1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) NADRA DUNBAR , ) ) ) Plaintiff, ) ) v. ) Civil Action No. 13-cv-872 (TSC) ) ANTHONY FOXX , et al. , ) ) Defendants. ) )

MEMORANDUM OPINION Plaintiff Nadra Dunbar, proceeding pro se, brings this employment discrimination Complaint against the National Highway Traffic Safety Administr ation (“NHTSA”), a component of the Department of Transportation (“DOT”). Dunbar alleges that NHTSA retaliated against her in viol ation of Title VII of the Civil R ights Act of 1964, 42 U.S.C. § 2000e–16, and 42 U.S.C. Section 1981. (Th ird Am. Compl. pp. 1, 24-31). She asserts that this alleged retaliatory conduct escal ated to the point where she ex perienced a hostile work environment and was ultimately t erminated in violation of these same anti-discrimination laws. ( Id. pp. 28-31). 1 Dunbar also alleges that NHTSA ’s conduct violated the Civil S ervice Reform

1 Although Dunbar’s Third Amended Com plaint brings claims for ret aliation, hostile work environment, and “disparate trea tment,” (Third Am. Compl. ¶ 1), she does not assert any facts to support a stand-alone dispa rate treatment claim. Indeed, on appeal before the EEOC, Dunbar alleged that “[n]one of [her] ot her similarly situated HR cowor kers have had to endure the level of scrutiny, over-the-top surveillance, harassing/hostile work env ironment,” to which she was subject, and that she was punished “only because [she] dare[s] to go against Mrs. Peoples by testifying and providing sworn t estimony . . . for Mrs. Robinso ns [sic] EEO case against Mrs. Peoples.” (Third Am. Compl. at ECF p. 65; see also Third Am. Compl. ¶ 83 (“Similarly situated employee[s] (no know[n] prior EE O activity) were not subjected to same, similar or any adverse treatment.”)). Such language indi cates that Dunbar is comparin g her treatment to persons who did2 Act (“CSRA”), 5 U.S.C. § 1101 et seq. , and the Whistleblower Prote ction Act (“WPA”), 5 U.S.C. § 2302. (Third Am. Compl. pp. 19-22, 31).

NHTSA has moved to dismiss the Co mplaint or, in the alternat ive, for summary judgment. For the reasons set fo rth below, the court will GRAN T the motion to dismiss

Dunbar’s claims under Section 198 1, the WPA, and all of her pre -termination retaliation claims, except for those associated wit h her (1) August 2011 “Achieved Results/Meets Expectations” performance evaluation, (2) A ugust 2011 “dilutio n” of duties al legation, and (3) April 2012 transfer and relocation allegation.

I. BACKGROUND Dunbar joined NHTSA in 2005 as a Hu man Resources Specialist and Training Officer, whose job responsibilities incl uded drafting and implementing t raining programs, managing the annual training budget, and worki ng with NHTSA’s Training Counc il. (ECF No. 12, Defs. Ex. A, Peoples Decl. ¶¶ 4, 7). 2 These duties also included hiri ng outside vendors to perform agency

not participate in protected activity, rather than alleging tha t she was treated differently because of her membership in a protected c lass. Accordingly, to the exten t Dunbar asserts a disparate treatment claim, the court will dismiss this claim.

2 NHTSA previously submitted a motion to dismiss/motion for summary judgment which the court granted in part and denie d in part, without prejudice. ( See ECF Nos. 12, 42; April 23, 2015 Minute Order). The exhibits att ached to that motion are design ated with letters and some of those exhibits are pertinent to the currently pending motion. ( See ECF No. 12). Accordingly, the court will cite to those e xhibits using the appropriate let ter designation. In contrast, the exhibits NHT SA attached to the instant motion are not separated by pages identifying the exhibits. ( See ECF No. 42). Accordingly, the cour t will cite to the latter exhibits using ECF numbers f ound on the court’s electronic dock eting system, for example (ECF No. 42-2, Peoples Supp. Decl. ¶¶ 5-13). Likewise, Plaintiffs’ desi gnation of exhibits is diffic ult to follow. Therefore, the court will cite to her documents using a description of her document and t he appropriate ECF page number, for example (P ls. Response at ECF p. 114).3 training sessions, for which Dunbar was issued a government pur chase card. ( Id. ¶ 7). In 2007, two years after she was hi red, Darlene Peoples, Direct or of NHTSA’s Office of Human Resources and Dunbar’s direct supervisor, promoted D unbar to a GS-14 and

transferred her to a “team lead er” position. (Peoples Decl. ¶ 6). Peoples alleges that the promotion included duties such a s serving as Acting Director wh en Peoples was unavailable (Peoples Decl. ¶ 6), but Dunbar claims—without evidentiary supp ort—that the promotion involved naming her Deputy Directo r. (Third Am. Compl. ¶ 16). Dunbar alleges that several ye ars later, in May 2010, when she expressed an interest in obtaining a PhD through an agenc y-wide program designed to assi st employees with their educational pursuits, Peoples supported her applications for the programs by rating Dunbar’s performance at “5 out of 5” duri ng the applicat ion process. (P ls. Response at ECF p. 6 ¶ 5). However, four months later, in September 2010, Peoples reclassi fied Dunbar from “Lead Human Resources Specialist” to “Human Resources Specialist (HRD ).” (Defs. Ex. B). As a result of the reclassification, D unbar was no longer a team lea der, 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 ha d become concerned with Dunbar’s uns atisfactory work performance because Dunbar purportedly: 1) w as not attending meetings on be half of Peoples; 2) was unable to deal with staff issues; a nd 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 perf ormance counseling. (Pls. Re sponse at ECF p. 6 ¶ 6). Dunbar

claims that she learned of the reclassification when she receiv ed an automated personnel action notification email. ( Id. ) When questioned about the cha nge, Peoples allegedly told Dun bar the4 change was for “administrative pu rposes” and that she should “k eep things as they are.” ( Id. ) Dunbar asserts that the change coincided with the end of the pr obationary period for two new supervisors, and therefore Pe oples no longer needed Dunbar’s as sistance with certain duties, including managing the two new supervisors. ( Id. ) Around this same time in 2010, D unbar failed to obtain approval for her 2011 Fiscal Year (“FY”) budget and training plan by t he due date. (Peoples Decl ., ¶ 14). According to Peoples, the approval process for the tr aining plan involves first submi tting a draft to her and Greg Walter (Senior Associate Administrato r and Dunbar’s upper-level superv isor) for approval, then sending it to NHTSA’s Training Council fo r additional comments and, fin ally, sending it to senior agency administrators. ( Id. ¶¶ 8-9). Peoples claims that s he and Walter expect the plan t o be drafted, vetted and finally approve d before October 1, which is the beginning of t he 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 Dunb ar’s FY2011 training plan had not been finalized, a nd told Dunbar her wor k needed to improve or she should not expect to receive an overall rating of “Exceeded Expectations” going forw ard. (Peoples Decl. ¶ 17). Dunbar contends that Peoples ne ver pointed out any work deficie ncies and that Peoples could not articulate why she failed to rat e Dunbar as “Outstanding/Achiev ed Excellence,” as she had in the past. (Pls. Response at ECF p. 6 ¶ 7). Dunbar explains that the traini ng plan was late because she was prohibited from releasing it until “congressional authori zation” for funding came through . (Pls. Response at ECF pp. 3-4 ¶ 2; id. pp. 7-8 ¶¶ 10, 11). She claims th at because of the funding is sue, in past years NHTSA had not strictly enforced the due date , and that it was the departm ent’s practice to allow a flexible due5 date given the budgetary issues. ( Id. ) Finally, Dunbar alleges Pe oples and Walter were advised of the plan’s status and unders tood the reason for the delay. ( Id. pp. 3-4 ¶ 2; id. pp. 7-8 ¶¶ 10, 11). 3 In a November 9, 2010 email to Pe oples (copied to Walter), Du nbar indicates she was awaiting feedback from Peoples be fore finalizing the plan. (De fs. Ex. C). But, Walter responded to Peoples that the plan was late and asked her to “t ry 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 p erformance issues that led to Dunbar’s reclassification, Dunba r asserts that shortly after the Walter email indicating her training plan was late, she receiv ed a “significant performance bonus award for continuous delivery of exemplary work.” ( Pls. Response at ECF p. 6 ¶ 7; T hird Am. Compl. ¶ 31). Approximately three months l ater, on Februa ry 15, 2011, People s “switched duties” between Ivonne Rodriguez and Tam ika 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 Dunba r did express her concerns to Peoples, the Complaint does not i ndicate whether Dunbar actuall y articulated concerns about alleged violation of CSRA personne l policies or concerns about alleged violation of Title VII. ( See Third Am. Compl. ¶ 24) (noting Rodr iguez was promoted “seeming ly without merit – such

3 Dunbar cites to Exhibit F as support for her position, but that exhibit does not contain any documents discussing training plans. ( See Pls. Response at ECF pp. 112-120).6 as without Merit System Principles 4 competition . . . or through an accretion of duties/desk audit”). Dunbar also implies i n her brief that her “opposition ” involved complaining about alleged Title VII violations. ( See Pls. Response at ECF p. 8 ¶ 15). H owever, as the court will address later, in three document s Dunbar prepare d prior to fili ng her brief in this case, she indicates that she opposed allege d Title VII violations associa ted with the Rodriguez/Robinson personnel action several mont hs after it occurred. In her brief, Dunbar alleges th at after she “opposed” the deci sion to Rodriguez/Robinson personnel change, Peoples and Anna Williams (an HR Employee Rel ations Specialist) “began to engage in ‘tag-team’ retaliator y behaviors against Plaintiff . . . and discriminatory practices . . . by extreme fault-finding, exce ssive nit-picking, over-the-top s urveillance and monitoring . . . disrespect . . . comments . . . [ b]elittling . . . [and] unwarr anted scrutiny.” (Pls. Response at ECF p. 7 ¶ 9; see id. p. 8 ¶ 15). During the same month that the Rodriguez/Robinson personnel cha nge occurred, NHTSA’s Training Council provi ded its feedback on Dunbar’s prop osed FY2011 training plan, and noted that the plan containe d “mathematical -calculation iss ues.” (Defs. Ex. D p. 2). The following month, Dunbar and Peoples met for Dunbar’s mid-year a ssessment, during which, according to Peoples, the two di scussed the untimely submission of the FY2011 training plan. (Peoples Decl. ¶ 18). Approximately one week lat er, on March 17, 2011, Peoples and Dunbar received the

4 “Merit System Principles” ( Third Am. Compl. ¶ 24), or “mer it systems protections” are terms of art used in the contex t of cases involving alleged vio lations under the CSRA. See Wagner v. FEC , 793 F.3d 1, 19, 31 (D.C. Cir. 2015). Reprisal for complainin g about such violations is a “prohibited personnel practice” that is actiona ble under the CSRA. Dunning v. Nat’l Aeronautics & Space Admin. , 718 F.2d 1170, 1174 (D.C. Cir. 1983).7 following email from Senior Proc urement Analyst Pete Shultz: Nadra and Darlene: I see that the purchase card you use for acq uiring training has been suspended due to delinquent payment approval. I am curren tly at the DOT purchase card conference . . . and was embarrassed that NHTSA w as identified as having the second highest percentage of suspended accounts with in the Department of Transportation. You may recall when David Strickland took o ver NHTSA, he sent a message to all offices e xpressing his concern over our h igh suspension rate. I’m concerned that if he should ask for the current status, I m ay have to take more drastic action then just a warning . . . . You must have all y our charges receive final approval from Darlene b y no later than tomorrow. (Defs. Ex. E, Bates #2105).

Shortly after receiving this em ail, Peoples responded with an email indicating that she had “gone in”—presumably to NHT SA’s database—but did not see an ything 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 c harges 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 fo llowed up with an email to Dunbar an d Peoples reminding

them there were still twelve unapproved trans actions on Dunbar’ s account that needed to be approved as soon as possible and that a “history of suspended a ccounts will result in the permanent cancellation of the purch ase rights card for that ind ividual.” ( Id. ) According to Peoples, training o fficers—such as Dunbar—are res ponsible for preliminarily approving pending tra nsactions in a timely manner and then forwarding the transactions to Peoples for fin al approval. (Peoples Decl. ¶¶ 10, 19). Suspension of Dunbar’s card: (1) prevented her from fulfilling one of her primary duti es as training officer, which is8 hiring vendors to perform training s for the Agency; and (2) pre vented payment of vendors in a timely manner. ( Id. ¶ 19)

Dunbar contends that she and Pe oples were jointly responsible for managing the government purchase card, and implie s that Peoples “regularly d elayed” approval of the transactions. (Pls. Respons e at ECF p. 4 ¶ 3). The court not es that the email evidence does not appear to support Dunbar’s expla nation about the approval proce ss. Around April 9, 2011, Peoples and D unbar had a run-in, after w hich Dunbar contends that Peoples accused Dunbar of having been irate, angry, disres pectful, and loud. (Defs. Ex. N, Dunbar 2/6/12 Aff., Bates #422). A pproximately one week later, on April 18, 2011, an EEO

counselor contacted Dunbar about a cting as a witness for Robins on, who had filed an EEO complaint against Peoples. (Pls. Response at ECF p. 8 ¶ 14; Th ird Am. Compl. ¶ 25). Dunbar agreed and informed Peoples. (Pls. Response at ECF p. 114).

As discussed above, Dunbar allege d in her brief that Peoples a nd Williams began retaliating against her in Feb ruary 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 vio lations. ( See Pls. Response at ECF p. 8 ¶ 15). But Dunbar paints a very differe nt picture in three documents she prepared before her

brief. In her Third Amended Complaint, D unbar claimed that in April, after she agreed to support Robinson’s EEO claim, Peoples and Williams “began to un fairly scrutinize Plaintiff’s performance and subject[] her t o retaliatory behaviors and disc riminatory practices.” (Third Am. Compl. ¶ 26; see id. ¶ 41). More importantly, in a sworn EEO statement, prepared w hile Dunbar was represented by counsel ( prior to her termination), s he complains about a series of9 allegedly retaliatory incidents that began after “participating in prior EEO activity pertaining to Ms. Robinson’s EEO complaint aga inst Ms. Peoples.” (Defs. Ex. M, Bates #167, 166). Similarly, in a letter summarizing Dunbar’s EEO Charge, NHTSA i ndicates 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 peri od. (Third Am. Compl. ¶¶ 28, 33). 5 Peoples claims that

she lowered Dunbar’s overall ra ting to “Meets Expectations” because of the untimely and

inaccurate FY2011 train ing plan, as well as Dunbar’s “mismanage ment” of the government purchase card. (Peoples Decl. ¶ 20; see Third Am. Compl. ¶ 29; Pls. Respon se 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 t hat 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’ refle cting continuation of excellent work.” ( Id. ¶ 30). Despite her concerns about the training plan and the governm ent purchase card, Peoples

5 Dunbar indicates the review was for the period June 2010 t hrough May 31, 2011, (Pls. Response at ECF p. 9 ¶ 16), but her pe rformance review document indicates that it covered the period indicated by Peoples. ( Pls. Response at ECF pp. 33-37).

6 Although Peoples refers to the overall rating as “Meets Ex pectations,” (Peoples Dec. ¶ 20), the performance evaluation form uses the phrase “Achieved Resul ts.” (Pls. Response at ECF p. 33).10 did not give Dunbar any negative ratings in the five sub-catego ries listed on th e performance

evaluation form. Du nbar received an “Exce eds Results” rating i n the category described as “Risk-taking, Initiative, and Innovation,” as well as in the ca tegory described as “Customer Service,” which may include deliv ering “high quality products/s ervices to internal/external customers” and “[h]onors comm itments and agreed upon deadlines. ” (Pls. Response at ECF pp. 36-37). Dunbar received a “M eets Expectati ons” rating in t he remaining three categories, including “Teamwo rk,” “Technical Compete ncy,” and “Individual W ork,” the latter of which “may” include “[c]ompletes work within established deadlines” a nd “[f]ollows management procedures, directives, regulati ons, or technical orders.” ( Id. at ECF pp. 34-36). This evaluation appears in consistent with the c oncerns Peoples now c laims she had a bout Dunbar’s performance. Several weeks later, around August 23, 2011, Dunbar met with Peoples and learned that

she intended to “dilute” Dunba r’s job responsib ilities by divid ing them between Dunbar and Robinson, a junior HR staffer wh om Dunbar had trained. (Third Am. Compl. ¶¶ 35-38). Dunbar appears to allege that, after t he performance review and “dilut ion” of duties, she did not receive a bonus, while her co-workers did. ( Third Am. Compl. ¶ 42; ECF N o. 52, Pls. Supp. Response at ECF p. 7). Dunbar also claims that her performance review rati ngs negatively impacted her training and promotion opportunities. ( Id. ) Dunbar alleges that after the meeting, Peoples and Williams co nspired 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 assista nce and allegedly dangled a promotion as a reward for her cooperation, but Robinson decline d to corroborate their version of11 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 a fter she filed the charge, NHTSA employees began t o “circle the wagon” even more, or “ratchet-up” the alleged retaliation. (Third A m. Compl. ¶ 44). Among other things, she claims that NHTSA began to “alter, manipulate, revise[] and back date, etc. emails and doc uments, including litigation holds in order to bias evidence and pertinent information needed in an e mployee defense against the Agency,” and that NHTSA extr acted, deleted, and spliced her doc uments and emails “in order to neutralize and nullify Plaintiff’s EEO complaints.” (Pls. Resp onse at ECF pp. 16, 10 ¶ 24). Peoples alleges that, like th e FY2011 training plan, Dunbar’s F Y2012 training plan was also late. (Pe oples Decl. ¶ 21; See Pls. Response at ECF p. 106). On January 13, 2012, Dunbar emailed Peoples and Walter, updating them on the draft FY2012 p lan. (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 numbe r of inaccurate statements and budget amounts.” ( See Pls. Response at ECF p. 106). In addition to the issues regar ding the training plan, Peoples subsequently became aware of complaints by the Training C ouncil about Dunbar. (Peoples D ecl. ¶ 21). The Training Council met approximately ten day s after Walter’s email about t he late training plan, and their meeting minutes reflect their c oncerns that: (1) the training p lans were not finalized in a timely manner; (2) for years Dunbar had f ailed to incorporated the Cou ncil’s revisions and, in the most12 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 experienc ed “conflict” with Dunbar. (Defs. Ex. H). As a result of these pr oblems, the Council agreed that the “training management problems need[ed] to be addresse d” and the “broken process” fix ed, and it was decided that the Chair would speak with Walter about its concerns. ( Id. ) The following month, on Marc h 7, 2012, Dunbar contacted the Of fice of the Inspector General’s (“OIG”) complaint cen ter “for assistance and protecti on 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 t he OIG that she believed NHTSA was trying to terminate he r and claims she engaged in “wh istleblowing activities.” ( Id. at ECF pp. 9-10 ¶¶ 18, 21). These “wh istleblowing activities” appear to involve what Dunbar describes as “Privacy Act” and “Cyber security violations invol ving 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 Resour ces 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 dut ies, 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 th e transfer was because of Dunb ar’s ineffective handling of the

7 Although Dunbar indicates at va rious points in her Complai nt that this transfer occurred in 2011 (Third Am. Compl. ¶¶ 53, 56-57 ), Dunbar’s personnel form i ndicates the transfer to the Human Resources (Strategic Human Capital) position occurred in 2012. (Defs. Ex. I; see Peoples Decl. ¶ 22; Third Am. Compl. ¶¶ 52-53).13 training program and complaints about Dunbar that had increased over the prior two years. ( Id. at ECF p. 106). Peoples noted that tw o different NHTSA Training C ouncils had complained that

Dunbar did not work collaborativel y with them and failed to eff ectively 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 c omplete the training plan before the fiscal year ended and there w ere numerous problems with the plans. ( Id. ) In the letter, Peoples also accused Dunbar of creating controv ersy 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 employe e’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 Dunba r about her concerns, Dunbar became argumentative, confrontational, yelled at Peoples on at least three occasions, and inundated Peoples with emails containing inaccurate, confrontat ional, 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 allegati ons, contending that the transfe r 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 a llege that the transfer r esulted in her working on a failed project, for which Peoples refus ed to provide Dunbar with adequ ate resources, thereby hindering her performance. (Third Am. Compl. ¶¶ 56-57). Because of the transfer, Dunbar moved from an office into a cu bicle, where she was isolated from the HR staff. (Th ird Am. Compl. ¶ 54; Peoples De cl. ¶ 23). Peoples claims Dunbar14 was moved because her new pos ition no longer required that she have confidential conversations, and the office she had previousl y occupied was needed by an emp loyee who routinely handled personnel matters. ( Id. ) Dunbar filed another EEO comp laint the day she received the transfer. ( See Third Am. Compl. ¶¶ 52-53). Four months later, in August 2012, Dunbar received her perform ance evaluation for the June 1, 2011 through May 31, 2012 period. (Pls. Response at EC F pp. 39-46). Peoples gave

Dunbar another “Achieved Results,” overall r ating, but this time noted “[t]he following areas of concern were discussed through the rating period as well as men tioned in the reassignment memo dated 4/6/12”: (1) “[o]n- going communication problems betw een” Peoples and Dunbar; (2) “FY Training plan”; (3) “di sruptive e-mails of protest to c hanges in the [o]ffice”; (4) “[h]andling of the DRAP program and the Academic Degree Program ”; 8 and (5) “[c]ollaborative problems with [the] Training Council.” ( Id. ) Approximately one year later, Dunbar filed this lawsuit. Sever al months after that, Peoples evaluated Dunbar regarding a previously discussed Performance P lan and again rated Dunbar as “Achieved Results.” (Pls. Res ponse at ECF pp. 56-63). This ev aluation included categories such

as:

 “Individual Work,” which incl udes “[w]ork products are clear a nd well organized,” and “completes work within established deadlines.” (Pls. Response at ECF p. 57).

 “Technical Competency,” which includes “[d]emonstrates quality and accountability in the majority of work activities.” ( Id. at ECF p. 58).

 “Teamwork,” which includes “[w]orks well with others in develop ing and implementing solutions to problems” and “[m]aintains effective working relat ionship with team members.” ( Id. at ECF p. 59).

8 This performance issue appears to relate to the incident i n which Dunbar is alleged to have wrongly advised an employee that she could bypass certain crite ria and participate in an Agency program. ( See Third Am. Compl. ¶ 46; Pls . Response at ECF p. 107).15  “Innovation,” which includes “[t]akes into consideration new id eas and differing professional opinions,” and “[d]e monstrates integrity and profe ssionalism.” ( Id. at ECF p. 60).

 “Customer Service,” which incl udes “[p]rojects positive attitud e,” and “[t]reats everyone with courtesy and respect.” ( Id. at ECF p. 61). Despite ample space for commen ts, Peoples did not include any c omments or criticisms, as she had on the previous evaluation. ( Id. at ECF pp. 56-63). This neutral evaluation implies that, eith er Dunbar’s performance had improved, or Peoples failed to documen t her concerns. In May 2014, Dunbar advised mana gement that she had discovered all of her office computer documents and emails w ere being sent to one of the att orneys who represents NHTSA in this litigation, as well as to other unknown entities both i nside and outside the agency. (Third Am. Compl. ¶¶ 59-61). The day after Dunbar reported that her emails were being forwar ded, Peoples authored a Proposed Removal document, in which she recommended terminating Dunbar for various reasons, including: (1) insubordination due to Dunbar’s failure to make certain co rrections on workforce plans, despite explicit orders from Peoples; (2) making false statements relating to Dunbar’s time and atte ndance records; (3) intentional misrepresentation relating to Dunbar’s alleged plagiarism of almost an entire workforce planning document; and (4) workplace disruptions, including Dunbar’s apparent inappro priate involvement of upper level managers in HR matters, as well as Dunbar’s allegedly inappropriate emails to coworkers, even after Peoples had i nstructed Dunbar to refrain fr om sending the emails. (ECF No. 42-2, Peoples Supp. Decl. ¶¶ 5-13). On or around July 14 or 18, 2014, N HTSA terminated Dunbar. The following month, she filed a “mixed complaint” with the Merit Systems Protection Boa rd (“MSPB”) challenging her16 termination. 9 (Third Am. Compl. ¶ 70). The M SPB has not issued a final dec ision in Dunbar’s

case.

II. LEGAL STANDARD When a party moves to dismiss under Rule 12 for failure to stat e a claim upon which relief may be granted and presen ts matters outside the pleading and not excluded by the court,

“the motion shall be treated a s one for summary judgment and di sposed of as provided in Rule

56.” Colbert v. Potter , 471 F.3d 158, 167 (D.C. Cir. 2006) (quoting Fed. R. Civ. P. 1 2(b)) (internal quotation marks omitte d). Summary judgment is approp riate “if the movant shows that there is no genuine dispute as t o any material fact and the mov ant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 10 To defeat summary judgment, the non-moving party must “designat e specific facts showing there is a genuine issue for trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986)

9 “When an employee challenges an adverse personnel action th at is subject to appeal to the MSPB and that is coupled with a di scrimination claim—a ‘mixed c ase’—[s]he must navigate a procedural regime of Title VII regulations and Civil Service Re form Act regulations.” Taylor v. Mabus , 685 F. Supp. 2d 94, 97 (D.D.C. 2010) (citing 5 U.S.C. § 7702) (emphasis in original).

10 Dunbar attached over 60 pages of exhibits to her Third Amen ded Complaint (ECF No. 39) and almost 150 pages of exhibits to her opposition brief (ECF N o. 44). Additionally, the court allowed Dunbar to file a supplemental oppositio n brief, to which she attached 6 pages of exhibits. ( See ECF No. 52). Because both parties relied extensively on documents “ou tside of the pleadings,” the court will evaluate NHTSA’s motion under the summary judgment standard. See Fed. R. Civ. P. 12(d); Fed. R. Civ. P. 56; Colbert , 471 F.3d at 167-68 (upholding distri ct court’s failure to iss ue prior notice that it was converting a motion to dismiss to a mo tion for summary judgment where: (1) the defendant moved for summ ary judgment in the alternative ; (2) the defendant attached extra-pleading material to the m otion; and (3) the plaintiff re sponded with exhibits); Smith v. Lynch , 106 F. Supp. 3d 20, 36-37 n.20 (D.D.C. 2015) (ci tations omitted).17 (internal quotation marks omitted). A dispute is “genuine” onl y if a reasonable fact-finder could find for the non-moving party; a f act is only “material” if it is capable of affecting the outcome of the litigation. Id. ; see also Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, “[a ]ll underlying facts and inferen ces are analyzed in the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia , 709 F. Supp. 2d 57, 65 (D.D.C. 2010) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986)). Finally, the court is mindful that pro se pleadings must be liberally construed, as they are held to “less stringent standard s than formal pleadings drafted by trained lawyers.” Budik v.

Dartmouth–Hitchcock Med

. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C. 2013) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)) (internal quo tation marks omitted). T his liberal standard, on the other hand, “is not . . . a license to ignore the Federal Rules of Civil Procedure.” Neuman v.

United States , 70 F. Supp. 3d 416, 422 (D.D.C. 2014) (in ternal citations and quotation marks omitted). “Accordingly, in the context of Rule 56, a ‘ pro se plaintiff must meet his burden of proving that there exists a genui ne dispute as to a material fa ct to survive a motion for summary judgment.’” Mokhtar v. Kerry , 83 F. Supp. 3d 49, 61 (D.D.C. 2015) (citation omitted).

III. ANALYSIS

A. Section 1981 Claims The court finds that Dunbar’s Section 1981 claims are not actio nable because Title VII “provides the exclusive judicial remedy for claims of discrimin ation in covered federal employment.” Richardson v. Wiley, 569 F.2d 140, 141 (D.C. Cir. 977) (per curiam). Thus, “covered federal employees ma y not sue alleging discrimination under other federal statutes, including § 1981.” Gong v. Napolitano , 612 F. Supp. 2d 58, 60 n.1 (D.D.C. 2009) (internal18 quotation marks omitted) (citing Richardson , 569 F.2d at 141). Accordingly, the court will

dismiss Dunbar’s Section 1981 claim. 11

B. Title VII Retaliation Dunbar challenges a wide range of allegedly retaliatory conduct , including excessive “nitpicking,” unwarranted scrutiny, a ssignment to failed projects, lack of supervisory support, reassignment of duties, IT tamper ing, lowered performance evalu ations, at least one missed bonus and termination. To establish a prima facie case for retaliati on in violation of Title VII, 42 U.S.C. § 2000e–3(a) , a plaintiff must present evidence that: (1) she engaged in activity protected by Title VII; (2) the employer took a “materially adv erse” employment action against her; and (3) the adve rse action was causall y related to the exe rcise of her rights. Porter v. Shah , 606 F.3d 809, 817-18 (D.C. Cir. 2010) (citations omitted); Holcomb v. Powell , 433 F.3d 889, 901-02 (D.C. Cir. 2006) (citations omitted).

1. Protected Activity Title VII prohibits retaliation directed at anyone who engages in protected activity by opposing, among other things, discrimination based on race, gen der, or national origin. Opposition need not take the form of a formal EEOC filing, but may instead include providing a statement about alleged discrimination during an EEO investigat ion. Crawford v. Metro. Gov’t of Nashville & Davidson Cty., Tenn. , 555 U.S. 271, 273 (2009); see also Broderick v.

Donaldson , 437 F.3d 1226, 1232 (D.C. Cir. 2006). Although the oppositio n need not specifically reference Title VII, it must “in some way allege u nlawful discrimination” and not merely complain of management d ecisions with which plaintiff di sagrees. Broderick , 437 F.3d

11 Although Dunbar’s Complaint conta ins three counts, she brin gs other claims that she did not identify in independent “counts. ” Accordingly, the court will dismiss claims, rather than counts.19 at 1232; see also Gibbs v. Wash. Metro. Area Transit Auth. , 48 F. Supp. 3d 110, 132 (D.D.C. 2014). As an initial matter, the court must identify the point at whic h Dunbar first engaged in protected activity. Although Dunbar implies in her brief that she engaged in Title VII protected activity in February 2011 ( see Pls. Response at ECF p. 8 ¶ 15), the re is no evidence that Dunb ar communicated to Peoples or other ma nagers any concerns about al leged Title VII protected discrimination surrounding the R odriguez/Robinson personnel cha nges at the time they occurred. Indeed, three documents prepare d prior to the date she filed he r brief make this clear: (1) Dunbar’s Third Amended Complaint , in which she alleges she “opp osed” personnel actions which violated the CSRA, not Title VII; (2) Dunbar’s own sworn EEO statement, in which she alleged retaliation began after she assisted Robinson with her EEO complaint in April 2011; and (3) the NHTSA’s letter summariz ing Dunbar’s EEO charge, which s tates Dunbar alleged retaliation since April 2011. 12 Thus, Dunbar’s Complaint and EEO documents (which pre-date her current brief) indicate th at the Title VII retaliation bega n around April 2011, and Dunbar has provided no evidence—save her uns upported claims in her opposit ion brief—to contradict that finding. Courts have long held that a part y may not create a material i ssue of fact simply by contradicting prior sworn testimony. Pyramid Sec. Ltd. v. IB Resolution, Inc. , 924 F.2d 1114, 1123 (D.C. Cir. 1991) (citing Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir.1988); Kizas v. Webster, 492 F. Supp. 1135, 1147 n. 42 (D.D.C. 1980), rev’d on other

12 The court notes that the NHTSA le tter was an “amended” document issued after Dunbar requested changes to the origina l letter, in which the agency h ad initially identified July 2011 as the date that the retaliation began. ( See Defs. Ex. F, Bates #133-34, #131).20 grounds, 707 F.2d 524 (D.C. Cir. 1983)) (some citations omitted). “The objectives of summary judgment would be seriously impai red if the district court were not free to disregard the later testimony.” Pyramid Sec. Ltd ., 924 F.2d at 1123 (citing Martin, 851 F.2d at 706) (alterations omitted). Therefore, “the prior sworn statement will receive c ontrolling weight unless the shifting party can offer persuasive reasons for believing the s upposed correction.” Pyramid Sec.

Ltd ., 924 F.2d at 1123 (citing Farrell v. Auto. Club of Mich. , 870 F.2d 1129, 1131-32 (6th Cir.1989)). Dunbar has not offered any reasons, “persuasive” or otherwise, which might explain the apparent contradiction between her opposition brief and her ear lier drafted Third Amended Complaint, sworn statement and EEO charge summary letter. Acco rdingly, the court finds that Dunbar engaged in protected ac tivity in April 2011, rather than February 2011.

2. Causation NHTSA does not dispute that Dunbar engaged in protected activit y in April 2011 when she provided assistance to Robi nson, but argues that Dunbar can not establish that her

involvement with Robinson’s EEO c harge was the cause of the all eged retaliation. NHTSA first argues that any pos t-April 2011 retaliation could n ot have been caused by

Dunbar’s assistance to Robinson because Dunbar claims her relat ionship with Peoples began to

deteriorate three months earli er, in February. Indeed, as the court noted above, Dunbar alleges that Peoples began some form of retaliation after Dunbar and Ro binson “opposed” the Rodriguez/Robinson personnel change in February 2011. Still, the court is not pers uaded by NHTSA’s argument. Dunbar complains of nitpicking, extreme fault-finding, di srespect, and unwarranted scr utiny immediately following her February 2011 “opposition” to the Rodriguez/Robinson personnel change. (Pls. Response at21 ECF p. 7 ¶ 9; see id. p. 8 ¶ 15). However, Dunbar also a lleges that the retaliation “ratcheted up” after April 2011, when she assi sted Robinson with her EEO charg e, at which point Peoples began to unfairly evaluate Dunbar’s performance, reassign her d uties to other employees, and ultimately terminated her. ( See Third Am. Compl. ¶ 33). Thus, a r easonable fact-finder might determine that the February t hrough April reta liation was motiv ated by Dunbar’s opposition to alleged violations of the CSRA, while the post-April 2011 retal iation was motivated by Dunbar’s Title VII protected activity. Alternatively, a reasonable fact -finder might determine that t he post-April retaliation was motivated by both retaliatory ani mus over Dunbar’s complaints a bout alleged CSRA violations and her complaints about allege d Title VII violations. If so, then Dunbar’s retaliation claims would fail because “[u]nlike in the discrimination context, the re are no mixed-motive retaliation claims; the plaintiff must establish that retaliation was the ‘ but-for’ cause of the adverse action in

order to” move forward. Duncan v. Johnson , No. 14-1642, 2016 WL 5719714, at *14 (D.D.C. Sept. 30, 2016) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar , 133 S. Ct. 2517, 2533 (2013)). “‘This requires proof that the unlawful retaliation would not h ave occurred in the absence of the alleged wrongful action or actions of the employer.’” Duncan , 2016 WL 5719714, at *14 (citing Univ. of Tex. Sw. Med. Ctr. , 133 S. Ct. at 2533). Given that a reasonable fact-finder mig ht reach different conclusions, and viewi ng the facts in the light most favorable to Dunbar, the court finds that there is a factual disput e with regard to causation on thi s issue. NHTSA’s second causation argument is equally unavailing. NHTSA contends that Peoples began addressing Dunbar’s p erformance issues long befor e she engaged in protected activity, stripping Dunbar of her team leader duties and warnin g her about performance issues in 2010—the year before she engaged i n protected activity. NHTSA argues that these 2010 actions22 closely resemble the personnel actions Peoples took later, such as lowering Dunbar’s performance evaluation, and that given the similarity in Peoples’ response to Dunbar in 2010 and Peoples’ response post-April 2011, Dunbar cannot establish retaliatory m otive. See Lewis v. District of

Columbia , 653 F. Supp. 2d 64, 80 (D.D.C. 2009) (rejecting plaintiff’s n on-selection retaliation claim where the agency had previously declined to hire plaintif f on three separate occasions prior to the date she engaged i n protected activity). NHTSA’s argument is flawed because the facts here do not clear ly establish that the agency engaged in the same—or e ven similar—activity both before and after Dunbar assisted Robinson with her EEO charge i n April 2011. There are disputed facts regarding what occurred in 2010 and why. Peoples claims she relieved Dunbar of her “Te am Leader” duties in 2010 for performance reasons and warned D unbar that her performance need ed to improve or she should not expect to receive an “Exceeded Expectations” rating on her next performance review. (Peoples Dec. ¶ 17). Dunbar clai ms that the 2010 change coinci ded with decreased demand for supervising employees whose probation had ended. (Pls. Respons e at ECF p. 6 ¶ 6). She also

claims to have received no warni ng about her performance around that time and there is nothing in the record documenting any performance issues then. ( See id. ) More importantly, Dunbar contends she received a “signi ficant bonus” after the 2010 perf ormance review, and it appears

that she received the bonus ar ound the same time concerns were raised about the late training plan. ( Id. at ECF p. 6 ¶ 7; Third Am. Com pl. ¶ 31). An “Exceeded Expecta tions” rating and a

bonus are inconsistent with the conc erns Peoples claims she had about Dunbar’s performance in

2010. Moreover, even after the train ing plan issues re-emerged in Fe bruary/March 2011, along with concerns about Dunbar’s purcha se card, there was still no evidence of any disciplinary23 action or warning. However, in A ugust 2011, just four months a fter Dunbar assisted Robinson with her EEO complaint, Peoples gave Dunbar an “Achieved Result s” rating. While this was not a negative evaluation, Dunbar alle ges this was the lowest ratin g she had ever received and she appears to allege that she di d not receive a bonus as a result of the rating. (Third Am. Compl. ¶ 42; Pls. Supp. Response at ECF p. 7). Sometime after Dunbar file d her own EEO complaint in November 2011, Peoples stripped D unbar of her training officer duties, as well as relocated her away from the HR staff and ulti mately terminated her in 2014. This evidence indicates that there is a factual dispute as to whether Peoples responded to Dunbar’s alleged performance issues in a similar manner both be fore and after she engaged in protected activity. Accordingly, NHTSA’s second causation argu ment also fails. 13

3. Materially Adverse Employment Actions NHTSA argues that Dunbar cannot es tablish that the alleged pre- termination retaliatory conduct constituted “materially adverse” employment actions. “ Petty slights or minor annoyances” do not rise to the lev el of actionabl e adverse acti ons. Burlington N. & Santa Fe Ry.

Co. v. White , 548 U.S. 53, 68 (2006)

. Likewise, criticism for “neg ative behavior” is not a materially adverse action. Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009) (citing Burlington N. , 548 U.S. at 68).

In order to meet the “materiall y adverse” standard, a plaintiff must suffer some “objectively tangible harm.” Wiley v. Glassman , 511 F.3d 151, 161 (D.C. Cir. 2007) (citation

13 NHTSA argues that Dunbar is foreclosed from pursuing her “p ost-2013 retalia tion claims” because she did not exhaust her ad ministrative remedies with re spect to these claims. (Defs. Br. pp. 15-18). The court declines to reach this argument because NHTSA failed to provide Dunbar’s EEO charges. NHTSA a lso failed to specify which post- 2013 claims are allegedly foreclosed.24 and internal quotations omitted). The harm must be such “that a reasonable employee would have found the challenged action m aterially adverse, which in t his context means it well might

have dissuaded a reasonable wo rker from making or supporting a charge of discrimination.” Burlington N. , 548 U.S. at 68 (citations and internal quotations omitted). The court finds that Dunbar has met the “objectively tangible harm” standard with respect to three of her discrete pre-termination retaliation allegation s: (1) the August 2011 “Achieved Results/Meets Expectations” lowered performance evaluation that appears to have cost Dunbar a bonus; (2) the August 2011 “dilution” of Dunbar’s duties; and ( 3) the April 2012 transfer that stripped her of her training officer duties and relocated her awa y from other HR employees. Dunbar’s allegation that she di d not receive a bonus as a result of her lowered performance evaluation ( see Third Am. Compl. ¶ 42; Pls. Supp. Response at ECF p. 7), is suf ficient to allege the required “objectively tangible harm.” See Baloch v. Kempthorne , 550 F.3d 1191, 1199 (D.C. Cir. 2008); Douglas v. Donovan, 559 F.3d 549, 553 (D.C. Cir. 2009) (citations omitted). 14 Likewise, Dunbar may be able to e stablish “objectively tangible harm” with respect to her allegations regarding the “diluti on” of her duties and the tran sfer that relieved her of her training officer responsibilities. As t he D.C. Circuit has recognized, retaliatory adverse actions may

14 Dunbar also alleges that the l owered performance evaluation negatively impacted her training and promotion opportunities. ( See Pls. Supp. Response at ECF p. 7). However, she has not provided any specific evidence t o support this a llegation or he r allegation that she was denied a bonus. Mindful of Dunbar’s pro se status, the court reminds he r that, during the next round of dispositive briefing on these issues, she will have to proffer more than “bare . . . conclusory allegation[s]” to support her al legation that she suffered mate rially adverse consequences from the lowered performance evaluation. See Taylor v. Solis , 571 F.3d 1313, 1321 (D.C. Cir. 2009) (finding lowered performance ev aluation did not constitute a ma terially adverse employment action because plaintiff had not come forward with evidence tha t the evaluation was “attached to financial harms”).25 include “[w]ithdrawing an empl oyee’s supervisory duties” or a “ reassignment with significantly different responsibilities.” Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (citations omitted); see Pardo-Kronemann v. Donovan , 601 F.3d 599, 607 (D.C. Cir. 2010) (“Lateral

transfers—those entailin g no diminution in pay and benefits—qua lify as adverse employment actions if they result in mater ially adverse consequences affec ting the terms, conditions, or privileges of the plaintiff’s emp loyment.”) (internal citations and quotation marks omitted). Finally, the April 2012 and reloca tion that isolated her from o ther HR personnel may also constitute “objectiv ely tangible harm.” See Karmel v. City of New York , 200 F. Supp. 2d 361, 367 (S.D.N.Y. 2002) (allowing ret aliation claim to go forward w here plaintiff alleged, inter alia , that she was isolated from her supervisors and co-workers and t ransferred to a position with significantly less ch allenging duties). However, the court finds that Dunbar failed to establish that she suffered “objectively tangible harm” with respect to any remaining pre-termination re taliation claims. Therefore, to

the extent Dunbar asserts retali ation claims with regard to any other discrete pre-termination incidents, the court will the gr ant NHTSA’s motion for summary judgment.

4. Hostile Environment Claim The D.C. Circuit has “recognized a special type of retaliation claim based on a ‘hostile

work environment.’” Baird v. Gotbaum , 792 F.3d 166, 168 (D.C. Cir. 2015) (citation omitted). Such a claim may arise when sever al individual acts of retaliat ion that “may not be actionable on

their own . . . become actionable du e to their cumulative effec t.” Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (internal quotations and alternations omitted)).

These “constituent acts must be adequately linked such that they form a coherent hostile environment claim. For example , they might involve the same ty pe of employment actions,26 occur relatively frequently, a nd be perpetrated by the same man agers.” Baird , 792 F.3d at 168- 69 (citations and alterations omitted). Finally, the retaliato ry acts must be of such severity or pervasiveness as to alter the conditions of employment and create an abusive working environment. Severity and pervasiveness are determined by reference to all the circumstan ces including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an e mployee’s work performance.

Id. at 169 (citation, alterations, a nd internal quotation marks om itted). The court finds that summary judg ment is not appr opriate as to Dunbar’s hostile work

environment retaliation claim. T he court disagrees with NHTSA’ s assertion that Dunbar’s complaints amount to no more than “ the ordinary tribulations of the workplace.” ( See Defs. Br. p. 15). She alleges constant inter ference with and unfair scru tiny of her work performance, excessive ridicule, reassignment of her duties to other employe es, “trumped-up” conduct issues, lowered performance evaluations , along with at le ast one lost b onus, assignment to at least one failing project, lack of adequate assistance or resources to me et the demands of the project, imposition of “outlandish” work rel ated requirements and change s, workforce bullying, a climate of fear and intimidation, routin e humiliation, computer tamperi ng, relocation away from other HR employees, and more. ( See Third Am. Compl. ¶¶ 6, 26, 35, 39, 56-57, 58-62, 87, 97; Pls. Response at ECF p. 10 ¶ 24; Pls. Response at ECF p. 15-16; ECF No. 52, Pls. Supp. Resp. at ECF p. 5, 7). These allegations, if true, are sufficient to es tablish that Dunbar endured retaliation sufficiently severe and pervasive to constitute a retaliatory h ostile work environment.27 5. Termination Claim

i. Merit Systems Protection Board NHTSA argues that Dunbar cannot pursue her Title VII terminatio n claim because she is prosecuting that claim before the MSPB, but NHTSA provides no l egal authority in support of its position. Dunbar counters that she may proceed with her Title VII termination claim in this court because her appeal before the MSPB involved a “mixed case”—comb ined Title VII and CRSA claims—and the appeal remaine d unresolved for more than 120 day s. ( See Pls. Response at ECF p. 18 ¶ 10; Third Am. Compl. ¶ 104). 15 However, Dunbar’s argument suffers from the same deficiency as NHTSA’s; neither s ide has provide d the court with appropriate legal authority in support of their positions. Despite the lack of assistance fr om the parties, the court fin ds that Dunbar’s position is correct. As this Circuit has explained: When a complainant appeals to t he MSPB, either directly or afte r pursuing her claim with the agency EEO office, the matter is assigned to an Administrative Judge who takes evidence and eventually makes findings of fact and co nclusions of law. See 5 C.F.R. §§ 1201.41(b), 1201.111. . . . [I]f the MSPB fails t o render a judicially reviewable decision within 120 days from the filing of a mixed case appeal, the aggrieved party can pursue her cl aim in federal district court. See 5 U.S.C. § 7702(e)(1)(B).

Butler v. West , 164 F.3d 634, 638-39 (D.C. Cir. 1999). In other words, even though the MSPB does not lose jurisdiction after 120 days without a final decis ion, “the appropriate federal district

15 The contours of her CSRA claim s before the MSBP are unclear . In her case here, however, Dunbar appears to raise three CS RA-related claims: (1) a WPA wh istleblower retaliation claim; (2) a claim alleging violation of prohibited personnel practice s relating to favor ing relatives; and (3) a claim alleging retaliation f or exercising employee rights . ( See Third Am. Compl. ¶¶ 30, 111) (citing the WPA, 5 U.S.C. § 2302(b)(8) ); 5 U.S.C. § 2302(b)(7) (pr ohibiting making certain personnel actions on behalf of arelative); 5 U.S.C. § 2309 (b) (9)(A)(i) (prohibiting retaliation because an employee exercises her rights under the law)).28 court can take jurisdiction as well.” Id. at 642. Once the matter comes before the district court, it “cannot dismiss [the action] f or failure to exhaust administ rative remedies, [but there is] no reason why the district court ca nnot stay the case, or hold it in abeyance, for a reasonable period

of time.” Id. at 643. The facts here present a slight deviation from in the standard scenario. Dunbar actually filed her lawsuit prior to e xpiration of the 120-day window, bu t that window has since lapsed

without a final decision from th e MSPB. Accordingly, in the ab sence of legal authority to the contrary, the court finds that D unbar’s Title VII termination c laim is properly before this court. At this juncture, however, the cou rt is unable to make an infor med decision about

whether the matter should be sta yed pending a final decision fr om the MSPB, and will therefore direct the parties to file shor t briefs on this issue, setting forth the precise nature of all claims currently before the MSPB, the status of the MSPB proceedings, as well as the advantages and disadvantages of staying this lawsuit pending resolution of tho se proceedings.

ii. Legitimate Non-Discriminator y Reason for the Termination Finally, NHTSA argues that, eve n if Dunbar’s termination claim is properly before this court, the agency is entitled to summary judgment because it ha d legitimate non-discriminatory reasons for terminating Dunbar . “Evaluation of Title VII retal iation claims follows the same burden-shifting template as disc rimination claims. First, a pl aintiff must estab lish a prima facie case of retaliation; if she meet s that burden, the employer mus t articulate a legitimate nonretaliatory reason for its action.” Holcomb v. Powell , 433 F.3d 889, 901 (D.C. Cir. 2006) (citation omitted). If the empl oyer comes forward with a non-r etaliatory reason for the challenged conduct29 the burden-shifting framework falls away, and the “central ques tion” becomes whether “the employee produced sufficient evidence for a reason able jury to find that the employer’s asserted nondiscriminatory or non-retaliato ry reason was not the actual reason and that the employer intentionally discrimin ated or retaliated against the employee.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). A key component of retaliation cases, in com mon with discrimination claims, is t hus the battle over pretext.

Allen v. Johnson , 795 F.3d 34, 39 (D.C. Cir. 2015) (some citations omitted). The court is not persuaded that summary judgment is appropriate on Dunbar’s termination claim because the sequence of events could lead a r easonable fact-finder to determine NHTSA acted with retaliatory motive when it terminate d her. Peoples contends she was dissatisfied with Dunbar’s pe rformance as early as 2010, bu t there is no documentary

evidence of such discontent unt il the April 2012 transfer and r elocation. Two months later, Dunbar filed a second EEO charge , followed three months later b y an “Achieved Results” performance review that, for the first time, included criticism s about Dunbar’s performance. It is unclear why Dunbar’s performance reviews up until 2012 did not mention any performance issues, and it is also uncl ear why Dunbar received a bonus, as well as a “5 out of 5” recommendation for participati on in an educational program in 2 010, given Peoples’ alleged

concerns. Finally, a reasonable fact-finde r might determine that the reas ons for the termination were pretextual, given the appare nt absence of any negative per formance issues between the time

Dunbar filed her lawsuit and the date Peoples recommended her t ermination. While NHTSA submitted a declaration by Peoples explaining the reasons for t he termination, the agency does not direct the court to any c ontemporaneous evidence. ( See Peoples Supp. Decl.). Although such evidence is not required in order to grant summary judgmen t, the gravity of the alleged performance issues suggests tha t such evidence should have exis ted. Instead, the record30 indicates that Dunbar engaged in multiple instances of protecte d activity, and NHTSA appears to have had a spotty and inconsiste nt record of documenting Dunbar ’s alleged performance problems for as many as four y ears. Accordingly, based on the current record, summary judgment is not appropriate on Dunba r’s retaliatory termination claim.

iii. Whistleblower Protection Act NHTSA argues that this court lacks jurisdiction to hear Dunbar’ s WPA claim. The WPA protects most federal employees from reprisals by agencies for “whistleblowing activity, such as disclosing illegal conduct, gross mismanagement, gross wasting of funds, or actions presenting substantial dangers to health and safety.” Stella v. Mineta , 284 F.3d 135, 142 (D.C. Cir. 2002) (citing 5 U.S.C. § 2302(b)(8)). An employee asserting a WPA vi olation “must first bring her claim to the [Office of Special Counsel], w hich investigates th e complaint. . . . . If the OSC finds no agency wrongdoing, then the employee herself may bring an action before the MSPB.”

Stella , 284 F.3d at142 (citing 5 U.S.C. § 1214) (some citations omitt ed).

A claimant who wishes to chall enge an unfavorable MSPB ruling m ay do so in federal district court, if she asserts a mixed WPA/Title VII claim. Stella , 284 F.3d at 143 (citing see 5 U.S.C. § 7703(b)(2), (c); Barnes v. Small, 840 F.2d 972, 979 (D.C. Cir. 1988)). Unlike some other “mixed-case” claims, howe ver, if the MSPB has not rendere d a decision within 120 days, the district court does not yet have jurisdiction over the WPA claim. Abou-Hussein v. Mabus , 953 F. Supp. 2d 251, 262 (D.D.C. 2013) ( comparing 5 U.S.C. § 1221 (providing that “[a] final

order or decision shall be rendere d by the [MSPB on WPA claims] as soon as practicable”), with § 7702(a)(1) (requiring the MSPB t o take action within 120 days of filing appeal a gainst certain other prohibited pers onnel practices)).31 Dunbar did not respond to NHTSA’s a rgument that the court lacks jurisdiction over her WPA claim. Thus, it is unclear whether she has overcome any of her procedural hurdles. Although Dunbar asserts she complained to OIG about improper ac tivity regarding her computer, it is unclear whether t hat complaint was sufficient, given the requirement that she file a complaint with the OSC. Finally, even if Dunbar did comply w ith the necessary procedural hurdles, she has not apprised the court as to whether there was any final decision by the MSPB on her WPA claim. Accordingly, th is court lacks jurisdiction t o hear Dunbar’s WPA claim.

IV. CONCLUSION

For the reasons set forth above , the court will grant NHTSA’s m otion for summary judgment on Dunbar’s WPA claim and a ll pre-termination retaliat ion claims, except for those associated with her: (1) August 2011 “Achieved Results/Meets Ex pectations” performance evaluation; (2) August 2011 “d ilution” of duties; and (3) April 2012 transfer of duties and relocation away from other HR personnel. Additionally, court w ill dismiss Dunbar’s Section 1981 claim and, to the extent Dunbar asserts a Title VII dispar ate treatment claim, the court will

dismiss that claim. 16

16 The court notes that, for the most part, Dunbar does not ci te to the record in support of her factual assertions and, when she does, the attached exhibits ap pear to have no correlation to her asserted facts. Dunbar is hereby r eminded that the court has n o obligation to pa rse through the record when evaluating a dispositive motion. See Fed. R. Civ. P. 56(c)(1)( a) (requiring that parties “cit[e] to particular part s of materials in the record” in motions for summary judgment or oppositions thereto); Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner , 101 F.3d 145, 151 (D.C. Cir. 1996) (“[A] distri ct court should not be ob liged to sift through hundreds of pages of depositions, affidavits, and other interrogatories in order to make its own analysis and determination of what may, or ma y not be a genuine issue of mat erial fact.”) (citation and internal quotations omitted). Additionally, Dunbar’s response to NHTSA’s statement of undisputed facts (“SOF”) is woefully inadequate. (Pls. R esponse at ECF pp. 3-4). While NH TSA’s SOF contained twentyfour paragraphs, Dunbar’s “respons es” contained only four numbe red paragraphs, along with three unnumbered paragraphs. It is therefore impossible for th e court to determine which32 Date: March 31, 2017 

## Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

“responses” corresponded to which numbered SOF. Additionally, her “responses” were not “concise statement[s] of genuine issues setting forth all mater ial facts,” as required by Local Civil Rule 7(h), and contained numerous arguments, rather than facts. Similarly Dunbar’s own stateme nt of facts generally lack ed citations to the record and contained arguments—rather than facts. ( See Pls. Response at ECF pp. 5-12). Dunbar is hereby warned that her failure to direct the c ourt to the exhibits supporting her factual allegations, as well as the specific information upon w hich she relies within those exhibits, may result in the court making a determination that s he has failed to provide evidentiary support for those allegations. See Jackson, 101 F.3d 145 (upholding District Court’s order striking plaintiff’s stat ement of facts where, among other things, the plain tiff’s statement did not contain citations to the recor d and Plaintiff failed to dispute movant’s statement of undisputed facts)

. Finally, Dunbar is also warned t hat her failure to properly r espond to each allegation in NHTSA’s SOF, or her failure to re spond with citations to the re cord, may result in the court treating those allega tions as conceded. See id. ; Statement of Facts Response Example on the court’s webpage at: http://www .dcd.uscourts.gov/judge-tanya-s-c hutkans-court-webpage. Going forward, to the exten t Dunbar wishes to rely on do cuments that she submitted and the court accepted for filing on the docket, she may do so by citin g to the ECF Document number, along with the appropriate ECF page number(s). Such a solution resolves any potential cost issues associated with resub mitting her current exhibits.