UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELIZABETH GRAMLING, :
:
Plaintiff, : Civil Action No.: 25-2878 (RC)
:
v. : Re Document No.: 9, 10, 13
:
ROBERT F. KENNEDY, JR., :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AMENDED
COMPLAINT; DENYING AS MOOT DEFENDANT’S MOTION TO DISMISS COMPLAINT; GRANTING
DEFENDANT’S CONSENT MOTION FOR LEAVE TO FILE EXHIBITS UNDER SEAL
I. INTRODUCTION
Plaintiff Elizabeth Gramling (“Plaintiff”) brings this disability-discrimination action
against the Secretary of the U.S. Department of Health and Human Services (“HHS” or the
“Government”) under the Rehabilitation Act. From 2022 to 2025, Plaintiff served as an
Executive Secretary at HHS. Plaintiff alleges that, after she disclosed her disability, her
supervisor approved an informal telework arrangement, and when Plaintiff later sought formal
approval of that arrangement, HHS improperly denied her request. Plaintiff further alleges that
HHS denied her subsequent application for leave under the Family and Medical Leave Act
(“FMLA”) and retaliated against her for asserting her Equal Employment Opportunity (“EEO”)
rights. She accordingly asserts claims for failure to accommodate, disparate treatment,
retaliation, and hostile work environment. The Government moves to dismiss Plaintiff’s
Amended Complaint. For the reasons stated below, the Court grants in part and denies in part the
Government’s motion to dismiss. Plaintiff shall have 30 days from the date of the Court’s
accompanying order to amend any of her claims.
II. BACKGROUND
Plaintiff suffers from Crohn’s disease. Am. Compl. ¶ 8, ECF No. 11. While serving as an
Executive Secretary in HHS’s Immediate Office of the Secretary, Plaintiff informally requested a
full-time telework arrangement from her supervisor, Sean McCluskie, because her disability had
recently worsened, making it increasingly difficult for her to leave home. Id. ¶¶ 5, 7–8.
According to Plaintiff, Mr. McCluskie agreed informally to the arrangement, and Plaintiff began
teleworking on February 1, 2023, coming into the office only when necessary. Id. ¶ 9.
On October 17, 2023, Plaintiff formally requested confirmation of her full-time telework
arrangement as an accommodation for her disability. Id. ¶ 11. In November 2023, Deputy Chief
of Staff Angela Ramirez, who was not Plaintiff’s direct supervisor but served as her “rating
official,” began handling the request. Id. ¶ 12. On November 17, Ms. Ramirez temporarily
authorized full-time telework pending a final decision. Id. ¶ 13. The temporary arrangement
ultimately remained in place for approximately six months, through May 1, 2024. Id. Plaintiff
received a Level 5 performance rating (“Outstanding”) for FY 2023 while working under the
full-time telework arrangement and received a $9,000 “performance-based pay adjustment” for
her work that year. Id. ¶¶ 6, 20.
On May 1, 2024, Ms. Ramirez denied Plaintiff’s formal request for full-time telework. Id.
¶ 21. Plaintiff alleges that this denial violated the Agency’s reasonable-accommodation policy
because her request was not decided by her “official supervisor.” Id. ¶ 23. She also alleges that
other, non-disabled colleagues were permitted to telework full-time, including from locations as
distant as California. Id. ¶ 22.
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On June 13, 2024, following the May 1, 2024 denial of her telework request, Plaintiff
contacted HHS’s EEO office and initiated the administrative EEO process by filing an informal
complaint, alleging disability discrimination based on that denial. Id. ¶ 24.
On July 3, 2024, while Plaintiff was on approved annual leave, a coworker, Manuel Joe
Carrillo, allegedly falsely claimed that Plaintiff or her staff had failed to obtain the HHS
Secretary’s signature on certain documents. Id. ¶ 48. Ms. Ramirez purportedly adopted Mr.
Carrillo’s allegation and, on July 5, 2024, “presented [it] to Plaintiff as a reprimand, and/or
evidence of alleged substandard work performance as a senior manager.” Id. Plaintiff maintains
that she was not responsible for the matter because she was on leave, that the documents were
not actually critical, and that her staff had proposed a viable alternative for obtaining the
signature. Id. ¶¶ 50–56. She further alleges that Ms. Ramirez used the incident to further
establish the unviability of a telework accommodation and to retaliate against Plaintiff for filing
an informal EEO complaint. Id. ¶¶ 48–58. During EEO counseling, Plaintiff amended her
informal complaint to include the July 5, 2024 reprimand. Id. ¶¶ 24–30.
On July 31, 2024, Plaintiff submitted an application for intermittent FMLA leave based
on episodic flare-ups of her Crohn’s disease. Id. ¶ 59. On August 21, 2024, Plaintiff learned that
Ms. Ramirez had rejected the application because Plaintiff had not provided a schedule for when
she would take FMLA leave. Id. ¶ 60. Plaintiff alleges that a schedule was impossible to provide
because the flare-ups were unforeseeable and that the denial came shortly after she amended her
EEO complaint. Id. ¶¶ 60–61. During EEO counseling, Plaintiff further amended her informal
complaint to include the denial of her FMLA application. Id. ¶¶ 24–30.
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After receiving a Notice of Right to File, Plaintiff filed a formal EEO complaint on
September 24, 2024. Id. ¶¶ 29–30. On October 25, 2024, HHS accepted for investigation
Plaintiff’s claims alleging disability discrimination, retaliation, and harassment arising from the
denial of Plaintiff’s telework accommodation, the July 5 reprimand, and the denial of her FMLA
application. Id. ¶ 32. On October 31, 2024, HHS issued an amended acceptance letter clarifying
that Plaintiff’s retaliation claims were also accepted for investigation. Id. ¶¶ 34–35. Following
the Agency’s investigation, Plaintiff requested a hearing before an EEO Administrative Judge on
March 8, 2025. Id. ¶ 37.
In August 2025, however, Plaintiff filed this action and withdrew her request for an
administrative hearing, asserting that more than 180 days had elapsed since she filed her formal
EEO complaint. Id. ¶¶ 36–41. Plaintiff’s Complaint asserted claims under the Rehabilitation Act
for retaliation, failure to accommodate, disparate treatment discrimination, and hostile work
environment. See Compl., ECF No. 1. Plaintiff alleged that HHS discriminated against her
because of her disability by denying her request for a telework accommodation, reprimanding
her on July 5, and denying her application for FMLA leave. See id.
In January 2026, the Government moved to dismiss Plaintiff’s Complaint under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim. See Def.’s Mot. Dismiss Compl. at
6, ECF No. 10. The Government also moved to file certain exhibits under seal, a request to
which Plaintiff consented. See Def.’s Mot. File Exs. Under Seal, ECF No. 9. Plaintiff
subsequently filed an Amended Complaint pursuant to Federal Rule of Civil Procedure 15,
asserting the same claims but adding additional factual allegations concerning the challenged
conduct. See Am. Compl. Defendant now moves to dismiss the Amended Complaint for failure
to state a claim. Def.’s Mot. Dismiss Am. Compl. (“Def.’s Mot. Dismiss”), ECF No. 13.
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III. LEGAL STANDARD
A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains a “short and
plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2),
and while “detailed factual allegations” are not necessary, the plaintiff must provide “more than
an unadorned, the-defendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citation modified); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562–63
(2007). Thus, to survive a motion to dismiss 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.’”
Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. at 570). Courts “accept as true all of
the complaint’s factual allegations and draw all reasonable inferences in favor of the plaintiffs.”
Owens v. BNP Paribas, S.A., 897 F.3d 266, 272 (D.C. Cir. 2018). A claim is considered
plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). Plausibility “is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550
U.S. at 557).
IV. ANALYSIS
Plaintiff alleges that HHS took three principal adverse actions against her during the
course of her employment: (1) denying her request for a formal telework arrangement as a
reasonable accommodation; (2) reprimanding her over a workplace incident on July 3, 2024; and
(3) denying her application for FMLA leave. Based on these actions, Plaintiff asserts several
claims under the Rehabilitation Act. First, she contends that HHS failed to reasonably
accommodate her disability by denying her telework request. Second, she contends that HHS
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subjected her to disparate treatment based on her disability, alleging that non-disabled employees
were permitted to telework. Third, she alleges that HHS retaliated against her for engaging in
protected activity by denying her telework request, reprimanding her, and denying her FMLA
application. Finally, she contends that HHS’s actions were sufficiently severe or pervasive to
constitute a hostile work environment.
The Government moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. As a threshold matter, however, the Court must determine which
materials outside the pleadings, if any, it may properly consider in resolving the motion. The
Court therefore first addresses the Government’s submissions outside the pleadings before
turning to the sufficiency of Plaintiff’s claims.
A. Matters Outside the Pleadings
The Government submits several documents in support of its motion to dismiss.
Ordinarily, in evaluating the sufficiency of a complaint under Rule 12(b)(6), a court considers
only the allegations contained within the four corners of the complaint, accepts those allegations
as true, and construes them in the light most favorable to the plaintiff. Asa Accugrade, Inc. v.
Am. Numismatic Ass’n, 370 F. Supp. 2d 213, 214 (D.D.C. 2005) (citing Marshall Cnty. Health
Care Auth. v. Shalala, 988 F.2d 1221, 1227 (D.C. Cir. 1993)). If, however, “matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment.” Fed. R. Civ. P. 12(d). Matters that are not considered “outside the
pleadings,” and thus do not turn a motion to dismiss into one for summary judgment, include:
“the facts alleged in the complaint, documents attached as exhibits to the complaint, documents
incorporated by reference in the complaint,” and “documents upon which the plaintiff’s
complaint necessarily relies,” even if those documents necessarily relied upon are produced by
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the defendant in a motion to dismiss. Wiley v. Prudential Ins. Co. of Am., 201 F. Supp. 3d 176,
180 (D.D.C. 2016) (simplified); see Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46
(D.D.C. 2009). A complaint “necessarily relies” on a document when it quotes from and
discusses the document extensively. Page v. Mancuso, 999 F. Supp. 2d 269, 275 (D.D.C. 2013)
(citation modified).
The documents submitted by the Government appear to be drawn from the EEO office’s
investigation into Plaintiff’s discrimination claims, including the agency’s report of the
investigation. See Def.’s Exs. A–E. They include three letters from Ms. Ramirez to Plaintiff
concerning Plaintiff’s requests for a telework arrangement and FMLA leave, as well as witness
affidavits from Ms. Ramirez and HHS employee Lisa Parker. See id. The Amended Complaint,
however, incorporates only a limited portion of those materials, specifically, a portion of Ms.
Ramirez’s witness affidavit. See Am. Compl. The Amended Complaint quotes and discusses the
portion of Ms. Ramirez’s affidavit responding to an inquiry regarding Plaintiff’s request for
telework, which appears on pages 19–21 of the affidavit. See id. ¶ 43; Def.’s Ex. E at 19–20. The
Court may therefore consider that portion of Ms. Ramirez’s affidavit without converting the
Government’s motion into one for summary judgment.
The Court will not, however, consider the Government’s remaining exhibits. Although
the Amended Complaint references the events discussed in those documents, it does not quote
from, incorporate, or otherwise rely on the documents themselves in asserting Plaintiff’s claims.
See Am. Compl. ¶¶ 5–68. The remaining exhibits therefore constitute matters outside the
pleadings that the Court generally may not consider on a motion to dismiss. See Moore-Davis v.
U.S. Dep’t of the Navy, 694 F.Supp.3d 116, 123 (D.D.C. 2023) (declining to consider the
administrative record from employee’s EEO proceedings because “in deciding a motion to
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dismiss, the Court generally may not consider materials outside the pleadings, including the
administrative record.” (simplified)). This is particularly true where, as here, the defendant offers
the documents to dispute the plaintiff’s version of events, and considering the documents would
require the Court to resolve factual disputes at the pleading stage. See Khoja v. Orexigen
Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (“If the document merely creates a
defense to the well-pled allegations in the complaint, then that document did not necessarily
form the basis of the complaint. Otherwise, defendants could use the doctrine to insert their own
version of events into the complaint to defeat otherwise cognizable claims.”). Therefore, in
resolving the Government’s motion to dismiss, the Court considers the allegations contained in
the Amended Complaint and the limited portion of Ms. Ramirez’s witness affidavit expressly
incorporated by reference therein. With that settled, the Court turns to addressing the sufficiency
of Plaintiff’s claims.
B. Plaintiff’s Claims
1. Exhaustion
The Government first argues that the Amended Complaint includes allegations
concerning conduct that occurred before April 29, 2024, and that any claims based on such
conduct are unexhausted because Plaintiff did not initiate contact with an EEO counselor within
45 days of their occurrence. See Def.’s Mot. Dismiss at 12–13; 29 C.F.R. § 1614.105(a)(1)
(requiring an aggrieved person who believes that she has been discriminated against based on
disability to consult an EEO Counselor within 45 days of the alleged discriminatory conduct
before filing a complaint). Because Plaintiff first contacted an EEO counselor on June 13, 2024,
the Government contends that any claims arising from conduct before April 29, 2024 (45 days
prior), are unexhausted and thus must be dismissed. See Def.’s Mot. Dismiss at 12–13. In
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particular, the Government appears to argue that Plaintiff’s allegations concerning conversations
with Mr. McCluskie in February 2023 and sometime later in 2023—during which Plaintiff
allegedly informed him of her disability and he purportedly made statements supporting
Plaintiff’s informal request for telework—do not merely provide background but instead
describe an unexhausted claim concerning an informal telework arrangement. See Def.’s Reply
at 3, ECF No. 15 (citing Am. Compl. ¶¶ 8, 10). Plaintiff responds that she is not asserting any
independent claims based on conduct predating April 29, 2024, but instead included those
allegations solely as background for her claims arising from HHS’s actions beginning in May
2024. See Pl.’s Opp’n Mot. Dismiss at 24–26, ECF No. 14.
The Court reads the Amended Complaint consistent with Plaintiff’s clarification. See
Am. Compl. ¶¶ 27, 32, 35 (consistently describing post-April 29, 2024 conduct as the challenged
actions). The Amended Complaint does not appear to assert a separate claim based on Plaintiff’s
interactions with Mr. McCluskie or any other conduct occurring before April 29, 2024. Rather,
those allegations provide background context for Plaintiff’s timely exhausted claims concerning
HHS’s denial of her reasonable-accommodation request on May 1, 2024, Ms. Ramirez’s
purported reprimand on July 5, 2024, and the denial of Plaintiff’s FMLA application on August
21, 2024. Because the Court does not construe the earlier McCluskie-related allegations as
asserting independent claims for relief, the Government’s exhaustion argument does not provide
a basis for dismissal.
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2. Failure to Provide Reasonable Accommodations (Count III) 1
Because Plaintiff has exhausted her administrative remedies, the Court turns to Plaintiff’s
claims. Plaintiff alleges that she requested, and HHS failed to provide, a reasonable
accommodation for her disability. See Am. Compl. ¶¶ 8–23. The Rehabilitation Act requires
federal employers to “take reasonable affirmative steps to accommodate the [disabled], except
where undue hardship would result.” Ward v. McDonald, 762 F.3d 24, 28 (D.C. Cir. 2014)
(quoting Barth v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993)). To state a failure-to-accommodate
claim, a plaintiff must plausibly allege that “(i) she was disabled within the meaning of the
Rehabilitation Act; (ii) her employer had notice of her disability; (iii) she was able to perform the
essential functions of her job with or without reasonable accommodation; and (iv) her employer
denied her request for a reasonable accommodation of that disability.” Menoken v. Dhillon, 975
F.3d 1, 7 (D.C. Cir. 2020) (quoting Solomon v. Vilsack, 763 F.3d 1, 9 (D.C. Cir. 2014)). In
moving to dismiss, the Government does not dispute the first two elements. Instead, it argues that
Plaintiff has failed to plausibly allege the third and fourth elements because (1) HHS did not
deny Plaintiff a reasonable accommodation and (2) Plaintiff has not adequately alleged that “she
is a ‘qualified individual’ within the meaning of the Rehabilitation Act.” See Def.’s Mot. Dismiss
at 18, 21–22. Neither argument is persuasive.
The Government’s argument that HHS did not deny Plaintiff a reasonable
accommodation relies on matters outside the pleadings. Specifically, the Government cites a
May 1, 2024 letter from Ms. Ramirez to argue that HHS did not deny Plaintiff’s request
1
It is unclear whether Count III asserts a failure-to-accommodate claim, a disparatetreatment claim, or both. See Am. Compl. ¶¶ 81–86. The Court thus considers both claims separately, as the Government’s motion to dismiss touches upon each theory at various points, and the claims, while distinct, overlap in certain respects.
10
altogether but instead offered her an alternative accommodation, permitting her to telework for
six days per pay period. See Def.’s Mot. Dismiss at 18 (citing Def.’s Ex. A). The Government
also appears to rely on that letter to contend that the alternative accommodation was reasonable
because Plaintiff’s position was unique and required significant in-office responsibilities,
including obtaining in-person signatures for the Secretary and Deputy Secretary, reviewing
materials in a sensitive compartmented information facility, and supervising and training inperson employees. Id. at 7–8 (again citing Def.’s Ex. A). As explained above, however, the Court
declines to consider such documents at the pleading stage. Therefore, the Court also declines to
consider arguments premised on those materials.
The Government’s contention that Plaintiff has failed to plausibly allege that she is a
qualified individual also fails. To prevail on her failure-to-accommodate claim, Plaintiff
ultimately must establish that she was a “qualified individual” under the Rehabilitation Act, that
is, that she could perform the essential functions of her position with or without a reasonable
accommodation. Menoken, 975 F.3d at 7. But “an employment discrimination plaintiff is not
required to plead every fact necessary to establish a prima facie case to survive a motion to
dismiss.” Jones v. Air Line Pilots Ass’n, Int’l, 642 F.3d 1100, 1104 (D.C. Cir. 2011) (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)). Rather, a plaintiff need only plead
sufficient facts to raise her right to relief “above the speculative level.” Twombly, 550 U.S. at
555. Moreover, “the essential duties of [an employee’s] position are a question of fact” that need
not be “alleged with particularity.” Floyd v. Lee, 968 F. Supp. 2d 308, 327 (D.D.C. 2013).
Accordingly, dismissal on this ground is “rare” because determining whether a plaintiff can
perform the essential functions of a position ordinarily requires factual development. Pappas v.
D.C., 513 F. Supp. 3d 64, 94 (D.D.C. 2021) (citation modified). Such dismissal is appropriate
11
only where the complaint neither alleges that the plaintiff could perform the essential functions
of the position nor identifies any reasonable accommodation that would enable her to do so. Id.
Plaintiff has done enough here. She alleges not only that she requested to continue
working remotely as an accommodation for her Crohn’s disease, but also that she successfully
performed her job while teleworking, receiving “Level 5 (‘Outstanding’)” performance
evaluations and a $9,000 “performance-based pay adjustment” for her work in 2023—the very
year she alleges she informally teleworked on a full-time basis. Am. Compl. ¶ 20. Accepting
those allegations as true and drawing all reasonable inferences in Plaintiff’s favor, see Spence v.
U.S. Dep’t of Veterans Affs., 109 F.4th 531, 539 (D.C. Cir. 2024), the Court can reasonably infer
that Plaintiff could perform the essential functions of her position while working remotely. See
Mobley v. St. Luke’s Health Sys., Inc., 53 F.4th 452, 456 (8th Cir. 2022) (“By allowing [the
employee] to consistently work remotely aside from his medical condition, [the employer]
implicitly demonstrated a belief that he could perform his essential job functions without being
in the office all the time. Moreover, while working remotely, [the employee] continued to
receive positive performance reviews, reflecting that he was able to effectively supervise his
employees despite not being on site.”). Those allegations are sufficient at the pleading stage to
plausibly allege that Plaintiff is a qualified individual under the Rehabilitation Act. The claim
thus survives the motion to dismiss.
3. Disparate Treatment Discrimination (Count III)
Plaintiff also asserts that HHS treated her differently on account of her disability. The
Rehabilitation Act prohibits a federal employer from discriminating against a “qualified
individual with a disability” “solely by reason of her or his disability.” 29 U.S.C. § 794(a). A
prima facie claim of disparate treatment requires proof “that (i) the plaintiff suffered an adverse
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employment action (ii) because of the plaintiff’s . . . disability.” Baloch v. Kempthorne, 550 F.3d
1191, 1196 (D.C. Cir. 2008). Thus, at the pleading stage, a plaintiff must plausibly allege that the
challenged conduct “was motivated by discriminatory animus.” Boykin v. Fenty, No. CV 10-1790, 2010 WL 11718210, at *4 (D.D.C. Dec. 17, 2010). The Government contends that
Plaintiff has failed to do so. The Court agrees.
A plaintiff may plead discriminatory animus in several ways. First, she may allege “direct
proof of discrimination, such as remarks indicating bias in the employment process.” Fisher v.
Bessent, No. 23-CV-00329 (CRC), 2025 WL 2779791, at *8 (D.D.C. Sept. 30, 2025) (citing
Wilson v. DNC Servs. Corp., 315 F. Supp. 3d 392, 400 (D.D.C. 2018)). “Second, absent direct
evidence of discrimination, she can offer indirect evidence that would allow the Court to infer
that the discrimination drove the adverse employment action.” Id. (citing Bilal v. Metro. Police
Dep’t, No. 25-189, 2025 WL 1917959, at *3 (D.D.C. July 11, 2025)). “And third, she may state
a claim by alleging that she was treated differently from similarly situated employees outside her
protected class.” Id. (citing Brown v. Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014)). Here,
Plaintiff appears to proceed under the second and third theories. However, neither supports a
plausible inference of discriminatory animus in this case.
a. Comparators
Plaintiff first proceeds under a comparator theory, asserting that certain non-disabled
HHS employees, Rachel Pryor and Jeff Nesbit, were permitted to telework full-time. See Am.
Compl. ¶ 22. In particular, Plaintiff alleges that Ms. Pryor and Mr. Nesbit reported to Mr.
McCluskie, “held positions similar to Plaintiff in every material respect,” and that “[Ms.]
Ramirez and/or other senior managers” approved them for full-time telework. Id. But “[a]
plaintiff proceeding on [a] comparator theory must plead enough facts about those comparators
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and the relevant context to allow a plausible inference that [s]he was treated differently because
of” her protected status. Joyner v. Morrison & Foerster LLP, 140 F.4th 523, 530 (D.C. Cir.
2025). Although the burden is “not onerous” at the motion-to-dismiss stage, a plaintiff must
plead more than “the bald assertion that there is a similarly situated comparator.” Hollingsworth
v. Vilsack, No. 23-2427, 2024 WL 4332118, at *10 (D.D.C. Sept. 27, 2024) (citation modified).
Plaintiff’s allegations fall short of that standard.
The Complaint does not identify Ms. Pryor’s or Mr. Nesbit’s job responsibilities, explain
how their positions were similar to Plaintiff’s beyond the conclusory assertion that they were
similar “in every material respect,” or allege any facts concerning the circumstances under which
they were permitted to telework. See Am. Compl. ¶ 21; Doe #1 v. Am. Fed’n of Gov’t Emps., 554
F. Supp. 3d 75, 103 (D.D.C. 2021) (“[A] plaintiff’s assertion that [he] is similarly situated to
others is just a legal conclusion[,] and a legal conclusion is never enough to state a claim.”);
Joyner, 140 F.4th at 532 (explaining that a plaintiff invoking a comparator theory must plead
enough facts about those comparators and the relevant context to allow a plausible inference that
he was treated differently because of his protected status). Instead, Plaintiff alleges only that Ms.
Pryor and Mr. Nesbit were her non-disabled SES peers, reported to the same supervisor, and
were permitted to telework. See Am. Compl. ¶ 22. Those allegations, however, are insufficient.
See Doe #1, 554 F. Supp. 3d at 103 (plaintiff’s allegation that the alleged comparator was a
“counterpart” was “fatally nonspecific”). The Complaint therefore provides no factual basis from
which the Court could reasonably infer that Ms. Pryor and Mr. Nesbit were similarly situated to
Plaintiff. Plaintiff’s disparate-treatment claim therefore cannot proceed on a comparator theory.
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b. Indirect Evidence
Plaintiff next contends that discriminatory animus may be inferred from the
circumstances surrounding Ms. Ramirez’s handling of her accommodation request. Specifically,
Plaintiff alleges that Ms. Ramirez denied her request “on unjustified grounds” and with “no
legitimate basis.” Am. Compl. ¶ 21. However, Plaintiff’s own allegations acknowledge that Ms.
Ramirez denied the request because she believed that permitting Plaintiff to telework full-time
would impose a “hardship” on the agency. See id. ¶ 43. Plaintiff nevertheless identifies several
circumstances that she contends permit an inference that the denial of her accommodation
request was motivated by discriminatory animus. Considered individually or collectively, those
allegations do not plausibly support such an inference.
Plaintiff first relies on Ms. Ramirez’s witness affidavit, in which Ms. Ramirez described
the burden that Plaintiff’s request would impose on the agency as a “hardship,” rather than using
the term “undue hardship” employed in the applicable legal standard. See Am. Compl. ¶¶ 44–46;
Ward, 762 F.3d at 28 (explaining that the Rehabilitation Act requires the Government to take
reasonable affirmative steps to accommodate the disabled unless it would cause “undue
hardship”). Plaintiff contends that Ms. Ramirez’s use of the wrong legal standard permits an
inference of discriminatory animus. Am. Compl. ¶ 46 & n.2. It does not. Nothing in the
Amended Complaint plausibly suggests that Ms. Ramirez’s use of the term “hardship,” rather
than “undue hardship,” reflected discriminatory bias. To the contrary, Ms. Ramirez used the term
“hardship” in response to a question that itself used that term. 2 See Def.’s Ex. E at 19. Moreover,
2
Ms. Ramirez was asked the following: “If the reason for the denial/partial denial of [Plaintiff’s] [reasonable accommodation] request was due to a determination that granting the request[] . . . would create a hardship for the agency, please explain (a) by whom the determination was made that the [request] would result in hardship to the agency, (b) what information was reviewed in making the determination that the [request] would result in a
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Ms. Ramirez did not merely invoke “hardship” as a conclusory justification; she identified
specific reasons supporting her conclusion that Plaintiff’s requested accommodation would
burden the agency. See Def.’s Ex. E at 20–21 (Ms. Ramirez identifying specific reasons for
declining the accommodation request). Ms. Ramirez’s omission of the word “undue” therefore
does not plausibly support an inference of discriminatory animus.
Plaintiff next points to Ms. Ramirez’s alleged misrepresentation concerning the July 5,
2024 reprimand. Am. Compl. ¶ 48. According to Plaintiff, Ms. Ramirez adopted a co-worker’s
false statement that Plaintiff or her staff failed to obtain the HHS Secretary’s signature on an
important document. Id. But, as alleged, that incident involved a separate workplace matter that
was initially brought to Ms. Ramirez’s attention by another employee, occurred more than two
months after the challenged accommodation decision, and bore no apparent connection to
Plaintiff’s disability. See Am. Compl. ¶¶ 48–57. Those allegations instead provide an obvious,
nondiscriminatory explanation for Ms. Ramirez’s conduct, namely, that after another employee
reported a workplace issue to her, Ms. Ramirez presented that issue to Plaintiff as a performance
concern. See Boatwright v. Jacks, 239 F. Supp. 3d 229, 232–33 (D.D.C. 2017) (“[W]hen there is
an obvious alternative explanation for the official action, purposeful, invidious discrimination is
not a plausible conclusion.” (citation modified)). Plaintiff therefore has not plausibly alleged that
the July 5 incident reflected discriminatory animus.
Finally, Plaintiff argues that HHS violated its own reasonable-accommodation policy by
allowing Ms. Ramirez, rather than Plaintiff’s official supervisor, to decide her accommodation
hardship, and (c) the specific nature of the hardship that would have resulted had [Plaintiff’s] [request] been granted.” Def.’s Ex. E at 19 (emphasis added). In turn, Ms. Ramirez responded: “I made the determination that the requested [reasonable accommodation] would result in a hardship to the Agency. . . . ” Id. at 20 (emphasis added).
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request. See Am. Compl. ¶ 23. But an employer’s failure “to follow its own regulations and
procedures, alone, may not be sufficient to support” an inference of discriminatory animus.
Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (quoting Johnson v.
Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982)). Absent evidence that the plaintiff was treated
differently because of her protected status or that the employer did not similarly depart from the
policy in other cases, “[a] defendant’s failure to follow its own policy is not probative of
discriminatory animus.” See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir.
2007); Fischbach, 86 F.3d at 1183 (holding that an employer’s departure from its own policy did
not support an inference of discrimination where that departure had become its “usual
procedure”). Plaintiff alleges no such differential treatment here. She does not allege that HHS
followed its policy for non-disabled employees but departed from it in her case. Nor does she
otherwise allege facts suggesting that the purported departure was motivated by her disability.
The alleged policy violation therefore does not support a plausible inference of discriminatory
animus.
***
In sum, even taken together, Plaintiff’s allegations do not plausibly support a reasonable
inference that any challenged employment action was motivated by discriminatory animus.
Plaintiff’s disparate-treatment claim therefore fails.
17
4. Retaliation (Count II)
Plaintiff also alleges that HHS retaliated against her for engaging in protected activity.
Specifically, she appears to contend that HHS retaliated by denying her reasonableaccommodation request, reprimanding her, and denying her FMLA application. 3
To state a claim for retaliation under the Rehabilitation Act, a plaintiff must plausibly
allege that “she suffered (i) a materially adverse action (ii) because . . . she had brought or
threatened to bring a discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C.
Cir. 2008) (citation omitted). A “materially adverse action” is one that well might have
“dissuaded a reasonable worker from making or supporting a charge of discrimination.” Bain v.
Office of Attorney General, 648 F. Supp. 3d 19, 55 (D.D.C. 2022) (quoting Burlington Northern
& Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006)). The standard is objective and reaches
only significant harms; it does not encompass “minor and even trivial employment actions that
an irritable, chip-on-the-shoulder employee did not like.” Id. (simplified) (quoting Bridgeforth v.
Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013)). Typically, a materially adverse action “involves a
significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing significant change in benefits.”
Id. (simplified) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)). Therefore, “not
everything that makes an employee unhappy is an actionable adverse action.” Bridgeforth, 721
F.3d at 663.
3
The Court notes that Plaintiff’s Amended Complaint is not entirely clear as to which particular actions she contends were retaliatory. Count II merely states that the alleged retaliatory acts are “alleged therein,” apparently referring to the remainder of the Amended Complaint. See Am. Compl. ¶ 77.
18
The Government does not dispute that Plaintiff engaged in protected activity. See Def.’s
Mot. Dismiss at 18–21. Instead, it argues that none of the three actions identified by Plaintiff—
the denial of her reasonable-accommodation request, her alleged reprimand, and the denial of her
FMLA application—constitutes a materially adverse action for purposes of a retaliation claim.
See id. The Court agrees in part.
To the extent Plaintiff contends that HHS retaliated against her for requesting a
reasonable accommodation by denying that request, that theory fails. A plaintiff generally may
not premise both a failure-to-accommodate claim and a retaliation claim on the same request for,
and denial of, a reasonable accommodation. See Prescott–Harris v. Fanning, No. 15-1716, 2016
WL 7223276, at *8 (D.D.C. Dec. 12, 2016) (“Notably, the denial of a request for
accommodation cannot by itself support a claim of retaliation based on the request.”); see also
Foster v. Driscoll, No. 23-1409, 2025 WL 1100028, at *4 (D.D.C. Apr. 14, 2025) (collecting
cases).
Here, Plaintiff’s alleged protected activity is her request to telework, and the alleged
retaliatory action is HHS’s denial of that request. But that same request and denial form the basis
of Plaintiff’s failure-to-accommodate claim. See supra Part IV.B.2. Because the Court has
already concluded that Plaintiff has plausibly alleged a failure-to-accommodate claim based on
HHS’s denial of her requested accommodation, she may not also maintain a retaliation claim
based on that same request and denial; otherwise, it would be duplicative. See Floyd v. Lee, 968
F. Supp. 2d 308, 334 (D.D.C. 2013) (“[I]f the denial of a request for accommodation could itself
support a claim of retaliation based on the request, then every failure-to-accommodate claim
would be doubled.”). Moreover, Plaintiff has not plausibly alleged that Ms. Ramirez’s purported
reprimand constituted a materially adverse action. The Amended Complaint alleges that,
19
following an issue involving Mr. Carillo obtaining the Secretary’s signature, Ms. Ramirez
confronted Plaintiff about the incident and purportedly adopted Mr. Carillo’s version of events,
presenting those statements to Plaintiff as “a reprimand, and/or evidence of alleged substandard
work performance.” Am. Compl. ¶¶ 35, 48. Even accepting those allegations as true, Plaintiff
does not allege that the criticism took the form of a formal disciplinary action or otherwise
resulted in any tangible employment consequences. Rather, the allegations describe workplace
criticism concerning Plaintiff’s job performance. Id. ¶ 48. Such criticism, standing alone,
ordinarily is insufficient to constitute a materially adverse action for purposes of a retaliation
claim. See Baloch, 550 F.3d at 1199 (holding that letters of counseling and reprimand containing
job-related criticism but causing no tangible consequences were not materially adverse); see also
Weber v. Battista, 494 F.3d 179, 185–86 (D.C. Cir. 2007); Walker v. District of Columbia, 279 F.
Supp. 3d 246, 273 (D.D.C. 2017). Accordingly, Plaintiff has not plausibly alleged a materially
adverse action based on her purported reprimand.
The result differs, however, with respect to Plaintiff’s allegation that HHS denied her
FMLA application. The Government argues that Plaintiff cannot establish a materially adverse
action because HHS ultimately approved her application after obtaining additional information
from her physician. See Def.’s Mot. Dismiss at 20 (citing Def.’s Exs. B–D). But that argument,
once again, relies on materials outside the pleadings, which the Court declines to consider at this
stage. See supra Part IV.A. The Amended Complaint alleges that HHS denied Plaintiff’s FMLA
application, see Am. Compl. ¶ 60, and the Court must accept that allegation as true for purposes
of the motion to dismiss, see Spence, 109 F.4th at 539. 4 Because the Government’s argument
4
The Court presumes that Plaintiff and her counsel have a good-faith basis for pressing this factual allegation in the face of the Government’s contrary evidence. See generally Fed. R. Civ. P. 11.
20
relies on evidence outside the pleadings, it does not establish that Plaintiff failed to plausibly
allege a materially adverse action. The Court therefore declines to dismiss Plaintiff’s retaliation
claim premised on the alleged denial of her FMLA application. 5
5. Hostile Work Environment (Count I) 6
Plaintiff also asserts a hostile work environment claim under the Rehabilitation Act. She
alleges that HHS and its employees subjected her to discriminatory harassment that created an
abusive working environment. See Am. Compl ¶¶ 69–74. The Government argues that Plaintiff
has failed to state such a claim because the Amended Complaint alleges only discrete
employment actions and does not plausibly allege harassment that was sufficiently severe or
pervasive to alter the conditions of her employment. Def.’s Mot. Dismiss at 13–17. The Court
agrees.
To state a hostile work environment claim, a plaintiff must plausibly allege that she was
subjected to discriminatory harassment “sufficiently severe or pervasive to alter the conditions of
[her] employment and create an abusive working environment.” Baloch, 550 F.3d at 1201
(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). Whether a work environment
is sufficiently hostile depends on the totality of the circumstances, including “the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
5
To the extent the Government argues that the FMLA denial does not constitute an adverse action because of temporal proximity or an alleged lack of harm, it has failed to develop those arguments. See Def.’s Mot. Dismiss at 20. They are therefore forfeited at this stage. See Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work.” (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))).
6
“[A]lthough neither the Supreme Court nor the D.C. Circuit has expressly held that hostile work environment claims are cognizable under . . . the Rehabilitation Act, other circuits have so held, and numerous decisions in this circuit, including of the court of appeals, have generally assumed the same.” Bain v. Off. of Att’y Gen., 648 F. Supp. 3d 19, 59 (D.D.C. 2022) (collecting cases).
21
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harris, 510 U.S. at 23. Because hostile work environment claims ordinarily
involve repeated conduct rather than isolated employment actions, the standard is demanding.
See Fields v. Vilsack, 207 F. Supp. 3d 80, 92–93 (D.D.C. 2016); Aldrich v. Burwell, 197 F. Supp.
3d 124, 136 (D.D.C. 2016).
Ordinary personnel actions, even if allegedly discriminatory or retaliatory, do not,
without more, establish a hostile work environment. See Franklin v. Potter, 600 F. Supp. 2d 38,
77 (D.D.C. 2009); Fields, 207 F. Supp. 3d at 95; Aldrich, 197 F. Supp. 3d at 138. Accordingly, a
plaintiff may not simply repackage the same discrete acts underlying her discrimination or
retaliation claims as a hostile work environment claim unless those acts are alleged to form part
of a broader pattern of severe or pervasive discriminatory harassment. See Townsend v. United
States, 236 F. Supp. 3d 280, 312 (D.D.C. 2017); Wade v. District of Columbia, 780 F. Supp. 2d
1, 19 (D.D.C. 2011). “Although a plaintiff may not combine discrete acts to form a hostile work
environment claim without meeting the required hostile work environment standard, neither can
a court dismiss a hostile work environment claim merely because it contains discrete acts that the
plaintiff claims (correctly or incorrectly) are actionable on their own.” Baird v. Gotbaum, 662
F.3d 1246, 1252 (D.C. Cir. 2011).
Plaintiff has not plausibly alleged a hostile work environment. The Amended Complaint
alleges, in conclusory fashion, that HHS and its employees engaged in “discriminatory
statements, threats, and other conduct” that were “unwelcome” and “sufficiently severe or
pervasive” to create a hostile work environment. Am. Compl. ¶¶ 70–71. But Plaintiff identifies
no specific discriminatory statements or threats that plausibly contributed to such an
environment. Nor does she allege facts describing repeated acts of discriminatory intimidation,
22
ridicule, insult, or other harassing conduct. See, e.g., Am. Compl. ¶¶ 59, 63. Instead, Plaintiff
appears to base her hostile work environment claim on the same conduct underlying her other
claims: HHS’s denial of her requested accommodation, Ms. Ramirez’s alleged reprimand, and
HHS’s denial of Plaintiff’s FMLA application. Even considered collectively, those actions do not
plausibly amount to conduct sufficiently severe or pervasive to alter the conditions of Plaintiff’s
employment and create an abusive working environment. See Baird, 662 F.3d at 1252. Nothing
in the Amended Complaint suggests that these actions were physically threatening, humiliating,
or otherwise so “extreme” as to constitute a hostile work environment. See Hill v. Assocs. for
Renewal in Educ., Inc., 897 F.3d 232, 237 (D.C. Cir. 2018) (explaining that conduct must be
sufficiently “extreme” to alter the conditions of employment).
Courts in this Circuit have rejected hostile work environment claims based on
substantially similar allegations as those Plaintiff asserts. See, e.g., Hartzler v. Mayorkas, No.
20-cv-3802, 2022 WL 15419995, at *23 (D.D.C. Oct. 27, 2022), aff’d, No. 22-5310, 2024 WL
3219489 (D.C. Cir. June 28, 2024) (holding that the failure to accommodate plaintiff’s
disabilities, denial of a monetary award and pay raise, revocation of telework privileges, and
termination, considered collectively, were insufficient to establish a hostile work environment);
Hussain v. Nicholson, 435 F.3d 359, 366–67 (D.C. Cir. 2006) (affirming summary judgment
where denial of promotion, denial of medical leave, poor performance evaluations, and threats of
termination did not support a hostile work environment claim). Plaintiff’s allegations likewise
fall short of the demanding standard for a hostile work environment claim. The Court therefore
concludes that Plaintiff has not plausibly alleged such a claim.
23
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss Amended Complaint (ECF
No. 13) is GRANTED IN PART and DENIED IN PART; Defendant’s Motion to Dismiss
Complaint (ECF No. 10) is DENIED as MOOT; and Defendant’s Consent Motion for Leave to
File Exhibits Under Seal (ECF No. 9) is GRANTED. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued. Plaintiff shall have 30 days
from the date of that order to amend any of her claims.
Dated: September 23, 2026 RUDOLPH CONTRERAS
United States District Judge
24