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.,

(D.C. Cir. 1985) (“the head of the agency is the only proper defendant in a Title VII action”); Davis v. Califano,

, 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,

(D.C. Cir. 1995) (dismissing claims brought against individual defendant in his personal capacity because he could not be liable for Title VII violations). 1 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.

2 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,

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,”

, not from

appropriated funds,

. These employees are not entitled to appeal an employment action to

the Merit Systems Protection Board.

“If any appeal rights are afforded an employee in one

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

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

provisions set forth in

in regard to determining suitability (or fitness) for federal

service to include the Due Process rights therein.”

. Instead, FEMA promulgated an

equivalent standard,

; 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

3 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[.]”

Ex. 7 at 20. Under

, too, misconduct is a factor to “be considered a basis finding a person unsuitable”

for employment.

(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.”

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,

4 “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.”

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.

The Reservist would not be reimbursed

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

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.”

. 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.”

. 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.”

. 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.

5 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,”

. She

reported to DSA Branch I Director Mary Dawson.

. Esther Herrera was the Task Force

Leader for that Branch. See

.

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.”

. Plaintiff

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

December 23, 2016,

, 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,”

, and a Reservist could “deviate from the authorized travel dates [only]

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

providing for different travel arrangements,”

. Dawson returned plaintiff’s timesheet with

instructions that she review it. See

. Plaintiff responded that “she would change her

hours after completing a cost-comparison statement.”

.

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.

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

unaware she could not travel on a Saturday,

, as she had done while “work[ing] with

other Branch Directors for other deployments,”

. She also informed Dawson that she had

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

; 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

; see

.

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

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

.

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],”

7 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.

; 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.”

.

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. 8 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 HS-

FEMA-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 non-

deployment 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

, “because of [p]laintiff’s non-compliance when

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

9 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.”

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.

10

.

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.”

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.

11 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,”

.

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

reviewed the case[.]”

. 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

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.

12 (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.

. Plaintiff applied for

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

inspector with WSP[.]”

; 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,”

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],”

(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

13 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

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 14 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.”

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.”

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.”

.

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.”

. The Official Reprimand’s reference to

15 “demobilization” was described as “a travel related issue.”

The Official Reprimand also

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

unprofessional emails.”

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.”

. 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 five-

day period, as another demonstration of her “disregard for written policy[.]”

.

“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.”

. 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

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.

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

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

16 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.

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.”

. 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.”

.

(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.

.

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.”

In this circumstance, a reviewer makes “a straight-

forward pass or fail decision based on . . . the applicant’s responses on the OF306,” among other

documents.

“Under expedited hiring procedures, there was no requirement to reach out to

17 the applicant for any information regarding her termination.”

When PSD received the

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

was less than 30-days old.

.

Pia Warrington was assigned to this matter.

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

.

18 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-JMB-

256852-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[.]”

. For these reasons, FEMA required plaintiff “to submit to a new,

full background investigation.”

PSD received the request to process plaintiff’s case on February 7, 2019,

, and

assigned James Abell to adjudicate this matter,

. 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.”

Jackson “advised that the charges and specifications had

been amended to remove [Charge 2 for] Failure to Follow Agency Policy,”

and an amended

Notice of Termination had been issued, see

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].”

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

establishing “sufficient rehabilitation.”

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.

. 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.

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,”

, specifically “[t]o Erik Skinner, James

20 Montgomery [and] Donna Peterkin,”

. 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

21 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,

(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.,

(1986); Allen v. Johnson,

(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,

)). A court

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

light most favorable to the nonmovant, Liberty Lobby,

, and “eschew[s] making

credibility determinations or weighing the evidence,” Czekalski v. Peters,

(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.

22 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,

(1973).” Chambers v. District of Columbia, No. 19-7098,

, at

*5 (D.C. Cir. Feb. 19, 2021) (citing Walker v. Johnson,

(D.C. Cir. 2015));

see Figueroa v. Pompeo,

(D.C. Cir. 2019). Plaintiff’s first task is to

establish a prima facie case of discrimination, see

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.”

(quoting Walker,

). “Once the

plaintiff clears that hurdle, the ‘burden shifts to the employer to identify the legitimate, non-

discriminatory or non-retaliatory reason on which it relied in taking the complained-of action.’”

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,

(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.,

(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,

(1993). Instead, “the plaintiff, to defeat summary

23 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,

, 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,

(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,

(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.”

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

24 “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,

(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.,

. 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

, 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,

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

(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

, 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

, see Pl’s Surreply at 2, the record makes clear that suitability determinations are made under

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;

(b), as it was here. 25 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

This email, she states, also advised Helms of a then-upcoming “mediation

to ‘clear her name.’”

Plaintiff faults Helms for declining her offer, obtaining copies of the

Official Reprimand and Notice of Termination from LER instead, see

and relying on the

Official Reprimand without offering her an opportunity to respond to it, see

. 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

. In support, plaintiff points to her narrative statement

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

, 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

26 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.

. 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

. 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

. 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.

27 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

Additionally, plaintiff discounts the

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

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[.]’”

. 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.”

28 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

. 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

. 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

29 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,

(D.C. Cir. 2010) (citing Bowden v. United States,

(D.C. Cir.

1997)); Steele v. Schafer,

(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,

(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.,

(D.C. Cir. 1995)) (internal citation and quotation marks

30 omitted); Payne,

(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),

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

Corp., No. 17-5066,

(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,

(D.D.C. 2015) (quoting Park,

) (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,

(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,

(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

31 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

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.

32 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

33 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,

, 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.,

(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.,

(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

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