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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KIMBERLY A. ESTERS,

Plaintiff,

v. Civil Action No. 1:18-cv-02547 (CJN)

KIRSTJEN M. NIELSEN, Secretary of the 

U.S. Department of Homeland Security

Defendant.

MEMORANDUM OPINION

Kimberly Esters was a Management and Program Analyst (“MAPA”) employed by the 

Department of Homeland Security. Compl. ¶¶ 21–22, ECF No. 1. After a series of disputes with 

her supervisor, she sued DHS for discrimination, retaliation, and a hostile work environment under 

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), and 

the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a). See generally Compl. 

Following discovery, DHS moved for summary judgment. See generally Def.’s Mot. for Summ. 

J. (“Mot.”), ECF No. 18. For the following reasons, the Court grants summary judgment for DHS 

on all of Plaintiff’s claims.

I. Background

Esters’s work troubles began during her time as an employee in DHS’s Office of Cyber 

and Infrastructure Analysis (“OCIA”). Compl. ¶ 21. In March 2013, Esters submitted a request 

to telework in order to care for her sick mother. Id. ¶ 27. Her first-line supervisor, Rick Bosarge, 

granted her initial request. Id. But Bosarge later spoke with his supervisor, Tommy Brown, who 

informed Bosarge that OCIA policy did not permit employees to telework in order to care for 
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dependents. Id. ¶¶ 28–29. Following his conversation with Brown, Bosarge denied Esters’s

request to continue teleworking. Pl.’s Resp. to Def.’s Statement of Material Facts (“Pl.’s SOMF”)

¶¶ 9, 12, 27, ECF No. 19-1. While Esters acknowledges that OCIA’s formal policy did not permit 

dependent care,1she asserts that OCIA actually practiced an informal policy in which telework 

approval was left to the manager’s discretion. Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”) at 11–

12, ECF No. 19. In particular, Esters alleges that two other employees were permitted to telework 

while caring for dependents, the first while on maternity leave, id., and the second to care for his 

wife after surgery, id. at 11.

Later that year, Esters met with Brown and a second employee for her mid-year review, 

where she was informed that she was on track to receive a score of 3.6 to 3.7 for her upcoming 

performance evaluation. Pl.’s Opp’n at 12–13; Compl. ¶ 34. Her ultimate score, however, was

3.1. Compl. ¶ 31. Esters alleges that she requested a meeting with Brown to discuss her lowerthan-expected score but Brown refused to meet with her. Id. ¶ 36. Thereafter, Esters sent an email 

“up the chain of command” detailing her concerns regarding her performance evaluation. Id. ¶ 37. 

After learning that Esters had sent her email, Brown said to Esters “I thought we talked about how 

you need to handle matters with your performance evaluation. I told you how you could work on 

communication skills with Rick.” Id. ¶ 40.

Esters asserts that Brown became increasingly “negative and harassing” toward her in the 

following months. Compl. ¶ 43. She identifies at least five encounters with Brown during which 

he demonstrated hostile behavior. In February 2014, Brown spoke harshly to Esters in the presence 

of other DHS employees. Id. ¶ 44. In May 2014, Brown approached Esters on three separate 

 

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In 2012, Esters signed a telework agreement that permitted her to request situational telework as needed. Pl.’s SOMF 

¶ 7.
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occasions, the first time to yell at her regarding a “one-pager” missing from his notebook, id. ¶ 45; 

the second time to yell at her about hiding information from his executive assistants, staying in her 

cubicle, and not processing his travel expense report, id. ¶¶ 51–52; and the third time to confront 

her about his travel voucher in what Esters describes as a “hostile and badgering tone,” id. ¶ 53. 

Esters also alleges that Brown tried to embarrass her on other occasions by raising his voice and 

asking her questions that she wouldn’t be able to answer as a new contracting officer 

representative. Id. ¶ 57. Finally, Esters asserts that Brown made clear that she would never be 

promoted. Id. ¶ 59.

In June 2014, Esters filed an informal EEO complaint. Compl. ¶ 58. She alleges that, over 

the next several months, her supervisors retaliated against her for her protected EEO activity and 

continued to discriminate against her by failing to promote her despite performing duties 

performed by individuals with higher GS levels, denying her the opportunity to compete for a

position, and failing to select her for two MAPA positions. In particular, she alleges that Brown 

attempted to intimidate her by asking if she was “‘being prevented from filing an EEO’ complaint,” 

id. ¶ 74, and telling her that he had heard she was “having problems,” id.; that Brown initiated a 

gap analysis to promote another analyst from a GS-11 to a GS-12 but no such gap analysis was 

requested for her (she was a GS-9 at the time), id. ¶¶ 71–72; Pl.’s Opp’n 13–14; that during the 

relevant period, she performed some of the same duties as another employee who was working as 

a GS-13, Pl’s Opp’n at 14; that after she left her position, her replacement was hired as a GS-12, 

Compl. ¶ 73; that DHS did not consider her for a GS-11 MAPA position that it filled, id. ¶¶ 60–

61; Pl.’s SOMF ¶ 52; and that she was not selected for two management positions for which she 

applied, Pl.’s Opp’n at 14–15.
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On a final note, Esters contends that she was required to work without a position description 

and perform duties outside of her job classification. Compl. ¶ 41. At her deposition, Esters

clarified that Brown did sign a position description for her position in 2011, Mot. Ex. 7 at 71–76,

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ECF No. 18-11, and that her claim is actually that she was assigned human capital tasks that were 

not her responsibility, id.

II. Legal Standard

Absent evidence of direct discrimination, disparate-treatment claims are subject to the 

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493–94 (D.C. Cir. 2008); Jones v. Bernanke,

557 F.3d 670, 677 (D.C. Cir. 2009). A plaintiff establishes a prima facie discrimination claim by 

alleging that “(1) she is a member of a protected class; (2) she suffered an adverse employment 

action; and (3) the unfavorable action gives rise to an inference of discrimination.” Czekalski v. 

Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (quoting George v. Leavitt, 407 F.3d 405, 412 (D.C. 

Cir. 2005)). For a retaliation claim, a plaintiff must allege that (1) she engaged in protected 

activity, (2) she was subjected to an adverse employment action, and (3) there was a causal link 

between the protected activity and the adverse action. Hamilton v. Geithner, 666 F.3d 1344, 1357 

(D.C. Cir. 2012) (quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007)).

Once a plaintiff establishes a prima facie claim,3the burden shifts to the employer to 

articulate some legitimate, non-discriminatory or non-retaliatory reason on which it relied in taking 

the complained-of action. Jones, 557 F.3d at 677. This burden is “merely one of production” in 

 

2 This Exhibit contains Esters’s deposition transcript and includes pagination for the Exhibit itself as well as page 

numbers provided within the transcripts. The Court cites to the transcript page numbers.

3 The Supreme Court recently held in Babb v. Wilkie, 140 S. Ct. 1168 (2020), that a plaintiff bringing an ADEA claim 

is only required to show that age discrimination was a but-for cause of the differential treatment; the plaintiff does not 

necessarily need to show that age discrimination was a but-for cause of the personnel decision itself. See also Kline 

v. Weichert, 2020 WL 2615528, at *4 (D.D.C. May 23, 2020).
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which an employer must produce evidence “sufficient for the trier of fact to conclude” that the 

action was taken for the provided reason. Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 854 

(D.C. Cir. 2006). An employer’s explanation for the challenged action must be “clear and 

reasonably specific.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981). “This 

obligation arises both from the necessity of rebutting the inference of discrimination arising from 

the prima facie case and from the requirement that the plaintiff be afforded ‘a full and fair 

opportunity’ to demonstrate pretext.” Id.; see also Oates v. District of Columbia, 824 F.2d 87, 91 

(D.C. Cir. 1987). But this intermediate burden does not require the employer to introduce evidence 

that, absent any evidence of pretext, would persuade the trier of fact that the employment action 

was lawful. Burdine, 450 U.S. at 257; see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 

(D.C. Cir. 1998) (en banc) (employer not required to support reasons with objective evidence 

sufficient to satisfy preponderance of the evidence standard; at all times the plaintiff retains 

ultimate burden of persuasion).

When the employer proffers a sufficiently clear and specific reason, the “central question” 

at summary judgment becomes whether “the employee produced sufficient evidence for a 

reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual 

reason and that the employer intentionally discriminated against the employee on the basis of race, 

color, religion, sex, [age,] or national origin[.]” Brady, 520 F.3d at 494 (citing St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 507–08, 511 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 

U.S. 711, 714–16 (1983)); Bilal-Edwards v. United Planning Org., 15 F. Supp. 3d 1, 11–12 

(D.D.C. 2013) (similar analysis for ADEA claim). The plaintiff may make this showing “either 

directly by persuading the court that a discriminatory reason more likely motivated the employer 

or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” 
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Burdine, 450 U.S. at 256. Either way, the plaintiff is required to show “both that the reason was 

false, and that discrimination was the real reason.” Hicks, 509 U.S. at 515.

Whether evidence proffered to show pretext is sufficient to raise an inference of unlawful 

discrimination or retaliation is a fact-sensitive inquiry. See Aka, 156 F.3d at 1294 (“[I]t is difficult, 

if not impossible, to say in any concise or generic way under what precise circumstances such an 

inference will be inappropriate.”). The Court of Appeals has identified several factors that may 

support an inference of pretext, including the employer’s (1) preferential treatment of similarly 

situated employees outside the plaintiff’s protected group; (2) inconsistent or dishonest 

explanations; (3) deviation from established procedures or criteria; (4) pattern of poor treatment 

of other employees within the same protected group as the plaintiff; (5) the temporal proximity 

between an employee’s protected activity and the employer’s adverse action; and (6) other relevant 

evidence that a jury could consider to reasonably conclude the employer acted with an illicit 

motive. Walker v. Johnson, 798 F.3d 1085, 1091–92 (D.C. Cir. 2015).

The ultimate question is whether “a reasonable jury could conclude from all of the evidence 

that the adverse employment decision was made for a discriminatory reason.” Mastro, 447 F.3d 

at 855; Holcomb v. Powell, 433 F.3d 889, 896 (D.C. Cir. 2006) (quoting Lathram v. Snow, 336 

F.3d 1085, 1088 (D.C. Cir. 2003)). All of the evidence includes “any combination of (1) evidence 

establishing the plaintiff’s prima facie case; (2) evidence the plaintiff presents to attack the 

employer’s proffered explanation for its actions; and (3) any further evidence of discrimination 

that may be available to the plaintiff, such as independent evidence of discriminatory statements 

or attitudes on the part of the employer.” Mastro, 447 F.3d at 855 (quoting Holcomb, 433 F.3d at 

896).
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III. Analysis

Counts I–III and V of Esters’s Complaint allege discrimination by DHS on the basis of 

race, sex, and age. See generally Compl. Count IV of the Complaint includes a claim for 

retaliation against protected EEO activity. Id.

Esters alleges several adverse employment actions as the bases for her discrimination and 

retaliation claims: (1) denial of her telework request; (2) her 2013 performance evaluation; 

(3) being forced to work without or outside of a position description; (4) failure to promote her to 

a higher GS level; (5) failure to select her for a MAPA position to which she applied in 2014; and 

(6) being subjected to a hostile work environment. Because all of her claims are based in whole 

or in part on some or all of these actions, the Court examines each alleged action in turn. (The 

Parties’ briefs are hardly models of clarity, and the Court has adopted this organization to provide 

some coherence to the issues.)

Telework Denial

Esters alleges that her request to continue teleworking was denied while other employees

were allowed to telework to care for family. Pl.’s Opp’n at 11–12. DHS argues that her request 

was denied because OCIA policy does not permit employees to telework in order to care for 

dependents. Def.’s Mem. Supp. Mot. (“Def.’s Mem.”) at 9, ECF No. 18-2.

It is not apparent that the denial of Esters’s request to continue teleworking constitutes an 

adverse employment action. An adverse employment action is “a significant change in 

employment status, such as hiring, firing, failing to promote, reassignment with significantly 

different responsibilities, or a decision causing significant change in benefits.” Douglas v. 

Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. 

Cir. 2003)). The action must “affect[ ] the terms, conditions, or privileges of employment or future 
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employment opportunities.” Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev., Office of Inspector 

Gen., 867 F.3d 70, 73 (D.C. Cir. 2017). And an employee must experience those consequences

“such that a reasonable trier of fact could find objectively tangible harm.” Douglas, 559 F.3d at

552 (quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002)); see also Taylor, 350 F.3d 

at 1293 (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998)) (defining “adverse 

employment action” as “a significant change in employment status, such as hiring, firing, failing 

to promote, reassignment with significantly different responsibilities, or a decision causing 

significant change in benefits”).

In general, “an employee’s request to work from home on a few occasions, without more, 

does not constitute an adverse employment action under Title VII.” Byrd v. Vilsack, 931 F. Supp. 

2d 27, 41 (D.D.C. 2013); see Beckham v. Nat’l R.R. Passenger Corp., 736 F. Supp. 2d 130, 149 

(D.D.C. 2010) (“Being denied the ability to work from home on, at most, three occasions is a 

minor annoyance, not an adverse action.”). Decisions in this District, however, have distinguished 

between the denial of an initial telework request and the suspension of an existing telework 

arrangement. See Saunders v. Mills, 172 F. Supp. 3d 74, 101 (D.D.C. 2016). It is unclear whether 

this distinction makes sense, but in any event, a reasonable inference here is that DHS denied

Esters’s request to continue teleworking, knowing that she wished to telework so she could care 

for her mother. Pl.’s SOMF ¶ 26; Pl.’s Opp’n at 11–12. It may be that a jury could decide that the 

denial caused her tangible harm.

But Esters must do more than show that she suffered an adverse employment action; the 

action must also be discriminatory, and DHS contends that Esters’s telework request was against

OCIA policy. Def.’s Mem. at 9. To be sure, Bosarge initially approved her two-week telework 

request when he assumed Esters wished to care for her mother, but Bosarge later spoke with his 
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supervisor, was told the request was inconsistent with OCIA policy, and ultimately declined to 

extend Esters’s telework period. Def.’s Reply Supp. Mot. (Def.’s Reply) at 3–4, ECF No. 20.

Following employer policy certainly constitutes a legitimate reason to deny an employee’s 

telework request. And even if Bosarge knew that Esters made the request so she could care for 

her sick mother when he approved the initial request, declining her request to continue teleworking 

after having a conversation with a higher-level supervisor about how the arrangement went against 

OCIA policy does not, without more, cast doubt on DHS’s proffered legitimate reason.

Esters argues, however, that OCIA actually has an informal policy permitting telework for 

dependent care and that it approved such arrangements for two other employees. Pl.’s Opp’n at 

11–12. In order to survive summary judgment on a pretext argument, Esters may show that 

“similarly situated employees” experienced different treatment. Walker v. McCarthy, 170 F. Supp. 

3d 94, 107–08 (D.D.C. 2016). Such evidence gives rise to an inference that the employer treated 

other employees outside the protected class “more favorably in the same factual circumstances,” 

suggesting that Esters was treated less favorably on account of her protected status. Id. (citing 

Brady, 520 F.3d at 495). To raise such an inference, however, the plaintiff must “demonstrate that 

‘all of the relevant aspects of [her] employment situation were nearly identical to those of the other 

employee[s].’” Id. (quoting Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 

2015)).

Similarly situated employees tend to share similar jobs and job duties, deal with the same 

supervisor, and experience similar responses to similar conduct. See Walker, 170 F. Supp. 3d at

108 (quoting Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1116 (D.C. Cir. 2016)). The 

question of whether employees are similarly situated ordinarily presents a question of fact for the 

jury. George, 407 F.3d at 414. At the summary judgment stage, however, where a plaintiff relying 
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on comparator evidence fails to produce “evidence that the comparators were actually similarly 

situated to [her], an inference of falsity or discrimination is not reasonable,” and summary 

judgement is appropriate. Montgomery v. Chao, 546 F.3d 703, 707 (D.C. Cir. 2008) (internal 

quotation marks omitted) (quoting Waterhouse v. District of Columbia, 298 F.3d 989, 995–96 

(D.C. Cir. 2002)).

Esters has failed to demonstrate that either of the other employees mentioned in her brief

qualifies as a similarly situated employee. The first teleworked while on parental leave, Pl.’s 

Opp’n at 11, and was therefore in a much different position than Esters, who was not on parental 

leave and whose request was to telework instead of coming into the office (rather than to telework 

instead of being on leave). As for the second employee, Esters provides absolutely no evidence 

(other than the timing of his telework request) to support her assertion that he teleworked for the 

purpose of caring for a dependent. Id. at 11–12. Her bare assertion that this second employee was 

approved to telework for that reason is, without more, insufficient to demonstrate that they were

similarly situated and therefore does not give rise to an inference of pretext. As Esters has failed 

to show that “a reasonable jury could conclude from all of the evidence that the adverse 

employment decision was made for a discriminatory reason,” see Mastro, 447 F.3d at 855, her 

claims cannot survive summary judgment on the basis of the telework denial.

Performance Evaluation

Esters relies next on receiving a score of 3.1 on her 2013 performance evaluation, despite 

being previously told she would receive a higher score. Pl.’s Opp’n at 12–13. DHS responds that 

Esters’s performance evaluation cannot qualify as an adverse employment action because no 

awards were given that year due to sequestration and, in the alternative, dissatisfaction with 

Esters’s work is a legitimate reason for the score. Def.’s Mem. at 16–18.
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To qualify as materially adverse, a performance evaluation must “affect the employee’s 

‘position, grade level, salary, or promotion opportunities.’” Taylor v. Solis, 571 F.3d 1313, 1321 

(D.C. Cir. 2009) (quoting Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008)). 

Generally, the key factor that qualifies an evaluation as materially adverse is the existence of some 

financial or professional harm that flows directly from the evaluation itself. Roberts v. Scalia, No. 

19-cv-00474, 2020 WL 1892057, at *10 (D.D.C. Apr. 16, 2020); see also Walker, 798 F.3d at

1090, 1095; Moore v. Pritzker, 204 F. Supp. 3d 82, 87–88, 92 (D.D.C. 2016) (finding material 

adversity when employee’s performance evaluation directly determined amount received on her 

year-end bonus).

DHS has proffered evidence that no bonuses were issued to anyone in OCIA in 2013 due 

to the sequestration. Esters has not countered that evidence, nor has she provided any evidence of 

how her performance evaluation otherwise affected her in a materially adverse way. Because she 

has not identified any way in which the performance evaluation affected her “position, grade level, 

salary, or promotion opportunities,” see Taylor, 571 F.3d at 1321, she has failed to demonstrate 

that it qualifies as an adverse employment action.

Position Description

Esters’s claims are also partially based on her contention that she was forced to work 

without a position description and to perform duties outside of her position description. Compl. 

¶¶ 41, 77, 93, 111, 124. But she concedes that a position description was created for her position

in 2011, Pl.’s SOMF ¶ 5; see also Mot. Ex. 5, ECF No. 18-9, and acknowledges that the MAPA 

position description was broad and a sort of “catch-all.” Mot. Ex. 7 at 76. Her claim therefore 

boils down to an assertion that she was asked to perform certain human capital duties that she had 
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not performed in the past and did not initially expect to perform. See Pl.’s SOMF ¶ 53; Mot. Ex. 

7 at 71–76.

But Esters’s claim that she was forced to perform duties that fell outside of her position 

description is unsupported by the record and fails to demonstrate that she was subjected to an 

adverse employment action. Although Esters might have not regularly performed human capital 

tasks, she proffers no evidence that she was actually assigned responsibilities that fell outside the 

MAPA position description. In fact, Esters admitted that another MAPA regularly performed 

human capital work. Mot. Ex. 7 at 75–76. Because Esters cannot show that she was forced to 

work without a position description or outside of her position description, she cannot show that 

she suffered an adverse employment action as a result of her position description and work 

assignments.

Failure to Promote

Esters further asserts that she was not given a temporary promotion during a time in which 

she performed duties shared by other employees of a higher grade. Pl.’s Opp’n at 13. Esters

argues that, during the relevant period, she performed some of the same duties as another employee

(Tequilla Clemons) who was working as a GS-13, id. at 14; that another employee (Snyder) was 

selected for a GS-11 MAPA position in 2014, Compl. ¶¶ 60–61; and that her own replacement was 

hired as a GS-12, id. ¶ 73. DHS responds that Esters never requested a promotion and that, in any 

event, she was not similarly situated to the employees she identifies as comparators. Def.’s Mem. 

at 19.

Summary judgment is appropriate for the temporary-promotion component of Esters’s 

claims because she has failed to demonstrate that she was similarly situated to those employees 

she has proffered as comparators. As to Clemons, Esters asserts only that certain of her job duties 
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overlapped with Clemons’s; Esters does not allege (let alone proffer evidence) that they performed 

identical, or close-to-identical, jobs. Pl.’s SOMF ¶ 50. The comparison to Snyder fares no better;

Snyder was selected for his position under a hiring process designed to non-competitively appoint 

individuals who have a severe disability. Id. ¶ 52.

Failure to Select for MAPA Position

Esters’s claims are also based on DHS’s failure to select her for management positions to 

which she applied in 2014. See generally Compl., Counts I–IV. That November, Esters applied 

to Vacancy Announcement No. FS-1244694-AC15, which announced the availability of up to 

three Management and Program Analysts in various divisions. Pl.’s SOMF ¶ 54; Compl. ¶ 66. 

Applicants were interviewed by a selection panel consisting of Bosarge (Caucasian male); 

Sylvonica Madlock (African-American female); David Sun (Asian male); and Anthony Dattilo 

(Caucasian male). Pl.’s SOMF ¶¶ 55–56. During the interview, each candidate was asked the 

same set of questions to determine his or her suitability for the position. Id. ¶ 57. Esters was not 

selected. Compl. ¶ 70.

Esters alleges the selection panel discriminated against her due to the panelists’ friendships 

with Tommy Brown, but this allegation is unsubstantiated. The record demonstrates that Brown 

“deferred” to Bosarge to constitute the selection panel and make a hiring recommendation, Pl.’s 

SOMF ¶ 70, and Bosarge testified during his deposition that he did not recall Brown speaking with 

any of the panelists about their interview with Esters, id. ¶ 71. Esters has not proffered any 

evidence that Brown influenced the panel’s decision, nor that Brown acted with discriminatory 

intent regarding his adoption of the panel’s recommendation, and her claim is supported by nothing 

other than her own speculation. See Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993) (“[A] mere 
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unsubstantiated allegation . . . creates no ‘genuine issue of fact’ and will not withstand summary

judgment.” (citation omitted)).

Esters also contends that she was better qualified for a management position than the 

selectee, thus establishing an inference of pretext. Pl.’s Opp’n at 14–15. DHS argues that the 

panel did not recommend Esters because the selectee scored higher than her throughout the 

interview. Def.’s Mem. at 12.

“[W]hen an employer says it made a hiring or promotion decision based on the relative 

qualifications of the candidates, a plaintiff can directly challenge that qualifications-based 

explanation only if the plaintiff was ‘significantly better qualified for the job’ than those ultimately 

chosen.” Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008) (emphasis added) 

(quoting Holcomb, 433 F.3d at 897). “In a close case, a reasonable juror would usually assume 

that the employer is more capable of assessing the significance of small differences in the 

qualifications of the candidates, or that the employer simply made a judgment call.” Aka, 156 F.3d 

at 1294. As a result, the “qualifications gap must be great enough to be inherently indicative of 

discrimination.” Adeyemi, 525 F.3d at 1227 (internal quotation marks and citation omitted). Esters

has failed to show that such a gap exists here. She argues that the individual eventually selected 

for the position was not qualified because he did not have a “COR level II” certification that Esters

contends was required for the position. Pl.’s Opp’n at 14. But there is no evidence to support the 

proposition that a COR level II certification was a requirement for the position, Mot. Ex. 26, ECF 

No. 18-30, and Esters herself admitted that such certification could have been acquired after the 

selectee was chosen for the job, Mot. Ex. 7 at 80.

More important, DHS has provided substantial evidence supporting the panel’s 

determination that the selectee had “scored consistently higher” in hisinterview than Esters. Def.’s 
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Mem. at 16. Esters does not contradict any of this evidence, leaving it unrebutted for purposes of 

summary judgment. See Angelex, Ltd. v. United States, 907 F.3d 612, 618 (D.C. Cir. 2018) (citing 

Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007)) (noting that, to survive summary 

judgment, non-moving party must produce evidence allowing reasonable factfinder to return 

verdict in its favor). Esters can establish that she was qualified for the position—a point DHS

agrees with. See, e.g., Def.’s Reply at 11 (“[There is no] dispute that Plaintiff was ‘qualified’ for 

the position, as she was ultimately referred for an interview by the selection panel.”). But she has 

not demonstrated that she was “significantly better qualified for the job,” Adeyemi, 525 F.3d at 

1227 (emphasis added) (internal quotation marks and citation omitted), such that pretext can be 

inferred.

Hostile Work Environment

In addition to the specific actions discussed above, Esters also alleges that DHS fostered a 

hostile work environment. Compl. ¶¶ 122–133. To survive summary judgment on such a claim, 

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

and insult . . . sufficiently severe or pervasive to alter the conditions of [her] 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)). In identifying the actions she alleges constituted abuse, Esters

repeats the behavior underlying her other claims and adds to that list several altercations between 

herself and Brown, as well as an altercation with another employee. Pl.’s Opp’n at 18–19. But 

even if all of those allegations are true, they are not enough to support a hostile work environment

claim.

“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 
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offensiveness, and whether it interferes with an employee’s work performance.” Baloch, 550 F.3d 

at 1201. Sporadic incidents of rude or unprofessional behavior are not enough—severe or 

pervasive means just that. Barbour v. Browner, 181 F.3d 1342, 1348–49 (D.C. Cir. 1999) 

(insulting gesture from a colleague and a supervisor’s intentionally slow response to employee’s 

question were insufficient to support a finding of hostile work environment); see also Hussain v.

Nicholson, 435 F.3d 359 (D.C. Cir. 2006) (denied promotion, lower performance evaluations, 

demotion, and reduced autonomy insufficient); Baloch, 550 F.3d at 1201 (demanding medical 

documentation for all sick leave, threatening suspension, issuing letter of reprimand and 

unsatisfactory performance review, and “profanity-laden yelling” insufficient). When hostile 

work environment allegations survive summary judgment, the abuse is usually quite severe. See,

e.g., Singletary v. District of Columbia, 351 F.3d 519, 528–29 (D.C. Cir. 2003) (failure to promote, 

failure to provide necessary tools, relegation to an unheated and poorly lit storage room for a year 

and a half despite available office space, failure to create a job description and then measuring 

performance against arbitrary standards for six years may be sufficient); Barbour, 181 F.3d at 1348 

(citing Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (repeated sexual assault 

sufficient)).

While the actions here may have been distasteful, Esters cites to no analogous cases to 

support her contention that the conditions she faced were so “extreme [as] to amount to a change 

in the terms and conditions of [her] employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 

788 (1998). The incident in which another employee yelled at Esters was an isolated incident that

management addressed. Pl.’s SOMF ¶¶ 82–84. And although Brown’s conduct may have been 

impolite and embarrassing to Esters, it does not rise to the level necessary to find the existence of 

a hostile work environment. For these reasons, Esters’s hostile work environment claim also fails.
17

IV. Conclusion

Because no reasonable juror could find, based on the present record, that Esters suffered 

discrimination on the basis of her race, sex, or age, nor that she was subjected to a hostile work 

environment or retaliated against for protected EEO activity, the government is entitled to 

summary judgment on all claims. DHS’s Motion for Summary Judgment is therefore GRANTED. 

An Order will be entered contemporaneously with this Memorandum Opinion.

DATE: February 24, 2021

CARL J. NICHOLS

United States District Judge