Dunbar v. Foxx
246 F. Supp. 3d 401
| D.D.C. | 2017Background
- Nadra Dunbar, a GS-14 HR specialist at NHTSA, alleges Title VII and §1981 retaliation, hostile work environment, CSRA and WPA violations after she assisted a coworker (Robinson) with an EEO claim and later filed her own EEO charges; she was terminated in July 2014.
- Key disputed personnel events: (1) 2010 reclassification removing team-leader duties (no pay change); (2) recurring disputes over late/inaccurate FY training plans and purchase-card approvals in 2010–2012; (3) August 2011 performance rating of “Achieved Results/Meets Expectations” and alleged dilution of duties; (4) April 2012 transfer removing training-officer duties and relocating her; (5) alleged computer/email tampering discovered in May 2014; (6) proposed removal and termination in mid-2014 followed by mixed-case MSPB appeal.
- Procedural posture: NHTSA moved to dismiss or for summary judgment; the court treated the motion as a summary-judgment motion because both sides relied on extra-pleading materials.
- The court dismissed Dunbar’s §1981 claim (federal employees must use Title VII) and dismissed WPA claim for lack of jurisdiction; it granted summary judgment for NHTSA on most pre-termination retaliation allegations but preserved specific retaliation and hostile-environment claims.
- Claims surviving summary judgment: (1) Title VII retaliation based on the August 2011 lowered performance evaluation (which allegedly cost a bonus), (2) August 2011 dilution of duties, (3) April 2012 transfer/relocation, (4) a retaliatory hostile work environment claim, and (5) a Title VII termination claim (subject to briefing on whether to stay pending MSPB resolution).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Section 1981 claim available to federal employee | Dunbar asserted race-based claims under §1981 | NHTSA: Title VII is the exclusive remedy for discrimination in federal employment | Court: Dismissed §1981 claim (Title VII exclusive) |
| Protected activity and timing for Title VII retaliation | Dunbar claims she engaged in protected opposition as early as Feb 2011 and aided Robinson (EEO) | NHTSA: No contemporaneous Title VII opposition was communicated in Feb; protected activity began in April 2011 | Court: Credited Dunbar’s earlier sworn EEO statements; protected activity found to begin in April 2011 |
| Causation for retaliation (but-for standard) | Dunbar: adverse actions escalated after protected activity and were causally connected | NHTSA: performance problems predated protected activity and explain adverse actions | Court: Fact issues exist; reasonable juror could find causation, so many retaliation claims survive summary judgment on causation |
| Materially adverse pre-termination actions | Dunbar: many acts (nit-picking, surveillance, failed projects, lowered ratings, loss of bonus, transfer) were materially adverse | NHTSA: many incidents are petty workplace disputes not materially adverse | Court: Granted summary judgment for NHTSA on most pre-termination incidents but held three discrete pre-termination actions as materially adverse: Aug 2011 lowered rating (and lost bonus), Aug 2011 dilution of duties, April 2012 transfer/relocation |
| Hostile work environment (retaliation theory) | Dunbar: cumulative retaliatory acts created abusive conditions (frequent scrutiny, ridicule, reassignment, alleged tampering, isolation) | NHTSA: conduct is ordinary workplace friction | Court: Denied summary judgment on hostile-work-environment retaliation; allegations sufficiently severe/pervasive to proceed |
| Termination claim and MSPB jurisdiction | Dunbar: mixed-case MSPB appeal pending >120 days allows district-court Title VII suit; she seeks adjudication here | NHTSA: argues overlapping MSPB proceedings or exhaustion bars court consideration | Court: Title VII termination claim may proceed in district court because >120 days elapsed; court ordered briefing on whether to stay pending MSPB final decision |
| Whistleblower Protection Act (WPA) claim | Dunbar alleges OIG/OSC complaints about computer/email tampering and other wrongdoing | NHTSA: court lacks jurisdiction because procedural OSC/MSPB steps not shown | Court: Dismissed WPA claim for lack of jurisdiction (procedural hurdles not shown) |
Key Cases Cited
- Richardson v. Wiley, 569 F.2d 140 (D.C. Cir. 1977) (Title VII is the exclusive judicial remedy for discrimination in covered federal employment)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (retaliation claims require but-for causation)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (standard for materially adverse action in retaliation context)
- Butler v. West, 164 F.3d 634 (D.C. Cir. 1999) (district court may assume jurisdiction over mixed-case when MSPB does not issue decision within 120 days)
- Baird v. Gotbaum, 792 F.3d 166 (D.C. Cir. 2015) (hostile-work-environment retaliation recognized when cumulative retaliatory acts become actionable)