UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 16-1713 (TJK)

LENA BRANCH,

Plaintiff,

v.

RICHARD V. SPENCER.,

Defendant.

MEMORANDUM OPINION

Lena Branch is a former logistics management specialist for the United States Navy. She 

alleges that beginning in 2014, her supervisors began mistreating her. The next year, she

suffered a stroke, her relationship with her supervisors deteriorated further, and she was 

suspended for two days. Now Branch has sued the Navy, asserting claims of disability 

discrimination and retaliation. She claims that her suspension was motivated by her stroke and 

her complaints about being mistreated.

Defendant has moved for summary judgment, arguing that Branch’s claims are either

untimely or unsupported by the record, because no reasonable juror could infer that her

supervisors’ motives were either discriminatory or retaliatory. The Court agrees, and summary 

judgment will be entered for Defendant. The Court will also deny Branch’s motion to amend her 

complaint, filed ten months after summary judgment briefing was complete, because permitting 

Branch to add new claims at such a late stage would prejudice Defendant and unduly expand the 

scope of the case.1

 1 In deciding these motions, the Court considered all relevant filings, including but not limited to: 

ECF No. 3, Plaintiff’s Amended Complaint (“Am. Compl.”); ECF No. 6, Defendant’s Answer; 

ECF No. 12, Motion to Dismiss Complaint Allegation Paragraphs Without Prejudice; ECF No. 
2

Factual and Procedural Background

A. Branch’s Alleged Mistreatment

The following facts are undisputed unless otherwise noted. Branch began working for 

the Navy in 2010. Def.’s SOF ¶ 1; Pl.’s SOF ¶¶ 1–4. As of 2014, she worked as a logistics 

management specialist at pay grade GS-11. Def.’s SOF ¶ 2; Pl.’s SOF ¶ 4. In March 2014, 

Branch clashed with her supervisor, Lieutenant Commander Jay Gaul, when she denied him 

access to a space containing classified information because she thought he lacked the security 

clearance to enter. Def.’s SOF ¶¶ 3, 10–25; Pl.’s SOF ¶¶ 11–15, 18. Branch found Gaul’s

behavior threatening and discriminatory based on her gender and she reported the incident to

Daniel Gardner, who supervised them both. Def.’s SOF ¶¶ 3, 6, 31–33; Pl.’s SOF ¶¶ 5, 8, 19.

Branch also asked Gardner for the contact information for the Equal Employment 

Opportunity office. See Def.’s SOF ¶¶ 27–28, 37–39; Pl.’s SOF ¶¶ 19–21. Branch asserts that 

she contacted the EEO office in March 2014. Pl.’s SOF ¶ 21; see also Am. Compl. ¶ 18 

(“Plaintiff subsequently . . . sought an EEO counselor to file an EEO discrimination complaint 

against Lt. Gaul in March 2014.”); ECF No. 20-1 at 5 (“I contacted the EEO office in March 

2014 . . . and filed a complaint.”). Defendant appears to dispute that Branch did so. See ECF 

No. 23 at 6 (describing Plaintiff’s statement that she “engaged in a protected activity by 

complaining of discrimination to the EEO in March 2014” as a “characterization of the intent of 

the Navy’s SOF and . . . not a fact”). Branch also filed a complaint about the incident with the 

Navy’s inspector general. Def.’s SOF ¶ 102; ECF No. 20-1 at 3.

 

16, Stipulation of Dismissal; ECF No. 20 (“Def.’s Mot.”); ECF No. 20, Defendant’s Statement of 

Material Facts as to Which There Exists No Genuine Issue (“Def.’s SOF”); ECF No. 22 (“Pl.’s 

Opp’n”); ECF No. 22, Plaintiff’s Statement of Material Facts (“Pl.’s SOF”); ECF No. 23, 

Defendant’s Reply; ECF No. 24, Plaintiff’s Motion to Stay and Motion for Leave to File a 

Second Amended Complaint (“Pl.’s Mot.”); ECF No. 25, Defendant’s Memorandum in 

Opposition; and ECF No. 26, Plaintiff’s Reply.
3

In April 2014, Branch was promoted to supervisory logistics management specialist at

pay grade GS-12. Def.’s SOF ¶ 47; Pl.’s SOF ¶ 24. With that promotion, Branch inherited 

responsibility for a “mobility section,” Def.’s SOF ¶ 53, meaning she coordinated the provision 

of equipment to deploying servicemembers, Def.’s Mot. at 3. The mobility section was in a 

different building, so in October 2014, Sherry Mellon, Branch’s supervisor who had replaced 

Gaul, asked her to work out of a building that was closer to her new supervisees. Def.’s SOF 

¶¶ 60–62. Branch delayed doing so until she was issued a letter of caution for her failure to 

follow Mellon’s instruction. Id. ¶¶ 66–67. And when she did move, it did not go smoothly: 

Mellon and others found Branch hard to get in touch with, and Branch felt that she could not 

manage her workload while splitting time between two buildings. Id. ¶¶ 62–63, 68–70; Pl.’s 

SOF ¶ 32. According to Branch, in May 2015 she complained to Chief Master Sergeant Kevin 

Kloeppel, a senior management official, that the move was discriminatory and contributed to a 

hostile work environment for her. Pl.’s SOF ¶ 32; ECF No. 22-6 ¶¶ 2–3. She also says that, 

shortly after she met with Kloeppel, she was “immediately questioned [and] summoned by her 

supervisor Mellon to have a meeting with . . . Gardner.” Pl.’s SOF ¶ 32. Following this 

meeting, she received an email from Gardner on May 13, 2015, that she describes as 

reprimanding her for speaking with Kloeppel. Id. Defendant disputes most of the facts 

surrounding Branch’s meeting with Kloeppel, arguing that nothing in the record suggests that

Branch complained to him of discrimination or retaliation, or that she was reprimanded. ECF 

No. 23 at 8.

B. Branch’s Stroke

On June 22, 2015, Branch suffered a stroke and was hospitalized. Pl.’s SOF ¶ 33. She 

was released from the hospital two days later but remained out of work on doctor’s orders for 

several months. Id. ¶¶ 36–37, 40. Shortly after her stroke, Branch’s sister called Mellon to 
4

inform her that Branch was in the hospital. Def.’s SOF ¶¶ 81–83; Pl.’s SOF ¶ 35. In July, 

Branch told Mellon herself that she would be out sick for some time. Pl.’s SOF ¶¶ 38–39.

C. Branch’s October 2015 Suspension

On June 10, 2015, less than two weeks before Branch’s stroke, Mellon began the process 

to discipline her for various performance problems. Def.’s SOF ¶ 92.2 Branch does not dispute 

this timing. See Pl.’s SOF ¶¶ 42–44, 50–54. Branch did not find out about the discipline, 

however, until a few months later. Def.’s SOF ¶ 96; Pl.’s SOF ¶ 42. More precisely, in late July, 

Branch’s supervisors mailed her a Notice of Proposed 14-Calendar Day Suspension, which she 

received in August. Def.’s SOF ¶¶ 94–96; Pl.’s SOF ¶ 42. The notice described the reasons for 

Branch’s proposed discipline as delaying in carrying out an assignment, failure to follow 

instructions, and disrespectful conduct. Def.’s SOF ¶ 94.

The charge for delay in carrying out an assignment was based on two incidents further

described in the notice. First, Branch allegedly failed to “develop a draft of the Installation 

Deployment Plan” by March 23, 2015. ECF No. 20-1 at 113. She received several extensions,

until April 7, May 19, May 26, June 1, and June 8, but purportedly failed to complete a draft by 

any of those dates. Id. at 113–14. Second, Branch was tasked with “accomplish[ing] a critical 

 2 Branch objects to Defendant’s inclusion of Exhibit D to its summary judgment motion, which it 

cites in support of this fact. Pl.’s Opp’n at 1. Exhibit D is an email chain spanning June 10 to 

June 17, 2015, between Mellon and an employee working in the Navy’s Labor and Employee 

Relations department about bases for disciplining Branch. See ECF No. 20-4. Branch’s 

objection to this exhibit in her opposition is based on it not having been “produced during 

discovery or provided during the EEO investigation.” See Pl.’s Opp’n at 1. But Branch does not 

suggest that Defendant should have produced Exhibit D during discovery pursuant to one of her 

requests. Nor has she moved under Federal Rule of Civil Procedure 56(d) to take additional 

discovery to allow her to rebut or discredit this email chain. Her only option in summary 

judgment briefing, then, is to present contrary evidence, which she has not done. Finally, Branch 

“object[ed] to the authentication of the emails,” Pl.’s Opp’n at 1, which Defendant addressed by 

including with its reply a declaration by Holli Dunn attesting to their authenticity and their being 

“true and accurate copies of the email communications so identified in Exhibit D,” ECF No. 23-1 

¶ 3.
5

analysis project” for a superior by 10:00 a.m. on March 16, 2015, but she allegedly did not send 

the analysis until 12:06 p.m. Id. at 114.

The charge for failure to follow instructions was based on a May 13, 2015 meeting held 

with Branch “to discuss the proper use of chain of command, reporting procedures, reporting to 

work, and communication issues.” Id. But a few weeks later, Branch allegedly did not appear 

for a meeting with a co-worker, Holli Dunn. Id. When Dunn went looking for Branch, she 

found a sign on Branch’s door that did not help her find or contact Branch, which violated the 

procedures discussed with Branch at the May 13 meeting. Id. And Dunn had no way to leave a 

voice mail for Branch, because Branch had not set up a voice mailbox despite having been told

to do so. Id.

The charge for disrespectful conduct arose from an incident between Branch and Dunn

on June 1, 2015. Id. In describing the basis for this charge, Dunn wrote:

On 1 June 2015, while in your office you had informed me that you could not meet 

with me on 2 June 2015 due to a scheduled brief with the Vice Commander. I 

informed you that I was not made aware of that brief, to which you stated that you 

did not need to tell me about it. I informed you that that was not correct and as the 

Deputy Site Director, I am responsible for the operations of the Organization and 

reminded you of your chain of command. I informed you that you needed to brief 

Ms. Mellon that afternoon on the information that you were going to present to the 

Installation Commander. You informed me that you didn’t need to do that. I was 

going to say, “Lena, we need to go over the material so we know what’s going to 

be briefed and make sure you are prepared,” however, all I was able to say was

“Lena” and you immediately cut me off and said, “Holli” in a very disrespectful 

manner while taking an aggressive stance.

Id. at 114–15.

After receiving the notice in the mail, Branch contacted the EEO office on August 17, 

2015, to file a complaint about the proposed suspension. Def.’s SOF ¶ 41; Pl.’s SOF ¶ 45. In 

late August, Gardner began considering whether to issue the proposed discipline, and in 
6

September he opted to suspend her for two days. Def.’s SOF ¶¶ 97–98; Pl.’s SOF ¶¶ 50–53. 

Branch served the suspension on October 5 and 6, 2015. Def.’s SOF ¶ 98; Pl.’s SOF ¶ 53. 

In December 2015, Branch completed a formal complaint about the suspension. Def.’s 

SOF ¶ 43. In it, she alleged disability discrimination based on “a serious neurological disability 

that substantially impair[ed] [her] mental and physical activities,” and retaliation based on (1) her 

having “filed an [inspector general] and EEO complaint for harassment against a commander” in 

March 2014 and (2) “an [inspector general] and [Department of Defense] Whistle blower 

Complaint” in March 2015. ECF No. 20-1 at 3. She alleged acts of discrimination and 

retaliation against her, including the March 2014 incident with Gaul, Gardner’s assignment of 

responsibility for the mobility section to her, and her October 2015 suspension.

In August 2016, Mellon suspended Branch for ten days. See ECF No. 24-1 at 3. The 

basis for this suspension is not in the record. Id. In April 2017, Mellon proposed terminating 

Branch’s employment. Id. In August 2017, after Branch filed a formal EEO complaint about 

these actions, the EEO office began investigating them. Id. at 1.

D. This Action

Branch filed this suit in August 2016 and amended her complaint shortly afterward. ECF 

Nos. 1, 3. In her amended complaint, she brought four claims: (1) a disparate-treatment claim in 

violation of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq.; (2) a 

retaliation claim in violation of the Rehabilitation Act; (3) a hostile work environment claim in 

violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; 

and (4) a retaliation claim in violation of Title VII. Am. Compl. ¶¶ 37–48. Branch later 

voluntarily dismissed two aspects of her complaint: the allegations about her suspension for ten 

days in August 2016, see ECF Nos. 11, 13, and her hostile work environment claim, see ECF 

No. 16.
7

Defendant moved to dismiss part of Branch’s complaint and for summary judgment on 

all claims. See Def.’s Mot. Defendant argues that Branch failed to timely exhaust her claims 

arising from any conduct before July 2015 and that no reasonable jury could find that any 

conduct afterward stemmed from a discriminatory or retaliatory motive. Id. at 14, 18, 20. 

Branch conceded the first argument in her opposition, Pl.’s Opp’n at 11, but disputes the second.

Nearly a year after briefing was complete, Branch moved to amend her complaint a 

second time. See Pl.’s Mot. She asserted that the EEO office had finished investigating her 

August 2016 suspension and her April 2017 termination. Id. at 2. She therefore requested leave 

to add claims arising from these incidents to her complaint. Id. Defendant opposed the motion 

on the grounds that Branch unduly delayed in bringing the motion and that the amendment 

would prejudice Defendant by allowing her to cure various defects identified in Defendant’s 

summary judgment motion. ECF No. 25 at 2–5.

Legal Standard

When a party moves for summary judgment, the Court must grant the motion “if the 

movant shows that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In considering whether to grant summary 

judgment, the Court “view[s] the evidence in the light most favorable to the non-movants and 

draw[s] all reasonable inferences accordingly.” Lopez v. Council on Am.-Islamic Relations 

Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). Even with this favorable

interpretation of the evidence, though, the non-movant must create more than “some alleged 

factual dispute.” Id. If the movant carries its burden to show that there is no genuine issue of 

material fact, then “the non-movant must identify specific facts in the record to demonstrate the 

existence of a genuine issue.” Montgomery v. Risen, 875 F.3d 709, 713 (D.C. Cir. 2017).
8

When a plaintiff moves for leave to amend her complaint after her time to do so as of 

right has expired, she may do so “only with the opposing party’s written consent or the court’s 

leave.” Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.” 

Id. Whether “to grant or deny leave to amend, however, is vested in the sound discretion of the 

trial court.” Doe v. McMillan, 566 F.2d 713, 720 (D.C. Cir. 1977). Generally, courts deny leave 

to amend only for “undue delay, bad faith or dilatory motive on the part of the movant, repeated 

failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing 

party by virtue of allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 

371 U.S. 178, 182 (1962).

Analysis

A. Defendant’s Motion for Summary Judgment

As described above, Branch’s complaint now includes one disability-discrimination claim 

under the Rehabilitation Act and two retaliation claims—one under the Rehabilitation Act and 

one under Title VII. The Court will address Defendant’s motion as to her discrimination claim

first and then address the two retaliation claims together. See Mogenhan v. Napolitano, 613 F.3d 

1162, 1165–66 (D.C. Cir. 2010) (same legal standards apply to retaliation claims under the 

Rehabilitation Act and Title VII).

1. Branch’s Discrimination Claim

The Rehabilitation Act prohibits employers from discriminating against an employee 

because of the employee’s disability. See 42 U.S.C. § 12112(a); Woodruff v. Peters, 482 F.3d 

521, 526–27 (D.C. Cir. 2007). The “two essential elements” of a disability-discrimination claim 

“are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff’s . . . 

disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (emphasis added). 

When a plaintiff provides only “circumstantial evidence” of discriminatory motive by her 
9

employer, courts employ “the burden shifting framework of” McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 802–08 (1973). Solomon v. Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014); 

Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). Under this burdenshifting framework, whenever an employer comes forth with “a legitimate, nondiscriminatory 

reason” for its treatment of the plaintiff, courts must inquire “whether the plaintiff [has] 

produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated 

against the plaintiff on a prohibited basis.” Adeyemi, 525 F.3d at 1226 (emphasis added). 

Branch asserts that she was suspended for two days in October 2015 because of her 

disability,3 and Defendant has offered the various legitimate, nondiscriminatory reasons for the 

suspension described above. But Branch has not responded by producing evidence to show that 

disability discrimination caused her suspension, even assuming it was an adverse employment 

action and that she was in fact disabled. She has no direct evidence of disability discrimination 

and appears to reply solely on the timing of events. But the problem for Branch is that her 

suspension was in the works before she suffered her stroke. Mellon first consulted with the 

human resources department about proposing discipline for Branch on June 10, 2015. Def.’s 

SOF ¶ 92. Branch suffered her stroke twelve days later. Pl.’s SOF ¶ 33. Although Branch did 

not find out about the possibility that she would be suspended until August, Pl.’s SOF ¶ 42, she 

does not dispute that Mellon and other officials had begun planning it before her stroke. And 

Defendant’s explanations for the proposed discipline were consistent both before Branch

 3 Branch complains about other actions taken by Defendant, but the remainder occurred before 

her stroke. As a result, she does not—and cannot—argue that they were motivated by 

discrimination based on her disability.
10

suffered her disability and afterward. Compare ECF No. 22-10 (June 10, 2015 email suggesting 

discipline) with ECF No. 20-1 at 113–15 (notice of proposed discipline).

Even drawing all reasonable inferences in Branch’s favor, on this record that ends the 

matter. When an employer contemplates an adverse employment action against an employee

before the employee suffers a disability, an inference that disability discrimination caused the 

action does not arise if the action happens to be implemented after the employee becomes 

disabled. See Clark County School District v. Breeden, 532 U.S. 268, 272 (2001). In Breeden,

the Supreme Court emphasized that “previously planned” employment actions are not suspect 

when an employee develops a protected characteristic later, and employers “proceeding along 

lines previously contemplated, though not yet definitively determined, is no evidence whatever 

of causality.” Id. Under that theory, courts in this district “have routinely rejected any 

‘inference of causation’ when ‘the adverse action being challenged is the result of a 

nondiscriminatory process that began before the protected conduct.’” Salak v. Pruitt, 277 

F. Supp. 3d 11, 27–28 (D.D.C. 2017) (collecting cases); see also Furey v. Mnuchin, 334 

F. Supp. 3d 148, 167 (D.D.C. 2018); Saunders v. McMahon, 300 F. Supp. 3d 211, 227 (D.D.C. 

2018); Craig v. Mnuchin, 278 F. Supp. 3d 42, 64–65 (D.D.C. 2017). This Court will follow suit. 

The undisputed facts show that Mellon and Dunn began the process of disciplining Branch 

before she became disabled. Her later suspension thus does not support an inference of 

causation, and Branch offers no other evidence that disability discrimination caused her 

suspension. For these reasons, Defendant is entitled to judgment as a matter of law on Branch’s 

disability-discrimination claim.

2. Branch’s Retaliation Claims

Both the Rehabilitation Act and Title VII prohibit employers from retaliating against 

employees who have opposed discrimination or “made a charge, testified, assisted, or 
11

participated in any manner in an investigation, proceeding, or hearing under” one of the statutes. 

42 U.S.C. §§ 12203(a), 2000e-3(a). Because the provisions are so similar, courts use the same 

standards to analyze retaliation claims under both statutes. Mogenhan, 613 F.3d at 1166. To 

make out a retaliation claim under either statute, “the plaintiff generally must establish that he or 

she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to 

bring a discrimination claim.” Baloch, 550 F.3d at 1198.

4

In identifying the underlying protected activity that motivated Defendant’s retaliation 

against her, Branch focuses only on her May 2015 complaint to Kloeppel.

5 Defendant argues 

that her contact with Kloeppel cannot have been protected activity, because it “was a general 

complaint, and not one protected by Title VII or the Rehabilitation Act.” Def.’s Reply at 15–16 

(citing Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006)). Defendant cites to

Branch’s “declaration during the EEO investigation that she discussed with CMSgt Kloeppel the 

 4 Defendant argues that Branch failed to properly exhaust her administrative remedies for any of 

the allegedly materially adverse actions, Def.’s Mot at 14–16, and argues that the Court should 

dismiss Branch’s claims on that basis under Federal Rule of Civil Procedure 12(b)(1). See Def.’s 

Mot. at 11 (“Unlike Title VII claims, exhaustion of administrative remedies is a jurisdictional 

requirement for Rehabilitation Act claims.”). The Court declines to do so. First, Defendant is 

only half-correct about exhaustion being jurisdictional under the Rehabilitation Act. A plaintiff 

must have filed an administrative complaint at some point about a particular incident, or else a 

court lacks jurisdiction over any Rehabilitation Act claim based on that incident. See Spinelli v. 

Goss, 446 F.3d 159, 162 (D.C. Cir. 2006). But the 45-day requirement, which comes from a 

regulation and not from the Rehabilitation Act, is not jurisdictional. Doak v. Johnson, 798 F.3d 

1096, 1104 (D.C. Cir. 2015). Whether Branch complied with the 45-day requirement is thus 

non-jurisdictional. Second, as the Court explains below, Branch’s claims fail, even if they had 

been properly exhausted.

5 In her briefing, Branch never argues that Mellon, Gardner, or Dunn knew of her purported 

March 2014 contact with the EEO office about her run-in with Gaul. See Pl.’s Opp’n at 16–20; 

see also Pl.’s SOF ¶¶ 47–49 (not disputing Defendant’s assertions that Mellon, Gardner, and 

Dunn first learned of her EEO activity in August 2015). Because she limits her argument to her 

May 2015 contact with Kloeppel, the Court does not consider a claim based on any other 

purported protected activity.
12

fact that she believed she was doing two jobs.” Id. at 15. For her part, Branch declares that she 

discussed “discrimination” and her “hostile work environment” with Kloeppel, although she 

never specifies the type of discrimination she alleged and, as she describes it, the meeting

focused on her supervisors’ request that she move buildings. ECF No. 22-6 ¶ 2.

On this record, the Court agrees with Defendant as to Branch’s claim under the 

Rehabilitation Act; the record does not support Branch’s claim that she engaged in protected 

activity under that statute when she reached out to Kloeppel. Protected activity under the 

Rehabilitation Act, of course, must involve reporting discrimination based on a disability, and in 

May 2015, Branch had not yet suffered the stroke that allegedly caused her disability. So her 

claim for retaliation under the Rehabilitation Act fails for this reason alone.

Whether Branch engaged in protected activity under Title VII is a closer question, given 

that Kloeppel was not an EEO official and the record does not reflect the nature of any

discrimination she asserts she alleged. The Court assumes, without deciding, that she did. But 

even so, her Title VII retaliation claim fails because a reasonable jury could not conclude that

retaliatory animus for protected activity under Title VII caused her suspension later that year.

The McDonnell Douglas burden-shifting framework applies to retaliation claims in the 

same way that it does to discrimination claims. Woodruff, 482 F.3d at 528. As discussed above, 

that means that once a defendant has “articulate[d] some legitimate, non-retaliatory reason for

the adverse action,” “the plaintiff must ‘prove by a preponderance of the evidence that the 

legitimate reasons offered by the defendant were not its true reasons, but were a pretext for 

[retaliation].’” Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 

(2000)) (alteration in original). “Although intermediate evidentiary burdens shift back and forth 

under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant 
13

intentionally [retaliated] against the plaintiff remains at all times with the plaintiff.’” Reeves, 

530 U.S. at 143 (first alteration in original) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 

U.S. 248, 253 (1981)).

Branch argues that Defendant retaliated against her by suspending her in October 2015. 

Defendant’s proffered legitimate, non-retaliatory reasons for the suspension are set forth in the 

notice of her proposed discipline: her alleged (1) delay in carrying out an assignment, based on 

her failure in March 2015 to develop an Installation Deployment Plan and complete a “critical 

analysis project” on deadline; (2) failure to follow instructions, based on her unexcused absence 

from a meeting and Dunn’s inability to find her in May 2015; and (3) disrespectful conduct, 

based on the incident in June 2015 when she cut off Dunn “in a disrespectful manner while 

taking an aggressive stance.” ECF No. 20-1 at 113–15. Branch points to various parts of the 

record that, she argues, show these reasons were pretextual and that her suspension was 

retaliatory based on protected activity under Title VII. But none of them, separately or together,

create a triable issue on this point.

First, she argues that Mellon and Gardner were unhappy that she had complained to 

Kloeppel about her working conditions. As proof, she asserts that later that month, she was 

reprimanded about it by Gardner in an email. Pl.’s Opp’n at 15. But the email says no such 

thing. The email merely memorializes an in-person discussion between Gardner, Mellon, and 

Branch about the “proper use of the chain of command” and the “proper reporting procedures,” 

as well as other issues (such as reporting to work and communication with her supervisors) that 

the record reflects were longstanding points of friction between Branch and her supervisors. See 

ECF No. 22-10 (capitalization altered). On its face, the email does not mention Branch’s 

meeting with Kloeppel or reprimand her in any way. And even assuming that it was motivated, 
14

at least in part, by her contact with Kloppel, Branch does not argue that the email was 

unwarranted because her meeting with Kloeppel was in fact the proper way for her to lodge 

complaints against her supervisors. Finally, it is farfetched to infer that Mellon and Gardner 

would have even understood Branch to have engaged in protected activity under Title VII by 

meeting with Kloeppel. He was, after all, not an EEO official, and Branch described their

meeting as focusing on her complaint that her supervisors had required her to move buildings. 

Ultimately, there is no evidence in the record—other than her invocation of the word 

“discrimination” in a declaration filed years later in this case—that she described discrimination 

cognizable under Title VII to Kloeppel, or that her supervisors would have understood that 

meeting to be protected activity under Title VII. Especially on a record where Branch does not 

contest any of the factual bases for her suspension, as discussed further below, this email hardly 

creates an inference of retaliatory animus under Title VII linked to that suspension, even viewed 

in the most favorable light to Branch. See Adeyemi, 525 F.3d at 1226.

Second, Branch argues that her suspension for calling Dunn by her first name was 

retaliatory because other employees—who were not disciplined—did so as well. Id. at 18. But 

this argument ignores key details in the notice Branch received that make clear that the conduct 

for which she was suspended was broader than that: Branch failed to tell Dunn important 

information, then, during a discussion about the matter, cut her off disrespectfully and took an 

“aggressive stance.” ECF No. 20-1 at 115. Branch does not dispute those facts; all she does is 

posit that using Dunn’s first name by itself was not a discipline-worthy offense. Maybe so, but 

that was not the core of the offense charged. And nowhere does Branch try to rebut or negate

any of the other facts that supported her suspension. She does not assert, for example, that she 
15

had turned in her assignments on time, or she had followed the instructions to make sure her coworkers could find her.

6

Third, Branch argues that various procedural irregularities suggest that her suspension 

was retaliation for her meeting with Kloeppel. She asserts that Dunn’s assistance helping Mellon 

draft the proposed discipline was suspicious, because Dunn was not her supervisor. Pl.’s Opp’n 

at 17–18. She also claims that Gardner, by consulting Mellon before approving her suspension, 

became tainted by Mellon’s retaliatory motive. Id. at 19–20. But these arguments fall flat. 

Although an employer deviating from its normal process for personnel actions may be probative 

of improper motive, see Lane v. Vasquez, 961 F. Supp. 2d 55, 67 (D.D.C. 2013), Branch points 

to no custom or policy that Mellon, Dunn, and Gardner’s consultation violated. The record 

supports an unremarkable reason for Dunn’s involvement: two of the charges were based on 

incidents involving only Branch and Dunn. Similarly, it makes sense that a higher-level 

supervisor (Gardner) consulted with an employee’s more immediate supervisor (Mellon) before 

issuing discipline where the latter was more familiar with the employee’s alleged misconduct.

For all these reasons, the Court finds that Branch cannot carry her “ultimate burden of 

persuading the trier of fact that the defendant intentionally [retaliated] against” her because she 

 6 Branch does point to her satisfactory performance ratings and her receipt of small cash awards 

in April 2015 and December 2015, which she says undercut the notion that her performance 

needed any correction through discipline. Pl.’s Opp’n at 17; ECF No. 22-3 at 2, 4. This 

argument carries little weight. Her ratings and awards may well speak to the broader picture of 

her job performance, but they say little about the specific incidents for which her supervisors 

concluded discipline was warranted. See Waterhouse v. District of Columbia, 298 F.3d 989, 995 

(D.C. Cir. 2002) (finding that a similar argument “offered no grounds for a rational juror to 

conclude that the reason [the plaintiff] was fired was racial discrimination rather than poor 

performance”). 
16

engaged in protected activity. Burdine, 450 U.S. at 253. Defendant is therefore entitled to 

summary judgment on her retaliation claims as well.

B. Plaintiff’s Motion to Amend

Ten months after the parties finished briefing Defendant’s summary judgment motion, 

Branch moved to amend her complaint to include her August 2016 suspension and her April 

2017 termination. See Pl.’s Mot; ECF No. 26-1. Although the April 2017 termination happened 

after Branch filed this lawsuit, she did not move to add that claim under Federal Rule of Civil 

Procedure 15(d), which permits plaintiffs to supplement their pleadings with “any transaction, 

occurrence, or event that happened after the date of the pleading to be supplemented.” Rather, 

she moved to add both new claims under Rule 15(a)(2), which allows the Court to permit 

amendment “when justice so requires.” And because Rule 15(d) allows a plaintiff to supplement 

its pleadings only “[o]n motion and reasonable notice,” the Court will proceed under Rule 

15(a)(2) only.

Generally, Rule 15(a)(2) should “be construed liberally” to permit a plaintiff to amend 

her complaint, unless there is a good reason to deny her that leave. Belizan v. Hershon, 434 F.3d 

579, 582 (D.C. Cir. 2006). Good reasons include “undue delay, bad faith or dilatory motive on 

the part of the movant, . . . [or] undue prejudice to the opposing party.” Id. (alteration in 

original) (quoting Foman, 371 U.S. at 182). Additionally, courts may deny amendment where 

the new claims would be time-barred. United States v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 

2002). “In limited circumstances, Rule 15(c) saves an otherwise untimely amendment by 

deeming it to ‘relate back’ to the timely-filed claims the plaintiff alleged in the original 

complaint.” Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009). But the D.C. Circuit “has 
17

held that employment-discrimination claims based on different discrete adverse actions do not 

relate back.” Ransom v. Shulkin, 719 F. App’x 8, 10 (D.C. Cir. 2018).

Branch seeks to add new discrete adverse actions to her complaint, so her claims do not 

relate back. Defendant, in its opposition to Branch’s motion to amend, suggests that her 

proposed new claims may be time-barred. ECF No. 25 at 1 n.1, 4–5. Branch does not address 

their timeliness in her reply in support of her motion, nor does she include any facts at all about 

when, if ever, the EEO finished investigating the incidents underlying her proposed additional 

claims or sent her a right-to-sue letter. See ECF No. 26.

If Branch’s proposed additional claims were untimely, the Court would deny her leave to 

amend on that basis since they do not relate back to her original complaint. See Hicks, 283 F.3d 

at 387. But even assuming they are timely, the Court will still deny her leave to amend at this 

late stage in the case. Discovery was closed and summary judgment briefing long complete 

when she filed her motion. Permitting Branch to amend would, as Defendant points out, allow 

her to address deficiencies in her claims and arguments that Defendant identified in its 

briefing. ECF No. 25 at 4. Further, allowing Branch to add discrete adverse acts that happened 

more than a year after the September 2015 suspension on which this case currently turns would 

require considerably more discovery and a new round of summary judgment briefing. At 

bottom, her proposed new claims would “improperly expand[] the case to encompass new times 

and types of allegations.” Ransom, 719 F. App’x at 10. The Court, in its discretion, will thus 

deny Branch’s motion to amend her complaint. The timeliness of her new claims may be 

addressed on a fuller record in a later action, if Branch chooses to file one.
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Conclusion

For all the above reasons, the Court will grant Defendant’s Motion to Dismiss or, in the 

Alternative, for Summary Judgment, ECF No. 20, and deny Plaintiff’s Motion to Stay and 

Motion for Leave to File Second Amended Complaint, ECF No. 24. A separate order will issue.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: September 10, 2019