UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

_________________________________________ 

 ) 

KIM-NGOC THI NGUYEN, ) 

 ) 

Plaintiff, ) 

 ) 

 v. ) Civil No. 23-cv-01154 (APM)

 ) 

CARLOS DEL TORO, ) 

 ) 

Defendant. ) 

_________________________________________ ) 

ORDER

I. 

Plaintiff Kim-Ngoc Thi Nguyen has been employed by the U.S. Navy for over 18 years. 

Am. Compl., ECF No. 8, ¶ 11 [hereinafter Compl.]. She brings this case against Defendant Carlos 

Del Toro, in his official capacity as Secretary of the U.S. Department of the Navy, alleging claims 

of retaliation, hostile work environment, and discrimination based on sex, race, and national origin

under Title VII of the Civil Rights Act of 1964. 

Before the court is Defendant’s Motion to Dismiss Amended Complaint or, In the 

Alternative, for Summary Judgment. Def.’s Mot. to Dismiss, ECF No. 11 [hereinafter Def.’s 

Mot.]. The court assumes the parties’ knowledge of the facts and allegations, so will reference 

them only as needed to resolve the motion. Applying the relevant principles under Federal Rule 

of Civil Procedure Rule 12(b)(6), the court grants in part and denies in part Defendant’s motion. 

II.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 
2 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 

facially plausible when “the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 

550 U.S. at 556). 

In evaluating a Rule 12(b)(6) motion to dismiss, the court must accept a plaintiff’s factual 

allegations as true and “construe the complaint ‘in favor of the plaintiff, who must be granted the 

benefit of all inferences that can be derived from the facts alleged.’” Hettinga v. United States, 

677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. 

Cir. 1979)); see also Fed. R. Civ. P. 12(b)(6). 

III.

Retaliation. To make out her retaliation claim (Count I), Plaintiff must allege that she was

“engaged in protected activity”; she “was subjected to adverse action by the employer”; and “there 

existed a causal link between the adverse action and the protected activity.” Smith v. Dist. of 

Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005) (quoting Jones v. Wash. Metro. Area Transit Auth., 

205 F.3d 428, 433 (D.C. Cir. 2000)). 

Plaintiff alleges the following adverse actions: (1) a Notice of Proposed Suspension issued 

on September 6, 2018, and (2) a five-day suspension issued on January 4, 2019. Compl. ¶ 66. 

Plaintiff also references a number of other incidents, including (3) a June 29, 2018 meeting 

between her supervisor and colleagues, (4) an August 7, 2018 Memorandum for the Record 

summarizing the June 2018 meeting, and (5) a September 14, 2018 meeting that she was unable 

to attend due to her placement on administrative leave. Compl. ¶¶ 70–78. Defendant asserts that 

the Proposed Suspension, June 2018 Meeting, August 2018 Memorandum, and September 2018 

meeting do not rise to adverse actions. Def.’s Mot. at 6–8. 
3 

The Court agrees as to the two meetings and the memorandum. No reasonable worker 

would be “dissuaded . . . from making or supporting a charge of discrimination” based solely on 

these incidents. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting 

Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). The court, however, disagrees as to 

the Notice of Proposed Suspension because, viewed in the light most favorable to Plaintiff, the 

complaint alleges, based on timing alone, a plausible connection between the proposed suspension 

and Plaintiff’s placement on administrative leave. Compl. at ¶¶ 37–38, 48–50. Such a 

consequence could plausibly dissuade a worker from making further charges of discrimination. 

With respect to the actual suspension, Defendant argues that the complaint fails to plead 

facts establishing a causal link between the discipline and Plaintiff’s prior EEO activity. Def.’s 

Mot. at 9–11. But that position fails to consider that Plaintiff alleges that one of her supervisors,

Mr. O’Toole, set into motion a series of events that led to her suspension. Compl. ¶¶ 70–84. It is 

plausible that he harbored a retaliatory animus that resulted in the final suspension. The “consistent 

sequence of events in a follow-the-bouncing-ball format” is sufficient at this stage to establish the 

requisite causal link, Plaintiff’s Opp’n. to Def.’s Mot., ECF No. 13, at 10 [hereinafter Pl.’s Opp’n.]. 

See Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015) (describing “cat’s-paw” 

discrimination liability).

Hostile Work Environment. To make out a hostile work environment claim (Count II), a 

plaintiff must show that she was subjected “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 v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) 

(internal quotation marks omitted).
4 

Defendant contends that the “employment actions identified by Plaintiff . . . fail to rise to 

the level of severe or pervasive conduct.” Def.’s Mot. at 12. This is a close call, because Plaintiff 

identifies various other discriminatory workplace incidents in addition to the employment actions 

discussed. See Pl.’s Opp’n at 12–13. Although these allegations are less than fulsome as to 

individual discriminators and management’s knowledge of them, drawing all reasonable 

inferences in Plaintiff’s favor, she has made out a plausible hostile work environment claim. The 

court thus denies Defendant’s motion as to this count. 

Discrimination. Plaintiff asserts a claim of discrimination based on her sex, race, and 

national origin (Counts III and IV). She alleges the following adverse actions: (1) the denial of 

pay increases, (2) a letter of reprimand in April 2018 based on allegations in anonymous 

complaints, (3) the Notice of Proposed Suspension, and (4) the actual suspension. Compl. ¶ 107. 

With respect to the denial of pay increases and the letter of reprimand, the court agrees that these 

claims were not administratively exhausted. Def.’s Mot. at 14–18. Plaintiff’s appeal to equity 

does not warrant a different conclusion. See Pl.’s Opp’n at 13–18. 

With respect to the Notice of Proposed Suspension, Defendant argues that it is not an 

actionable adverse employment action. Def.’s Mot. at 18–21. As discussed above, however, there 

is at least a plausible connection between the suspension and the administrative leave to satisfy the 

adversity requirement. Moreover, Defendant asks the court to find that only “personnel actions” 

under the Civil Service Reform Act are actionable under Title VII’s federal sector provision. 

Def.’s Mot. at 19–21. The court does not reach that question here, but notes that Defendant’s own 

proposed definition includes “disciplinary or corrective action.” 5 U.S.C. § 2302(a)(2)(A)(iii). 

Finally, Defendant argues that as to the actual suspension Plaintiff fails to allege facts from 

which to infer that the discipline was related to a protected classification. Def.’s Mot. at 21–24. 
5 

Plaintiff does, however, generally plead disparate treatment based on comparators. Compl. ¶¶ 99–

103, 110–13. It is unrealistic at this stage to expect Plaintiff to identify all particulars to survive a 

motion to dismiss. See Pl.’s Opp’n at 22 (noting the lack of access to detailed information 

regarding comparator evidence). Accordingly, Plaintiff’s disparate treatment claim survives. 

IV.

In conclusion, the court grants in part and denies in part Defendant’s Motion to Dismiss 

Amended Complaint or, In the Alternative, for Summary Judgment, ECF No. 11. Defendant’s 

motion is granted in part as to Count I insofar as Plaintiff bases her retaliation claim on the 

June 2018 Meeting, August 2018 Memorandum, and September 2018 meeting. Defendant’s 

motion is denied as to Count II. Defendant’s motion is granted as to Counts III and IV insofar as 

they rest on the denial of pay increases and the letter of reprimand, as Plaintiff failed to exhaust 

those claims. The remaining aspects of those counts make out plausible claims. 

 

Dated: October 4, 2024 Amit P. Mehta

 United States District Judge