Burkes v. Holder

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________

)

RICHARD W. BURKES, )

)

Plaintiff, )

)

v. ) Civil No. 12-321 (EGS)

)

ERIC HOLDER JR., Attorney General )

Of the United States,1 )

)

Defendant. )

___________________________________)

MEMORANDUM OPINION

Plaintiff Richard Burkes brings this action seeking damages

for alleged violations of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. (“Title VII”) based on

plaintiff’s race, hostile work environment and retaliation for

protected activity. Defendant filed a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing

plaintiff failed to exhaust his administrative remedies and

failed to state a claim on which relief can be granted. Upon

consideration of the motion, the entire record herein, and for

1

Plaintiff originally named Robert S. Mueller III, Director of

the Federal Bureau of Investigation, as a defendant in this

matter, but has since agreed to dismiss him from the case.

Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 11-12.

Plaintiff has also voluntarily agreed to dismiss Count IV of his

complaint, which alleges a violation of 42 U.S.C. § 1983. Id.

Accordingly, defendant Mueller and plaintiff’s Section 1983

claims are DISMISSED.

the reasons stated below, the motion to dismiss will be GRANTED

IN PART AND DENIED IN PART.

I. BACKGROUND

A. Plaintiff’s Complaints to Management in Late 2009 and

Early 2010; Plaintiff Observes Stuffed Monkey Hanging

from Eraser Board in February 2010.

Plaintiff has been employed by the FBI since March 1988,

and has served as a Lead Program Analyst within the Records

Management Division since June 2008. Compl. ¶ 13. In late 2009

and again in early 2010, Mr. Burkes made complaints to the

Department of Justice Office of Inspector General and Bradley

Creamer, his Shift Supervisor, of differential treatment of

White employees and African American employees. Id. ¶ 14. He

also reported security violations involving contractors,

specifically, that Contract Manager Jackie Cox was involved in

security violations. Id. ¶ 15. Ms. Cox is a friend of Mr.

Creamer’s, and plaintiff alleges that Creamer told Cox that the

plaintiff had complained about her activity, and that she should

“try to get something” on the plaintiff. Id. Ms. Cox was

eventually terminated as a result of plaintiff’s complaint. Id.

¶ 17.

On February 17, 2010, the plaintiff witnessed a stuffed

monkey hanging by its neck on an eraser board in a public work

area within the office, which was allegedly hung by Mr. Creamer.

Id. ¶ 18. Mr. Burkes immediately complained to a supervisor and

2

the Department of Justice’s Office of Inspector General, and

informed them both that he believed the display was

discriminatory. Id. ¶ 19. Plaintiff alleged Mr. Creamer took

the toy monkey down, but then placed the monkey in an overhead

bin in his cubicle, where employees could still see it, for

eight additional days. Compl. ¶ 26; Def.’s Mot. to Dismiss at

Ex. A-8 (EEOC Report of Counseling by R. Burkes).

B. EEOC Complaint Process

Plaintiff made initial contact with the agency’s Equal

Employment Opportunity office (“EEOC”) on April 6, 2010. Compl.

¶ 27, Def.’s Mot. to Dismiss at Ex. A-8. He alleged that “on

2/17/10, [he] believed he was discriminated against based on his

race (Black) and age (40) when he saw a toy monkey hanging by a

noose on a bulletin board located in the management seating area

of the Document Conversion Laboratory.” Id. Plaintiff

submitted an official Complaint to the EEOC on April 21, 2010,

alleging race discrimination and age discrimination.2 Compl. ¶

28, Def.’s Mot. to Dismiss Ex. A-2.

On May 21, 2010, plaintiff requested that his EEO Complaint

be amended to include reprisal. Compl. ¶ 28. Plaintiff

asserted that in late 2009 and early 2010, he complained to his

supervisors and to the Office of Inspector General about the

2

Plaintiff’s EEO Complaint also included a charge of age

discrimination. However, he abandoned that claim at the

administrative level and does not raise it in this case.

3

“discriminatory and retaliatory treatment and hostile work

environment he was experiencing.” Id. ¶¶ 60, 62. Specifically,

plaintiff alleged that “[o]n September 7, 2009, [he] complained

about race discrimination in the workplace and other wrongs

witnessed,” and on February 3, 2010, he notified managers that

“contractors may be working with expired clearances.” Def.’s

Mot. to Dismiss, Ex. E, (Letter from EEOC to D. Rucker, July 13,

2010). He stated that shortly after these incidents management

was watching and documenting his every move. Id. On July 13,

2010, the EEO sent a letter informing plaintiff, through

counsel, that his request to amend the Complaint was denied.

Id. The letter states, in relevant part, “[Mr. Burkes] has

failed to state a claim of reprisal as a protected basis, since

he did not indicate that the alleged retaliatory acts were

connected to prior participation in EEO activity or any prior

opposition to unlawful discrimination. Therefore, reprisal will

not be accepted as a basis in this complaint.” Id.

On October 5, 2010, the Agency notified plaintiff of the

result of the EEO investigation, and advised that he had thirty

days to appeal. He did so on October 13, 2010. Compl. ¶¶ 29-

30; Def.’s Mot. to Dismiss Ex. F, G. The Department of Justice

issued a Final Agency Decision on November 28, 2011. Def.’s

Mot. to Dismiss Ex. H. The agency found Mr. Burkes’ claim was

untimely because he did not make initial contact with the EEOC

4

within 45 days of the February 17, 2010 incident, as required by

29 C.F.R. § 1614.105(a). Id. The EEOC further determined that

even if the claim was timely, the record did not support a claim

of a hostile work environment on the merits. Id.

C. Events Occurring After EEOC Charge Was Filed

Plaintiff alleged that he was subjected to a number of

discriminatory and retaliatory acts after he filed his EEOC

Complaint: (1) in mid to late 2010 he was temporarily assigned

to FBI headquarters; (2) in November 2010 he received an

undeserved low performance appraisal; (3) in December 2010, he

was transferred back to Winchester, Virginia; (4) in late 2010,

he was falsely accused of sleeping on duty; (5) at an

unspecified time in 2010, he was denied the opportunity to

attend a training, while two white employees were permitted to

attend; (6) in early 2011, his supervisor threatened to place

him on a performance improvement plan; (7) in early 2011, his

supervisor stated plaintiff “needed to man up and apologize” for

making complaints and “embarrassing DocLab;” and (8) plaintiff’s

supervisor has been targeting and scrutinizing plaintiff’s work

“in a manner not experienced by plaintiff prior to complaining.”

Compl. ¶¶ 31-40.

Plaintiff did not file an EEOC Complaint regarding any of

these allegations. He also did not seek to amend his

administrative complaint to add any of these allegations except

5

the last one: management was retaliating against him by watching

him and documenting his every move. See Section I.B, supra.

Plaintiff filed this action on February 28, 2012.

Defendants subsequently moved to dismiss. The motion is ripe

for resolution by the Court.

II. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) tests the legal sufficiency of a complaint. Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint

must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (internal quotation marks and citations omitted).

While detailed factual allegations are not necessary, plaintiff

must plead enough facts “to raise a right to relief above the

speculative level.” Id.

When ruling on a Rule 12(b)(6) motion, the Court may

consider “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).3

3

Defendant attaches several exhibits to the Motion to Dismiss,

and the plaintiff does not object to their attachment. The

6

The Court must construe the complaint liberally in plaintiff’s

favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint. Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court

must not accept plaintiff’s inferences that are “unsupported by

the facts set out in the complaint.” Id. “[O]nly a complaint

that states a plausible claim for relief survives a motion to

dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

III. DISCUSSION

A. Exhaustion of Administrative Remedies

Before bringing any suit under Title VII, an aggrieved

party is required to timely exhaust his administrative remedies.

Hamilton v. Geithner, 666 F.3d 1344, 1349 (D.C. Cir. 2012).

Under 29 C.F.R. § 1614.105(a)(1), an employee of the federal

government who believes he has been subject to discrimination is

required to first “initiate contact” with an EEO counselor

within forty-five days of the allegedly discriminatory action.

If the matter is not resolved informally, then the employee may

file a formal complaint of discrimination with the agency. Id.

Court considers the charge of discrimination, the correspondence

relating to plaintiff’s attempts to amend his administrative

complaint, and the right to sue letter, which it may do without

converting the motion to dismiss into the motion for summary

judgment. See, e.g., Williams v. Chu, 641 F. Supp. 2d 31, 34-35

(D.D.C. 2009); Gustave-Schmidt, 226 F. Supp. 2d at 196. The

remaining documents, which relate to the substance of

plaintiff’s claim regarding the hanging monkey, will not be

considered by the Court at the motion to dismiss stage.

7

§§ 1614.105(d), 1614.106(a). The employee may amend the

complaint “at any time prior to the conclusion of the

investigation to include issues or claims like or related to

those raised in the complaint.” Id. § 1614.106(d).

A complainant may file a civil action within 90 days of

receiving a final decision from the agency or after a complaint

has been pending before the EEOC for at least 180 days. See 42

U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407. A Title VII lawsuit

is “limited in scope to claims that are like or reasonably

related to the allegations” of the administrative complaint.

Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)

(internal citations omitted). In other words, the claims “must

arise from the administrative investigation that can reasonably

be expected to follow the charge of discrimination.” Id.

“For purposes of exhaustion, there are two types of Title

VII claims: (1) claims of discrete retaliatory or

discriminatory acts and (2) hostile work environment claims.”

McLaughlin v. Holder, Civil No. 11-1869, 2013 U.S. Dist. LEXIS

19718, *12-13 (Feb. 14, 2013) (citing Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 110, 115 (2002)). An employee must

timely exhaust the administrative process for each discrete act

for which he seeks to bring a claim. Discrete discriminatory

acts “are not actionable if time barred, even when they are

related to acts alleged in timely filed charges. Each discrete

8

discriminatory act starts a new clock for filing charges

alleging that act. The charge, therefore, must be filed within

the [45]-day time period after the discrete discriminatory act

occurs.” Morgan, 536 U.S. at 113. The law regarding exhaustion

of retaliation claims is less clear in this Circuit, as some

judges on this court have declined to require separate

exhaustion for retaliation claims that arise after a plaintiff

has filed an administrative complaint if they are related to the

timely filed charges. See Nguyen v. Winter, 895 F. Supp. 2d

158, 183-84 (D.D.C. 2012) (collecting cases). At a minimum,

however, claims of each retaliatory act must be administratively

exhausted “unless they were (1) related to the claims in the

initial administrative complaint, and (2) specified in that

complaint to be of an ongoing and continuous nature.” Id. at

184(citations omitted).

Hostile work environment claims, on the other hand, are

“different in kind from discrete act claims” because “[t]heir

very nature involves repeated conduct.” Morgan, 536 U.S. at

115. Accordingly, “[p]rovided that an act contributing to the

claim occurs within the filing period, the entire time period of

the hostile environment may be considered by a court for the

purposes of determining liability.” Id. at 117. And that act

need not be the last act; subsequent events “may still be part

of the one hostile work environment claim.” Id.

9

1. Plaintiff’s Race Discrimination Claims Must be

Dismissed

Plaintiff first contacted his EEOC counselor on April 6,

2010. Any discrete acts of discrimination arising more than

forty-five days earlier than this date (i.e. February 20, 2010)

were not exhausted. Moreover, given that Plaintiff never

initiated EEO proceedings regarding any acts of discrimination

arising after April 6, 2010, any discrete acts of discrimination

arising after that date are not exhausted. See Morgan, 536 U.S.

at 113 (“[e]ach discrete discriminatory act starts a new clock

for filing charges alleging that act.”). Consequently, the only

claim which plaintiff arguably exhausted is the claim regarding

the hanging monkey. Even assuming plaintiff exhausted this

claim, however, it would not survive as a race discrimination

claim. When asserting a race discrimination claim under Title

VII, the plaintiff must allege two essential elements: 1) that

the plaintiff suffered an adverse employment action, and 2) that

the adverse employment action was the result of plaintiff’s

race. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir.

2008). Here, plaintiff cannot satisfy the first element,

because the presence of a hanging monkey does not constitute an

adverse employment action. See, e.g., Taylor v. Small, 350 F.3d

1286, 1293 (D.C. Cir. 2003) (defining an adverse employment

action as “a significant change in employment status, such as

10

hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing

significant change in benefits.”)(citations omitted).

Accordingly, plaintiff’s race discrimination claim is dismissed.

2. Plaintiff’s Retaliation Claims

In Count II of his complaint, Mr. Burkes claims that the

defendants have retaliated against him. Compl. ¶¶ 59-79.

Reading the complaint in the light most favorable to the

Plaintiff, he alleges that he experienced retaliation occurring

at two separate time periods: before and after he filed his

EEOC complaint. Id. ¶¶ 13-16, 31-41. Defendants argue that

none of the retaliation claims have been exhausted, and

therefore all must be dismissed. Def.’s Mot. at 18-20. The

Court considers Plaintiff’s claims in turn.

First, plaintiff alleges that management retaliated against

him in late 2009 and early 2010. Plaintiff attempted to amend

his EEOC complaint in May 2010 to add this retaliation claim.

Specifically, Plaintiff alleged that he had complained to his

supervisor about race discrimination and security breaches in

late 2009 and early 2010, and after making those complaints,

management began watching and documenting his every move. See

Section I.B supra. As set forth above, the agency notified

plaintiff and his counsel in July 2010 that it did not accept

his retaliation claim for filing; accordingly, it was not

11

considered at the agency level. There is no evidence that

plaintiff challenged the agency’s decision not to accept this

claim for investigation, or that he filed any additional

complaints of retaliation. Accordingly, because plaintiff did

not exhaust his retaliation claim before filing the instant

civil action, it must be dismissed. See, e.g., Silver v.

Leavitt, Case No. 05-968, 2006 U.S. Dist. LEXIS 12949, at *29-30

(D.D.C. March 13, 2006) (dismissing some of plaintiff’s claims

for failure to exhaust because the claims were not accepted for

investigation at the administrative level). Robinson v. Chao,

403 F. Supp. 2d 24, 31 (D.D.C. 2005) (same).4

Citing Zipes v. Trans World Airlines, Plaintiff contends

that he should not be penalized for the EEOC’s rejection of his

request to amend his EEOC complaint. Opp’n at 6-7. In Zipes,

the Supreme Court held that the exhaustion requirement is not

jurisdictional prerequisite to suit in federal court, but a

4

Plaintiff does not argue that he should have been permitted to

amend his administrative complaint because his retaliation claim

was “like or related” to his claim regarding the stuffed monkey.

See 29 C.F.R. § 1614.106(d). Nor could he. “A new claim is

like or related to a pending claim if it could reasonably been

expected to grow out of the original complaint during the

investigation.” Weber v. Battista, 494 F.3d 179, 183 (D.C. Cir.

2007)(citations omitted). Here, plaintiff’s alleged claim of

retaliation – that management was watching his every move –

shares no factual similarity with his claim of discrimination

regarding the hanging monkey. See, e.g., Bell v. Donley, 724 F.

Supp. 2d 1, 12 (D.D.C. 2010) (amended claims not “like or

related to” original claims where they shared no factual

similarity save the fact that they were “all allegedly

violations of Title VII.”).

12

requirement that, like a statute of limitations, is subject to

the narrow exceptions of waiver, estoppel and equitable tolling.

455 U.S. 385, 393 (1982). The court’s equitable power to toll

the statute of limitations is exercised only in “extraordinary

and carefully circumscribed instances,” and it is plaintiff’s

burden to show that such circumstances apply. Mondy v. Sec’y of

Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988); Gantt v. Mabus, 857

F. Supp. 2d 120, 128 (D.D.C. 2012). Plaintiff has stated no

facts and made no argument that this Court should find such

extraordinary circumstances exist; therefore, he has not carried

his burden.

Second, plaintiff alleges that management retaliated

against him after he filed his administrative complaint, from

mid-2010 to 2011. Compl. ¶¶ 31-40. Plaintiff did not file a

separate EEOC charge regarding any of these acts, nor did he

attempt to amend his April 2010 charge to include them.

Accordingly, they do not meet Morgan’s requirement that a Title

VII plaintiff must timely exhaust administrative remedies for

each discrete act alleged. Morgan, 536 U.S. at 110.

As set forth above, some judges on this court do not

require separate exhaustion for retaliation claims which post-

date an administrative complaint, so long as each subsequent

retaliatory act is “(1) related to the claims in the initial

administrative complaint, and (2) specified in that complaint to

13

be of an ongoing and continuous nature.” Nyguen, 895 F. Supp. 2d

at 184 (citations omitted). Even this more lenient exhaustion

requirement, however, is not met here. Plaintiff does not argue

that his allegations of retaliation – denial of training

opportunities, receipt of a low performance evaluation, etc. -

bear a factual or legal relationship to his allegations of

discrimination regarding the hanging monkey, nor does he argue

that the administrative investigation could have reasonably been

expected to include such incidents. Accordingly, because

Plaintiff’s retaliation claims first raised in his complaint to

this Court are not “like or related” to the discrimination claim

regarding the stuffed monkey which he raised at the

administrative level, Weber v. Battista, 494 F.3d at 183, they

cannot be considered exhausted. Accordingly, plaintiff’s

retaliation claims must be dismissed as untimely.

3. Hostile Work Environment Claims: Reprisal and Race

In Count III of his Complaint, Plaintiff asserts hostile

work environment claims based on retaliation and on race.

Compl. ¶ 82. Defendant asserts that his hostile work

environment claims must be dismissed for failure to exhaust.

With respect to the hostile work environment claims based on

reprisal, the Court agrees.

It is true that a hostile work environment can amount to

retaliation under Title VII. See Hussain v. Nicholson, 435 F.3d

14

359, 366 (D.C. Cir. 2006) (citations omitted). In order to

state a claim of hostile work environment based on retaliation,

plaintiff must allege that he engaged in statutorily protected

activity, and that his employer subjected him to discriminatory

“intimidation, ridicule, and insult” of such “severity or

pervasiveness as to alter the conditions of his working

environment” to retaliate against him for doing so. Id.

(citations omitted). In order to exhaust his hostile work

environment claim, a plaintiff must contact the EEOC within 45

days of “an act contributing to” the hostile work environment.

See Morgan, 536 U.S. at 117.

Mr. Burke alleges that he participated in two incidents of

statutorily protected activity: 1) complaining “in late 2009 and

again in early 2010,” about “security violations” and

“differential treatment of White Employees and African American

employees,” Compl. ¶ 14, and 2) filing an EEOC complaint

regarding the hanging monkey in April 2010. Compl. ¶ 27. He

contacted the EEOC in May 2010 and attempted to amend his

discrimination complaint to add a retaliation claim that after

his complaints about security violations and differential

treatment, management was watching and documenting his every

move. Def.’s Mot. to Dismiss, Ex. E, (Letter from EEOC to D.

Rucker, July 13, 2010). However, as discussed above, there was

15

nothing improper about the agency’s denial of the request to

amend; thus, he failed to exhaust that claim.

Although Plaintiff’s Complaint alleges he was subject to

several other retaliatory acts, there is no evidence that he

contacted the EEOC within 45 days of any of Defendant’s other

allegedly retaliatory acts in response to his protected

activity. See Supra at I.C, III.A.2, (discussing Compl. ¶¶ 31-

40), see also Pl.’s Opp’n at 3, 10-11. Indeed, according to the

record before the Court, he did not contact the EEOC regarding

any of these claims, at any time. See Id. Accordingly, because

he did not exhaust his administrative remedies with respect to

any of the acts he alleges are a part of his retaliatory hostile

work environment, this claim must be dismissed. See 29 C.F.R. §

1614.105(a)(1).

Plaintiff also alleges a hostile work environment claim

based on race in Count III of his Complaint. He alleges that

the repeated display of the monkey, both hanging by a noose and

otherwise on display or visible, constituted a racially hostile

work environment. Compl. ¶¶ 18-19, 23, 25-26, see also Pl.’s

Opp’n at 2-3, 7-9. He also asserts that the employer’s actions

after he filed his EEO complaint – receipt of an undeserved low

performance appraisal, denial of training opportunities, etc. –

contributed to a racially hostile workplace environment. Compl.

¶¶ 81-82, 86, 88.

16

Defendant asserts that Mr. Burkes’ racially hostile

workplace claim should be dismissed because he did not contact

the EEO within 45 days of first witnessing the monkey hanging by

a noose, on February 17, 2010. Rather, he contacted the EEO 48

days thereafter, on April 6, 2010. Mot. to Dismiss at 14-17.

This is too narrow a view of plaintiff’s hostile work

environment claim. As set forth in the Complaint, plaintiff

asserts that on February 17, 2010, he saw the monkey hanging by

its neck in a public work area and on an eraser board, which was

hung by Bradley Creamer, a white supervisor in plaintiff’s chain

of command. Compl. ¶¶ 18, 21. Plaintiff alleges that the

monkey was not only present on February 17, but also for eight

days thereafter. Specifically, he asserts that the monkey “was

eventually moved from the eraser board to Mr. Creamer’s overhead

work bin in his cubicle workstation. The monkey remained

visible.” Id. 26; see also Pl.’s Opp’n at 6 (“the offensive and

derogatory display was not removed on the same day [plaintiff

first saw it] but was merely relocated and continued to be

visible for at least another week.”).5

5

Indeed, plaintiff attempted to amend his EEO complaint to

include the continuing presence of the monkey. See Def.’s Mot.

to Dismiss at Ex. D, June 10, 2013 letter from Plaintiff’s

counsel to EEOC (describing hostile work environment claim to

include “whether plaintiff was . . . subjected to a hostile

work environment when his employer allowed the monkey that had

been hung by the neck from a noose to remain in open view in the

work place for 8 days after Complainant and others complained to

17

A hostile work environment claim, by “its very nature

involves repeated conduct . . . and [is] based on the cumulative

effect of individual acts.” Morgan, 536 U.S. at 115. The claim

may be timely as long as “an act contributing to the claim

occur[ed] within the filing period.” Id. at 117. When, as here,

a plaintiff alleges that he was exposed to racist and offensive

symbols over a period of time, courts have looked to the end of

that period for the purposes of determining when a claim is

exhausted. See, e.g., Watson v. CEVA Logistics, 619 F.3d 936,

943-44 (8th Cir. 2010) (rejecting arguments that employees had

to articulate with absolute precision the number of times they

saw the racist graffiti, and that the court must analyze each

viewing as a separate instance of harassment; “graffiti remains

visible until the employer acts to remove it . . . [employees]

mere awareness of its ongoing presence . . . could contribute to

a hostile work environment.”) (citation omitted); Whorton v.

management about the monkey.”). The EEO refused to accept the

requested amendment on the grounds that it “does not state

additional discrete incidents appropriate for acceptance as

separate issues.” Id. Ex. E, July 13, 2010 letter from EEOC to

Plaintiff’s counsel. This is irrelevant to a hostile work

environment claim, however, which by definition is not based on

discrete incidents giving rise to separate issues, but on “the

repeated nature of the harassment or its intensity . . . the

unlawful employment practice therefore cannot be said to occur

on any particular day. It occurs over a series of days . . .

and, in direct contrast to discrete acts, a single act of

harassment may not be actionable on its own.” Morgan, 536 U.S.

at 115 (citations omitted).

18

Wash. Metro. Area Transit Auth., Case No. 11-1291, 2013 U.S.

Dist. LEXIS 23500, *38-39 (D.D.C. Feb. 21, 2013) (for purposes

of exhaustion, hostile work environment claim premised on

continuous presence of sexually explicit materials in workplace

ends “at the conclusion of [plaintiff’s] exposure” to such

materials).

Burkes’ claim here includes sustained exposure to the

monkey, which concluded at least a week after February 17, 2010,

and therefore within 45 days of April 6, 2010, the day Burkes

first contacted an EEO counselor. Accordingly, Burkes may be

able to recover for any acts that, along with the display of the

monkey, “collectively constitute one unlawful employment

practice.” See Morgan, 536 U.S. at 117. The Court therefore

will not dismiss Burkes’ hostile work environment based on race

as untimely.

B. Failure to State a Claim

A hostile work environment exists “when the workplace is

permeated with discriminatory intimidation, ridicule and insult

that is sufficiently severe and pervasive to alter the

conditions of the victim’s employment and create an abusive

working environment.” Harris v. Forklift Sys., Inc., 510 U.S.

17, 21 (1993) (citations omitted). Although Morgan permits

consideration of time barred acts as part of a hostile work

environment claim, not all time barred act will be included.

19

“Both incidents barred by the statute of limitations and ones

not barred can qualify as part of the same actionable hostile

environment claim only if they are adequately linked into a

coherent hostile environment claim – if, for example, they

involve the same type of employment actions, occur relatively

frequently, and are perpetrated by the same managers.” Baird v.

Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011)(citations

omitted).

In this case, it is undisputed the plaintiff only exhausted

the allegations relating to the stuffed monkey. Nevertheless,

reading the complaint in the light most favorable to him, he

also appears to allege that a series of subsequent events

between mid-2010 and 2011 also contributed to the race-based

hostile work environment he experienced. Compl. ¶¶ 31-40, 81-

82, 84, 86, 88. Accordingly, the Court must determine whether

these concededly unexhausted acts are adequately connected to

each other and to the allegations regarding the monkey to

qualify as part of plaintiff’s hostile work environment claim.

1. Adequately Connected

Neither the Supreme Court nor this Circuit has offered a

precise formulation for determining whether a series of separate

acts are “part of the same unlawful employment practice” or

rather “an array of unrelated discriminatory or retaliatory

acts.” Baird, 662 F.3d 1252 (citations omitted). Acts which

20

“involve the same type of employment actions, occur relatively

frequently, and are perpetrated by the same managers,” may form

a continuous hostile work environment, as are acts outside the

statute of limitations that are “similar in nature, frequency

and severity” to the acts within the limitations period. Id. at

1251 (quoting Morgan, 536 U.S. at 120-21 (alterations omitted));

see also Wilkie v. Dep’t of Health & Human Servs., 638 F.3d 944,

951 (8th Cir. 2011)). It will not “always be necessary for the

component-acts comprising a hostile work environment to be

identical or to take the same form; however, there must be a

‘common thread’ among them.” Mason v. Geithner, 811 F. Supp. 2d

128, 178 (D.D.C. 2011).

In this case, the Court is unable to find that that the

plaintiff has plausibly alleged the acts occurring outside the

statute of limitations are part of his race based hostile work

environment claim. In his complaint, Mr. Burkes identifies nine

acts occurring outside the statute of limitations, ranging from

a temporary assignment to FBI headquarters to an undeserved low

performance appraisal to being falsely accused of sleeping on

duty to denial of a request to attend training. Compl. ¶¶ 31-

40. These actions are not similar to one another or to the

display of the hanging monkey. Plaintiff does not identify the

individual or individuals who took most of these alleged

actions, therefore, the Court cannot infer they were perpetrated

21

by the same managers. In short, the Complaint does not present

any “common thread” among the timely and time-barred acts.

More problematic still is plaintiff’s complete failure, in

his brief, to address these otherwise time-barred acts as part

of his race-based hostile work environment claim. In the motion

to dismiss, Defendant clearly argues that both of plaintiff’s

hostile work environment claims – based on race and retaliation

– must be dismissed for failure to exhaust and failure to state

a claim. Def.’s Mot. at 14-18, 20-21. In his Opposition,

plaintiff does not address the time-barred allegations in the

context of his race based hostile work environment claims.

Notably, he argues that all of the time-barred allegations

(transfer, poor performance evaluation, sleeping on duty, denial

of training, etc.) should be included in his retaliation based

hostile work environment claim, but he only addresses the

allegations regarding the monkey as part of his race based

hostile work environment claim. Compare Pl.’s Opp’n at 7-9

(discussing race based hostile work environment claim and only

addressing allegations relating to the monkey) and Id. at 10-11

(discussing retaliatory hostile work environment claim and

addressing all time-barred allegations). Where, as here,

plaintiff “has made no attempt – none – to crystallize for the

Court how these disparate acts could be seen by a trier of fact

as sufficiently related to coalesce into a single hostile work

22

environment,” the Court cannot conclude that the acts regarding

the monkey are plausibly connected to his allegations regarding

subsequent, time-barred acts. Mason, 811 F. Supp. 2d at 179;

cf. Laughlin v. Holder, 2103 U.S. Dist. LEXIS 19718, *42

(finding time-barred acts adequately connected to timely acts

“because [plaintiff] has put forward a plausible theory tying

the acts of her hostile work environment claim together.”).

2. Sufficiently Severe or Pervasive

For the reasons set forth above, the Court finds that

plaintiff’s race based hostile work environment claim is limited

to his allegations regarding the display of the monkey. The

defendant argues that the allegations regarding the monkey are

not sufficiently severe or pervasive to state a claim. Def.’s

Mot. at 20-21, Def.’s Reply at 6-9. Plaintiff responds that

“the continual display of (1) a monkey and (2) a monkey hanging

by its neck in a noose-like fashion” are so egregious and

abusive that, standing alone, they can create a hostile work

environment. Pl.’s Opp’n at 9.

There is no “magic number” that gives rise to an actionable

hostile work environment claim. Harris, 510 U.S. at 23 (“[W]e

can say that whether an environment is ‘hostile’ or ‘abusive’

can be determined only by looking at all the circumstances.”).

Generally, the more severe the conduct, the fewer occurrences

necessary to create a hostile work environment. See Ayissi-Etoh

23

v. Fannie Mae, 712 F.3d 572, 579 (D.C. Cir. 2013) (“the test set

forth by the Supreme Court [in Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998)] is whether the alleged conduct is

“sufficiently severe or pervasive” — written in the disjunctive

— not whether the conduct is "sufficiently severe and

pervasive.” A single, sufficiently severe incident, then, may

suffice to create a hostile work environment.”) (Kavanaugh, J.,

concurring); Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir.

2002) (in “extreme circumstances,” one incident may be

sufficiently severe to constitute a hostile work environment).

At the motion to dismiss stage, plaintiff has satisfied his

burden of alleging that the display of the monkey hanging by its

neck created a hostile work environment. In this case, the

monkey hanging from its neck was prominently displayed “in a

public work area and on an eraser board,” Compl. ¶ 18, where it

presumably was viewed by everyone who entered the area.

Furthermore, it was only removed after the plaintiff complained.

“The implication of this that had the plaintiff[] remained

silent, it would have been on display indefinitely.” Williams

v. New York City Housing Auth., 154 F. Supp. 2d 820, 823

(S.D.N.Y. 2001). Indeed, in this case, despite plaintiff’s

complaint, the monkey remained in the office – at the

supervisor’s desk where it remained visible – even after the

plaintiff complained. Compl. ¶ 26.

24

In terms of severity, “perhaps no single act can more

quickly alter the conditions of employment than the use of an

unambiguously racial epithet . . . by a supervisor.” Ayissi-

Etoh, 712 F.3d at 577 (quoting Rodgers v. Western-Southern Life

Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)). In this case, both

of the physical displays alleged to be perpetrated by a

supervisor - a monkey and a noose – are powerful symbols of

racism and violence against African Americans. “Given the

history of racial stereotypes against African-Americans and the

prevalent one of African-Americans as animals or monkeys, it is

a reasonable – perhaps even an obvious – conclusion that the use

of monkey imagery is intended as a racial insult where no benign

explanation for the imagery appears.” Jones v. UPS Ground

Freight, 683 F.3d 1283, 1297 (11th Cir. 2012) (citations

omitted). Likewise, “the noose is among the most repugnant of

all racist symbols, because it is itself an instrument of

violence,” specifically “this nation’s opprobrious legacy of

violence against African-Americans.” Williams, 154 F. Supp. 2d

at 824. Combining these two symbols – a monkey and a noose –

gives rise to a plausible inference of a hostile workplace

environment as relates to plaintiff as an African-American.

Accordingly, at the motion to dismiss stage, plaintiff has pled

“sufficient factual matter” to proceed to discovery on his race-

based hostile work environment claim.

25

IV. CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss

will be granted in part and denied in part. Mr. Burkes’ race

discrimination and retaliation claims will be DISMISSED for

failure to exhaust administrative remedies; Mr. Burkes’

retaliation based hostile work environment claim will be

DISMISSED for the same reason. Mr. Burkes’ race based hostile

work environment claim based on the presence of a stuffed

monkey, first hanging from its neck by an eraser board and

subsequently visible in a supervisor’s cubicle, may go forward;

Defendant’s motion to dismiss this claim is therefore DENIED. A

separate order accompanies this memorandum opinion.

Signed: Emmet G. Sullivan

United States District Judge

July 15, 2013

26