Elliott v. Mayorkas

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Amanda Elliott,

Plaintiff, Case No. 2:22-cv-4053

Judge James L. Graham

v. Magistrate Judge Jolson

Alejandro Mayorkas, Secretary,

U.S. Department of Homeland Security,

Defendant.

Opinion and Order

Plaintiff Amanda Elliot brings this employment discrimination case under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Elliot alleges that after she reported an incident of

sexual assault, a supervisor created a hostile work environment which was motivated by retaliatory

and sex-based animus. This matter is before the Court on the motion to dismiss of defendant

Alejandro Mayorkas, in his official capacity as Secretary of the United States Department of

Homeland Security. Defendant’s motion challenges whether plaintiff exhausted her administrative

remedies and whether the complaint states a claim for hostile work environment. For the reasons

stated below, the Court denies the motion to dismiss as it relates to administrative exhaustion but

grants the motion to dismiss for failure to state a claim.

I. Background

A. Factual Allegations

In 2009, Amanda Elliot began her employment with United States Immigration and

Customs Enforcement (“ICE”), an agency of the Department of Homeland Security. She has been

employed as a deportation officer in ICE’s Columbus office since 2011.

On February 18, 2016 a supervisory deportation officer pinned Elliot against a car and

subjected her to unwanted kissing. Elliot reported the incident to ICE’s Employee Assistance

Program on the next day.

Assistant Field Office Director Mark Hamilton served as Elliot’s “second level supervisor.”

Hamilton learned in February or March 2016 of Elliot’s report of a sexual assault. He then allegedly

began a course of conduct designed to retaliate and discriminate against her.

For a two month period in April and May 2016, Hamilton assigned “an unmanageable

workload” to Elliot. The Columbus office had two deportation officers, one of whom was Elliot.

The other deportation officer took on the role of interim Supervisory Detention and Deportation

Officer (“SDDO”). According to the complaint, Hamilton typically would have required the interim

SDDO to continue to be responsible for his detention caseload, but he instead made Elliot

responsible for all of the cases.

Elliot next alleges that Hamilton’s treatment of her work product changed after he learned

of her sexual assault report. Beforehand, he gave only minimal corrections to her work product.

Afterwards, he allegedly made unnecessary corrections and unreasonably delayed in reviewing her

work. As examples, the complaint alleges that in April and May 2016 Hamilton’s delays twice

caused Elliot to miss deadlines in completing her reports, which in turn risked her being subject to

discipline.

In March 2017, Elliot requested that she be allowed to use her maiden name for work

purposes. She had concerns for her personal security after ICE subjects found where she previously

lived. Hamilton denied her request.

In June 2017, Hamilton required that Elliot be given a “letter of counseling” (a type of

written reprimand) which she says was unwarranted. According to the complaint, Elliot’s immediate

supervisor disagreed with Hamilton that the letter of counseling was warranted, but Hamilton still

required that it be issued.

In September 2017 Elliot took one day off work for a pregnancy-related reason. The

complaint alleges that upon learning of Elliot’s pregnancy, Hamilton took an incorrect position of

the amount of sick leave available to her. Elliot submitted an advance request on December 15,

2017 for maternity leave for the anticipated birth of her child. Though Elliott’s immediate

supervisor would normally have reviewed the requests, Hamilton allegedly inserted himself into the

process and initially denied her requests. He later approved her requests on January 4, 2018, and

Elliot was able to take maternity leave.

Elliot returned to work from maternity leave on March 19, 2018. She alleges that she had a

“bank” of already-approved Family Medical Leave Act leave which she could use intermittently to

care for her newborn. According to the complaint, Hamilton again inserted himself into the leave-

approval process. Elliot took leave on July 16, 2018 and her immediate supervisor told her that

Hamilton said it was “a problem” for her to do so and that she would need to make up the time.

She requested leave again on July 26, 2018, and her supervisor said that Hamilton would not

approve it. For other unspecified dates when she took leave, Elliot allegedly had to deduct leave

from her regular balance – rather than use it from her pre-approved “bank.” On other unspecified

occasions, her leave requests were delayed or denied.

The complaint additionally alleges that Hamilton subjected Elliot to derogatory comments

about her being pregnant and being a mother, though the complaint does not identify what

Hamilton said. Elliot further alleges that Hamilton caused her peers to avoid her.

B. Procedural History

The complaint alleges that Elliot initiated Equal Employment Opportunity counseling1 on

August 10, 2018. She filed a formal EEOC complaint of discrimination on September 20, 2018.

The EEOC issued a final decision on appeal on August 18, 2022, and plaintiff filed this suit

within 90 days of the decision. See 29 C.F.R. § 1614.407(c).

The complaint in this case asserts two causes of action, both of which are labeled as hostile

work environment claims. In Count I, the complaint alleges that Elliot engaged in protected activity

under Title VII by reporting the sexual assault and that Hamilton retaliated against her by creating a

hostile work environment. In Count II, the complaint alleges that defendant subjected Elliot to a

hostile work environment because of her sex, including her pregnancy and status as a mother.

II. Motion to Dismiss Standard of Review

Federal Rule of Civil Procedure 8(a) requires that a pleading contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When

considering a motion under Rule 12(b)(6) to dismiss a pleading for failure to state a claim, a court

must determine whether the complaint “contain[s] 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)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court should construe the

complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations

in the complaint as true. Iqbal, 556 U.S. at 679; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007);

Twombly, 550 U.S. at 555-56.

When the complaint contains well-pleaded factual allegations, “a court should assume their

veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679. “A claim has facial plausibility 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. at

1 As will be explained below, the step of counseling is required because of Elliot’s status as a federal

employee.

678. Though “[s]pecific facts are not necessary,” Erickson, 551 U.S. at 93, and though Rule 8 “does

not impose a probability requirement at the pleading stage,” Twombly, 550 U.S. at 556, the factual

allegations must be enough to raise the claimed right to relief above the speculative level and to

create a reasonable expectation that discovery will reveal evidence to support the claim. Iqbal, 556

U.S. at 678-79; Twombly, 550 U.S. at 555-56. This inquiry as to plausibility is “a context-specific task

that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here

the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,

the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal,

556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

III. Administrative Exhaustion

Defendant raises two separate types of administrative exhaustion challenges. First, it argues

that plaintiff did not timely initiate the administrative grievance process for much of the alleged

wrongful conduct. Second, it alleges that components of the alleged wrongful conduct were not

included within the scope of the administrative proceedings.

A. Timely Initiation of the Grievance Process

Under the regulations for federal sector employees, persons who “believe they have been

discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or

genetic information must consult a Counselor prior to filing a complaint in order to try to informally

resolve the matter.” 29 C.F.R. § 1614.105(a). “An aggrieved person must initiate contact with a

Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of

personnel action, within 45 days of the effective date of the action.” Id at § 1614.105(a)(1).

In allowing federal employees to bring suit under Title VII, “Congress conditioned the

government’s waiver of sovereign immunity upon a plaintiff’s satisfaction of ‘rigorous administrative

exhaustion requirements and time limitations.’” McFarland v. Henderson, 307 F.3d 402, 406 (6th Cir.

2002) (quoting Brown v. Gen. Servs. Admin., 425 U.S. 820, 833 (1976)). The requirement that an

aggrieved employee initiate contact with a Counselor with 45 days of the discriminatory conduct is

one which a plaintiff must satisfy in order to exhaust her administrative remedies. Id.; Bryant v.

Wilkie, 834 Fed. App’x 170, 173 (6th Cir. 2020); Sanders v. Postmaster Gen., No. 2:19-CV-2566, 2020

WL 4000976, at *5 (S.D. Ohio July 15, 2020) (“In order for a plaintiff to exhaust her administrative

remedies, she must make timely contact with the EEOC.”).

As alleged in the complaint, the conduct forming the hostile work environment began

almost immediately after Elliot’s February 19, 2016 report of the sexual assault and it continued

forward. Elliot was forced to take on an increased workload in April and May 2016. Hamilton

began subjecting Elliot’s work product to undue scrutiny and delay soon after the report. He

refused to allow Elliot to use her maiden name in March 2017. Hamilton had the unwarranted

reprimand issued to Elliot in June 2017. His scrutiny and delay of her maternity leave requests

occurred from September 2017 to January 2018. The complaint also alleges that Hamilton made

derogatory comments about Elliot and caused her peers to avoid her. On July 16 and 26, 2018,

Elliot submitted leave requests to care for her newborn. The complaint alleges that Elliot made

other leave requests around this time which were resisted or incorrectly handled.

Defendant argues that the only allegations which were timely grieved within the 45-day

period before August 10, 2018 were those relating to the leave requests made on July 16, 2018 and

thereafter. Plaintiff counters that her claims fit within a continuing violation theory – namely, she

has alleged the existence of a hostile work environment which continued into the 45-day period

leading up to when she initiated EEO counseling.

The case law supports plaintiff’s position. In National Railroad Passenger Corp. v. Morgan, 536

U.S. 101 (2002), the United States Supreme Court held that the exhaustion analysis applies

differently for hostile work environment claims than it does for discrimination claims based on

discrete adverse actions (termination, failure to promote, refusal to hire).

Hostile environment claims are different in kind from discrete acts. Their very

nature involves repeated conduct. . . . . The “unlawful employment practice”

therefore cannot be said to occur on any particular day. It occurs over a series of

days or perhaps years and, in direct contrast to discrete acts, a single act of

harassment may not be actionable on its own. . . . Such claims are based on the

cumulative effect of individual acts.

. . .

To assess whether a court may, for the purposes of determining liability, review all

such conduct (underpinning a hostile work environment claim), including those acts

that occur outside the filing period, we again look to the statute. It provides that a

charge must be filed within 180 or 300 days “after the alleged unlawful employment

practice occurred.” A hostile work environment claim is composed of a series of

separate acts that collectively constitute one “unlawful employment practice.” 42

U.S.C. § 2000e–5(e)(1). The timely filing provision only requires that a Title VII

plaintiff file a charge within a certain number of days after the unlawful practice

happened. It does not matter, for purposes of the statute, that some of the

component acts of the hostile work environment fall outside the statutory time

period. Provided that an act contributing to the claim occurs within the filing

period, the entire time period of the hostile environment may be considered

by a court for the purposes of determining liability.

Id. at 115–17 (emphasis added). See also id. at 118 (“In order for the [EEOC] charge to be timely, the

employee need only file a charge within 180 or 300 days of any act that is part of the hostile work

environment.”).

Shortly after the Morgan decision, the Sixth Circuit applied Morgan’s holding to the 45-day

initiation requirement for federal employees. In McFarland, the Sixth Circuit held, “A hostile-work-

environment claim thus has an effect similar to that of a continuing violation composed of

successive discrete acts, in that the existence of the hostile work environment within the 45-day time

limit causes the actionable violation to encompass conduct that occurred outside of the limit.” 307

F.3d at 408. A grievance by a federal employee is thus timely if it is “based upon a hostile work

environment that existed less than 45 days before [initial contact with a Counselor].” Id.

Defendant is correct that the specific dates alleged in the complaint nearly all precede the 45-

day period leading up to August 10, 2018. However, the complaint alleges that Hamilton created a

hostile work environment after Elliot’s sexual assault report and that he committed acts contributing

to the hostile work environment within the 45-day time period. The complaint alleges that the

hostile work environment extended into the 45-day time period in two ways. First, Hamilton

continued to resist and delay Elliot’s FMLA requests in the 45-day period. Second, Hamilton’s

unwarranted scrutiny of Elliot’s work product is not alleged to have ever ceased. Though the final

specific example of unwarranted scrutiny given in the complaint occurred in September 2017, the

complaint does not allege that the scrutiny ended at that point or any other point.

Defendant next argues that the conduct alleged to have contributed to the hostile working

environment is comprised of discrete, unrelated acts which cannot be used to form the basis of a

hostile work environment case.

Morgan again guides this Court’s analysis. A court should sort out “discrete acts” which are

alleged to be discriminatory or retaliatory and which “constitute[] a separate actionable ‘unlawful

employment practice.’” Morgan, 536 U.S. at 114 “Discrete acts such as termination, failure to

promote, denial of transfer, or refusal to hire are easy to identify.” Id. The first step in the

administrative grievance process must be accomplished within the applicable time period “after the

discrete discriminatory act occurred.” Id. at 113. See also Sharpe v. Cureton, 319 F.3d 259, 267 (6th

Cir. 2003).

A court should then identify “repeated conduct” in the nature of harassment, which cannot

be said to occur on any particular day” because it “occurs over a series of days or perhaps years.” Id.

at 115. “[I]n direct contrast to discrete acts, a single act of harassment may not be actionable on its

own.” A hostile work environment claim, thus, is “based on the cumulative effect of individual

acts.” Id.

Applying Morgan’s guidance, the Court finds that the complaint does not allege discrete acts

which are independently actionable as sex-based discrimination or retaliation. Elliot was not fired or

demoted, nor does she allege that she experienced a significantly adverse change in her work

conditions. See generally Burlington Industries v. Ellerth, 524 U.S. 742, 761 (1998); White v. Burlington N.

& Santa Fe R. Co., 364 F.3d 789, 797 (6th Cir. 2004); Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182

(6th Cir. 2004). Rather, she alleges that Hamilton unduly scrutinized and delayed in reviewing her

work product, unduly scrutinized and delayed in reviewing her leave requests, increased her

workload for two months, refused her request to use her maiden name, made derogatory comments,

and caused her peers to avoid her. These allegations are of the type on which a hostile work

environment claim would be based.

Defendant puts much attention on the leave requests. It argues that the interference with or

denial of FMLA leave is a discrete act and independently actionable. The Court must reject this

argument here because Elliot is not bringing suit under the FMLA. She instead alleges that

Hamilton’s resistance against her exercise of leave was motivated by sex-based, retaliatory animus, in

violation of Title VII. Importantly, Elliot does not allege that Hamilton’s delay or denial of her

leave requests rose to the level of a materially adverse change in the conditions of her employment.

Rather, she alleges that his conduct contributed to a continuing hostile work environment.

Finally, defendant argues that the conduct which fell within the 45-day period – the delay or

denial of the July 2018 FMLA leave requests – is unrelated to the rest of the alleged conduct

forming the hostile work environment claim. Defendant argues that Elliot should not be allowed to

use disparate types of conduct to cobble together a claim for hostile work environment.

In Morgan, the Supreme Court held that Title VII “does not separate individual acts that are

part of the hostile [work] environment claim from the whole for purposes of timely filing and

liability.” Morgan, 536 U.S. at 118. See also Clark v. Donahoe, No. 2:11-CV-597, 2012 WL 3224097, at

*7 (S.D. Ohio Aug. 6, 2012) (noting that “not all of the events in a hostile work environment need

to be identical to be considered part of that environment”). Only an act which is too far removed in

kind or time will be excluded. See El-Zabet v. Nissan N. Am., Inc., 211 Fed. App’x 460, 464–65 (6th

Cir. 2006) (rejecting the attempt to connect a recent act to a “distant event”); Richards v. Dep’t of

Army, No. 05-1091, 2007 WL 579549, at *3 (6th Cir. Feb. 15, 2007) (rejecting a “string along”

theory). Thus, “‘plaintiff must show that the current violation . . . is indicative of a pattern of similar

discriminatory acts continuing from the period prior to the limitations period.’” El-Zabet, 211 Fed.

App’x at 464 (quoting Weigel v. Baptist Hosp. of East Tenn., 302 F.3d 367, 376 (6th Cir. 2002)).

Allegations relating to an employee’s leave requests could potentially be dissimilar to other

workplace issues. But the Court finds that the complaint adequately alleges that Hamilton’s

treatment of Elliot in response to her July 2018 requests was part of a continuing pattern. The

pattern consisted of Hamilton subjecting Elliot to undue scrutiny, resistance, and delay. It included

Hamilton’s review of her work product, as well as his earlier review of her maternity leave request.

Hamilton allegedly resisted and discouraged Elliot in several other ways: by increasing her workload,

rejecting her request to use her maiden name, causing one of her supervisors to give her an

unwarranted reprimand, and instructing her peers to avoid contact with her.

Accordingly, the Court finds that the alleged hostile work environment was comprised of a

pattern of conduct which continued to exist within the 45-day period leading up to Elliot’s initiation

of counseling.

B. The Scope of the EEOC Proceedings

Defendant next argues that Elliot failed to exhaust certain components of her hostile work

environment claim because she did not include them within the scope of the complaint presented to

the EEOC. Defendant cites to the “expected scope of investigation” rule, which provides that the

“judicial complaint must be limited to the scope of the EEOC investigation reasonably expected to

grow out of the charge of discrimination.” Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 380

(6th Cir. 2002) (internal quotation marks omitted); see also Dixon v. Ashcroft, 392 F.3d 212, 217 (6th

Cir. 2004). “The purpose of the requirement is to trigger an investigation, which gives notice to the

alleged wrongdoer of its potential liability and enables the EEOC to initiate conciliation procedures

in an attempt to avoid litigation.” Dixon, 392 F.3d at 217.

This rule is designed to filter which legal claims a plaintiff may assert in a Title VII case. If,

for instance, an EEOC complaint of race discrimination provided no basis for an employer to

anticipate a claim of age discrimination in a subsequent Title VII suit, then the age discrimination

was not exhausted and is barred. However, “‘where facts related with respect to the charged claim

would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded

from bringing suit on that claim.’” Weigel, 302 F.3d at 380 (quoting Davis v. Sodexho, Cumberland

College Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998)). See also Dixon, 392 F.3d at 217 (“The

determinative inquiry in this case, therefore, is whether Dixon alleged sufficient facts in his EEOC

Complaint to put the EEOC on notice of his retaliation claim, despite that he did not check the

appropriate box on the EEOC’s Complaint of Discrimination form.”).

There is no dispute that Elliot’s EEOC claims were that defendant “discriminated against

[her] and subjected her to a hostile work environment based on her sex (Pregnancy) and retaliation.”

Doc. 19-3 at PAGEID 106. She makes precisely the same claims here.

Defendant seeks to use the “expected scope of investigation” rule in a different way.

Instead of applying it to preclude a claim, defendant would use it to preclude consideration of

factual allegations supporting the claim. Defendant points out that there are certain aspects of the

hostile work environment of which Elliot did not complain in the EEOC proceedings. The Court’s

review of the administrative proceedings confirms that defendants are correct, at least in part.2

The Court must reject defendant’s attempt to apply the “expected scope of investigation”

rule to factual allegations rather than to claims. Defendant has cited no authority in support of its

argument. Elliot’s EEOC complaint sufficiently put defendant on notice that she was asserting a

hostile work environment claim. One would expect a reasonable investigation to cover the various

aspects of the work environment which made it hostile, even if the investigation did not ultimately

address all of those aspects. See Ogbonna-McGruder v. Austin Peay State Univ., No. 3:21-CV-00506,

2023 WL 3572891, at *11 n. 14 (M.D. Tenn. May 19, 2023), aff’d, 91 F.4th 833 (6th Cir. 2024) (“As

Morgan indicates, a ‘hostile work environment claim is composed of a series of separate acts that

collectively constitute one unlawful employment practice’ and so ‘it does not matter ... that some of

the component acts of the [alleged] hostile work environment’ were not administratively exhausted,

as long as the overarching claim of hostile work environment (the alleged ‘unlawful employment

practice’ at issue) was administratively exhausted.”) (quoting Morgan, 536 U.S. at 117).

IV. Failure to State a Claim

Defendant argues that plaintiffs’ allegations, even if timely, are insufficient to state a hostile

work environment claim because the alleged harassing conduct was not sufficiently severe and

pervasive. The Court agrees.

2 Defendant contends that Elliot complained of nothing beyond undue scrutiny of her work

product and of her leave requests. This argument is overbroad. In the EEOC proceedings, Elliot

did complain of derogatory comments, the unwarranted issuance of a reprimand, and Hamilton’s

causing her peers to avoid her. See Doc. 23-at PAGEID 141, 149, 164. But there is no evidence

that Elliot complained of Hamilton’s refusal to allow her to use her maiden name or of him

imposing an increased workload on her for a two-month period.

The complaint asserts two claims under Title VII – one for a retaliatory hostile work

environment and one for discriminatory hostile work environment on the basis of sex. Both types

of claims require a showing of an adverse action taken by the employer against the employee. See

Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (for a retaliation claim, plaintiff must

show the defendant took a “materially adverse” action against him – one that “well might have

dissuaded a reasonable worker” from engaging in protected activity); Ogbonna-McGruder v. Austin Peay

State Univ., 91 F.4th 833, 839 (6th Cir. 2024) (for a discrimination claim, plaintiff must show the

defendant created a work environment which was hostile to plaintiff).

Underpinning both claims is the requirement that plaintiff allege the existence of severe and

pervasive harassment. See Ogbonna-McGruder v. Austin Peay State Univ., 91 F.4th 833, 839, 841 (6th

Cir. 2024). That is, to establish her discrimination claim, plaintiff must show that her workplace was

“‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe and

pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.’” Id. at 839 (quoting Morgan, 536 U.S. at 116). And to establish her retaliation claim,

plaintiff must make the same showing of severe or pervasive harassment. Id. at 841. While some

circuits have interpreted the “dissuaded a reasonable worker” standard for a retaliation claim to

lower or supplant the “severe and pervasive harassment” standard, the Sixth Circuit has “repeatedly

held that a retaliatory hostile work environment claim must include evidence that the harassment

was severe or pervasive.” Id. at 842 (citing cases).

In determining whether a workplace is permeated with “intimidation, ridicule, and insult that

is sufficiently severe and pervasive,” a court considers the totality of circumstances. Id. at 840. The

factors include “the frequency of the 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.” Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009).

The “alleged harassment must be both objectively and subjectively severe and pervasive to be

actionable.” Ogbonna-McGruder, 91 F.4th at 841.

The complaint alleges that Hamilton subjected Elliot to a pattern of undue scrutiny and

delay in reviewing her work product and her leave requests. He also allegedly resisted and

discouraged Elliot by increasing her workload, causing one of her supervisors to give her an

unwarranted reprimand, rejecting her request to use her maiden name, instructing her peers to avoid

her, and making derogatory comments about her.

In considering the complaint as a whole, the Court finds that it fails to allege the existence of

severe and pervasive harassment. Primarily lacking from the complaint are factual allegations from

which one could make inferences in plaintiffs’ favor about the frequency and severity of Hamilton’s

alleged conduct.

The complaint alleges that Hamilton was “hypercritical of Ms. Elliot’s work.” Compl., ¶ 42.

The complaint provides no context for how often Hamilton reviewed her work, other than alleging

that he was not Elliot’s immediate supervisor. Id., ¶ 24. The complaint offers three instances (April

27, 2016, June 14, 2016, and September 20, 2017) in which Hamilton scrutinized and delayed her

work. Though the complaint alleges that Hamilton was unduly critical of her work, it describes the

criticism in a non-severe way, alleging that Ms. Elliot’s work product “would come back with several

corrections” and “rude” comments. Id., ¶ 35; see also id., ¶ 41 (alleging that Hamilton returned

Elliot’s work product to make “corrections”). Further, Hamilton’s delay in reviewing her work,

though twice putting Elliot past a deadline and at risk for discipline, is not alleged to have caused any

adverse consequences for her. In sum, the complaint does not articulate facts from which it can be

inferred that Hamilton’s “hypercritical” conduct was pervasive or severe to the point it unreasonably

interfered with Elliot’s work performance. See Richard v. Bell Atl. Corp., 209 F.Supp.2d 23, 35

(D.D.C. 2002) (holding that the “the type of conduct that [the plaintiff] complain[ed] of, i.e., rude

comments, unjust criticism, and stressful working conditions, amount to ordinary tribulations of the

workplace that [is] insufficient as a matter of law for a hostile [work] environment case”); Nurriddin v.

Bolden, 674 F.Supp.2d 64, 94 (D.D.C. 2009) (“[C]lose scrutiny of assignments by management cannot

be characterized as sufficiently intimidating or offensive in an ordinary workplace context.”).

The Court finds the same with regard to Hamilton’s alleged undue scrutiny and delay of

Elliot’s leave requests. With respect to Elliot’s maternity leave request, the complaint alleges that

Hamilton at first took an incorrect position about the amount of leave available to her and initially

denied her request. However, the complaint alleges that Hamilton later fully approved her maternity

leave, and there are no allegations that Hamilton’s conduct interfered with her work performance.

With respect to Elliot’s leave requests to care for her newborn, the complaint alleges that

Hamilton said it was “a problem” for her to take leave. He allegedly caused leave to be deducted

from her regular balance rather than a pre-approved “bank.” While the complaint alleges that on an

unspecified number of occasions her leave requests were denied, plaintiff’s response brief concedes

that the requests were granted and that she is complaining only about Hamilton’s delay in approving

them. See Doc. 23 at PAGEID 120 n.7. Here too, the allegations fail to support an inference that

Hamilton’s alleged resistance to her leave requests was frequent or interfered with her work

performance. The complaint alleges that Elliot lost some unspecified amount of her leave balance

and perhaps had to make up some unquantified amount of missed time from work, but the

complaint does not allege any particular facts to show that these consequences were harmful or

burdensome to her. See Parekh v. Swissport Cargo Servs., Inc., No. CV-08-1994(CPS), 2009 WL 290465,

at *5 (E.D.N.Y. Feb. 5, 2009) (dismissing as insufficient a hostile work environment claim based on

“wrongfully withheld vacation time” and unfair disciplinary actions).

Turning to the remainder of the allegations, the Court similarly finds that they do not allege

severe and pervasive harassment. Hamilton allegedly required Elliot to take on an “unmanageable

workload” when a co-worker was promoted. Compl., ¶ 26. But the complaint alleges that this

situation lasted for just two months, and there are no allegations that Elliot was not able to handle

the temporary increase in responsibility or that she was disciplined for failing to complete her work.

See Ceckitti v. City of Columbus, Dep’t of Pub. Safety, Div. of Police, 14 Fed. App’x 512, 518 (6th Cir. 2001)

(courts may “filter out complaints attacking the ordinary tribulations of the workplace”).

Regarding the written reprimand, the complaint does not explain why it was unwarranted.

In any event, it occurred just once and resulted only in Elliot being given “written counseling.”

Compl., ¶ 50. See Bonnette v. Shinseki, 907 F. Supp. 2d 54, 81 (D.D.C. 2012) (holding that a “written

admonishment for [plaintiff’s] failure to attend mandatory training” is the “type of work-related

actions by supervisors that provide insufficient grounds for a hostile work environment claim)

(internal quotation marks omitted); Murray–Dahnir v. Loews Corp., No. 99 Civ. 9057(LLM), 1999 WL

639699, at *4 (S.D.N.Y. Aug 23, 1999) (holding that plaintiff failed to state a hostile work

environment where his supervisor admonished him publicly and unjustifiably on numerous

occasions, he received an overly critical memo, and he was required to work extra hours).

With respect to Hamilton’s denial of Elliot’s request to use her maiden name, the complaint

refers to Elliot having security concerns but does not articulate that there was a tangible threat.3

Hamilton also allegedly caused Elliot’s peer to avoid her, but the complaint does not assert that this

inhibited Elliot’s ability to do her work. See Compl., ¶ 3 (alleging simply that her peers did not come

to her for guidance in doing their work). See Clarke v. InterContinental Hotels Grp., PLC, No. 12 CIV.

2671 JPO, 2013 WL 2358596, at *10 (S.D.N.Y. May 30, 2013) (holding that plaintiff’s allegations

3 The complaint alleges that four non-detained ICE subjects had visited her prior residence, which

was listed under her maiden name. Elliot moved to a new house, with the mortgage in her married

name. A detainee’s representative allegedly referred to her by her married name, but there are no

further allegations to suggest why this posed a security concern to Elliot.

that supervisors “snubbed her,” “excessively scrutinized her work; and gave her more work to do

than other employees . . . . [did] not plausibly point to a work environment that is sufficiently

abusive to constitute a hostile workplace”).

Finally, as to the derogatory comments, the complaint alleges no facts beyond that the

comments related to “her status as a mother and about her pregnancy.” Compl., ¶ 3. The

complaint does not allege what Hamilton said or how often he made such comments. See Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (“simple teasing, . . . offhand comments, and isolated incidents”

generally do not suffice to state a hostile work environment claim).

Viewing the totality of the alleged circumstances, the Court finds that the complaint portrays

a workplace situation in which Elliot experienced an unpleasant relationship with Hamilton, an

assistant office director who was not her immediate supervisor. See Holmes-Martin v. Sebelius, 693 F.

Supp. 2d 141, 165 (D.D.C. 2010) (“[O]rdinary workplace conflicts . . . are not sufficiently severe or

pervasive to support a hostile work environment claim.”). When she interacted with him (which

may have been relatively infrequently), she was met with criticism and resistance. However, the

complaint fails to offer factual content from which it could be inferred that the conduct was

frequent, severe, threatening, or unreasonably interfered with Elliot’s work performance. In sum,

the complaint does not allege harassment, intimidation, ridicule, or insult so pervasive and severe so

as to constitute a hostile work environment.

V. Conclusion

Accordingly, defendant’s motion to dismiss (Doc. 19) is DENIED as to administrative

exhaustion but GRANTED as to failure to state a claim. Plaintiff’s motion for leave to file a

surreply (Doc. 29) is granted.

Plaintiff’s brief in opposition to the motion to dismiss requests an opportunity to amend the

complaint, should the motion be granted. Defendant has not opposed this request. Accordingly,

plaintiff is granted thirty days from the date of this Order to amend her complaint. Should she fail

to do so, the Clerk of Court will terminate this case.

s/ James L. Graham

JAMES L. GRAHAM

DATE: April 4, 2024 United States District Judge