UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FELIX ACON-CHEN,
Plaintiff,
v.
Civil Action No. 24-1529 (RDM)
SEAN P. DUFFY,
Secretary of Transportation,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Felix Acon-Chen, proceeding pro se, brings this suit against the Secretary of
Transportation alleging discriminatory treatment during his employment with the Federal
Aviation Administration (“FAA”). The Court previously dismissed many of Plaintiff’s claims
with prejudice, see Dkt. 56 (“Acon-Chen II”), but permitted Plaintiff to file an amended
complaint with respect to his claims challenging a letter of expectation (“Reprimand Letter”)
from a supervisor and his requests for records under the Privacy Act, 5 U.S.C. § 522a. Id. at 19–
20. Plaintiff has now filed a second amended complaint, see Dkt. 57 (2d Am. Compl.), along
with three motions asking the Court to reconsider its prior decision, see Dkts. 58, 59, 69.
Defendant has once again moved to dismiss Plaintiff’s complaint. See Dkt. 65.
For the reasons that follow, the Court will DENY Plaintiff’s three motions for
reconsideration and will GRANT in part and DENY in part Defendant’s motion to dismiss.
I. BACKGROUND
The Court previously described the background to this suit in its opinion dismissing
Plaintiff’s first amended complaint. See Acon-Chen II at 1–9. The Court will briefly summarize the procedural history before turning to the allegations in Plaintiff’s latest complaint, see Dkt. 57
(2d Am. Compl.), which the Court accepts as true for the purpose of resolving the pending
motion to dismiss, see Gordon v. U.S. Capitol Police, 778 F.3d 158, 163–64 (D.C. Cir. 2015).
Plaintiff filed his original complaint in May 2024, naming the Secretary of
Transportation, the Attorney General, and the U.S. Attorney for the District of Columbia as
defendants and appearing to raise claims under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e et seq., for national origin discrimination. Dkt. 1 at 3–4, 8 (Compl.). The Court
dismissed Plaintiff’s original complaint, which spanned hundreds of pages of allegations and
attached exhibits, “on the grounds that it [was] excessively long, rambling, disjointed,
incoherent, [and] full of irrelevant and confusing material, in violation of Federal Rules of Civil
Procedure 8 and 10.” Acon-Chen v. Buttigieg, No. 24-cv-1529, 2024 WL 4416943, at *1
(D.D.C. Oct. 5, 2024) (“Acon-Chen I”) (second alteration in original) (citation modified). The
Court afforded Plaintiff an opportunity to file an amended complaint that complied with the
Federal Rules of Civil Procedure, id. at *3, and Plaintiff filed an amended complaint in
November 2024, see Dkt. 42 (Am. Compl.). That complaint also named the Secretary of
Transportation, the Attorney General, and the U.S. Attorney for the District of Columbia as
defendants, id. at 2 (Am. Compl. ¶¶ 2–4), and appeared to raise claims for, among other things,
violations of Title VII, the D.C. Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq.,
the Privacy Act, and the Fifth Amendment, id. at 28, 34 (Am. Compl. ¶¶ 156–57, 178).
Defendants moved to dismiss Plaintiff’s amended complaint, see Dkt. 45, and the Court
granted that motion in Acon-Chen II. Although Plaintiff had not “clearly identif[ied] his causes
of action,” the Court understood him to be asserting claims for national origin discrimination and
hostile work environment under Title VII and the DCHRA based on his Costa Rican national
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origin, for “failure to remedy national origin discrimination and retaliation” under both statutes,
for a failure to grant access to records under the Privacy Act, for unfair labor practices under the
Federal Service Labor-Management Relations Statute (“FSLMRS”), 5 U.S.C. § 7101 et seq., and
for violations of his Fifth Amendment right to due process and equal protection. Acon-Chen II at
7–8 (citation modified).
The Court dismissed the DCHRA claims on sovereign immunity grounds. Id. at 10–11.
As for the Title VII claims, the Court dismissed the claims against the Attorney General and the
U.S. Attorney because neither was the “head of the department or agency being sued,” id. at 11
n.4 (citation modified), and concluded that Plaintiff had failed timely to exhaust any claim
challenging any discrete act of discrimination that occurred prior to January 27, 2023, id. at 11.
The Court explained that Title VII and its implementing regulations require a federal employee
to initiate contact with the Equal Employment Opportunity (“EEO”) office within 45 days of an
allegedly discriminatory act. Id. (citing 29 C.F.R. § 1614.105(a)(1)). Plaintiff did not initiate
contact with the EEO office until March 13, 2023, rendering untimely any challenge to an act of
discrimination that occurred more than 45 days earlier. Id. The only identified incident that
occurred within that timeframe was the Reprimand Letter issued on February 1, 2023, criticizing
Plaintiff for using his work email account to conduct union business and cautioning him not to
do so again. Id. at 5, 12. The Court also rejected Plaintiff’s attempt to connect the Reprimand
Letter to a hostile work environment, which would have allowed Plaintiff to challenge an entire
course of conduct so long as a single contributory act occurred within the 45-day window. Id. at
12 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). The Court
determined that Plaintiff’s other alleged incidents of discrimination were “insufficiently linked to
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the Reprimand Letter” and failed to state a claim for a hostile work environment regardless. Id.
at 12–13.
Proceeding to the merits of the Title VII claim relating to the Reprimand Letter, the Court
held that Plaintiff had “fail[ed] to raise a plausible inference of discrimination.” Id. at 14.
Although Plaintiff alleged that another (non-Costa Rican) FAA employee, Zachary Cammarano,
had not received a similar letter despite also having used his FAA email for union activities,
Plaintiff had not sufficiently alleged that Cammarano (who had a different supervisor and had
not been accused of repeated misconduct) was similarly situated to Plaintiff, and, in any event,
Plaintiff seemed to acknowledge elsewhere in his complaint that Cammarano was, in fact,
subjected to discipline. Id. at 14–16. The Court also dismissed any claim that the Reprimand
Letter was retaliatory because Plaintiff’s complaint “[did] not contain any non-conclusory
allegations in support of th[at] theor[y].” Id. at 14 n.5.
In addition, the Court dismissed Plaintiff’s claim under the Privacy Act for failure to
comply with that statute’s administrative exhaustion requirements. Id. at 16–17 (citing Bain v.
Off. of Att’y Gen., 648 F. Supp. 3d 19, 41–42 (D.D.C. 2022)). Plaintiff’s separate claims under
the FSLMRS also failed because Congress had vested the Federal Labor Relations Authority
with exclusive jurisdiction to adjudicate such claims. Id. at 17–18. Finally, the Court dismissed
Plaintiff’s constitutional claims under the Fifth Amendment as “the D.C. Circuit ‘has repeatedly
held that federal employees may not bring suit under the Constitution for employment
discrimination that is actionable under Title VII.’” Id. at 18 (quoting Ethnic Emps. of Libr. of
Cong. v. Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985)).
Having granted Defendants’ motion to dismiss Plaintiff’s complaint in its entirety, the
Court allowed Plaintiff “one additional opportunity to file an amended complaint.” Id. at 19.
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The Court had dismissed many of Plaintiff’s claims with prejudice, including his DCHRA claim,
his Title VII claims against the Attorney General and the U.S. Attorney, and his untimely Title
VII claims against the Secretary of Transportation. Id. at 19–20. But the Court authorized
Plaintiff to “file an amended complaint, not to exceed 30 pages, with respect to the Reprimand
Letter and his Privacy Act” claims. Id. The Court cautioned Plaintiff, however, not to “reassert
any of the claims” that the Court had “dismissed with prejudice.” Id. at 19.
Plaintiff filed his second amended complaint in August 2025. See Dkt. 57 (2d Am.
Compl.). This time, he names the Secretary of Transportation as the sole Defendant and includes
the following allegations: Plaintiff, an engineer with the FAA, has been subjected to
“routine[] . . . national origin discrimination acts of intimidation, harassment, disparate
treatment, and retaliation,” including “adverse disparate treatment regarding pay, assigned work,
training, access to career advancement information, and promotions as retaliation for reporting
national origin-based discrimination within [the] FAA.” Id. at 2 (2d Am. Compl. ¶ 9). Plaintiff
is “the only naturalized US employee of Asian/Latino-Costa Rican de[s]cent” within his
workgroup. Id. (2d Am. Compl. ¶ 14). He began reporting to his current supervisor, Vincent
Telfer, in November 2021. Id. at 4 (2d Am. Compl. ¶ 13). Plaintiff met with Telfer on
September 19, 2022, to ask for a promotion and for “career advancement information,” but
Telfer responded by suggesting that Plaintiff seek another job and reducing his workload. Id. at
5 (2d Am. Compl. ¶¶ 15–16).
On February 1, 2023, Telfer issued Plaintiff the Reprimand Letter, which addressed his
alleged inappropriate use of his FAA email and government-provided equipment for union
activities. Id. at 3–5 (2d Am Compl. ¶¶ 11, 17). Plaintiff denies having misused his work email,
alleging that the relevant emails were sent from his personal email account and that Jim
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Kabbara, another FAA employee, “altered” and sent misleading copies of those emails to FAA
leadership to make it appear that they were sent using Plaintiff’s FAA email address. Id. at 5–7
(2d Am. Compl. ¶¶ 19, 22). In an attachment to one of his later filings in this case, Plaintiff
includes a series of emails purportedly sent from his personal “hotmail.com” email account to
various FAA employees, including an email dated January 5, 2023, 8:57 a.m., with the subject
line “Important - Time Sensitive - Information to Leave Local 1653,” which included guidance
on how FAA employees could prevent union dues from being withdrawn from their paychecks.
Dkt. 69-1 at 2–9. He also includes a copy of an identical email purportedly sent at the same time
from Plaintiff’s FAA email address, which Jim Kabbara apparently forwarded (presumably,
Plaintiff alleges, after having doctored it to make it appear as if Plaintiff had sent it from his
work email) to several FAA officials, and which Plaintiff obtained in response to a FOIA
request. Id. at 12–14.
Plaintiff also filed a copy of the Reprimand Letter as a separate exhibit. See Dkt. 63.
The letter, dated January 30, 2023, and sent to Plaintiff by Telfer, states that “[t]he purpose of
this letter is to caution [Plaintiff] about your behavior and place you on notice of my expectations
for your behavior in the future.” Id. at 3. It refers to an email sent by Plaintiff “to employees
concerning union dues” on January 6, 2023, id., which, according to Plaintiff, is the email
discussed above—although he contends that he sent the email from his personal email address on
January 5, 2023, see Dkt. 57 at 5–7 (2d Am. Compl. ¶¶ 19, 22). After citing FAA policies
related to the use of the internet and government technology, which forbade “broadcasting
inappropriate or unsolicited messages,” the letter concludes with a warning that Telfer would
“not tolerate this type of behavior in the future, as we have had this discussion on multiple
occasions,” and that “any further violations of this nature will be considered [a] failure to follow
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my instructions and may result in disciplinary action up to and including removal from the
Federal service.” Dkt. 63 at 3–4. Then, in bolded and italicized font, the letter emphasizes that it
“is not a disciplinary action” and, thus, “will not be placed in [Plaintiff’s] Official Personnel
Folder.” Id. at 4. Notwithstanding the Reprimand Letter’s suggestions to the contrary, Plaintiff
alleges that FAA employees were, in practice, routinely permitted to use their work emails for
protected union activity. Dkt. 57 at 8–9 (2d Am. Compl. ¶¶ 24–27).
Plaintiff filed an EEO complaint with the FAA’s Office of Civil Rights on March 13,
2023. Id. at 2 (2d Am. Compl. ¶ 8). During the EEO process, Plaintiff argued that he had been
“singled out” and “threaten[ed] [with] disciplinary action” even though other FAA employees
routinely engaged in similar behavior. Id. at 10 (2d Am. Compl. ¶ 31). Plaintiff alleges that
Telfer and other FAA leaders routinely perjured themselves when responding to his EEO
complaint. Id. at 10–13 (2d Am. Compl. ¶¶ 32–43). The Department dismissed Plaintiff’s EEO
complaint in February 2024, id. at 14 (2d Am. Compl. ¶ 47), resulting in this suit.
As with his prior complaints, Plaintiff’s latest filing is difficult to parse and does not
clearly identify his asserted causes of action. In addition to Title VII claims for national origin
discrimination based on the Reprimand Letter, id. at 17 (2d Am. Compl. ¶ 60), Plaintiff refers to
the Stored Communications Act, 18 U.S.C. § 2701 et seq., the Privacy Act, various criminal
statutes, and other statutory provisions, id. at 21 (2d Am. Compl. ¶ 74), and the Fourth
Amendment, id. at 6–7 (2d Am. Compl. ¶ 21). Adding some clarity in his opposition to the latest
motion to dismiss, Plaintiff discusses claims for discrimination, retaliation, and hostile work
environment (under Title VII) as well as a Privacy Act claim and constitutional claims under the
Fourth and Fifth Amendments. See generally Dkt. 71.
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Plaintiff followed the second amended complaint with two motions seeking to “set aside”
the Court’s dismissal of his first amended complaint in Acon-Chen II. See Dkts. 58, 59.
Defendant then moved to dismiss the second amended complaint in its entirety, see Dkt. 65, and
Plaintiff opposed the motion, see Dkt. 71. Plaintiff also filed a third motion seeking to revisit the
Court’s decision in Acon-Chen II. See Dkt. 69. Those four motions are now before the Court.
II. LEGAL STANDARD
Rule 54(b) permits a district court to revise “any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all
the parties . . . at any time before the entry of a [final] judgment.” Fed. R. Civ. P. 54(b). “The
precise standard governing Rule 54(b) reconsideration is unsettled in [this] Circuit.” Cobell v.
Norton, 224 F.R.D. 266, 272 (D.D.C. 2004). “[T]he judicial interest in finality,” however,
“disfavors reconsideration,” Montgomery v. IRS, 356 F. Supp. 3d 74, 79 (D.D.C. 2019), and
precludes disappointed parties from simply claiming the right to a “mulligan.” Rather, the
moving party bears the burden of demonstrating that the interests of justice or other “good
reasons” warrant reconsideration. Cobell v. Norton, 355 F. Supp. 2d 531, 540 (D.D.C. 2005).
Such reasons might include “(1) an intervening change in the law; (2) the discovery of new
evidence not previously available; or (3) a clear error in the [Court’s previous] order.” United
States v. All Assets Held at Bank Julius, Baer & Co., Ltd., 315 F. Supp. 3d 90, 96 (D.D.C. 2018)
(citation modified). Good reasons do not, however, include simply rearguing “facts and theories
upon which a court has already ruled.” New York v. United States, 880 F. Supp. 37, 38 (D.D.C.
1995) (three-judge panel).
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
8
12(b)(6). To survive a motion brought under Rule 12(b)(6), “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) (citation modified). A court must consider the whole complaint,
accepting factual allegations as true and construing all reasonable inferences in favor of the
plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But a court “need not accept as
true ‘a legal conclusion couched as a factual allegation,’ nor inferences that are unsupported by
the facts set out in the complaint.” Laughlin v. Holder, 923 F. Supp. 2d 204, 209 (D.D.C. 2013)
(quoting Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)). In applying these standards,
moreover, courts must be mindful that pro se filings are “to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation modified).
III. ANALYSIS
A. Motions for Reconsideration
The Court begins with Plaintiff’s three motions seeking reconsideration of the Court’s
decision in Acon-Chen II. See Dkts. 58, 59, 69. The first two of those motions are captioned as
motions for relief from judgment filed under Federal Rule of Civil Procedure 60(b). Dkt. 58 at
1; Dkt. 59 at 1. Rule 60(b), however, applies to a “a final judgment, order, or proceeding” of the
Court. Fed. R. Civ. P. 60(b). As Plaintiff recognized in his third motion, Dkt. 69 at 1, AconChen II was not a final judgment; rather than terminating the case, the Court invited Plaintiff to
file a second amended complaint, see Acon-Chen II at 19–20. The Court will, accordingly,
construe all three motions as seeking reconsideration under Federal Rule of Civil Procedure
54(b), which applies to a decision that, like Acon-Chen II, “adjudicates fewer than all the claims”
at issue and “does not end the action.” Fed. R. Civ. P. 54(b).
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On the merits, none of Plaintiff’s motions offer any reason to question the Court’s
decision in Acon-Chen II, let alone satisfy the high standard for reconsideration under Rule
54(b). Several of Plaintiff’s arguments simply misapprehend the Court’s prior decision.
Plaintiff, for example, suggests that Acon-Chen II somehow “dismissed Plaintiff’s background
evidence” of his alleged treatment at the FAA “with prejudice.” Dkt. 69 at 9; see also Dkt. 58 at
2. It is unclear what Plaintiff means by this, as the case remains at the pleading stage and the
Court has yet to consider what evidence to admit if the case were to advance to trial. Nothing in
Acon-Chen II, moreover, forbade Plaintiff from including allegations relating to his previous
experiences at the FAA in his second amended complaint, to the extent they are plausibly
relevant to any timely Title VII or Privacy Act claim he might assert. See Reddish v. WMATA,
No. 22-cv-2658, 2026 WL 380766, at *13 (D.D.C. Feb. 11, 2026) (noting that a plaintiff may
“invok[e]” prior instances of alleged discrimination “as relevant background or as evidence that
her later treatment was attributable to invidious motives” even if a claim regarding those events
would be untimely). The Court will, in any event, consider all of the allegations in Plaintiff’s
most recent complaint, including his discussion of any prior alleged incidents of discrimination,
in assessing whether Plaintiff has stated a claim for relief arising from the Reprimand Letter (or
under the Privacy Act). That does not, however, call into question the Court’s prior decision to
dismiss with prejudice any untimely Title VII claims contesting previous incidents that Plaintiff
did not exhaust. See Acon-Chen II at 19.
Plaintiff also seeks reconsideration of Acon-Chen II’s dismissal of his hostile work
environment claim linked to the Reprimand Letter. Dkt. 69 at 3–4. But Acon-Chen II correctly
determined that Plaintiff had not alleged that the Reprimand Letter was “part of the same
actionable hostile environment claim,” Acon-Chen II at 12 (quoting Baird v. Gotbaum, 662 F.3d
10
1246, 1251 (D.C. Cir. 2011)), as Plaintiff’s other allegations, which concerned “increased
workload, pay discrimination, [and] denial of career advancement . . . [that] were perpetrated by
at least three different managers over nearly ten years,” id. Despite Plaintiff’s arguments to the
contrary, see Dkt. 69 at 3–4, a private letter cautioning an employee about improper use of work
email accounts does not “involve the same type of employment action” as the denial of a leave
request or a failure to promote, and does not rise to the level of the type of “severe or pervasive”
“intimidation, ridicule, [or] insult” necessary to transform discrete allegations of discrimination
into a continuing hostile work environment, Acon-Chen II at 12–13 (citation modified). A
plaintiff may not use allegations of a hostile work environment merely to “bootstrap” discrete
claims that were not exhausted in a timely manner into a timely hostile work environment claim,
Dudley v. WMATA, 924 F. Supp. 2d 141, 165 (D.D.C. 2013), unless the claims “are adequately
linked into a coherent hostile environment claim,” Baird, 662 F.3d at 1251; see also Morgan,
536 U.S. at 127 (O’Connor, J., concurring in part and dissenting in part); Boone v.
MountainMade Found., 64 F. Supp. 3d 216, 240 (D.D.C. 2014) (“[T]his jurisdiction frowns on
plaintiffs who attempt to bootstrap their alleged discrete acts of [discrimination] into a broader
hostile work environment claim.” (citation modified)).
Here, the fact that a few FAA human resources officials were allegedly involved in
multiple incidents (separated by many years) does not alter the analysis. See Dkt. 69 at 3–4. Nor
does Plaintiff’s (largely conclusory) assertion that all of the incidents were individually
motivated by hostility to his national origin. See id. At most, that would suggest that each of the
incidents, standing alone, could support a Title VII claim challenging distinct, discrete acts of
discrimination, had Plaintiff timely exhausted those claims. Finally, Plaintiff has not, in any
event, cleared the high bar to allege a hostile work environment linked to the Reprimand Letter.
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That letter, which criticizes his use of his workplace email without imposing any consequences,
“do[es] not show that Plaintiff was subjected to ‘discriminatory intimidation, ridicule, and insult
that was sufficiently severe or pervasive to alter the conditions of his employment and create an
abusive working environment.’” Acon-Chen II at 13 (citation modified) (quoting Baloch v.
Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)); see Dkt. 63 at 3–4.
Plaintiff’s other arguments are foreclosed by binding precedent. Plaintiff first argues that
the Court erred in dismissing his Fifth Amendment due process claim related to the
government’s violation of his employee rights as outlined in his collective bargaining agreement.
Dkt. 58 at 3. As the Court explained in Acon-Chen II, however, “the D.C. Circuit ‘has
repeatedly held that federal employees may not bring suit under the Constitution for employment
discrimination that is actionable under Title VII.’” Acon-Chen II at 18 (quoting Boorstin, 751
F.2d at 1415). Nothing in Plaintiff’s motions for reconsideration disputes that his “constitutional
claims are grounded in the same incidents and theories as his Title VII claims.” Id. And even if
Plaintiff raised due process claims “separate from the allegations of discrimination, harassment,
and retaliation underlying [his] Title VII claims,” Kittner v. Gates, 708 F. Supp. 2d 47, 54
(D.D.C. 2010), those claims would be separately preempted by the Civil Service Reform Act’s
(“CSRA”) “comprehensive system for reviewing personnel action taken against federal
employees,” id. at 55 (quoting United States v. Fausto, 484 U.S. 439, 455 (1988)). The same is
true for Plaintiff’s First and Fourth Amendment claims arising out of the Reprimand Letter.1
1
Plaintiff has also failed to state a plausible claim for a First or Fourth Amendment violation in any event. The First Amendment does not prevent the government as employer from disciplining employees for “speech that has some potential to affect [its] operations,” such as an unwanted mass communication sent to FAA employees at their workplace emails that apparently used FAA equipment and an FAA email account. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Nor does Plaintiff plausibly allege any specific facts supporting his contention that the
12
Dkt. 58 at 3–4; see Elgin v. U.S. Dep’t of Treasury, 567 U.S. 1, 12 (2012) (The CSRA
administrative scheme preempts “claims that an agency took adverse employment action in
violation of an employee’s First or Fourth Amendment rights.”). Finally, Plaintiff’s arguments
that the doctrine of sovereign immunity is incompatible with foundational constitutional
principles, see generally Dkt. 59, are equally meritless, see Burford v. Yellen, 246 F. Supp. 3d
161, 181 (D.D.C. 2017).
The Court will therefore deny Plaintiff’s motions for reconsideration.
B. Motion to Dismiss
1. Title VII
a. Discrimination
Turning to the motion to dismiss, Plaintiff alleges that the Reprimand Letter
discriminated against him on the basis of his national origin in violation of Title VII. Dkt. 57 at
20 (2d Am. Compl. ¶ 69–70). To assert a claim for discrimination, Plaintiff must allege “that
(1) he is a member of a protected class, (2) he suffered an adverse employment action, and
(3) the unfavorable action gives rise to an inference of discrimination.” Brown v. Sessoms, 774
F.3d 1016, 1022 (D.C. Cir. 2014) (citation modified).
Defendant first argues that the Reprimand Letter, even if discriminatory, does not amount
to an actionable adverse employment action. Dkt. 65 at 9–13. Title VII prohibits any
discriminatory “personnel action[] affecting” a federal employee such as Plaintiff. 42 U.S.C.
§ 2000e-16(a). This differs from the language applicable to employers in the private sector,
FAA learned about his email through an unlawful search; to the contrary, Plaintiff’s own exhibits show that the email was forwarded to FAA leadership by one of the recipients, Dkt. 69-1 at 12– 14, and Plaintiff’s second amended complaint lacks any factual allegations plausibly controverting his own exhibits, see Dkt. 57 (2d Am. Compl.).
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which bars discrimination “with respect to [the employee’s] compensation, terms, conditions, or
privileges of employment.” Id. § 2000e-2(a). In Defendant’s view, the statute’s coverage in
public sector cases is limited to actions such as appointments, promotions, or reassignments.
Dkt. 65 at 10 (citing 5 U.S.C. § 2302(a)(2)(A)). As Defendant explains, this more limited reach
tracks the definition of “personnel action” found in the CSRA, and the Supreme Court held in
Babb v. Wilkie, 589 U.S. 399 (2020), that the CSRA definition of “personnel action” is
“consistent with the term’s meaning in general usage,” id. at 405. Although Babb addressed a
claim brought under the Age Discrimination in Employment Act (“ADEA”), Defendant notes
that “the federal-sector provisions of the [ADEA] . . . parallel those of Title VII.” Dkt. 65 at 10.
Notwithstanding Babb’s analysis and the fact that the provision of Title VII prohibiting
federal-sector employment discrimination differs from the language prohibiting private-sector
employment discrimination, the D.C. Circuit and this Court have repeatedly held that Title VII’s
“personnel actions” provision covering federal employees is coextensive with the statute’s
provision covering private-sector (and state/local-government) employees. See Czekalski v.
Peters, 475 F.3d 360, 363 (D.C. Cir. 2007); see also Bain, 648 F. Supp. 3d at 54 & n.12
(collecting cases). Nothing in Babb, which dealt with a different statute, authorizes this Court to
depart from the D.C. Circuit’s construction of Title VII.2 See Phelan v. Noem, No. 24-cv-939,
2025 WL 2732749, at *7 (D.D.C. Sep. 25, 2025) (collecting cases).
Accepting, then, that Plaintiff is entitled to the same protections under Title VII as any
other employee, the question is whether he experienced “some harm respecting an identifiable
2
Babb’s discussion of the scope of “personnel actions” covered by the ADEA was largely dicta in any event, as the question before the Supreme Court in that case concerned the ADEA’s causation standard rather than whether the plaintiff had experienced a qualifying personnel action. 589 U.S. at 404–05.
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term or condition of employment.” Muldrow v. City of St. Louis, 601 U.S. 346, 355 (2024). It is
unclear that the Reprimand Letter, standing alone, satisfies even this expansive standard. Before
Muldrow, decisions in this district frequently (although not universally) held that letters of
reprimand that are “not abusive and d[id] not lead to disciplinary action” do not amount to
adverse employment actions under Title VII. Bell v. Fudge, No. 20-cv-2209, 2022 WL 4534603,
at *6 (D.D.C. Sep. 28, 2022) (collecting cases). The Reprimand Letter by its terms was not a
disciplinary action and only warned Plaintiff against continuing to use his FAA email address or
FAA-provided equipment to send union-related messages. Dkt. 63 at 3–4. Plaintiff does not
allege that the letter had any effect on his employment other than threatening future discipline if
he continued to violate FAA policy.
Construing his complaint generously, however, Plaintiff does allege that the letter
affected the terms and conditions of his employment by imposing an absolute restriction on his
ability to engage in union-related communications using FAA-furnished equipment or his FAA
email account, even as other FAA employees did not face these restrictions.3 Dkt. 57 at 3, 10 (2d
Am. Compl. ¶¶ 10, 31). Even if the letter does not itself represent an actionable adverse
employment action, a policy that forbade Plaintiff from using his work computer or email
account for union business while other employees were not so restricted would likely affect a
term or condition of employment, as those terms are expansively understood in Title VII cases.
See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (emphasizing that
Congress intended Title VII to cover “the entire spectrum of disparate treatment . . . in
3
Plaintiff’s second amended complaint also includes conclusory allegations asserting that the letter harmed his reputation. But he fails to explain how the cautionary letter did so and, even more importantly, fails to explain how criticism alone (even if misplaced) could have affected the terms or conditions of his employment for purposes of Title VII. See Dkt. 57 at 3–4 (2d Am. Compl. ¶ 11).
15
employment” (citation modified)). At this early stage of the proceeding, and construing
Plaintiff’s second amended complaint liberally, the Court concludes that he has alleged that he
faced particularly strict limitations on his ability to use FAA equipment and email for union
activity.
The next question, then, is whether the FAA’s alleged restriction of Plaintiff’s ability to
engage in union activities using his work email gives rise to an inference of discrimination.
Plaintiff’s second amended complaint offers at least one plausible basis for inferring that the
Reprimand Letter, and the associated restriction on his use of his FAA email, was motivated by
Plaintiff’s national origin in violation of Title VII: Plaintiff alleges that other FAA employees,
who did not share his national origin, were not so constrained. Dkt. 57 at 8, 16 (2d Am. Compl.
¶¶ 24, 55). “One well-accepted way for a plaintiff to establish a reasonable inference of
invidious bias without direct evidence of discrimination is to demonstrate dissimilar treatment of
a similarly situated comparator without the protected characteristic.” Johnson v. Georgetown
Univ., __ F. Supp. 3d __, No. 25-cv-1540, 2026 WL 879522, at *12 (D.D.C. Mar. 31, 2026)
(citation modified). At the pleading stage, a plaintiff need not allege facts sufficient to show that
his employment situation was “nearly identical” to the putative comparators, but need only
“plead enough facts about those comparators and the relevant context to allow a plausible
inference that he was treated differently because of his [national origin].” Joyner v. Morrison &
Foerster LLP, 140 F.4th 523, 530 (D.C. Cir. 2025). The standard is necessarily contextual, but
“it cannot be enough to simply allege that the plaintiff was treated differently from a ‘similarly
situated’ comparator, without additional allegations showing the comparators are in fact
‘similarly situated’ in some meaningful respect.” Id. at 531.
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The only putative comparator mentioned in Plaintiff’s second amended complaint is Jim
Kabbara—the same FAA employee who, Plaintiff alleges, modified Plaintiff’s personal email
messages to make them appear as if they were sent from his FAA work email. Dkt. 57 at 5–6
(2d Am. Compl. ¶ 19). Plaintiff alleges that Kabbara, who is Caucasian and not of Costa Rican
origin, was permitted “routinely [to] use his FAA email account and [government-provided
equipment] to: (a) conduct Union business, (b) illegally campaign for the Local election, and
(c) broadcast inappropriate and unsolicited messages across the FAA that verbally abused,
harassed, humiliated, and discredited Union members he disliked or disagreed with.”4 Id. at 8
(2d Am. Compl. ¶ 24). He further alleges that when another FAA employee, Zachary
Cammarano, complained about Kabbara’s use of his FAA email for union activities, the FAA
determined that the agency was not permitted to interfere in union business by limiting
Kabbara’s activities. Id. (2d Am. Compl. ¶ 25). In exhibits attached to his opposition to the
motion to dismiss, Plaintiff includes seemingly union-related emails sent by Kabbara (and
others) from their FAA emails, Dkt. 71 at 19–24, and a signed affidavit from Cammarano stating
that union members routinely use their FAA emails and government computers for union
business, id. at 28 (Cammarano Aff. ¶ 16). The second amended complaint does not include
additional factual allegations about Kabbara’s job responsibilities or use of his workplace email,
4
Plaintiff’s second amended complaint does not specify Kabbara’s national origin, although it does allege that Plaintiff was “the only Asian/Latino-Costa Rican naturalized US citizen within his workgroup,” Dkt. 57 at 2 (2d Am. Compl. ¶ 9), but Plaintiff does state, in an (unauthorized) sur-reply in opposition to the pending motion to dismiss, that Kabbara is not of Costa Rican descent, Dkt. 74 at 3. Ordinarily such a contention, made outside the pleadings, would not be considered in resolving whether Plaintiff had stated a plausible claim to relief. The D.C. Circuit, however, has held that, when dealing with a pro se plaintiff, a district court must “consider[] supplemental material filed by a pro se litigant in order to clarify the precise claims being urged—including facts set forth in a plaintiff’s opposition to a motion to dismiss.” Naz v. Wright, 177 F.4th 1242, 1246 (D.C. Cir. 2026) (citation modified).
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although he is identified as an aerospace engineer and a union president in the emails attached to
Plaintiff’s opposition. Id. at 23.
In seeking to dismiss this claim, Defendant argues that Plaintiff has not plausibly alleged
that he and Kabbara were similarly situated, and Defendant represents that Kabbara (unlike
Plaintiff) is a supervisor. Dkt. 65 at 14. Plaintiff’s allegations are admittedly sparse with respect
to Kabbara’s conduct. But considering the complaint as a whole, drawing all reasonable
inferences in Plaintiff’s favor, and being mindful of his pro se status, the Court concludes that
Plaintiff has alleged (and has provided supporting examples) that Kabbara frequently used his
FAA email for union business, including messages related to union elections, and that the FAA
declined to intervene even after some FAA employees complained about Kabbara’s use of his
email and FAA equipment for union purposes. It is possible that the alleged disparity in
Plaintiff’s and Kabbara’s treatment can be explained by other factors, including their respective
positions in the FAA, their roles in the union, or the nature of their communications. But at the
pleading stage, Plaintiff has alleged sufficient “facts about those comparators and the relevant
context to allow a plausible inference that he was treated differently because of his [national
origin],” Joyner, 140 F.4th at 530, and Defendant will need to wait for the summary judgment
stage to proffer any asserted, non-discriminatory rationale for any differential treatment.
Plaintiff also asserts a second basis to conclude that the strict prohibition on his use of
FAA equipment or his FAA email for union activity was attributable to his national origin. As
discussed above, Plaintiff denies that he sent the disputed emails from his FAA email and,
instead, alleges that Kabbara altered emails sent from Plaintiff’s personal email address to make
them appear to have been sent from a work email. Dkt. 57 at 5–6 (2d Am. Compl. ¶ 19).
Plaintiff also appears to allege that FAA leadership knew or had reason to believe that those
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emails were, in fact, sent from his personal email. Id. at 6 (2d Am. Compl. ¶ 21) (alleging that
“FAA senior leadership and management” accessed Plaintiff’s personal emails). Accepting
those allegations as true, one might argue that this fabrication supports an inference that the
FAA’s stated rationale for issuing the Reprimand Letter was pretextual. The problem with this
argument, however, is two-fold. First, Plaintiff offers little, if any, basis for inferring that FAA
management participated in such an extraordinary deception merely then to caution Plaintiff not
to do something that they knew he was not doing (hence the fabrication). Second, and more to
the point, if the premise that Plaintiff did not use FAA resources to send these or other emails is
credited, the theory of adverse action set forth above is called into question. That is, if Plaintiff
used only his own computer and email address, and alleges no intent (and no basis to infer an
intent) to use his FAA email address for union-related activities in the future, the Court is left to
wonder what harm he incurred in being told to continue doing what he was already doing.5
While a close question, the Court concludes that Plaintiff has alleged enough—albeit just
barely enough—to permit a plausible inference that his treatment was discriminatory and that he
was denied a benefit that other, similarly situated employees (who were not Costa Rican
nationals) were granted. Much more will be needed if this case is to progress past the pleading
stage, but the Court will deny the motion to dismiss as to Plaintiff’s claim that the Reprimand
Letter discriminated against him on the basis of his national origin.
5
Although one might raise the same concern about Plaintiff’s comparator argument, he is entitled to plead in the alternative and, thus, can plead that he did not send the email from his FAA email account or, if he did, he was told not to do so in the future. His fabrication theory, in contrast, cannot be saved based on a theory of pleading in the alternative; the entire theory turns on the premise that he did not send the email from his FAA account, which is a necessary predicate for the claim that FAA officials knew that the purported sender’s email address was fabricated but still (falsely) accused him of sending the email from his FAA email account. Even as to the comparator argument, however, this tension in his position adds to the concern that his allegations barely clear the hurdle of plausibility.
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b. Retaliation
Plaintiff also alleges that the Reprimand Letter was retaliatory in violation of Title VII.
Id. at 5 (2d Am. Compl. ¶ 17). Under Title VII, employers are prohibited from
“discriminat[ing]” against any employee because the employee has “opposed . . . an unlawful
employment practice . . . [or] made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing” under the statute. 42 U.S.C. § 2000e-3(a); see Walker
v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015) (same Title VII proscription on retaliation
applies to federal agencies and private employers); Barnes v. Costle, 561 F.2d 983, 988 (D.C.
Cir. 1977) (same). To state a claim for retaliation, a plaintiff must plausibly allege that “(1) she
engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and
(3) there is a causal connection between the two,” but she need not plead every element of the
prima facie case in the complaint. Menoken v. McGettigan, 273 F. Supp. 3d 188, 200 (D.D.C.
2017) (first quoting Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003); and then citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)).
Plaintiff’s second amended complaint does not clearly identify the statutorily protected
activity that he alleges prompted the Reprimand Letter. Plaintiff refers to a 2016 EEO
complaint, Dkt. 57 at 11 (2d Am. Compl. ¶ 33), but, as Defendant notes, that incident is too
temporally attenuated to give rise to a plausible inference that the 2023 Reprimand Letter was
retaliatory, Dkt. 65 at 15, and Plaintiff offers no alternative basis for inferring such a retaliatory
intent. In his opposition to the motion to dismiss, Plaintiff frames his retaliation claim as
stemming from his September 19, 2022, meeting with Telfer to request a promotion. Dkt. 71 at
7, 12–13. But a request for a promotion, “which is not accompanied by an accusation or
complaint of discrimination, does not constitute Title VII-protected activity.” Ngeudi v. Admin.
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Off. of the U.S. Court, No. 23-cv-2965, 2025 WL 4737712, at *3 (D.D.C. May 9, 2025); see also
Ferguson v. WMATA, 630 F. Supp. 3d 96, 118 (D.D.C. 2022).
Moreover, even if Plaintiff had identified protected activity within sufficient temporal
proximity to give rise to an inference of retaliation (without considering the intervening cause of
the January 2023 email), the Reprimand Letter, which was not placed in Plaintiff’s file and
carried no consequences, would not constitute a materially adverse action for the purposes of
Title VII retaliation. See Hyson v. Architect of the Capitol, 802 F. Supp. 2d 84, 102 (D.D.C.
2011); see also Bain, 648 F. Supp. 3d at 57–58 (counseling letter retaliatory only if tied to a
“tangible job consequence[]”); Herbert v. Architect of the Capitol, 766 F. Supp. 2d 59, 75
(D.D.C. 2011) (finding that a letter of reprimand describing the employee’s failure to perform
duties as directed and accusing the employee of unprofessional and discourteous conduct was not
materially adverse). Although Title VII’s anti-discrimination provision applies to any harm
concerning the terms and conditions of employment, even if only a modest or slight harm,
Muldrow, 601 U.S. at 354–55, to state a claim for retaliation a plaintiff must allege that “the
retaliatory action is ‘materially adverse,’ meaning that it causes ‘significant’ harm,” id. at 357
(citation modified). In other words, the adverse action must be of a type and degree that “would
have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”
Baloch, 550 F.3d at 1198 (D.C. Cir. 2008) (quoting Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006)). Plaintiff has not plausibly alleged that he experienced such
consequences related to the Reprimand Letter or any corresponding restriction on his ability to
use his FAA email (as opposed to his personal email) for union activity.
The Court will accordingly grant the motion to dismiss as to Plaintiff’s Title VII
retaliation claim.
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2. Privacy Act
In Acon-Chen II, the Court also permitted Plaintiff to include more detailed allegations in
support of his Privacy Act claim in his amended complaint. Acon-Chen II at 19–20. His second
amended complaint, however, includes no reference to the Privacy Act (and addresses privacy
only in the context of the agency’s alleged unlawful surveillance). See generally Dkt. 57 (2d
Am. Compl.). Only in his opposition to the motion to dismiss does Plaintiff briefly contend that
he administratively exhausted the Privacy Act claim discussed in Acon-Chen II. Dkt. 71 at 9–10.
But even if the Court were to consider those allegations, see Greer v. Bd. of Trs. of Univ. of D.C.,
734 F. Supp. 3d 75, 85 (D.D.C. 2024) (“It is unclear, however, whether our Circuit requires
district courts to consider new claims (as well as new facts) articulated in a pro se opposition to a
motion to dismiss.” (first emphasis in original)), Plaintiff’s only argument is that he
administratively exhausted his Privacy Act claims by making FOIA requests for the records at
issue, Dkt. 71 at 9–10. He does not allege that he “submit[ted] a Privacy Act request to the
agency and [sought] review within the agency under the agency’s regulations” as required.
Mulhern v. Gates, 525 F. Supp. 2d 174, 183 (D.D.C. 2007).
Even more belatedly, in his reply in support of his third motion for reconsideration of the
Court’s decision in Acon-Chen II, Plaintiff adds slightly more detail concerning his purported
exhaustion of the Privacy Act claim. Dkt. 78 at 9. That eleventh-hour filing, which stretches the
Court’s tolerance for pro se litigants to (and past) its breaking point, is equally unavailing.
Plaintiff first erroneously claims that a pro se litigant need not exhaust a Privacy Act claim, or at
least that a FOIA request is “sufficient to satisfy the spirit of the exhaustion requirement.” Id.
Neither of the cases that Plaintiff cites in support of those novel propositions, however, says any
such thing. In both cases, Barouch v. U.S. Department of Justice, 962 F. Supp. 2d 30, 67
(D.D.C. 2013), and Sandoval v. U.S. Department of Justice, 296 F. Supp. 3d 1, 12 (D.D.C.
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2017), the Court held that the exhaustion requirement must be strictly enforced. To be sure,
Barouch and Sandoval held that the Privacy Act exhaustion requirement is jurisdictional, while
the undersigned has concluded that the “requirement is non-jurisdictional.” Bain, 648 F. Supp.
3d at 42; accord Jensen v. Dep’t of the Navy, No. 25-cv-1908, 2026 WL 508002, at *3 (D.D.C.
Feb. 24, 2026). But that does not relieve Plaintiff of the obligation to allege a violation of the
Privacy Act, and “the text of the statute and [D.C. Circuit precedent] make clear that
administrative exhaustion is an element of the Privacy Act’s record-amendment cause of action.”
Bain, 648 F. Supp. 3d at 42 (citing Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir. 1990)).
Finally, although Plaintiff’s reply and the attached exhibits discuss a FOIA request made
to the FAA and a report sent to the Department of Transportation Office of Inspector General,
see generally Dkt. 78, he nowhere alleges that he submitted the required Privacy Act “request in
writing addressed to the [record] system manager” for the records at issue, or that the FAA (or
Department of Transportation) formally refused such a qualifying request, as the Court
previously explained would be required. Acon-Chen II at 16 (alteration in original) (quoting 49
C.F.R. § 10.31).
The Court will therefore grant the motion to dismiss insofar as Plaintiff raises a claim
under the Privacy Act.
3. Other Claims
Although Plaintiff’s opposition to the motion to dismiss argues only that the second
amended complaint “state[s] plausible claims for discrimination, retaliation, hostile work
environment, and violations of the Privacy Act,” Dkt. 71 at 1, all of which the Court has
addressed, the second amended complaint and Plaintiff’s other filings occasionally gesture at
other legal theories as well. Those include asserted violations of the Electronic Communications
Privacy Act (“ECPA”), the Stored Communications Act (“SCA”) and the Fourth and Fifth
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Amendments. See Dkt. 57 at 6–7 (2d Am. Compl. ¶ 21); Dkt. 71 at 9. The Court will dismiss
any asserted constitutional claim for the same reasons discussed above concerning Plaintiff’s
motions for reconsideration. Moreover, insofar as Plaintiff asserts that Defendant’s access to his
personal emails violated the ECPA or the SCA, the Court will also dismiss those claims.
Plaintiff’s references to those statutes are wholly perfunctory and do not identify any specific
cause of action or theory of relief under those statutes. See Iqbal, 556 U.S. at 678. To the extent
that Plaintiff’s claims under those statutes rest on the premise that Defendant conducted some
(entirely unspecified) illegal surveillance of his personal emails, see Dkt. 71 at 9, that allegation
is unsupported and implausible; Plaintiff provides no supporting factual allegations and, to the
contrary, concedes that the relevant emails were sent (in one form or another) to FAA official
email addresses and then forwarded to FAA leadership.
C. Leave to Amend
Plaintiff’s third motion seeking reconsideration of Acon-Chen II also includes a request
that the Court grant him leave to file a (longer) third amended complaint. Dkt. 69 at 12. The
Court will deny this request as procedurally improper. As explained in the Court’s standing
order, “[a]ny amended or proposed amended pleadings or other filings must be accompanied by
a redline comparison between the original and the amended filing or proposed amended filing.”
Dkt. 3 at 3. If Plaintiff wishes to file a third amended complaint in this action, he must therefore
file a motion seeking leave to do so, attaching a redlined copy of his proposed filing, and he must
give Defendant an opportunity either to consent or to object to the filing of yet another amended
complaint. See Fed. R. Civ. P. 15(a)(2). Plaintiff is cautioned, however, that the Court is
unlikely to look favorably on a motion to file an amended complaint that seeks to re-assert
claims that Plaintiff has already had several opportunities to present and that have been
addressed by multiple opinions of the Court.
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CONCLUSION
For the foregoing reasons, Plaintiff’s motions for reconsideration, Dkt. 58; Dkt. 59; Dkt.
69, are hereby DENIED and Defendant’s motion to dismiss, Dkt. 65, is hereby GRANTED in
part and DENIED in part.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July 10, 2026
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