Heavans v. Dodaro
| Decision Date | 23 December 2022 |
| Docket Number | Civil Action 22-836 (BAH) |
| Parties | SKYLER HEAVANS, Plaintiff, v. GENE DODARO, Comptroller General of the United States Government Accountability Office, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Skyler Heavans, a naturalized U.S. citizen from Iran, and resident of the District of Columbia, Complaint (“Compl.”) ¶ 4, 9, ECF. No 1, brings this action against his employer, the head of the U.S. Government Accountability Office (“GAO”) in his official capacity, alleging discrimination on the basis of national origin and sex, retaliation, and hostile work environment during plaintiff's employment at GAO's Learning Center (“LC”), under Title VII of the Civil Rights Act of 1664 (“Title VII”), 42 U.S.C § 2000e et seq., Compl. ¶¶ 11, 13 15, 17. Defendant has moved for dismissal, in whole or part (“Def.'s Mot.”), ECF No. 13, of all four claims, on the grounds that plaintiff failed to exhaust his administrative remedies as to much of the conduct complained of, that other conduct complained of is de minimis and therefore non-actionable, and that plaintiff fails to state plausible claims to relief on his sex discrimination and hostile work environment claims. For the reasons explained below, defendant's motion is granted in part and denied in part, and this suit will proceed based only on plaintiff's national origin discrimination and retaliation claims.
Summarized below is relevant factual background, as set out in the Complaint, followed by the procedural history leading to the pending motion.
Plaintiff began working at GAO in August 2013, and served, during the years relevant to this suit, as the Assistant Director of Instructional Systems Design and Learning Technologies, which position was part of LC's leadership team. Compl. ¶¶ 6-7. According to the complaint, before April 2019, plaintiff “had only positive performance reviews,” id. at 6, until April 1, 2019, when Kirstin Austin, a white American woman, was hired as LC's new Chief Learning Officer (“CLO”) and became plaintiff's supervisor. Id. ¶¶ 6, 8. At the time of Austin's hiring, “[p]laintiff was the only Iranian-American Director among the all-white, non-Iranian American LC Leadership Team,” and “[a]fter October 2019, [p]laintiff was only one of two men” on the team. Id. ¶¶ 7, 12.
Plaintiff alleges that the discriminatory treatment based on his national origin began almost immediately upon Austin's start. On Austin's second day on the job, she conducted individual meetings with each of LC's employees. Id. ¶¶ 8-9. During his meeting, plaintiff alleges that Ausin asked him “where [he was] from []” and “stated that the [p]laintiff's name was ‘not Middle-Eastern.'” Id. ¶ 9. Following that meeting and continuing throughout his time working under Austin's supervision, plaintiff alleges that “Ms. Austin treated him differently and scrutinized him more severely than the non-Iranian directors.” Id. ¶ 10. Much of this differential treatment seems based on plaintiff's Iranian background. In particular, he claims that on multiple separate occasions on unspecified dates, she would skip over him in meetings and say she “did not understand him” in front of his peers. During a one-on-one feedback session on June 22, 2021, Austin “mimicked and caricatured the Plaintiff's Iranian accent, mocking his national origin with a deeper male voice,” and, between June and August of 2021, Austin “corrected” plaintiff's pronunciation of her name “in several successive team meetings,” despite “[p]laintiff explain[ing] multiple times that her name was difficult to pronounce due to his accent,” even while others also mispronounced her name without being corrected. Id. ¶¶ 11, 42-45
Regarding sex discrimination, plaintiff alleges that from April 2019 to April 2020, Austin “repeatedly complained about a ‘man' who made her life difficult at her former job at the Department of Homeland Security,” that she directed these comments pointedly at him, and that he found them “discriminatory and harassing based upon his sex.” Id. ¶¶ 14-16.
At an unspecified time, plaintiff confronted Austin directly about some of these actions, telling her that they “lack[ed] people values” (employing “a phrase used when training GAO employees in diversity initiatives”). Id. ¶¶ 28, 38. She did not take this kindly, as plaintiff alleges that “[i]mmediately after this, Ms. Austin further isolated the Plaintiff, turning more staff and stakeholders against him and creating a hostile work environment in retaliation for his criticism of Ms. Austin's conduct.” Id. ¶ 39.
Concurrently with this behavior, Austin also made decisions that negatively affected plaintiff's work. On September 17, 2019, Austin announced the discontinuation of three “initiatives” plaintiff had been developing within the LC for the prior two and a half years, although they had “achieved great success within the LC and had high visibility throughout GAO,” when, by contrast, none of plaintiff's team members had their initiatives discontinued. Id. ¶¶ 17-19. In December 2019, Austin gave her first performance review to plaintiff, which review “contained his first negative statement rating in his entire 18-year career in federal service.” Id. ¶ 20. Around the same time, Austin began sidelining him: “[f]rom October 2019 to March 2020, Ms. Austin increasingly passed over the Plaintiff during meetings and excluded him from decisions that directly affected his work,” “removed him from management emails and from discussions about LC operations and activities,” “excluded him from final interviews for the hiring of his own direct report,” and did not give plaintiff the same “professional development opportunities accorded his fellow directors.” Id. ¶¶ 22-24, 27, 33. At his second annual performance review with Austin in December 2020, plaintiff, once again, received a lower rating than he believed he deserved. Id. at ¶¶ 29-30.
From the time of Austin's hiring through the end of 2020, plaintiff repeatedly informed another supervisor about Austin's behavior towards him, but that supervisor discouraged him from initiating internal mediation proceedings or filing a complaint, and seemingly did not report plaintiff's concerns to others. Id. ¶¶ 25-26, 31-32.
Plaintiff continued to struggle with Austin's decisions and treatment of him in 2021. On May 13, 2021, Austin held a meeting with the managers of other GAO departments, and “unbeknownst to the Plaintiff,” “inaccurately” criticized one of his projects “to make him appear incompetent.” Id. ¶ 35. Days later, on plaintiff's “pre-scheduled day off,” Austin and another supervisor “contacted [plaintiff] three times within a 24-hour period to ask why he was unable to attend” an LC management training scheduled for that day, and then “criticized” him “for not providing an immediate response,” even though they “kn[e]w why the Plaintiff was unable to attend.” Id. ¶¶ 36-37. On May 24, 2021, Austin fired one of plaintiff's subordinate program managers “without the Plaintiff's knowledge,” which “adversely impacted the Plaintiff's relationships with the rest of his team, who believed that the termination . . . was his decision.” Id. ¶¶ 40-41.
From June 24 to July 8, 2021, plaintiff was out of the office on a pre-scheduled vacation. Id. ¶ 46. Austin and another of plaintiff's supervisors allegedly took the opportunity to “me[et] with each of Plaintiff's direct reports to inquire about his performance as a manager” while he was away. Id.
Upon plaintiff's return to the office on July 8, 2021, tensions quickly came to a head. He noticed that Austin had scheduled a meeting for the following day for herself, plaintiff, and another of plaintiff's supervisors. Id. ¶ 47. At this point, plaintiff began to seek formal administrative help: he contacted GAO's Office of Opportunity and Inclusion (O&I) and another of his supervisors to “request[] a mediator to attend the July 9, 2021[] meeting, citing “Ms. Austin's continued discriminatory treatment” and her “humiliating behavior of mocking his Iranian accent.” Id. ¶ 48. He repeated this request for mediation on the day of the meeting; Austin, however, allegedly “refused to engage in mediation to resolve Plaintiff's concerns.” Id. ¶¶ 49-50.
At the July 9, 2021 meeting, plaintiff's situation further deteriorated. First, Austin notified him that he had received “‘Marginal' performance ratings for each of his performance competencies,” id. ¶ 51, which came as a shock to plaintiff because only three months before, he had been assured by another supervisor that he was on track to receive positive ratings in a midpoint performance review, id. ¶¶ 34, 52. Austin then informed him that “he would no longer receive the benefit of a ‘flex schedule' and would be moved to a standard Monday to Friday work week.” Id. ¶ 53. In response, plaintiff told her that “mocking his voice on June 22, 2021 was unacceptable, as were the false accusations presented to him during the meeting,” and that “he intended to file an internal complaint against her for discrimination, retaliation, and hostile work environment.” Id. ¶¶ 54-55. Following that meeting, plaintiff alleges that he “was required to use sick leave for severe and worsening depression attributable to Ms. Austin's discriminatory, retaliatory and harassing conduct.” Id. ¶ 56.
Meanwhile plaintiff pursued his administrative complaints. On July 12, 2021, he sent an email to “Human Capital personnel . . . informing them...
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