Keith v. U.S. Gov't Accountability Office, Civil Action 21-2010 (RC)

CourtUnited States District Courts. United States District Court (Columbia)
Docket NumberCivil Action 21-2010 (RC)
Decision Date29 August 2022



Civil Action No. 21-2010 (RC)

United States District Court, District of Columbia

August 29, 2022




This case comes before the Court on Defendant U.S. Government Accountability Office's (“GAO”) motion to dismiss for failure to state a claim, so the Court accepts the factual allegations in Plaintiff Camille Keith's Complaint as true at this stage and summarizes them here. See, e.g., Robb v. Vilsack, No. CV 20-0929, 2021 WL 3036796, at *1 n.2 (D.D.C. July 19, 2021). Keith, an “African American female” in her forties who has a hearing-impairment disability, was a forensic audits analyst at GAO. Compl. ¶¶ 12, 16, 18, ECF No. 1. She has a 17-year record of “exemplary work performance” at GAO. Id. ¶ 22. In August 2018, Keith was assigned to a team tasked with examining for fraud and related issues at the Federal Emergency Management Agency (“FEMA”). Id. ¶¶ 19, 23. “Ms. Fagan,” whose first name Keith does not recall, served as Keith's supervisor or “Designated Performance Manager.” See id. ¶ 20.

At some point, apparently in May 2019, Keith received her “2018 performance appraisal rating.” Id. ¶ 23. Unhappy with the review, she disputed it. Id. Keith does not specify on what grounds she disputed her 2018 performance appraisal rating. See id. But GAO was displeased


that Keith had disputed the review, so it retaliated against her by failing to give her “constructive feedback that would have allowed her to improve her work performance for the 2019 appraisal period.” Id. The result was a negative 2019 performance appraisal that rated Keith's work “unacceptable” in several categories. Id.

Also while on the FEMA engagement, Keith received “unreasonable time constraints to complete her projects”; for example, her supervisors required her to complete a “Record of Interview” and a related “review of a 65-page monitoring document,” within one day after the interview. Id. ¶ 24. Other examples included being assigned to lead a meeting with only “a couple of hours to prepare,” and being told “at the end of the workday” that she had to “completely revise a document by the next morning.” Id.

Keith further complains that she “was barred from travelling with the team on site visits” in February 2019. Id. ¶ 25. Thus, when the rest of the team prepared to travel to Texas, Fagan told Keith she would not be joining. Id. Keith later asked whether she would join the team on a trip to California, and “Fagan replied no due to ‘team structure.'” Id.

To make matters worse, in June 2019, the human resources office told Keith that she could no longer work from home under a “telework arrangement” because of her “unacceptable work performance.” Id. ¶ 26. Keith says that this was the first she had heard of this criticism of her work; she therefore did not have the opportunity to receive “constructive feedback” before losing the privilege of working remotely. Id.

All of this was punctuated by a series of unpleasant interactions involving Keith's hearing disability that “made her feel upset, uncomfortable, and belittled.” Id. ¶ 27. Once, Keith announced to her team that she would be getting hearing aids. Id. Fagan responded, “Good.” Id. Keith asked what Fagan meant, and Fagan clarified, “you're getting help.” Id. Keith


“responded [that] she did not think there was anything good about being 44 years old and getting hearing aids.” Id. Separately, during meetings, another “co-worker,” Director Rebecca Shea, “kept asking ‘Can you hear, can you hear'”? Id. ¶¶ 20, 27. Still another “co-worker,” “Analystin-Charge” Erin Villas, “compared [Keith] getting hearing aids to her sister getting glasses.” Id. ¶ 27. Keith made it clear that she considered these comments offensive and that they made her uncomfortable. Id. at ¶ 27. GAO “managers” also provided Keith with “conflicting instructions about whether to speak up when she could not hear.” Id. At first, they told her not to interrupt meetings when she could not hear because she would receive notes after the meeting. Id. But then, they turned around and told her “it was unacceptable not to speak up if [she] could not hear.” Id.

In the instant lawsuit, Keith alleges that the lack of constructive feedback, 2019 negative performance appraisal, ban from site-visit travel, termination of her telework option, “negative comments about her disability,” and “conflicting directions regarding her participation in work activities,” were retaliation for activity protected by Title VII of the Civil Rights Act of 1964, namely Keith's “disput[e] [of] her 2018 performance appraisal rating.” Id. ¶¶ 70-71. Keith further alleges that each of these same events constituted discrimination on the basis of her race and sex in violation of Title VII, as well as discrimination on the basis of her age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”) and discrimination on the basis of her hearing disability in violation of the Americans with Disabilities Act of 1990 (“ADA”). Id. ¶¶ 30, 51, 9196. In response, GAO moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Complaint for failure to state a claim upon which relief can be granted. Def.'s Mot. Dismiss, ECF No. 4.



The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” sufficient to give the defendant fair notice of the claim and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a complaint” under that standard; it asks whether the plaintiff has properly stated a claim. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff's factual allegations “must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555. However, a court considering a motion to dismiss must accept the complaint's factual allegations as true. See, e.g., Lucas v. District of Columbia, 214 F.Supp.3d 1, 5 (D.D.C. 2016). Moreover, the court must “draw all reasonable inferences” in favor of the plaintiff. DC2NY, Inc. v. Acad. Express, LLC, 485 F.Supp.3d 113, 118 (D.D.C. 2020).


Keith's Complaint does not state any claim upon which relief can be granted. Specifically, Keith has not stated any discrimination claims because the Complaint does not


sufficiently allege that any of the GAO acts she complains about took place because of any of her protected statuses. Keith's retaliation claim fails because the Complaint does not allege that the activity on which it turns, Keith's objection to her 2018 performance review, was related to discrimination. Finally, Keith has not alleged the sort of severe or pervasive harassment necessary to state a hostile work environment claim. Accordingly, the Court grants GAO's motion to dismiss.

A. The Complaint Does Not Sufficiently Allege the Causation Element of Any of Keith's Discrimination Claims

“[T]he two essential elements of [Keith's] discrimination claim[s]” under Title VII, the ADEA, and the ADA[1] “are that (i) [Keith] suffered an adverse employment action (ii) because of [her] race . . . sex . . . age, or disability.” See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (citing 42 U.S.C. § 2000e-16(a); 29 U.S.C. §§ 621 et seq.; 29 U.S.C. §§ 701 et seq.); Hollabaugh v. Off. of the Architect of the Capitol, 847 F.Supp.2d 57, 64 (D.D.C. 2012). Keith has not plausibly alleged the second element.[2]


Though the “initial burden” of pleading the “because of” element is “not onerous,” a plaintiff cannot survive a motion to dismiss merely by providing “threadbare” or conclusory allegations of discrimination; nor can a plaintiff state a claim “merely [by] invok[ing] [her] race[, sex, age, or disability], in the course of a claim's narrative.”[3] See Doe #1 v. Am. Fed'n of Gov't Emps., 554 F.Supp.3d 75, 102-103 (D.D.C. 2021) (cleaned up) (addressing a claim under 42 U.S.C. § 1981, but noting that the same framework governs § 1981 and Title VII claims and “rely[ing] on case law interpreting section 1981 and Title VII”). Rather, a “plaintiff must allege some facts” to give rise to the reasonable inference that her race, sex, age, or disability “was the reason for defendant's actions.” See id. at 102 (cleaned up); Massaquoi v. District of Columbia, 81 F.Supp.3d 44, 50 (D.D.C. 2015) (“[P]laintiff's conclusory allegations of discrimination, without any supporting facts, ‘stop short of the line between possibility and plausibility of entitlement to relief.'” (citation omitted).

A frequent means of pleading factual allegations sufficient to “raise an inference of discrimination” under Title VII, the ADA and the ADEA is “by showing that [the plaintiff] was treated differently from similarly situated employees who are not part of the protected class.” See Doe #1, 554 F.Supp.3d at 103 (quoting ...

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