PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DUANE R. BONDS, M.D., 

Plaintiff-Appellant,

v.

MICHAEL LEAVITT, Secretary

Department of Health and Human

Services; DEPARTMENT OF

HEALTH AND HUMAN SERVICES;

NATIONAL INSTITUTES OF HEALTH;

NATIONAL HEART, LUNG, AND  No. 09-2179

BLOOD INSTITUTE OF THE NATIONAL

INSTITUTES OF HEALTH,

Defendants-Appellees.

PROJECT ON GOVERNMENT

OVERSIGHT; PUBLIC EMPLOYEES FOR

ENVIRONMENTAL RESPONSIBILITY,

Amici Supporting Appellant 

.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Roger W. Titus, District Judge.

(8:07-cv-02426-RWT)

Argued: October 26, 2010

Decided: January 3, 2011

Before TRAXLER, Chief Judge, GREGORY, Circuit Judge,

and HAMILTON, Senior Circuit Judge.
Affirmed in part, reversed in part, and remanded by published

opinion. Chief Judge Traxler wrote the opinion, in which

Judge Gregory and Senior Judge Hamilton joined.

COUNSEL

ARGUED: Michael Kohn, KOHN, KOHN & COLAPINTO,

LLP, Washington, D.C., for Appellant. Allen F. Loucks,

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees. ON BRIEF: Richard R. Renner, KOHN, KOHN & COLAPINTO, LLP, Washington,

D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellees. R. Scott Oswald,

Jason Zuckerman, THE EMPLOYMENT LAW GROUP, PC,

Washington, D.C.; Paula Dinerstein, Senior Counsel, PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Washington, D.C.; Scott H. Amey, General Counsel,

PROJECT ON GOVERNMENT OVERSIGHT, Washington,

D.C., for Amici Supporting Appellant.

OPINION

TRAXLER, Chief Judge:

Dr. Duane Bonds appeals district court orders dismissing

some of her employment claims and granting summary judgment against her on the others. We affirm in part, reverse in

part, and remand for further proceedings.

I.

Bonds is an African-American female doctor who has

worked during her medical career to fight "sickle cell disease

and other medical disorders that severely impact fetal and

maternal health."1 J.A. 442-43. In 1990, after years in private

1Sickle cell disease is an inherited blood disorder that affects red blood

cells. See Sickle cell disease, Genetics Home Reference, http://

2 BONDS v. LEAVITT
practice and academia, she became Deputy Chief of the Sickle

Cell Disease Branch of the Division of Blood Diseases and

Resources ("DBDR"), a division of the National Heart, Lung,

and Blood Institute ("NHLBI") of the National Institutes of

Health ("NIH"). In 1998, Dr. Charles Peterson, Director of the

DBDR at NHLBI, became Bonds’s second-line supervisor.

Dr. Blaine Moore, Program Director for the DBDR’s Blood

Diseases Program, became Bonds’s first-line supervisor in

late 2003.2 For much of her NIH career, Bonds received consistently high performance appraisals, promotions, and

awards, and she was recognized as a leading researcher of

Sickle Cell Disease. 

ghr.nlm.nih.gov/condition/sickle-cell-disease (last visited Nov. 8, 2010).

In this country, the disease most commonly afflicts African-Americans,

but it also affects many other racial groups. See Genetic Disease Profile:

Sickle Cell Anemia, Human Genome Project Information, http://www.ornl.

gov/sci/techresources/Human_Genome/posters/chromosome/sca.shtml

(last visited Nov. 8, 2010). 

People who have sickle cell disease have red blood cells that contain

mostly hemoglobin S. See About Sickle Cell Disease – Sickle Cell Disease

Association of America, http://www.sicklecelldisease.org/about_scd/

index.phtml (last visited Nov. 8, 2010). These cells can sometimes become

sickle or crescent shaped and have difficulty passing through small blood

vessels. See id. Blockages of small blood vessels by these cells can restrict

the amount of blood reaching that part of the body and can eventually

result in damage to the tissue that is not receiving its normal blood flow.

See id. Sickle cells are rapidly destroyed in the bodies of people having

the disease, resulting in anemia, jaundice and the formation of gallstones.

See id. Sickle cells also can cause lung tissue damage, pain episodes,

stroke and priapism. See id. It can also cause damage to most organs,

including the spleen, kidneys, and liver. See id. Spleen damage to those

suffering from the disease can leave them easily overwhelmed by certain

bacterial infections. See id.

2Moore replaced Dr. Herman Branson, whom Peterson had terminated.

Branson filed an EEO complaint concerning his termination, and in the

context of the complaint, alleged that Peterson "sought to enlist [Branson’s] support to carry out reprisals against" Bonds because of her prior

EEO complaints. J.A. 792. He also submitted an affidavit of Dr. Jean

Henslee-Downey in which she stated that "Bonds was on [Peterson’s] bad

list." J.A. 601. 

BONDS v. LEAVITT 3
In October 1999, Bonds filed an administrative Equal

Employment Opportunity ("EEO") complaint against Peterson alleging that he sexually harassed her by asking her to

share a hotel room with him during an overnight business trip

and that he began interfering with her professional duties

when she refused him.3 Peterson subsequently removed Bonds

from her position as NHLBI’s Sickle Cell Disease Group

Leader, prompting Bonds to file a second EEO complaint in

March 2003. In settlement of that dispute, the NHLBI in April

2004 created a new position for Bonds: the Division of Blood

Diseases and Resources Sickle Cell Coordinator. 

During Bonds’s time at NIH, NHLBI initiated two sicklecell clinical drug trials, "Baby Hug" and "SWiTCH," which

Bonds initially led as project officer ("PO"). The two trials

began in the years 2000 and 2005, respectively. Baby Hug

studied whether administering the drug Hydroxyurea to

infants could prevent the onset of end-organ damage, the

major source of morbidity and mortality in sickle cell disease

patients. SWiTCH studied the effect of the same drug on

infants who had suffered a stroke. Baby Hug was a contractfunded study, which means that while NIH provides the funding, outside doctors and researchers perform the recruitment,

collection, and analysis. The investigator responsible for processing specimens collected for the trial was Dr. Russell

Ware, who was employed by St. Jude Children’s Research

Hospital in Tennessee.

Central to the present appeal is a process known as EpsteinBarr virus ("EBV") cell line transformation, under which

EBV is mixed with blood cells from study participants, causing the cells to transform and grow indefinitely. This technique can be used to create an unlimited DNA supply without

drawing new blood from study participants. According to

Ware, he first discussed utilizing EBV cell line transformation

in 2003, when he attended a conference at the NIH at which

3The complaint was resolved through the NIH Ombudsman Office. 

4 BONDS v. LEAVITT
the process was recommended. Ware asserts that Bonds

approved the use of the process for Baby Hug in late 2003 or

early 2004.

The controversy regarding this process began in early September 2005 at a monthly steering committee meeting when

Ware presented a report that he had established cell lines from

DNA samples that had been collected from study participants

using EBV cell line transformation. Bonds stated in an e-mail

to Ware that she had been "dismayed" to learn that Ware had

been immortalizing cell lines derived from the Baby Hug subjects.4

 J.A. 545. The e-mail asserted that "NHLBI did not

authorize this work, it is not in the protocol, and the work is

not specifically mentioned in the consent forms."5 J.A. 545.

Accordingly, the message requested that Ware destroy the cell

lines immediately. When Moore and Peterson refused to support her decision, Bonds raised her concerns to the Data and

4Bonds alleges that the participating infants were all AfricanAmericans. 

5The consent forms obtained from parents of the infant participants in

Baby Hug stated in pertinent part: 

We would like to have a small amount of left-over blood samples

stored at the BABY HUG Central laboratory for possible future

research. The blood samples would be kept for a long time or

until the samples are used up. If your child’s blood or DNA sample is shared with other researchers, your child’s identi[t]y will

be kept confidential. No facts that could identify your child will

be given with the blood sample or its DNA. 

You may choose whether or not to allow your child’s sample to

be used for research. No matter what you decide to do about the

use of your child’s samples, your child can still take part in the

BABY HUG study. If you agree to allow your child’s blood to

be kept for research, you are free to change your mind at any

time. If this happens, we ask that you contact Dr. Wang by phone

or in writing and let him know that you are withdrawing your

permission for your child’s blood to be used for research. Any

unused blood will be destroyed. 

J.A. 516 (internal quotation marks omitted). 

BONDS v. LEAVITT 5
Safety Monitoring Board ("DSMB"), which is tasked with

protecting study participants’ interests. On October 5, 2005,

the DSMB recommended that the cell lines be destroyed

unless the proper consent was obtained. 

Not satisfied with that result, and believing that destruction

of the lines was the only appropriate course of action, Bonds

brought her concerns to Dr. Elizabeth Nabel, who was the

Director of NHLBI and the person to whom Peterson

reported. At Bonds’s urging, Nabel initially ordered that the

lines be destroyed. However, Nabel was subsequently contacted by Dr. John Cunningham, the Chair of the Institutional

Review Board ("IRB") at St. Jude. He advised Nabel that the

individual IRBs at the various Baby Hug clinical sites had

jurisdiction over the immortalized cells. Accepting this

assessment, Nabel sent letters to the IRBs urging them to

either destroy the lines or obtain specific consent from the

patients for retention of the lines.

Nabel received varying responses. Some IRBs believed the

consent forms already covered the immortalization, while others believed efforts should be made to "re-consent" the study

participants. This latter group reasoned that once the cell lines

were immortalized, the study participants themselves should

be able to express their preference regarding whether the biological material would be destroyed. Unbeknownst at the time

to Moore and Peterson, Bonds eventually contacted the Office

of Special Counsel ("OSC") regarding the cell lines in late

December 2005, asserting that retention of the lines violated

federal law. See 45 C.F.R. § 46.116 (2010) (providing that

"[e]xcept as provided elsewhere in this policy, no investigator

may involve a human being as a subject in research covered

by this policy unless the investigator has obtained the legally

effective informed consent of the subject or of the subject’s

legally authorized representative"); 45 C.F.R. § 46.122 (2010)

("Federal funds administered by a department or agency may

not be expended for research involving human subjects unless

the requirement of this policy have been satisfied.").

6 BONDS v. LEAVITT
Deciding that Bonds’s cell line concerns warranted investigation, the OSC forwarded them to the Secretary of the

Department of Health and Human Services ("HHS"). As a

result, HHS’s Office of Inspector General ("OIG") initiated an

investigation, interviewing Nabel, Peterson, Moore, and others in early 2006. After receiving a report from OIG in June

2006, the OSC issued its final report in December 2007 concluding that NIH officials "participated in the violation of federal law." J.A. 458.

Besides being the subject of an OSC investigation, the cell

line controversy also marked the final straw for Ware in his

relationship with Bonds. On October 11, 2005, he wrote to

Moore requesting that Bonds be removed as PO for SWiTCH,

for which Ware was the principal investigator. Prior to making that request, Ware had conferred with several key consultants in the then-recently funded project who agreed the trial

would be best served if Bonds were replaced. In his affidavit,

Ware explains that while his prior experiences with Bonds

had been "decidedly negative," their relationship had taken a

particularly ugly turn with the cell line controversy in that

Ware viewed Bonds as having unfairly attacked his motives

in an "accusatory, abrasive manner." J.A. 98. Additionally,

Ware and Dr. Winifred Wang, who were chair and deputy

chair of the Baby Hug Steering Committee, both complained

that often the information Bonds provided them concerning

decisions made by the DSMB was incorrect to the point that

they no longer trusted Bonds. Ware further maintained that

Bonds’s "abrasive, controlling style of managing the study"

was a significant problem. J.A. 99. Dr. Susan Shurin,

NHLBI’s deputy director, also "experienced significant difficulties relating to [Bonds’] management of the study," primarily relating to Bonds’ "bypass[ing] the group process" and her

"[i]nformal and misleading communication of DSMB recommendations." J.A. 106-07. 

Moore voiced concern over these issues and also expressed

worry that Bonds’s involvement as SWiTCH PO would be

BONDS v. LEAVITT 7
too much for her to effectively handle in light of her numerous other duties, including serving as Baby Hug PO. (These

concerns had been documented in Bonds’ mid-year performance review four months earlier in July 2005.) In light of all

of these factors, Moore decided to remove Bonds from her

position as SWiTCH PO. He explained to Bonds in person his

reasons for her removal and also drafted a memorandum documenting the decision. Bonds subsequently filed an EEO

complaint regarding her removal, alleging discrimination and

retaliation by Peterson and Moore, and by Dr. Liana Harvath,

who was the Deputy Director of the DBDR.

In November 2005, Moore also temporarily replaced Bonds

as PO of the Baby Hug trial. He explained that a formal investigation was needed to address the concerns that had been

raised regarding Bonds’s performance as Baby Hug PO and

in other areas of her work. Moore maintained that removing

Bonds from that position during the investigation would give

management the best opportunity to fairly evaluate their concerns. 

The investigation of Bonds, which included an examination

of her office computer, took an important and surprising turn

when it was discovered that Bonds had improperly sent sensitive NHLBI information, including budget figures related to

upcoming negotiations with potential contractors, to persons

not entitled to that information. The recipients included her

attorney, her priest, her church spiritual counselor, and Dr.

Herman Branson, a former NHLBI employee who was himself involved in employment litigation against the agency. 

The examination of Bonds’s computer also revealed the

whistle-blower disclosure statement that Bonds had filed with

the OSC. The document, which Moore loaded onto his computer, alleged that Peterson had wanted to terminate Baby

Hug and had engaged in gross waste, fraud, and abuse in an

attempt to do so, and that NHLBI was illegally preserving the

8 BONDS v. LEAVITT
immortalized cell lines created from the blood product of

Baby Hug participants.

On February 21, 2006, as the investigation was proceeding,

Moore directed Bonds to spend the next 15 days primarily

cleaning her office. In a memo to Bonds, Moore stated that

Bonds had left her office in a "continuous state of clutter and

messiness," which had caused significant expense during a

recent move. J.A. 624. Moore further instructed Bonds to use

her computer "only for communications related to the MSH

follow up extension" and to copy Moore on such communications.6

 J.A. 624. Moore also instructed Bonds to keep her

office door open at all times. 

Two days after receiving these instructions, Bonds e-mailed

Peterson to alert him that she intended to attend a grant study

section meeting outside of NIH that was scheduled to review

her grants portfolio. Peterson allegedly called Bonds out of

the meeting and "threatened [her] with Absent Without Official Leave (AWOL) if [she] did not leave the meeting." J.A.

446. 

As a result of the discovery that Bonds had improperly

transmitted the protected agency information, in March 2006

Bonds was placed on paid administrative leave. Events took

another bad turn for Bonds on March 27, 2006, when the

FDA placed a "Full Clinical Hold" on the Baby Hug trial

because of a lack of expiration dates on the bottles of the

drugs being used in the study. J.A. 131. In connection with

Bonds’s submission of the Baby Hug Investigational New

Drug ("IND") application to the FDA, Bonds had attached a

copy of the label that was to be used on study treatment bottles. Importantly, that label included an expiration date for the

drug. Staff members Annette Quinones, Michael Soler, and

6The MSH follow-up extension was "a five year extension of the

follow-up study of sickle cell adult patients who enrolled in the Multicenter Study of Hydroxyurea." J.A. 116. 

BONDS v. LEAVITT 9
Thomas Shaffer of the Supply Services Center, which was

responsible for printing the labels, maintained that at a Baby

Hug Steering Committee meeting in August 2003 Bonds

ordered removal of the expiration dates since stability tests

regarding the drug were ongoing. Bonds denied that she made

any such order.

The placement of the trial on full clinical hold carried with

it serious consequences, as it required investigators at the

medical centers involved with the trial to "cease further

enrollment" and "remove all patients from existing

drug/placebo." J.A. 140. Moore explained that "[i]t is very

possible that removal of the drug from infants may allow

organ damage to proceed during this hold period and potentially reduce the chances of determining a statistical difference in the primary outcomes, namely, spleen and kidney

function." J.A. 140.

Primarily based on Bonds’s negligence in bringing about

the clinical hold and on her improper dissemination of the

potentially damaging budget information, Moore proposed on

May 12, 2006, that Bonds be terminated. Moore considered

Bonds’s denial of the claim that she instructed the expiration

dates to be removed, but found it not credible in light of the

contrary statements of the Supply Services Center staff.

Moore also identified several other reasons that he maintained

justified Bonds’s removal from federal service, including

many instances of her failure to follow instructions from her

superiors and her failure to follow NHLBI policy. 

On October 18, 2006, Peterson accepted Moore’s termination proposal (although he rejected some of the reasons

Moore provided), memorializing his analysis in a notice of

termination document. Peterson requested that NHLBI Deputy Executive Officer Timothy Wheeles evaluate the termination decision in light of the written record, as Wheeles had not

been involved in the events leading up to Bonds’s termination. Wheeles concluded that each reason Peterson provided

10 BONDS v. LEAVITT
in the termination notice was substantially supported and that

Bonds’s rebuttal failed to counter the supporting documentation. 

Bonds initiated an administrative EEO complaint on February 16, 2007, in which she alleged:

I was fired on October 24, 2006 in retaliation for

having filed 3 prior EEO Complaints and a Whistleblower Complaint with the Office of Special Counsel. On October 11, 2005, I was removed as the

program officer for the SWiTCH Trial; and November 15, 2005, I was removed as the project officer for

the BABY HUG Trial after I ordered the destruction

of genetic material that had been obtained by Dr.

Russell Ware of St. Jude Children’s Hospital without

informed consent. My order to have the genetic

material destroyed was overruled by Dr. Peterson,

and when I protested to Dr. Elizabeth Nabel, Director of NHLBI, I was removed as the project officer

for the BABY HUG Trial. I then filed a Whistleblower Complaint with the Office of Special Counsel, and this complaint was accepted for

investigation on March 17, 2006. When my EEO

Counselor, Michael Chew, notified Dr. Peterson that

I had the right to speak to my attorney, Dr. Peterson

read all of my email to my attorney and placed me

on administrative leave. I was notified that I would

be fired on October 24, 2006 after I was accused of

doing something that I did not do by the BABY

HUG Drug Distribution Center at Perry Point, Md.

This accusation was made in retaliation for my prior

EEO activity and my Whistleblower Complaint as

well as to avoid accepting responsibility by the Perry

Point staff for having removed the expiration date

from the BABY HUG Study Treatment labels without written authorization from me. Blaming me for

this misconduct [permits] the true culprits at Perry

BONDS v. LEAVITT 11
Point to escape responsibility and sanctions from the

Food and Drug Administration and made it possible

for Dr. Peterson to have the excuse to fire me which

he has been attempting to do because of my prior

EEO complaints against him.

In addition, Dr. Peterson did not provide me with

adequate support staff help to assist me with filing

which I needed because of my physical limitations.

I have a partially paralyzed right leg and my knee

joint in that leg was replaced in 2004. Because of

these physical limitations, I was unable to stand for

any length of time to file any paperwork in my

office.

J.A. 363-64.

NIH’s EEO division accepted Bonds’s complaint as a

"mixed-case complaint of discrimination" because it contained discrimination claims and her "allegation (removal

from the Federal Service) stems from an action that may be

appealed to the [Merit System Protection Board]." J.A. 775.

It further stated that the complaint was accepted for investigation of claims of race, sex, age, and physical disability discrimination and retaliatory termination.

Having received no administrative action on the charge by

September 13, 2007, Bonds filed a complaint in federal district court against Michael Leavitt, the then-Secretary of

Health and Human Services, et al., alleging three Title VII

claims: that she was exposed to a hostile work environment,

that she suffered illegal retaliation, and that she was discriminated against because of her race and gender. See 42 U.S.C.A.

§ 2000e-16 (West 2003 & Supp. 2010). The complaint also

alleged that she was retaliated against in violation of the

Whistleblower Protection Act ("WPA"), see 5 U.S.C.A.

§ 2302(b)(8) (West 2007), and that she was unjustifiably ter12 BONDS v. LEAVITT
minated in violation of the Civil Service Reform Act of 1978

("CSRA"), see 5 U.S.C.A. § 7513 (West 2007).

The defense responded with a motion to dismiss or, in the

alternative, for summary judgment. After the district court

heard argument, the defense withdrew the motion as to the

WPA claim, the district court granted the motion as to

Bonds’s hostile-environment and CSRA claims, and the court

ordered additional discovery. Once discovery had concluded,

the defense renewed its motion and Bonds moved for reconsideration of the dismissal of her CSRA claim. The court

granted the defense motion and denied Bonds’s. See Bonds v.

Leavitt, 647 F. Supp. 2d 541 (D. Md. 2009). Bonds now

appeals.

II.

In dismissing Bonds’s CSRA claim, the district court determined that Bonds had failed to exhaust her administrative

remedies. In denying her motion for reconsideration, the court

also expressed serious doubts regarding whether it possessed

subject matter jurisdiction, questioning whether the CSRA

provides for a direct right of action in district court. See id. at

579-81. Bonds argues that the district court erred in dismissing her claim. We agree.

"The CSRA comprehensively overhauled the civil service

system, creating a framework for evaluating adverse personnel actions against federal employees." Hall v. Clinton, 235

F.3d 202, 204 (4th Cir. 2000) (internal quotation marks and

alteration omitted); see also 5 U.S.C.A. § 7513(a) (providing

that "[u]nder regulations prescribed by the Office of Personnel Management, an agency may take an action covered by

this subchapter against an employee only for such cause as

will promote the efficiency of the service."). "[I]t established

exacting standards for review of such actions by the" Merit

Systems Protection Board ("MSPB"). Lindahl v. Office of

Pers. Mgmt., 470 U.S. 768, 774 (1985). It also governs the

BONDS v. LEAVITT 13
adjudication of "mixed case complaints," meaning complaints

alleging "employment discrimination filed with a federal

agency based on race, color, religion, sex, national origin,

age, disability, or genetic information related to or stemming

from an action that can be appealed to the" MSPB. 29 C.F.R.

§ 1614.302(a)(1). Actions that can be appealed to the MSPB

include, inter alia, removal from federal service, including

retaliatory termination for protected whistle-blower activity.

See 5 U.S.C.A. § 1214(a)(3) (West 2007); see also 5 U.S.C.

§ 7512 (West 2007).

An employee wishing to pursue a mixed case has several

procedural paths she can take:

At the outset, the aggrieved party can choose

between filing a "mixed case complaint" with her

agency’s EEO office and filing a "mixed case

appeal" directly with the MSPB. See 29 C.F.R.

§ 1614.302(b). By statute, the relevant agency EEO

office and the MSPB can and must address both the

discrimination claim and the appealable personnel

action. See 5 U.S.C. § 7702(a). Should she elect the

agency EEO route, within thirty days of a final decision she can file an appeal with the MSPB or a civil

discrimination action in federal district court. See 29

C.F.R. §§ 1614.302(d)(1)(ii), 1614.302(d)(3),

1614.310(a). If 120 days pass without a final decision from the agency’s EEO office, the same avenues of appeal again become available: the

complainant can file either a mixed case appeal with

the MSPB or a civil action in district court. See 5

U.S.C. §§ 7702(e)(1)(A), 7702(e)(2); 29 C.F.R.

§§ 1614.302(d)(1)(i), 1614.310(g); 5 C.F.R.

§ 1201.154(b)(2).

Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999) (footnotes

omitted). Here, Bonds filed a mixed case EEO complaint,

14 BONDS v. LEAVITT
then filed this action in the district court when the requisite

time passed without an administrative decision. 

Bonds maintains that the district court possessed jurisdiction over her claim under 5 U.S.C.A. § 7702(e) (West 2007),

which provides that after the required time has passed without

administrative action on an EEO complaint, "an employee

shall be entitled to file a civil action to the same extent and

in the same manner as provided in section 717(c) of the Civil

Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of

the Age Discrimination in Employment Act of 1967 (29

U.S.C. 633a(c)), or section 16(b) of the Fair Labor Standards

Act of 1938 (29 U.S.C. 216(b))."7 The district court questioned whether it lacked subject matter jurisdiction over

Bonds’s CSRA claim because § 7702(e) should be read to

include district court review of only the discrimination claims

in a mixed-case complaint, not the nondiscrimination claims.

7

5 U.S.C. § 7702(e)(1), states in its entirety as follows: 

Notwithstanding any other provision of law, if at any time after—

(A) the 120th day following the filing of any matter described

in subsection (a)(2) of this section with an agency, there is no

judicially reviewable action under this section or an appeal under

paragraph (2) of this subsection; 

(B) the 120th day following the filing of an appeal with the

Board under subsection (a)(1) of this section, there is no judicially reviewable action (unless such action is not as the result of

the filing of a petition by the employee under subsection (b)(1)

of this section); or 

(C) the 180th day following the filing of a petition with the

Equal Employment Opportunity Commission under subsection

(b)(1) of this section, there is no final agency action under subsection (b), (c), or (d) of this section; 

an employee shall be entitled to file a civil action to the same

extent and in the same manner as provided in section 717(c) of

the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section

15(c) of the Age Discrimination in Employment Act of 1967 (29

U.S.C. 633a(c)), or section 16(b) of the Fair Labor Standards Act

of 1938 (29 U.S.C. 216(b)). 

BONDS v. LEAVITT 15
See Bonds, 647 F. Supp. 2d at 579-81. However, as the district court acknowledged, each circuit court of appeals to have

addressed this issue has concluded that district courts possess

jurisdiction over non-discrimination claims in mixed cases

when agencies fail to meet the time limit that § 7702(e)(1)(B)

establishes. See Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1041-

44 (D.C. Cir. 2008); Seay v. TVA, 339 F.3d 454, 471-72 (6th

Cir. 2003); Doyal v. Marsh, 777 F.2d 1526, 1533, 1535-37 &

n.5 (11th Cir. 1985). Finding their reasoning persuasive, we

adopt that position as well. 

We therefore turn to the question of whether Bonds

exhausted her administrative remedies for her CSRA claim. In

the context of Title VII, prior to filing a discrimination claim,

a claimant is required to exhaust administrative remedies with

the EEOC or its state equivalent. See Nealon v. Stone, 958

F.2d 584, 590 (4th Cir. 1992). This is because courts possess

jurisdiction over only those claims "like or related to allegations contained in the charge and growing out of such allegations." Id. (citations omitted). Thus, "factual allegations made

in formal litigation must correspond to those set forth in the

administrative charge." Chacko v. Patuxent Inst., 429 F.3d

505, 509 (4th Cir. 2005). "[A] claim in formal litigation will

generally be barred if the EEOC charge alleges discrimination

on one basis, such as race, and the formal litigation claim

alleges discrimination on a separate basis, such as sex." Jones

v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009).

However, because administrative charges are not typically

completed by lawyers, they must be construed liberally. See

Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d

457, 460 (4th Cir. 1988). 

In this case, the district court concluded that these same

rules that apply in the Title VII context also apply to Bonds’s

CSRA claim and that Bonds failed to properly raise a CSRA

claim in her EEO charge. See Bonds, 647 F. Supp. 2d at 581-

87. We conclude, however, that Bonds’s EEO complaint sufficiently raised the claim. Regarding the CSRA claim, the

16 BONDS v. LEAVITT
complaint alleges that Bonds "did not engage in the misconduct alleged as a basis for her termination," and that alternatively, termination was an "overly harsh" penalty. J.A. 24.

The claim, in other words, is that, even aside from any

improper motivations behind her firing, her firing was not

warranted. See Guillot v. Garrett, 970 F.2d 1320, 1323 n.3

(4th Cir. 1992) (noting that "5 U.S.C. 7513 permits an agency

to terminate an employee ‘for such cause as will promote the

efficiency of the service’"). Considering that we must liberally construe EEO charges, we conclude that Bonds’s claim

is firmly grounded in her charge, wherein she explicitly

alleged: "I was notified that I would be fired on October 24,

2006 after I was accused of doing something that I did not

do." J.A. 364. We therefore reverse the dismissal by the district court of Bonds’s CSRA claim and remand for further

proceedings regarding that claim.

III.

We now turn to Bonds’s WPA claim. The WPA, codified

at 5 U.S.C. § 2302(b)(8), contains two subsections, one of

which (§ 2302(b)(8)(B)) protects whistle-blowing to "Special

Counsel, or to the Inspector General of an agency or another

employee designated by the head of the agency to receive

such disclosures," and one (§ 2302(b)(8)(A)) that applies to

all other whistle-blowing. Bonds contends on appeal that she

created genuine issues of material fact regarding whether both

subsections were violated and thus argues that the district

court erred in granting summary judgment against her. 

We review the district court’s grant of summary judgment

de novo, viewing the facts and the reasonable inferences

therefrom in the light most favorable to the nonmoving party.

See EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th

Cir. 2005). Summary judgment is appropriate when "the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

BONDS v. LEAVITT 17
moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P 56(c); see Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). Applying this standard, we agree with Bonds

regarding both subsections, and we will address the two seriatim.

A.

Bonds’s WPA claim under subsection A alleges, as is relevant here, that she suffered retaliation for reporting the cell

line issue to Nabel. The district court determined that Bonds

failed to create a genuine issue of material fact regarding

whether she engaged in protected activity under subsection A

because (1) she did not report her concerns to an authority

who was in a position to correct the alleged wrongdoing, and

(2) because reporting that wrongdoing was within her routine

job duties and she did not report the wrongdoing outside the

normal channels. See Bonds, 647 F. Supp. 2d at 574-76.

Bonds argues that the district court erred with regard to both

rulings. We agree.

The enactment of the WPA served to broaden the definition

of "prohibited personnel practice" that then existed in the

CSRA. As is relevant here, the WPA provides that:

[a]ny employee who has authority to take, direct others to take, recommend, or approve any personnel

action, shall not, with respect to such authority . . .

. . . .

(8) take or fail to take, or threaten to take or fail

to take, a personnel action with respect to any

employee or applicant for employment because of—

(A) any disclosure of information by an

employee or applicant which the employee

18 BONDS v. LEAVITT
or applicant reasonably believes evidences—

(i) a violation of any law, rule, or regulation, or 

(ii) gross mismanagement, a gross

waste of funds, an abuse of authority,

or a substantial and specific danger to

public health or safety.

5 U.S.C. § 2302(b)(8)(A) (emphasis added). Before enactment of the WPA, the CSRA defined a "prohibited personnel

practice," in relevant part, as "tak[ing] or fail[ing] to take a

personnel action . . . as a reprisal for . . . a disclosure of information." Civil Service Reform Act of 1978, Pub. L. No. 95-

454, § 101(a), 92 Stat. 1111, 1114 (1978) (emphasis added).

The Senate Committee on Governmental Affairs explained

the purpose behind the change from "a disclosure" to "any

disclosure":

The Committee intends that disclosures be encouraged. The OSC, the Board and the courts should not

erect barriers to disclosures which will limit the necessary flow of information from employees who

have knowledge of government wrongdoing. For

example, it is inappropriate for disclosures to be protected only if they are made for certain purposes or

to certain employees or only if the employee is the

first to raise the issue. [The Senate bill] emphasizes

this point by changing the phrase "a disclosure" to

"any disclosure" in the statutory definition. This is

simply to stress that any disclosure is protected (if it

meets the requisite reasonable belief test and is not

required to be kept confidential).

S. Rep. No. 100-413, at 13 (1988).

BONDS v. LEAVITT 19
To establish a claim for WPA retaliation, Bonds was

required to show that she made a protected disclosure under

5 U.S.C. § 2302(b)(8) and she suffered an adverse personnel

action based on her disclosure of the cell line issue to Nabel.

See Hooven-Lewis v. Caldera, 249 F.3d 259, 276 (4th Cir.

2001). Despite the statute’s very broad language, the district

court ruled that Hooven-Lewis added a judicial gloss onto the

statute that would prevent protection of a disclosure to a superior who lacked the actual authority to put an end to the

complained-of conduct. See Bonds, 647 F. Supp. 2d at 574,

576. Because the court determined as a matter of law that

Nabel did not have such authority, it granted summary judgment against Bonds. See id. at 576. We do not believe

Hooven-Lewis dictated that result.

In Hooven-Lewis, we held that complaining to a supervisor

about the supervisor’s own wrongdoing is not protected conduct under the WPA. See Hooven-Lewis, 249 F.3d at 276. In

so doing, we noted that an element of a WPA cause of action

is that "the disclosure evidence an intent to raise an issue with

a higher authority who is in a position to correct the alleged

wrongdoing." Id. Applying that rule, we held that the plaintiff’s statements to the wrongdoer herself "did not evidence an

intent to disclose [the] wrongdoing to an authority higher than

[the wrongdoer] who could remedy the wrongdoing." Id.

Initially, we note that we do not agree that Hooven-Lewis

requires that, to constitute protected conduct, the report must

be made to a person that the would-be whistle-blower

believes has actual authority to correct the wrongdoing. The

essence of the decision in that case is merely that no disclosure occurs to anyone when a report is made to the wrongdoer

himself because the wrongdoer is already necessarily aware of

his own conduct. See Huffman v. Office of Pers. Mgmt., 263

F.3d 1341, 1349-50 (Fed. Cir. 2001). After all, the statute, referencing "any disclosure," does not specify to whom the disclosure must be made in order to receive protection. We

therefore conclude that the district court erred in ruling that

20 BONDS v. LEAVITT
Nabel’s lack of actual authority to have the cell lines

destroyed doomed Bonds’s subsection A WPA claim.8

Having prevailed on that point, Bonds still must clear

another hurdle to avoid summary judgment under subsection

A. That hurdle is the district court’s ruling, based on Huffman,

that her disclosure to Nabel was not protected because it was

made as a normal part of Nabel’s duties through normal channels. See Bonds, 647 F. Supp. 2d at 574-76. This exception to

the general disclosure rule was an extension of Willis v.

Department of Agriculture, 141 F.3d 1139 (Fed. Cir. 1998),

wherein the Federal Circuit held that a government employee

whose job it is to investigate the actions of private parties

does not engage in protected activity when he reports violations of law by those private parties as a normal part of his

duties. See id. at 1143-44. The Willis court emphasized that

"the WPA is intended to protect government employees who

risk their own personal job security for the advancement of

the public good by disclosing abuses by government personnel." Id. at 1144. 

Even assuming that we would sanction such an exception

in our circuit, we do not believe it would entitle the defendants to summary judgment in this case. The district court

determined that Bonds’s disclosure to Nabel was not protected because supervising Ware and reporting problems to

senior NHLBI officials were part of her duties and because

8We note that there is no question in this case that Bonds went to Nabel

in an attempt to remedy the wrongdoing she sought to disclose. Bonds herself had ordered destruction of the cell lines before she was undercut by

her superiors. She then persuaded Nabel to issue the same order, only to

have Nabel later reconsider her decision. And, even after reconsidering her

decision, Nabel still wrote to the IRBs, recommending that they obtain

specific consent from the patients for retention of the immortalized cells

or destroy the cell lines. Cf. Huffman, 263 F.3d at 1351 ("Any government

employee, in a supervisory position, other than the wrongdoer himself, is

in a position to ‘correct’ or ‘remedy’ the abuse by bringing the matter to

the attention of a higher authority."). 

BONDS v. LEAVITT 21
Nabel, while not Bonds’s supervisor, was in Bonds’s line of

supervision, albeit three levels up.9See Bonds, 647 F. Supp.

2d at 575. Regardless, however, of whether Nabel was somewhere in Bonds’s line of supervision, there was no evidence

forecasted that Bonds had a responsibility to report any concerns to Nabel as part of Bonds’s normal duties. Bonds’s job

description describes her role as an advisor to the DBDR and

to Moore. And, Moore himself testified that he considered

Bonds’s decision to bring her concerns to Nabel to be "unprofessional," so much so that he testified in his deposition that

he "probably should have" disciplined her for it. J.A. 2089.

Nabel echoed Moore’s view of Bonds’s duties and testified in

her deposition that Bonds’s responsibility was to express any

concerns to her supervisor, not to her. Nabel testified that

even if Bonds believed that Peterson was engaged in unethical

or unlawful conduct, Bonds had no responsibility to bring her

concerns to Nabel’s attention, and she noted that there are

federal offices designed to deal with such allegations. Under

these facts, we hold that the district court erred in granting

summary judgment against Bonds. See Huffman, 263 F.3d at

1354 (concluding that a plaintiff engages in protected activity

when he, "feeling that the normal chain of command is unresponsive, reports wrongdoing outside of normal channels"). 

B.

We now turn to Bonds’s subsection B claim that she suffered retaliation based on her report to the OSC of the cell line

issue. The district court ruled that Bonds’s claim failed as a

matter of law because she did not create a genuine factual

issue regarding whether Peterson knew that Bonds’s whistleblowing was the catalyst for the government’s investigation

regarding the cell lines. See Bonds, 647 F. Supp. 2d at 577-79;

see also Dowe v. Total Action Against Poverty in Roanoke

Valley, 145 F.3d 653, 657 (4th Cir. 1998) (explaining, with

regard to Title VII retaliation claims, that "the employer’s

9Peterson, who was Moore’s supervisor, reported directly to Nabel. 

22 BONDS v. LEAVITT
knowledge that the plaintiff engaged in a protected activity is

absolutely necessary" to establish a causal connection

between the protected activity and the adverse employment

action). Bonds challenges this ruling, emphasizing that Peterson knew of the investigation since he was one of the people

interviewed. She adds that she would have been the only person Peterson would have suspected of bringing about the

investigation as she was the only one vigorously opposing the

retention of the cell lines. She further highlights the fact that

Moore learned of Bonds’s report to the OSC on January 18,

2006, when he downloaded a copy of her disclosure statement

onto his computer.10 Bonds argues that a jury could reasonably infer that Moore would have told Peterson about Bonds’s

contact with the OSC. We agree with Bonds that she created

a genuine issue of material fact concerning whether Peterson

knew at the time he terminated her that she had "blown the

whistle" to the OSC. 

Even ignoring Moore’s knowledge that Bonds’s disclosure

had prompted the OSC’s investigation, the evidence suggests

that Peterson had plenty of reason to conclude that Bonds, as

the only person vehemently resisting the retention of the cell

lines, was the catalyst for the investigation. Bonds’s poor relationship with Moore and Peterson only gave Peterson further

reason to believe that Bonds would report the alleged malfeasance and his role in it. We therefore hold that the issue of

whether Peterson knew when he terminated Bonds that her

report had brought on the investigation was properly one for

a jury to resolve.

10Bonds notes that when Moore was initially questioned about when he

learned that Bonds had communicated with OSC, he incorrectly denied

knowing about it until after he issued notice of her removal. Only when

presented with documentary evidence that he learned of the communications on January 18, 2006, did he accept that date. 

BONDS v. LEAVITT 23
IV.

Bonds’s complaint alleges three Title VII claims. We will

address them seriatim.

A.

As is relevant here, Bonds’s complaint alleges a Title VII

claim that she was retaliated against for opposing the retention of the cell lines. In opposing summary judgment in the

district court, Bonds maintained that because the donors of the

genetic material from which the cell lines were created were

primarily African-American, she was opposing racial discrimination by seeking to destroy the lines. On that basis, she

maintained that her conduct was protected under Title VII,

and that Title VII prohibited her employer’s retaliation against

her. In granting summary judgment against her, the district

court rejected her argument and ruled that because Bonds’s

conduct did not constitute opposition to an unlawful employment practice, it was not protected under Title VII. See Bonds,

647 F. Supp. 2d at 566-70. On appeal, Bonds maintains that

Title VII protected her from retaliation based on her opposition to the use of the cell lines regardless of whether the conduct she opposed constituted employment discrimination. We

disagree.

As is relevant here, Title VII makes it "an unlawful

employment practice for [a private] employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because

of such individual’s race, color, religion, sex, or national origin." 42 U.S.C.A. § 2000e-2(a)(1) (West 2003); see 42

U.S.C.A. § 2000e(b) (West 2003). It also prohibits retaliation

by a private employer against an employee because she "has

opposed any practice made an unlawful employment practice

by" Title VII. 42 U.S.C.A. § 2000e-3(a) (West 2003). Title

VII is not a general bad acts statute, however, and it does not

prohibit private employers from retaliating against an

24 BONDS v. LEAVITT
employee based on her opposition to discriminatory practices

that are outside the scope of Title VII. See Crowley v. Prince

George’s County, Md., 890 F.2d 683, 687 (4th Cir. 1989). 

In 1972, Congress expanded Title VII’s coverage to include

employees of federal executive agencies and other particular

categories of federal employees. See Equal Employment

Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103 (1972)

(codified as amended at 42 U.S.C.A. § 2000e-16). Section

2000e-16(a) provides that all personnel actions taken in

regard to these employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin." Unlike § 2000e-3(a), § 2000e-16(a) does not explicitly

provide protection against retaliation. See Baqir v. Principi,

434 F.3d 733, 747 n.16 (4th Cir. 2006). However, 42 U.S.C.A

§ 2000e-16(d) provides that "[t]he provisions of section

2000e-5(f) through (k) of this title, as applicable, shall govern

civil actions brought hereunder." Section 2000e-5(g), in turn,

provides:

No order of the court shall require the admission

or reinstatement of an individual as a member of a

union, or the hiring, reinstatement, or promotion of

an individual as an employee, or the payment to him

of any back pay, if such individual was refused

admission, suspended, or expelled, or was refused

employment or advancement or was suspended or

discharged for any reason other than discrimination

on account of race, color, religion, sex, or national

origin or in violation of section 2000e-3(a) of this

title.

42 U.S.C.A. § 2000e-5(g)(2)(A) (West 2003) (emphasis

added). Although neither the Supreme Court nor our court has

squarely addressed whether 2000e-16(a) prohibits retaliation,

see Gomez-Perez v. Potter, 553 U.S. 474, 488 n.4 (2008);

Baqir, 434 F.3d at 747 n.16, reading these provisions together

leaves us with little doubt that Congress "incorporated the

BONDS v. LEAVITT 25
protections against retaliation" afforded to private employees

by 2000e-3(a). Ayon v. Sampson, 547 F.2d 446, 450 (9th Cir.

1976); see Gomez-Perez v. Potter, 476 F.3d 54, 60 (1st Cir.

2007) (similar), rev’d on other grounds, 553 U.S. 474 (2008);

Porter v. Adams, 639 F.2d 273, 277-78 (5th Cir. 1981) (similar); see also Baqir, 434 F.3d at 742 ("Although phrased differently, [§ 2000e-3(a)] and [§ 2000e-16(a)] have generally

been treated as comparable."); Hale v. Marsh, 808 F.2d 616,

619 (7th Cir. 1986) (stating that § 2000e-16(a) "has been

interpreted to incorporate" § 2000e-3(a)); cf. Gomez-Perez,

553 U.S. at 487 (holding that ADEA provision "patterned

‘directly after’" § 2000e-16(a) bans retaliation). Nonetheless,

we see no basis for concluding that conduct of the type at

issue here — which would not be protected by § 2000e-3(a)

if undertaken by a private employee — should be protected by

§ 2000e-16(a). The district court was therefore correct to

grant summary judgment against Bonds on this claim.11

11Bonds also maintains that her opposition was protected under Title

VII based on her professional duty to "ensur[e] that [study] participants

were not subjected to discriminatory treatment." Appellant’s brief, at 33.

In support of her position, Bonds cites Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346 (9th Cir. 1984), but we find Wrighten to be of

little help to Bonds here. In Wrighten, a nurse employed by a private hospital brought a Title VII claim alleging in relevant part "that she was fired

in retaliation for her advocacy of issues relating to black staff and

patients." Id. at 1353. In granting judgment against the nurse, the district

court "assumed without proof that [she] directed her opposition at unlawful employment practices," but found that the means of her opposition

were unreasonable and that she therefore lost the protection that Title VII

afforded her. Id. at 1355. The court also found that the hospital articulated

a legitimate, nondiscriminatory reason for terminating her—her unreasonable means of advocacy—and that the nurse did not succeed in showing

that the proffered explanation was pretextual. See id. at 1355-56. The

Ninth Circuit reversed, concluding that both findings were clearly erroneous. See id. at 1355-57. The court, however, never addressed the question

of whether the nurse had, in fact, engaged in protected activity. The case

therefore does nothing to help Bonds demonstrate that she engaged in protected activity here. 

26 BONDS v. LEAVITT
B.

Bonds next argues that the district court erred in dismissing

her hostile work environment claim for failure to state a

claim. See Fed. R. Civ. P. 12(b)(6). We disagree.

We review de novo the grant of a motion to dismiss for

failure to state a claim. See US Airline Pilots Ass’n v.

Awappa, LLC, 615 F.3d 312, 317 (4th Cir. 2010). In so doing,

"we must accept as true all of the factual allegations contained

in the complaint." Anderson v. Sara Lee Corp., 508 F.3d 181,

188 (4th Cir. 2007) (internal quotation marks omitted). To

survive dismissal, the complaint must contain "enough facts

to state a claim to relief that is plausible on its face." Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

To proceed on a Title VII hostile work environment claim,

"a plaintiff must show that the offending conduct (1) was

unwelcome, (2) was because of her sex [or race], (3) was sufficiently severe or pervasive to alter the conditions of her

employment and create an abusive work environment, and (4)

was imputable to her employer." Ziskie v. Mineta, 547 F.3d

220, 224 (4th Cir. 2008) (internal quotation marks omitted).

Establishing the third element requires that the plaintiff show

that the work environment was not only subjectively hostile,

but also objectively so. See EEOC v. Sunbelt Rentals, Inc.,

521 F.3d 306, 315 (4th Cir. 2008). Such proof depends upon

the totality of the circumstances, 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

employee’s work performance." Id. (internal quotation marks

omitted). 

Bonds’s allegations, which largely include the actions taken

against her in response to the concerns regarding her performance, fall well short of alleging an abusive working environment. See Burlington N. & Santa Fe Ry. Co. v. White, 548

BONDS v. LEAVITT 27
U.S. 53, 68 (2006) ("[N]ormally petty slights, minor annoyances, and simple lack of good manners will not" give rise to

a hostile environment claim.). Nor do they state a plausible

claim that any harassment that Bonds suffered was due to her

race or gender. Cf. Oncale v. Sundowner Offshore Servs., 523

U.S. 75, 80 (1998) ("Title VII does not prohibit all verbal or

physical harassment in the workplace; it is directed only at

‘discriminat[ion] . . . because of . . . sex.’"). The district court

was therefore correct to dismiss this claim.

C.

Bonds also maintains that the district court erred in granting summary judgment against her on her Title VII claim

alleging in relevant part that she was terminated because of

her race and gender. We disagree.

Lacking any direct evidence of such discrimination, Bonds

attempts to avoid summary judgment based on the burdenshifting method of proof established by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05

(1973). Under this method, the plaintiff has the initial burden

to establish a prima facie case, which she may do by showing

that "(1) she is a member of a protected class; (2) she suffered

adverse employment action; (3) she was performing her job

duties at a level that met her employer’s legitimate expectations at the time of the adverse employment action; and (4)

the position remained open or was filled by similarly qualified

applicants outside the protected class." Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004)

(en banc). If a plaintiff meets that burden, the burden then

shifts to the employer "to articulate a legitimate, nondiscriminatory reason for the adverse employment action." Id. If the

employer does so, the plaintiff must then show that "the

employer’s stated reasons were not its true reasons, but were

a pretext for discrimination." Id. (internal quotation marks

omitted). 

28 BONDS v. LEAVITT
The district court ruled that even assuming that Bonds

established a prima facie case, the defense articulated legitimate, nondiscriminatory reasons for her removal and Bonds

failed to create a genuine issue of material fact regarding

whether those reasons were a pretext for race or gender discrimination. See Bonds, 647 F. Supp. 2d at 554, 559-66. We

agree. Peterson articulated at length the reasons that he sustained Moore’s recommendation that Bonds be terminated.

Bonds does not seriously argue that Peterson did not believe

his reasons warranted her termination. In fact, her only significant argument regarding her unauthorized disclosure of

agency information was that the disclosure was uncovered

only as the result of an improper investigation. Similarly, her

primary argument regarding her responsibility for the removal

of the expiration dates from the drugs being used in the trial

was that Peterson did not conduct a proper investigation

before concluding that she was actually responsible. Neither

of these points is of any help to Bonds. Even if these investigations were improper or substandard, that does little to help

her establish that the reasons given for her termination were

not the actual reasons, and it certainly does not give rise to a

reasonable inference that her race or gender was the real reason for her termination. See Hux v. City of Newport News, 451

F.3d 311, 315 (4th Cir. 2006) ("Once an employer has provided a non-discriminatory explanation for its decision, the

plaintiff cannot seek to expose that rationale as pretextual by

focusing on minor discrepancies that do not cast doubt on the

explanation’s validity, or by raising points that are wholly

irrelevant to it."); see also Tinsley v. First Union Nat’l Bank,

155 F.3d 435, 444 (4th Cir. 1998) ("It is the perception of the

decision maker which is relevant."), overruled on other

grounds by National R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 105 (2002). The district court was therefore correct

to grant summary judgment on this claim.12

12Bonds also argues that the district court abused its discretion in denying her second Rule 56(f) request. We conclude that the denial was well

within the district court’s discretion. See Bonds, 647 F. Supp. 2d at 571

n.10 (discussing the reasons for the denial). 

BONDS v. LEAVITT 29
V.

For the foregoing reasons, we reverse the dismissal of

Bonds’s CSRA claim and the grant of summary judgment

against her on her WPA claim, and remand to the district

court for further proceedings on these claims. Otherwise, we

affirm.

AFFIRMED IN PART, 

REVERSED IN PART, 

AND REMANDED

30 BONDS v. LEAVITT