Stewart, Sonya v. Evans, Donald L.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2001 Decided January 11, 2002

No. 01-5036

Sonya G. Stewart,

Appellant

v.

Donald L. Evans, in his official capacity as

Secretary of Commerce, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 00cv01241)

Larry Klayman argued the cause and filed the briefs for

appellant.

Kathleen A. Kane, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were

Kenneth L. Wainstein, U.S. Attorney at the time the brief

was filed, and Marleigh D. Dover, Attorney.

Before: Ginsburg, Chief Judge, Rogers and Garland,

Circuit Judges.

Opinion for the Court filed by Chief Judge Ginsburg.

Ginsburg, Chief Judge: Sonya Stewart, an employee of the

Department of Commerce, sued the Secretary of Commerce

and two departmental employees, alleging that another em-

ployee discriminated against her because of sex by berating

her with profanity in a phone conversation, and that when she

filed a complaint the Department retaliated against her in

various ways, all in violation of Title VII of the Civil Rights

Act of 1964. She also alleged that the two employees illegally

searched her private documents pertaining to the discrimina-

tion complaint, in violation of the Fourth Amendment to the

Constitution of the United States. The district court granted

the defendants' motion to dismiss.

We affirm the judgment of the district court dismissing the

Title VII claims -- sexual harassment and retaliation -- for

the reasons stated in the Memorandum Opinion filed by the

district court and appended hereto. We reverse the judg-

ment of the district court dismissing Stewart's Fourth

Amendment claim, and remand that aspect of the case to the

district court for further proceedings.

I. Background

Sonya Stewart, an employee at the Department of Com-

merce, alleges that Frank DeGeorge, when he was Inspector

General of the Department, berated her with a tirade of

profanity in a telephone conversation on May 3, 1996. Stew-

art reported the incident to an equal employment opportunity

counselor within the Department and eventually filed a for-

mal complaint. Thereafter the Equal Employment Opportuni-

ty Commission investigated the situation, and the Depart-

ment ultimately notified Stewart that her claim had been

rejected.

According to Stewart, between the time she first reported

the incident and the time she received the Department's final

decision, the Acting General Counsel of the Department, Sue

Esserman; the Assistant General Counsel for Administration,

Barbara Fredericks; and the Chief of the Employment Law

Division, Kathleen Taylor, all engaged in various acts of

retaliation against her. Stewart also claims to have kept

detailed notes about the initial incident and the acts of

retaliation, including notes about "strategies for pursuing her

claim." Stewart says she initially kept these notes and

related documents in her office at the Department but later

agreed to give them to John Sopko, Chief Counsel of the

Special Matters Unit, to be kept in part in a safe and in part

in a locked cabinet. Stewart claims she agreed to give Sopko

the documents only upon being assured that no one, including

specifically Fredericks and Taylor, would see them. Freder-

icks and Taylor knew about this arrangement but nonetheless

reviewed the files while Stewart was on sick leave in August,

1998.

In February, 2000 Stewart sued the Department under

Title VII for the abusive comments and the retaliation, and

sued Fredericks and Taylor under the Fourth Amendment

for reading her private papers. The district court granted

the defendants' motions to dismiss the claims. The court

reasoned that the Civil Service Reform Act, 5 U.S.C.

ss 2301-2305, which established a system of administrative

remedies for improper actions by supervisors in the federal

workplace, precludes Stewart from recovering under the

Fourth Amendment for the allegedly illegal search. The

court also ruled that the profane tirade to which she was

allegedly subjected did not constitute sex discrimination, and

that none of the alleged acts of retaliation constituted an

"adverse employment action" under Title VII. Stewart ap-

peals in all respects.

II. Analysis

The Civil Service Reform Act, which identifies certain

prohibited "personnel actions" in the federal civil service and

creates administrative remedies for the benefit of any em-

ployee subjected to such an action, by implication also pre-

cludes an aggrieved employee from suing the Government or

a fellow employee for damages for engaging in such action.

Bush v. Lucas, 462 U.S. 367 (1983). In Bush, the Supreme

Court held that an employee of the federal government may

not recover damages when his superior improperly disciplines

him for exercising his rights under the First Amendment

because "such claims arise out of an employment relationship

that is governed by comprehensive procedural and substan-

tive provisions giving meaningful remedies against the United

States," referring to the CSRA. 462 U.S. at 368. The Court

reasoned that to "creat[e] ... a new judicial remedy for the

constitutional violation at issue" would disrupt the "elaborate

remedial system that has been constructed [by the Congress]

step by step, with careful attention to conflicting policy

considerations." Id. at 388.

Fredericks and Taylor maintain that if the CSRA precludes

a Bivens action based upon an alleged violation of the First

Amendment, then it must similarly preclude Stewart's Bivens

action based upon an alleged violation of the Fourth Amend-

ment. Stewart replies by pointing out that in footnote 28 in

Bush the Court explicitly distinguished a warrantless search

from a violation of the First Amendment: "Not all personnel

actions are covered by this system.... [C]ertain actions by

supervisors against federal employees, such as wiretapping,

warrantless searches, or uncompensated takings, would not

be defined as 'personnel actions' within the statutory

scheme." Id. at 385 n.28. Because, Stewart argues, a war-

rantless search falls outside the condemnation (and, we pre-

sume, the approbation) of the statutory scheme, that scheme

cannot preclude a Bivens action based upon such a search. Cf.

Carlson v. Green, 446 U.S. 14, 20-21 (1980) (holding that the

Federal Tort Claims Act does not preclude actions for viola-

tion of rights under the Constitution).

A district court in this circuit accepted the precise argu-

ment Stewart advances, McGregor v. Greer, 748 F. Supp. 881,

889 (1990), but the Ninth Circuit took the opposite view in

Saul v. United States, 928 F.2d 829, 839 (9th Cir. 1991) ("We

do not think the footnote [in Bush] was meant to decide

whether every allegation that a supervisor has subjected a

federal employee to a warrantless search is barred from

appeal under the CSRA. Read in context, the footnote

indicates only that CSRA remedies, while comprehensive, are

not infinitely so"). We agree with the district court in

McGregor. The disputed footnote in Bush is appended to the

Supreme Court's analysis of the comprehensiveness of the

statutory scheme. The Court held that the CSRA precludes

a Bivens action based upon a violation of an employee's First

Amendment rights because the statute covers such a violation

(regardless whether it provides a remedy for it). By noting

that a warrantless search is not a "personnel action[ ] ...

covered by this system," and stating that such a search does

not fall "within the statutory scheme," Bush virtually compels

the conclusion that the Act does not preclude a Bivens action

for a warrantless search.

Fredericks and Taylor contend that Stewart's lawsuit

should be dismissed even if it is not precluded by the CSRA,

but their arguments are not persuasive. First, the defen-

dants suggest that Stewart must exhaust her remedies under

the CSRA before bringing a Bivens action. This makes no

sense: The reason the CSRA does not preclude Stewart's

lawsuit is precisely that the statute is not concerned with the

conduct of which she complains; we cannot ask Stewart to

exhaust an administrative remedy that does not exist.

Second, the defendants maintain that Stewart lacked a

legitimate expectation of privacy in the places they

searched -- or at least that such an expectation was not

clearly established -- and that the defendants are therefore

shielded from liability by a qualified immunity. But the very

case Fredericks and Taylor cite in support of this proposi-

tion -- O'Connor v. Ortega, 480 U.S. 709 (1987 ) -- precludes

dismissal of Stewart's complaint. O'Connor holds that an

unreasonable search in the workplace violates the Fourth

Amendment, and that the inquiry into reasonableness must

be made on a case-by-case basis. Just as the Court in

O'Connor remanded the matter for further proceedings be-

cause "the record was inadequate for a determination on

motion for summary judgment of the reasonableness of the

search and seizure," 480 U.S. at 727, so must we remand this

case, which did not even get to the summary judgment stage.

Without knowing more about the circumstances surrounding

the search, a court simply cannot assess whether it was

reasonable.

III. Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed in part and reversed in part, and the Fourth

Amendment claim is remanded to the district court for fur-

ther proceedings.

So ordered.

APPENDIX

Sonya Stewart, Plaintiff

v.

William Daley, in his official capacity as Secretary

of Commerce, et al., Defendants

OPINION

February 6, 2001

HUVELLE, District Judge.

MEMORANDUM OPINION

Before the Court is defendant's Motion for Judgment on

the Pleadings, plaintiff's Opposition and defendant's Reply.

Having considered the pleadings, the Court concludes that

defendant's motion should be granted and the above com-

plaint shall be dismissed with prejudice on the grounds that

plaintiff has failed to state a cause of action for harassment

and retaliation under Title VII.

FACTUAL BACKGROUND

Ms. Sonya Stewart is employed by the Department of

Commerce (DOC). In May 1996 she was the Director for

Executive Budgeting and Assistance Management in the Of-

fice of the Secretary of Commerce. While there, Ms. Stewart

worked with numerous DOC officials, including Frank De-

George, then the DOC Inspector General. Ms. Stewart alleg-

es that prior to May 3, 1996, Mr. DeGeorge had made

inappropriate sexual advances toward her and invited her out

for drinks. Ms. Stewart also alleges the Mr. DeGeorge

treated other females at DOC in a similar manner.

According to the complaint, on May 3, 1996, Mr. DeGeorge

contacted Ms. Stewart to discuss a disbursement of $141,000

made by the DOC to the Internal Revenue Service pursuant

to a tax levy imposed on a financially troubled federal assis-

tance recipient. During the call, Ms. Stewart alleges that Mr.

DeGeorge used offensive profanities, including the following:

"...you're a fucking idiot...;" "...you are full of shit...;"

"...can't you fucking read...;" "...fuck the goddamn

memo...;" "...just between us girls...;" "...I want to

know where your fucking head was at...;" and "...I don't

have to listen to your fucking bullshit." Mr. DeGeorge also

allegedly said that Ms. Stewart would "rue the day [she] ever

did this to [him]" and that "somebody's going to pay for this."

Complaint, p 14.

On May 8, 1996, Ms. Stewart contacted a DOC Equal

Employment Opportunity counselor regarding her telephone

call with Mr. DeGeorge. On February 26, 1997, the EEOC

began an investigation of Stewart's claim. Ms. Stewart alleg-

es that other DOC officials, specifically Acting General Coun-

sel Sue Esserman, Assistant General Counsel for Administra-

tion Barbara S. Fredericks, and Employment Law Division

Chief Kathleen J. Taylor, slowed the investigation by refusing

to meet with EEOC investigators. The EEOC investigation

was completed on November 18, 1997. Ms. Stewart request-

ed a final agency decision on December 11, 1997. On Sep-

tember 24, 1999, the DOC rejected Ms. Stewart's claim and

issued a formal decision on November 24, 1999.

Ms. Stewart alleges that between May 8, 1996 and Novem-

ber 24, 1999, Esserman, Fredericks and Taylor retaliated

against her for filing her EEO complaint. The alleged acts of

reprisal included: (1) interfering with Ms. Stewart's nomina-

tion for a Presidential Rank Meritorious Award; (2) causing

Ms. Stewart's removal as a recommending member of a

screening panel for candidates for the DOC's Director for

Civil Rights; (3) interfering with Ms. Stewart's appointment

as Acting Deputy Assistant Secretary for Administration; (4)

intentionally creating the appearance that Ms. Stewart was

involved in violations of court orders and obstruction of

justice; (5) falsely implicating Ms. Stewart in wrongdoing

regarding the federal assistance recipient, Cordoba Corpora-

tion; and, (6) refusing to cooperate with the EEOC investiga-

tion of Ms. Stewart's claim.

DISCUSSION

I. Legal Standard

Under Fed. R. Civ. P. 12(c), a motion for judgment on the

pleadings shall be granted if the moving party demonstrates

that "no material fact is in dispute and that it is 'entitled to

judgment as a matter of law.' " Peters v. Nat'l R.R. Passen-

ger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992) (citations

omitted). In considering a motion for judgment on the

pleadings, the Court should "accept as true the allegations in

the opponent's pleadings" and "accord the benefit of all

reasonable inferences to the non-moving party." Haynes-

worth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C. Cir. 1987)

(citations omitted).

II. Legal Analysis

A. Hostile Work Environment Claim

Plaintiff has conceded that her hostile work environment

claim rests solely on the telephone call between herself and

Mr. DeGeorge on May 3, 1996. Plaintiff's Opposition to

Defendants' Motion to Dismiss, at 11-12.1 Therefore, the

allegations of prior sexual advances and inappropriate con-

__________

1 At a hearing before this Court on September 5, 2000, plain-

tiff's counsel made clear that plaintiff was not relying on the

evidence set forth in p 9 of her complaint to make a claim for sexual

harassment. Further, in plaintiff's Opposition to Defendant's Mo-

tion to Dismiss, at 11-12 (filed on June 30, 2000), plaintiff's counsel

stated that plaintiff was seeking damages based on the May 3, 1996

telephone conversation only ("The basis of her claim -- both at the

administrative level and before this Court -- was and remains the

hostile work environment created by DeGeorge as demonstrated by

the abusive and violent and discriminatory language he used against

Ms. Stewart during the May 3, 1996 telephone conversation."). On

the basis of these explicit representations, at the September 5

hearing this Court put plaintiff on clear notice:

The basis of [plaintiff's] lawsuit is May 3rd. They are standing

on the position that that event constitutes sexual harassment.

And if they are wrong as a matter of law or factually, then so

be it. They are not entitled to recover.

Transcript, at 25-26.

duct can serve only as background information, and Ms.

Stewart's claim can only succeed if the telephone call outlined

in her EEO complaint satisfies the requirements of sexual

harassment.

Title VII does not prohibit all forms of workplace harass-

ment, only those directed at discrimination because of sex.

See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80

(1998). Furthermore, workplace harassment does not violate

Title VII merely because the "words used have sexual content

or connotation," but only if members of one sex are disadvan-

taged in the terms or conditions of their employment because

of the harassment. Id. Title VII is not a "general civility

code for the American workplace," id. at 80, nor does it serve

as a remedy for all instances of verbal or physical harass-

ment, for it does not "purge the workplace of vulgarity."

Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir.

1995).

Applying these principles to the facts as set forth by

plaintiff, the Court concludes that Mr. DeGeorge's language

during their telephone conversation cannot reasonably be

construed as having any sexual connotation or having been

motivated by a discriminatory animus. By plaintiff's own

admission, Mr. DeGeorge "reacted angrily concerning a dis-

bursement of approximately $141,000 to the IRS on behalf of

Cordoba." Compl. p 12. There is, however, nothing to sup-

port or corroborate plaintiff's assertion that DeGeorge's inap-

propriate behavior constituted harassment based on Ms.

Stewart's sex. On the contrary, it is undisputed that Mr.

DeGeorge was enraged with plaintiff's handling of the Cordo-

ba matter because of her failure to obtain written approval

for the disbursement from his office. As a result, he used

offensive and inappropriate language while speaking with Ms.

Stewart. However, there is no basis upon which to infer from

the telephone call that Mr. DeGeorge's hostility was motivat-

ed by Ms. Stewart's sex. In Neuren v. Adduci, Mastriani,

Meeks & Schill, the D.C. Circuit held that a supervisor's use

of vulgarity in an employee's performance evaluation was

"obviously grounded in gender-neutral concerns about [plain-

tiff's] interpersonal relations with co-workers, rather than

discriminatory considerations." 43 F.3d 1507, 1513 (D.C. Cir.

1995). Similarly, DeGeorge's use of profanity in the May 3rd

telephone conversation reflected gender-neutral concerns

about Ms. Stewart's mishandling of the Cordoba disburse-

ment, and as noted, Title VII does not provide a cause of

action for "ordinary tribulations of the workplace." Faragher

v. City of Boca Raton, 524 U.S. 775, 788 (1998).

Even if Mr. DeGeorge's use of profane language could

arguably be characterized as sexual harassment, which it

cannot, a single telephone call is not sufficiently severe and

pervasive to constitute a hostile work environment. The D.C.

Circuit has held that "not all abusive behavior, even when it is

motivated by discriminatory animus, is actionable. Rather a

workplace environment becomes hostile for the purposes of

Title VII only when offensive conduct 'permeate[s] [the work-

place] with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions

of the victim's employment.' " Barbour v. Browner, 181 F.3d

1342, 1347-48 (D.C. Cir. 1999) (quoting Oncale, 523 U.S. 78).

In determining whether harassment rises to this level,

courts should consider the frequency of the harassing con-

duct, its severity, whether it is physically threatening or

humiliating, and whether it unreasonably interferes with an

employee's work performance. Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21-23 (1993). Except in extreme circumstances,

courts have refused to hold that one incident is so severe to

constitute a hostile work environment. See Tatum v. Hyatt

Corp., 918 F. Supp. 5, 7 (D.D.C. 1994) (citations omitted).

Even a few isolated incidents of offensive conduct do not

amount to actionable harassment. See, e.g., Hopkins v. Balti-

more Gas & Electric Co., 77 F.3d 745, 753 (4th Cir. 1996)

(holding that the fact that alleged incidents were spread over

a seven-year period suggested that the harassment was not

sufficiently pervasive to established Title VII liability); Bask-

erville, 50 F.3d at 430 (holding that nine incidents spread over

seven months did not constitute sexual harassment because

the supervisor never touched employee and incidents were

not sufficiently severe or pervasive).

Applying these principles to plaintiff's claim of sexual

harassment, it is clear that plaintiff cannot, as a matter of

law, prove a prima facie case. To maintain a hostile work

environment claim, Ms. Stewart must prove that the discrimi-

natory conduct was "sufficiently severe and pervasive to alter

the conditions of [her] employment and create an abusive

working environment." Harris, 510 U.S. at 23. Ms. Stew-

art's claim amounts to only one isolated incident of alleged

sexual harassment. In Tatum, this court held that an isolat-

ed incident did not so alter the plaintiff's employment condi-

tions as to create a hostile work environment. See 918

F. Supp. at 7. In that case, the plaintiff's co-worker unex-

pectedly wrapped his arms around the plaintiff's neck and

body, rubbed against her as if to simulate sex, made com-

ments about her physical attractiveness, and placed a piece of

ice in plaintiff's skirt pocket. Id. at 6. While the offending

employee's actions were deplorable, the court held that this

incident, without more, did not create a hostile work environ-

ment. Id. at 7.

The harassment complained of here is not nearly as serious

as the incident alleged in Tatum. Mr. DeGeorge did not

physically accost Ms. Stewart. His verbal barrage of profani-

ty was not sexually suggestive in any way or otherwise

related to or caused by plaintiff's gender. Ms. Stewart's

claim of hostile work environment must, therefore, fail for the

alternative reason that the incident complained of is not the

type of severe and pervasive sexual harassment prohibited by

Title VII.

B. Retaliation Claim

Ms. Stewart alleges that the defendant retaliated against

her in violation of Title VII. In order to state a prima facie

case of retaliation, plaintiff must demonstrate: (1) that she

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. Brown v. Brody,

199 F.3d 446, 452 (D.C. Cir. 1999). To establish an adverse

personnel action in the absence of diminution of pay or

benefits, plaintiff must show an action with "materially ad-

verse consequences affecting the terms, conditions, or privi-

leges of employment." Id. at 457. An "employment decision

does not rise to the level of an actionable adverse action ...

unless there is a tangible change in the duties or working

conditions constituting a material employment disadvantage."

Walker v. WMATA, 102 F. Supp. 2d 24, 29 (D.D.C. 2000)

(citation omitted); see also Burlington Indus., Inc. v. Ellerth,

118 S. Ct. 2257, 2268-69 (1998) ("A tangible employment

action constitutes a significant change in employment status,

such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a

significant change in benefits.").

Plaintiff contends that she suffered six different acts of

retaliation. First, she alleges that Ms. Esserman, Ms. Fred-

ericks, and Ms. Taylor, of the General Counsel's Office,

interfered with and attempted to block her nomination for a

Presidential Rank Meritorious Award. However, Ms. Stew-

art successfully obtained this Award for which she was nomi-

nated. Even if the Court accepts as true Ms. Stewart's

allegation that the members of the General Counsel's Office

attempted to block her nomination and selection for this

award, Title VII does not provide relief for victims of at-

tempted retaliation. Ms. Stewart suffered no adverse em-

ployment action as a result of any interference by Esserman,

Fredericks, and Taylor.

Second, plaintiff alleges that Esserman, Fredericks, and

Taylor caused her removal from a panel established to select

and interview candidates for the position of Director of the

Office of Civil Rights. The D.C. Circuit has held that minor

changes in work-related duties or opportunities do not consti-

tute an actionable injury unless they are accompanied by

some other adverse change in the terms, conditions or privi-

leges of employment. See Brown, 199 F.3d at 457 (holding

that lateral transfer or the denial thereof, without more, does

not constitute an adverse employment action); Mungin v.

Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C Cir. 1997)

("changes in assignments and work-related duties do not

ordinarily constitute adverse employment decisions if unac-

companied by a decrease in salary or work hour changes").

"Mere inconveniences and alteration of job responsibilities

will not rise to the level of adverse action." Childers v.

Slater, 44 F. Supp. 2d 8, 19 (D.D.C. 1999). Even accepting as

true, as we must at this stage, Ms. Stewart's allegation that

her removal from the panel was an act of reprisal, this does

not rise to the level of an adverse employment action as

contemplated by Title VII, because there was no change in

Ms. Stewart's job position, grade, pay, or benefits.

Third, plaintiff claims that Esserman, Fredericks, and Tay-

lor interfered with and delayed her appointment as Acting

Deputy Assistant Secretary for Administration and caused

her responsibilities and duties in that job to be diminished.

Again, however, Ms. Stewart successfully achieved the posi-

tion of Acting Deputy Assistant Secretary. Even if the three

OGC members had succeeded in denying Ms. Stewart this

designation, the D.C. Circuit has held that this type of

temporary designation is not one of the terms, conditions, or

privileges of employment contemplated by Title VII. See

Taylor v. FDIC, 132 F.3d 753, 764 (D.C. Cir. 1997) (interpret-

ing identical language in a Whistleblower Act in light of Title

VII precedent). Because denial of this type of temporary

designation is not an adverse employment action, mere inter-

ference with or delay of such a designation cannot be a

cognizable harm under Title VII. Plaintiff also claims that

the three members of OGC caused her duties and responsibil-

ities as Acting Deputy Assistant Secretary to be diminished.

However, because, according to Taylor, the outright denial of

a temporary position cannot constitute an adverse employ-

ment action, diminished responsibilities in that position can-

not be sufficient to state a claim for retaliation under Title

VII.

Fourth, Ms. Stewart contends that the three OGC mem-

bers intentionally and perfidiously created the appearance

that the plaintiff and her staff were involved in violations of

court orders and obstruction of justice. Plaintiff appears to

allege that her public perception was damaged by the actions

of Esserman, Fredericks, and Taylor. However, this claim is

not pled with particularity. Moreover, this Court has held

that "false accusations without negative employment conse-

quences are not employment decisions actionable under Title

VII." Childers, 44 F. Supp. 2d at 20. Furthermore, public

humiliation or loss of reputation does not constitute an ad-

verse employment action under Title VII. See Spring v.

Sheboygan Area School Dist., 865 F.2d 883, 885 (7th Cir.

1989); Probst v. Reno, 2000 WL 1372872 (N.D. Ill. Sept. 22,

2000); Wanamaker v. Columbian Rope Co., 907 F. Supp. 522,

535 (N.D.N.Y. 1995), aff'd, 108 F.3d 462 (2d Cir. 1998).

Plaintiff has not alleged any adverse employment action

resulting from her being unfairly blamed for violations of

court orders or obstruction of justice which would constitute

retaliation under Title VII.

Fifth, Ms. Stewart alleges that Esserman, Fredericks, Tay-

lor retaliated against her by preparing and publicly issuing a

report on the Cordoba matter that falsely implicated Ms.

Stewart and her staff in wrongdoing. This Court has held

that formal criticisms or reprimands, without additional disci-

plinary action such as a change in grade, salary, or other

benefits, do not constitute adverse employment actions. See

Childers, 44 F. Supp. 2d at 20. Plaintiff has not alleged that

the report of the Cordoba matter in any way affected her job

performance ratings or the conditions of her employment.

Because this report had no effect on Ms. Stewart's pay,

benefits, or privileges, it cannot be considered an adverse

employment action under Title VII.

Finally, Ms. Stewart alleges that Esserman, Fredericks,

and Taylor retaliated against her by refusing to cooperate

with the EEOC investigation of her complaint against Mr.

DeGeorge, resulting in a delay in the issuance of a final

decision on her administrative complaint. The D.C. Circuit

has held that an adverse personnel action under Title VII

must have some negative consequences with respect to the

plaintiff's employment. See Jolly v. Listerman, 672 F.2d 935,

953 (D.C. Cir. 1982); Childers, 44 F. Supp. 2d at 19. There-

fore, this Court has concluded that, because an agency's

failure to issue a final decision on a plaintiff's EEO complaint

within 60 days has no discernable negative consequences for

plaintiff's employment, it is not an actionable adverse action.

Kilpatrick v. Riley, 98 F. Supp. 2d 9, 24 (D.D.C. 2000).

Furthermore, if the agency fails to issue a timely final

decision, plaintiff has the right to file suit in district court

after 180 days from the date of the filing of the administrative

complaint. See id. Like the plaintiff in Kilpatrick, Ms.

Stewart had the option of filing a civil action in district court

if she were dissatisfied with the agency's handling of her

administrative complaint. Moreover, the delay in adjudicat-

ing the complaint had no impact on Ms. Stewart's grade, pay,

or benefits. Therefore, even if the Court assumes that IGC

members refused to cooperate with the EEOC investigation,

this action had no materially adverse consequences for Ms.

Stewart's employment.

CONCLUSION

For the foregoing reasons, the Court concludes that the

plaintiff has failed to establish a prima facie case with respect

to either hostile work environment or retaliation under Title

VII. Accordingly, judgment is entered for the defendant. A

separate order accompanies this Memorandum Opinion.