Muldrow v. Garland

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SHANNON MULDROW,

Plaintiff,

v. Case No: 8:21-cv-2674-KKM-JSS

MERRICK GARLAND,

Attorney General of the United States,

Defendant.

___________________________________

ORDER

For field Supervisor Special Agent (SSA) positions, the FBI designates any opening

as stationary, nonstationary, or flex. A position’s designation affects the ranking of

candidates based on whether they have FBI headquarter experience. For stationary

positions, those in the field receive preference; for nonstationary, those at headquarters or

with headquarters experience receive preference; and for flex, both kinds of applicants are

treated equally. Because the nonstationary designation preferences headquarter experience,

a field-experience-only applicant will always be ranked lower than someone with FBI

headquarter experience, regardless of other qualifications or competencies.

The above sorting never considers the sex of the applicant. Nonetheless, FBI Special

Agent Shannon Muldrow, a mother of three without experience at FBI headquarters,

alleges that the designations disparately impact women because women who work at field

offices are less likely to have experience at FBI headquarters than their male counterparts.

Her theory turns on the idea that women in the FBI are more likely to be married to a

spouse that also works and that the FBI women remain the primary caregivers to minor

children. As a result of those familial duties, women cannot as easily complete temporary

assignments or relocate to FBI headquarters. Thus, they are disadvantaged in the ranking

system when applying for nonstationary positions.

Based on the above, Muldrow sues the Attorney General under Title VII, alleging

three claims: disparate impact discrimination, disparate treatment discrimination,1 and

retaliation. 3d Am. Compl. (Doc. 78). The Attorney General moves to dismiss Muldrow’s

complaint, arguing that Muldrow failed to exhaust several of the grievances and that

Muldrow fails to state a claim under Rule 12(b)(6) for the remainder of the claims. MTD

(Doc. 85). For the forgoing reasons, the Attorney General’s motion is GRANTED.

I. BACKGROUND

Special Agent Shannon Muldrow has served at the FBI for twenty-three years. 3d

Am. Compl. ¶ 19. In 2000, after Muldrow graduated from Quantico, the FBI assigned

her to the Tampa Field Division. Muldrow remained a member of the Tampa Field

1 “[T]he central difference between disparate treatment and disparate impact claims is that disparate

treatment requires a showing of discriminatory intent and disparate impact does not.”

, 220 F.3d 1263, 1278 (11th Cir. 2000).

2

Division until she was reassigned to the Puerto Rico Field Division in August 2022.

¶¶ 18–29. Muldrow alleges that her superiors at the Tampa Field Division began

discriminating against her in 2019.

Many of Muldrow’s allegations focus on the FBI’s methodology for ranking job

applicants. As stated above, the FBI’s Tiering Policy classifies candidates from FBI

headquarters or who have fifteen months of temporary travel duty experience at FBI

Headquarters as Tier I candidates for “nonstationary” positions. Candidates from field

offices (like Muldrow) are Tier II candidates for those positions. Feb. MTD Exhibit 1

(Doc. 63-1 at 43–44). The reverse is true if the position is “stationary.” If a position is

“flex,” the location of a candidate does not affect the candidate’s tiering status. 3d. Am.

Compl. ¶ 46. Regardless of a candidate’s skill ratings, Tier I candidates are automatically

ranked higher than Tier II candidates competing for an open position.

Muldrow’s first grievance occurred on August 7, 2019. On that date, she was told

that she was not selected for a Squad 10 SSA position, which had been designated as “flex.”

¶¶ 57, 71. Muldrow claims that the FBI discriminated against her on account of her

sex and parental status. ¶ 72. Although the FBI reposted the Squad 10 SSA position

on August 22, 2019, the position was redesignated as “nonstationary,” ¶¶ 79–81, 83,

meaning that applicants with FBI Headquarters experience would be given automatic

preference over applicants from field offices. Muldrow alleges that the FBI intentionally

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reposted the position as “nonstationary” to disadvantage her and award the position to a

pre-selected male applicant. ¶¶ 84, 87.

A couple months after Muldrow was not selected for the “nonstationary” Squad 10

SSA position, she filed a formal Equal Employment Opportunity (EEO) complaint

alleging that the FBI’s actions constituted unlawful sex discrimination. Resp. to MTD

Exhibit 1 (Doc. 92-1.) After she filed the first EEO complaint, Muldrow alleges that the

FBI unlawfully discriminated against her with respect to four other promotions: the First

Squad 9 SSA Promotion, the Panama Express SSA Promotion, the Second Squad 9 SSA

Promotion, and the Squad 11 SSA Promotion. Compl. ¶¶ 94–119. Muldrow submitted

additional EEO complaints related to these incidents. Resp. to MTD Exhibits 2, 4, 5.

(Doc. 92-2; Doc. 92-4; Doc. 92-5).

Further, the FBI allegedly retaliated against Muldrow for submitting formal EEO

complaints. ¶¶ 154, 172–77. Muldrow alleges that the FBI posted the Squad 10 SSA

position, the Panama Express SSA position, and the Squad 11 SSA position as

“nonstationary” to retaliate against her. ¶¶ 178–81. Additionally, Muldrow claims that

she suffered retaliation when the FBI failed to adjudicate an appeal that she initiated with

the Special Agent Midlevel Management Selection System Board Appeal Committee at

the FBI Headquarters. ¶¶ 166–171. Muldrow also alleges that the following incidents

constitute retaliation:

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•

In March 2020, Kristin Rehler—the Assistant Special Agent in Charge (ASAC) of

the Tampa Field Division—removed Muldrow as the FBI point of contact for the

COVID-19 Fraud Working Group in Tampa. ¶¶ 183–86.

•

In March 2020, Rehler “chastised” Muldrow for sending an email about the

COVID-19 Fraud Working Group after 8:00 p.m. ¶¶ 187–190.

•

In March 2020, Rehler denied Muldrow’s request for funding to purchase Microsoft

Office for her laptop. The Special Agent in Charge (SAC), Michael McPherson,

overrode Rehler’s initial denial. ¶¶ 191–93.

•

When the COVID-19 pandemic started, Muldrow opted to work from home under

FBI policy. Muldrow later returned to the office, but in July 2020, Muldrow stated

that she would like to work from home again. Rehler told Muldrow that she could

not return home a second time under FBI policy, though Muldrow alleges that there

is no such prohibition under FBI policy. ¶ 194.

•

In July 2020, Muldrow worked on a thirty-day temporary duty travel assignment in

Puerto Rico. On July 9, 2022, an unspecified employee at the Tampa Division

shortened the travel assignment by two days and denied Muldrow a travel day to

return from Puerto Rico. ¶ 195.

•

In February 2021, Rehler denied Muldrow’s request to drive an FBI vehicle in a

funeral processional for two fallen FBI agents. ¶¶ 196–201.

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The above discrete incidents comprise Muldrow’s claims for disparate treatment

discrimination and retaliation (counts one and three), but the heart of her Third Amended

Complaint remains that the Tiering Policy disparately impacts women (count two). She

argues that the FBI’s facially neutral practice of posting “nonstationary” positions has a

disparate impact on female applicants for field SSA positions. ¶¶ 120–52. Muldrow

alleges that women with children face more difficulty than men in working for extended

periods of time at FBI Headquarters in Washington, D.C. Muldrow draws this conclusion

because, in the United States labor force, working women are more likely than men to be

married to a spouse that also works. ¶ 144 (citing data from the United States Bureau

of Labor Statistics). Muldrow alleges that “[w]hen an FBI agent’s spouse does not work,

that agent can more easily take a [temporary duty leave] or assignment to FBI

[headquarters] while the non-working spouse stays in the district with their minor

children.” ¶ 145. She also cites a 2021–22 FBI data chart, ¶¶ 136–41, which

shows that only 16% of the FBI’s field supervisors are women, ¶ 138; 3d Am. Compl.

Exhibit 1, but alleges that 19.8% of the FBI’s criminal investigator population are women,

¶ 135.

This Court previously dismissed portions of Muldrow’s Second Amended

Complaint without prejudice because Muldrow failed to identify the appropriate statutory

provisions for her disparate treatment and retaliation claims (citing private-sector

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provisions of Title VII) and because Muldrow failed to plausibly allege a disparate impact

claim. Order Granting MTD in Part (Doc. 77.) The Third Amended Complaint again

alleges disparate treatment, disparate impact, and retaliation under Title VII. ¶¶ 53–

201. Like before, the Attorney General moves to dismiss the complaint with prejudice,

arguing that Muldrow failed to exhaust several of the alleged grievances and that Muldrow

fails to state a claim for relief under Rule 12(b)(6). MTD.

II. LEGAL STANDARDS

A. Rule 12(b)(6)

A complaint fails “to state a claim upon which relief can be granted” under Rule

12(b)(6) if it does not contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); , 556 U.S. 662, 677–

78 (2009). The complaint must include more than “naked assertion[s],” “labels and

conclusions,” or “a formulaic recitation of the elements of a cause of action.”

, 550 U.S. 544, 555–57 (2007). Instead, the complaint must contain sufficient

facts to state a claim that is “plausible on its face.” , 556 U.S. at 678 (quotation

omitted). A claim is facially plausible if “the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”

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At the motion to dismiss stage, a plaintiff’s factual allegations—but not legal

conclusions—are assumed true and construed in the light most favorable to the plaintiff.

, 516 F.3d 1282, 1284 (11th Cir. 2008). I may not consider evidence

outside of “the four corners of the complaint.” , 285 F.3d 1334,

1337 (11th Cir. 2002); , 555 F.3d 949, 959

(11th Cir. 2009) (“A court may consider only the complaint itself and any documents

referred to in the complaint which are central to the claims.”).

B. Exhaustion

The Eleventh Circuit has held that the exhaustion requirement is “a jurisdictional

prerequisite to filing a Title VII action” for federal employees. , 186

F.3d 1322, 1326 (11th Cir. 1999). That holding has been called into question now that

the Supreme Court has ruled that Title VII’s similar charge-filing requirement is “a

processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the

adjudicatory authority of courts.” , 139 S. Ct. 1843, 1851

(2019) (footnote omitted); , 782 F. App’x 951,

954 (11th Cir. 2019) (per curiam) (citing to classify the exhaustion requirement

as nonjurisdictional). That said, still governs because it has not been explicitly

overruled or undermined to the point of abrogation. , 531 F.3d

1347, 1352 (11th Cir. 2008) (“[A] prior panel's holding is binding . . . unless and until it

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is overruled or undermined to the point of abrogation by the Supreme Court or by [the

Eleventh Circuit] sitting en banc. While an intervening decision of the Supreme Court can

overrule the decision of a prior panel[,] . . . the Supreme Court decision must be clearly on

point.” (quotations and citations omitted)). Thus, a dismissal for a federal employee’s lack

of exhaustion is jurisdictional and accordingly entered without prejudice.

, 524 F.3d 1229, 1232 (11th Cir. 2008).

Accordingly, “exhaustion should be decided on a Rule 12(b) motion to

dismiss.” , 530 F.3d 1368, 1375 (11th Cir. 2008). At this stage, the

defendant bears the burden to prove that the plaintiff “failed to exhaust [her] available

administrative remedies.” , 541 F.3d 1077, 1082 (11th Cir. 2008). And

where exhaustion “is treated as a matter in abatement and not an adjudication on the

merits,” it is appropriate “to consider facts outside of the pleadings and to resolve factual

disputes so long as the factual disputes do not decide the merits and the parties have

sufficient opportunity to develop a record.” , 530 F.3d at 1376 (footnotes omitted).

III. ANALYSIS

A. Failure to Exhaust

“Before bringing a Title VII action in court, a federal employee must first seek relief

from the agency where the alleged discrimination occurred.”

, 686 F.3d 1239, 1243 (11th Cir. 2012). To adequately seek relief, a federal

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employee must “initiate contact with [an EEO] Counselor within 45 days of the date of

the matter alleged to be discriminatory.” (quoting 29 C.F.R. § 1614.105(a)(1)). If the

employee fails to contact a counselor within 45 days of the discriminatory action, his claim

is ordinarily “barred.” , 549 F.3d 1342, 1344 (11th Cir. 2008).

The exhaustion requirement bars several of Muldrow’s grievances. Muldrow alleges

that Rehler denied Muldrow permission to work from home a second time due to COVID-

19 concerns. 3d Am. Compl. ¶ 194. Muldrow also alleges that the FBI shortened her

temporary duty assignment to Puerto Rico. at ¶ 195. Because Muldrow never filed an

EEO complaint about either of these events, she cannot premise her claims on them now.

Similarly, Muldrow cannot premise her claims on the FBI’s failure to adjudicate her SBAC

appeal. Muldrow initiated the appeal in August 2019, at ¶ 166, and alleges that the

FBI retaliated against her by failing to adjudicate the appeal. . at ¶ 171. However,

Muldrow never filed an EEO complaint about this incident, and therefore failed to exhaust

this claim.

Muldrow argues that even if she did not exhaust some of the alleged incidents, all

the incidents may be considered as proof of a hostile work environment as long as one

incident occurred before the applicable exhaustion deadline. Resp. to MTD at 15–16

(citing , 536 U.S. 101 (2002)). But Muldrow never

alleged a hostile work environment claim, so the traditional exhaustion requirements

10

control. 3d Am. Compl.; , 536 U.S. at 105, 114. Nor can Muldrow

transform her claims in response to a motion to dismiss; she must have pleaded a hostile

work environment in the Third Amended Complaint. , No.

20-12040, 2021 WL 5320987, at *4–5 (11th Cir. Nov. 16, 2021) (per curiam) (refusing to

consider the plaintiff’s hostile work environment claims because she never alleged one in

her complaint, as evidenced by the lack of the terms “hostile work environment,”

“harassment,” or “abusive”).

B. Exhausted Claims

The Attorney General argues that Muldrow failed to exhaust two other claims. I

disagree. First, the Attorney General argues that Muldrow did not exhaust her claim that

reposting the Squad 10 SSA position as stationary constituted disparate treatment. MTD

at 15–16. That argument construes the exhaustion rule too narrowly. The relevant inquiry

is whether Muldrow’s complaint is “related to” or “grew out of” her administrative

complaint. , 355 F.3d 1277, 1280 (11th Cir. 2004).

Muldrow complained that her nonselection for the Squad 10 SSA position was disparate

treatment due to sex. Resp. to MTD Exhibit 1 at 6–8. The reposting of that same position

as stationary is part-and-parcel of her allegation of disparate treatment.

Second, the Attorney General argues that Muldrow did not exhaust her claims

regarding the Squad 11 SSA position. On May 24, 2021, the FBI posted the Squad 11

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SSA position as “nonstationary.” 3d Am. Compl. ¶ 113. A day later, Muldrow emailed

SAC McPherson and explained that she intended to apply for the position and requested

that McPherson repost the Squad 11 SSA position as “flex.” ¶¶ 114–15. Muldrow

alleges that McPherson never responded to her email and that a male candidate was

selected because the position remained “nonstationary.” ¶¶ 115, 118. Muldrow alleges

that McPherson’s failure to respond and the FBI’s “nonstationary” posting constituted

disparate treatment and retaliation. ¶¶ 112–119; 181.

Muldrow e-mailed McPherson on May 25, 2021, but did not seek counseling until

August 30, 2021. 3d Am. Compl. ¶ 114; Resp. to MTD Exhibit 5. The Attorney General

argues that Muldrow failed to exhaust this incident because she waited over 45 days after

sending the email “and presumably more than 45 days after the alleged failure could

theoretically and reasonably have culminated in a purportedly discriminatory or retaliatory

act.” MTD at 23. But Muldrow’s complaint alleges that McPherson’s failure to respond

was an aspect of the discrimination she faced when applying for the Squad 11 SSA position.

3d Am. Compl. ¶¶ 112–19. Thus, the clock for filing an EEO complaint did not

necessarily start ticking the moment after Muldrow sent the email; it became legally

material at the time that the FBI proceeded with the selection process for the Squad 11

SSA position without regard for Muldrow’s request. Although it is unclear when the FBI

began the selection process, the Court may not simply “presum[e]” that Muldrow failed to

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exhaust within the applicable 45-day deadline. MTD at 23 The Attorney General bears

the burden of proving that Muldrow failed to exhaust. , 541 F.3d at 1082. Because

the Attorney General failed to carry his burden, I will consider Muldrow’s intentional

discrimination and retaliation claims regarding the Squad 11 SSA selection process.

C. Disparate Impact

When Muldrow’s Second Amended Complaint was dismissed, she was warned that

any amendment for the disparate impact claim must “allege facts that would make it

plausible that a statistically significant disparity exists between the percentage of women

who applied and were hired as field supervisors and the percentage of men who applied

and were hired.” at 9. Although no Eleventh Circuit precedent specifies what precisely

a plaintiff must allege to state a claim for relief of disparate impact, this Court explained

its view based on persuasive authority that “a plaintiff ‘usually’ must cite ‘a statistical

disparity’ to plausibly allege a disparate impact claim.” (citing

, 625 F. App’x 495, 497 (11th Cir. 2015); , 975

F.3d 202, 209 (2d Cir. 2020)). Muldrow’s Third Amended Complaint—the operative

pleading—concedes that she does not allege any statistics comparing “the percentage of

women who applied and were hired as field supervisors and the percentage of men who

applied and were hired.” 3d Am. Compl. ¶ 132.

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An employer commits disparate impact sex discrimination if facially neutral

employment practices have “an adverse, disproportionate impact” on women.

, 220 F.3d at 1274; , 49 F.3d 1517, 1520

(11th Cir. 1995). For a disparate impact claim, a plaintiff “must establish three elements:

first, that there is a significant statistical disparity between the proportion of women in the

available labor pool and the proportion of women hired; second, that there is a specific,

facially-neutral, employment practice which is the alleged cause of the disparity; and finally

. . . that a causal nexus exists between the specific employment practice identified and the

statistical disparity shown.” , 220 F.3d at 1274.

To make this kind of claim plausible and survive a motion to dismiss, a plaintiff

“usually” must allege “a statistical disparity” between the relevant comparators. , 625

F. App’x at 497; , 975 F.3d at 209. The mere fact that significantly more men

than women occupy a job is not sufficient to show disparate impact discrimination.

, 220 F.3d at 1276. The Eleventh Circuit has instead focused on whether “a

statistically-significant disparity exists between the percentage of women who actually

applied . . . and the percentage of women who were hired.” at 1275. “[T]he statistics

must plausibly suggest that the challenged practice has a disparate impact,” and the

statistics must also “focus on the disparity between appropriate comparator groups.”

, 975 F.3d at 210.

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Like the last iteration, Muldrow’s complaint might make a disparate impact

“conceivable,” but it does not allege facts crossing into the “plausible.” , 556 U.S.

at 680. Muldrow proffers why a facially neutral FBI policy might have a disparate impact

on women. 3d Am. Compl. at ¶¶ 120–52. Muldrow’s hypothesis is that fewer women are

hired as field supervisors because the positions are awarded to agents who can gain

experience at FBI headquarters, and women are less likely than men to do that because

they are more likely to have childrearing responsibilities. Muldrow never alleges any

statistical evidence showing a disparity between the percentage of FBI female agents who

applied and were hired as SSAs and the percentage of FBI male agents who applied and

were hired for those same positions. In fact, Muldrow admits that she cannot cite to any

such statistically significant evidence.

I remain persuaded that, “[t]o make out a disparate-impact claim,” the plaintiff’s

complaint must include “factual allegations—usually a statistical disparity—demonstrating

a disparity in treatment between groups so significant that it supports an inference that

discrimination is the cause.” , 625 F. App’x at 497. The ordinary need for statistical

disparity allegations in disparate impact claims is consistent with the pleading standard

articulated by the Supreme Court.

explained that Rule 12(b)(6) is designed to protect defendants and the

federal court system from “largely groundless” claims that needlessly waste time and

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resources. 550 U.S. at 557–58 (citing , 544 U.S. 336,

347 (2005)). Discovery is expensive, and “the threat of discovery expense will push cost-

conscious defendants to settle even anemic cases before reaching those proceedings.” at

559. Therefore, “it is only by taking care to require [well-pleaded] allegations . . . that

[courts] can hope to avoid the potentially enormous expense of discovery.” Although

focused on Sherman Act claims, 550 U.S. 544, held that ’s

pleading standard is broadly applicable. 556 U.S. 662.

Requiring a statistical disparity allegation between relevant comparators is

consistent with and because it requires a plaintiff alleging disparate impact

claims to plausibly allege a claim for relief before the defendant is subjected to discovery

and litigation. Disparate impact claims implicate whole companies and agencies. Through

discovery, defendants must provide data about their entire workforce, which is time

consuming, expensive, and uniquely invasive. Under and ,a plaintiff cannot

simply guess about the possibility of a disparate impact without any allegations that make

such an inference reasonable and “raise a right to relief above the speculative level.”

, 550 U.S. at 555. And ordinarily, a statistical disparity between the right

comparators makes the claim plausible.

This understanding of how the pleading standard applies to disparate impact claims

comports with the Second Circuit’s reasoning in , 975 F.3d 202:

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To nudge a disparate impact claim across the line from conceivable to plausible—and,

indeed, to ultimately prove such a claim—plaintiffs typically rely on statistical evidence

to show a disparity in outcome between groups. . . . At the prima facie stage, a plaintiff’s

statistical analysis must demonstrate that the disparity is substantial or significant, and

must be of a kind and degree sufficient to reveal a causal relationship between the

challenged practice and the disparity. . . [E]ven at this early juncture, the statistics must

plausibly suggest that the challenged practice actually has a disparate impact.

at 209–10 (quotation and brackets omitted). Further, the Second Circuit explained that

“the statistical analysis must reveal disparities between populations that are relevant to the

claim the plaintiff seeks to prove.” at 210. Lastly, “national figures will not always be a

viable alternative,” and “[g]eneral population statistics are a reliable surrogate only when

there is reason to think that they accurately reflect the pool of qualified job applicants for

the position in question.” at 210–11 (quotation omitted). As explained above,

Muldrow’s complaint fails to include any FBI-specific statistics that compare the

appropriate groups.

For all the above reasons, a statistically significant disparity must ordinarily be

alleged for a disparate impact claim. But it is possible for a plaintiff to allege facts that make

a disparate impact claim plausible without that data. Muldrow’s allegations, however, do

not. She relies on a 2021–22 FBI data chart found in Exhibit 1 of the Third Amended

Complaint, showing that there are 1,181 FBI field supervisors in total and only 191 of

them are women (16%). 3d Am. Compl. ¶¶ 136–41; 3d Am. Compl. Exhibit 1. To

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compare, Muldrow alleges that 19.8% of all FBI criminal investigators are women. 3d Am.

Compl. ¶ 135. Muldrow contends that these figures are sufficient to plausibly allege a

disparate impact at the pleading stage, presumably because the 3.8% delta provides a

sufficient inference of a disparate impact. 3d Am. Compl. ¶ 133.

Even if I assume that all the female FBI criminal investigators (the population

constituting the 19.8% figure) are special agents eligible to apply for SSA-level positions,

who applied for SSA-level positions, and that the figures show a significant statistical

disparity, I still do not agree that Muldrow’s allegations suffice. First, there are no

allegations about what percentage of these women have FBI headquarter experience.

Without knowing what percentage of the relevant female labor pool lacked the credential

that is the subject of the neutral policy, Muldrow fails to allege facts that make a “causal

nexus” between the Tiering Policy and the 3.8% delta plausible. Second, there are no

allegations regarding how often the FBI posts “stationary” or “flex” versus “nonstationary”

SSA positions. Again, without knowing the percentage of field versus headquarter

preferences in the postings, Muldrow fails to allege facts that make a “causal nexus”

between the Tiering Policy and the 3.8% differential plausible.

Thus, Muldrow fails to plausibly allege that the FBI’s Tiering Policy creates a

disparate impact.

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D. Failure to Apply for the Panama Express SSA Position

Muldrow alleges that the FBI discriminated and retaliated against her by posting

the Panama Express SSA position as nonstationary, albeit she concedes that she did not

apply for the position. 3d Am. Compl. ¶¶ 99–107; 180. The Attorney General argues that,

without applying for the position, Muldrow suffered no adverse personnel action. MTD at

19–22. Muldrow alleges that the futile gesture doctrine excuses her failure to apply. 3d Am.

Compl. ¶ 104; Doc. 92 at 10–12.

Section 2000e-16, the provision of Title VII providing the exclusive judicial remedy

for claims of discrimination in federal employment, precludes an action for discrimination

premised on a plaintiff not receiving a job for which she failed to apply.

, 425 U.S. 820, 835 (1976); , 492 F. App’x 50, 53

(11th Cir. 2012) (per curiam). Section 2000e-16(a) requires that all “personnel actions

affecting employees or applicants for employment . . . shall be made free from any

discrimination based” on protected characteristics. Although “personnel actions” include

promotions, no personnel action takes place when a plaintiff fails to apply for the job at

issue. , 140 S. Ct. 1168, 1173 (2020) (noting that “personnel

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action” includes “most employment-related decisions, such as . . . promotion[s]”) (citing 5

U.S.C. § 2302(a)(2)(A)).

The exception to this general rule arises if applying for a job would be a futile

gesture. , 431 U.S. 324, 365 (1977). That

occurs when the plaintiff “refrained from applying due to a justifiable belief that the

employer’s discriminatory practices made application a futile gesture.”

, 296 F.3d 1265, 1274 (11th Cir. 2002). To allege

such a “justifiable belief,” Muldrow must allege that she (1) “had a real and present interest

in the job for which the employer was seeking applications; and (2) that she would have

applied for the job but effectively was deterred from doing so by the employer's

discriminatory practices.”

Muldrow conclusively alleges that she had a “real and present interest” in the

Panama SSA position. 3d Am. Compl. ¶ 104. Assuming that she did, Muldrow still fails

to plausibly allege a “justifiable belief” that she was deterred from applying for the job by

the FBI’s discriminatory practices. , 296 F.3d at 1274. The futile

gesture doctrine requires that the prospective applicant be deterred by “discriminatory

hiring practices.” at 1275. Prospective applicants must be deterred by the discriminatory

reputation of the employer, and the employer must perpetuate a discriminatory reputation

through “some intentional affirmative act.” This doctrine seeks to protect “victims of

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the most entrenched forms of discrimination” who have been totally deterred from

submitting job applications. , 431 U.S. at 367. Thus, a plaintiff

cannot employ the futile gesture doctrine if the employer would deny the plaintiff for

neutral reasons that have “no direct connection to” the plaintiff’s protected characteristics.

, 685 F. App’x 885, 889 (11th Cir. 2017);

, 167 F. App’x 758, 763 (11th Cir. 2006).

Muldrow alleges that she did not apply for the Panama Express SSA position

because it was “nonstationary,” and Muldrow knew that she would not be competitive for

the position. 3d Am. Compl. ¶¶ 100–04. But listing a position as “nonstationary” has no

direct connection to Muldrow’s sex. A “nonstationary” position is one that prefers

candidates from FBI headquarters, not candidates of a certain sex. ¶ 46. Muldrow

cannot invoke the futile gesture doctrine if she was deterred from applying because of a

neutral hiring practice that was not explicitly discriminatory.

E. Disparate Treatment Discrimination

Muldrow exhausted four incidents related to her disparate treatment discrimination

claim. She alleges that the FBI intentionally discriminated against her after she applied for

the Squad 10 SSA position, the First Squad 9 SSA position, the Second Squad 9 SSA

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position, and the Squad 11 SSA position. 3d Am. Compl. ¶¶ 57–77, 94–98, 108–19.

However, Muldrow fails to plausibly allege disparate treatment based on sex.

For a disparate treatment claim under Title VII, Muldrow must allege facts that

suggest intentional discrimination. , 789 F.3d 1239,

1246 (11th Cir. 2015). “Direct evidence is evidence that establishes the existence of

discriminatory intent behind the employment decision without any inference or

presumption.” , 161 F.3d 1318, 1330 (11th Cir. 1998). If

a plaintiff cannot point to direct evidence, a plaintiff may allege intentional discrimination

with circumstantial evidence under , 411 U.S. 792

(1973). But at the pleading state, a complaint “need not allege facts sufficient to make out

a classic prima facie case.” , 789 F.3d at 1246 (quotation

omitted). Instead, the complaint most only allege facts that “plausibly suggest that the

plaintiff suffered an adverse employment action due to intentional . . . discrimination.”

Muldrow’s complaint fails to carry this light burden. Muldrow alleges that the FBI

discriminated against her because of her sex and awarded promotions to “pre-selected,

favored male candidates.” 3d Am. Compl. ¶¶ 62, 77, 87, 94–95, 100, 106, 108–110. She

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falters though in alleging facts that suggest intentional discrimination. , 789 F.3d

at 1246.

First, her allegations related to the Squad 10 SSA position do not raise an inference

of intentional sex discrimination. She alleges that she was initially ranked as the number

one candidate and that she was not granted an interview once the position was reposted as

nonstationary. 3d Am. Compl. ¶ 88. But as already discussed, the FBI’s Tiering Policy is

facially neutral. Therefore, their application—including the decision to reclassify a position

as “nonstationary”—does not raise an inference of intentional discrimination without more.

Nor do Muldrow’s other allegations move the needle. She alleges that she was told that she

should take a temporary duty assignment to FBI headquarters, that she replied that she

could not get childcare, and that she was told she would have to make a choice between

her family commitments and her career. ¶ 73. Yet she fails to allege any discriminatory

comments connecting her sex with her inability to take an assignment at FBI headquarters.

While she hypothesizes in her disparate impact claim that sex and childcare responsibilities

are linked, that link alone cannot support a disparate claim.

Second, with respect to the First Squad 9 SSA position that was posted as “flex,”

Muldrow alleges that the FBI awarded the position to a male candidate and that the FBI

“artificially rated” the male candidate’s application “extremely high.” ¶¶ 94–97. But

Muldrow never alleges how that rating was artificially high or that the selected candidate

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was “equally or less qualified” than Muldrow. Although Muldrow spends many pages

recounting her experience, awards, and accolades, ¶¶ 18–33, she makes no allegation

concerning this particular candidate’s qualifications. Thus, I cannot draw a reasonable

inference that he was equally or less qualified than herself.

Third, Muldrow fails to plausibly allege a prima facie case of disparate treatment

with respect to the Second Squad 9 SSA promotion that was posted as “flex.” Although

Muldrow alleges that the “favored, pre-selected Tampa male candidate” had “much less

experience” than herself, ¶ 111, she does not allege facts that establish his experience

relative to hers. “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice” to survive a motion to dismiss. , 556 U.S. at

678. And even assuming that “much less experience” refers to length of service, that fact

would not allow a reasonable inference that she was equally or more than the

other candidate. The tenure of an FBI agent alone may or may not be relevant to a

particular position’s requirements. And Muldrow alleges no facts about this position or the

other aspects of this candidate that make it plausible he was “equally or less qualified” than

herself.

Lastly, Muldrow fails to allege a prima face case of intentional discrimination with

respect to the Squad 11 SSA promotion that was posted as “nonstationary.” She alleges

that she had better skill ratings than the male applicant that was ultimately promoted. 3d

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Am. Compl. ¶ 118. But Muldrow also acknowledges that—because the Squad 11 SSA

position was “nonstationary” and “only Tier I candidates” for the position would be ranked,

¶¶ 113–17—she would be ranked lower as a Tier II candidate “regardless of ratings,”

¶ 46. Thus, because the FBI’s Tiering Policy preferred candidates for the Squad 11 SSA

position with headquarter experience, Muldrow and other non-Tier 1 candidates were not

equally or more qualified for the position than Tier 1 candidates based on the FBI’s criteria.

Her factual allegations give rise to the reasonable inference that the FBI prefers headquarter

experience for certain SSA positions even if those candidates score lower on primary

competencies; but those allegations and the resulting inference do not make it plausible

that Muldrow’s sex was the cause of differential treatment.

, 891 F.3d 911, 924 (11th Cir. 2018) (explaining that “an employer need not have good

cause for its decisions” as long as it does not unlawfully discriminate (quotations and

citations omitted)).

Muldrow fails to plausibly allege that the FBI treated her differently based on her

sex in not awarding her these four promotions.

F. Retaliation

Muldrow alleges that the FBI retaliated against her by:

•

Listing the Squad 11 SSA position as “nonstationary,” 3d Am. Compl. ¶ 181;

•

Removing Muldrow as the FBI point of contact for the COVID-19 Fraud Working

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Group in Tampa, ¶¶ 183–86;

•

Scolding Muldrow for sending an email about the COVID-19 Fraud Working

Group after 8:00 p.m., ¶¶ 187–190;

•

Initially denying Muldrow’s request for funding to purchase Microsoft Office for

her laptop (though the denial was later reversed), ¶¶ 191–93; and

•

Denying Muldrow’s request to drive an FBI vehicle in a funeral processional for two

fallen FBI agents, ¶¶ 196–201.

Although Muldrow exhausted each of these incidents, ( Doc. 92-3; Doc. 92-4; Doc.

92-5), the Attorney General moves to dismiss Muldrow’s retaliation claim for failure to

state a claim under Title VII. MTD at 24–28.

To make a prima facie retaliation claim, Muldrow must allege three elements: (1)

she engaged in statutorily protected activity; (2) her employer acted adversely against her;

and (3) there is a causal relation between the protected activity and the adverse action.

, 261 F.3d 1262, 1266 (11th Cir. 2001);

, 805 F. App’x 622, 631 (11th Cir. 2020). The Attorney General argues

that Muldrow fails to adequately allege the second and third elements. MTD at 24–27.

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Because the Attorney General is correct that the alleged retaliation is not materially adverse

under the second element, I do not address the third element.

Eleventh Circuit precedent is unclear regarding what constitutes adverse

employment action in Title VII federal-sector retaliation claims. Private-sector retaliation

claims are advanced under 42 U.S.C. § 2000e-3, which states, “It shall be an unlawful

employment practice for an employer to discriminate against any of his

employees . . . because [the employee] has opposed any practice made an unlawful

employment practice by this subchapter.” § 2000e-3(a).

, 548 U.S. 53, 57 (2006), held that section 2000e-3 “does not confine

the actions and harms it forbids to those that are related to employment or occur at the

workplace.” Rather, a retaliatory action is “materially adverse” if the employer’s actions are

so harmful that they could “well dissuade a reasonable worker from making or supporting

a charge of discrimination.”

Comparatively, federal-sector retaliation claims are advanced under 42 U.S.C.

§ 2000e-16(a), which prohibits “[a]ll [retaliatory] affecting employees.”

(emphasis added). Citing , 992 F.3d 1193

(2021) ( ), the Attorney General argues that retaliatory action in the federal-sector

must be “personnel action” to be materially adverse under § 2000e-16(a). MTD at 24.

Indeed, states, “The text of the federal-sector provision addresses ‘personnel

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actions,’ and so it seems clear enough that an actionable . . . claim must describe conduct

that rises to that level.” 992 F.3d at 1209. And the Supreme Court understood the term

“personnel action”—as used in “the ADEA’s nearly identical federal-sector provision”—to

mean “ ‘most employment-related decisions, such as appointment, promotion, work

assignment, compensation, and performance reviews.’ ” at 1199 (quoting

, 140 S. Ct. 1168, 1173 (2020)).

Confusingly, also states that applies to the

federal-sector prohibition on retaliation. ;

, 995 F.3d 828, 836 (11th Cir. 2021); , No. 21-11186,

2022 WL 35614, at *2 n.1 (11th Cir. Jan. 4, 2022). And part of ’s

point is that section 2000e-3 encompasses retaliatory acts beyond actions “related to

employment.” 548 U.S. at 57.

Yet relies on to establish what level of harassment is

sufficient for a hostile-workplace retaliation claim, not to read the phrase “personnel

actions,” 42 U.S.C. § 2000e-16(a), out of the law. In context, the Eleventh Circuit was

agreeing with the position of the plaintiff in that case. , 992 F.3d at 1209. The

plaintiff conceded that the federal-sector provision was limited to personnel actions, but

disputed that hostile-workplace retaliation claims must consequently be “severe or

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pervasive.” And because Muldrow does not allege retaliation involving a hostile

workplace, the “severe or pervasive” standard is inapplicable.

Nevertheless, Muldrow’s claims would still fail regardless of whether the “personnel

action” limitation applies. I will analyze whether the FBI’s retaliatory acts were materially

adverse under . The inquiry must focus, then, on whether there was

retaliatory act that “could well dissuade a reasonable worker from making or supporting

a charge of discrimination.” 548 U.S. at 57.

Even under the lower standard of , none of Muldrow’s

exhausted claims satisfy the materially adverse standard when compared to how the

Eleventh Circuit has handled other claims. Verbally threatening an employee’s physical

safety and threating to fire the employee’s fiancé could “dissuade a reasonable worker”

under . , 955 F.3d 855, 862–63 (11th

Cir. 2020); , 562 U.S. 170, 174 (2011). But threatening

an employee with a countersuit or placing the employee on paid suspension is not materially

adverse. , 19 F.4th 1261, 1266 (11th Cir. 2021);

, 940 F.3d 635, 649–50 (11th Cir. 2019). Muldrow’s allegations of

retaliation are much less notable than even the latter non-cognizable examples.

First, Muldrow alleges that the FBI retaliated against her by posting the Squad 10

and Squad 11 SSA position as “nonstationary.” 3d Am. Compl. ¶ 181. But as Muldrow

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acknowledges in her complaint, classifying a promotion as “nonstationary” is standard

practice under the FBI’s Tiering Policy. ¶ 46. The designation of these postings would

not “dissuade a reasonable worker from making or supporting a charge of discrimination.”

, 548 U.S. at 57.

Further, Muldrow alleges that she emailed the SAC of the Tampa Division and

requested that he repost the position as “flex” so that she could better compete for the

position. 3d Am. Compl. ¶¶ 114–15. Muldrow alleges that the SAC retaliated by never

responding to her email or reposting the Squad 11 SSA position as “flex,” , but neither

would dissuade a reasonable worker from bringing a charge of discrimination. The SAC

may have failed to respond for any number of reasons; perhaps he never saw the message,

did not have time to respond, or did not want to respond. Moreover, the SAC could refuse

to reclassify the position for many neutral reasons, including that he did not want to set a

precedent for employees demanding that leadership reclassify promotions. Whatever the

reason for not responding to Muldrow’s email or request, the failures to respond do not

constitute retaliation.

Next, Muldrow alleges that ASAC Rehler retaliated against her by scolding her for

sending an email about the COVID-19 Fraud Working Group after 8:00 p.m.,

¶¶ 187–190; denying Muldrow’s request for funding to purchase Microsoft Office for her

laptop, ¶¶ 191–93; and denying Muldrow’s request to drive an FBI vehicle in a funeral

30

procession, ¶¶ 196–201. But none of these actions “could well dissuade a reasonable

worker from making or supporting a charge of discrimination.” , 548

U.S. at 57. Muldrow herself refers to Rehler’s reprimand about emails as “petty retaliatory

action.” 3d Am. Compl. ¶ 190. And none of these actions are like threats to fire an

employee’s fiancé or threats to harm one’s physical safety. , 955 F.3d at

862–63; , 562 U.S. at 174.

Lastly, Muldrow alleges that Rehler retaliated by removing Muldrow as the FBI

point of contact for the COVID-19 Fraud Working Group in Tampa. 3d Am. Compl.

¶¶ 183–86. But Muldrow was never fired, and “reassignment of job duties is not

automatically actionable.” , 548 U.S. at 71. “Whether a particular

reassignment is materially adverse depends upon the circumstances of the particular case,

and should be judged from the perspective of a reasonable person in the plaintiff's position,

considering all the circumstances.” (quotation omitted). For instance, in

, the Court held that a reassignment was materially adverse because the plaintiff

was reassigned to tasks that were “more arduous,” “dirtier,” required lower qualifications,

and included less prestige. Here, Muldrow fails to allege that she was disadvantaged, in

any way, by the removal of the designation as point of contact for the COVID-19 group.

Further, Muldrow does not allege that she was reassigned to more difficult or demeaning

tasks.

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Overall, because Muldrow fails to allege any retaliatory activity that is materially

adverse under section 2000e-16, she fails to state a retaliation claim under Rule 12(b)(6).

IV. CONCLUSION

Because Muldrow fails plausibly to allege disparate treatment discrimination,

disparate impact discrimination, or retaliation, she fails to state a claim for relief.

Accordingly, the unexhausted claims are DISMISSED without prejudice and the

remaining claims are DISMISSED with prejudice. The Clerk is directed to terminate

any pending motion and deadline, and to close this case.

ORDERED in Tampa, Florida, on September 30, 2023.

athryn’ Kimball Mizelle

United States District Judge

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