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Dunbar v. Foxx

United States District Court, District of Columbia

March 31, 2017

NADRA DUNBAR, Plaintiff,
v.
ANTHONY FOXX, et al., Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN United States District Judge.

         Plaintiff 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).[1] 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).

         NHTSA 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.

         I. BACKGROUND

         Dunbar 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).[2] These duties also included hiring outside vendors to perform agency training sessions, for which Dunbar was issued a government purchase card. (Id. ¶ 7).

         In 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. ¶ 16).

         Dunbar 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).

         However, 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).

         According 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. (Id.)

         Around 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).

         Peoples 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).

         Dunbar 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).[3] 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.” (Id.)

         Despite 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).

         Approximately 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[4] 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 occurred.

         In her 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).

         During 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).

         Approximately one week later, on March 17, 2011, Peoples and Dunbar received the following email from Senior Procurement Analyst Pete Shultz:

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 tomorrow.

(Defs. Ex. E, Bates #2105).

         Shortly 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.)

         Five 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.” (Id.)

         According 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)

         Dunbar 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.

         Around 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).

         As 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).

         But 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).

         Dunbar 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).[5] 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).

         Dunbar notes that “Meets Expectations”[6] 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).

         Despite 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 performance.

         Several 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. (Id.)

         Dunbar 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. ¶ 40).

         Several 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 ¶ 24).

         Peoples 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).

         In 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.)

         The 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).

         A month later, Peoples transferred Dunbar from her position as a Human Resources Specialist (HRD) to a position as a Human Resources Specialist (Strategic Human Capital).[7](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.)

         In the 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.)

         Dunbar 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).

         Because 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).

         Four 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) ...


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