1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________

)

NINA MARIE COLEMAN, )

)

Plaintiff, )

)

v. ) Civil Action No. 18-2268 (BAH)

)

ALEJANDRO MAYORKAS, Secretary, )

U.S. Department of Homeland Security, )

)

Defendant. )

___________________________________ )

MEMORANDUM OPINION

Plaintiff Nina Marie Coleman brings this action against the Secretary of the U.S. 

Department of Homeland Security (“DHS”), under Title VII of the Civil Rights Act of 1964, as 

amended, see 42 U.S.C. § 2000e-16, for alleged race discrimination and retaliation by DHS 

component, the Federal Emergency Management Agency (“FEMA”), in not selecting her for a 

position in 2017, less than a year after FEMA had terminated her for misconduct.

1

 Pending 

before the Court is FEMA’s Motion for Summary Judgment, ECF No. 42. For the reasons 

discussed below, this motion is granted.

1

 The current Secretary of DHS is automatically substituted as a party, see FED. R. CIV. P.

25(d), and is the only proper defendant in this Title VII action, see 42 U.S.C. 2000e-16(c); see 

also Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) (“the head of the agency 

is the only proper defendant in a Title VII action”); Davis v. Califano, 613 F.2d 957, 958 n.1 

(D.C. Cir. 1980). For clarity, given that actions taken by FEMA are at issue, this DHS 

component is referenced as the defendant. The six individuals whom plaintiff named as 

defendants—Brock Long, Joshua Stanton, Cecelia Nadeau, Robyne Jackson, Faye Green, and 

Racquel Mahone—are dismissed as party defendants. See Gary v. Long, 59 F.3d 1391, 1399 

(D.C. Cir. 1995) (dismissing claims brought against individual defendant in his personal capacity 

because he could not be liable for Title VII violations).
2

I. BACKGROUND

Plaintiff alleges that FEMA discriminated against her based on her race (African 

American) and retaliated against her for having engaged in protected activity when, on August 

22, 2017, the agency deemed her unfit for employment with a FEMA contractor and, on 

November 1, 2017, FEMA withdrew its tentative offer of a customer service position after 

having found her ineligible for hire. These determinations did not occur in a vacuum but were 

preceded by disciplinary actions taken against plaintiff, including an Official Reprimand on 

October 25, 2016, and termination on February 13, 2017, from her position as a Disaster 

Survival Assistance (“DSA”) Specialist.2 This relevant context for the two challenged actions is

reviewed below in the factual background, followed by a brief summary of the procedural 

history of this lawsuit.

A. FACTUAL BACKGROUND

1. Plaintiff’s Employment as a FEMA Disaster Assistance Reservist

In 2008, plaintiff became as a Disaster Assistance Employee (“Reservist”) at FEMA. 

Def.’s Statement of Material Facts As To Which There Is No Genuine Dispute (“Def.’s SMF”) ¶ 

1, ECF No. 42-2. The position involved “deploy[ment] to various parts of the country following 

natural disasters to provide support services to survivors and their communities.” Id. ¶ 2. On 

February 24, 2008, plaintiff signed a form acknowledging her understanding that she occupied “a 

2

 This case is the earliest filed of three employment discrimination suits initiated by 

plaintiff against FEMA currently pending before this Court. While the instant case alleges race 

discrimination and retaliation occurring after FEMA terminated plaintiff on February 13, 2017, 

Civil Case No. 19-3496 (BAH) alleges race discrimination and retaliation in connection with 

plaintiff’s reassignment during a deployment to Forrest Hills, New York in 2013, and Civil Case 

No. 20-0395 (BAH) alleges race discrimination and retaliation occurring in 2016 during 

plaintiff’s deployments to Baton Rouge, Louisiana and Norfolk, Virginia, and in connection with 

plaintiff’s termination in 2017. 
3

temporary civil service excepted position” from which she could be “terminated at any time, 

with cause (e.g., poor performance or misconduct) or without cause (e.g. downsizing of 

workforce, change in program direction).” Def.’s Mem. in Support of Def.’s Mot. for Summ. J. 

(“Def.’s Mem.”), ECF No. 42-1, Ex. 1 (Conditions of Employment for Disaster Assistance 

Employees (DAEs)), ECF No. 42-3. She also acknowledged that, as a condition of employment, 

she would “travel in the most expeditious and cost effective manner.” Id., Ex. 1.

Plaintiff has held “disaster-related positions authorized under the Robert T. Stafford 

Disaster Relief and Emergency Assistance Act, Public Law 93-288, as amended.” Def.’s Reply 

in Further Support of Def.’s Mot. for Summ. J. (“Def.’s Reply”), ECF No. 51, Decl. of Cecelia 

Nadeau, Chief of the Federal Branch in the Personnel Security Division (“PSD”), Office of the 

Chief Security Officer (“Nadeau Decl.”) ¶ 29, ECF No. 51-1. These “temporary or term 

appointments . . . primarily include Local Hires, Reservists, and [Cadre of On-Call Response and 

Recovery Program employees (‘CORES’)]” and “are funded from disaster monies allocated 

through Presidentially Declared disaster or national emergency events,” id. ¶ 29, not from 

appropriated funds, id. ¶ 30. These employees are not entitled to appeal an employment action to 

the Merit Systems Protection Board. Id. “If any appeal rights are afforded an employee in one 

of these positions, they are determined solely by the agency of record.” Id. 

“Stafford Act temporary or term disaster-related positions are not subject to the 

provisions set forth in 5 C.F.R. § 731 in regard to determining suitability (or fitness) for federal 

service to include the Due Process rights therein.” Id. ¶ 31. Instead, FEMA promulgated an 

equivalent standard, id. ¶ 32; see Def.’s SMF ¶ 85, which in relevant part provides that, “[f]or 

contractor employee positions,” nine enumerated “factors may be considered, as a basis for 

finding an excepted service federal applicant, appointee or contractor employee unfit.” Nadeau 
4

Decl., Ex. 7 (DHS Instruction 121-01-007-01 Revision 01, Personnel Security, Suitability and 

Fitness Program) (“DHS Instruction”) at 20. The DHS Instruction further states that “[t]he 

qualification standards established provide that certain reasons may disqualify an applicant for 

appointment,” and goes on to list, as “among” the factors that “may be included as disqualifying 

reasons: (1) Misconduct or negligence in employment; . . . [or] (3) Material, intentional false 

statement or deception or fraud in examination or appointment[.]” Id., Ex. 7 at 20. Under 5 

C.F.R. § 731, too, misconduct is a factor to “be considered a basis finding a person unsuitable” 

for employment. 5 C.F.R. § 731.202(b)(1).

“For any given deployment, a Reservist is assigned a temporary duty supervisor and 

chain of command specific to that deployment.” Def.’s SMF ¶ 3. “While temporary duty 

supervisors provide day to day instructions and assignment of work during the deployments, at 

all times the Reservist Program Manager is the supervisor of record.” Id. A temporary 

supervisor lacks “the authority to take disciplinary action against [a] Reservist,” and any 

misconduct or performance issue is directed to the Reservist’s supervisor of record. Def.’s 

Mem., Ex. 8, Decl. of Bellance (Faye) Green, FEMA’s Branch Chief, Cadre Management and 

Training, Individual Assistance Division, Recovery Directorate (“Second Green Decl.”) ¶ 4, ECF 

No. 42-10. Racquel Mahone, DSA Reservist Program Manager, was plaintiff’s supervisor of 

record during the period of the challenged actions in this lawsuit. Def.’s SMF ¶ 34; see Def.’s 

Mem., Ex. 5, Decl. of Racquel Mahone, DSA Reservist Program Manager (“Mahone Decl.”) ¶¶ 

10-11, 17, ECF No. 42-7. 

Regarding travel, a Reservist is expected to “select the mode of transportation most 

advantageous to the Government” and, ordinarily, “[a]irlines should be used for long distance 

travel exceeding 300 miles.” Def.’s Mem., Ex. 13 (Notice of Termination of Appointment, 
5

“Notice of Termination”) at 2, ECF No. 42-15. If the Reservist opts for an alternative mode of 

transportation, FEMA’s travel policy requires that she “submit an approved cost comparison . . . 

to document that the selected alternative method is less expensive than the cost of the airline.” 

Id. The comparison “must include the expense of transportation to and from the common carrier 

terminal,” and “must also consider additional costs that would be incurred as a result of the 

alternate mode of transportation,” such as overtime. Id. The Reservist would not be reimbursed 

for “excess transportation costs incurred . . . by unauthorized modes of transportation.” Id. A 

cost comparison “is not authorization to drive,” but a statement about “the difference in cost” 

between travel by car and by air. Mahone Decl. ¶ 134. Nor is the cost comparison an 

“authorization to travel [by car] over 300 miles without a valid Reasonable Accommodation.” 

Id. ¶ 137. A “signed cost-comparison statement has no bearing on the date by which all travel 

must be completed.” Def.’s SMF ¶ 61. 

2. Plaintiff’s Official Reprimand

“During August and September, 2016, FEMA deployed [p]laintiff to Baton Rouge, 

Louisiana, as a Survivor Mobile Application Reporting Analyst . . . in Disaster Survivor 

Assistance . . . Branch I.” Def.’s SMF ¶ 4. Her principal responsibility was “draft[ing] the daily 

summary report for Branch I.” Id. ¶ 5. Mahone issued plaintiff an Official Reprimand on 

October 25, 2016, “for inappropriate conduct and failure to follow instructions relating to 

[p]laintiff’s emails about English lessons and demonic spirits, her refusal to attend a mandatory 

two-day training for personal reasons, and failure to follow the proper demobilization process.” 

Id. ¶ 35. The Official Reprimand noted that plaintiff’s field supervisor had “counseled [plaintiff] 

on [her] inappropriate and unprofessional emails” on August 31, 2016. Def.’s Mem., Ex. 11

(“Official Reprimand”) at 2, ECF No. 42-13. 
6

Plaintiff does not dispute issuance of the Official Reprimand, but nonetheless denies 

having been counseled on August 31, 2016. Pl.’s Rule 7(H)(1) Statement of Genuine Issues of 

Material Facts Precluding Summ. J. (“Pl.’s Resp. SMF”) ¶ 35, ECF No. 45-1. Plaintiff’s appeal 

of the Official Remand was unsuccessful. See Pl.’s Response in Opp’n to Def.’s Mot. for Summ. 

J. (“Pl.’s Opp’n”), ECF No. 45, Ex. 8 (Final Agency Decision) at 9, ECF No. 45-9. 

Consequently, the Official Reprimand was neither withdrawn nor removed from plaintiff’s 

official personnel file. Mahone Decl. ¶ 107.

3. Plaintiff’s Deployment to Norfolk, Virginia

Following a deployment to Savannah, Georgia, from October 27, 2016, through 

November 7, 2016, Def.’s SMF ¶ 36, FEMA deployed plaintiff to Norfolk, Virginia on 

November 8, 2016, “as a DSA Specialist serving as Crew Lead for DR-4291-VA,” id. ¶ 37. She 

reported to DSA Branch I Director Mary Dawson. Id. ¶ 38. Esther Herrera was the Task Force 

Leader for that Branch. See id. ¶ 6.

As the Virginia deployment wound down, on December 13, 2016, Dawson sent staff an 

email offering “three check out dates (December 21, 22, or 23) and requiring that all 

demobilization travel be completed by Friday, December 23, 2016.” Id. ¶ 39. Plaintiff 

responded that she would check out on Thursday, December 22, 2016, and travel on Friday, 

December 23, 2016, id. ¶ 40, by car, see Def.’s Mem., Ex. 9 (“Combined Email String”) at 39, 

ECF No. 42-11.

Inconsistent with the requirement that demobilization be completed by December 23, 

2016, plaintiff’s timesheet indicated that she would be traveling on Saturday, December 24, 

2016. See Def.’s SMF ¶¶ 43, 45. According to FEMA, “[w]eekend travel was not authorized for 

this deployment,” id. ¶ 46, and a Reservist could “deviate from the authorized travel dates [only] 
7

if [she] ha[d] prior approval from headquarters or ha[d] a valid Reasonable Accommodation 

providing for different travel arrangements,” id. ¶ 42. Dawson returned plaintiff’s timesheet with 

instructions that she review it. See id. ¶ 43. Plaintiff responded that “she would change her 

hours after completing a cost-comparison statement.” Id. ¶ 44. 

On December 23, 2016, plaintiff submitted to Dawson a timesheet, which Dawson

instructed plaintiff to re-review because, again, it reflected travel on Saturday, December 24, 

2016. Id. ¶ 45. Plaintiff responded by email to Dawson on December 24, 2016, stating she was 

unaware she could not travel on a Saturday, id. ¶ 47, as she had done while “work[ing] with 

other Branch Directors for other deployments,” id. ¶ 49. She also informed Dawson that she had

“a Reasonable Accommodation that permitted her to take ‘longer than normal’” to travel. Id. ¶ 

47; see Combined Email String at 44. Dawson, who “was not aware of a ‘reasonable 

accommodation’ on file at [FEMA headquarters],” instructed plaintiff by email on December 24, 

2016, to “continue with travel . . . as planned.” Combined Email String at 43; see Def.’s SMF ¶ 

48. Further, Dawson advised that, for future deployments, plaintiff should notify the Branch 

Director of the reasonable accommodation “to avoid any sort of confusion.” Def.’s SMF ¶ 48. 

Plaintiff completed her travel on Sunday, December 25, 2016. See id. ¶ 50; see id. ¶ 62. 

By email on December 27, 2016, Dawson asked plaintiff to “submit an amended 

timesheet that took into account [p]laintiff’s purported reasonable accommodation.” Id. ¶ 51. 

Dawson commented that she had “provided the travel guidance for this deployment, and 

everyone was given the same guidance[] on when to checkout and travel,” yet plaintiff “chose to 

‘work’ on [her] checkout day, when [Dawson] clearly stated that [plaintiff’s] last day would 

consist solely of training and checkout.” Combined Email String at 47; see Def.’s SMF ¶ 51. 

Dawson noted that plaintiff “could have been driving home on Thursday[, December 22, 2016],”
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as she was given the option to check out on December 21, 22 or 23. Combined Email String at 

47. Even with a reasonable accommodation, Dawson stated, plaintiff would not have been 

permitted to “travel on days outside of the travel guidance [she] provided.” SMF ¶ 51. Plaintiff

responded:

Mary I am tired, home and I am not going to continue to be harassed 

and bullied over my hours nor travel. I have never needed an RA to 

travel before now and I have traveled for three years by car. I would 

think my RA is in my file . . . .

I do not feel and RA# has [anything] to do with traveling, we have 

right to travel by car with or without an RA. I will seek guidance[]

from others and contact you guys back. I feel this is harassment.

Id. ¶ 52; see Combined Email String at 46. 

Plaintiff appeared to have contacted FEMA headquarters on December 27, 2016, to 

obtain the requisite information about her reasonable accommodation. Combined Email String

at 55. When she learned that the “designated RA person” was not in the office, she sent an email 

to Herrera, on December 29, 2016, stating she would “not worry about RA number, this has gone 

on too long and is unnecessary.” Id. at 57. 

Plaintiff had requested a reasonable accommodation on or about October 28, 2016, Pl.’s 

Opp’n, Ex. 2 (Report of Investigation, Agency Case No. HS-FEMA-27306-2016, “2016 ROI”) 

at Bates 000075-076, ECF No. 45-3, on her doctor’s recommendation that, due to “minor lumbar 

neuritis,” she not sit or stand for more than 2 hours at a time, 2016 ROI at Bates 000077.

3

 She 

notified Herrera, the Task Force Leader, see Def.’s SMF ¶¶ 4, 36, of the accommodation request 

by email on November 9, 2016, see 2016 ROI at 000545. FEMA viewed this as a temporary 

reasonable accommodation for purposes of a prior deployment only and not permanent, see

3 The Court adopts the parties’ custom of citing the 2016 and 2017 Reports of Investigation 

by Bates number.
9

Combined Email String at 54, 59, and thus this temporary reasonable accommodation did not 

apply to the Virginia deployment, see Def.’s SMF ¶ 53. In plaintiff’s view, her reasonable 

accommodation “request was current” pursuant to FEMA policy. See Pl.’s Resp. SMF ¶ 53. 

According to Mahone, without a reasonable accommodation, plaintiff was not authorized to 

travel by car, see Combined Email String at 59, and, in any event, even if plaintiff had a valid 

reasonable accommodation for travel by car, her travel still could not have extended beyond 

authorized travel dates, Mahone Decl. ¶ 131. 

Plaintiff submitted and Dawson signed a cost comparison “but [Dawson] did not provide 

. . . Mahone a copy.” Def.’s Mem., Ex. 16 (Report of Investigation, Agency Case Number HSFEMA-02350-2017, “2017 ROI”) at Bates 000121, ECF No. 42-18; see Pl.’s Opp’n, Ex. 9 (cost 

comparison), ECF No. 45-10. Dawson signed the cost comparison mistakenly “assum[ing] the 

dates [of plaintiff’s travel] were within the . . . guidelines [she] had given” to all staff. Def.’s 

Mem., Ex. 12, Decl. of Mary Dawson, DSA Branch Director (“Dawson Decl.”) ¶ 67, ECF No. 

42-14. FEMA ultimately paid plaintiff’s travel voucher in full, see Pl.’s Opp’n, Ex. 3 (“Pl.’s 

Dep.”) at 52:9, ECF No. 45-4, even though it included travel on Saturday, December 24 and 

Sunday, December 25, 2016, and did not indicate a reasonable accommodation number, see

Notice of Termination at 2. 

Dawson informed Mahone that plaintiff did not complete her travel by December 23, 

2016, as instructed. Mahone Decl. ¶¶ 129-30; Dawson Decl. ¶ 76. Mahone put plaintiff on nondeployment status in FEMA’s Deployment Tracking System on January 27, 2017. See Mahone 

Decl. ¶¶ 114, 116. Meanwhile, supervisors reviewed the situation and considered whether to 

take disciplinary action, see id. ¶¶ 113, 116-17, “because of [p]laintiff’s non-compliance when 

demobilizing from [DR-4291-VA],” Def.’s SMF ¶ 55 (internal quotation marks omitted). 
10

Placement on non-deployment status is not itself a disciplinary measure, but rather ensures that 

FEMA does not deploy a Reservist for whom disciplinary action is contemplated before a 

decision is made. See Mahone Decl. ¶¶ 116-17.

4. Plaintiff’s Termination

FEMA brought two disciplinary charges against plaintiff. A Reservist is not entitled to 

advance notice of termination, see Def.’s Mem., Ex. 14, Decl. of Kelley Pellici, Director of 

Employee Services (“Pellici Decl.”) ¶ 30, ECF No. 42-16, and, presumably, FEMA brought 

charges and issued the Notice of Termination simultaneously. 

Charge 1, titled “Failure to Follow Instructions,” was based on the “Specification” that 

“[o]n or about December 24, 2016, [plaintiff] failed to follow instructions when [she] ignored 

direction of [her] supervisor, Mary Dawson, who instructed that . . . travel must be completed by 

Friday, December 23, 2016.” Notice of Termination at 1. Charge 2, titled “Failure to Follow 

Written Agency Policy,” was based on the “Specification” that “[o]n or about December 23-24, 

2016, [plaintiff] failed to comply with written agency policy when [she] drove from Norfolk, VA 

to Dallas, TX in a government rental car without prior approval and without conducting the 

required cost comparison analysis.” Id. In determining a penalty for plaintiff’s conduct, FEMA 

took into account the following four factors:

1. You were previously reprimanded for failure to follow 

instructions regarding demobilization on October [25], 2016. 

2. You failed to meet FEMA Reservists’ Conditions of Employment 

which state that you must travel in the “most expeditious and cost 

effective manner.”

3. Your actions are in direct violation of the FEMA Travel Policy 

Manual 122-1-1, dated September 23, 2015. 

4. On December 13, 2016, you were given specific instructions by 

Mary Dawson to complete all travel no later than December 23, 

2016.
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Id. at 3.

For plaintiff’s failure to follow instructions, FEMA terminated plaintiff, effective 

February 13, 2017, and provided her written notice on that same date. Def.’s SMF ¶ 56. The 

Notice of Termination set forth specific instructions for an appeal, noting that plaintiff was 

“appointed to a position under the Robert T. Stafford Disaster Relief and Emergency Assistance 

Act” and therefore her appointment was “excluded from the provisions of Title 5 of the United 

States Code and its accompanying regulations under Title 5 of the Code of Federal Regulations.” 

Notice of Termination at 3. At the same time, “[h]owever, FEMA [extended to plaintiff] the 

opportunity to appeal this decision to Faye Green, Cadre Management and Training Branch 

Chief, Individual Assistance Division, Recovery Directorate,” with further directions, “[i]f [she]

wish[ed] to appeal this decision,” she could “do so in writing no later than 5:00 p.m. (local time 

of Ms. Green) on the fifth calendar day after [she] receive[d] this notice. [The] appeal must be 

sent to Ms. Green either by mail to 500 C Street SW, Washington, DC 20472 or via email[.] 

Ms. Green [would] issue a final and binding decision.” Id.

Plaintiff did not submit an appeal to Green. Def.’s SMF ¶ 59; see Def.’s Mem., Ex. 7, 

Decl. of Bellance (Faye) Green (“First Green Decl.”) ¶¶ 146-48, 151, ECF No. 42-9. Instead, in 

“mid-March 2017 [plaintiff] sent an email to FEMA’s Human Capital Helpdesk concerning the 

specifications of her termination,” First Green Decl. ¶ 149, as well as an email “to multiple 

FEMA Leaders (other than Faye Green),” Mahone Decl. ¶ 150; see Def.’s SMF ¶ 58, including

the then-Acting FEMA Administrator, see Nadeau Decl. ¶ 12. An email message to these FEMA 

managers “was not [plaintiff’s] official appeal,” the procedure for which “was provided in her 

removal letter.” Pellici Decl. ¶ 17.
12

On March 31, 2017, plaintiff contacted Green by email requesting an extension of time

for an appeal of her termination, see First Green Decl. ¶¶ 152, 154-55, which extension was 

denied since the request “was more than 45 days past the deadline,” id. ¶ 155. 

Notwithstanding plaintiff’s failure to file a timely appeal to Green, “Human Capital . . . 

reviewed the case[.]” Id. ¶ 151. Plaintiff submitted several documents to the Human Capital 

Helpdesk including a copy of the cost comparison signed by plaintiff and Dawson on December 

22, 2016. See 2017 ROI at Bates 000122. Upon learning that the cost comparison had been 

done but simply not provided to Mahone, see id., FEMA acknowledged its error, and Charge 2 

“for failure to follow written agency policy relating to the cost-comparison statement [was]

removed from agency records,” Def.’s SMF ¶ 59; see First Green Decl. ¶ 149. On March 16, 

2017, FEMA notified plaintiff of the decision to remove Charge 2. Def.’s SMF ¶ 59. 

Charge 1 for “failure to follow the instructions of . . . Mary Dawson, who provided 

specific instructions . . . to complete all travel no later than December 23, 2016, [was] not . . . 

reversed.” Pellici Decl. ¶ 28 (emphasis removed); see Def.’s SMF ¶ 59. According to Mahone, 

removal of Charge 2 did not render plaintiff’s termination improper, given the prior disciplinary 

action that plaintiff had “not follow[ed] directions and had been previously reprimand[ed] for 

similar action in less than a year.” Mahone Decl. ¶ 139. Additionally, plaintiff had not filed a 

proper appeal of her termination to Green in accordance with the explicit directions given. 

Def.’s SMF ¶ 59. 

5. Post-Termination Employment Applications

Following her termination on February 13, 2017, plaintiff applied for various jobs with 

FEMA and a FEMA contractor without success, leading to the two challenged actions in this 

lawsuit, as described below.
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(a) Plaintiff’s Non-selection for Housing Inspector Position with FEMA 

Contractor After August 22, 2017 Unfitness Determination

FEMA awarded a contract to WSP USA Inspection Services (“WSP”) for disaster 

assistance in Texas and Louisiana following Hurricane Harvey. Id. ¶ 80. Plaintiff applied for 

and was selected, on June 19, 2017, “to proceed with the process of becoming a disaster 

inspector with WSP[.]” Id. ¶ 81; see 2017 ROI at Bates 000171. This “tentative offer was 

contingent on an ‘on-boarding and security process’ that involved FEMA making a ‘favorable or 

unfavorable’ determination.” Def.’s SMF ¶ 81. “Only favorably adjudicated candidates would 

be retained to perform disaster housing inspections,” id., and the determination would be made 

“in accordance with the guidance found in 5 CFR 731 or its equivalent and the Suitability 

Process Handbook issued by [the Office of Personnel Management],” id. ¶ 85 (emphasis added).

As part of that on-boarding process, on July 6, 2017, FEMA’s Personnel Security 

Division (“PSD”) received from the Contracting Officer’s Representative for FEMA’s Housing 

Inspection Services a request to process plaintiff’s application as a contract Field Inspector. 

Nadeau Decl. ¶ 6. “Plaintiff completed E-Quip paperwork in connection with the WSP tentative 

job offer and security investigation.” Def.’s SMF ¶ 82. Among other documents, plaintiff 

completed a Declaration for Federal Employment (OF306) on July 7, 2017. Nadeau Decl. ¶ 6; 

see 2017 ROI at Bates 000173-74. Question 12 asked whether in the preceding five years

plaintiff had been fired from any job for any reason. See 2017 ROI at Bates 000174. Plaintiff 

answered affirmatively, “disclosed her termination from FEMA,” Def.’s SMF ¶ 83, and “claimed 

that the . . . termination [was] not valid,” Nadeau Decl. ¶ 6.

This response flagged plaintiff’s application, resulting in its referral “to adjudication” and 

assignment to Personnel Security Specialist Gina Helms. Def.’s SMF ¶ 84; see Nadeau Decl. ¶ 

6. Although termination alone would not have disqualified an applicant, “Personnel Security 
14

Specialists [would] look at instances of ‘Misconduct and Negligence’ as well as ‘patterns in 

conduct and recency of the conduct or termination.’” Def.’s SMF ¶ 86. 

(i) Plaintiff’s Response to Letter of Interrogatory

On July 25, 2017, Helms emailed plaintiff a letter of interrogatory (“LOI”) informing 

plaintiff of the background investigation being conducted “to determine [her] suitability for entry 

on duty (EOD) as a contract employee with FEMA.” 2017 ROI at Bates 000176. Helms 

requested additional information about the circumstances of plaintiff’s termination, see Def.’s 

SMF ¶¶ 87-88, including the following questions, to which plaintiff’s responses are reflected in 

bold:

2. Were you aware of the policy prior to your travel? Yes, and 

followed it, Supervisor did not asked [sic], just accused

4. Do you have any documentation and/or email 

correspondence related to this termination? If so, please provide a 

copy. Yes

6. Did this/these terminations involve any misconduct, 

negligence, policy violation, etc. on your part? NO, I was falsely 

accused of not following Travel Policy, once provided evidence 

it was reversed.

10. Were there any other episodes of misconduct or negligence? 

NO misconduct or negligence, I was falsely accused

11. Please provide any paperwork you have regarding the 

incident and termination of employment. Please see attached

2017 ROI at Bates 000176-177. Attached to plaintiff’s LOI response were a narrative 

explanation for her termination, see id. at Bates 000156-157, copies of previous performance 

evaluations, see Nadeau Decl. ¶ 7, and various email messages, see 2017 ROI at Bates 000157-

170. Plaintiff’s response did not include copies of her termination letter or any other 

correspondence from FEMA pertaining to her termination. Nadeau Decl. ¶ 8. 

Among the email messages plaintiff submitted to Helms was a June 30, 2017, email from 

James Montgomery, Acting Chief of FEMA’s Office of Equal Rights that summarized 
15

Montgomery’s telephone conversation with plaintiff regarding her concerns about her 

termination and referenced Montgomery’s suggestion that mediation potentially could address 

those concerns. See 2017 ROI at Bates 000169-170. On August 16, 2017, plaintiff sent an email 

to Helms indicating that a “mediation [session had been] scheduled for the end of Aug[ust] in an 

attempt to clear [her] name.” Id. at Bates 000104. 

(ii) August 22, 2017 Adjudication of Fitness for Employment 

with FEMA Contractor

Helms reviewed the materials provided by plaintiff with her LOI response. See Nadeau 

Decl. ¶ 8. Plaintiff’s fingerprint card, which would have indicated plaintiff’s race, was in the file

to which Helms had access. See 2017 ROI at Bates 000063-064. Although Helms could have 

determined plaintiff’s race from the fingerprint card, Helms stated that she did not “ever look at 

that particular information when checking the fingerprint results.” Id. at Bates 000064; see 

Def.’s SMF ¶ 95. 

Plaintiff’s failure to submit a copy of the termination letter “required . . . Helms to further 

the fitness inquiry/investigation by other means, a process that aligns with existing DHS policy.” 

Nadeau Decl. ¶ 14. Helms consulted Nadeau, who instructed Helms “to contact [FEMA’s Labor 

and Employee Relations office (‘LER’)] to obtain further information on the termination action.” 

Id. ¶ 8.

On August 15, 2017, Helms contacted Robyne Jackson at LER who indicated that 

plaintiff also had received an Official Reprimand in October 2016, an incident that plaintiff had 

not disclosed, Nadeau Decl. ¶ 9, either on the OF306 or her responses to the LOI. Helms 

requested, and LER provided, copies of plaintiff’s Notice of Termination and Official Reprimand

“for Inappropriate Conduct and Failure to Follow Instructions related to refusal to attend 

meetings and demobilization requirements.” Id. ¶ 11. The Official Reprimand’s reference to 
16

“demobilization” was described as “a travel related issue.” Id. The Official Reprimand also 

“cited a verbal counseling administered [to plaintiff] on August 31, 2016, for inappropriate and 

unprofessional emails.” Id. Although plaintiff supplied “extensively detailed information to 

challenge the grounds of her . . . termination, she never acknowledged the previous disciplinary 

actions, never cited any objection to those charges [and she offered no] information to refute 

them.” Id. ¶ 16. PSD construed plaintiff’s post-termination election to contact FEMA’s Acting 

Administrator, rather than to pursue an appropriate appeal to Faye Green within the allotted fiveday period, as another demonstration of her “disregard for written policy[.]” Id. ¶ 12.

“An in-depth review of all available information and documentation received and/or 

obtained by . . . PSD . . . in the July – August 2017 timeframe, resulted in a final unfavorable 

hiring determination.” Id. ¶ 13. On August 21, 2017, Helms found that plaintiff did not “meet 

the fitness requirements to work on a FEMA contract,” 2017 ROI at Bates 000113, having 

focused on misconduct as the relevant suitability factor, see id. at Bates 000111-113. Helms 

concluded as follows:

It appears [plaintiff’s] 2/2017 termination from FEMA involved 

misconduct/negligence, as [she] failed to follow written instructions 

by not completing all travel by 12/23/2016. Although [she] had 

been given a written reprimand on 10/26/2016, for Failure to Follow 

Instruction and Inappropriate Conduct, she claims she had not been 

aware of the FEMA Travel Policy. This was the subject’s third 

infraction (one verbal and two written) which indicates a pattern of 

behavior. [Plaintiff] further demonstrates her disregard for written 

policy during the appeal of her termination by exceeding the 5 day 

deadline and not submitting the appeal to the appropriate department 

(as outlined in her termination letter). Due to these reasons, 

[plaintiff’s] actions and the recency of the termination, this issue 

remains a concern and cannot be mitigated at this time.

Id. at Bates 000113 (emphasis removed); see Def.’s SMF ¶ 92. Helms’ superiors concurred. See

id. at Bates 000114. By letter, dated August 22, 2017, PSD advised plaintiff that she had been 
17

found “unfit for assignment as a contractor employee with [FEMA].” Def.’s SMF ¶ 93; see 2017 

ROI at Bates 000137. 

Plaintiff had an opportunity to provide Helms documents related to her termination yet

did not provide a copy of the Notice of Termination. Nadeau Decl. ¶ 14. This omission “was 

viewed as potentially . . . purposely with[holding]” information. Id. According to Nadeau, that 

Helms “obtained the information independent of [plaintiff] in no way created a requirement for . 

. . Helms to contact [plaintiff] again for further rebuttal as there was no additional right or 

entitlement created as a result of PSD’s validation of the grounds for termination which included 

a . . . reprimand 30-days prior.” Id. ¶ 15. Further, even if plaintiff had provided “information 

related to the Official Reprimand in her LOI response[] . . . PSD would not have had the 

discretion to disagree with or overturn a disciplinary decision made by LER in regard to 

employee conduct.” Id. ¶ 17. 

(b) Plaintiff’s Non-selection for FEMA Local Hire Customer Services 

Representative Position After November 1, 2017 Ineligibility 

Determination 

In July 2017, plaintiff responded to a vacancy announcement, FEMA-17-NPSC-TX-LH,

for a local hire Customer Services Representative position. Def.’s SMF ¶ 100. FEMA extended 

a tentative offer of employment subject to a background investigation. Id. ¶ 101. 

PSD received a request on September 12, 2017, to process plaintiff’s application for this

position supporting FEMA’s response to Hurricane Harvey. Nadeau Decl. ¶ 19. As such, the 

process qualified as “[d]isaster hiring . . . conducted under expedited protocols supported by an 

Emergency Waiver issued by DHS due to the nature of FEMA Response and Recovery 

requirements at the onset of a disaster.” Id. In this circumstance, a reviewer makes “a straightforward pass or fail decision based on . . . the applicant’s responses on the OF306,” among other 

documents. Id. “Under expedited hiring procedures, there was no requirement to reach out to 
18

the applicant for any information regarding her termination.” Id. When PSD received the 

matter, the information in plaintiff’s file, notably the August 22, 2017, unfitness determination,

was less than 30-days old. Id. ¶ 20.

Pia Warrington was assigned to this matter. Id. Based on plaintiff’s disclosure of her 

termination on the OF306 signed on September 9, 2017, Warrington found plaintiff “ineligible 

for hiring and denied [her application] during this screening process due to her recent termination 

and the unfavorable hiring determination a month prior as there had not been sufficient passage 

of time to substantiate rehabilitation as required under mitigation standards[.]” Id.4

Consequently, FEMA withdrew its tentative employment offer. Def.’s SMF ¶ 102. Plaintiff was 

notified by email from Nirali Mehta, an Office of Chief Component Human Capital Officer, on 

November 1, 2017. Id.; see 2017 ROI at 000091-092. 

(c) Plaintiff’s Non-Selection For Other FEMA Positions In 2017 – 2019

According to plaintiff, between July 2017 and October 2018, she was found qualified but 

was not selected for the following five positions: Individual Assistance Reservist, Disaster Field 

Training Operations training specialist, Logistics Systems Specialist, Emergency Management 

Specialist, and Administrative Support Assistant. See Pl.’s Statement of Facts Precluding Summ. 

J. (“Pl.’s SMF”) ¶¶ 15-17, 39-41, ECF No. 45-1; see generally Pl.’s Opp’n, Ex. 7 (Email 

messages), ECF No. 45-8. She was notified on July 3, 2019, that her application for a sixth 

position did not advance to a hiring official for further consideration. See Pl.’s SMF ¶ 42. 

4

 On September 12, 2017, in error, Warrington entered a comment in the file that August 

22, 2017, was the date of plaintiff’s termination. Nadeau Decl. ¶ 21. The error has been 

corrected. See id. ¶ 23.
19

Plaintiff attributed her lack of success with these applications to FEMA’s “reli[ance] on . . . 

Helms’ suitability determination.” Pl.’s Opp’n at 9. 

(d) Plaintiff’s Selection and Employment As A FEMA Administrative 

Support Assistant in May 2019

Plaintiff responded on an unknown date to vacancy announcement FEMA-19-JMB256852-CORE for an Administrative Support Assistant position. Def.’s Mem., Ex. 19 (Email 

from Krissie Gilroy dated January 4, 2019), ECF No. 42-21. The position was a two-year 

temporary Excepted Service appointment in FEMA’s Cadre of On-Call Response and Recovery 

Employee (CORE) program. Nadeau Decl. ¶ 24. By that time, plaintiff’s “previous background 

investigation had exceeded its serviceable 5-year age limit,” and plaintiff “had had a 2-year 

break in service[.]” Id. ¶ 25. For these reasons, FEMA required plaintiff “to submit to a new, 

full background investigation.” Id.

PSD received the request to process plaintiff’s case on February 7, 2019, id. ¶ 24, and 

assigned James Abell to adjudicate this matter, id. ¶ 26. Abell contacted Robyne Jackson at LER 

to determine “whether any new information had been added to [plaintiff’s] file since her 

termination on February 13, 2017.” Id. Jackson “advised that the charges and specifications had 

been amended to remove [Charge 2 for] Failure to Follow Agency Policy,” id., and an amended 

Notice of Termination had been issued, see id., Ex. 8 (amended Notice of Termination).

5

 

“After verifying all factors related to the case . . . Abell [concluded] that there was no 

new, relevant information requiring further consideration and [no need] to request additional 

information from [plaintiff].” Id. ¶ 27. Abell determined that the conduct contributing to 

plaintiff’s February 13, 2017, termination no longer rose “to the level of serious or 

5

 The amended Notice of Termination, which omits all references to Charge 2, bears its 

original date of February 13, 2017. See Nadeau Decl., Ex. 8 at 1. 
20

disqualifying,” noting that more than two years had passed since termination, thereby

establishing “sufficient rehabilitation.” Id. Plaintiff has been employed as a FEMA

Administrative Support Assistant since May 12, 2019. Def.’s SMF ¶ 104.

6. Plaintiff’s 2017 EEO Charge

On August 22, 2017, plaintiff contacted FEMA’s Office of Equal Rights, and on October 

22, 2017, she filed a formal employment discrimination complaint (“2017 EEO Charge”). Def.’s 

SMF ¶ 96. The following three claims were accepted for investigation to determine “[w]hether 

[plaintiff] was discriminated against and subject to disparate treatment on the basis of race 

(African-American) and retaliation (prior EEO activity 2016) when”: 

1. In June 2017 [plaintiff] applied for several Cadre positions 

and was selected but the offers were withdrawn later because of the 

unsuitability determination by FEMA Office of Chief Security 

Officer based on her previous termination from FEMA; 

2. On August 22, 2017 [plaintiff] was not selected for a 

contract position when she was determined to be unsuitable by the 

FEMA Office of Chief Security Officer because she was previously 

terminated from FEMA. 

3. On September 29, 2017 [plaintiff] learned that she was 

treated differently than a similarly situated White female supervisor 

who was not disciplined for actions for which [plaintiff] previously 

was reprimanded and terminated. 

Id. ¶ 97. On or about March 16, 2018, EEO Investigator Paul J. Benkert was assigned to the 

matter. See 2017 ROI at Bates 0000003. 

On April 12, 2018, plaintiff forwarded to Benkert Mehta’s November 1, 2017 email

informing her that she was ineligible for hire under disaster hiring procedures. Id. at Bates 

000091. Plaintiff testified that the November 1, 2017, ineligibility determination was “supposed 

to be part of” the investigation of her 2017 EEO Charge, Pl.’s Dep. at 27:25, and that she 

“reported it to the equal rights office,” id. at 27:15, specifically “[t]o Erik Skinner, James 
21

Montgomery [and] Donna Peterkin,” id. at 27:17. Benkert concluded his investigation on May 

25, 2018. See 2017 ROI at Bates 000003. 

B. PROCEDURAL HISTORY

FEMA’s investigation of the 2017 EEO Charge was not timely completed and, 

consequently, on May 8, 2018, plaintiff was advised of her right either to request a hearing 

before an Administrative Law Judge or to file a civil action in federal district court. Def.’s SMF 

¶ 99; see Def.’s Mem., Ex. 18, ECF No. 42-20. Plaintiff opted to file this civil action.

On August 17, 2018, plaintiff, proceeding pro se and in forma pauperis, filed her original 

complaint in the United States District Court for the Northern District of Texas. See Complaint, 

ECF No. 1. She amended the complaint on September 13, 2018. See Amended Complaint 

(“Am. Comp.”), ECF No. 7. After the case was transferred to this Court in September 27, 2018, 

see Transfer Order, ECF No. 10, discovery commenced, pursuant to a scheduling order, entered 

consistent with the schedule proposed by the parties, see Joint Local Rule 16.3 Meet and Confer 

Report, ECF No. 22; Scheduling Minute Order (March 26, 2019); Minute Orders (May 10, 2019, 

August 16, 2019) (extending discovery). After plaintiff’s counsel entered an appearance on 

August 28, 2019, see Appearance of Counsel, ECF No. 33, the discovery period was further 

extended until March 20, 2020, see Minute Orders (October 2, 2019, February 26, 2020). After a 

year of discovery, FEMA’s summary judgment motion was fully briefed as of December 21, 

2020, when plaintiff filed a surreply, ECF No. 53. The pending motion is now ripe for 

resolution.

II. LEGAL STANDARD 

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if 

the movant shows that there is no genuine dispute as to any material fact and the movant is 
22

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the 

burden of demonstrating the "absence of a genuine issue of material fact" in dispute, Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific 

facts supported by materials in the record that would be admissible at trial and that could enable

a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, 

appropriate inquiry is “whether, on the evidence so viewed, ‘a reasonable jury could return a 

verdict for the nonmoving party’” (quoting Liberty Lobby, 477 U.S. at 248)). A court 

considering a motion for summary judgment evaluates all underlying facts and inferences in the 

light most favorable to the nonmovant, Liberty Lobby, 477 U.S. at 255, and “eschew[s] making 

credibility determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363 

(D.C. Cir. 2007).

III. DISCUSSION

Plaintiff’s amended complaint alleges race discrimination and retaliation when FEMA

adjudicated her unfit for employment with contractor WPS on August 22, 2017, and found her 

ineligible for a local hire Customer Service Representative position, resulting in withdrawal of its 

tentative job offer on November 1, 2017. FEMA moves for summary judgment on plaintiff’s 

claim regarding the August 22, 2017, fitness determination on the ground that a reasonable 

nondiscriminatory reason justified this determination: namely, that plaintiff did not pass its 

background investigation. As to the withdrawal of the job offer on November 1, 2017, FEMA 

moves for summary judgment on the ground that plaintiff failed to exhaust her administrative 

remedies prior to filing this lawsuit. Each argument is addressed seriatim.
23

A. August 22, 2017 Adjudication of Fitness for Employment with FEMA Contractor

1. The Parties’ Evidentiary Burdens 

“Discrimination and retaliation claims supported by circumstantial evidence are 

evaluated under the burden-shifting framework of McDonnell Douglas Corp v. Green, 411 U.S. 

792 (1973).” Chambers v. District of Columbia, No. 19-7098, 2021 U.S. App. LEXIS 4787, at 

*5 (D.C. Cir. Feb. 19, 2021) (citing Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015)); 

see Figueroa v. Pompeo, 923 F.3d 1078, 1086 (D.C. Cir. 2019). Plaintiff’s first task is to 

establish a prima facie case of discrimination, see id., by alleging that “she is part of a protected 

class under Title VII, she suffered a cognizable adverse employment action, and the action gives 

rise to an inference of discrimination.” Id. (quoting Walker, 798 F.3d at 1091). “Once the 

plaintiff clears that hurdle, the ‘burden shifts to the employer to identify the legitimate, nondiscriminatory or non-retaliatory reason on which it relied in taking the complained-of action.’” 

Id. The employer’s burden is only one of production, and it “need not persuade the court that it 

was actually motivated by the proffered reasons.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 

U.S. 248, 254 (1981). The “issue is not the correctness or desirability of [the] reason[] offered . . 

. [but] whether the employer honestly believes in the reason[] it offers.” Fischbach v. District of 

Columbia Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996). If the “employer’s stated belief 

about the underlying facts is reasonable in light of the evidence . . . there ordinarily is no basis 

for permitting a jury to conclude that the employer is lying about the underlying facts.” Brady, 

520 F.3d at 495.

Once the employer successfully carries its burden of production, “the McDonnell 

Douglas framework — with its presumptions and burdens — is no longer relevant.” St. Mary’s 

Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993). Instead, “the plaintiff, to defeat summary 
24

judgment, must produce sufficient evidence for a reasonable jury to find that the employer’s 

asserted nondiscriminatory or non-retaliatory reason was not the actual reason and that the 

employer intentionally discriminated or retaliated against the employee.” Chambers, 2021 U.S. 

App. LEXIS 4787, at *6 (internal citations and quotations omitted).

Similarly, when plaintiff raises a retaliation claim, “the central question at summary 

judgment becomes whether the employee produced sufficient evidence for a reasonable jury to 

find that the employer's asserted nondiscriminatory or non-retaliatory reason was not the actual 

reason and that the employer intentionally discriminated or retaliated against the employee.” 

Walker, 798 F.3d at 1092 (citations and internal quotation marks omitted). “[S]ufficient 

evidence may include, inter alia, (1) the plaintiff’s prima facie case; (2) any evidence the 

plaintiff presents to attack the employer’s proffered explanation for its actions; and (3) any 

further evidence of discrimination that may be available to the plaintiff (such as independent 

evidence of discriminatory statements or attitudes on the part of the employer).” Hampton v. 

Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012) (citations and internal quotation marks omitted).

2. FEMA’s Proffered Legitimate Non-Discriminatory Reason

For purposes of this motion, FEMA has assumed that plaintiff can prove a prima facie

case of race discrimination and retaliation. See Def.’s Mem. at 18. FEMA attributed the August 

22, 2017, unfavorable fitness determination to plaintiff’s failure to meet a prerequisite: 

“pass[ing] a FEMA-conducted background check.” Id. FEMA concluded that plaintiff’s 

February 13, 2017, termination involved misconduct, namely, “fail[ure] to follow written 

instructions by not completing all travel” by December 23, 2016, as Dawson instructed. Id. at 

19. Termination was plaintiff’s third disciplinary infraction, thus comprising a “pattern of 

behavior.” Id. PSD conducted its adjudication within six months of plaintiff’s termination, and 
25

“because of the recency of her . . . termination and the nature of the conduct” underlying the 

termination, FEMA found she “posed a risk that [PSD] determined, based on [its] standard 

guidance, [which] could not be adequately mitigated.” Id. at 19. Consequently, FEMA deemed 

plaintiff unfit for hire with the contractor.

3. Plaintiff’s Rebuttal

Plaintiff “bears the ultimate burden of proving that discriminatory animus was the 

determining or but-for cause of the personnel action.” Ford v. Mabus, 629 F.3d 198, 201 (D.C. 

Cir. 2010) (citing McDonnell Douglas, 411 U.S. at 803–05). She not only must show that the 

employer’s reason is false, but also “discrimination [or retaliation is] the real reason.” St. Mary’s 

Honor Ctr., 509 U.S. at 515. Plaintiff attacks the thoroughness of the adjudication and 

methodology used by Helms to reach her conclusion.6 As support, plaintiff posits several 

grounds for rebuttal of the legitimate, nondiscriminatory reasons for FEMA’s fitness 

determination but, even considered together, these grounds are insufficient.

6 Plaintiff’s contention that the adjudication should have, and failed to, comply with 

FEMA’s obligations under 5 C.F.R. § 731, see Pl.’s Opp’n at 10, 12, including a duty to ensure 

the accuracy, relevance, timeliness and completion of the records on which it relies, 5 C.F.R. § 

731.103(e)(1), and to “consider all available information in reaching its final decision on a 

suitability determination,” 5 C.F.R. § 731.103(e)(3), is misplaced. “Stafford Act temporary or 

term disaster-related positions,” such as the positions plaintiff held and for which she applied, 

“are not subject to the provisions of 5 C.F.R. Part 731 in regard to determining suitability (or 

fitness) for federal service to include the Due Process rights therein,” Def.’s Reply at 8; see

Nadeau Decl. ¶ 31. Instead, the positions for which plaintiff was denied selection are subject to 

the DHS Instruction 121-01-007-01, see Nadeau Decl. ¶ 31, the relevant section of which does 

not incorporate 5 C.F.R. § 731.103, see DHS Instruction at 20-21. Although plaintiff faults 

FEMA and Helms for failing to declare that the August 22, 2017, determination had been made 

under any standard other than 5 C.F.R. § 731, see Pl’s Surreply at 2, the record makes clear that 

suitability determinations are made under 5 C.F.R. § 731 or equivalent, see 2017 ROI at Bates 

000109, which equivalent is DHS Instruction 121-01-007-01. In any event, under either set of 

criteria, misconduct is a permissible factor to consider, see DHS Instruction at 21; 5 C.F.R. § 

731.202(b), as it was here.
26

First, plaintiff contends that Helms failed to consider “all available information” when 

adjudicating her fitness for employment. Pl.’s Opp’n at 12. For example, plaintiff points to her 

August 16, 2017, email to Helms with its offer to provide additional information about her 

termination. See id. This email, she states, also advised Helms of a then-upcoming “mediation 

to ‘clear her name.’” Id. Plaintiff faults Helms for declining her offer, obtaining copies of the 

Official Reprimand and Notice of Termination from LER instead, see id., and relying on the 

Official Reprimand without offering her an opportunity to respond to it, see id. at 13-14. In 

another example, plaintiff contests Helms’ statement, see 2017 ROI at Bates 000111, that 

plaintiff provided no evidence of having obtained prior authorization to travel after December 

23, 2016, or to travel by car. See id. at 16. In support, plaintiff points to her narrative statement 

responding to the LOI, see 2017 ROI at 000121-122, and various email messages, see id. at 

000132-134, among which is Dawson’s December 24, 2016, email instructing plaintiff to 

“[c]ontinue with travel,” 2017 ROI at 000131, notwithstanding Dawson’s prior instruction to 

complete travel by December 23, 2016. In short, plaintiff’s critique of Helms’s decision is that 

she not only acquired information about plaintiff’s termination from an alternative source, but 

also ignored relevant information plaintiff herself submitted.

FEMA responds that plaintiff had an opportunity to provide information about her 

termination and she also availed herself of that opportunity by responding to the LOI. See Def.’s 

Reply at 9. Her response appeared to be incomplete, however. Questions 6 and 10 of the LOI 

asked whether her termination involved misconduct, and whether there were other episodes of 

misconduct, and plaintiff responded, “NO.” See 2017 ROI at 000116. Plaintiff surely was aware 

of her Official Reprimand and its contents, particularly its reference to the August 31, 2016, 

verbal counseling. Neither the OF306 nor plaintiff’s LOI response disclosed any discipline
27

imposed prior to termination, and contrary to her LOI response, plaintiff failed to submit a copy 

of her Notice of Termination. 

Plaintiff does not counter FEMA’s assertion that the omissions from the LOI response 

“required . . . Helms to further the fitness inquiry/investigation by other means, a process that 

aligns with existing DHS policy,” by obtaining the relevant information from LER. Nadeau 

Decl. ¶ 14. Nor does plaintiff respond to FEMA’s proffer that obtaining information from LER 

rather than plaintiff “in no way created a requirement for . . . Helms to contact [plaintiff] again 

for further rebuttal as there was no additional right or entitlement as a result of PSD’s validation 

of the grounds for termination” occurring so soon after an Official Reprimand. Id. ¶ 15. Thus, 

contrary to plaintiff’s assessment, Helms did consider plaintiff’s submitted materials but found 

those submissions deficient due to other materials diligently obtained as part of the suitability 

review process. 

Second, plaintiff faults Helms for accepting the termination at face value, without delving 

into the substance of the underlying disciplinary charges and the merits of plaintiff’s purported 

appeal. See Pl.’s Opp’n at 11-12. For example, she contends that Helms ignored “obvious 

contradictions” about the termination and appeal. See id. at 11. By contradictions, plaintiff 

means FEMA’s decisions, in effect, to entertain an appeal of Charge 2 without also reconsidering 

Charge 1, and to remove Charge 2 while allowing Charge 1 to stand. In plaintiff’s view, the 

same evidence – the cost comparison approved by Dawson – undermines both Charge 1 and 

Charge 2. See id. at 12. If Dawson approved the cost comparison reflecting that plaintiff’s travel 

would end on December 26, 2016, and if Charge 1 is based on plaintiff’s failure to complete 

travel by Friday, December 23, 2016, as instructed, plaintiff argues that Charge 1 should have 

been removed also, notwithstanding her failure to file a proper and timely appeal to Green. 
28

Plaintiff proceeds as if PSD’s adjudication of fitness for employment with a contractor 

operates as a belated appeal of her termination. As discussed above, the record of this case 

demonstrates that plaintiff was given instructions for appealing her termination and that she 

simply failed to comply. Plaintiff’s email messages to various FEMA officials are not a 

substitute of a proper and timely appeal to Green. See Pellici Decl. ¶ 17; see Def.’s SMF ¶ 59. 

FEMA also demonstrates, see Mahone Decl. ¶ 139, without rebuttal from plaintiff, that Charge 1 

alone supports termination. Insofar as plaintiff relies on the cost comparison statement approved 

by Dawson as evidence discrediting Charge 1, her reliance is misplaced. She does not dispute 

FEMA’s factual proffer that “[a] signed cost-comparison statement has no bearing on the date by 

which all travel must [be] completed.” Def.’s SMF ¶ 61. Furthermore, neither Helms nor PSD 

has the “discretion to disagree with or overturn a disciplinary decision made by LER in regard to 

employee conduct.” Def.’s Reply at 10 (quoting Nadeau Decl. ¶ 17). 

Third, plaintiff argues that her response to the LOI alone establishes that “her hire would 

be consistent with successful performance,” such that she should have been “adjudicated as fit 

for employment.” Pl.’s Opp’n at 14. She points to her years’ long work history with FEMA, her 

qualifications for the housing inspector position, past satisfactory performance evaluations, and 

candid cooperation with Helms’ investigation. See id. Additionally, plaintiff discounts the 

significance of her termination, noting that her appeal had not been decided on the merits. Id. In 

this circumstance, she argues, the information at Helms’ disposal “provide[s] no support for a 

finding that [plaintiff] had a . . . problematic ‘pattern of behavior[.]’” Id. at 15. This supposed 

pattern of behavior, she notes, did not dissuade Abell from declaring her fit for FEMA 

employment in 2019, thereby “suggest[ing] that the reasons for failing to hire her previously 

were pretextual.” Id. 
29

Regardless of plaintiff’s qualifications and past satisfactory performance, FEMA 

demonstrates that an applicant’s “ability to satisfactorily perform her work has no relationship or 

influence on fitness for duty wherein conduct is at issue.” Nadeau Decl. ¶ 7. Nor does plaintiff 

demonstrate that Abell’s favorable fitness determination in 2019 betrays an improper motive on 

FEMA’s part in its unfitness determination in 2017. 

By the time plaintiff applied for her current position, she was required to undergo a new, 

full background investigation with which she complied by, among other things, providing 

“unsolicited information regarding her previous termination.” Nadeau Decl. ¶ 25. Plaintiff’s 

personnel records remained unchanged, and her termination based on Charge 1 stood. See id. ¶ 

26. Nevertheless, given the lapse of time between termination in February 2017 and fresh 

background investigation in January 2019, and upon Abell’s belief that the conduct giving rise to 

her termination no longer was disqualifying, plaintiff survived the pre-appointment phase. See 

id. ¶ 27. Consequently, FEMA hired plaintiff, and she has been an Administrative Support 

Assistant since May 12, 2019. Def.’s SMF ¶ 104.

FEMA produces evidence from which a reasonable jury could conclude that it had a 

legitimate nondiscriminatory reason for declaring plaintiff unfit for appointment as a housing 

inspector with a FEMA contractor. Its own records show that plaintiff was subjected to 

discipline three times within a short time period: counseling in August 2016, an Official 

Reprimand for a travel-related matter in October 2016, and termination arising from another 

travel-related matter in February 2017. Plaintiff denies having been counseled, but she points 

only to her own emails and deposition testimony in support. This meager showing does not 

rebut the record evidence, namely the Official Reprimand, and plaintiff does not show that 

FEMA’s reliance on its own personnel records was improper or otherwise suspect. Further, a 
30

reasonable jury could conclude that plaintiff’s conduct, including her misguided attempts to 

appeal her termination, displayed a pattern of disregard for rules and instructions. 

Having considered plaintiff’s submission, the Court concludes that she fails to 

demonstrate that FEMA’s proffered legitimate nondiscriminatory reason for its fitness 

determination is pretext for discrimination. It is her burden to prove that FEMA’s discriminatory 

animus was the “but for” cause of its fitness determination, and she fails to meet that burden. 

B. November 1, 2017 Withdrawal of Offer for Local Hire Customer Services

Representative Position with FEMA

Although plaintiff’s Amended Complaint fails to mention her application for the local 

hire Customer Services Representative position, she argues that FEMA’s withdrawal of its 

tentative job offer properly is before the Court. See Pl.’s Opp’n at 8-9. FEMA moves for 

summary judgment on the ground that plaintiff failed to exhaust this claim administratively 

before filing her lawsuit. See Def.’s Mem. at 16-17.

1. Exhaustion of Administrative Remedies

Generally, Title VII requires exhaustion of administrative remedies before a plaintiff may 

file an employment discrimination action in federal district court. See Payne v. Salazar, 619 

F.3d 56, 65 (D.C. Cir. 2010) (citing Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 

1997)); Steele v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008) (“Because timely exhaustion of 

administrative remedies is a prerequisite to a Title VII action against the federal government,” a 

court may not consider a discrimination claim that has not been exhausted in this manner absent 

a basis for equitable tolling.” (quoting Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003)).

“A Title VII lawsuit following the EEOC charge is limited in scope to claims that are like or 

reasonably related to the allegations of the charge and growing out of such allegations.” Park v. 

Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)) (internal citation and quotation marks 
31

omitted); Payne, 619 F.3d at 65 (reinforcing Park holding insofar as claims in civil suit must 

arise from the administrative investigation that can reasonably be expected to follow the charge 

of discrimination); see also Shipman v. Nat’l R.R. Passenger Corp. (AMTRAK), 241 F. Supp. 3d 

114, 123 (D.D.C. 2017) (citation omitted), aff’d sub nom. Shipman v. Nat’l R.R. Passenger 

Corp., No. 17-5066, 2017 WL 4217244 (D.C. Cir. Aug. 1, 2017) (noting that if the alleged 

discriminatory acts are “not articulated in the administrative charge, are not reasonably related to 

the allegations in the charge, and do not fall within the scope of any administrative investigation 

that can reasonably be expected to follow, [plaintiff] may not proceed with these additional 

claims without first exhausting the administrative process.” ). 

This requirement of administrative exhaustion “serves the important purpose[ ] of giving 

the charged party notice of the claim and narrow[ing] the issues for prompt adjudication and 

decision.” Latson v. Holder, 82 F. Supp. 3d 377, 384 (D.D.C. 2015) (quoting Park, 71 F.3d at 

907) (internal quotation marks omitted). It is defendant’s burden to plead and prove an 

affirmative defense such as exhaustion of administrative remedies. See Colbert v. Potter, 471 

F.3d 158, 165 (D.C. Cir. 2006) (stating that statute of limitations under Title VII is an affirmative 

defense which defendant must plead and prove); Ellison v. Napolitano, 901 F. Supp. 2d 118, 124 

(D.D.C. 2012) (“Because untimely exhaustion of [Title VII] administrative remedies is an 

affirmative defense, the defendant bears the burden of pleading and proving it.”).

2. Plaintiff’s 2017 EEO Charge and 2017 ROI

FEMA demonstrates, and plaintiff concedes, that the 2017 EEO Charge included only 

two non-selection claims: plaintiff’s non-selection in June 2017 for Cadre positions, and the 

unfitness determination in August 2017 resulting in her non-selection by contractor WSP for a 

housing inspector position. Def.’s SMF ¶ 97; see Def.’s Mem., 2017 ROI at Bates 000029. The
32

August 2017 unfitness determination corresponds to the first claim in plaintiff’s Amended 

Complaint. See Am. Compl. at 5. Missing from both the 2017 EEO Charge and Amended 

Complaint is a claim pertaining to the November 1, 2017 ineligibility determination and the 

resulting withdrawal of FEMA’s tentative offer for the local hire Customer Services

Representative position. FEMA argues, then, that plaintiff did not exhaust this claim 

administratively before filing this lawsuit. See Def.’s Mem. at 16-17. 

Plaintiff, nevertheless, insists that this claim may properly be considered. She claims to 

have exhausted her administrative remedies “by reporting the unfair adjudication and 

nonselection events to the EEO investigator” to whom the 2017 ROI was assigned “at the outset 

of the investigation[.]” Pl.’s Opp’n at 8. Plus, her deposition testimony reflects her intention to 

amend the 2017 EEO charge, see id., although she has changed her tune now to argue no formal 

amendment of the 2017 EEO Charge is necessary to exhaust the November 1, 2017 claim 

“because it was addressed in the investigation and was related to her other nonselection claims in 

the complaint[.]” Id. at 9. 

Plaintiff’s assertion that the November 1, 2017 claim is addressed in the 2017 ROI is a

stretch too far. The investigator’s summary of plaintiff’s testimony merely mentions plaintiff’s 

receipt of Mehta’s November 1, 2017 email notifying her that she had been found ineligible for 

the local hire Customer Service Representative position. See 2017 ROI at Bates 000006-007

(“She states that she received an email from Nirali Mehta on November 1, 2017, which stated 

that Personnel Security had found her ineligible for the Local Hire Customer Service 

Representative position under Vacancy Announcement FEMA-17-NPSC-TX-LH.”). Plaintiff 

cites no authority for the proposition that an email to an EEO investigator about an intention of 

amending the then-pending 2017 EEO Charge amounts to the actual amendment of that Charge. 
33

The three matters accepted for investigation do not include the November 1, 2017, claim, see 

2017 ROI at 000029, and the 2017 ROI’s brief reference to it, make apparent that no 

investigation of the November 1, 2017, determination was undertaken as part of the defined 

scope of review of plaintiff’s formal 2017 EEO Charge. 

Plaintiff is no more persuasive in arguing that the November 1, 2017 claim was related to 

any of the claims actually pled in the Amended Complaint. Plaintiff presumes that Helms’

“negative fitness determination” of August 22, 2017 undergirded FEMA’s subsequent 

determinations. Pl.’s Opp’n at 9. For this reason, she claims to have exhausted her 

administrative remedies “[b]ecause every subsequent nonselection event arose from [that] 

negative fitness determination, which was explored at length in the 2017 EEO investigation[.]”

Id. FEMA refutes this presumption, however, by demonstrating that the post-August 2017 

decisions, including the November 1, 2017 withdrawal of a tentative job offer, stemmed not from 

Helms’ adjudication but from a “separate and distinct ineligible determination made in 

September 2017,” Def.’s Reply at 5, under expedited hiring procedures for disaster-related 

positions, see id. at 6. Thus, a different reviewer relying on information in plaintiff’s file and 

applying different criteria deemed plaintiff ineligible for the local hire position. In the response 

that plaintiff was permitted to submit, she offered no further argument on the topic of exhaustion.

See generally Pl.’s Surreply, ECF No. 58; December 21, 2020 Minute Order (authorizing 

plaintiff to file surreply).

The Court finds, based on the record presented, that plaintiff did not amend the 2017 

EEO Charge to include as part of her discrimination claims the November 1, 2017 ineligibility 

determination, that the investigator did not include that determination in the 2017 ROI, and that 

FEMA did not have notice of a discrimination claim arising from the November 1, 2017 
34

determination asserted against it. Thus, plaintiff did not exhaust her administrative remedies 

regarding the November 1, 2017 ineligibility determination and resulting withdrawal of FEMA’s 

tentative job offer. 

Accordingly, the Court grants summary judgment in FEMA’s favor on the November 1, 

2017 claim for failure to exhaust this claim in administrative proceedings first. See, e.g., Pickett 

v. Brennan, No. 19-5170, 2020 WL 873526, at *1 (D.C. Cir. Feb. 13, 2020) (per curiam) 

(granting summary affirmance of dismissal of Title VII claim where appellant had not shown he 

had exhausted administrative remedies); Amiri v. Securitas Sec. Servs. USA, Inc., 608 F. App’x 

15 (D.C. Cir. 2015) (affirming dismissal of Title VII claim because plaintiff had not presented

the claim in his administrative charge); see also Tapp v. Wash. Metro. Area Transit Auth., 283 F. 

Supp. 3d 1, 6 (D.D.C. 2017) (concluding that plaintiff’s “visit to an EEOC office and his 

conversation with an EEOC employee are not a substitute for the statutorily required written 

charge and do not amount to exhaustion of his administrative remedies”).

III. CONCLUSION

For the reasons discussed above, the Court concludes that plaintiff has failed to produce 

sufficient evidence to create a genuine issue of fact that, if resolved in her favor, would support 

her claims. Accordingly, FEMA’s summary judgment motion is GRANTED. An Order 

reflecting this decision is issued separately.

DATE: March 11, 2021 /s/ Beryl A. Howell

BERYL A. HOWELL

Chief Judge

U.S. District Court for the District of Columbia