United States District Court, District of Columbia
S. CHUTKAN United States District Judge.
Nadra Dunbar, proceeding pro se, brings this
employment discrimination Complaint against the National
Highway Traffic Safety Administration (“NHTSA”),
a component of the Department of Transportation
(“DOT”). Dunbar alleges that NHTSA retaliated
against her in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-16, and 42 U.S.C. Section
1981. (Third Am. Compl. pp. 1, 24-31). She asserts that this
alleged retaliatory conduct escalated to the point where she
experienced a hostile work environment and was ultimately
terminated in violation of these same anti-discrimination
laws. (Id. pp. 28-31). Dunbar also alleges that
NHTSA's conduct violated the Civil Service Reform Act
(“CSRA”), 5 U.S.C. § 1101 et seq.,
and the Whistleblower Protection Act (“WPA”), 5
U.S.C. § 2302. (Third Am. Compl. pp. 19-22, 31).
has moved to dismiss the Complaint or, in the alternative,
for summary judgment. For the reasons set forth below, the
court will GRANT the motion to dismiss Dunbar's claims
under Section 1981, the WPA, and all of her pre-termination
retaliation claims, except for those associated with her (1)
August 2011 “Achieved Results/Meets Expectations”
performance evaluation, (2) August 2011
“dilution” of duties allegation, and (3) April
2012 transfer and relocation allegation.
joined NHTSA in 2005 as a Human Resources Specialist and
Training Officer, whose job responsibilities included
drafting and implementing training programs, managing the
annual training budget, and working with NHTSA's Training
Council. (ECF No. 12, Defs. Ex. A, Peoples Decl. ¶¶
4, 7). These duties also included hiring outside
vendors to perform agency training sessions, for which Dunbar
was issued a government purchase card. (Id. ¶
2007, two years after she was hired, Darlene Peoples,
Director of NHTSA's Office of Human Resources and
Dunbar's direct supervisor, promoted Dunbar to a GS-14
and transferred her to a “team leader” position.
(Peoples Decl. ¶ 6). Peoples alleges that the promotion
included duties such as serving as Acting Director when
Peoples was unavailable (Peoples Decl. ¶ 6), but Dunbar
claims-without evidentiary support-that the promotion
involved naming her Deputy Director. (Third Am. Compl. ¶
alleges that several years later, in May 2010, when she
expressed an interest in obtaining a PhD through an
agency-wide program designed to assist employees with their
educational pursuits, Peoples supported her applications for
the programs by rating Dunbar's performance at “5
out of 5” during the application process. (Pls.
Response at ECF p. 6 ¶ 5).
four months later, in September 2010, Peoples reclassified
Dunbar from “Lead Human Resources Specialist” to
“Human Resources Specialist (HRD).” (Defs. Ex.
B). As a result of the reclassification, Dunbar was no longer
a team leader, although it is undisputed that she maintained
the same pay grade. (Peoples Decl. ¶ 13; see
Defs. Ex. B). Peoples explained in her declaration that she
had become concerned with Dunbar's unsatisfactory work
performance because Dunbar purportedly: 1) was not attending
meetings on behalf of Peoples; 2) was unable to deal with
staff issues; and 3) disagreed with Peoples on how to handle
various office matters. (Peoples Decl. ¶ 13).
to Dunbar, her performance had not declined and she had not
been the subject of any disciplinary action or performance
counseling. (Pls. Response at ECF p. 6 ¶ 6). Dunbar
claims that she learned of the reclassification when she
received an automated personnel action notification email.
(Id.) When questioned about the change, Peoples
allegedly told Dunbar the change was for
“administrative purposes” and that she should
“keep things as they are.” (Id.) Dunbar
asserts that the change coincided with the end of the
probationary period for two new supervisors, and therefore
Peoples no longer needed Dunbar's assistance with certain
duties, including managing the two new supervisors.
this same time in 2010, Dunbar failed to obtain approval for
her 2011 Fiscal Year (“FY”) budget and training
plan by the due date. (Peoples Decl., ¶ 14). According
to Peoples, the approval process for the training plan
involves first submitting a draft to her and Greg Walter
(Senior Associate Administrator and Dunbar's upper-level
supervisor) for approval, then sending it to NHTSA's
Training Council for additional comments and, finally,
sending it to senior agency administrators. (Id.
¶¶ 8-9). Peoples claims that she and Walter expect
the plan to be drafted, vetted and finally approved before
October 1, which is the beginning of the fiscal year.
(Id. ¶ 9).
alleges that at the end of October 2010, when Peoples and
Dunbar met to discuss her performance review, Peoples
expressed displeasure that Dunbar's FY2011 training plan
had not been finalized, and told Dunbar her work needed to
improve or she should not expect to receive an overall rating
of “Exceeded Expectations” going forward.
(Peoples Decl. ¶ 17). Dunbar contends that Peoples never
pointed out any work deficiencies and that Peoples could not
articulate why she failed to rate Dunbar as
“Outstanding/Achieved Excellence, ” as she had in
the past. (Pls. Response at ECF p. 6 ¶ 7).
explains that the training plan was late because she was
prohibited from releasing it until “congressional
authorization” for funding came through. (Pls. Response
at ECF pp. 3-4 ¶ 2; id. pp. 7-8 ¶¶
10, 11). She claims that because of the funding issue, in
past years NHTSA had not strictly enforced the due date, and
that it was the department's practice to allow a flexible
due date given the budgetary issues. (Id.) Finally,
Dunbar alleges Peoples and Walter were advised of the
plan's status and understood the reason for the delay.
(Id. pp. 3-4 ¶ 2; id. pp. 7-8
¶¶ 10, 11). In a November 9, 2010 email to Peoples
(copied to Walter), Dunbar indicates she was awaiting
feedback from Peoples before finalizing the plan. (Defs. Ex.
C). But, Walter responded to Peoples that the plan was late
and asked her to “try to get the [training plan] to the
council by tomorrow-it is already a month late.”
the untimeliness of the training plan and the alleged
performance issues that led to Dunbar's reclassification,
Dunbar asserts that shortly after the Walter email indicating
her training plan was late, she received a “significant
performance bonus award for continuous delivery of exemplary
work.” (Pls. Response at ECF p. 6 ¶ 7; Third Am.
Compl. ¶ 31).
three months later, on February 15, 2011, Peoples
“switched duties” between Ivonne Rodriguez and
Tamika Robinson. (Third Am. Compl. ¶ 19; see
Pls. Response at ECF p. 7 ¶ 8). Dunbar alleges that she
and Robinson “opposed” the Rodriguez/Robinson
personnel action, although Dunbar does not indicate if and
how she expressed this opposition. (Third Am. Compl.
¶¶ 19-21, 24). Moreover, to the extent Dunbar did
express her concerns to Peoples, the Complaint does not
indicate whether Dunbar actually articulated concerns about
alleged violation of CSRA personnel policies or concerns
about alleged violation of Title VII. (See Third Am.
Compl. ¶ 24) (noting Rodriguez was promoted
“seemingly without merit - such as without Merit System
Principles competition . . . or through an accretion
of duties/desk audit”). Dunbar also implies in her
brief that her “opposition” involved complaining
about alleged Title VII violations. (See Pls.
Response at ECF p. 8 ¶ 15). However, as the court will
address later, in three documents Dunbar prepared prior to
filing her brief in this case, she indicates that she opposed
alleged Title VII violations associated with the
Rodriguez/Robinson personnel action several months after it
brief, Dunbar alleges that after she “opposed”
the decision to Rodriguez/Robinson personnel change, Peoples
and Anna Williams (an HR Employee Relations Specialist)
“began to engage in ‘tag-team' retaliatory
behaviors against Plaintiff . . . and discriminatory
practices . . . by extreme fault-finding, excessive
nit-picking, over-the-top surveillance and monitoring . . .
disrespect . . . comments . . . [b]elittling . . . [and]
unwarranted scrutiny.” (Pls. Response at ECF p. 7
¶ 9; see Id. p. 8 ¶ 15).
the same month that the Rodriguez/Robinson personnel change
occurred, NHTSA's Training Council provided its feedback
on Dunbar's proposed FY2011 training plan, and noted that
the plan contained “mathematical-calculation
issues.” (Defs. Ex. D p. 2). The following month,
Dunbar and Peoples met for Dunbar's mid-year assessment,
during which, according to Peoples, the two discussed the
untimely submission of the FY2011 training plan. (Peoples
Decl. ¶ 18).
one week later, on March 17, 2011, Peoples and Dunbar
received the following email from Senior Procurement Analyst
Nadra and Darlene: I see that the purchase card you use for
acquiring training has been suspended due to delinquent
payment approval. I am currently at the DOT purchase card
conference . . . and was embarrassed that NHTSA was
identified as having the second highest percentage of
suspended accounts within the Department of Transportation.
You may recall when David Strickland took over NHTSA, he sent
a message to all offices expressing his concern over our high
suspension rate. I'm concerned that if he should ask for
the current status, I may have to take more drastic action
then just a warning . . . . You must have all your charges
receive final approval from Darlene by no later than
(Defs. Ex. E, Bates #2105).
after receiving this email, Peoples responded with an email
indicating that she had “gone in”-presumably to
NHTSA's database-but did not see anything awaiting her
approval and that Dunbar was out of the office. (Id.
at Bates #2109). Schultz emailed back, noting that Dunbar had
numerous unapproved charges, going back as far as December
2010, and that she needed to have the charges approved and
forwarded to Peoples for final approval before they would
show in Peoples' “queue.” (Id.)
Schultz also stated that since the charges were not approved
in a timely fashion, Dunbar's account would “remain
suspended for another week.” (Id.)
days later, Shultz followed up with an email to Dunbar and
Peoples reminding them there were still twelve unapproved
transactions on Dunbar's account that needed to be
approved as soon as possible and that a “history of
suspended accounts will result in the permanent cancellation
of the purchase rights card for that individual.”
to Peoples, training officers-such as Dunbar-are responsible
for preliminarily approving pending transactions in a timely
manner and then forwarding the transactions to Peoples for
final approval. (Peoples Decl. ¶¶ 10, 19).
Suspension of Dunbar's card: (1) prevented her from
fulfilling one of her primary duties as training officer,
which is hiring vendors to perform trainings for the Agency;
and (2) prevented payment of vendors in a timely manner.
(Id. ¶ 19)
contends that she and Peoples were jointly responsible for
managing the government purchase card, and implies that
Peoples “regularly delayed” approval of the
transactions. (Pls. Response at ECF p. 4 ¶ 3). The court
notes that the email evidence does not appear to support
Dunbar's explanation about the approval process.
April 9, 2011, Peoples and Dunbar had a run-in, after which
Dunbar contends that Peoples accused Dunbar of having been
irate, angry, disrespectful, and loud. (Defs. Ex. N, Dunbar
2/6/12 Aff., Bates #422). Approximately one week later, on
April 18, 2011, an EEO counselor contacted Dunbar about
acting as a witness for Robinson, who had filed an EEO
complaint against Peoples. (Pls. Response at ECF p. 8 ¶
14; Third Am. Compl. ¶ 25). Dunbar agreed and informed
Peoples. (Pls. Response at ECF p. 114).
discussed above, Dunbar alleged in her brief that
Peoples and Williams began retaliating against her in
February after Dunbar “opposed” the
Rodriguez/Robinson personnel changes. (Pls. Response at ECF
p. 7 ¶ 9; see Id. p. 8 ¶ 15). Dunbar also
implies in her brief that her “opposition”
involved complaints over alleged Title VII violations.
(See Pls. Response at ECF p. 8 ¶ 15).
Dunbar paints a very different picture in three documents she
prepared before her brief. In her Third Amended
Complaint, Dunbar claimed that in April, after she
agreed to support Robinson's EEO claim, Peoples and
Williams “began to unfairly scrutinize Plaintiff's
performance and subject her to retaliatory behaviors and
discriminatory practices.” (Third Am. Compl. ¶ 26;
see Id. ¶ 41). More importantly, in a sworn
EEO statement, prepared while Dunbar was represented
by counsel (prior to her termination), she complains
about a series of allegedly retaliatory incidents that began
after “participating in prior EEO activity pertaining
to Ms. Robinson's EEO complaint against Ms.
Peoples.” (Defs. Ex. M, Bates #167, 166). Similarly, in
a letter summarizing Dunbar's EEO Charge, NHTSA indicates
Dunbar alleged that she was retaliated against “since
approximately April 2011.” (Defs. Ex. F, Bates #133).
alleges that, in early August 2011, and supposedly “in
reprisal” for Dunbar's support of Robinson, Peoples
gave Dunbar an unfair performance appraisal for the October
1, 2010 through May 21, 2011 rating period. (Third Am. Compl.
¶¶ 28, 33). Peoples claims that she lowered
Dunbar's overall rating to “Meets
Expectations” because of the untimely and inaccurate
FY2011 training plan, as well as Dunbar's
“mismanagement” of the government purchase card.
(Peoples Decl. ¶ 20; see Third Am. Compl.
¶ 29; Pls. Response at ECF pp. 33-37; Pls. Response at
ECF p. 9 ¶ 16).
notes that “Meets Expectations” or
“Achieved Results” was the lowest rating she
received while working for NHTSA and contends that, until
then, she had not received any performance counseling from
Peoples, nor had she been advised that her performance was
suffering. (Third Am. Compl. ¶¶ 29-30, 32).
Moreover, Dunbar contends Peoples had indicated in the past
that Dunbar should “‘keep things as they are'
reflecting continuation of excellent work.”
(Id. ¶ 30).
her concerns about the training plan and the government
purchase card, Peoples did not give Dunbar any negative
ratings in the five sub-categories listed on the performance
evaluation form. Dunbar received an “Exceeds
Results” rating in the category described as
“Risk-taking, Initiative, and Innovation, ” as
well as in the category described as “Customer Service,
” which may include delivering “high quality
products/services to internal/external customers” and
“[h]onors commitments and agreed upon deadlines.”
(Pls. Response at ECF pp. 36-37). Dunbar received a
“Meets Expectations” rating in the remaining
three categories, including “Teamwork, ”
“Technical Competency, ” and “Individual
Work, ” the latter of which “may” include
“[c]ompletes work within established deadlines”
and “[f]ollows management procedures, directives,
regulations, or technical orders.” (Id. at ECF
pp. 34-36). This evaluation appears inconsistent with the
concerns Peoples now claims she had about Dunbar's
weeks later, around August 23, 2011, Dunbar met with Peoples
and learned that she intended to “dilute”
Dunbar's job responsibilities by dividing them between
Dunbar and Robinson, a junior HR staffer whom Dunbar had
trained. (Third Am. Compl. ¶¶ 35-38). Dunbar
appears to allege that, after the performance review and
“dilution” of duties, she did not receive a
bonus, while her co-workers did. (Third Am. Compl. ¶ 42;
ECF No. 52, Pls. Supp. Response at ECF p. 7). Dunbar also
claims that her performance review ratings negatively
impacted her training and promotion opportunities.
alleges that after the meeting, Peoples and Williams
conspired to “trump-up” performance issues by
trying to enlist Robinson as a witness to Dunbar's
alleged negative temperament during the meeting. (Third Am.
Compl. ¶¶ 39-40). Dunbar contends that Peoples and
Williams explained to Robinson that they needed her
assistance and allegedly dangled a promotion as a reward for
her cooperation, but Robinson declined to corroborate their
version of the events surrounding the meeting. (Id.
months later, in November 2011, Dunbar filed her first EEO
charge, alleging retaliation. (See Defs. Ex. F;
Third Am. Compl. ¶ 43). She claims that shortly after
she filed the charge, NHTSA employees began to “circle
the wagon” even more, or “ratchet-up” the
alleged retaliation. (Third Am. Compl. ¶ 44). Among
other things, she claims that NHTSA began to “alter,
manipulate, revise and back date, etc. emails and
documents, including litigation holds in order to bias
evidence and pertinent information needed in an employee
defense against the Agency, ” and that NHTSA extracted,
deleted, and spliced her documents and emails “in order
to neutralize and nullify Plaintiff's EEO
complaints.” (Pls. Response at ECF pp. 16, 10 ¶
alleges that, like the FY2011 training plan, Dunbar's
FY2012 training plan was also late. (Peoples Decl. ¶ 21;
See Pls. Response at ECF p. 106). On January 13,
2012, Dunbar emailed Peoples and Walter, updating them on the
draft FY2012 plan. (Defs. Ex. G). As he had done the prior
year, Walter responded with consternation, this time
complaining that Dunbar's draft was “significantly
late” and inquiring why she was still proposing another
round of approvals by the Training Council. (Id.)
Further, he “insist[ed]” that Dunbar make certain
updates within a specified timeframe. (Id.) When
Dunbar submitted a draft on January 31, Peoples complained
the plan was “unusable and contained a number of
inaccurate statements and budget amounts.”
(See Pls. Response at ECF p. 106).
addition to the issues regarding the training plan, Peoples
subsequently became aware of complaints by the Training
Council about Dunbar. (Peoples Decl. ¶ 21). The Training
Council met approximately ten days after Walter's email
about the late training plan, and their meeting minutes
reflect their concerns that: (1) the training plans were not
finalized in a timely manner; (2) for years Dunbar had failed
to incorporated the Council's revisions and, in the most
recent year, she had returned a draft to the Council that
“had no text, only tables and a cover sheet”; and
(3) Council Chairs over several years had experienced
“conflict” with Dunbar. (Defs. Ex. H). As a
result of these problems, the Council agreed that the
“training management problems need[ed] to be
addressed” and the “broken process” fixed,
and it was decided that the Chair would speak with Walter
about its concerns. (Id.)
following month, on March 7, 2012, Dunbar contacted the
Office of the Inspector General's (“OIG”)
complaint center “for assistance and protection
regarding what the Plaintiff described as ‘deleterious
and fraudulent management practices'” or
“wrongdoings.” (Pls. Response at ECF pp. 9-10
¶ 18; id. at ECF p 10 ¶ 21). She advised
the OIG that she believed NHTSA was trying to terminate her
and claims she engaged in “whistleblowing
activities.” (Id. at ECF pp. 9-10 ¶¶
18, 21). These “whistleblowing activities” appear
to involve what Dunbar describes as “Privacy Act”
and “Cyber security violations involving her office
computer, ” and apparently relate to her claims that
NHTSA tampered with emails and documents on her work
computer. (Third Am. Compl. ¶¶ 60-63; Pls. Response
at ECF p. 10 ¶ 24; id. at ECF p. 16).
later, Peoples transferred Dunbar from her position as a
Human Resources Specialist (HRD) to a position as a Human
Resources Specialist (Strategic Human Capital).(Defs. Ex. I;
Third Am. Compl. ¶¶ 52-53; Peoples Decl. ¶ 22;
see Pls. Response at ECF pp. 106-08). This transfer
stripped Dunbar of her training officer duties, but her pay
remained unchanged. (Defs. Ex. I, Peoples Decl. ¶ 22;
Pls. Response at ECF pp. 106-08). In a letter memorializing
the matter, Peoples explained that the transfer was because
of Dunbar's ineffective handling of the training program
and complaints about Dunbar that had increased over the prior
two years. (Id. at ECF p. 106). Peoples noted that
two different NHTSA Training Councils had complained that
Dunbar did not work collaboratively with them and failed to
effectively manage the training program, but when Peoples
tried to correct the problems Dunbar had resisted her
instructions. (Id.) Peoples pointed out that Dunbar
had consistently failed to complete the training plan before
the fiscal year ended and there were numerous problems with
the plans. (Id.)
letter, Peoples also accused Dunbar of creating controversy
by attempting to change the eligibility criteria for an
Agency program, in an effort to benefit an individual
employee, as well as telling the employee's supervisor to
submit the employee's application-even though the
employee did not meet the program requirements. (Id.
at ECF p. 107). Later, despite a warning from Peoples, Dunbar
included the applicant's name on the list of qualified
candidates. (Id.) Peoples also complained that when
she tried to speak with Dunbar about her concerns, Dunbar
became argumentative, confrontational, yelled at Peoples on
at least three occasions, and inundated Peoples with emails
containing inaccurate, confrontational, and disrespectful
statements. (Id.) Dunbar also allegedly sent similar
emails to persons outside HR when they brought their concerns
about training matters to her attention. (Id.)
disputes these allegations, contending that the transfer was
in retaliation for her EEO activities and disclosure of
unspecified agency “wrongdoing.” (See
Pls. Response at ECF p. 10 ¶ 19). Dunbar also appears to
allege that the transfer resulted in her working on a failed
project, for which Peoples refused to provide Dunbar with
adequate resources, thereby hindering her performance. (Third
Am. Compl. ¶¶ 56-57).
of the transfer, Dunbar moved from an office into a cubicle,
where she was isolated from the HR staff. (Third Am. Compl.
¶ 54; Peoples Decl. ¶ 23). Peoples claims Dunbar
was moved because her new position no longer required that
she have confidential conversations, and the office she had
previously occupied was needed by an employee who routinely
handled personnel matters. (Id.) Dunbar filed
another EEO complaint the day she received the transfer.
(See Third Am. Compl. ¶¶ 52-53).
months later, in August 2012, Dunbar received her performance
evaluation for the June 1, 2011 through May 31, 2012 period.
(Pls. Response at ECF pp. 39-46). Peoples gave Dunbar another
“Achieved Results, ” overall rating, but this
time noted “[t]he following areas of concern were
discussed through the rating period as well as mentioned in
the reassignment memo dated 4/6/12”: (1)
“[o]n-going communication problems between”
Peoples and Dunbar; (2) “FY Training plan”; (3)
“disruptive e-mails of protest to changes in the
[o]ffice”; (4) ...