that the Court previously identified. Both Nichols’s orig inal and amended complaints mak e essentially the same claims— that she was given a heavier workload than the “Caucasian femal e” who had created the backlog7 that Nichols was asked to clear, Dkt. 1 at 3 (Compl. ¶ 8); Dkt. 23 at 3 (Am. Compl. ¶¶ 8–10); that she was subjected to more “stringent standards” than the C aucasian female whose work she had inherited, Dkt. 1 at 3 (Compl . ¶ 8); Dkt. 23 at 3 (Am. Comp l. ¶ 9); and that she was not allowed to send email messages bu t was, instead, required “to w rite down her questions” and to walk to someone else’s desk “fo r an oral response,” Dkt. 1 at 4 (Compl. ¶ 13); Dkt. 23 at 4 (Am. Compl. ¶ 11). As the Court previ ously explained, these allegat ions, even if true, would not show that Nichols suffered the type of adverse employment action—“su ch as hiring, firing, failing to promote, [or] reassignment wit h significantly different respons ibilities,” Douglas v. Donovan , 559 F.3d 549, 552 (D.C. Cir. 2009) (quotation marks omitted)—th at Title VII and the ADEA preclude. She did not origina lly allege, and does not now alle ge, for example, that she was required to work additional hours or that her hourly salary was affected by her workload. See Mungin v. Katten Muchin & Zavis , 116 F.3d 1549, 1557 (D.C. Cir. 1997) (“[C]hanges in assignments or work-related dutie s do not ordinarily constitute adverse employment decisions if unaccompanied by a decrease in sal ary or work hour changes.”). And she did not previously allege, and does not now allege, t hat the restrictions on her u se of email and the requirement that she pose questions in writing am ounted to anything more than th e type of embarrassment and inconvenience that the D.C. Circu it has held is not actionable on a disparate treatment theory. See, e.g. , Forkkio v. Powell , 306 F.3d 1127, 1130–31 (D.C. Cir. 2002) (“Purely subjective injuries, such as dissatisfacti on with a reassignment or public humiliation or loss of reputation are not adverse actions.” (citations omitted)). Nichols’s amended complaint also alleges that the USDA held herand other AfricanAmerican employees to a “no-to lerance” standard not applicable to other employees and that “non-African-American” employees were provided “with relief and multiple career8 opportunities” not available to Afr ican-American employees. Dkt. 23 at 5, 9 (Am. Compl. ¶¶ 18, 33). In considering the similar al legations contained in Nicho ls’s original complaint, the Court concluded that it was “unable to identify any allegation that [ Nichols] was denied any specific ‘career opportunity’ be cause of her race, sex, or age,” or that she suffered any other adverse
consequence. Nichols I , 2015 WL 9581799, at *10 (emphasis added). The same holds tru e for Nichols’s amended complaint. T he amended complaint does not id entify any specific adverse action that was taken against N ichols based on this “no-toleran ce” standard, and it does not identify any specific career opportunity that others were given and that she was denied because of her race, sex or age. She does not allege, for example, tha t other employees received specific promotions, raises or any other benefits that she was denied. It is not asking too much, for example, to require that a Title VII plaintiff identify the “mu ltiple career opport unities” that were provided to “non-African- Ameri can” employees, but that she cla ims were denied to her based on her race. Dkt. 23 at 9 (Am. Compl. ¶ 33). As the Supreme C ourt has explained, a court need not accept as true any “‘legal conclusion couched as a factual allegation,’” “‘naked assertions’ devoid of ‘further factual enhancement,’” or a “‘formulaic reci tation of the elements of a cause of action.’” Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 555, 557) (alteration omitted). Here, Nichols did not previously a llege, and she does not now a llege, any facts to support her otherwise “naked assertions ” of disparate treatment. The factual allegations that Nic hols raises for the first time in her amended complaint fare no better. She alleges, for examp le, that she received “harsh and destructive cr iticism” from a “supervisor of the opposite gender ” and was “regularly criticiz ed” by other employees. Dkt. 23 at 5, 7 (Am. Compl. ¶ 17, 27). But “ [c]riticism of an employee ’s performance unaccompanied by a change in position or status does not constitute adverse e mployment action.” Brodetski v.9 Duffey , 141 F. Supp. 2d 35, 47 (D.D.C. 2001); see also Glenn v. Williams , 98-cv-1278, 2006 WL 401816, at *24 (Feb. 21, 2006 D.D.C.) (“[ A]n employer’s critici sm of an employee’s work does not generate a tangible employ ment action.”). And Nichols’s cl aim that the USDA rewarded “its non-African-American employees who worked and conducted themsel ves outside agency policies” with “monetary awards and special recognition,” Dkt. 23 at 10 (Am. Compl. ¶ 36), is, once again, too vague and conclu sory to state a claim. In supp ort of this allega tion, Nichols cites to a portion of her administrative complaint in which she asser ts that a USDA supervisor applied a “no tolerance policy” to Nichol s, but did not “demonstrate th e same hostile demeanor towards the Caucasian female Teresa L orenzano,” who, according to Nicho ls, “neglected [her] extensive caseload” yet received “special recognition awards and multiple career opportunities.” Dkt. 1 at 14 (cited at Dkt. 23 at 10 (Am. C ompl. ¶ 36)). But, Nichols ne ver alleges that she was denied a “monetary award” based on her ra ce (or sex or age). Rather, he r point seems to be that she was required to meet a particularl y demanding standard and that Lor enzano was not held to this same standard. For the reasons expl ained above and in the Court’s p rior opinion, however, that is not enough to state a claim. To be sure, Nichols does allege in her amended complaint that, had the USDA provided her with “relief and career opportunities,” she “would have bee n allowed to work longer and possibly [would] have received one or two more step increases b etween 2011–2015,” which, in turn, would have led to “higher m onthly retirement benefits.” Id. at 9–10 (Am. Compl. ¶¶ 34– 35). But the losses that Nic hols allegedly sustained after retiring from federal service on December 31, 2010, see Dkt. 28-1 at 2 (Carlson Decl. ¶ 5), cannot supply the required “adverse employment action” necessary to s tate a disparate treatment or hostile work environment claim. Rather, those losses would, at most, support Nichols’s distinct claim, discussed below, that she10 was constructively discharged. A bsent such a claim, however, a ny losses that she allegedly suffered after retiring have no bearing on the ade quacy of her amended compla int. 4
Mindful that “ pro se pleadings should be liberally construed,” Nichols I , 2015 WL 9581799, at *1 (quotation marks omitted), and affording Nichols “the benefit of all inferences that can be derived fro m the facts alleged,” Am. Nat’l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quotation marks omitted), the Court nonethele ss concludes that Nichols has failed to plead one essential elem ent of a disparate treatment claim under Title VII or the ADEA—that is, an adverse employme nt action that affected the te rms, conditions, or privileges of her employment or future employment. Nichols’s amended comp laint does not “state a claim to relief that is plausible on its face,” Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 570), and, accordingly, the Court will dismiss her disparate treatmen t claims. 5
2. Hostile Work Environment The Court’s earlier decision also concluded that Nichols failed to state a hostile work environment claim. Nichols I, 2015 WL 9581799, at *12–13. Nichols’s original allegations f ell into two categories. The first group of allegations—including the allegations that she was the victim of “[u]nspecified claims of ‘harassment,’ ‘inappropriate behavior,’ and ‘unsuitable’

4 To the extent Nichols attemp ts to bolster her disparate treatment claims by detailing allegedly discriminatory actions taken by the USDA against other African-American and/or female employees, see Dkt. 23 at 6–9 (Am. Compl . ¶¶ 21–22, 25–27, 30–33), her attemptfails. Disparate treatment claims under Title VII do not permit an emp loyee to recover based on alleged discrimination against oth er employees. This “suit is not a class action,” and thus “evidence of systematic or general instances of discrimination can only be collateral to evidence of specific discrimination again st the actual plaintiff.” Williams v. Boorstin , 663 F.2d 109, 115 n.38 (D.C. Cir. 1980).

5 Because it determines that Nichols fails to allege an adverse action, the Court need not consider the USDA’s ar gument that Nichols’ s amended complaint “ fails to show the requisite causal link between any allegedly a dverse action and [her] race , sex, or age.” Dkt. 37 at 18.11 conditions”— lacked “sufficient f actual specificity” and “const itute[d] . . . ‘legal conclusions’ or ‘conclusory statements,’ which [ did] not suffice to state a cla im.” Id. at *12 (quoting Iqbal , 556 U.S. at 678). And, the second group of allegations—including N ichols’s contentions that she was not allowed to send email me ssages, was required to write o ut her questions, and was criticized—did not describe the type of “severe o r pervasive” h arassment sufficient to “create an abusive working environment.” Id. at *12 (quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993)). Again, Nichols’s amende d complaint fails to remedy th ese flaws. “The bar for demonstrating a hos tile work environment [under Ti tle VII and the ADEA] is a high one: ‘[A] plai ntiff must show that his employer subje cted him to discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and cre ate an abusive working environme nt.’” Achagzai v. Broad. Bd. of Govs. , 170 F. Supp. 3d 164, 183 (D.D.C. 2016) (quoting Baloch v. Kempthorne , 550 F.3d 1191, 1201 (D.C. Cir. 2008)). “To determine whether a hostile work environment exists, the court looks to the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interf eres with an employee’s work performance.” Baloch , 550 F.3d at 1201. Under this demanding standard, Title VII and the ADEA do not function as “general c ivility code[s]” that regulat e the “ordinary tribulations of the workplace,” Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998) (quotation marks omitted), and “[e]ven a few isolated incidents of offensive con duct do not amount to actionable harassment,” Stewart v. Evans , 275 F.3d 1126, 1134 (D.C. Cir. 2002). Rathe r, the complained -of “conduct must be extreme” and mu st be “both obj ectively and sub jectively offensive,” such “that a reasonable person would find [ the conduct] hostile or abusive , and . . . that the victim in fact did perceive [the conduct] to be so.” Faragher , 524 U.S. 787–88.12 Nichols’s amended complaint exp ands on the hostile work allegat ions asserted in her first complaint, compare Dkt. 1 at 3–4 (Compl. ¶¶ 8–9, 11–13) with Dkt. 23 at 4–9 (Am. Compl. ¶¶ 14, 17, 19–21, 27–29, 31, 32), but it still fails in two res pects. First, as with her original complaint, she includes numer ous allegations of harassment or abuse that are too conclusory to state a claim. She alleges, for example, that her supervisors and one co-worker exchanged emails “containing false information and accusing Nichols of do ing and saying things that she did not say or do.” Dkt. 23 at 4 (Am. Compl. ¶ 13). She alleg es that she was the victim of “recurring incidents of harassm ent, hostility, an d retaliation, ” that her work was “sabotaged,” and that her supervisors did n ot respond to her concerns. Id . (Am. Compl. ¶ 14). And she alleges that she was subjected to “hara ssment and other undesirable act ivities,” including “harsh and destructive criticism,” “‘atro cious behavior [that] inflicted i ndignity of [an] indescribable nature,’” and “aggressive” a nd “inappropriat e” conduct by a sup ervisor. Id . at 5–6 (Am. Compl. ¶¶ 17, 19–21). None of those alle gations, however, provide the type of factual c ontent required to state a claim. See Iqbal , 556 U.S. at 678 (explaining that “ conclusory statements” and “legal conclusions” do “not suffice” to state a claim). Second, Nichols’s allegations tha t do provide factual content a gain fail to allege conditions that are so “severe o r pervasive” that they “alter[e d] the conditions of [Nichols’s] employment,” Nichols I , 2015 WL 9581799, at *12 (quoting Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 67 (1986)), and, indeed, la rgely repeat the factua l allegations the Court held to be insufficient in its first decisi on. Nichols’s allegations that she was not permitted to send email messages, for example, “[a]lthough cumbersome and potentially e mbarrassing,” is “not so extreme” that it “meet[s] the ‘d emanding standard’ for alleging a hostile work environment claim.” Id. (quoting Smith v. De Novo Legal, LLC , 905 F. Supp. 2d. 99, 102 (D.D.C. 2012)).13 Similarly, her allegation that she was “approached . . . practi cally every[ ]day” by her supervisors and asked “to stop processing the case she was working on” in o rder to “retrieve and beg[i]n processing other cases,” Dkt . 23 at 3 (Am. Compl. ¶ 10), does n ot represent the sort of “hostile or abusive” conduct that a reasona ble person would find “objective ly . . . offensive,” Faragher , 524
U.S. at 787. Nichols’s amended complaint does hint at the possibility that h er workplace was infected with racial animus, but she offers little factual support for t hat allegation. She alleges that, “[w]hen [she] kept complaini ng to her supervisor about the . . . Caucasian female[’s] . . . racist remarks and regular harassment, [ Nichols] was told[,] ‘Just ign ore her. That’s just the way she is. Her spouse is military.’” Dkt. 23 at 7 (Am. Compl. ¶ 28) . Although the amended complaint is not entirely clear, it appears that these “racist remarks” i nvolved the following exchange, which is recounted in the next paragraph of the amended complai nt: The “same Caucasian female supervisor who regularl y harassed [Nichols], yelled at N ichols saying[,] ‘Don’t you ever ask those two students [part-tim e stay-in-school non-African-Am erican females] to photocopy. You ask those other employees [permanent, full-time and ‘jump-s tart’ African-American females and one male with years of govern ment service] to photocopy.” Id. at 8 (Am. Compl. ¶ 29) (alterations in original). Even drawing all infere nces in Nichols’s fa vor—as the Court is required to do on a motion for judgment on the pleading s—these allegations are not sufficient to sustain a hostile work environment claim. As the Supreme Court has explained, th e “mere utterance of an epithet which engenders offensive f eelings in an employee . . . does no t sufficiently affect the conditions of employment to implicate Title VII.” Harris , 510 U.S. at 21 (quotation marks and alteration omitted); see also Slate v. Public Defender Serv. for D.C. , 31 F. Supp. 3d 277, 296 (D.D.C.14 2014) (explaining that “the D.C. C ircuit has repeatedly emphasi zed that casual or isolated manifestations of a discriminato ry environment, such as a few e thnic or racial slurs” do not necessarily give rise to a hosti le work environment claim) (quo tation marks omitted). Accordingly, without more, the C ourt cannot conclude that these allegations provide “sufficient factual material” to clear the high bar necessary to state a ho stile work environment claim under Title VII. Iqbal , 556 U.S. at 678.
3. Constructive Discharge Finally, Nichols’s amended complai nt includes allegations that can be construed as a claim for constructive discharg e. Nichols claims that “differe nt supervisors . . . regularly suggest[ed]” that she “consid er retiring,” Dkt. 23 at 5 (Am. Co mpl. ¶ 15); that the conditions described in the amended complai nt left her with “no other reco urse [but] to . . . retire . . . five years prior to her anticipa ted [retirement] date,” id. at 9 (Am. Compl. ¶ 34) ; and that, had she received the “same or similar re lief and career opportunities a s those regularly provided to [the USDA’s] non-African-American[] [employees], [she] would have be en allowed to work longer and [would have] possibly receive d one or two more step increas es between 2011–2015,” which would have resulted in “higher m onthly retirement annuity benef its,” id. at 10 (Am. Compl. ¶ 35). As the Supreme Court ha s explained, however, to state aclaim for constructive discharge, a plaintiff must make a showi ng “[b]eyond” that necessary to “e stablish [a] hostile work environment” claim, and, in particular, must “show[] . . . that the abusive working environment became so intolerable that her resignation qualified as a fitti ng response.” Penn. State Police v.
Suders , 542 U.S. 129, 133–34 (2004). Because a hostile work environm ent claim is, accordingly, a predicate for a constructive discharge claim, id. , and because, as explained above, Nichols has failed to allege a hos tile work environment claim, her constructive discharge claim15 necessarily fails, see, e.g. , McKeithan v. Boarman , No. 11-5247, 2012 WL 1450565, at *1 (D.C. Cir. Apr. 12, 2012) (per curiam) (m em.) (explaining that the “d istrict court correctly determined [that] [plaintiff] failed to stat e a claim of constructive disc harge, because he failed to make out an underlying predicate claim of hostile work environment”).
B. Leave to Amend Because the Court grants the USDA’s Rule 12(c) motion to dismis s Nichols’s amended complaint, the Court must decide whether to afford Nichols a th ird opportunity to s tate a claim. Although Federal Rule of Civil Proc edure 15(a)(2) instructs cou rts to “freely” grant a plaintiff leave to amend “when justice so requires,” when “deciding wheth er to allow a party to amend a complaint, . . . courts may consider . . . ‘repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment,’” Abulhawa v. U.S. Dep’t of the Treasury , 15-cv-2186, 2017 WL 883609, at *4 ( D.D.C. Mar. 4, 2017) (quotin g Foman v. Davis , 371 U.S. 178, 182 (1962)). Here, the Court has already permitted Nichol s to amend her complaint, and, as explained above, her amended pl eading does not cure—and, in fac t, scarcely addresses—the shortcomings noted in the Court’ s prior opinion. The present o pinion, moreover, does not turn on any legal principle or omission i n Nichols’s pleadings that was not apparent from the Court’s earlier opinion. Under these circ umstances, the Court conclude s that the ends of justice would not be served by simply repeating a process that has already fa iled to cure precisely the same deficiencies. See Nichols v. Holder , 938 F. Supp. 2d 97, 103 (D.D.C. 2013) (dismissing, in a different action, Nichols’s ame nded complaint because, after “e njoy[ing] numerous opportunities to present her claims,” she had f ailed to rectify the deficienc ies identified by the court).16 CONCLUSION For these reasons, the Court concludes that Nichols’s amended c omplaint fails to state a claim for race, sex, or age discrimination. 6 Accordingly, the Court will DENY the USDA’s motion for partial summary judgment, will GRANT its motion for judgment on the pleadings, and will DISMISS Nichols’s amended complaint with prejudice. A separate order will issue. /s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: March 24, 2017

6 To the extent Nichols’s amende d complaint seeks to reassert a ny claims relating to the processing of her admini strative complaint, see Dkt. 23 at 10–11 (Am. Compl. ¶¶ 38–40), those claims fail for the same reason the Court noted in its earlier decision: The “USDA’s alleged failure to follow the EEOC regulat ions regarding the administra tive processing of [Nichols’s] claim is not actionable [because,] [a]s the D.C. Circuit has explained, there is ‘no cause of action . . . for challenges to [administ rative] processing of [an empl oyment discrimination] claim .’ . . . [T]he remedy available to the pl aintiff is to file suit against her employer in federal court,” Nichols I , 2015 WL 9581799, at *13 (quoting Smith v. Casellas , 119 F.3d 33, 34 (D.C. Cir. 1997) (per curiam)).