Thomas v. Power

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JANET THOMAS,

Plaintiff,

v.

Case No. 23-cv-2637 (TSC)

MARCO RUBIO, in his official capacity

as Acting Administrator of the U.S.

Agency for International Development,

Defendant.

MEMORANDUM OPINION

Plaintiff Janet Thomas brings this action pro se, pursuant to Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e-16 (Title VII), and the Foreign Service Act of 1980,

22 U.S.C. § 3901 et seq., against her former employer, the United States Agency for

International Development (USAID), in connection with the termination of her employment by

that agency. See Resubmitted 4th Am. Compl. ¶¶ 1–2, 10, ECF No. 41 (“4th Am. Compl.”).

USAID has moved to dismiss Counts One, Four, Five, Six, and Seven, as well as portions of

Count Three.1 Def.’s Mot. to Dismiss 4th Am. Compl. at 1, ECF No. 40 (“MTD”). Thomas

opposed the Motion and moved for leave to file a surreply. ECF Nos. 42, 46. For the reasons set

forth below, the court will GRANT in part and DENY in part USAID’s Motion to Dismiss and

DENY Thomas’s Motion for Leave to File Surreply.

1

There is no Count Two. See generally 4th Am. Compl.

I. BACKGROUND

A. Factual Background2

Thomas, an African American woman, was employed with USAID as a Foreign Service

Education Development Officer from 2015 until her termination in October 2019. See 4th Am.

Compl. ¶¶ 10, 22–25, 43. In May 2017, she was assigned as Deputy Director of USAID’s

Education Office at the U.S. Embassy in Abuja, Nigeria, a position she held until April 2019. Id.

¶ 10. Thomas’s first level supervisor was Denise O’Toole, and her second level supervisor was

Steve Haykin. Id. ¶¶ 23–24.

Soon after O’Toole became Thomas’s supervisor, she informed Thomas that Haykin did

not support tenure for Thomas based on performance issues. 4th Am. Compl. ¶ 26. Thomas

provided O’Toole with documentation showing that she had performed well on the tasks Haykin

referenced. Id. ¶ 29. Thomas alleges that O’Toole proceeded to raise further performance

concerns about her that were unfounded, insulted and intimidated her, reduced her work duties,

omitted her from office functions, and denied her rest and recuperative leave. Id. ¶¶ 30–32.

In March 2019, USAID’s Executive Office notified Thomas that she would have to repay

money for Emergency Visitation Travel that Haykin had approved almost a year earlier, based on

Thomas’s misrepresentation of the grounds for the travel. 4th Am. Compl. ¶ 34a. In April 2019,

Thomas received a letter of admonishment based on allegedly false claims made by O’Toole. Id.

¶ 34b. Thomas finished her assignment in Nigeria in April 2019 and was reassigned as the Higher

Education Team Lead in Kabul, Afghanistan. 4th Am. Compl. ¶ 25. On May 2, 2019, Haykin

sent Thomas an unfavorable tenure evaluation. Id. ¶ 36.

2

Thomas’s factual allegations are presumed true for purposes of analyzing USAID’s Motion to

Dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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In August 2019, Thomas began her new assignment in Afghanistan. 4th Am. Compl.

¶ 38. On September 13, 2019, two days after Thomas had provided sworn testimony to USAID’s

Equal Employment Opportunity Office (EEO), she was recalled to Washington. Id. ¶¶ 39–40.

Subsequently on October 7, 2019, Thomas was placed on administrative leave for performance

issues connected to her service in Nigeria. Id. ¶ 41. By letter dated October 9, 2019, referencing

a Tenure Denial Letter from June 28, 2019 that Thomas alleges she had not received, USAID

terminated Thomas’s employment, effective November 2019. Id. ¶¶ 43–44. The termination was

based on the fact that Thomas was denied tenure by the Summer 2019 Tenure Board, which

concluded that she lacked the potential to effectively serve as a career Foreign Service Officer.

See id.; see also Ex. 28, Pl.’s Opp’n to MTD, June 2019 Letter, ECF No. 26-4. 3

Thomas never received her final pay or personal belongings held in a USAID storage

facility. 4th Am. Compl. ¶ 47.

B. Procedural Background

Thomas began EEO counseling in November 2018. 4th Am. Compl. ¶ 33. On September

11, 2019, she provided a sworn statement to the EEO office. On October 21, 2019, Thomas

notified USAID that she intended to file a wrongful termination claim, which she did in December

2019. Id. ¶¶ 45, 52. In April 2020, Thomas filed an EEO claim for retaliation. Id. ¶ 53.

On September 8, 2023, Thomas filed her first Complaint in this case as Jane Doe, and

simultaneously moved to proceed under a pseudonym, which the court denied. ECF Nos. 1–2, 4.

Thomas then refiled her Complaint using her name, followed by an Amended Complaint. ECF

Nos. 6, 13. The parties briefed USAID’s Motion to Dismiss the Amended Complaint. ECF Nos.

3

The court may consider documents referenced in the complaint which are made part of the

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

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14, 16–17. Thomas then filed a Second Amended Complaint. ECF No. 19. USAID moved to

dismiss, considering this to be a Third Amended Complaint because of the two prior amended

Complaints. ECF No. 20. Thomas then moved for leave to file a Fourth Amended Complaint,

ECF Nos. 33, 37, which the court granted. See Min. Order (Mar. 26, 2025). USAID moved to

dismiss that Complaint in part, and the Motion has been fully briefed. ECF Nos. 40, 42, 44–45.

Thomas then moved for leave to file a surreply, which also has been fully briefed. ECF Nos. 46–

48, 50.

II. LEGAL STANDARDS

A motion to dismiss under Rule 12(b)(6) for failure to state a claim tests the legal

sufficiency of the allegations in the complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.

2002). To overcome a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Not only are the factual allegations accepted as true, but the court must draw all reasonable

inferences from the facts alleged in the plaintiff’s favor. Aktieselskabet AF 21. Nov. 2001 v. Fame

Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008). “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Ashcroft, 556 U.S. at 678 (citing Bell Atl. Corp, 550 U.S. at 556). Even though detailed factual

allegations are not required, the plaintiff must provide sufficient detail to rise above a mere claim

that the defendant has caused the plaintiff some harm. Id.; Yukon-Kuskokwim Health Corp. v.

United States, 444 F. Supp. 3d 215, 218 (D.D.C. 2020).

A pro se litigant is held to less stringent standards of pleading than those applied to

attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). Although courts “must construe pro se

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filings liberally,” pro se litigants must nonetheless comply with the Federal Rules of Civil

Procedure. Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999); Jarrell v. Tisch, 656

F. Supp. 237, 239 (D.D.C. 1987).

III. DISCUSSION

A. Foreign Service Act of 1980 – Counts One and Six

1. No Independent Cause of Action for Termination

In Counts One and Six, Thomas alleges that when USAID terminated her, it failed to

provide her with due process required under the Foreign Service Act of 1980 (FSA), such as fair

notice, a right to be heard and adherence to the Agency’s procedures. See 4th Am. Compl. at

Count One and Count Six. For support, Thomas cites 22 U.S.C. § 4007, which she claims requires

that career candidates like herself be given notice and an opportunity to be heard before

termination. Pl.’s Opp’n, ECF No. 42.

USAID correctly notes that § 4007 applies to terminations for exceeding the “maximum

time in class limitations,” which pertains to the time period in which Foreign Service Officers and

other covered individuals “may remain in a single salary class or in a combination of salary

classes.” Def.’s Reply at 3, ECF No. 44. USAID argues that 22 U.S.C. § 4007 is inapplicable

because Thomas was not terminated for exceeding her maximum time in class. Id. at 3 n.1. The

court agrees.

The FSA “provides ‘a comprehensive system for reviewing personnel action[s] taken

against [Foreign Service] employees.’” U.S. Info. Agency v. Krc, 989 F.2d 1211, 1217 (D.C. Cir.

1993) (citation omitted). Under the FSA, the Foreign Service Grievance Board (FSGB) is charged

with resolving individual complaints, known as grievances. Am. Foreign Serv. Ass’n v. Trump,

768 F. Supp. 3d 6, 20–21 (D.D.C. 2025). A grievance “is defined broadly under the FSA, and

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includes ‘any act, omission, or condition subject to the control of the Secretary of State which is

alleged to deprive a member of the Foreign Service . . . of a right or benefit authorized by law or

regulation or which is otherwise a source of concern or dissatisfaction to the member.’” Id. at 21

(quoting 22 U.S.C. § 4131(a)(1)). The FSA “permits any party ‘aggrieved’ by a ruling of the

FSGB to ‘obtain judicial review of a final action of . . . the Board . . . in the district courts of the

United States.’” Hill v. Blinken, No. 18-cv-2518, 2023 WL 2351724, at *4 (D.D.C. Mar. 3, 2023)

(quoting 22 U.S.C. § 4140(a)).

Thomas does not allege that she is aggrieved by any decision made by the FSGB, or that

she even filed a grievance with the Board. See generally 4th Am. Compl. Instead, Thomas argues

that she was a career candidate Foreign Service Officer, appointed to a tenure track, and that career

candidates may not be terminated unless they receive notice and an opportunity for a hearing

before the Performance Standards Board (PSB), which Thomas argues hears grievances for

USAID. Pl.’s Opp’n at 4. Thomas contends that she was never afforded a hearing before the PSB,

but offers no support for her claim that she was somehow relieved of the FSA’s obligation to file

a grievance with the FSGB before bringing her case to court. See id. at 4–6. The fact that USAID

informed Thomas that the PSB was to review her performance evaluation file, see id. at 5, did not

relieve Thomas of the obligation to file a grievance before the FSGB before seeking judicial review

of her claims. This is especially true given that, as explained above, Thomas was terminated not

through the PSB process but because the Tenure Board concluded that she lacked the potential to

effectively serve as a career Foreign Service Officer. See June 2019 Letter. Although the Tenure

Board’s recommendation is not per se reviewable by the FSGB, the Tenure Board bases its

recommendation on an employee’s personnel records, and an employee may file a grievance with

the FSGB challenging any alleged inaccuracies in those records. Miller v. Baker, 969 F.2d 1098,

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1098–99 (D.C. Cir. 1992) (citing 22 U.S.C. § 4131(b)(2), (b)(3)). Thus, Thomas’s recourse to

challenge the Tenure Board’s decision was to file a grievance before the FSGB regarding the facts

underlying that decision. She failed to do so and therefore cannot challenge that decision in this

court.

Notwithstanding these deficiencies, Thomas filed an EEO claim for wrongful termination,

but her claim that her termination was based on discrimination cannot be brought under the FSA.

The law is clear that Title VII is the exclusive remedy for discrimination claims by federal

employees. Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976); see also Alhayoti v. Blinken,

No. 21-cv-7713, 2022 WL 2869850, at *1, 4–5 (N.D. Cal. July 21, 2022) (dismissing

discrimination claims about violations of State Department policies due to Title VII’s exclusive

remedy).

Thus, to the extent that Thomas alleges under the FSA that her termination was

discriminatory, the court dismisses her claim on that basis as well.

2. USAID Policies and Directives

Thomas also alleges that USAID failed to extend to her the rights and protections afforded

under USAID’s internal guidelines and procedures. 4th Am. Compl. at Count Six. In particular,

Thomas cites ADS 464, Foreign Service Performance-Based Actions, and ADS 414, Tenure

Process and Policies for Foreign Service Career Candidates. Id. ¶ 50. Thomas offers no authority

allowing her to bring claims before this court concerning these internal guidelines. See id.; see

also Pl.’s Opp’n at 5–6. In fact, a similar type of claim was rejected by the court in Alhayoti, in

which a State Department employee claimed that the Department had discriminated against him

by violating the Foreign Affairs Manual. The court there held that “Title VII provides the

exclusive basis for relief. Therefore, the claims based on the Department’s internal policies . . .

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are dismissed with prejudice.” Alhayoti, 2022 WL 2869850, at *1; see also id. at *4 (explaining

that “the regulations in the Foreign Affairs Manual do not, in general, create a private right of

action” (citing Rouse v. Dep’t of State, 567 F.3d 408, 418 (9th Cir. 2009), and Brown, 425 U.S. at

835)). Accordingly, the court dismisses Count Six alleging violation of USAID’s policies and

procedures.

C. Inference of Racial Discrimination – Count Five

Under Title VII, to survive a motion to dismiss, a plaintiff must plead sufficient facts to

show that an inference of discrimination from the actions alleged is reasonable and plausible. See

Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016). It is insufficient for a plaintiff to allege

merely that she is African American and adverse or unfair actions were taken against her at work.

See Forman v. Small, 271 F.3d 285, 291, 293 (D.C. Cir. 2001). Absent any direct evidence of

discrimination, a plaintiff must plead facts that constitute indirect evidence of discrimination.

Brown v. Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014). This may take the form of comparator

evidence, offered to show that she was treated differently than other similarly situated employees

outside her protected group. Id. Thomas alleges no direct evidence of discrimination and instead

relies on comparator evidence.

USAID contends that Thomas’s comparator allegations are insufficient because

“[c]omparator employees are similarly situated only if ‘all of the relevant aspects of the plaintiff’s

employment situation are nearly identical to those of the’ comparator” and Thomas has not made

this showing. Def.’s MTD Br. at 13, ECF No. 40-1. But “the nearly identical standard is” the

standard “for summary judgment or at trial, once plaintiffs have had the benefit of discovery.”

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Joyner v. Morrison & Foerster LLP, 140 F.4th 523, 530 (D.C. Cir. 2025) (cleaned up). 4 The

pleading standard, by contrast, is “substantially [less] onerous,” see Nanko Shipping, USA v. Alcoa,

Inc., 850 F.3d 461, 467 (D.C. Cir. 2017), and the D.C. Circuit has “never required a complaint to

include factual allegations showing that the comparator’s circumstances are nearly identical to the

plaintiff’s in all relevant respects.” Joyner, 140 F.4th at 531 (cleaned up). At the pleading stage,

a plaintiff need only allege “that a comparator was similarly positioned to the plaintiff in at least

some relevant respects, and include[] enough detail that [the court] can plausibly infer that

discrimination caused the defendant’s differential treatment of the plaintiff.” Id.

Thomas has made this lesser showing. Specifically, she alleges that both she and her

comparator—a White woman—were foreign service officers who started at USAID at “the same

time” and “were trained in the same cohort.” 4th Am. Compl. ¶ 51. Both “served at the Nigeria

mission . . . at the same time” and under the same second-level supervisor, Haykin. Id. Both “were

on the same tenure timeline,” and the comparator, like Thomas, “was initially not recommended

for tenure.” Id. Given these significant similarities—same position, same posting, same

supervisor, and same seniority—but differential treatment, it is at least plausible to infer at this

early stage that Thomas was treated differently because of her race.

USAID resists this notion, contending that Thomas and her comparator were not “similarly

situated with respect to the tenure decision” because Thomas did not allege that the comparator

had the same performance issues that Thomas had. Def.’s MTD Br. at 14. But this argument begs

the question. After all, Thomas specifically alleges that her negative performance evaluations

were false and a pretext for discrimination, and that they were contradicted by previous praise for

4

Although Joyner is a Section 1981 case, the D.C. Circuit “use[s] the same framework for

determining whether unlawful discrimination has occurred” under Title VII. 140 F.4th at 534

(quoting Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam)).

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her work. See 4th Am. Compl. ¶¶ 28–31, 36. USAID’s argument is thus improper because it asks

the court to resolve a factual dispute at the pleading stage and credit USAID’s position that Thomas

was a bad employee over Thomas’s allegations that her negative evaluations were false, pretextual,

and discriminatory. Before this factual dispute can be resolved, Thomas “must first be given an

opportunity to show through discovery that . . . Defendants’ non-discriminatory reason for denying

her [tenure] is a pretext for discrimination.” Barrett v. Pepco Holdings, 275 F. Supp. 3d 115, 121

(D.D.C. 2017). The court will therefore deny Defendants’ Motion to Dismiss with respect to Count

Five.

D. Hostile Work Environment – Count Four

To state a claim for a hostile work environment, a plaintiff must plead facts sufficient to

show that “[s]he 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.’” Durant v. D.C. Gov’t, 875 F.3d 685, 700 (D.C. Cir. 2017) (quoting Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To determine whether a hostile work environment

exists, the court evaluates “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, 510 U.S. at 23. Title VII is not a

“general civility code”; instead, the conduct must be so extreme as to amount to a change in the

terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

A hostile work environment generally is not based on “the ordinary tribulations of the workplace.”

Buie v. Berrien, 85 F. Supp. 3d 161, 180 (D.D.C. 2015) (internal citations omitted).

Thomas claims that she was subjected to a hostile work environment when her first level

supervisor, O’Toole, “insulted and intimidated Plaintiff, reduced Plaintiff’s work duties, omitted

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Plaintiff from office functions and denied Plaintiff’s rest and recuperation leave.” 4th Am. Compl.

¶ 32. Thomas also alleges that she was subjected to “isolation, and eventual termination.” Id. at

Count Four.

Thomas has not alleged acts, alone or in combination, that show she was subjected to severe

and pervasive conduct that amounted to an abusive work environment. She claims that she was

insulted and intimidated, but, beyond those conclusory allegations, she alleges no facts identifying

any specific type of conduct that could constitute an insult or intimidation nor does she allege when

or how often any insult and intimidation occurred. These conclusory statements cannot support a

claim of hostile work environment, as they fail to demonstrate any severe or pervasive conduct.

See, e.g., Johnson v. District of Columbia, 49 F. Supp. 3d 115, 121 (D.D.C. 2014) (conclusory

allegations fail to state a claim for hostile work environment).

With respect to Thomas’s claim that her work duties were reduced in some unspecified

way, she was omitted from unspecified office functions, and she was denied an unspecified amount

of leave, all over an unspecified amount of time, none of these allegations, individually or together,

rises to the level of abusive conduct sufficient to state a claim for a hostile work environment. See,

e.g., Pearsall v. Holder, 610 F. Supp. 2d 87, 98–99 & n.10 (D.D.C. 2009) (finding that the

“indignities” alleged by plaintiff, including assigning him a substandard office space, denying him

training, denying him the opportunity to telecommute on a temporary basis for medical reasons,

excluding him from certain meetings, and generally underutilizing his skills and experience, did

not support a hostile work environment claim); Kline v. Springer, 602 F. Supp. 2d 234, 239–43

(D.D.C. 2009) (rejecting hostile work environment claim based on “fully successful” performance

evaluation, denial of request to telework, an offensive email from a supervisor, removal of

administrative rights to computer program, denial of private office space, an audit of time records,

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reprimand, and tampering with leave). Thomas’s remaining allegation that she was subject to

repeated false evaluations of her work performance likewise fails to move the needle, as “negative

performance reviews—even if inaccurate[]—are not strong indicia of a hostile work environment.”

Hutchinson v. Holder, 815 F. Supp. 2d 303, 322 (D.D.C. 2011).

Because Thomas has failed to plead facts showing severe and pervasive abusive conduct,

her hostile work environment claim must be dismissed.

E. Retaliation Claim – Count Three

1. Materially Adverse Actions

To state a claim for retaliation under Title VII, a plaintiff must plead facts from which it

may be plausibly inferred: “(1) that [s]he engaged in a statutorily protected activity; (2) that the

employer took an adverse personnel action; and (3) that a causal connection existed between the

two.” Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 651 (D.C. Cir. 2003). “[N]ot

everything that makes an employee unhappy is an actionable adverse action.” Bridgeforth v.

Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013). An action is considered “materially adverse” if it

would have dissuaded an individual from filing a claim of discrimination. Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

In her Complaint, Thomas alleges that USAID retaliated against her by terminating her

employment, placing negative information in a credit report, withholding her final pay and refusing

to return her belongings that USAID held in storage. 4th Am. Compl. at Count III. USAID does

not contest that these actions could be considered materially adverse, except for placing negative

information in a credit report. Def.’s MTD Br. at 18–19.

The court finds that Thomas’s allegation that “a derogatory account was placed on

Plaintiff’s credit report from the Department of Treasury for a false debt created by USAID” also

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qualifies as a materially adverse action. See 4th Am. Compl. ¶ 48. Consequently, all four of

Thomas’s claims involve materially adverse actions. 5

In her opposition brief, Thomas argues that all of USAID’s actions against her after she

initiated the EEO process in November 2018 constitute “an orchestrated campaign [of retaliation]

designed to create a pretext for her termination.” Pl.’s Opp’n at 10. This includes alleged false

performance allegations, a letter of admonishment, a requirement to repay travel money, and an

unfavorable tenure recommendation. See id.; see also 4th Am. Compl. ¶¶ 34–41. The court finds

that at the motion to dismiss stage, Thomas has sufficiently pled materially adverse actions to

support a retaliation claim under Title VII.

2. Causation for Certain Retaliatory Acts

USAID argues that certain portions of Thomas’s retaliation claim must be dismissed

because Thomas has failed to show causation between her use of the EEO process and some of the

alleged adverse actions—specifically, the retraction of approval for Emergency Visitation Travel

funding in March or April 2019, which resulted in the negative credit reporting, and the

“unfavorable Tenure Evaluation Form” in May 2019. Defs.’ MTD Br. at 19–20. 6

Although Thomas started EEO counseling in November 2018, see 4th Am. Compl. ¶ 33,

USAID suggests that Thomas’s supervisors did not become aware of any protected activity until

5

USAID also argues that Thomas failed to exhaust her administrative remedies with respect to

the agency’s retention of her belongings, because she did not raise this claim in her post-

termination April 2020 EEO complaint. Def.’s MTD Br. at 20–21. Thomas responds that she had

been told by individuals responsible for her termination that her belongings would be returned to

her. Pl.’s Opp’n at 11. Because Thomas claims reasonable reliance on a government official’s

representation, the court declines to dismiss this claim for failure to exhaust administrative

remedies. See Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997).

6

USAID urges the court to treat its argument as conceded because Thomas did not respond to it

in her opposition. See Def.’s Reply at 9. “When a party fails to specifically respond to certain

arguments, a court ‘may’—but need not—treat those arguments as conceded.” D.C. Int’l Pub.

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Thomas submitted sworn testimony in September 2019. See Def.’s MTD Br. at 20. It is true that

Thomas’s “supervisors could not have retaliated against [her] unless they had knowledge of [her]

protected activity” and Thomas does not allege any other facts that show her supervisors knew she

had initiated EEO counseling in November 2018. See Jones v. Bernanke, 557 F.3d 670, 679 (D.C.

Cir. 2009). But Thomas “needn’t provide direct evidence that [her] supervisors knew of [her]

protected activity.” Id. USAID, as Thomas’s employer, no doubt had notice that Thomas had

initiated EEO counseling, which, after all, “serves the purpose of ‘enabling the agency and its

employee to try to informally resolve the matter before an administrative charge is filed.’” Koch

v. Walter, 935 F. Supp. 2d 143, 151 (D.D.C. 2013) (quoting Artis v. Bernanke, 630 F.3d 1031,

1034 (D.C. Cir. 2011)). And the fact that Thomas’s “employer had knowledge of [her] protected

activity, and the adverse personnel action took place shortly after that activity,” is “adequate to

permit an inference of retaliatory motive,” at least at the pleading stage. Jones, 557 F.3d at 679

(quoting Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006)). In other words, the fact that

USAID was generally aware of Thomas’s November 2018 protected activity “can support an

inference” that her supervisors specifically were aware of that activity when they took materially

adverse actions months later. Id.; see also Williams v. District of Columbia, 317 F. Supp. 3d 195,

201 (D.D.C. 2018) (“The D.C. Circuit has held that a plaintiff is not required to allege that a

Charter Sch. v. Lemus, 2022 WL 873549, at *3 n.2 (D.D.C. Mar. 24, 2022) (quoting Campaign

Legal Ctr. v. FEC, 520 F. Supp. 3d 38, 50 (D.D.C. 2021)). The court declines to do so here.

Although Thomas’s opposition is imperfect, it does dispute USAID’s causation argument by

contending that its retaliatory “actions were taken in direct response to the Plaintiff’s protected

activity.” Pl.’s Opp’n at 10–11. Given that Thomas is pro se and held “to less stringent standards,”

the court will give her some leeway. Martin v. Donley, 886 F. Supp. 2d 1, 12 (D.D.C. 2012)

(quoting Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)).

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specific supervisor had knowledge of protected activity to plead a claim for retaliation” if the

agency generally knew about that activity.)

USAID next suggests that there is insufficient temporal proximity between Thomas’s

initiation of EEO counseling in November 2018 and the retraction of travel funding in March 2019.

It contends that “alleging retaliation that occurred more than three months after the employee’s

protected activity generally fails to state a claim.” Def.’s MTD Br. at 19. Although there is a four-

month gap between the November 2018 protected activity and the March 2019 adverse action,

there is “no bright line rule” regarding temporal proximity; it depends on the facts of the case. See

Pueschel v. Chao, 955 F.3d 163, 167 (D.C. Cir. 2020). While a four-month gap may ultimately

prove insufficient to establish causation if no other evidence emerges during discovery and no

other circumstances are identified, the D.C. Circuit “sometimes accept[s] an adverse employment

action occurring within three to four months of the protected activity as sufficient to allow an

inference of causation.” Spence v. U.S. Dep’t of Veterans Affs., 109 F.4th 531, 540 (D.C. Cir.

2024); see also Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 69 (D.C. Cir. 2015) (five-month

gap plus other circumstantial evidence of retaliation “sufficient . . . at the summary judgment

stage”). The court will therefore allow Thomas’s retaliation claim to proceed to discovery and

denies USAID’s Motion with respect to Count Three.

F. The EEO Process – Count Seven

In Count Seven, Thomas alleges that USAID failed to conduct a fair and unbiased EEO

investigation into her claims. In particular, she contends that the EEO office omitted key facts and

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material evidence, failed to properly investigate her claims, and failed to remedy the discrimination

and retaliation she allegedly experienced. 4th Am. Compl. at Count VII.

USAID responds that Thomas has no cause of action for a separate claim targeting the EEO

process, and that the remedy for an allegedly faulty EEO process is to sue on the underlying claims.

Def.’s MTD Br. at 21.

Relying on Rann v. Chao, 346 F.3d 192, 197 (D.C. Cir. 2003), Thomas counters that this

Circuit has recognized that federal employees are entitled to Title VII’s protections and procedures

and may seek judicial relief when these protections and procedures are violated. Pl.’s Opp’n at

13. But in Rann, the Court did not address any right of action for alleged EEO process error,

instead holding that a plaintiff has failed to exhaust his administrative remedies when he refuses

to cooperate in an EEO investigation. See generally 346 F.3d 192.

As the court noted in Koch v. White, 967 F. Supp. 2d 326 (D.D.C. 2013), “[t]o the extent

that an agency’s improper processing of an administrative complaint results in the agency’s failure

to address the underlying violation of an anti-discrimination statute, this harm to the employee can

be remedied through the employee’s right of action in federal court.” Id. at 336. Indeed,

“‘Congress has not authorized, either expressly or impliedly, a cause of action against the EEOC

[or by extension a federal agency’s EEO office] for . . . alleged negligence or other malfeasance

in processing an employment discrimination charge.’” Vetere v. N.Y. State Gov’t, No. 19-cv-2834,

2019 WL 5549833, at *2 (D.D.C. Oct. 24, 2019) (parenthetical in original) (quoting Smith v.

Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (per curiam); see also Etokie v. Duncan, 202 F. Supp.

3d 139, 150 n.8 (D.D.C. 2016) (remedy for alleged irregularities in the processing of

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discrimination administrative complaint is to sue agency directly regarding the alleged

discrimination). Consequently, the court grants USAID’s Motion to Dismiss Count Seven.

G. Motion for Leave to File a Surreply

The filing of a surreply is disfavored and generally only permitted to address a new

argument or respond to a mischaracterization raised in a reply motion. Kiewit Power Constructors

Co. v. Sec’y of Labor, 959 F.3d 381, 393 (D.C. Cir. 2020). It is not to be used to further address

arguments raised in substantial form in the opening motion or to respond to arguments in a reply

brief that responded to the opposition brief. Id.

Thomas moved for leave to file a surreply, on the grounds that USAID “presented new

arguments, misrepresented the facts and presented a materially different framing of previously

raised issues that mischaracterize Plaintiff’s claims.” Pl.’s Surreply Mot. ¶ 3, ECF No. 46. She

contends that USAID’s argument that she was required to file a grievance with the FSGB in order

to obtain a hearing was new and misleading. Pl.’s Proposed Surreply at 2, ECF No. 46-1. On the

contrary, USAID argued in its opening brief that Thomas could only seek judicial review under

the FSA after receiving a final decision by the FSGB. Def.’s MTD Br. at 7–8. USAID further

explained, in response to Thomas’s argument that the PSB process was applicable to her

termination, that Thomas’s employment was terminated by a Tenure Board decision and so the

PSB proceedings were inapplicable. Compare Pl.’s Opp’n at 4–5 with Def.’s Reply at 3–4. As

the D.C. Circuit noted in Kiewit Power Constructors Co., “[t]hat the Secretary draws different

conclusions from the underlying sources is insufficient to justify a rebuttal. And to the extent that

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the Secretary adopted any ‘new’ position, he was simply responding to contentions made by

Kiewit. This is the very nature of a reply brief.” 959 F.3d at 393.

Finally, Thomas’s argument that USAID has “consistently failed to address the core issue”

of her retaliatory termination, Pl.’s Proposed Surreply at 3, amounts to no more than an attempt to

further bolster her previous arguments about her termination. “Allowing rebuttal argument on

these facts risks opening the door to any litigant that disagrees with the opposing party’s arguments

to evade the standard briefing requirements and gain the last word. We decline to do so . . . .”

Kiewit Power Constructors Co., 959 F.3d at 393–94. This court reaches the same result here and

denies Thomas’s Motion for Leave to File a Surreply.

IV. CONCLUSION

For the reasons set forth above, the court will DENY Thomas’s Motion for Leave to File a

Surreply. The court will GRANT in part and DENY in part USAID’s Motion to Dismiss.

Specifically, the court will DISMISS Counts One, Four, Six, and Seven, and permit Counts Three

and Five to proceed. A separate order will accompany this opinion.

Date: March 25, 2026

Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge

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