Ayvazian v. McDonough

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JEMMA AYVAZIAN,

Plaintiff,

v. Civil Action No. 24-2804 (JEB)

DOUGLAS A. COLLINS,

Defendant.

MEMORANDUM OPINION

Plaintiff Jemma Ayvazian, a nurse working for the Department of Veterans Affairs, has

brought this suit against its Secretary for violations of Title VII of the Civil Rights Act, alleging

years of mistreatment by her colleagues and supervisors. The heart of her grievance is her

September 2021 effective removal from her role as Director of Nursing Education at the VA, but

she also extensively details a series of additional slights — ranging from subpar performance

reviews to exclusions from conferences — that have accumulated over the past several years.

After filing three separate (and thus far unsuccessful) complaints with the Equal Employment

Opportunity Commission, Plaintiff has turned to the federal courts. Her suit alleges that she was

unlawfully discriminated against on the basis of her race, sex, and national origin, retaliated

against for protected activity, and subjected to a hostile work environment. Defendant now

moves to dismiss the Complaint. See ECF No. 8 (MTD). Because Ayvazian’s claims are either

unexhausted or meritless — or both — the Court will grant the Motion.

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I. Background

The Court draws on the facts as pled in the Complaint, taking them to be true. See

Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113–14 (D.C. Cir. 2000).

Ayvazian is a white female of Armenian descent who has been employed with the VA

since 2008. See ECF No. 1 (Compl.), ¶¶ 3, 44, 52–54. She alleges that in 2020 she was “forced”

to hire Chien Chen as a nurse in her department because he was friends with some of her

colleagues and thereafter was told to “treat [him] differently than other employees because he

was an Asian male.” Id., ¶¶ 71–72. Refusing to do so, in August 2021 Plaintiff issued Chen

several counseling letters related to his conduct and performance in his role, id., ¶¶ 75, 85, and

also contacted her second-line supervisor to disclose “what she believed to be

unlawful . . . [equal-employment-opportunity] practices” by her colleagues. Id., ¶¶ 11, 81; ECF

No. 10 (Opp.) at 7. On September 20, 2021, she was effectively removed from her role as

Director of Nursing Education and given a non-supervisory special-assistant position — a

change in duties, but not in pay or grade. See Compl., ¶¶ 87–88, 96. The reasons given for the

reassignment were, in her telling, “uncorroborated accusations regarding [her] supervisory

behavior.” Id., ¶ 97. Chen, meanwhile, was promoted to take over her duties in an acting

capacity. Id., ¶¶ 90, 93, 159. He then proceeded to file an EEO complaint against Ayvazian in

October 2021, alleging that she had discriminated against him on the basis of gender, sexual

orientation, and race. Id., ¶¶ 109–10.

Not to be outdone, Plaintiff filed her first EEO complaint with the Department on

November 11 of that year. Id., ¶ 11. She asserted principally that her role reassignment was an

effort to discriminate against her, retaliate against her for contacting her supervisor with

concerns, and subject her to a hostile work environment. Id., ¶ 13(a)–(x). On May 17, 2024, an

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administrative judge with the EEOC granted summary judgment for the Department, and four

days later, the Department adopted the AJ’s decision and issued a Final Agency Decision

dismissing Plaintiff’s complaint. Id., ¶¶ 20–21. Ayvazian filed an appeal with the EEOC on

June 19. Id., ¶ 22. On September 3, she withdrew that appeal. Id., ¶ 23 and p. 1. (These dates

will matter later for exhaustion purposes.)

While her EEO case was progressing administratively (2021–2024), Plaintiff continued

to face difficulties at work, which her prolix Complaint recounts at great length. These issues

included unsatisfactory work scheduling, id., ¶¶ 99–102, performance ratings of “Fully

Successful” instead of her previous evaluations as “Outstanding,” id., ¶¶ 144, 230, 309, denial of

opportunities through the noncompetitive selection of others for certain positions, id., ¶¶ 210–15,

253–56, 321–24, denial of overtime pay, id., ¶¶ 260–65, and more. See generally id., ¶¶ 56–324.

These troubles prompted her to file two more EEO complaints with the Department: one on

November 17, 2022, and the other on September 18, 2023. Id., ¶¶ 25, 36. The former

— Plaintiff’s second overall — focused on Ayvazian’s unsatisfactory performance reviews as

well as her exclusion from opportunities for advancement and from meetings and

communications within the Department. Id., ¶ 27(a)–(l). The VA dismissed it on July 30, 2024.

Id., ¶¶ 32–34. The third overall complaint focused similarly on unsatisfactory ratings Plaintiff

had received and opportunities she had been denied, as well as workload and personnel changes

she disagreed with. Id., ¶ 38(a)–(k). As of the time of the filing of this suit, no final decision

had yet issued. Id., ¶ 43.

Ayvazian filed the present action on October 2, 2024, bringing three counts premised on

the same set of facts. Count I asserts that she was discriminated against because of her race,

national origin, and sex in violation of Title VII, 42 U.S.C. § 2000e et seq. Id., ¶¶ 325–334.

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Count II alleges unlawful retaliation for EEO-protected activity, id., ¶¶ 335–344, and Count III

adds a hostile-work-environment claim. Id., ¶¶ 345–354. She seeks compensatory damages and

other equitable relief. Id. at pp. 45-51.

II. Legal Standard

In seeking dismissal of Plaintiff’s Complaint, Defendant argues that she neglected to

exhaust many of her claims and fails to state a claim for the rest. See MTD at 1. Ordinarily, the

failure to exhaust is an affirmative defense that the defendant must plead and prove, see Bowden

v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); Opp. at 26, and it is thus “typically

resolved at summary judgment.” Clark v. Johnson, 206 F. Supp. 3d 645, 655 (D.D.C. 2016);

e.g., Davila v. Mayorkas, 2023 WL 2072455, at *1–2 (D.D.C. Feb. 17, 2023). Plaintiff,

however, pleads all the relevant facts herself, see Compl., ¶¶ 21–23; Opp. at 26–28, thereby

“reveal[ing] the exhaustion defense on its face.” Thompson v. DEA, 492 F.3d 428, 438 (D.C.

Cir. 2007). The Court may consequently resolve the legal issues relating to exhaustion at this

stage. See Morris v. McCarthy, 825 F.3d 658, 666 (D.C. Cir. 2016) (upholding dismissal for

failure to exhaust). Because the exhaustion requirement is not jurisdictional, however,

see Colbert v. Potter, 471 F.3d 158, 167 (D.C. Cir. 2006), it is properly evaluated (as are the

merits questions) under Federal Rule of Civil Procedure 12(b)(6). See Porter v. Sebelius, 944 F.

Supp. 2d 65, 68 (D.D.C. 2013); Noisette v. Geithner, 693 F. Supp. 2d 60, 65 (D.D.C. 2010);

compare MTD at 1 (invoking both Rule 12(b)(1) and Rule 12(b)(6)).

Under that Rule, the Court must “treat the complaint’s factual allegations as true . . . and

must grant plaintiff the benefit of all inferences that can be derived from the facts alleged.”

Sparrow, 216 F.3d at 1113 (cleaned up). For a plaintiff to survive a Rule 12(b)(6) motion, the

facts alleged in the complaint “must be enough to raise a right to relief above the speculative

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level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That means a plaintiff must put

forth “factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court need

not accept as true “a legal conclusion couched as a factual allegation,” nor an inference

unsupported by the facts set forth in the complaint. Trudeau v. Fed. Trade Comm’n, 456 F.3d

178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

III. Analysis

The Court will first address whether Plaintiff properly exhausted her claims before

analyzing her discrimination, retaliation, and hostile-work-environment causes of action in that

order.

A. Exhaustion

Title VII prohibits discrimination in federal employment on the basis of race, color,

religion, sex, or national origin. See 42 U.S.C. § 2000e-16(a). To get to federal court on such

claims, however, complainants must first navigate a “labyrinthine . . . maze of administrative

processes.” Niskey v. Kelly, 859 F.3d 1, 5 (D.C. Cir. 2017); see 42 U.S.C. § 2000e-16(e).

Those processes — and their attendant deadlines — collectively embody an administrative-

exhaustion requirement that, if unmet, generally mandates dismissal of the action. Niskey, 859

F.3d at 7. The purpose of that requirement is to “give federal agencies an opportunity to handle

matters internally whenever possible” and to ensure that federal courts “are burdened only when

reasonably necessary.” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985).

As relevant here, regulations implementing Title VII dictate the timelines applicable to

civil suits. In the main, 29 C.F.R. § 1614.407 requires a complainant to file a civil action within

90 days of obtaining final agency action on her complaint, id. § 1614.407(a), or, if she appeals,

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within 90 days of a final decision from the Commission on appeal. Id. § 1614.407(c). If neither

is forthcoming, she must wait 180 days after filing her complaint, id. § 1614.407(b), or her

appeal, id. § 1614.407(d), before she can bring suit. If she withdraws her appeal, a complainant

must still file a civil action “within 90 days of the receipt of the agency final action.” Id.

§ 1614.407(e). In all events, if more than 90 days have passed since agency final action, a

complainant who has filed an appeal with the Commission may file a civil action only in

accordance with subsections (c) or (d) — i.e., within 90 days of a decision on appeal or at least

180 days after filing an appeal.

These deadlines spell doom for the actions described in Ayvazian’s first EEO complaint,

which center on the fracas over Chen’s hiring and Plaintiff’s subsequent reassignment from her

Director position. See Compl., ¶ 13(a)–(x). Recall that she received a final agency decision

dismissing that complaint on May 21, 2024. Id., ¶ 21. She appealed that decision to the EEOC

on June 19 and then withdrew the appeal, id., ¶¶ 22–23, subjecting her squarely to the time limits

outlined in § 1614.407(e). According to that regulation, she had 90 days from May 21 to file a

civil action. But she waited to do so until October 2 — 134 days later. Because she withdrew

her appeal, moreover, subsection (c) is inapplicable. The Court is also dubious that subsection

(d) is applicable here, as that regulation’s primary purpose is to give the Commission 180 days to

respond to an appeal — an opportunity it did not have, given Plaintiff’s withdrawal of her

appeal. Instead, subsection (e)’s first sentence appears to govern, and, as just discussed, she

failed to follow its timeline. Even if subsection (d) were to apply, however, it provides no refuge

because Ayvazian filed her civil action fewer than 180 days from the date of filing her appeal on

June 19. In short, on any reading, she did not exhaust. See MTD at 5–6.

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Plaintiff’s primary retort is that subsection (d)’s time limit — which requires waiting 180

days after filing an appeal with the Commission “if there has been no final decision by the

Commission” — does not apply to her because she did receive a final decision from the

Commission when the AJ recommended dismissing her case. See Opp. at 26–27. That is wrong

twice over. The AJ’s decision was not a “final decision by the Commission,” but rather a

recommendation that the Department could accept or reject within 40 days of receipt. See 29

C.F.R. § 1614.109(i). And the Department indeed accepted that recommendation a few days

after receiving it, see Compl., ¶ 21, thus providing Plaintiff with the “final order” permitting her

to appeal to the Commission. Id., § 1614.110(a). Subsection (d)’s reference to a “final decision

by the Commission,” moreover, plainly means a final decision on appeal — not a decision by an

AJ at some point earlier in the process. Ayvazian therefore cannot escape the time limits in

subsection (d) by claiming that she is somehow exempt from it entirely.

Perhaps sensing the weakness of that argument, Plaintiff instead posits that

§ 1614.407’s timelines are mere “suggest[ions].” Opp. at 26. Nothing in the obligatory

language of that provision supports that interpretation. On the contrary, our Circuit has long

been clear that Title VII’s exhaustion requirements are “mandatory.” Douglas v. Donovan, 559

F.3d 549, 556 n.4 (D.C. Cir. 2009); see also Santos v. Lynch, 2016 WL 3951060, at *4 (D.D.C.

July 20, 2016) (“[C]ourts . . . routinely dismiss[] as premature [Title VII] cases filed before the

relevant waiting period has expired.”) (collecting cases). They therefore must be enforced unless

principles of waiver, estoppel, or equitable tolling dictate otherwise. See Colbert, 471 F.3d at

167.

Only the last of those is applicable here. The Court, however, is not inclined to exercise

its equitable discretion to exempt Ayvazian from the exhaustion requirement. See Opp. at 29–

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31. Many of her arguments to that effect amount to a request for special treatment; none

provides a basis for departing from the usual rule that unexhausted claims are “not actionable.”

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (equitable exemptions to

exhaustion are “to be applied sparingly”); see ECF No. 11 (Reply) at 3–5. Indeed, as Plaintiff

herself makes clear, her reason for contravening the applicable timelines was simply

convenience: she wished to “access the court with one complete and consolidated complaint.”

Opp. at 29; see id. at 30 (same). “As a general rule,” however, “a Title VII plaintiff must timely

exhaust administrative remedies for each discrete act alleged, even if the acts are

related.” Mount v. Johnson, 36 F. Supp. 3d 74, 83–84 (D.D.C. 2014) (cleaned up). And here,

because the unexhausted claims relate to Ayvazian’s first EEOC complaint, she cannot argue that

they “grow out of” earlier, exhausted claims and need not be exhausted themselves. Weber v.

Battista, 494 F.3d 179, 184 (D.C. Cir. 2007) (quotation marks omitted). The Court thus

concludes that all claims relating to the actions in Plaintiff’s first EEOC complaint — which

include her role reassignment and replacement by Chen, see Compl., ¶ 13(a)–(x) — must be

dismissed for failure to exhaust.

B. Discrimination

Even were exhaustion not an obstacle for that complaint, however, Ayvazian still does

not show that any of the actions alleged in this suit — singly or in concert, and across all three

EEOC proceedings — amounts to discrimination. The “two essential elements” of a Title VII

discrimination claim are that “(i) the plaintiff suffered an adverse employment action (ii) because

of the plaintiff’s race, color, religion, sex, [or] national origin.” Baloch v. Kempthorne, 550 F.3d

1191, 1196 (D.C. Cir. 2008). “To plead intentional discrimination, a plaintiff cannot merely

invoke [her protected characteristics], but must allege some facts to show that [they were] the

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reason for the defendant’s action.” Wilson v. DNC Servs. Corp., 315 F. Supp. 3d 392, 400

(D.D.C. 2018). That is not to say, however, that Plaintiff must at this stage plead a prima facie

case of discrimination under the burden-shifting framework articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508

(2002). Rather, the complaint must simply “contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). Although “detailed factual allegations” are not necessary at this stage,

Twombly, 550 U.S. at 555, Rule 8 “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Iqbal, 556 U.S. at 678.

For the purposes of Plaintiff’s discrimination claim, the Court may assume without

deciding that the assorted grievances recounted in her Complaint amount to “adverse

employment action[s].” Baloch¸ 550 F.3d at 1196; see Compl., ¶¶ 330. 340, 350. Even granting

her that, she still does not manage to plausibly allege that any of those actions occurred “because

of” her race, sex, or nationality. Baloch, 550 F.3d at 1196. One scours the Complaint in vain for

a single allegation linking her treatment to any protected characteristic. Instead, all Ayvazian

provides is the following: “Defendant’s management officials were motivated in its adverse

employment actions against Plaintiff by virtue of animus towards Plaintiff caused by Plaintiff’s

protected classes.” Compl., ¶ 331. Nothing else in the Complaint even references, much less

supports, such a conclusory assertion. See Opp. at 33 (stating only that “Plaintiff identified her

belief that she has been discriminated against”). That showing is not enough. See In re U.S. Off.

of Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 54 (D.C. Cir. 2019) (“[W]e do not assume

the truth of legal conclusions or accept inferences that are unsupported by the facts alleged in the

complaint.”).

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Indeed, the gravamen of Plaintiff’s Complaint — the hiring and promotion of Chen, to

Ayvazian’s detriment — she herself attributes to the fact that he was “friend[s]” with one of her

colleagues. See Compl., ¶¶ 62, 71. She alleges no actual facts, moreover, that the decision to

effectively replace her was motivated by animus toward her race, sex, or national origin; instead,

she affirmatively alleges that her supervisors “produced . . . a one-page summary of

uncorroborated accusations regarding [her] supervisory behavior,” id., ¶ 97, and informed her

that “her staff complained of ‘mental health issues due to her leadership.’” Id., ¶ 13(m); see

also id., ¶ 104 (noting that her rating period had been extended to permit additional “observation

and assessment of [her] leadership and supervisory skills”). And while she further alleges that

she was told that she “needed to treat Mr. Chen different[ly] than other employees because he

was an Asian male,” id., ¶ 72, she nowhere explains what that treatment entailed. More

important, she never alleges facts connecting any preferential treatment of him to discrimination

against her. Such “threadbare” allegations do not satisfy Plaintiff’s “low burden” at this stage.

L. Xia v. Tillerson, 865 F.3d 643, 659 (D.C. Cir. 2017).

In her Opposition, Plaintiff recasts these allegations as an attempt to make a comparator

argument — i.e., that she was treated worse than a similarly situated person who does not share

her protected characteristics. See Brown v. Sessoms, 774 F.3d 1016, 1023 (D.C. Cir. 2014);

Opp. at 34. Even assuming that the Court could consider such allegations raised for the first time

in an opposition, rather than in a complaint, but see Kingman Park Civic Ass’n v. Gray, 27 F.

Supp. 3d 142, 160 n.7 (D.D.C. 2014), she still must “plead enough facts about [Chen] and the

relevant context to allow a plausible inference that [she] was treated differently because of” her

protected characteristics. Joyner v. Morrison & Foerster LLP, 2025 WL 1717402, at *3 (D.C.

Cir. June 20, 2025). Where the pleadings do not allege any facts “to ground a reasonable

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inference that [the plaintiff] was in fact similarly situated to” a comparator, however, Owens v.

Thompson, 2024 WL 1328461, at *2 (D.D.C. Mar. 28, 2024), such claims must be dismissed.

Plaintiff herself gives the game away here. Contrary to her assertion that Chen “held the

same position as [she] for a majority of the relevant time in this matter,” Opp. at 34, her

Complaint in fact states the opposite: Chen was initially hired as Ayvazian’s subordinate, see

Compl., ¶¶ 45, 57, 71, and subsequently took over her responsibilities once she was “removed

from her position . . . and stripped of all supervisory duties.” Id., ¶ 87; see id., ¶ 90. At all times,

they reported to different supervisors. Id., ¶¶ 46, 89–90. Indeed, as mentioned, the thrust of

Plaintiff’s Complaint is precisely that Chen effectively replaced her — even if her colleagues and

supervisors refused to acknowledge that fact, see Opp. at 9; Compl., ¶¶ 186–88 — not that he

was treated better than she was while they held the same or similar roles. Although Ayvazian

was not required at this stage to allege that her position was “nearly identical” to Chen’s in all

relevant aspects, Joyner, 2025 WL 1717402, at *3 (explaining that this standard applies at

summary judgment or trial), here she actually alleges facts demonstrating the opposite.

As Defendant points out, moreover, much of the differing treatment that Ayvazian and

Chen subsequently received appears, by Plaintiff’s own terms, to stem from the fact that they

were expected to perform different responsibilities after September 20, 2021. See Reply at 6–7.

While Plaintiff alleges that she was denied “the opportunity to compete for” a position

subsequently given to Chen, see Compl., ¶¶ 253–54, she nowhere states that she actually desired

to compete for the position, that it was expected to be a competitive selection process, or that

“the noncompetitive selection process was itself discriminatory.” Garrett v. Lujan, 799 F. Supp.

198, 200 (D.D.C. 1992). In sum, these allegations do not permit a reasonable inference that

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Chen was similarly situated to Ayvazian or that their differential treatment was attributable to her

protected characteristics.

“To plead intentional discrimination, [a] plaintiff cannot merely invoke [her protected

characteristics] in the course of a claim’s narrative and automatically be entitled to pursue

relief.” Mesumbe v. Howard University, 706 F. Supp. 2d 86, 92 (D.D.C. 2010) (quotation marks

omitted). Because Ayvazian has taken that route here, and because she has not otherwise

plausibly alleged that she and Chen were “similarly situated in some meaningful respect,”

Joyner, 2025 WL 1717402, at *4 (quotation marks omitted), her discrimination claim must be

dismissed.

C. Retaliation

Plaintiff’s retaliation count meets the same fate. Title VII makes it unlawful for an

employer to “discriminate against any of his employees . . . because [she] has opposed any

practice made an unlawful employment practice by this subchapter, or because [she] has made a

charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing under this subchapter.” 42 U.S.C. § 2000e-3(a); see id., §§ 2000e-16(d), 2000e-

5(g)(2)(A) (making § 2000e-3(a) applicable to Government employers); Rochon v. Gonzales,

438 F.3d 1211, 1219 (D.C. Cir. 2006) (holding that § 2000e-3 applies equally to Government).

To make out such a claim here, Ayvazian must allege that (1) she engaged in protected EEO

activity, (2) she suffered a materially adverse action by Defendant, and (3) the two are causally

connected. See Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Emps. of Libr. of

Cong., Inc. v. Billington, 737 F.3d 767, 772 (D.C. Cir. 2013).

Protected activity, as the statute suggests, consists of “participat[ing] in any manner” in

an EEO proceeding or “oppos[ing] any practice” Title VII forbids. See 42 U.S.C. § 2000e-3(a).

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In the retaliation context, materially adverse actions are those that “might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation marks omitted). They thus must

cause Plaintiff “material adversity, not trivial harms.” Wiley v. Glassman, 511 F.3d 151, 161

(D.C. Cir. 2007) (quotation marks omitted). To establish causation, moreover, Ayvazian must

show that Defendant’s desire to retaliate against her for her protected activity was the but-for

cause of the adverse employment actions she complains of. See Univ. of Texas Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 352 (2013). She may rely entirely on temporal proximity to do so — as

she appears to do here, see Opp. at 37 — “but only where the two events are very close in

time.” Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (quotation marks omitted).

Ayvazian’s Complaint alleges several discrete instances in which she engaged in

protected activity: her initiation of the three different EEO complaints as well as her August

2021 disclosure to her second-line supervisor that she felt her colleagues were engaged in

“unlawful . . . EEO practices.” Compl., ¶¶ 10–11, 24–25, 35–36, 81, 338. Once again putting

exhaustion to one side — which separately provides a reason to dismiss the first retaliation claim

regarding her removal discussed below — the Court will examine each in turn.

Plaintiff alleges that she contacted her second-line supervisor Paul Greenberg on August

10, 2021, to report discriminatory actions by her colleagues, and that her effective removal from

her position one month later constitutes unlawful retaliation for that conversation. Id., ¶¶ 13, 81,

338; Opp. at 37–38. A significant reduction in job responsibilities, as Plaintiff alleges here, can

qualify as an adverse employment action. See Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir.

2006). As Defendant notes, however, it was Plaintiff’s first-line supervisor Erin Patel, not

Greenberg, who was responsible for the change in her duties, see Compl., ¶ 13(a), and Ayvazian

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has not alleged that Patel knew of the August conversation with Greenberg. See MTD at 10.

That oversight is fatal.

It is well established that a supervisor “could not have retaliated against” a plaintiff

“unless [he] had knowledge of [the] protected activity.” Jones v. Bernanke, 557 F.3d 670, 679

(D.C. Cir. 2009); see Talavera v. Shah, 638 F.3d 303, 313 (D.C. Cir. 2011). Here, that means

that Plaintiff must allege facts permitting a reasonable inference that Patel knew of the

conversation before removing Ayvazian from her position. Jones, 557 F.3d at 679. She has not

done so. Nor has she alleged that the August conversation permits a reasonable inference that

Defendant, as an entity, had knowledge of her protected activity, which could be imputed to her

supervisor. Cf. id. (retaliatory motive can be inferred where “the employer had knowledge of the

employee’s protected activity, and the adverse personnel action took place shortly after that

activity”) (quoting Holcomb, 433 F.3d at 903). The Court therefore cannot conclude that

Ayvazian has adequately pled causation. Plaintiff, moreover, does not even address this

argument in her papers, see Opp. at 37–38, so the Court may also treat it as conceded. See

Savoy-Kelly v. E. High Sch., 2006 WL 1000346, at *4 (D.D.C. Apr. 14, 2006) (citing FDIC v.

Bender, 127 F.3d 58, 67–68 (D.C. Cir. 1997)).

Next, Ayvazian contacted an EEO counselor on September 20, 2021 — the day she was

removed from her position — and then filed a formal complaint on November 11 of that year.

See Compl., ¶¶ 10–11, 87. Yet Plaintiff does not argue that her effective removal constituted

retaliation for filing this first complaint, see Opp. at 37–39, and, given the timing, the Court does

not see how she could. Her first contact with a counselor happened on the very same day she

was reassigned, and she did not file the complaint until almost two months later. It is “hard to

argue” that she was removed from her position because of these actions if her supervisor was

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“completely unaware of” her protected activity at the time the removal decision was made.

Dudley v. Washington Metro. Area Transit Auth., 924 F. Supp. 2d 141, 182 (D.D.C. 2013).

Plaintiff then contacted an EEO counselor for the second time on October 11, 2022,

followed by a formal complaint on November 17 of the same year. See Compl., ¶¶ 24–25. She

argues in her Opposition that at least two retaliatory adverse employment actions followed: she

received a “lower than deserved performance appraisal” on November 19, and in December she

was forced to issue performance objectives for Chen with which she disagreed (and despite being

stripped of her supervisory duties), thus “undermining her supervisory autonomy.” Opp. at 38;

see Compl., ¶¶ 230, 237–45. Although Ayvazian does not raise the issue in her Opposition, it

also appears that, on January 4, 2023, Patel issued her a “Written Counseling for Conduct”

because she had “engaged in ‘inappropriate conduct’ and ‘lack of professionalism.’” Id., ¶ 247.

The Court is hard pressed to conclude that an action purportedly “undermining her

supervisory autonomy” — merely by requiring Plaintiff to rubberstamp another colleague’s

performance objectives — rises to the level of “material adversity.” Glassman, 511 F.3d at 161

(emphasis omitted). Letters of counseling and disappointing performance reviews, moreover,

constitute adverse actions in the retaliation context only when they contain “abusive language,”

affect an employee’s salary or other benefits, or result in other “adverse employment

consequences.” Spence v. United States Dep’t of Veterans Affs., 109 F.4th 531, 540 (D.C. Cir.

2024) (quotation marks omitted). Ayvazian does not allege that either the written counseling or

the performance review affected any aspect of her pay, work, or benefits, nor does she contend

that they contained anything other than “job-related constructive criticism.” Id. (quotation marks

omitted). What is more, the counseling letter appears to stem from Ayvazian’s insistence on

confronting a colleague for having treated Chen as the official Director of Nursing Education,

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even though, in Plaintiff’s telling, he had assumed that role only in an “acting” capacity. See

Compl., ¶¶ 248–49. Even were that letter an adverse action, then, Ayvazian’s own allegations

provide a ready, non-retaliatory explanation for it.

Finally, Plaintiff contacted an EEO counselor for the third time on August 8, 2023, and

filed her last formal complaint on September 18. Id., ¶¶ 35–36. In her Opposition, her only

argument concerning retaliation for this protected activity is to resurrect her allegation that Patel

“non-competitively selected Mr. Chen” for a position for which Plaintiff believes she was “better

qualified” — in June of 2023. See Opp. at 38. The Court is at a loss to see how a

noncompetitive selection that precedes her protected activity could somehow be retaliation for

that activity. Outside of this inexplicable argument, Ayvazian’s Complaint lists other potentially

adverse actions that shortly followed the initiation of this last complaint, such as another

disappointing performance review and the decision to allow Chen to attend conferences on the

department’s dime, which Plaintiff feels she ought to have attended. See Compl., ¶¶ 309–19. As

previously discussed, however, a performance review on its own does not constitute adverse

action, absent any indication that it affected the employee’s pay or caused other negative

consequences. See Spence, 109 F.4th at 540. Plaintiff also does not allege that the denial of the

opportunity to go to a conference resulted in any material adversity. As she herself

acknowledges, moreover, Chen attended those conferences qua Acting Director of Nursing

Education, a role she functionally no longer held. See Opp. at 18–19. There is thus little to

support the argument that the denial of these opportunities constituted adverse employment

actions or that they were causally linked to her protected EEO activity.

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In sum, despite engaging repeatedly in protected EEO activity across several years,

Ayvazian has not plausibly alleged that Defendant retaliated against her for that activity. The

Court will therefore dismiss Count II for failure to state a claim.

D. Hostile Work Environment

Finally, Plaintiff’s hostile-work-environment count must follow the others out the door.

To make out such a claim, she must plausibly plead that, because of her protected status, she was

“exposed to discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of [her] employment and create an abusive working

environment.” Joyner, 2025 WL 1717402, at *7 (quotation marks omitted); see Davis v. Coastal

Int’l Sec., Inc., 275 F.3d 1119, 1123–24 (D.C. Cir. 2002). Her allegations, moreover, “must also

be adequately linked such that they form a coherent hostile environment claim.” Joyner, 2025

WL 1717402, at *7 (quotation marks omitted). “For example, they might involve the same type

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

Baird v. Gotbaum, 792 F.3d 166, 169 (D.C. Cir. 2015) (cleaned up). Courts assessing such

claims must consider “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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23

(1993).

Defendant suggests that Plaintiff also may not rely solely on the same allegations

undergirding her discrimination and retaliation claims to support her hostile-environment count,

as Ayvazian clearly has done here. See MTD at 13. Even if she could, however, Count III

suffers from the same defect as her discrimination claim: she has not plausibly alleged that any

abusive environment that exists is attributable to her protected characteristics. As previously

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discussed, her Complaint is practically devoid of any facts linking her work environment to her

race, sex, or nationality, and Plaintiff herself does not even press that case in her Opposition.

See Opp. at 40; Reply at 10–11. Instead, all she alleges is the same formulaic sentence recited

verbatim in her discrimination count. See Compl., ¶ 351 (“Defendant’s management officials

were motivated in its adverse employment actions against Plaintiff by virtue of animus towards

Plaintiff caused by Plaintiff’s protected classes.”). Such conclusory assertions are not enough.

See In re U.S. Off. of Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d at 54.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s Motion to Dismiss. A

separate Order so stating will issue this day.

/s/ James E. Boasberg

JAMES E. BOASBERG

Chief Judge

Date: June 30, 2025

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