Duncan v. Johnson (213 F. Supp. 3d 161, 2016)

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Theodore Duncan brought this employment discrimination lawsuit against Jeh Charles Johnson, the Secretary of the United States Department of Homeland Security (“the agency” or “DHS”). Plaintiff alleges that DHS violated the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. (“ADEA”), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”), when it discriminated against him based on his age and his gender, and when it retaliated against him in violation of Title VII for engaging in the protected activity of lodging a discrimination complaint. Compl. [Dkt. # 1]. Defendant has moved for summary judgment on all three counts on multiple grounds. Def.’s Mot. for Summ. J. [Dkt. # 14] (“Def.’s Mot.”); Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. [Dkt. # 16-1] (“Def.’s Mem.”), and plaintiff has opposed the motion. Pl.’s Opp. to Def.’s Mot. [Dkt. # 20] (“Pl.’s Opp.”). After reviewing the entire record, the Court concludes that several of plaintiffs claims have not been properly exhausted, and a few fail for lack of an adverse employment action. The claims that remain fail on the merits.

Plaintiff has come forward with nothing to support his age and gender discrimination claims. His allegations boil down to the fact that the new supervisor who made him miserable was female and younger than he was. But he has presented no evidence that would indicate that her treatment of him was motivated by any sort of discriminatory animus, and indeed, he does not press the point very strongly in his opposition. Even if it is true, as he asserts, that she was not as experienced or as qualified as he was, he certainly cannot complain that she was unfairly or unlawfully elevated to a supervisory position for which he did not even apply. So the Court will grant summary judgment in favor of defendant on the two discrimination counts.

Plaintiff focuses his efforts on the retaliation count, and he demonstrates that he was the subject of a number of disciplinary or potentially adverse actions after he made an EEO complaint. But the evidence of the necessary causal connection is quite thin and attenuated, and more important, plaintiff has failed to meet his burden to produce evidence that would lead a reasonable juror to conclude that the legitimate, non-discriminatory reasons proffered by the defendant for its actions were in fact a pretext for retaliation. So defendant’s motion for summary judgment will be granted on the retaliation claims as well.

FACTUAL BACKGROUND

The facts are not in dispute except where noted. Plaintiff, a 56-year-old male, worked as a GS-15 Intelligence Research Specialist at U.S. Immigration and Customs Enforcement (“ICE”), a component of DHS. Def.’s Statement of Material Facts Not in Genuine Dispute [Dkt. # 18-1] (“Def.’s SOF”) ¶¶ 1-2; PL’s Statement of Material Facts For Which There Is A Material Dispute [Dkt. # 21-1] (“Pl.’s SOF”) ¶¶ 1-2. From 2003 onward, plaintiff worked in the Office of Intelligence within the Homeland Security Investigations office, an office that “conducts broad intelligence operations and develops data for use by ICE, [DHS], and other law enforcement partners related to illegal trade, travel, and financial activity.” Def.’s SOF ¶¶ 3, 14; Pl.’s SOF ¶¶ 3, 14. Beginning in October 2006, plaintiff served as the Deputy Assistant Director (“DAD”) of Intelligence Programs within Homeland Security Investigations. Def.’s SOF ¶ 15; Pl.’s SOF ¶ 15. Plaintiffs official title remained “Supervisory Intelligence Research Specialist,” though his “organizational titles” changed numerous times between 2006 and November 2013. Def.’s SOF ¶ 16; Pl.’s SOF ¶ 16.

Plaintiffs Assignment to Work Under the DAD of Analysis

In July 2011, DHS issued a vacancy announcement for the position of Deputy Assistant Director of Analysis, and published the announcement on USA Jobs and through an intelligence community jobs database. Def.’s SOF ¶ 22; Pl.’s SOF ¶ 22; see Ex. 13 to Def.’s Mot. [Dkt. # 18-2] (vacancy announcement). Plaintiff did not submit an application for the job. Def.’s SOF ¶ 24; Pl.’s SOF ¶ 24. Ultimately, Stephanie Andrews was selected for the position for a term not to exceed one year. Def.’s SOF ¶¶ 25-27, 30; Pl.’s SOF ¶¶ 25-27, 30.

Meanwhile, in September 2011, Homeland Security Investigations discontinued the project on which plaintiff had been working, and plaintiff was reassigned to the vacant position of Acting Unit Chief of Travel, where he reported to the newly-appointed DAD of Analysis, Andrews. Def.’s SOF ¶¶ 4, 19; Pl.’s SOF ¶¶4, 19. At the time, plaintiff had been working in Baltimore, but with the October 2011 reassignment, he was required to work in Washington, D.C. See Def.’s SOF ¶¶ 17, 20; Pl.’s SOF ¶¶ 17, 20.

Because Ms. Andrews’s appointment as DAD of Analysis was limited to a 12-month term, ICE advertised for the DAD of Analysis position again in July of 2012, this time describing the position as “Full Time-Permanent.” Ex. 13 to Def.’s Mot. at 102. Plaintiff did not apply for the position that time either. Def.’s SOF ¶ 32; Pl.’s SOF ¶ 32. Ms. Andrews was selected again, and she became the permanent DAD of Analysis in November 2012. Def.’s SOF ¶¶ 33-34; Pl.’s SOF ¶¶ 33-34. Plaintiff served as Acting Unit Chief of Travel from October 2011 through February of 2013. Def.’s SOF ¶ 4; Pl.’s SOF ¶ 4.

The April 2012 Letter of Counseling and Mid-Cycle Performance Appraisal

Plaintiff failed to attend a meeting on April 2, 2012, and he explained that he missed the meeting because he was taking a personal telephone call. Def.’s SOF ¶¶ 42-43; Pl.’s SOF ¶¶ 42-43. On April 30, 2012, after plaintiff arrived late to three other meetings, and after Andrews consulted with the ICE office of Employee and Labor Relations (“ELR”), and the Office of the Principal Legal Advisor (“OPLA”), Andrews issued plaintiff a letter of counseling relating to his “ongoing failure to attend and be on time for scheduled meetings and training and for unprofessional behavior.” Def.’s SOF ¶¶ 40-41, 47-48; Pl.’s SOF ¶¶ 40-41, 47-48. The letter explained that plaintiff was late for three meetings, and missed another meeting entirely. Def.’s SOF ¶ 41; Pl’s SOF ¶ 41; Ex. 16 to Def.’s Mot. [Dkt. # 18-2] at 126-28. The letter was not placed in plaintiffs official personnel folder, but the agency informed him that it could “be relied upon if similar incidents of the same nature occur again.” Ex. 16 to Def.’s Mot. at 127. Plaintiff maintains that his need to take a personal call should have excused him from the April 2 meeting, and that the letter of counseling was an improper overreaction. Def.’s SOF ¶¶ 45-46; Pl.’s SOF ¶¶ 45-46.

On the same day that the letter of counseling was delivered, Andrews also issued a mid-cycle appraisal of plaintiffs work performance, which covered the period of November 10, 2011 through April 15, 2012. Def.’s SOF ¶ 50; Pl.’s SOF ¶ 50; Ex. 17 to Def.’s Mot. [Dkt. #18-2] at 47-71. The mid-cycle review is used by supervisors to discuss the performance of their direct reports. Def.’s SOF ¶¶ 54-55; Pl.’s SOF ¶¶ 54-55. The appraisal, which was drafted with input from ELR and OPLA, noted that plaintiff was not meeting his performance standards, and that his performance was “unacceptable in several core competencies.” Ex. 17 to Def.’s Mot. at 146. Plaintiff prepared a written response to the mid-cycle appraisal; he admitted that many of the events cited had occurred, but he attempted to provide excuses for each event, and he argued that the facts did not justify the conclusion that his behavior was unacceptable or unprofessional. Def.’s SOF ¶ 56; Pl.’s SOF ¶ 56; Ex. 18 to Def.’s Mot. [Dkt. # 18-2].

The May 10, 2012 Performance Improvement Plan

On May 10, 2012, Andrews issued plaintiff a Performance Improvement Plan. Ex. 19 to Def.’s Mot. [Dkt. # 18-2] (“PIP”) at 176-96. The PIP “outline[d] activities that [plaintiff] must complete to attain at least an achieved expectations rating on the critical elements in which [his] performance ha[d] fallen to an unacceptable level,” and it gave him sixty calendar days to do so. Id. at 176-77. On July 13, 2012, Andrews notified plaintiff that he had failed the PIP, Def.’s SOF ¶ 63; PL’s SOF ¶ 63, but no adverse action was taken against him as a result. Def.’s SOF ¶ 64; Pl.’s SOF ¶ 64.

Plaintiffs Suspensions

The agency’s procedures for suspending employees.

In determining how to discipline its employees, DHS utilizes the “Policy on Discipline and Adverse Action Operating Procedures” (“DAAOP”). Def.’s SOF ¶ 74; Pl.’s SOF ¶ 74; Ex. 24 to Def.’s Mot. [Dkt. # 18-2] (attaching a copy of the DAAOP). The process beings when a manager refers a conduct issue to the Employee and Labor Relations department. See Ex. 24 to Def.’s Mot. at 284. ELR then makes a presentation to a panel of three GS-15 employees, one from Homeland Security Investigations, one from Enforcement and Removal Operations, and one from Management and Administration, which the parties refer to as a “DAAP Panel.” Def.’s SOF ¶¶ 74-76; PL’s SOF ¶¶ 74-76. After the presentation, the panel members come to a consensus agreement on the discipline to be imposed, and they provide the employee with their recommended sanction. Defs SOF ¶ 76; PL’s SOF ¶ 76. The employee is then given a chance to respond to the recommended sanction. See Ex. 24 to Def.’s Mot. at 229. Finally, “[t]he Deciding official ... reviews the charges in the proposal notice, the investigative file, the employee’s reply, and aggravating and mitigating factors in order to make a final decision on [the proposed adverse action].” Id. at 280.

The June 2012 three day suspension

On Friday, May 11, 2012, Andrews assigned plaintiff a time-sensitive, classified project. Def.’s SOF ¶¶ 78-79; Pl. SOF ¶¶ 78-79. Defendant contends that plaintiff was instructed that the project was due on Monday, May 14, 2012. Def.’s SOF ¶79. Plaintiff argues that the assessment was actually due on May 10, 2012, and that it was already overdue when Andrews assigned the task to him. Pl.’s SOF ¶ 79. In any event, plaintiff took unscheduled leave on May 14, 2012, and despite being in touch with Andrews multiple times over the course of the day, he failed to communicate that the assessment was due and locked in his personal safe. Def.’s SOF ¶ 80; PL’s SOF ¶ 80. The agency contends that plaintiff’s communication failure led to the untimely completion of the assessment, and also wasted other employees’ time. Def.’s SOF ¶ 81.

Andrews reported the incident to ELR, and ELR submitted the matter to a review panel. Def.’s SOF ¶¶ 82-83; Pl.’s SOF ¶¶ 82-83. The review panel concluded that plaintiff should be suspended for five days. Def.’s SOF ¶ 84; Pl.’s SOF ¶ 84; see Ex. 26 to Def.’s Mot. [Dkt. # 18-2] at 253-57 (June 1, 2012 proposed suspension letter). Plaintiff submitted his response in writing, and Frank Reeder, the final decision maker, mitigated the length of the suspension to three days. Def.’s SOF ¶ 87; Pl.’s SOF ¶ 87; Ex. 26 to Def.’s Mot. at 250.

The January 2013 seven day suspension

A few months later, on October 17, 2012, plaintiff was informed that another DAAP Panel had recommended that he be suspended for fourteen days. Def.’s SOF ¶ 94; Pl.’s SOF ¶ 94. The panel contended that the suspension was warranted in light of plaintiffs: “(1) Failure to Promptly and fully comply with directions, instructions, or assignments of a supervisor; (2) Absence without Leave (AWOL); (3) Making misstatements or misrepresentations, [and] (4) Unprofessional behavior.” Def.’s SOF ¶ 94; Pl.’s SOF ¶ 94; see also Ex. 31 to Def.’s Mot. [Dkt. # 18-2] at 316. Thereafter, Robert Bentall, the Chief of Staff of HSI-Intelligenee, sustained a few of the charges against plaintiff: (1) the charge that plaintiff was AWOL on September 12, 2012, (2) the charge that he made misrepresentations regarding his leave on that date; and (3) that he was “argumentative in [his] July 6, 2012 communication with [his] supervisor.” Ex. 31 to Def.’s Mot. at 316-17. In light of plaintiffs contrition, Bentall mitigated the proposed suspension from fourteen days to seven days. Id.

Plaintiffs security clearance

In December 2012, Andrews suspected that plaintiff had improperly distributed information about a confidential informant, Def.’s SOF ¶ 101, and she reported her concerns to the ICE Personnel Security Unit. Def.’s SOF ¶¶ 102-03; Pl.’s SOF ¶¶ 102-03. Though the facts are a bit murky on what happened next, it appears that plaintiffs security clearance was suspended pending further investigation. See Pl.’s SOF ¶ 102 (noting that Andrews, in reporting plaintiff, knew that the report “would at least result in the temporary suspension of his security clearance.”). While plaintiffs clearance was suspended, he held the same position, but his duties were changed because he no longer had access to classified information, which was necessary to perform his job as Unit Chief of Travel. Def.’s SOF ¶106; Pl.’s SOF ¶ 106. Plaintiffs clearance was reinstated about three months after it was suspended. Defi’s SOF ¶ 107; Pl.’s SOF ¶ 107.

Plaintiffs reassignment

On April 12, 2013, after plaintiffs security clearance had been reinstated, Reeder emailed Bentall and asked him to think about where plaintiff could be assigned “that will add the greatest value to the office and take appropriate advantage of his grade and experience,” and Reeder encouraged Bentall to “ask [plaintiff] where he would like to work.” Def.’s SOF ¶ 108; Pl.’s SOF ¶ 108. The parties disagree about what followed. Defendant asserts that Bentall presented plaintiff with two options, both GS-15 positions: one was a supervisory position, and one was a non-supervisory policy position. Def.’s SOF ¶ 109, citing Dep. of Roger Bentall (Oct. 1, 2015), Ex. 33 to Def.’s Mot. [Dkt. # 15-3] (“Bentall Dep.”) at 79:8-80:1. Plaintiff contends that he was not informed that there were two positions, nor was he presented with an option for a supervisory position. Pl.’s SOF ¶ 109.

On January 7, 2014, Bentall issued a Notification of Reassignment to plaintiff, which reassigned him from his position as a Supervisory Intelligence Research Specialist to an Intelligence Research Specialist, effective November 17, 2013. Def.’s SOF ¶ 112; Pl.’s SOF ¶ 112. After the reassignment, which did not have an effect on his grade, salary, or pay, plaintiff was assigned to work in a cubicle instead of being provided with an office. Defi’s SOF ¶¶ 113— 114; Pl.’s SOF ¶¶ 113-14.

PROCEDURAL HISTORY

Plaintiffs EEO Complaints

Plaintiff made his first contact with ICE’s Office of Diversity and Civil Rights (“ODCR”) on May 11, 2012, the day Andrews placed him on the PIP. Ex. 8 to Def.’s Mot [Dkt. # 18-2] at 40. His initial report alleged discrimination based on race, age, and parental status, and it pointed to the April 2012 letter of counseling and the May 2012 placement on a performance improvement plan, as well as alleged harassment by Andrews. Id. at 40-42. More than six months later, on November 30, 2012, plaintiff submitted his first and only formal complaint of discrimination to ODCR. Ex. 9 to Def.’s Mot. [Dkt. # 18-2] at 44-49. The complaint alleged sex and age discrimination and unlawful reprisal. Id. Plaintiff stated that beginning in October 2011, when Andrews became the DAD of Analysis, “she proceeded to create a working environment that is beyond hostile and consisted of daily micro-managing, intense targeting and harassment that continues to this very day.” Id. at 46. He alleged that after he received the April 30, 2012 letter of counseling from Andrews, and he complained about it, the agency took the following retaliatory actions: -

• May 10, 2012: Placing plaintiff on a performance improvement plan for sixty days, id.;

• June 30, 2012: Suspending plaintiff for three days for “not conducting official business while on emergency personal leave,” id.;

• July 1, 2012: Informing plaintiff that he failed the performance improvement plan, id.; and

• October 15, 2012: Suspending plaintiff or two weeks. Id.

Plaintiff expressed the fear that Andrews’s conduct would lead him to suffer a “heart attack,” and he stated that her “[e]xcessive monitoring, piling on, targeting and harassment ... has been consistent and elevated.” Id. at 48.

District court proceedings

Plaintiff filed this action in federal court on October 1, 2014. Compl. In Count I, plaintiff alleges that defendant discriminated against him based on his age in violation of the ADEA when he (1) was “subjected to a hostile working environment created by Andrews”; (2) received the negative Mid-Cycle review; (3) was placed on a PIP; (4) was suspended for three days; (5) was not selected for the position of DAD of Analysis; (6) was suspended for one week; (7) was “investigated based on false allegations” related to his security clearance; and (8) was “involuntarily permanently reassigned from a supervisory GS-15 to a non-supervisory GS-15.” Compl. ¶ 63. In Count II, plaintiff alleges that the same eight circumstances constituted discrimination based on gender in violation of Title VII. Id. ¶ 71. And in Count III, plaintiff claims that a set of seven actions were taken in retaliation for the protected activity of “filing EEO complaints and reporting age and gender discrimination,” in violation of Title VII: (1) being placed on a PIP; (2) being suspended for three days; (3) receiving the proposal that he be suspended for two weeks; (4) the non-selection as DAD of Analysis; (5) the one-week suspension; (6) “being investigated based on false allegations”; and (7) being reassigned to a non-supervisory position. Id. ¶¶ 83-85.

On December 15, 2015, defendant moved for summary judgment. Def.’s Mot. Plaintiff opposed the motion on January 22, 2016, Pl.’s Opp., and defendant replied in support of his motion on February 11, 2016. Def.’s Mem. of P. & A. in Reply to Pl.’s Opp. [Dkt. #25-1] (“Def.’s Reply”).

STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,' if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted).

The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248, 106 S.Ct. 2505; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.’ ” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).

ANALYSIS

Plaintiff claims that the agency discriminated against him on the basis of both his age and his gender in connection with the Letter of Counseling, the PIP, and the two suspensions, and in failing to select him for the DAD position and later reassigning him to a non-supervisory position. He also claims that many of the agency’s actions were taken in retaliation for the fact that he made an EEO complaint. According to the plaintiff, “the Agency failed to discipline Ms. Andrews in any fashion for similar misconduct,” and “Ms. Andrews increased her harassment of Plaintiff after his involvement in EEO activity.” PL’s Opp. at 3.

There is no question that the relationship between the plaintiff and his supervisor was marked with conflict from the beginning, and it may be that she had a tendency to micromanage, or that she was petty or difficult to work with for myriad reasons. But in the absence of evidence of discrimination or retaliation, it is not the Court’s role to act as a “super-personnel department.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006), quoting Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999). Here, plaintiff has failed to exhaust his administrative remedies with respect to some of his allegations, and others do not rise to the level of actionable adverse actions. On the issues that remain, plaintiff has not pointed to any facts that would tie any of the agency’s actions to unlawful bias against him because of his age or his gender. And with respect to the alleged retaliation, since defendant has come forward with evidence to show that plaintiff was disciplined because of his poor job performance, and not for a retaliatory purpose, and plaintiff has failed to come forward with evidence to show that defendant’s stated reasons were either pretex-tual or tainted by any alleged improper animus on the part of his supervisor, the Court will grant defendant’s motion for summary judgment.

I. Plaintiffs age and gender discrimination claims in Counts I and II fail.

A. The exhaustion issue

Defendant first moves for summary judgment on Counts I and II on the grounds that four of the seven events alleged to be discriminatory were not administratively exhausted: (1) the August 7, 2011 reassignment to the position of Acting Unit Chief and assignment to ICE Headquarters in Washington, D.C.; (2) the July 9, 2012 three-day suspension; (3) the January 15, 2013 seven-day suspension; and (4) the December 6, 2013 suspension of plaintiff’s security clearance. But the Court will only enter judgment for the defendant on one of these allegations on exhaustion grounds.

Both the ADEA and Title VII require that before filing a lawsuit in federal court, a plaintiff must timely pursue and exhaust administrative remedies. Hamilton v. Geithner, 666 F.3d 1344, 1349 (D.C. Cir. 2012) (Title VII); Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998) (Title VII & ADEA); see also Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (Title VII). To timely exhaust administrative remedies, an employee must consult an agency EEO Counselor within forty-five days of the alleged discriminatory event, 29 C.F.R. § 1614.105, and must file a formal complaint within 180 days of the alleged discriminatory event. See generally 42 U.S.C. § 2000e-16; 19 C.F.R. § 1614.106(a).

“These procedural requirements governing [a] plaintiffs right to bring a Title VII claim in federal court are not trivial.” Rattigan v. Gonzales, 503 F.Supp.2d 56, 68 (D.D.C. 2007). “Because timely exhaustion of administrative remedies is a prerequisite to a Title VII action against the federal government,” a court may not consider a discrimination claim that has not been exhausted. Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003). However, the D.C. Circuit has made clear that “the exhaustion of remedies is not jurisdictional, but more akin to a statute of limitations,” id. at 425, which is therefore “subject to equitable tolling, estoppel, and waiver.” Doak v. Johnson, 798 F.3d 1096, 1104 (D.C. Cir. 2015), quoting Bowden, 106 F.3d at 437.

1. Plaintiffs claim with regard to his 2011 reassignment to the Unit Chief position was not administratively exhausted.

Plaintiff alleges that his initial August 8, 2011 assignment to the position of Unit Chief under Andrews’s supervision was discriminatory. Pl.’s Opp. at 12. Plaintiff’s first contact with an agency EEO Counselor was on May 11, 2012. Ex. 5 to Pl.’s Opp. [Dkt. # 21-5] (EEO Counselor’s Report). The Counselor’s Report indicates that plaintiff complained that he was discriminated against based on his age and parental status when Andrews issued the April 30, 2012 letter of counseling, when she placed him on a PIP on May 11, 2012, and when he was subjected to her ongoing harassment from April 30, 2012 onward. Ex. 5 to Pl.’s Opp. at 1. Because plaintiffs first complaint did not reference the August 8, 2011 reassignment at all, and because even if it had, it would have been more than 45 days after the alleged discriminatory event, defendant asserts that this claim is time-barred. Def.’s Mem. at 8-9.

Plaintiff argues that this analysis should not bar his claim that his 2011 assignment to the Unit Chief position was discriminatory because “[t]he facts show that Mr. Duncan believed that the reassignment would be temporary. Further, the facts show that Mr. Duncan did not believe his reassignment was discriminatory until he learned it was a permanent reassignment, meaning he was still working in the same position, over a year later.” PL’s Opp. at 12.

But even if a later complaint would satisfy the timeliness requirement, plaintiff has not provided any evidence to show that he ever asserted that the reassignment was discriminatory. In the formal complaint before the agency, plaintiff does allege that the reassignment was a demotion. See Ex. 9 to Def.’s Mot. (November 30, 2012 formal complaint). But he expresses dissatisfaction with the post because of the burdens it imposed, and he does not raise questions about the reasons behind it:

Throughout this assignment I consistently conveyed to ICE management the intense financial and physical strain it as putting on me and my family. As a single parent of 3 kids, they made it virtually impossible for me to survive financially and to meet my family obligations. My commute went from 40 min[utes] one way to 2 hours and 30 min[utes] one way and if there was any traffic delays, my commute went to 3 hours one way. The financial toll that it has taken on me has been devastating and I repeatedly expressed this to ICE management but it [fell] on deaf ears.

Id. at 4. Plaintiffs response to interrogatories before the agency makes the point even more strongly:

Personally, this detail which I was assured would only being [sic] for 60 days has now lasted over 2 years and continues to this very day with no end in sight has ruined my life .... Physically, the stress from being on this detail and the subsequent hostile attacks, daily harassment, and reprisals has lead [sic] to [a series of medical issues].

Ex. 1 to Pl.’s Opp. [Dkt. #21-2] (“PL’s Interrogs.”) at 8. So plaintiff has never put the agency on notice of a complaint that the transfer was discriminatory in some way, and even if the allegation had been properly exhausted, he has not come forward with any evidence to tie the alleged demotion to any protected characteristic. Rather, plaintiffs concern seems to be that that the transfer put him in a position where he would then be discriminated against by Andrews. Because no reasonable jury would conclude that plaintiff administratively exhausted a claim that the transfer itself was discriminatory, or that there was any discriminatory animus behind it, this claim will not survive summary judgment.

2. The suspension claims are not barred by the exhaustion requirement.

Defendant also asserts that plaintiff failed to exhaust either of his suspensions. Def.’s Mem. at 8-9. The agency contends that because plaintiffs initial contact with the EEO Counselor was on May 11, 2012, and his formal complaint was filed on November 30, 2012, he did not timely exhaust the June 2012 and January 2013 actions. Id.

Plaintiff argues that, with regard to the three-day suspension, he “continuously tried to contact the EEO counselor but with no success,” and in any event, “his claims were accepted by the EEO office and investigated for several months,” so “[cjertainly, the Agency’s EEO office had an opportunity to handle these matters internally.” Pl.’s Opp. at 12. It is true that plaintiffs counsel sent a letter on November 12, 2012 to the Assistant Director of the internal EEO office which noted that plaintiffs claims were based in part on the June 30, 2012 suspension. Ex. 8 to Pl.’s Opp. [Dkt. # 21-8] But the November 12, 2012 letter was sent 135 days after the suspension took effect, which is far more than the 45 days required by law.

While the statutory time limits can be tolled in certain circumstances, see Doak, 798 F.3d at 1104, the burden is on plaintiff to show that tolling should apply. Bowden, 106 F.3d at 437. Plaintiff has put forth no evidence to prove that he unsuccessfully attempted to add the three-day suspension to his initial complaint, and so he has failed to create a genuine issue of material fact on that point. So the Court could find that the June 30, 2012 suspension was not administratively exhausted. But, one goal of administrative exhaustion is to give the agency an opportunity to resolve the issue informally, see Loe v. Heckler, 768 F.2d 409, 418 (D.C. Cir. 1985), and the agency did in fact consider this issue before the lawsuit was filed. Ex. 9 to Pl.’s Opp. [Dkt. # 21-9] at 3 (agency’s acceptance of EEO complaint, recognizing the three-day suspension). So the Court will consider it on the merits here.

With regard to the seven-day suspension, plaintiff contends that he contacted an EEO counselor within 45 days of learning of the proposed suspension. PL’s Opp. at 12. While the agency is correct that plaintiff did not contact an EEO Counselor within 45 days of serving the actual suspension, Def.’s Mem. at 9, plaintiff did contact an EEO Counselor within 45 days of learning of the DAAP Panel’s proposed suspension. See Ex. 31 to Def.’s Mot. at 321-27 (proposal for a fourteen-day suspension dated October 17, 2012); Ex. 9 to PL’s Opp. (formal EEO complaint dated November 29, 2012). So the Court will consider this suspension on the merits as well.

3. Plaintiff may have exhausted the revocation of his security clearance.

Defendant claims that plaintiff never exhausted the temporary revocation of his security clearance. Def.’s Mem. at 7. Plaintiffs formal EEO complaint, dated November 29, 2012, referenced, among other things, the following issues: the three-day suspension, the circumstances surrounding the PIP, and Andrews’s selection as DAD of Analysis. Ex. 9 to Def.’s Mot. Then, more than a year later, on December 10, 2013, plaintiffs attorney submitted a letter to the internal EEO office alleging that plaintiff was “permanently removed” from his position, and that he “still doesn’t have his SCI clearance.” Ex. 8 to PL’s Opp. But the letter is clear that those two issues are distinct from plaintiffs original complaint:

My office is currently representing Mr. Theodore Duncan on an EEO complaint, HS-ICE-22505-2012. That case is towards the end of the investigation stage and my client does not wish to combine that complaint with any other. Kindly consider this letter notice of Mr. Duncan’s additional complaint for events occurring November 19, 2013.

Id. So it is unclear whether plaintiff ultimately received a disposition on that new complaint, and it is therefore unclear whether the security clearance issue was timely exhausted. But because that claim would fail on the merits, as well, the Court will assume without deciding that it was timely exhausted.

B. The remainder of plaintiffs discrimination claims fail because several of the allegations do not involve adverse employment actions, and he has failed to show pretext as to the other issues.

Title VII of the Civil Rights Act of 1964 was enacted to implement “the federal policy of prohibiting wrongful discrimination in the Nation’s workplaces.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2522, 186 L.Ed.2d 503 (2013). The anti-discrimination provision “makes it unlawful for an employer ‘to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race’ ” or other protected characteristics. Steele v. Schafer, 535 F.3d 689, 695 (D.C. Cir. 2008), quoting 42 U.S.C. § 2000e-2(a). As the D.C. Circuit has explained, to state a prima facie case of disparate treatment under Title VII’s antidiscrimination provision, the plaintiff must establish two essential elements: “that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiffs race, color, religion, sex, national origin, age, or disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008), citing 42 U.S.C. § 2000e-16(a); see also 29 U.S.C. § 633a(a) (providing that, pursuant to the ADEA, “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age ... in executive agencies ... shall be made free from any discrimination based on age.”).

Plaintiff claims that the agency discriminated because of his age or gender when it did not select him for the position of Deputy Assistant Director of Analysis; gave him an adverse mid-cycle review; put him on a PIP for sixty days; suspended him for three days; suspended him for one week; investigated him based on false allegations which led to the suspension of his security clearance; and reassigned him to a non-supervisory position. See Compl. ¶¶ 63 (age); 71 (gender).

So the first question to be resolved is whether the complained-of instances of discrimination constitute “adverse employment actions” under the statute.

1. Some of plaintiffs allegations are not adverse employment actions.

Defendant moves for summary judgment on Counts I and II in part on the grounds that the adverse mid-cycle review, the placement on a performance improvement plan, the non-selection as Deputy Assistant Director of Analysis, the temporary suspension of plaintiffs security clearance, and the re-assignment to a non-supervisory position, did not constitute adverse events. Def.’s Mem. at 21-22, 24, 30-31, 33.

Not every action by an employer against an employee qualifies as an “adverse employment action” that is protected by Title VII. Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002); Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) (“[N]ot everything that makes an employee unhappy is an actionable adverse action.”). An actionable adverse employment action is 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.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). To ultimately establish an adverse employment action, a plaintiff must show that she “experience^] materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio, 306 F.3d at 1131. Plaintiff must, “in most cases,” show “direct economic harm,” Ellerth, 524 U.S. at 762, 118 S.Ct. 2257, affecting, for instance, his grade or salary. Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003).

a.Adverse Mid-Cycle Review

Plaintiff contends that the adverse rating on the April 30, 2012 mid-cycle review was discriminatory. Compl. ¶¶ 63(b); 71(b). But plaintiff admits that the mid-cycle appraisal “is only a progress review and has no defined numerical values or ratings assigned,” and that “[t]he terms used to describe [the employee’s] performance are general terms used by the rating official to assess [his] progress.” Def.’s SOF ¶ 54; Pl.’s SOF ¶ 54. So because the mid-cycle review did not cause any “significant change in employment status,” Ellerth, 524 U.S. at 761, 118 S.Ct. 2257, and because it did not “affect[] the terms, conditions, or privileges of employment or future employment,” Forkkio, 306 F.3d at 1131, it was not a materially adverse employment action. See also Douglas v. Donovan, 559 F.3d 549, 552-53 (D.C. Cir. 2009) (noting that “performance evaluations ordinarily are not actionable under Title VII” when they “do not obviously result in a significant change in employment status”).

b.Performance Improvement Plan

Plaintiff also alleges that the agency’s decision to place him on a performance improvement plan for sixty days was discriminatory. Compl. ¶¶ 63(c); 71(c). While the agency acknowledges that the “failure of a PIP can result in demotion, suspension, or disciplinary action,” Def.’s SOF ¶ 64, in this case, plaintiff admits that “no adverse action was taken against [him] for failing the PIP.” Id.; Pl.’s SOF ¶¶64. So because the failure of the PIP did not cause any “direct economic harm,” Ellerth, 524 U.S. at 762, 118 S.Ct. 2257, or any lead to any “materially adverse consequences,” Forkkio, 306 F.3d at 1131, it cannot form the basis of a discrimination claim either. See also Taylor, 350 F.3d at 1293 (finding that a PIP did not constitute an adverse employment action where the plaintiff did not allege that the PIP affected her grade or salary or cause a significant change in her employment status).

c.Non-selection as Deputy Assistant Director of Analysis

Plaintiff next asserts that the fact that he was not selected to be the Deputy Assistant Director of Analysis was discriminatory. Compl. ¶¶ 63(e); 71(e). This claim ultimately does not get past “Go” because, as plaintiff admits, while the position was advertised twice, he never applied for it. Def.’s SOF ¶¶ 24, 32, Pl.’s SOF ¶¶24, 32. So it is a stretch to call this decision an “action” that plaintiff suffered, much less, an adverse one. But in response to the motion for summary judgment, plaintiff advances the theory that the DAD of Analysis position “is substantively the same position” as the position that plaintiff previously held, the DAD of Intelligence Programs, and that Mr. Duncan was somehow “already holding the position” for which Andrews was selected. See Def.’s SOF ¶¶ 35-36; Pl.’s SOF ¶¶ 35-36; see also Pl.’s Opp. at 4. Thus it is not entirely clear whether plaintiff is asserting that the agency’s selection of Andrews as the DAD of Analysis constituted a failure to hire the plaintiff, a denial of a lateral transfer to plaintiff, a demotion, or some other event, and therefore it is difficult to ascertain whether such an action would be adverse. But the Court will assume without deciding that not selecting the plaintiff for the position was an adverse employment action, and it will dispense with this claim on the merits.

d. Suspension of security clearance

Plaintiff claims that the temporary suspension of his security clearance was discriminatory. Compl. ¶ 63(g) (alleging that “being investigated based on false allegations” was discriminatory); 71(g) (same). Defendant moves for summary judgment in part on the grounds that the Court lacks jurisdiction to review these sorts of decisions by security personnel. Def.’s Mem. At 31 n.6.

It is true that the D.C. Circuit has held that district courts lack subject matter jurisdiction over claims relating to the revocation of security clearances, and it has held in that context that “an adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII.” Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999). The D.C. Circuit in Ryan relied on the Supreme Court’s pronouncement in Department of Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988):

For “reasons ... too obvious to call for enlarged discussion,” the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body determine what constitutes an acceptable martin of error in assessing the potential risk.

Id. at 529, 108 S.Ct. 818, quoting CIA v. Sims, 471 U.S. 159, 170, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985).

In Ryan, the plaintiffs had been denied federal jobs because they were not granted the requisite security clearances, and they sued, alleging discrimination. 168 F.3d at 522-23. The Court of Appeals held that it was precluded from reviewing their claim, because it could not assess whether the challenged action was an adverse employment action “without running smack up against Egan ” Id. at 523-24. And because the federal agency’s proffered non-discriminatory reason for not hiring the plaintiffs was that they could not obtain security clearances, the court ruled that the plaintiffs “could not challenge the proffered reason’s authenticity without also challenging its validity.” Id. at 524. Because the plaintiffs in Ryan could not challenge the validity of the agency’s explanation without asking the court to review the merits of the security clearance decision—an action forbidden by Egan—the D.C. Circuit found that it lacked subject matter jurisdiction over the dispute. Id.

But the D.C. Circuit has since explained that its broad pronouncement in Ryan allows for some review of security-clearance-related discrimination. See Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012). In Rattigan, an employment discrimination plaintiff alleged that officials at the FBI retaliated against him “by reporting unfounded security concerns to the Bureau’s Security Division,” which “prompted an investigation into his continued eligibility for a security clearance.” Id. at 765. The Court of Appeals explained that “Egan’s absolute bar on judicial review covers only security clearance-related decisions made by trained Security Division personnel and does not preclude all review of decisions by other ... employees who merely report security concerns.” Id. at 768.

In this case, defendant asserts that Andrews reported plaintiff to the ICE Personnel Security Unit because she allegedly “suspect[ed] that Plaintiff had improperly distributed information about a confidential informant.” Def.’s SOF ¶¶ 101, 103. Plaintiff contends that there is a genuine dispute about whether Andrews actually suspected plaintiff of wrongdoing, or if the referral to the security office was intentionally false. Pl.’s SOF ¶ 101. But even if there is a genuine dispute on that question, there is no genuine dispute that it was Andrews who reported plaintiff to the security office. And so, because the absolute bar on judicial review “does not preclude all review of decisions by other ... employees who merely report security concerns,” Rattigan, 689 F.3d at 768, the Court has subject matter jurisdiction over the question of whether Andrews initiated the investigation into plaintiffs suitability for a security clearance with a retaliatory or discriminatory motive. See id.

The Court, of Appeals in Rattigan concluded that there can be liability for a security investigation referral only where “agency employees acted with a retaliatory or discriminatory motive in reporting or referring information that they knew to be false.” Id. at 771. This suggests that the referral can constitute an adverse action under Title VII. And here, the parties agree that while plaintiff held the same position while his clearance was suspended, “his duties were changed because he no longer had access to classified information, which is necessary to perform the Unit Chief function.” Def.’s SOF ¶ 106; Pl.’s SOF ¶ 106. Thus, it appears that the limitation could have affected the terms, conditions, or privileges of plaintiffs employment, Forkkio, 306 F.3d at 1131, and the Court must consider this allegation on the merits.

e. Reassignment to a non-supervisory position

Finally, plaintiff contends that in 2014 he was reassigned “from a supervisory GS-15 to a non-supervisory GS-15” position, because of his age and gender. Compl. ¶¶ 63(h), 71(h). But plaintiff admits that the reassignment had no effect on his grade, salary, or pay. Def.’s SOF ¶¶ 113-114; Pl.’s SOF ¶¶ 113-14. In his deposition, plaintiff explained that the only harm associated with the reassignment was that he faced “the stress and the humiliation of the day-to-day people walking by and seeing [him] no longer having the status that [he] once had,” and that “as far as my future ... is concerned, it could definitely have an impact on any future outside employment that I’m seeking to get.” Dep. of Theodore Robert Duncan (Oct. 15, 2015), Ex. 2 to Def.’s Mot. [Dkt. # 15-1] (“Pl.’s Dep.”) at 141:1-142:4. But plaintiffs testimony that the reassignment would impact future career choices was immediately undercut by his admission that he was soon moved to a supervisory position within the agency. Id. at 142:5-143:7.

So plaintiff has not shown that there were any adverse consequences that flowed from his reassignment. Forkkio, 306 F.3d at 1131. And the Court finds below that any claim based on that action fails on the merits in any event.

2. Plaintiff cannot show that the reasons offered in support of the challenged decisions were pretextual.

Defendant has come forward with evidence to show that there were legitimate, non-discriminatory concerns about plaintiffs performance and professionalism in the workplace that prompted each of the adverse actions that are to be considered on the merits. See Def.’s Mem. at 20-26, 29, 34. So the burden shifts to plaintiff to prove in each instance that the agency’s stated reason was merely a pretext for an action that was actually motivated by the fact that plaintiff was a middle aged male.

In this case, plaintiff does not point to any direct evidence of discrimination. When a plaintiff brings a disparate treatment claim under the anti-discrimination provision of either Title VII or the ADEA, and he relies on circumstantial evidence to establish the employer’s unlawful motivation, the Court applies the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Barnette v. Chertoff 453 F.3d 513, 515 (D.C. Cir. 2006). Under that framework, the plaintiff bears the initial burden of establishing a prima facie case. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Holcomb, 433 F.3d at 895. Once a prima facie case is established, then “[t]he burden ... must shift to the employer to articulate some legitimate, nondiscriminatory reason” for the adverse action. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; see Holcomb, 433 F.3d at 896-97. If a legitimate, non-discriminatory reason is given, the burden shifts back to the plaintiff to prove that the proffered reason is a pretext for discrimination or retaliation. McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. 1817; Holcomb, 433 F.3d at 896.

But in cases like this one where the defendant proffers legitimate, non-discriminatory or non-retaliatory reasons for the challenged actions, the court need not conduct the threshold inquiry into whether the plaintiff established a prima facie case of discrimination. Instead, the court is required to analyze whether the defendant’s asserted reason is in fact a legitimate, nondiscriminatory explanation. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008) (“Lest there be any fingering uncertainty, we state the rule clearly: In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not—and should not—decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.”).

Once the defendant has proffered a legitimate explanation, then the burdens shifts to the plaintiff to demonstrate why the defendant is not entitled to judgment as a matter of law. In the context of a disparate treatment claim, the plaintiff may defeat summary judgment by proving either that the defendant’s legitimate, nondiscriminatory reason is a pretext for discrimination, McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817, or that the employment action was motivated by discrimination in addition to the proffered legitimate reason. Nassar, 133 S.Ct. at 2522-23; Fogg v. Gonzales, 492 F.3d 447, 451 (D.C. Cir. 2007); see also Ginger v. District of Columbia, 527 F.3d 1340, 1345 (D.C. Cir. 2008) (explaining the difference between a “single-motive” and a “mixed-motive” disparate treatment case). Plaintiff at this juncture bears the burden of persuasion. McIntyre v. Peters, 460 F.Supp.2d 125, 132-33 (D.D.C. 2006).

In opposition to the dispositive motion, plaintiff summarizes his case as follows:

The record evidence reveals that shortly after Mr. Duncan complained about discrimination, he was placed on a performance improvement plan (“PIP”), given a substandard rating on his mid-cycle review, issued a letter of counseling, and suspended from duty without pay for three days. Further evidence reveals that when Mr. Duncan continued to complain about discrimination!;,] the Agency determined he failed his PIP, suspended him from duty for seven days, suspended his security clearance, transferred him to a non-supervisory position, and removed him from his position of record. In particular, the documents and testimony demonstrate that Mr. Duncan suffered these employment actions within weeks of participating in the equal employment opportunity ... complaint process. In addition, the evidence shows that his supervisor, Stephanie Andrews ..., made the decisions to take these adverse actions against Mr. Duncan....

Despite Defendant’s several attempts to portray Mr. Duncan’s lawsuit as merely an expression of dissatisfaction with his supervisor, the record clearly demonstrates that Ms. Andrews increased her harassment of Plaintiff after his involvement in EEO activity.... As such, when, as the case here, a federal employee suffers increased harassment after contacting an EEO counselor and the Agency fails to discipline a younger female employee for similar misconduct, it is appropriate for a jury to determine if discrimination and retaliation were indeed the motives.

Pl.’s Opp. at 1-3.

Other than the stray reference to Andrews’s undisputed age and gender, plaintiff has come forward with no evidence to show that the agency was acting out of discrimination based on those protected characteristics—the gravamen of his complaint is that the agency’s actions were all taken in retaliation for his prior protected activity.

And to the extent that plaintiffs discrimination claims are premised on the contention that Andrews was treated differently than he was although she committed similar offenses, plaintiff has put forth no evidence on that issue. “A plaintiff can establish pretext masking a discriminatory motive by presenting ‘evidence suggesting that the employer treated other employees of a different [protected class] ... more favorably in the same factual circumstances.’ ” Burley v. Natl Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015), quoting Brady, 520 F.3d at 495. “To prove that he is similarly situated to another employee, a plaintiff ‘must demonstrate that [he] and the allegedly similarly situated ... employee were charged with offenses of comparable seriousness.’ ” Id., quoting Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999).

But plaintiff has not shown that Andrews committed any “offenses” at all, let alone that those offenses arose out of the same factual circumstances. In the single sentence devoted to this crucial issue in plaintiffs opposition to the motion for summary judgment, plaintiff argues that “Stephanie Andrews [] was not disciplined even though she has been the subject of multiple complaints and investigations.” Pl.’s Opp. at 15, citing Andrews Dep., Ex. 4 to Pl.’s Opp. [Dkt. # 20-5] at 12:20-24:21, 25:10-27:2. The cited portions of the deposition reveal two pieces of information. First, at some point, another of Ms. Andrews’s subordinates filed an EEO complaint against her. Andrews Dep. at 13:16-14:21. Andrews could not recall the basis or the approximate date of the complaint. Id. at 13:22-14:5. And second, Andrews was the subject of an Office of Professional Responsibility administrative inquiry into the work environment in the Analysis Division. Id. at 25:13-26:4. That inquiry concerned whether Andrews and the Division Director maintained a hostile work environment. Id. at 26:2-9. Andrews testified that she was not aware of the outcome of that inquiry. Id. at 26:16-18. So plaintiff has produced no evidence that Andrews engaged in misconduct at all; he has simply shown that he is not the only employee to have accused her of discrimination. And he has not produced any evidence to show that Andrews, or any other younger female, committed offenses that were similar to those for which he was sanctioned, or that she was treated differently at the time.

The Court concludes that no reasonable jury could find that defendant’s grounds for subjecting plaintiff to discipline were merely a pretext for either age or gender discrimination, and so it will grant summary judgment to the agency on Counts I and II.

II. Plaintiffs retaliation claims also fail.

Plaintiff claims in Count III that the agency retaliated against him in violation of Title VII when (1) it placed him on a PIP for sixty days; (2) suspended him for three days without pay; (3) proposed to suspend him for two weeks without pay; (4) failed to select him for the position for DAD of Analysis; (5) suspended him for one week without pay; (6) caused him to be “investigated based on false allegations, ” and (7) permanently reassigned him to a non-supervisory position. Compl. ¶ 83.

To establish a prima facie case of retaliation, “the plaintiff must present evidence that (1) [he] engaged in activity protected by Title VII; (2) the employer took an adverse employment action against [him]; and (3) the adverse action was causally related to the exercise of [his] rights.” Holcomb, 433 F.3d at 901-02. Title VIPs anti-retaliation provision makes it unlawful for “an employer [to] ‘discriminat[e] against’ an employee ... because that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), quoting 42 U.S.C. § 2000e-3(a). As the D.C. Circuit has explained, once the defendant has put forth a legitimate and non-discriminatory reason for its action, “the only question is whether the employee’s evidence creates a material dispute on the ultimate issue of retaliation ‘either directly by [showing] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ ” Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009), quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).

Unlike in the discrimination context, there are no mixed-motive retaliation claims; the plaintiff must establish that retaliation was the “but-for” cause of the adverse action in order to survive summary judgment. Nassar, 183 S.Ct. at 2583. “This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Id.

A. Many of plaintiffs retaliation claims were not properly exhausted, and he cannot allege a “continuing violation” under the circumstances.

In his opposition to the motion for summary judgment, plaintiff points to numerous instances of retaliation that were not included in the complaint. He alleges that he was retaliated against when the agency: denied him a within-grade step increase, failed to provide an end of year appraisal in 2012, tampered with his personnel file, suspended his security clearance, sent him a letter of inquiry regarding his finances, and assigned him to a cubicle instead of an office. Pl.’s Opp. at 9-10.

Plaintiff seems to admit that none of the allegations in the opposition were separately exhausted. See id. at 10. But he argues that the facts should be considered in support of Count III nonetheless because “separate exhaustion is not required for acts of retaliation occurring after the filing of an administrative complaint that would have come within the scope of any investigation that reasonably could have been expected to result.” Id. The Court construes this argument as an attempt to claim a continuing violation under Park v. Howard University, 71 F.3d 904 (D.C. Cir. 1995), but it is unclear whether that doctrine has survived the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114-15, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), and plaintiffs allegations do not meet the Park standard in any event.

Title VII requires a plaintiff who complains of unlawful discrimination to exhaust his administrative remedies before bringing a lawsuit. 42 U.S.C. § 2000e-16(c); see also Park, 71 F.3d at 907 (“Title VII requires that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on the charge.”). Thus, generally speaking, a lawsuit that flows from an EEOC charge is limited to the claims made in the charge.

Applying that principle, in 1995, the D.C. Circuit held that “[a] Title VII lawsuit following [an] EEOC charge is limited in scope to claims that are ‘like or reasonably related to the allegations of the charge and growing out of such allegations,’” Park, 71 F.3d at 907, quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994), and that would “arise from ‘the administrative investigation that can reasonably be expected to follow the charge of discrimination.’” Id., quoting Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981). But, in 2002, the Supreme Court examined the statutory time limits for the initial administrative filing of a Title VII charge and held that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Morgan, 536 U.S. at 113, 122 S.Ct. 2061.

Some courts in this district have concluded that Morgan overruled the Park “like or reasonably related” rule, and that therefore every discrete claim of retaliation must be administratively exhausted. See, e.g., Romero-Ostolaza v. Ridge, 370 F.Supp.2d 139, 149 (D.D.C. 2005). Other courts have found that Morgan did not overrule Park, and that a plaintiff may still bring unexhausted claims of retaliation when, the claims are “of a like kind to the retaliatory acts alleged in the EEOC charge, which were specified to be of an ongoing and continuing nature.” Smith-Thompson v. District of Columbia, 657 F.Supp.2d 123, 136-38 (D.D.C. 2009), citing Wedow v. City of Kansas City, Mo., 442 F.3d 661, 673 (8th Cir. 2006). The D.C. Circuit has not yet clarified which standard applies. See Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (declining to reach the question of whether Morgan overruled the “of a like kind” rule, where the respondent’s claims were unsustainable under either standard); see also Mount v. Johnson, 36 F.Supp.3d 74, 84-86 (D.D.C. 2014) (discussing the differing interpretations of Morgan and collecting cases).

For present purposes, however, the Court need not decide which standard applies because most of plaintiffs new allegations—the denial of a within-grade step increase, the lack of an end of year appraisal