NOT RECOMMENDED FOR PUBLICATION 

File Name: 17a0362n.06 

No. 16-6482 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

LORRAINE CARRETHERS, 

 Plaintiff-Appellant, 

v. 

ROBERT SPEER, Acting Secretary, Department of 

the Army, 

 Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE WESTERN 

DISTRICT OF KENTUCKY 

BEFORE: SILER, McKEAGUE, and WHITE, Circuit Judges. 

HELENE N. WHITE, Circuit Judge. Lorraine Carrethers, a black female, was 

employed by the Department of the Army (the Army) as a civilian information-technology (IT) 

specialist. After the Army terminated her employment in 2013, a decision later affirmed by the 

Merit Systems Protection Board (MSPB), Carrethers filed this action against the Secretary of the 

Army. She alleges that she was discharged in retaliation for (1) engaging in activity protected 

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Title VII), and (2) making 

disclosures protected under the Whistleblowers Protection Enhancement Act of 2012, 5 U.S.C. 

§ 2302 (the WPA). She asserts a third count challenging the MSPB’s decision. The district 

court found that Carrethers failed to state a claim and granted the Army’s motion to dismiss. 

We REVERSE. 
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I 

A 

Carrethers was hired by the Army in 1998 as a civilian IT specialist. Around February 

2013, she informally complained to the Army’s Equal Employment Opportunity (EEO) office 

that she had been the target of racially offensive comments and fits of rage from her supervisors, 

Theresa McGuire and Dave Cathell, causing her to suffer from panic attacks and to be diagnosed 

with post-traumatic stress disorder. She subsequently filed a formal complaint with the Equal 

Employment Opportunity Commission (EEOC) alleging a race-based hostile workplace. 

Prior to filing her EEOC complaint, Carrethers also complained internally of sexual 

harassment by McGuire. On December 4, 2013, Colonel Roger Basnett began investigating 

Carrethers’ internal complaints pursuant to Army Regulation 15-6, Procedures for 

Administrative Investigations and Boards of Officers. Colonel Basnett’s investigatory report, 

dated December 19, 2013, stated: 

There were no substantiated facts from Ms. Carrethers’ testimony or sworn 

statement. I interviewed all witnesses that Ms. Carrethers provided to me that 

she stated could substantiate the alleged misconduct by Ms. McGuire and Mr. 

Cathell toward her. None of the fourteen witnesses I interviewed either 

confirmed or supported any of the allegations Ms. Carrethers made against Ms. 

McGuire or Mr. Cathell. More importantly, all witnesses stated that both Ms. 

McGuire and Mr. Cathell always acted professionally to all Division employees, 

including Ms. Carrethers. 

It is my conclusion that Ms. Carrethers is abusing the system to cover up her 

inability to perform assigned duties at her current grade (GS-14). It was 

extremely clear to me that Ms. Carrethers make [sic] things up throughout the 

interview and I believe the command should send a strong signal to this 

employee that her continued misuse of the command’s resources with false 

allegations of misconduct against her coworkers will not be tolerated. 

R. 21-1, PID 98–99. 

 Before reaching this conclusion, Colonel Basnett’s report noted that witnesses suggested 

by Carrethers did not recall the incidents of sexual harassment she alleged, that McGuire stated 

she was afraid of Carrethers and avoided her unless they were in the presence of others, and that 
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throughout the course of his interview with Carrethers “she could not keep any information 

straight between any of her formal complaints and her story changed numerous times throughout 

the interview.” Id. at PID 96. The Army notified Carrethers on March 28, 2014 that it proposed 

to discharge her for “[m]aking unsubstantiated and inappropriate remarks against your first-line 

and second-line supervisors,” specifically noting her accusations that McGuire winked and blew 

kisses at her, and peeped at her in the office restroom. R. 21-3, PID 126. A month later, 

Brigadier General David MacEwen discharged her. 

 Carrethers appealed her discharge to the MSPB, Case No. CH-0752-14-0549-I-1, as 

being in retaliation for her workplace complaints, and an administrative judge (AJ) held a twoday evidentiary hearing and issued a reasoned decision, including six pages of factual findings. 

The AJ concluded that Carrethers failed to present evidence refuting the Army’s charge that she 

made false accusations, and affirmed the Army’s decision.

The parties settled Carrethers’ racial-hostility EEOC complaint, Case No. 470-2014-

00090X, and expressly agreed that their settlement agreement was “in settlement of EEOC No. 

470-2014-00090X, Agency No. ARKNOX13FEB0468 only and does not apply to MSPB Case 

No. CH-0752-14-0549-I.1.” Settlement Agreement, R. 13, PID 67. 

B 

 Carrethers now pursues a “mixed case” action under 5 U.S.C. § 7702(a)(1)(A). In her 

district-court complaint, Carrethers alleges that in February 2013 she complained internally of 

racial harassment, and that in October 2013 she complained of four instances of what she 

reasonably believed constituted sexual harassment: “(1) on or about May 15, 2013, McGuire 

peeped into the bathroom stall where Carrethers was urinating; (2) on June 5, 2013, McGuire 

stated that Carrethers ‘liked’ her and kept smiling at her; (3) on or about December 17, 2013, her 
No. 16-6482, Carrethers v. Speer 

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first line supervisor, Theresa McGuire winked at her, blew kisses at her and acted provocatively 

toward her; and (4) McGuire mocked and belittled Carrethers in the presence of her co-workers 

and superiors.” Compl., R. 1, PID 4. Carrethers alleged that her internal complaint resulted in 

the termination of her employment: “[o]n October 31, 2013, Defendant issued Carrethers a 

Letter of Reprimand for alleged discourtesy and making unsubstantiated statements . . . .,” that 

“[o]n or about March 28, 2014, Defendant notified Carrethers of its intent to remove her because 

it could not substantiate the allegations of sexual harassment that she made . . . .,” and that 

“Defendant discharged Carrethers’ employment on April 9, 2014.” Id. Her district-court 

complaint also recited the history of her EEOC complaint, but omitted any mention of the EEOC 

settlement agreement. 

Carrethers asserted two retaliation counts, on the basis that she complained of racial and 

sexual harassment and was discharged as a result. Count 1 asserted that she engaged in protected 

activity under Title VII, and Count 2 asserted that she made disclosures protected under the 

WPA. A separate Count 3 challenged the MSPB’s decision affirming her discharge as lacking 

substantial evidence in the administrative record, and as being arbitrary, capricious, and an abuse 

of discretion. 

The Army moved to dismiss the district-court complaint for failure to state a claim. See 

Fed. R. Civ. P. 12(b)(6). In its motion to dismiss, the Army argued (1) that Carrethers was 

estopped by the parties’ settlement agreement (which was attached to the motion) from asserting 

a claim based on the facts underlying her EEOC complaint, (2) that she pleaded no facts tending 

to show that she was discharged for engaging in protected activity under Title VII or making 

disclosures protected under the WPA, and (3) that she pleaded no facts tending to show that the 
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MSPB decision affirming her discharge was unsupported by substantial evidence, or was 

arbitrary, capricious, or an abuse of discretion. 

The district court dismissed Carrethers’ suit partly on the basis that she was estopped 

from asserting the racial component of her retaliation claims because it was barred by the 

settlement agreement. Further, the court held that apart from this estoppel, Carrethers failed to 

allege sufficient facts to adequately plead her retaliation and MSPB claims. Specifically, the 

court considered the sexual-harassment-related allegations to be insufficiently pleaded because 

the district-court complaint does not state whether Carrethers complained to a supervisor, EEO 

representative, or other person; how or where she complained of sexual harassment, including 

whether in person, by completing a form, making a phone call, or sending an email; and whether 

the sexual-harassment complaint was informal or formal. The district court dismissed 

Carrethers’ third count—appeal of the MSPB’s decision—because it found that she pleaded no 

facts supporting it and instead merely asserted legal conclusions. In its memorandum opinion, 

the district court stated that it was not treating the Army’s motion as a motion for summary 

judgment, despite the inclusion of exhibits, and it did not rely on any exhibit other than the 

EEOC settlement agreement. Carrethers timely appeals. 

II 

A 

We review de novo the grant of a motion to dismiss for failure to state a claim. 

Wilmington Trust Co. v. AEP Generating Co., 854 F.3d 332, 336 (6th Cir. 2017); see also Fed. 

R. Civ. P. 12(b)(6). 

In reviewing the district court’s dismissal of Carrethers’ complaint, we must determine 

whether she sufficiently pleaded “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 
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Twombly, 550 U.S. 544, 570 (2007); see also Pedreira v. Kentucky Baptist Homes for Children, 

Inc., 579 F.3d 722, 728 (6th Cir. 2009). We take well-pleaded facts as true. Ashcroft v. Iqbal, 

556 U.S. 662, 679 (2009). A pleading will not “suffice if it tenders ‘naked assertions’ devoid of 

‘further factual enhancement.’” Id. at 678 (quoting Bell Atl. Corp., 550 U.S. at 557), and we do 

not accept as true “legal conclusion[s] couched as . . . factual allegation[s].” Bell Atl. Corp., 

550 U.S. at 555 (internal citation and quotation marks omitted). Rather, in order to “unlock the doors 

of discovery,” a plaintiff must plead “factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The liberal 

pleading standard applicable to civil complaints does not require that a retaliation complaint set forth 

specific facts establishing a prima facie case, but it must allege facts that establish a plausible claim 

to relief. See Keys v. Humana, 684 F.3d 605, 609–10 (6th Cir. 2012). 

The inclusion of attachments to a motion to dismiss that serve only to clarify the issues and 

that do not rebut, challenge, or contradict allegations in a complaint, does not convert a motion to 

dismiss into a motion for summary judgment. Song v. City of Elyria, Oh., 985 F.2d 840, 842 (6th 

Cir. 1993).

Title VII prohibits retaliation against an employee because she opposed a prohibited 

employment practice—such as racial or sexual harassment—or “because [s]he has made a 

charge, testified, assisted, or participated in any manner in an investigation, proceeding, or 

hearing [under Title VII].” See 42 U.S.C. § 2000e-3(a). In order to establish a prima facie case 

of retaliation under Title VII, a plaintiff’s complaint must show that (1) she engaged in protected 

activity under Title VII, (2) the defendant was aware of this activity, (3) she was subjected to an 

adverse employment action by the defendant, and (4) there was a causal connection between the 

protected activity and the adverse employment action. Taylor v. Geithner, 703 F.3d 328, 336 

(6th Cir. 2013).
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The WPA prohibits government officials with personnel authority from “tak[ing] or 

fail[ing] to take, or threaten[ing] to take or fail to take, a personnel action with respect to any 

employee . . . because of . . . any disclosure of information . . . which the employee . . . 

reasonably believes evidences . . . any violation of any law, rule, or regulation . . . .” 5 U.S.C. 

§ 2302(b)(8). In order to establish a prima facie case of retaliation under the WPA, a plaintiff’s 

complaint must show that (1) the acting official had the authority to take, recommend, or 

approve the complained-of employment action, (2) the plaintiff made a disclosure protected 

under 5 U.S.C. § 2302(b)(8), (3) the acting official took, or failed to take, a personnel action 

against the plaintiff, and (4) there was a causal connection between the protected disclosure and 

the personnel action. Drake v. Agency for Int’l Dev., 543 F.3d 1377, 1380 (Fed. Cir. 2008) 

(citation omitted). 

Judicial review of an MSPB decision is generally in the Federal Circuit on the 

administrative record, 5 U.S.C. §§ 7703(b)(1), 7701(c)(1)–(3); where the employee also has 

claims under certain anti-discrimination laws, including Title VII, such cases proceed in district 

court, id. at § 7703(b)(2) (citing id. at § 7702), where the plaintiff is entitled to trial de novo of 

the facts regarding her discrimination claims. Id. at § 7703(c). 

B 

We turn first to Carrethers’ two retaliation counts. 

The district court held that Carrethers is estopped from asserting the racial component of 

her retaliation claims due to her EEOC settlement agreement with the Army. As a result, it never 

considered her allegations regarding racial harassment and whether they helped establish a 

factual predicate to retaliatory discharge. On appeal, the Acting Secretary concedes that this 

holding was erroneous and that the parties’ settlement agreement does not cover retaliation 
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claims. See Appellee’s Br. at 9–10 (“[T]he Army does not argue that Carrethers’ claims are 

barred—simply that her Complaint was factually deficient and thus failed to state a claim upon 

which relief could be granted.”). Given this concession, we must examine Carrethers’ complaint 

and determine whether her allegations that she was discharged in retaliation for complaining of 

racial and sexual harassment establish a plausible claim for relief, mindful that at the pleading 

stage Carrethers need not establish a prima facie case of discrimination. See Keys, 684 F.3d at 

609–10. 

Carrethers’ district-court complaint asserts factual allegations that make out a plausible claim 

for relief. She alleges that she complained (first informally, and then in a formal EEOC complaint) 

that her supervisors McGuire and Cathell subjected her to a hostile work environment on the basis of 

her race; that she complained of four specific instances of sexual harassment by McGuire; that she 

was reprimanded for “discourtesy and making unsubstantiated statements”; and that the Army told 

her she was being discharged because “it could not substantiate the allegations of sexual harassment” 

she made. Compl., R. 1, PID 3. Although she does not allege specific facts regarding in what 

manner she complained of sexual harassment, her allegation that the Army said it could not 

substantiate the complaint necessarily implies that Army officials were aware of it. Cf. Johnson v. 

Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (“The [EEOC] has identified a number of 

examples of ‘opposing’ conduct which is protected by Title VII, including complaining to anyone 

(management, unions, other employees, or newspapers) about allegedly unlawful practices . . . .”). 

Taken together, these allegations allow one to “draw the reasonable inference” that (1) Carrethers 

engaged in protected activity under Title VII or made protected disclosures under the WPA 

concerning racial and sexual harassment, (2) an Army official terminated her employment, (3) and 

this termination resulted from her protected activity or disclosures. Importantly, Carrethers asserts 
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that the Army expressly told her that she was being discharged because it could not substantiate her 

sexual-harassment allegation.

We do not pass on the merits of Carrethers’ retaliation claims or any defenses the Army 

might raise; we address only the adequacy of the complaint. See Swierkiewicz v. Sorema N.A., 

534 U.S. 506, 512 (2002) (the “simplified notice pleading standard [of Fed. R. Civ. P. 8(a)(2)] 

relies on liberal discovery rules and summary judgment motions to define disputed facts and 

issues and to dispose of unmeritorious claims.”); see also Bell Atl. Corp., 550 U.S. at 556 (“[A] 

well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those 

facts is improbable . . . .”) (citation omitted). Carrethers has established a plausible claim that 

she will be able to establish a prima facie case of retaliatory discharge for engaging in activity 

protected under Title VII or making disclosures protected under the WPA. 

C 

We turn next to Carrethers’ claim challenging the MSPB’s decision. Count 3 

incorporates all the factual allegations preceding the MSPB count and asserts that “[t]here was 

not substantial evidence in the administrative record for the MSPB to uphold the [Army’s] 

decision to remove [Carrethers] from employment” and that “[t]he MSPB’s findings were 

arbitrary, capricious and an abuse of discretion.” Compl., R. 1, PID 6. 

Although at first blush the allegations in Count 3 are spare, we “must construe the 

complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true, 

and determine whether the plaintiff undoubtedly can prove no set of facts in support of [her] 

claims that would entitle [her] to relief.” Columbia Nat. Res., Inc. v. Tatum, 58 F.3d 1101, 1109 

(6th Cir. 1995). In this light, because Count 3 incorporates all of the complaint’s preceding 

factual allegations, it is “plausible” that those facts, taken as true, render the MSPB’s decision 
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arbitrary, capricious, an abuse of discretion, or lacking substantial evidence. Bell Atl. Corp., 

550 U.S. at 570. 

III 

For the foregoing reasons, we REVERSE the dismissal of the complaint and REMAND 

for further proceedings.