Dunbar v. Foxx

246 F.Supp.3d 401

Nadra DUNBAR, Plaintiff,

v.Anthony FOXX, et al., Defendants.

Civil Action No. 13–cv–872 (TSC)

United States District Court, District of Columbia.

Signed March 31, 2017

Nadra Dunbar, Fort Washington, MD, pro se.

Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Rafique O. Anderson, Office of Employment Counsel, Washington, DC, for 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 Principles⁴ 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

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