1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

GAYLE D. BROWN, 

Plaintiff, 

v. 

DENIS R. MCDONOUGH, in his official 

capacity as Secretary of Veterans Affairs, 

 

Defendant. 

Civil Action No. 14-1457 (JMC) 

MEMORANDUM OPINION1

Gayle Brown, an employee of the Department of Veterans Affairs (VA), has made multiple 

claims of discrimination against her employer under Title VII, the Americans with Disabilities Act

(ADA), the Rehabilitation Act, the Age Discrimination in Employment Act (ADEA),

2

 and the 

Notification of Federal Employees Antidiscrimination and Retaliation Act (No Fear Act). 

Defendant filed a Motion to Dismiss most of Ms. Brown’s claims, ECF 21,3 and later filed a 

Motion for Judgment on the Pleadings as to the rest, ECF 57. The Court grants Defendant’s 

motions to dismiss all Ms. Brown’s claims except for one—that Defendant intentionally 

1 Unless otherwise indicated, the formatting of quoted materials has been modified throughout this opinion, for 

example, by omitting internal quotation marks and citations, and by incorporating emphases, changes to capitalization, 

and other bracketed alterations therein. All pincites to documents filed on the docket are to the automatically generated 

ECF Page ID number that appears at the top of each page.

2 Ms. Brown does not cite to the ADEA in her Amended Complaint, but instead appears to advance an age 

discrimination claim under Title VII. See generally ECF 15. Because the ADEA is the proper vehicle for such a claim, 

the Court construes the Complaint to include a claim under that statute.

3 Defendant also moved, “in the alternative,” for summary judgment as to some of Ms. Brown’s claims. ECF 21 at 1.

The Court declines to treat the motion as a motion for summary judgment, and therefore considers only the allegations 

included in (or incorporated by) the Amended Complaint. See López Bello v. Smith, No. 21-cv-1727 (RBW), 2022 

WL 17830226, at *4 (D.D.C. Dec. 21, 2022) (citing Ruffin v. Gray, 443 F. App’x 562, 563 (D.C. Cir. 2011)). 
2

discriminated against Ms. Brown on the basis of age and sex when it allegedly reassigned her fleet 

management duties to a younger, male analyst in May 2014.

I. BACKGROUND

Ms. Brown, who is an African-American woman and who was more than forty years old 

during the events that are relevant to this case, filed four Equal Employment Opportunity (EEO)

complaints between 2009 and 2014 alleging discrimination. Those complaints, which form the 

basis for this action, are incorporated into her Amended Complaint by reference. See generally

ECF 15. The Court will begin by summarizing the allegations in each of Ms. Brown’s EEO 

complaints, along with their procedural histories.

A. First EEO Complaint

Ms. Brown, a long-time employee at the VA, filed her first EEO complaint in August 2009.

ECF 21-1 at 7 (EEO Complaint). In that complaint, she alleged that she was discriminated against 

on the basis of race, gender, and age when she was not selected for the position of Supervisory 

Program Analyst, for which she interviewed in March 2009. Id. at 7, 9, 11. Ms. Brown alleged that 

her management experience far outweighed that of the white male employee who was selected, id.

at 9–10, and that the stated rationale for the decision to hire that candidate (that he “had a vision”) 

was transparently pretextual, id. at 11. Ms. Brown’s claim was denied by the VA, and she 

petitioned the EEOC for a hearing. Id. at 12 (EEOC Decision). 

An EEOC administrative judge ruled that, though Ms. Brown was qualified for the 

position, she had failed to “establish that she was subjected to discrimination on the bases of race, 

sex or age.” Id. at 12. On October 19, 2011, the EEOC issued an order informing Ms. Brown that 

she had the right to file a civil action “within ninety (90) calendar days from the date that you 

receive this decision.” Id. at 14. On January 18, 2012, Ms. Brown attempted to file a complaint in 

this Court concerning her nonselection, ECF 1 at 25, together with a letter requesting to proceed 
3

in forma pauperis, id. at 24. Defendant appears to concede that a complaint filed on that day could 

have been found timely, given that there is no record of when Ms. Brown received notice of the 

EEOC decision. See ECF 58 at 25. However, Ms. Brown’s draft complaint was returned to her

unfiled, along with instructions on how to correctly apply to proceed in forma pauperis. ECF 1 at 

23. Ms. Brown did not file a new complaint concerning the 2009 nonselection until more than two 

years later, in August 2014. ECF 1.

B. Second EEO Complaint

Ms. Brown filed a second EEO complaint in December 2009, claiming discrimination and 

hostile work environment based on race, sex, age, disability,

4 and reprisal. ECF 21-1 at 15 (EEO 

Complaint). Ms. Brown alleged the following discrete acts of discrimination, which occurred

between May and November 2009: she was denied a reasonable accommodation when three 

requests for advance sick leave were denied; she was given unreasonable work assignments and 

deadlines; she was treated unprofessionally in front of her colleagues and was required to 

affirmatively account for her productivity in ways her coworkers were not; she was twice denied 

overtime and compensatory time; and she was wrongly denied an extension of time to complete a 

training task. See id. at 17, 23. Ms. Brown’s second EEO complaint, like her first, was denied by 

the VA, and she petitioned the EEOC for a hearing. See id. at 21 (Final Agency Decision). That 

request for a hearing was denied by an administrative judge as untimely. See id.

4 In the proceedings adjudicating her second EEO complaint, Ms. Brown represented that her “disability consists of 

injuries to her right hand, wrist, arm and right knee,” sustained when she fell at work in 1998, the symptoms of which 

worsened in January 2009. ECF 21-1 at 24. Later, Ms. Brown would also allege that she was diagnosed with carpal 

tunnel syndrome and lower disc syndrome, which “affect her abilities to perform her duties at work for extended 

periods of time, such as typing, bending, filing and reaching.” Id. at 67.
4

On February 28, 2012—more than a month after Ms. Brown’s would-be complaint based 

on her first EEO complaint was returned to her unfiled, see ECF 1 at 23—the VA issued a Final 

Agency Decision as to her second EEO complaint, concluding that “[t]he weight of the evidence 

shows that the complainant was not discriminated against as alleged.” ECF 21-1 at 39. That

decision instructed Ms. Brown that she had “the right to file a civil action in an appropriate United 

States District Court . . . within 90 days of receipt of this final decision.” Id. at 44. Ms. Brown did 

not file a civil complaint concerning the allegations in her second EEO complaint until August 

2014. ECF 1.

C. Third EEO Complaint

Ms. Brown’s third EEO complaint was filed in December 2010. ECF 21-1 at 46 (EEO 

Complaint). In that complaint, Ms. Brown once again made claims of discrimination and hostile 

work environment based on race, sex, age, disability, and reprisal. Id. at 48. The complaint 

included a new nonselection claim, as Ms. Brown had once again applied for the position of 

Supervisory Program Analyst, only to be passed over in favor of a Black male candidate who Ms. 

Brown alleges was less qualified than her. Id. at 69 (Final Agency Decision). Ms. Brown also 

claimed discrimination based on a lower-than-deserved performance rating she had received in 

2010, id. at 58 (no. 11), and a series of incidents involving a single supervisor from August through

October of 2010, compare id. at 57–58 (nos. 1, 5–10, 12, 13), with ECF 15 ¶¶ 39, 41–46, 48, 49, 

52–54. Those incidents included Ms. Brown being admonished in front of her colleagues, denied 

medical leave on multiple occasions, interrupted during a telephone conversation to be given a 

work-related task, and charged with several hours’ time of AWOL for her disability related 

absences. ECF 21-1 at 57–58. The VA issued a Final Agency Decision denying her claims. ECF 

21-1 at 73 n.1. Ms. Brown’s appeal of that decision was denied on May 22, 2014. Id. at 73, 76. 
5

That denial instructed Ms. Brown that she had ninety days to file a civil action. Id. at 75. Ms. 

Brown filed this case eighty-nine days later, on August 25, 2014. ECF 1.

On the same day as she filed her appeal of the VA’s adverse decision, Ms. Brown also filed 

a petition for Chapter 13 bankruptcy. See ECF 21-1 at 73; Bankr. Petition 12-bk-221 (D.D.C.), 

ECF 1.

5 Ms. Brown’s bankruptcy case is relevant here because at no point during that proceeding

did she disclose her third EEO complaint or the discrimination claims underlying that complaint. 

See generally Bankr. Petition. Ms. Brown did not list her administrative claims as a contingent or 

unliquidated asset in her bankruptcy petition. See Bankr. Petition, ECF 1 at 10. Nor did she list the

claims in her Statement of Financial Affairs, which required her to “[l]ist all suits and 

administrative proceedings to which the debtor is or was a party within one year immediately 

preceding the filing of this bankruptcy case.” See id. at 28. Ms. Brown also failed to disclose her 

discrimination claims later in the bankruptcy proceedings, when she amended her petition to list a

pending workman’s compensation claim as a contingent asset, Bankr. Petition, ECF 27 at 5—a 

step she took after the Trustee moved to dismiss her case for failure to disclose that claim, Bankr. 

Petition, ECF 22. Ms. Brown’s bankruptcy plan was confirmed on June 22, 2012, Bankr. Petition, 

ECF 36, and her debt was discharged on November 24, 2015, Bankr. Petition, ECF 112.

D. Fourth EEO Complaint

On June 27, 2014, Ms. Brown initiated contact with an EEO officer regarding the 

allegations underlying her fourth and final EEO complaint. ECF 58-2 at 7 (Final Agency 

Decision). She subsequently filed a formal EEO complaint alleging discrimination and hostile 

work environment based on sex, age, and reprisal. Id. at 7–8. In her fourth complaint, Ms. Brown

5 Courts in this jurisdiction may take judicial notice of the filings, orders, and dockets of bankruptcy cases. See Giron 

v. Zeytuna, Inc., 597 F. Supp. 3d 29, 38 n.2 (D.D.C. 2022).
6

alleged two (timely) discrete acts of discrimination.

6 The first was her employer’s decision to 

reassign her fleet management duties and responsibilities to a younger, male analyst, whose 

position was subsequently upgraded from GS-11 to GS-13. Id. at 7, 12. The second was a one-day 

suspension Ms. Brown received in April 2015 due to alleged disruptive conduct and failure to 

carry out an order from her supervisor. Id. at 8. In the administrative proceedings adjudicating her

claims, Ms. Brown’s second-line supervisor stated that her suspension was based on the results of 

a “fact-finding inquiry” conducted after Ms. Brown had been involved in two altercations with a 

male co-worker. Id. at 13, 14. 

Ms. Brown’s hostile work environment claim referenced eleven incidents dating back to 

2011. Id. at 8. Those incidents included: “complaints regarding her performance ratings, a delay 

in issuing new performance standards, re-assigning of her mail management duties, being given a 

short turnaround time on work assignments, being told that any employee would be charged with 

AWOL if they were away from their workstations for 15 minutes or more (including going to the 

restroom) and being charged with AWOL.” Id. at 15. As for evidence that those incidents were 

discriminatory, Ms. Brown maintained that “all her supervisors are male and that they hire males 

and generally treat males better than females,” and that “her department has a pattern of hiring 

younger individuals.” Id. at 14. She also alleged that she had applied for other positions in the past 

but was not hired. Id.

6 The agency dismissed a number of Ms. Brown’s discrete discrimination claims on procedural grounds. Ms. Brown’s 

claim involving her 2010 performance rating was dismissed because that claim had already been included in her third 

EEO complaint. ECF 58-2 at 6. The agency also dismissed as untimely several of Ms. Brown’s claims involving 

discrete acts of discrimination that occurred more than 45 days prior to her initial contact with an EEO officer on June 

27, 2014. Id. at 6–7.
7

On August 22, 2017, the VA issued its Final Agency Decision as to Ms. Brown’s fourth 

EEO complaint, concluding that she had not established a discriminatory motive as to either her 

discrete discrimination claims or her hostile work environment claim. Id. at 15, 16. That decision 

informed Ms. Brown that she had ninety days to file a complaint in court. Id. at 17. By that point, 

however, Ms. Brown had already amended her complaint in this case to include some of the

allegations from her fourth complaint. See ECF 15 ¶¶ 65–76. Defendant does not object to those 

allegations on grounds that they were not exhausted when the Amended Complaint was filed, ECF 

58 at 10 n.2, and so the Court will assume those allegations are timely for purposes of this Opinion.

II. LEGAL STANDARDS

A. Motion to Dismiss under Rule 12(b)(6)

“To survive a [Rule 12(b)(6)] 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 U.S. 662, 678 (2009); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In 

evaluating a motion to dismiss under Rule 12(b)(6), a court must “treat the complaint’s factual 

allegations as true, and must grant [the] plaintiff the benefit of all inferences that can be derived 

from the facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000).

That said, a court need not accept “inferences drawn by plaintiffs if such inferences are 

unsupported by the facts set out in the complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. 

Cir. 2002). Nor must a court accept “legal conclusions cast in the form of factual allegations.” Id.

In ruling on a 12(b)(6) motion, a court “may consider [] the facts alleged in the complaint, 

any documents either attached to or incorporated in the complaint[,] and matters of which [the 

court] may take judicial notice,” including records from court and administrative proceedings.

EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Documents 

incorporated into the complaint include “documents upon which the plaintiff’s complaint 
8

necessarily relies even if the document is produced . . . by the defendant in a motion to dismiss.” 

Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011). 

B. Motion for Judgment on the Pleadings under Rules 12(h)(2)(B) and 12(c)

Rule 12(h)(2)(B) provides that a defendant may seek dismissal for failure to state a claim 

upon which relief can be granted after the pleadings are closed through a motion for judgment on 

the pleadings under Rule 12(c). When the Rule 12(c) procedural device is used to seek dismissal 

for a failure to state a claim, “[t]he standard for reviewing a motion for judgment on the pleadings 

is virtually identical to that applied to a motion to dismiss for failure to state a claim under Rule 

12(b)(6).” Jones v. Castro, 168 F. Supp. 3d 169, 177 (D.D.C. 2016); accord Rollins v. Wackenhut 

Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012). Therefore, in considering a motion for judgment 

on the pleadings under rules 12(h)(2)(B) and 12(c), “the Court should accept as true the allegations 

in the opponent’s pleadings and accord the benefit of all reasonable inferences to the non-moving 

party.” Stewart v. Evans, 275 F.3d 1126, 1132 (D.C. Cir. 2002).

C. Exhaustion and timeliness

Under Title VII, the ADA, the Rehabilitation Act, and the ADEA, a plaintiff must timely 

exhaust their administrative remedies before filing suit in court. 42 U.S.C. § 2000e-16(c) (requiring 

exhaustion under Title VII procedures); 42 U.S.C. § 12117(a) (ADA); 29 U.S.C. § 794a(a)(1) 

(Rehabilitation Act); 29 U.S.C. § 626(d) (ADEA). To begin that process, and prior to filing a 

formal written complaint, an employee must “initiate contact” with an EEO counselor about the 

alleged violation within forty-five days of its occurrence. 29 C.F.R. § 1614.105(a)(1); see also 

Woodruff v. Peters, 482 F.3d 521, 527 (D.C. Cir. 2007). 

Once a final administrative decision is received, a plaintiff may file a civil action 

challenging that decision within ninety days. 42 U.S.C. § 2000e-16(c). Although the ninety-day 

filing requirement is applied “strictly,” Ruiz v. Vilsack, 763 F. Supp. 2d 168, 173 (D.D.C. 2011), 
9

it “is not a jurisdictional prerequisite to suit in federal court.” Zipes v. Trans World Airlines, Inc., 

455 U.S. 385, 393 (1982). Rather, it is “a requirement that, like a statute of limitations, is subject 

to waiver, estoppel, and equitable tolling.” Id. Equitable tolling “applies most commonly when the 

plaintiff despite all due diligence . . . is unable to obtain vital information bearing on the existence 

of his claim.” Chung v. Dep’t of Just., 333 F.3d 273, 278 (D.C. Cir. 2003). A party “is entitled to 

equitable tolling only if she shows (1) that she has been pursuing her rights diligently, and (2) that 

some extraordinary circumstance stood in her way and prevented timely filing.” Dyson v. District 

of Columbia, 710 F.3d 415, 421 (D.C. Cir. 2013).

III. ANALYSIS

The Court will consider each of Ms. Brown’s claims in turn. First, the Court dismisses Ms. 

Brown’s claims under the No Fear Act because that statute does not provide a private right of 

action. The Court then turns to the claims that stem from Ms. Brown’s first and second EEO 

complaints, dismissing those claims of discrimination and hostile work environment based on race, 

sex, age, disability, and reprisal (including claims that stem from her first nonselection) because 

they were not timely filed. The Court next considers the claims that stem from Ms. Brown’s third 

EEO complaint, dismissing those claims of discrimination and hostile work environment based on

race, sex, age, disability, and reprisal (including claims that stem from her second nonselection) 

because Ms. Brown is estopped from pursuing any claims arising from her third EEO complaint

due to representations she made during her 2012 bankruptcy case. Finally, the Court considers the 

claims that stem from Ms. Brown’s fourth EEO complaint. The Court dismisses Ms. Brown’s 

retaliation and hostile work environment claims for failure to state a claim. However, the Court 

stops short of dismissing all of Ms. Brown’s claims. Specifically, the Court denies Defendant’s

Motion to Dismiss regarding Ms. Brown’s claim that Defendant intentionally discriminated 
10

against her on the basis of age and sex when it allegedly reassigned her fleet management duties 

to a younger, male analyst in May 2014.

A. Ms. Brown’s claims under the No Fear Act are dismissed because that statute does 

not provide a private right of action.

Ms. Brown pleads a violation of the Notification of Federal Employees Antidiscrimination 

and Retaliation Act, 5 U.S.C. § 2301 et seq., ECF 15 at 1. But “of the few courts that have 

considered claims made under the No Fear Act, none have found that the Act provides a private 

cause of action or creates a substantive right for which the government must pay damages.” 

Beaulieu v. Barr, No. 15-cv-896 (TJK), 2019 WL 5579968, at *6 (D.D.C. Oct. 29, 2019) (quoting

Williams v. Spencer, 883 F. Supp. 2d 165, 182 (D.D.C. 2012)); see also Glaude v. United States, 

248 F. App’x 175, 177 (Fed. Cir. 2007) (unpublished). The Court agrees with those opinions and 

therefore dismisses Ms. Brown’s claims under that statute for failure to state a claim.

B. Ms. Brown’s claims based on her first and second EEO complaints are dismissed as 

untimely.

The Court dismisses Ms. Brown’s claims of discrimination, retaliation, and hostile work 

environment that stem from her first and second EEO complaints (including claims based on her 

first non-selection) because they were not timely filed. Ms. Brown did not successfully file a civil 

complaint until more than two years after the final decisions on her first and second EEO 

complaints. The Court acknowledges that Ms. Brown attempted to file what may have been a 

timely complaint regarding the allegations in her first EEO claim; however, that would-be 

complaint was returned to her unfiled because it did not include a filing fee or a proper application

for in forma pauperis status. If Ms. Brown had resubmitted her complaint with reasonable 

promptness, the Court would likely find that the complaint was timely, and the relevant claims 

decided on the merits. See Adams v. Dep’t of the Navy, No. 17-cv-1618 (RDM), 2020 WL2308581 

at *4 (D.D.C. May 8, 2020) (construing the date when the complaint and in forma pauperis
11

application were filed as the date the complaint was initiated when plaintiff paid the filing fee 

within two weeks). But Ms. Brown tarried more than two-and-a-half years after the return of her 

first complaint before she filed this lawsuit. That is too long. Even if the Court were to accept all 

of Ms. Brown’s factual assertions regarding her failed efforts to file her complaint, she describes

no “extraordinary circumstance” that would come close to supporting a decision to toll that much 

time. Dyson, 710 F.3d at 421. Accordingly, the Court dismisses as untimely all of Ms. Brown’s 

claims stemming from her first and second EEO complaints, including her first nonselection claim.

C. Ms. Brown is estopped from pursuing any claims described by her third EEO

complaint, and those claims are therefore dismissed.

The Court dismisses Ms. Brown’s claims of discrimination, retaliation, and hostile work 

environment that stem from her third EEO complaint because they are estopped. “Judicial estoppel 

prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken 

by the party in a previous proceeding.” Davis v. District of Columbia, 925 F.3d 1240, 1255 (D.C. 

Cir. 2019). “In a bankruptcy petition, a debtor must disclose all potential claims.” Id. “This means 

that a debtor is under a duty both to disclose the existence of pending lawsuits when [she] files a 

petition in bankruptcy and to amend [her] petition if circumstances change during the course of 

the bankruptcy.” Moses v. Howard Univ. Hosp., 606 F.3d 789, 793 (D.C. Cir. 2010). That duty 

“extends to administrative complaints, including those before the EEOC.” Davis, 925 F.3d at 1255. 

Thus, “[i]f a plaintiff-debtor omits a pending (or soon-to-be-filed)” administrative complaint “from 

the bankruptcy schedules and obtains a discharge (or plan confirmation), judicial estoppel bars the 

action.” Robinson v. District of Columbia, 10 F. Supp. 3d 181, 185 (D.D.C. 2014); see also id. at 

190 (dismissing a Title VII claim where plaintiff had failed to disclose pending EEOC complaints 

during bankruptcy proceedings).
12

Ms. Brown did not disclose the existence of her pending discrimination claims at any point 

during the bankruptcy proceedings involving her 2012 petition. See generally Bankr. Petition 12-

bk-221 (D.D.C.). The various documents that are incorporated into Ms. Brown’s Amended 

Complaint further establish that her discrimination claims were “live” at all times during that 

bankruptcy case, either because they were still before the agency, were eligible to file in this Court, 

or had already been filed and constituted a live civil case. In sum, Ms. Brown had a responsibility 

to disclose the existence of those claims to her debtors.

Ms. Brown makes two arguments that her claims should not be estopped. First, she 

represents that she told her lawyer in the bankruptcy case about her pending discrimination claims. 

ECF 63 at 1. But even if the Court accepts that as true, it makes no difference. Ms. Brown signed 

her petition and was therefore ultimately responsible for its content. See Link v. Wabash R. Co., 

370 U.S. 626, 633–34 (1962) (“Petitioner voluntarily chose this attorney as his representative in 

the action, and he cannot now avoid the consequences of the acts or omissions of this freely 

selected agent. Any other notion would be wholly inconsistent with our system of representative 

litigation.”). Second, Ms. Brown argues that her claims should not be estopped because she

disclosed her pending discrimination claims in separate bankruptcy proceedings based on a new 

petition she filed in 2018 (several years after her 2015 discharge). See ECF 65-1 at 2 (Statement 

of Financial Affairs from Bankr. Petition 18-bk-383 (D.D.C.)). But those were entirely different 

proceedings. Ms. Brown’s belated disclosure did nothing to alter the fact that her position in this 

case is inconsistent with the representations she made in the 2012 bankruptcy proceedings, or that

the creditors in those proceedings were not informed of a potential asset prior to the discharge of 

her debts. Accordingly, the Court concludes that Ms. Brown is estopped from pursuing those

claims here, including her second nonselection claim. 
13

D. Ms. Brown successfully states one claim stemming from the charges in her fourth 

EEO complaint—intentional discrimination based on the reassignment of her fleet 

management duties.

Finally, Ms. Brown makes several claims of discrimination and hostile work environment 

because of her age, sex, and reprisal,7 based on the events encompassed by her fourth EEO 

complaint. The Court first considers Ms. Brown’s discrete claims, then her claim for hostile work 

environment. In the end, the Court dismisses Ms. Brown’s retaliation and hostile work 

environment claims, together with the bulk of her discrete discrimination claims. However, the 

Court concludes that Ms. Brown’s claim for intentional discrimination based on the reassignment 

of her fleet management duties to a younger, male analyst in May 2014 can proceed.

1. Discrete claims

The Court dismisses the majority of Ms. Brown’s claims of discrete discrimination on 

procedural grounds. First, the Court finds that Ms. Brown is estopped from pursuing the claim 

based on her 2010 performance rating because that claim was included in her third EEO complaint. 

See ECF 58-2 at 6. Next, the Court agrees with the agency’s decision to dismiss as untimely Ms. 

Brown’s various claims involving discrete acts that occurred more than 45 days prior to her initial 

contact with an EEO officer on June 27, 2014. See id. at 6–7; 29 C.F.R. § 1614.105(a)(1). Third, 

the Court notes that Ms. Brown’s Amended Complaint appears to make two allegations that were 

not considered at the administrative level. The first is that Ms. Brown applied and was wrongly 

rejected for the position of Supervisory Program Analyst for a third time in August 2013. See ECF 

15 ¶ 13. The second is that all her personal belongings were removed from her office while she 

was on furlough in late 2013. See id. at ¶¶ 67–68. Those claims were not exhausted at the 

administrative level and are therefore dismissed. See 42 U.S.C. § 2000e-16(c) (Title VII); 29 

7 Ms. Brown’s fourth EEO complaint does not allege discrimination because of her race or disability.
14

U.S.C. § 626(d) (ADEA). Moreover, the date Ms. Brown became aware that her belongings were 

removed from her office, in January 2014, was more than 45 days before Ms. Brown initiated 

contact with an EEO officer in June 2014, and therefore would not be timely exhausted in any 

event. See 29 C.F.R. § 1614.105(a)(1). Finally, the Court observes that Ms. Brown makes no 

allegations in her Amended Complaint regarding her one-day suspension, and therefore assumes 

that she has abandoned that claim. See generally ECF 15. 

As for Ms. Brown’s claim about the reassignment of her fleet management duties, the Court 

concludes that she has pled sufficient facts to support an inference of intentional discrimination

based on her age and sex. Ms. Brown’s complaint incorporates the allegation that her duties were 

reassigned to a younger, male analyst. See ECF 58-2 at 7 (Final Agency Decision). That allegation, 

combined with the allegation that the VA has a pattern of treating male employees better than 

female employees and hiring younger individuals over older ones, see id. at 14, and many of the 

incidents of alleged age and sex discrimination described by Ms. Brown in her various 

administrative complaints,8 is sufficient to state a claim of intentional discrimination based on age 

and sex—particularly considering Ms. Brown’s pro se status. 

The Court does not find, however, that Ms. Brown has stated a claim for discrimination 

based on retaliation. That is because she makes no allegations to support a causal link—temporal 

or otherwise—between any particular protected activity and the decision of her supervisor-at-thetime to reassign her fleet management duties. Her retaliation claims are dismissed.

8 Although the Court has dismissed Ms. Brown’s claims based on the incidents alleged in her first three EEO 

complaints, see supra, those allegations may still be relevant to show discriminatory animus.
15

2. Hostile work environment

A hostile work environment typically “consists of several individual acts that may not be

actionable on their own but become actionable due to their cumulative effect.” 9 Baird v. Gotbaum, 

792 F.3d 166, 168 (D.C. Cir. 2015). Those acts must be “adequately linked such that they form a 

coherent . . . claim.” Id. For example, the alleged incidents might “involve the same type of 

employment actions, occur relatively frequently, and be perpetrated by the same managers.” Id. 

Because subjecting an employee to a hostile work environment is an ongoing violation, the Court 

may consider incidents that would not be timely if alleged as standalone acts of discrimination, so 

long as they are part of the same pattern of discrimination as at least one incident that falls within 

the statutory time period. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116–17 (2002).

To prevail on a hostile work environment claim, a plaintiff must show that “she was 

subjected to discriminatory intimidation, ridicule, and insult that was sufficiently severe or 

pervasive to alter the conditions of her employment and create an abusive working environment.” 

Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014). That requirement includes both a 

subjective and objective element. In other words, even if an employee subjectively views her

environment as abusive, “[c]onduct that is not severe or pervasive enough to create an objectively 

hostile or abusive work environment—an environment that a reasonable person would find hostile 

or abusive—is beyond Title VII’s purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). 

Under that standard, neither the “ordinary tribulations of the workplace” nor “petty insults, 

vindictive behavior, and angry recriminations” are sufficient. Brooks, 748 F.3d at 1277–78. This 

9 It does not appear that either the Supreme Court or the D.C. Circuit have decided whether a hostile work environment 

claim can be brought under the ADEA. See Shah v. Broad. Bd. of Governors, No. 18-cv-1328 (RDM), 2020 WL 

6342947, at *11 (D.D.C. Oct. 29, 2020). Because Ms. Brown’s hostile work environment claim fails either way, the 

Court assumes (without deciding) that it can.
16

analysis requires the Court to look “at all the circumstances, including the frequency of the 

[alleged] discriminatory conduct; its severity; whether it is physically threatening or humiliating, 

or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work 

performance.” Vickers v. Powell, 493 F.3d 186, 197 (D.C. Cir. 2007). 

Although it is clear from her allegations that Ms. Brown had an acrimonious relationship 

with several of her supervisors—perhaps through no fault of her own—the Court concludes that 

her allegations, even considered in the aggregate, do not constitute a pattern of “discriminatory

intimidation, ridicule, or insult” that would support a hostile work environment claim. Brooks, 748 

F.3d at 1276. Although the Court does not doubt that Ms. Brown felt discriminated against when

her supervisors denied her leave requests, see ECF 15 ¶¶ 31, 45, 49, 58, 61, imposed unreasonable 

deadlines, see id. ¶¶ 25, 32, 71, gave her worse-than-expected performance reviews, see id. ¶¶ 55, 

74, or even admonished her for unfairly perceived lapses in performance, see id. ¶¶ 39, 46, those 

types of “work-related actions by supervisors” do not normally constitute an objectively hostile 

work environment under Title VII (or the ADEA). Munro v. LaHood, 839 F. Supp. 2d 354, 366 

(D.D.C. 2012); see also Harris v. Mayorkas, No. 21-cv-1083 (GMH), 2022 WL 3452316, at *16 

(D.D.C. Aug. 18, 2022). Similarly, the several incidents in which Ms. Brown alleges she was 

treated disrespectfully, sometimes in front of colleagues, see ECF 15 ¶¶ 33, 41, 43, are at most the 

kind of “petty insults, vindictive behavior,” and/or “angry recriminations” that courts have 

routinely held insufficient to sustain a hostile work environment claim. Brooks, 748 F.3d at 1277–

78; see also Dieng v. Am. Insts. for Rsch. in Behav. Scis., 412 F. Supp. 3d 1, 14 (D.D.C. 2019) 

(dismissing hostile work environment claims based on “denial of teleworking,” “yelling at 

[plaintiff] during staff meetings,” “ignoring [plaintiff] at those meetings,” and “constant 

questioning of [plaintiff's] work”); Singh v. U.S. House of Representatives, 300 F. Supp. 2d 48, 
17 

54–57 (D.D.C. 2004) (dismissing hostile work environment claims based on allegations that 

plaintiff’s employer humiliated her at important meetings, screamed at her in one instance, told 

her to “shut up and sit down” in one instance, and was “constantly hostile and hypercritical”). 

In short, the Court concludes that Ms. Brown’s hostile work environment allegations—

which occurred on-and-off over the course of years, at the hands of multiple supervisors—fall 

short of establishing a pattern of conduct that was sufficiently “severe or pervasive to alter the 

conditions of her employment.” Brooks, 748 F.3d at 1276. Though many of Ms. Brown’s 

allegations involving the behavior of her supervisors and coworkers may be probative to establish

a pattern of discrimination, which would in turn be relevant to her disparate treatment claim, they 

do not clear the legal bar to successfully plead a hostile work environment claim. 

IV. CONCLUSION

The Court GRANTS Defendant’s Motion to Dismiss, ECF 21, and Defendant’s Motion for 

Judgment on the Pleadings, ECF 57, as to all Plaintiff’s claims except the claim that Defendant 

intentionally discriminated against her on the basis of age and sex when it reassigned her fleet 

management duties to a younger, male analyst in May 2014. 

SO ORDERED.

DATE: May 25, 2023 

 

 Jia M. Cobb 

 U.S. District Court Judge