# Robb v. Vilsack

> District Court, District of Columbia · June 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11064633

## Case

- **Court:** District Court, District of Columbia
- **Decided:** June 4, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Magistrate Judge G. Michael Harvey
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
FAHRAN ROBB, )
) Case No. 21-cv-2056 (JDB/GMH)
Plaintiff, )
)
v. )
)
BROOKE ROLLINS, Secretary, )
United States Department of Agriculture, )
)
Defendant. 1 )
____________________________________)

MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION

In this, Plaintiff Fahran Robb’s second action challenging various actions taken against her

by her former employer, she claims that the Department of Agriculture (“Defendant,” the “Depart-

ment,” or the “government”) terminated her employment in violation of the Rehabilitation Act, 29

U.S.C. § 701 et seq., and Title VII, 42 U.S.C. § 2000e et seq., and challenges two decisions by an

Administrative Judge of the Merit Systems Protection Board (“MSPB” or the “Board”) upholding

discipline imposed on Plaintiff, both of which involve allegations of whistleblower retaliation.

Specifically, she alleges that the Department dismissed her because of her gender in violation of

Title VII (Count I), because of her disability in violation of the Rehabilitation Act (Count II), and

as retaliation for protected activity in violation of both Title VII and the Rehabilitation Act (Count

III). Plaintiff also seeks review of the MSPB’s May 26, 2021, decision determining that there was

1
Secretary of Agriculture Brooke Rollins is substituted as Defendant pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure. See Fed. R. Civ. P. 25(d). Because “[a]n official-capacity suit against an agency or agent of the
federal government is the equivalent of a suit against the United States of America,” Davis v. Mukasey, 669 F. Supp.
2d 45, 49 (D.D.C. 2009), the Court does not refer to the Secretary herself as the defendant in this Report and Recom-
mendation, but rather to the government or the agency as Defendant.
sufficient cause for her termination (Count IV) and that it was not the product of whistleblower

retaliation (Count V); and the MSPB’s June 24, 2021, decision finding that a handful of other

adverse employment actions were not retaliation for whistleblowing (Count VI). Defendant has

moved for summary judgment on all claims and, alternatively as to Count VI, dismissal for lack

of jurisdiction. 2 For the reasons that follow, Plaintiff’s claims under the Rehabilitation Act (Count

II and part of Count III) should be dismissed for lack of jurisdiction. The Court should also find

that it lacks jurisdiction over Plaintiff’s appeal of the MSPB’s June 24, 2021, decision (Count VI),

which means that claim should either be dismissed without prejudice or transferred to an appro-

priate court under 28 U.S.C. § 1631. Defendant’s motion for summary judgment should be granted

on all other claims.

I. JURISDICTION UNDER THE CIVIL SERVICE REFORM ACT

Conventionally, the undersigned would begin with a recitation of the facts, but because the

Court clearly lacks jurisdiction over Count VI it makes sense to dispense with that claim at the

outset. 3

This case involves the Civil Service Reform Act (“CSRA”), a statute with complex rules

governing the jurisdiction of various federal courts to review a decision of the MSPB, which is

“an independent, quasi-judicial federal administrative agency that was established by the Civil

2
The documents most relevant to this Memorandum Opinion and Order are: (1) Plaintiff’s Complaint and its substan-
tive attachments, ECF Nos. 1 and 1-1 through 1–11, 1-14; (2) Defendant’s motion for summary judgment, its State-
ment of Material Facts, and the accompanying exhibits, ECF Nos. 41 and 41-1 through 41-4; (3) Plaintiff’s opposition,
its Response to Defendant’s Statement of Material Facts, and the accompanying exhibits, ECF Nos. 46 and 46-1
through 46-5; and (4) Defendant’s reply and accompanying exhibits, ECF Nos. 58 and 58-1. The page numbers cited
herein are those assigned by the Court’s CM/ECF system, not the page numbers of the filed document.
3
The undersigned also recommends dismissing for lack of jurisdiction Plaintiff’s claim of discrimination under the
Rehabilitation Act, which is Count II of the Complaint, and her claim of retaliation under the Rehabilitation Act,
which is included in Count III of the Complaint. Those issues are discussed in Section IV.A.1 and IV.B.1, infra.

2
Service Reform Act . . . to review civil service decisions.” 4 Jones v. U.S. Dep’t of Just., 111 F.

Supp. 3d 25, 31 (D.D.C. 2015). As the Supreme Court has explained, “The CSRA ‘establishes a

framework for evaluating personnel actions taken against federal employees.’” Perry v. Merit Sys.

Prot. Bd., 582 U.S. 420, 423 (2017) (quoting Kloeckner v. Solis, 568 U.S. 41, 44 (2012)). A federal

employee who has suffered a “particularly serious” employment action, such as “a removal from

employment or a reduction in grade or pay” may “appeal the agency’s decision to the MSPB.”

Kloeckner, 568 U.S. at 44; see also 5 U.S.C. § 7512 (listing five types of employment actions

reviewable by the MSPB). “Such an appeal may present a civil-service claim only,” such as an

allegation “that ‘the agency had insufficient cause for taking action under the CSRA.’” Perry, 582

U.S. at 423–24 (quoting Kloeckner, 568 U.S. at 44). However, it “may also or instead charge the

agency with discrimination prohibited by another federal statute” like Title VII or the Rehabilita-

tion Act. Kloeckner, 568 U.S. at 44; see also 5 U.S.C § 7702(a)(1). “When an employee complains

of a personnel action serious enough to appeal to the MSPB and alleges that the action was based

on discrimination, she is said (by pertinent regulation) to have brought a ‘mixed case.’” Kloeckner,

568 U.S. at 44 (emphasis in original) (citing 29 C.F.R. § 1614.302).

Claims challenging less serious employment actions can also be brought before the MSPB.

The Whistleblower Protection Act (or “WPA”) makes it “a ‘prohibited personnel practice’ for a

government agency to take a ‘personnel action’ against an employee because of his disclosure of

illegal activity or of ‘gross mismanagement, a gross waste of funds, . . . or a substantial and spe-

cific danger to public health or safety.’” Weber v. United States, 209 F.3d 756, 757–78 (D.C. Cir.

4
Plaintiff objects to Defendant’s characterization of the Administrative Judge’s decisions here as decisions of the
MSPB, asserting that “[i]t was one MSPB Judge [whose] opinion is subject to review by this Court.” See ECF No.
46-5, ¶ 4 & n.1. However, the governing regulations provide that, subject to certain exceptions not relevant here,
“[t]he initial decision of the judge will become the Board’s final decision 35 days after issuance.” 5 C.F.R. § 1201.113.
The decisions are therefore properly characterized as decisions of the Merit Systems Protection Board.

3
2000) (alteration in original) (quoting 5 U.S.C. § 2302(b)(8)). The CSRA “broadly defines a ‘per-

sonnel action’ to include most employment-related decisions, such as appointment, promotion,

work assignment, compensation, and performance reviews.” Babb v. Wilkie, 589 U.S. 399, 405

(2020) (citing 5 U.S.C. § 2302(a)(2)(A)). “An employee who believes he has been the victim of a

prohibited personnel practice must first complain to the [U.S. Office of Special Counsel], which

is required to investigate the complaint”; if that investigation does not find “reasonable grounds to

believe that a prohibited personnel practice has occurred,” Weber, 209 F.3d at 758 (quoting 5

U.S.C. § 1214), the employee may “file an appeal—known as an Individual Right of Action

(IRA)—with the MSPB,” Schlottman v. Perez, 739 F.3d 21, 23 (D.C. Cir. 2014). A case before

the MSPB alleging “both discrimination and WPA claims” is also a termed a “mixed case.” Mont-

gomery v. Mayorkas, Nos. 23-cv-3931, 24-cv-1697, 2024 WL 4973406, at *5 (D.D.C. Dec. 4,

2024) (quoting Stella v. Mineta, 284 F.3d 135, 143 (D.C. Cir. 2002)); see also, e.g. Brown v.

Ulmer, No. 21-cv-3128, 2022 WL 226878, at *2 (D.D.C. Jan. 21, 2022) (describing a “mixed case”

as “involving the WPA in combination with claims under other viable federal anti-discrimination

employment statutes”).

“Section 7703 of the CSRA governs judicial review of the MSPB’s decision.” Kloeckner,

568 U.S. at 45. The default rule is that “a petition to review a . . . final decision of the Board shall

be filed in the United States Court of Appeals for the Federal Circuit.” Id. (alteration in original)

(quoting 5 U.S.C. § 7703(b)(1)). There are two exceptions to that rule. Pursuant to Sections

7702(a)(1) and 7703(b)(1)(B), appeals of “mixed cases shall be filed in district court.” Id. at 50

(citing 5 U.S.C. §§ 7702(a)(1), 7703(b)(2)); see also Perry, 582 U.S. at 431 (“We announced a

clear rule in Kloeckner: ‘[M]ixed cases shall be filed in district court.’” (alteration in original)

(quoting Kloeckner, 568 U.S. at 50)). Additionally, under Section 7703(b)(1)(B), “when the

4
underlying substance of the complaint involves prohibited employer conduct related to whistle-

blower protections . . . , a petition for review may be filed in any court of appeals of competent

jurisdiction.” Boyd v. U.S. Dep’t of Veterans Affs., 808 F. App’x 1015, 1016 (11th Cir. 2020)

(citing 5 U.S.C. § 7701(b)(1)(B)). That is, the federal district courts have jurisdiction only over

mixed cases, which by definition must allege “that a basis for the action was discrimination pro-

hibited by [the Civil Rights Act, the Fair Labor Standards Act, the Rehabilitation Act, the Age

Discrimination in Employment Act, or any rule, regulation, or policy directive prescribed under

those Acts],” Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328 (Fed. Cir. 2006) (alteration

in original) (quoting 5 U.S.C. § 7702(a)(1)(B)); moreover, mixed cases must be brought in a district

court, see, e.g., Kloeckner, 568 U.S. at 50; cf. Baca v. Dep’t of the Army, 983 F.3d 1131, 1138

(10th Cir. 2020) (finding that the court of appeals had jurisdiction over the plaintiff’s claim because

he “filed an explicit waiver of his discrimination claim” (quoting 5 C.F.R. § 1201.157 (providing

that courts of appeals may review a mixed case if the employee “elects to waive the discrimination

issue”))). It follows that “[a] federal district court does not have subject matter jurisdiction over

claims brought [exclusively] under the Whistleblower Protection Act.” Montgomery, 2024 WL

4973406, at *5; see also Bell v. Esper, No. 18-cv-2277, 2019 WL 6910032, at *3 (D.D.C. Dec. 19,

2019) (noting that “claims arising under” the Whistleblower Protection Act “shall be filed in the

United States Court of Appeals for the Federal Circuit or any court of appeals of competent juris-

diction” and “[b]ecause this Court is not a Court of Appeals, it . . . lacks jurisdiction over a WPA

claim on appeal from the MSPB” (quoting 5 U.S.C. § 7703(b)(1)(B))). Rather, “‘pure’ WPA cases

may only be reviewed by the courts of appeals.” Gammill v. U.S. Dep’t of Educ., 989 F. Supp. 2d

118, 121 (D.D.C. 2013); see also Chinniah v. FERC, 62 F.4th 700, 702 (2d Cir. 2023) (“‘A petition

to review a final order . . . of the Board’ that raises a claim under only the WPA ‘shall be filed in

5
the United States Court of Appeals for the Federal Circuit or any court of appeals.’” (alteration in

original) (quoting 5 U.S.C. § 7703(b)(1)(B))); Brown, 2022 WL 226878, at *2 (“While a plaintiff

may plausibly bring a ‘mixed case’ in this District—i.e., involving the WPA in combination with

claims under other viable federal anti-discrimination employment statutes—plaintiff has filed a

‘pure’ WPA case, therefore depriving this court of jurisdiction.”); cf. Baca, 983 F.3d at 1137–38.

The Federal Circuit has explained that “IRA appeals are never ‘mixed cases’” because “[d]iscrim-

ination claims may not be raised in that context”—rather IRA appeals by definition raise only

whistleblower allegations. Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1327 (Fed. Cir. 2020)

(citing 5 C.F.R. § 1209.2(c) (“In an individual right of action appeal, the only merits issues before

the Board are . . . whether the appellant has demonstrated that whistleblowing or other protected

activity was a contributing factor in one or more covered personnel actions and, if so, whether the

agency has demonstrated by clear and convincing evidence that it would have taken the same

personnel action(s) in the absence of the whistleblowing or other protected activity.”)).

Plaintiff filed two separate complaints with the MSPB. The first, filed on April 1, 2020,

alleged that she engaged in numerous whistleblower activities, including disclosure to manage-

ment that “alcohol was being illegally brought into the workplace,” that her mail was being tam-

pered with in violation of federal law, and that a “propose[d] performance standard[]” imposed by

management was “illegal on its face.” ECF No. 1-1 at 17–18. She maintained that numerous

adverse actions—a letter of reprimand, a workstation reassignment, a five-day suspension, a limit

on her communications with Department personnel, a letter of caution, a proposed fourteen-day

suspension, a revocation of her telework agreement and suspension of her ID badge, and a place-

ment on indefinite excused leave—were reprisals for her whistleblowing activity. See id. at 11–

14, 18–19. That case was ultimately identified as MSPB Docket No. DC-1221-20-0511-W-2, and

6
Defendant refers to it as the “W-2 Whistleblower Case.” ECF No. 41-1 at 3; see also ECF No.

41-4 at 2. The second, filed on July 2, 2020, alleged that her termination was “generally unfair”

because it was based on procedural errors, involved concealment or falsification of evidence, and

was unsupported by the facts, and that it constituted both “Whistleblower Retaliation” (based on

the same disclosures alleged in the W-2 Whistleblower Case) and “Title VII and Rehabilitation

Act Discrimination.” ECF No. 1-7 at 23–24; ECF No. 41-1 at 3. That case was ultimately identi-

fied as MSPB Docket No. DC-0752-20-0731-I-2, and Defendant refers to it as the “I-2 Removal

Case.” ECF No. 41-1 at 3; see also ECF No. 41-3 at 2. Although the two complaints were the

subject of one consolidated hearing before the Administrative Judge, they resulted in two separate

decisions. See ECF No. 41-3 (decision on the I-2 Removal Case); ECF No. 41-4 (decision on the

W-2 Whistleblower Case).

Defendant acknowledges that the “I-2 Removal Case is a mixed case as Plaintiff made

claims of improper removal from federal service, an action directly appealable to the Board per

5 U.S.C. § 7512, and also claimed Title VII and Rehabilitation Act violations” as well as whistle-

blower reprisal. ECF No. 41-1 at 3–4. And, as explained above, only district courts have juris-

diction to review MSPB decisions in mixed cases in the first instance. However, Defendant main-

tains that “the W-2 Whistleblower Case is not a mixed case as it was limited to whistleblower

retaliation claims.” Id. at 4. Accordingly, it seeks dismissal for lack of jurisdiction of Count VI,

the count seeking review of the decision on the W-2 Whistleblower Case. 5 See id. at 28.

5
Defendant also argues the merits of the claim Plaintiff alleges in Count VI. See ECF No. 41-1 at 10–13, 27–28; ECF
No. 58 at 14–16. There is no need to address those arguments because the claim should be dismissed on jurisdictional
grounds, as discussed below. See, e.g., Montgomery, 2024 WL 4973406, at *5 (“A federal district court does not have
subject matter jurisdiction over claims brought [exclusively] under the Whistleblower Protection Act[.]”).

7
Defendant’s characterization of the W-2 Whistleblower Case is accurate, as should be clear

from the outline of the complaint above. That is confirmed by a review of (1) the complaint form,

which acknowledges that Plaintiff was “filing an IRA appeal,” ECF No. 1-1 at 4; (2) the Admin-

istrative Judge’s decision in the case, which identifies the case before her as “an individual right

of action (IRA) appeal,” describes it as “alleging that the agency had taken certain personnel ac-

tions in retaliation for protected whistleblowing disclosures,” and fails to mention allegations of

discrimination, ECF No. 41-4 at 2–3; and (3) Plaintiff’s opposition here, which acknowledges that

the case was brought under the Whistleblower Protection Act as “an IRA,” ECF No. 46 at 10.

Accordingly, this Court cannot resolve that appeal. More, Plaintiff has failed to address Defend-

ant’s jurisdictional argument in her opposition. See ECF No. 46. She should therefore be deemed

to have conceded Defendant’s jurisdictional argument under the principle that “‘a party [who] fails

to address an argument that is put forth in a dispositive motion . . . may be deemed [to have] con-

ceded [it],’ and its corollary principle that a court ‘is not obliged to make argument on [a party’s]

behalf.’” Robb v. Rollins, No. 20-cv-929, 2025 WL 1025084, at *2 (D.D.C. Apr. 7, 2025) [here-

inafter Robb I] (citations omitted) (alterations in original) (first quoting Antoine v. U.S. Bank Nat’l

Ass’n, 821 F. Supp. 2d 1, 6 (D.D.C. 2010); and then quoting James v. Miche Bag Corp., No. 11-

cv-963, 2012 WL 13072049, at *2 (D.D.C. Mar. 30, 2012)).

Dismissal for lack of jurisdiction might seem like the appropriate remedy here. However,

under 28 U.S.C. § 1631, a court that finds it lacks jurisdiction over an action “shall, if it is in the

interest of justice, transfer such action or appeal to any other such court . . . in which the action or

appeal could have been brought at the time it was filed” and the action will thereafter proceed as

if it were filed in transferor court on the date it was filed in the transferee court. 28 U.S.C. § 1631.

“In determining whether transfer is in the interest of justice, the equities of dismissing a claim

8
when it could be transferred should be carefully weighed.” Liriano v. United States, 95 F.3d 119,

122 (2d Cir. 1996), as amended (Oct. 7, 1996). Courts in this Circuit consider factors such as

whether the plaintiff who filed in the incorrect forum “in good faith[] misinterpreted a complex or

novel jurisdictional provision,” Janvey v. Proskauer Rose, LLP, 59 F. Supp. 3d 1, 7 (D.D.C. 2014),

“whether the claims would be time-barred upon refiling, whether transfer would prejudice the [de-

fendant’s] position on the merits, and whether transfer would save the plaintiff the time and ex-

pense of refiling in a new district,” Does 1-144 v. Chiquita Brands Int’l, Inc., 285 F. Supp. 3d 228,

235 (D.D.C. 2018). Where, as here, no party has requested a transfer, a court “may on its own

initiative transfer a case under 28 U.S.C. § 1631”; the decision is “committed to the discretion of

the District Court.” Halim v. Donovan, 951 F. Supp. 2d 201, 204 (D.D.C. 2013) (quoting Jo-

vanovic v. US–Algeria Bus. Council, 561 F. Supp. 2d 103, 112 (D.D.C. 2008)). The D.C. Circuit

has itself declined to transfer a case where the plaintiff did not seek such a remedy, see Powell v.

Dep’t of Def., 158 F.3d 597, 600 n.3 (D.C. Cir. 1998), abrogated on other grounds as recognized

in Perry v. Raimondo, 101 F.4th 55, 62 (D.C. Cir. 2024), and has found that a district court that

refused to transfer a claim sua sponte did not abuse its discretion, see Baptichon v. U.S. Dep’t of

Educ., No. 23-5081, 2024 WL 119767, at *1 (D.C. Cir. Jan. 11, 2024). Other courts have requested

briefing on the issue. See, e.g., Becker v. Merit Sys. Prot. Bd., No. 2023-1102, 2023 WL 3262961,

at *1 (Fed. Cir. May 2, 2023) (considering its jurisdiction sua sponte and directing the parties to

show cause why the case should not be transferred under Section 1631 in the interest of justice).

It is not clear at this point whether the interest of justice counsels in favor of transfer to an

appropriate Court of Appeals. 6 Moreover, the question of whether Section 1631 permits a court

6
To be sure, Plaintiff’s request to review the MSPB’s decision in the W-2 Whistleblower Case would seem to be
time-barred if brought now in an appropriate Court of Appeals: the Administrative Judge’s decision was issued on
June 24, 2021; it became the final decision of the MSPB 35 days thereafter, see 5 C.F.R. § 1201.113, and a petition
for review was due 60 days after that, see 5 U.S.C. § 7703(b)(1)(B); see Nolan v. Dep’t of Energy, No. 2023-2242,

9
to transfer individual claims, rather than an entire “action or appeal,” appears to be unsettled.

Compare Shrader v. Biddinger, 633 F.3d 1235, 1249–50 (10th Cir. 2011) (“We are aware of no

authority even permitting, much less requiring, a district court to unilaterally split up an action and

transfer the resultant components to diverse jurisdictions under the auspices of § 1631.”), Hill v.

U.S. Air Force, 795 F.2d 1067, 1070 (D.C. Cir. 1986) (“Because Section 1631 directs a court to

transfer an ‘action’ over which it lacks jurisdiction, rather than an individual claim, we find that

the District Court did not abuse its discretion in failing sua sponte to transfer [the plaintiff’s] claims

against [his supervisor] in his personal capacity to the District Court in New Mexico.”), and

ITServe All., Inc. v. Cuccinelli, 502 F. Supp. 3d 278, 290 (D.D.C. 2020) (“The court cannot, how-

ever, transfer individual claims over which it lacks jurisdiction.” (citing Hill, 795 F.2d at 1070)),

2023 WL 7293884, at *1 (Fed. Cir. Nov. 6, 2023) (holding that the 60-day deadline in Section 7703(b)(1)(B) “is
mandatory and jurisdictional, and thus cannot be waived or tolled”). That date—September 27, 2021—has long
passed, which “militat[es] for a transfer.” Liriano, 95 F.3d at 122. Nor does it appear that Defendant’s position on
the merits would be prejudiced by a transfer, as this case will be decided on the administrative record and the govern-
ment has already briefed the issue, see ECF No. 41-1 at 27–28; ECF No. 58 at 14–16. And, as discussed in this
section, the jurisdictional rules of the CSRA are complex. On the other hand, Plaintiff is represented by an attorney
who holds himself out as an expert in whistleblower and MSPB cases, see About Morris E. Fischer, Morris Fischer
Attorney at Law, https://www.morrisfischerlaw.com/ [https://perma.cc/6L3U-L5T7], and so can be assumed to know
how to navigate those complexities. See Janvey, 59 F. Supp. 3d at 7–8 (finding the fact that the plaintiff was repre-
sented by “sophisticated counsel” who sued in the wrong forum weighed against transfer). Even if Plaintiff’s counsel
were somehow unaware of the jurisdictional problem at the outset of this case, Defendant provided him notice in its
Motion for Summary Judgment; yet counsel wholly disregarded the issue and failed to request a transfer. See North
v. Smarch, Inc., 160 F. Supp. 3d 63, 85 (D.D.C. 2015) (finding that a failure to request transfer weighed against
transferring the case). And once the relevant statutory sections are examined, the jurisdictional question is not a close
one. Those facts suggest that Plaintiff’s counsel might not have “in good faith[] misinterpreted a complex . . . juris-
dictional provision.” Janvey, 59 F. Supp. 3d at 7. Finally, “[i]n exercising th[e] discretion [to transfer rather than
dismiss a case], courts may take a ‘peek at the merits’ of the case to evaluate whether dismissal is more appropriate
because the claims have ‘obvious substantive problems.’” Hooli v. Mitcham, No. 24-cv-6, 2024 WL 4836419, at *5
(D.D.C. Nov. 20, 2024) (quoting Laukus v. United States, 691 F. Supp. 2d 119, 127 (D.D.C. 2010)), appeal filed, No.
25-7006 (D.C. Cir. Jan. 13, 2025). Plaintiff makes two cursory arguments that the Administrative Judge’s decision in
the W-2 Whistleblower Case should be reversed. The first—that Plaintiff’s five-day suspension for failing to follow
her supervisor’s directions to return a personnel form was “unjustified” and that “[t]he only explanation for” the su-
pervisor’s inclusion of another specification related to a failure to attend a meeting as directed “is retaliation,” ECF
No. 46 at 12—is conclusory and undermined by the discussion of the five-day suspension in the undersigned’s decision
in Plaintiff’s earlier case raising related issues, see Robb I, 2025 WL 1025084, at *17. The second, which relates to a
proposed fourteen-day suspension for failure to follow instructions that was later rescinded, is similarly undeveloped
and conclusory, insisting that the agency “didn’t prove the legitimacy of the charge[] by clear and convincing evi-
dence” as required. See ECF No. 46 at 12–13. More, neither argument addresses—or even acknowledges—the highly
deferential standard that must be applied to review of the decision. See Section IV.C., infra. Those substantive
problems may be seen to weigh against transfer.

10
with D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 110 (3d Cir. 2009)

(“[W]e have interpreted section 1631 to permit the transfer of all or only part of an action.”), and

Khalid v. Garland, No. 21-cv-2307, 2023 WL 8600506, at *3 (D.D.C. May 25, 2023) (interpreting

Hill as holding merely that “the district court had not abused its discretion by not transferring

individual claims to another court sua sponte” and noting that “the D.C. Circuit has transferred, or

directed the district court to transfer, individual claims under § 1631”). Accordingly, it would be

premature to make a recommendation on this issue in the absence of further input from the parties.

But delaying this Report and Recommendation until the parties submit further briefing allowing

the undersigned to analyze this single issue and recommend an outcome seems inefficient, espe-

cially as the parties will have the opportunity to file objections and responses to objections under

Rule 72(b). The undersigned therefore recommends they address a potential transfer under Section

1631 in any objections to this Report and Recommendation.

II. BACKGROUND 7

As noted, this is Plaintiff’s second action against her former employer, the Department of

Agriculture, alleging that it illegally discriminated and retaliated against her. Unlike her prior

action, which centered on various adverse employment actions preceding her dismissal, “[t]his

case pertains mostly to her termination.” ECF No. 46 at 2; see generally Robb I, 2025 WL 1025084

(opinion granting in part and denying in part the government’s motion for summary judgment).

Nonetheless, both parties here purport to “incorporate” or “rel[y]” on argument and evidence from

that prior case, which was consolidated with this one exclusively for purposes of discovery. 8 See,

7
Except where noted, the facts below are undisputed (or deemed undisputed) either because they have been admitted
in Plaintiff’s response to Defendant’s Statement of Material Facts (Plaintiff did not file a counter-statement), because
they appear in the record without contradiction from other evidence in the record, or because they appear in Defend-
ant’s Statement of Material Facts and have not been properly controverted.
8
Incorporation by reference is disfavored; it interferes with the efficiency of the court’s decision-making and compli-
cates the record. See, e.g., Brown v. District of Columbia, No. 17-cv-348, 2019 WL 3423208, at *7 (D.D.C. July 8,

11
e.g., ECF No. 41-1 at 2 n.1; ECF No. 46 at 5; ECF No. 58 at 2 n.1; see also ECF No. 16 (granting

“the parties’ joint motion to consolidate for discovery purposes”). The undersigned therefore in-

cludes certain relevant background facts from Robb I (further details can be found in that opinion,

see 2025 WL 1052084).

A. Factual Background

Plaintiff was first hired by the Department in November 2013 “as a contractor in the posi-

tion of Senior Agricultural Scientific Advisor (Biofuels) in the Office of Global Analysis, Global

Policy Analysis Division, Foreign Agricultural Service.” Robb I, 2025 WL 1025084, at *3. When

that contract ended, she accepted a position as an Agricultural Economist in the same office and

then, in May 2016, was reassigned “to the position of International Economist in the Office of

Agreements and Scientific Affairs, Plant Division, Foreign Agricultural Service.” Id. Plaintiff

contended that, beginning in August 2017, managers engaged in gender discrimination by

2019); Lecinsky v. Clark Cnty. Sch. Dist., 539 F. Supp. 3d 1121, 1129 n.8 (D. Nev. 2021) (noting that incorporation
by reference is disfavored because it fosters “a confusing presentation of arguments” among other things). That is
especially true here, where both parties have failed to include as exhibits to the summary judgment briefing in this
case evidence relevant to the claims here, citing instead such evidence attached as exhibits to the briefing on the
Motion for Summary Judgment in the prior case, although it was largely irrelevant there. See ECF No. 41-2, ¶¶ 8–
14, 22, 28, 53, 56–58, 61 (Defendant’s Statement of Undisputed Material Facts in support of its Motion for Summary
Judgment in this case citing the following exhibits to its Motion for Summary Judgment in Robb I: a Notice of Place-
ment on Administrative Leave issued to Plaintiff on April 4, 2018, see Robb I, ECF No. 56-17; a Notice of Proposed
Removal issued to plaintiff on March 18, 2020, and the file containing the materials relied in issuing the Notice of
Proposed Removal, see id., ECF Nos. 56-20, 56-21; testimony from the MSPB hearing on Plaintiff’s claims, see id.,
ECF No. 56-22; and a Notice of Decision issued to Plaintiff on June 2, 2020, see id., ECF No. 56-23); ECF No. 46-5,
¶¶ 12, 20, 22, 64 (Plaintiff’s Response to Defendant’s Statement of Material Facts in this case citing the following
exhibits to the summary judgment briefing in Robb 1: the transcript of the March 3, 2021, MSPB hearing, see ECF
No. 59-2 at 379, 532–34; a memorandum dated March 7, 2019, outlining the Anti-Harassment Policy of the Foreign
Agricultural Service, see id. at 650–56; and a January 17, 2020, Notice of Administrative Leave directed to Plaintiff,
see id. at 658). Indeed, failure to spell out relevant facts and arguments in a court submission by merely referring to
information in other submissions in the same case, let alone submissions in a different case, can lead to forfeiture. See
Phillips v. Okla. Dep’t of Corr., 79 F. App’x 380, 383 (10th Cir. 2003) (noting that incorporation by reference can
result in forfeiture of arguments). However, the undersigned will not deem the parties’ use of this unwelcome tech-
nique to have worked a forfeiture here, primarily because (1) both parties employ it, (2) the parties appear to have
accurately identified the evidence from Robb I cited, and (3) much of that evidence, although not included in the
exhibits attached to the summary judgment briefing here, is attached to Plaintiff’s Complaint in this case.

12
removing job duties from her purview and transferring the bulk of them to a male employee. See

id. at *4, *12.

“In November 2017, Plaintiff began to have interpersonal issues with colleagues.” Id. at

*5. On November 1, 2017, co-worker Julie Chao complained about Plaintiff’s behavior to Plain-

tiff’s supervisor, who asked Chao to leave the premises while he spoke to Plaintiff. See id. Ac-

cording to Chao, “when she returned to the office, Plaintiff told her, ‘No one likes a two-faced

bitch.’” Id. Another colleague, Cheryce Howard, asserted that, about one week later, “Plaintiff

approached her in an aggressive manner regarding a work issue, then ‘stomped out of the office

and said, “Fucking Bitch!”’ which caused Howard to fear for her safety.” 9 Id. (quoting the record).

Those incidents spurred an investigation that, in turn, resulted in a Letter of Caution issued to

Plaintiff in December 2017, and, ultimately, a Letter of Reprimand issued to Plaintiff in May 2018.

See id. at *5–6. During that same period, Plaintiff alleges that she “noticed that her mail was not

arriving as expected.” ECF No. 1-1 at 8. “[B]etween January and May of 2018 and again in

October 2018,” she reported to management, including her supervisor Mayra Caldera, that she

suspected her mail was being tampered with in violation of federal law. ECF No. 41-3 at 45.

On November 26, 2018, Caldera issued Plaintiff a Notice of Proposed 5-Day Suspension

for conduct unrelated to the incidents with Chao and Howard: the two specifications therein

charged Plaintiff with (1) failing to follow Caldera’s instructions to return Plaintiff’s performance

evaluation by a particular date and (2) failing to attend a meeting as directed by Caldera. Robb I,

2025 WL 1025084, at *6. Plaintiff alleges that, the day after she received the notice, she reported

to Caldera that it did not meet the requirements of the governing collective bargaining agreement.

See ECF No. 1-1 at 9; see also ECF No. 41-3 at 46. She further asserts that on February 21 and

9
Plaintiff asserts that Chao “perjured her statement” and that Howard “was in the wrong that day.” Robb I, 2025 WL
1025084, at *5 (quoting the record).

13
25, 2019, she engaged in whistleblowing activity by reporting the alleged violation of the collec-

tive bargaining agreement to various other Department officials, including Ken Isley, who was

then the Administrator of the Foreign Agricultural Service, and Assistant Deputy Administrator

Katherine Nishiura. See ECF No. 1-1 at 9; see also ECF No. 41-3 at 46. On February 25, 2019,

Nishiura ordered the five-day suspension, sustaining the specification related to the performance

evaluation because Plaintiff admitted she had not returned the form by the required date but dis-

missing the specification related to the meeting because Plaintiff’s use of sick leave prevented her

from attending it. See Robb I, 2025 WL 1025084, at *6.

On February 27, 2019, Caldera issued Plaintiff a Letter of Instruction requiring Plaintiff to

“cease and desist any/all communication regarding [Plaintiff’s] 5 day suspension with parties not

involved in the process,” including Foreign Agricultural Service Administrator Isley; Ted McKin-

ney, then the Under Secretary of Agriculture for Trade and Foreign Agricultural Affairs, a political

appointee confirmed by the Senate; and Sonny Perdue, then the Secretary of Agriculture; but ex-

cepting from the prohibition “any Civil Rights Staff or Office of Special [Counsel] Staff.” ECF

No. 1-5 at 97; see also ECF No. 41-3 at 8. It further cautioned Plaintiff that “[m]oving forward”

she must “not bypass procedure” or “involve persons outside of proper procedure” and instructed

her to “use the proper channels” when asserting her “rights related to [the] suspension.” ECF No.

1-5 at 97. The Letter of Instruction also directed Plaintiff to stop making “requests to [Office of

Capacity and Building Development] management”—Plaintiff’s workstation was at that time “in

a location that was part of the Office of Capacity Building and Development,” ECF No. 1-1 at 11,

13, apparently because of the contretemps with Chao and Howard, see ECF No. 41-3 at 21–22—

“regarding the moving of [her] work station,” ECF No. 1-5 at 97. According to the Administrative

Judge, less than one hour after Plaintiff received the Letter of Instruction, she emailed various

14
officials, including the Ombudsman of the Office of the Inspector General (“OIG”), reporting that

she had seen alcohol on the agency’s premises and asserting that Caldera “had brought alcohol

‘illegally’ into the building on multiple occasions.” 10 See ECF No. 41-3 at 47–48; see also ECF

No. 1-1 at 9. Plaintiff asserts that on March 2, 2019, she again reported alleged mail tampering—

this time to the OIG Ombudsman and the ethics office for Trade and Foreign Agricultural Af-

fairs—and charged that her five-day suspension was retaliation for her whistleblowing. See ECF

No. 1-1 at 10.; see also ECF No. 41-3 at 45–46.

Plaintiff’s five-day suspension lasted from March 6, 2019, to March 10, 2019, inclusive.

See Robb I, 2025 WL 1025084, at *6. Not long before the beginning of that suspension, Plaintiff

complained about her workspace—specifically, about the keyboard tray at her desk, which alleg-

edly exacerbated musculoskeletal disorders stemming from a 2008 automobile accident. 11 Id. at

*7. On March 11, 2019—after issuance of the Letter of Instruction and after Plaintiff returned

from her five-day suspension—Plaintiff sent two emails to several Department employees. See

ECF No. 46-5, ¶¶ 10–11. One stated that on Monday, March 4, “Rodney [Grimes] of Facilities

inspected my desk in Room 3846-S and determined that it is his expert opinion that he cannot fix

the keyboard tray on this style of desk and that he recommends that I be moved to the desk on

Room 4603-S”; the other stated that “[Department] facilities recommended that [she be] moved to

4603-S” 12 Id. (alterations in original) (quoting the record); see also Robb I, 2025 WL 1025084, at

10
Plaintiff has not disputed the Administrative Judge’s characterization of the timing or subject of that email.
11
“A ‘keyboard tray’ is an ergonomic accessory generally mounted under a desk to hold a computer keyboard and
mouse.” Robb I, 2025 WL 1025084, at *7 n.11. The keyboard tray complaint in or around March 2019 was the last
in a series of such complaints Plaintiff made about various keyboard trays at various workstations. See id. at *7, *18–
19.
12
As discussed more fully below, the Department cited those emails—which it asserts were false—as evidence of
conduct unbecoming a federal employee in support of Plaintiff’s termination. See ECF No. 46-5, ¶¶ 10–12.

15
*7 n.15. In an email response that same day, Grimes asserted that he had made no such recom-

mendation, as did his supervisor Thomas Davis. See ECF No. 1-5 at 64–65. Also, that same day,

Caldera proposed to suspend Plaintiff for fourteen days for misconduct, a proposal that was with-

drawn on March 18, 2019. ECF No. 41-4 at 25–26. 13

Plaintiff alleges that she engaged in whistleblowing activity again when she reported to

Caldera on March 15, 2019, and to Caldera’s boss Mark Rasmussen on March 18, 2019, that the

“performance standards and elements” Caldera proposed for Plaintiff were “illegal on [their] face.”

ECF No. 1-1 at 10 (alteration in original); see also ECF No. 1-5 at 37.

On April 2, 2019, Plaintiff’s security clearance was suspended. 14 See ECF No. 1-5 at 16.

On April 4, Caldera issued Plaintiff a Notice of Placement on Administrative Leave due to that

suspension. 15 See id. The Notice prohibited Plaintiff from reporting to her duty station, accessing

any Department buildings or buildings occupied by Department personnel, or performing any of-

ficial duties without authorization from management. See id. She was further instructed not to

access any computers or computer systems, email programs, or employee websites or to “contact

any employees of the Agency or Department with regard to any work matters, unless specifically

13
Neither that proposal nor its withdrawal is in the record in this case or in Robb I. However, they are mentioned in
the Administrative Judge’s decision in the W-2 Whistleblower Case, see ECF No. 41-4 at 25–26, in Defendant’s
opening brief, see ECF No. 41-1 at 12, and in Plaintiff’s Opposition, see ECF No. 46 at 11.
14
It is not clear from the record why Plaintiff’s security clearance was suspended. An email from an official at the
Department’s Office of Homeland Security asserts that it was suspended “[b]ased on information provided . . . by
[her] agency.” ECF No. 1-5 at 56. According to Plaintiff’s complaint in the W-2 Whistleblower Case, in the letter
informing her of the suspension, “[t]he basis for the suspension was specifically identified as including ‘unwillingness
to comply with rules and regulations[.]’” ECF No. 1-1 at 19 (second alteration in original).
15
That Notice is erroneously dated April 4, 2018, but it must have been issued on April 4, 2019, because it refers to
the April 2, 2019, suspension of Plaintiff’s security clearance. See ECF No. 1-5 at 16.

16
authorized to do so” in the Notice of Placement on Administrative Leave. Id. The Notice listed

as “Exceptions: EEO, EAP, Union Officials/Reps, or NFC, EPP as appropriate.” 16 Id.

In the ensuing months, Plaintiff sent a number of emails including Isley and/or McKinney

as addressees that became support for Plaintiff’s ultimate termination. 17 On April 29, 2019, she

sent an email with the subject line “Re: security clearance suspension” to Isley and McKinney, as

well as to Chief of the Personnel Security Branch Carlena Fitzhugh, who had informed Plaintiff

that the suspension of her security clearance was unrelated to her protected EEO activity (as dis-

cussed more fully below, Plaintiff had filed a formal EEO complaint in March 2018); Chief of the

Personnel and Document Security Division Brodrick Wilcox; his employee Christina Mitchell; the

OIG Ombudsman; and “SM.OASCR.DCWA3,” which appears to be an address related to the De-

partment’s Office of the Assistant Secretary for Civil Rights. See ECF No. 41-3 at 12, 19–20. The

email challenged Fitzhugh’s assertion that the suspension of Plaintiff’s security clearance was un-

related to her EEO complaint, asked that the suspension be lifted and that she be reassigned, and

“note[d] to the Civil Rights office that her email should be considered as an ‘informal EEO com-

plaint.’” Id. at 20.

On July 11, 2019, Plaintiff sent an email to Isley and McKinney as well as Fitzhugh; Wil-

cox; Mitchell; the OIG Ombudsman; “SM.OASCR.DCWA3”; head of the Office of Process,

16
“EAP” is the Employee Assistance Program. See ECF No. 41-3 at 6 n.5. “NFC, EPP” is the National Finance
Center Employee Personal Page. See id. The National Finance Center provides payroll, personnel, and insurance
services for the Department. Nat. Fin. Ctr. U.S. Dep’t of Agric., NFC Overview 3, https://nfc.usda.gov/Publica-
tions/HR_Payroll/Brochures/NFC_Overview_Brochure.pdf [https://perma.cc/UQA9-3KMT]. The Employee Per-
sonal Page “is a Web-based application that provides employees self-service access to their personal information.”
EPP (Employee Personal Page), Nat. Fin. Ctr. U.S. Dep’t of Agric. (last updated Dec. 20, 2023),
https://help.nfc.usda.gov/systems/EPP/index.php [https://perma.cc/B973-FJT3].
17
Most of the emails that are at issue here appear in the record with significant redactions. See ECF No. 1-5 at 24–
67. However, the Administrative Judge reviewed unredacted versions and she describes those emails in detail in her
decision in the I-2 Removal Case, which is under review here. See ECF No. 41-3 at 8, 11–20. As Plaintiff has not
suggested that the descriptions are inaccurate, the undersigned uses them here.

17
Product, and Trade Regulations in the Office of Agreements and Scientific Affairs Karina Ramos;

and Deputy Assistant Secretary of Civil Rights Naomi Earp. Id. at 13, 16–18. The email con-

cerned proposed new performance standards for a different employee, which Plaintiff alleged were

unlawful; claimed that the employee had suffered from discrimination and retaliation; asked for

rescission of all performance improvement plans for non-supervisory employees of the Foreign

Agricultural Service; asserted other employees had been discriminated against; claimed that an

attorney in the Employee Law and Hearings Branch had violated ethical standards and Department

policies; and charged other named employees in Human Resources with violating Department pol-

icies. Id. at 17. Plaintiff indicates that this email included a complaint that Ramos had engaged in

harassment. See ECF No. 46 at 6.

On August 12, 2019, Plaintiff sent an email to Isley and McKinney as well as Fitzhugh,

Wilcox, Mitchell, Earp, the OIG Ombudsman, and “SM.OASCR.DCWA3.” See ECF No. 41-3 at

18. The email “complained that [Plaintiff] had not received a response” to her July 11, 2019, email

and alleged that an agency attorney had committed ethical violations. Id.

On September 3, 2019, Plaintiff sent an email to Isley and McKinney as well as Fitzhugh,

Wilcox, Mitchell, the OIG Ombudsman, “SM.OASCR.DCWA3,” and Earp. Id. at 15. That email

was “primarily directed” at Isley and again concerned the performance standards for the employee

who was the subject of the July 9 email. See id. It indicated that Isley had not responded to the

earlier email, expressed Plaintiff’s belief that the performance improvement plan was illegal and

harassing, and claimed that another employee had behaved disrespectfully and unprofessionally.

See id.

On September 30, 2019, Plaintiff sent an email to Isley and McKinney as well as Fitzhugh;

Wilcox; Mitchell; Earp; Director of the Office of Civil Rights Adriano Vasquez; Animal Health

18
Inspection Service employee Pamela Washington; Kim Cash, the Director of the division that

oversees personnel misconduct investigations; and “APHIS-EMSSD,” an address which sent the

email to “all employees in the USDA Emergency Management, Safety and Security Division

(EMSSD) in the Animal and Plant Health Inspection Service (APHIS).” Id. at 11–12. The email

alleged evidence tampering in connection with the investigation of Plaintiff’s “conduct toward

another employee” (presumably the investigation into the incidents involving Chao and/or How-

ard), alleged that three other female employees had suffered unlawful conduct and retaliation, and

asserted that the email was sent pursuant to the EEO exception in the April 4 Administrative Leave

Notice. Id. at 11.

On October 1, 2019, Plaintiff sent an email to Isley as well as Fitzhugh, Wilcox, Mitchell,

and Catherine Fulton, Caldera’s replacement as Plaintiff’s supervisor. See id. at 13. The email

“provided her new supervisor with her contact information, sought her signature on a reimburse-

ment form regarding a fitness membership, and addressed the packing of her personal belongings.”

Id. It also “addressed [Plaintiff’s] prior downgrade,[18] asked about a potential lunch with an

agency employee, sought direction regarding her involvement in the Future Farmers of Amer-

ica . . . , and requested assistance in returning to work.” Id. at 13–14.

On November 4, 2019, Caldera issued Plaintiff a Notice of Proposed Removal including

charges of failure to follow instructions based on the six emails just described and of conduct

unbecoming a federal employee based on Plaintiff’s allegedly unfounded statements that Grimes

recommended changing Plaintiff’s workstation and that Caldera had brought alcohol onto the

18
It is not clear from the decision what is meant by Plaintiff’s “prior downgrade,” but it could refer to the fact that,
when Plaintiff began as a contract worker at the Department, she occupied a higher level in the government’s classi-
fication and pay system than she did when she later accepted a job with the Department, after the contract she had
been working under was terminated. See Robb I, 2025 WL 1025084, at *3.

19
premises in contravention of Department rules. 19 See ECF No. 1-3 at 1, 5–6. That Notice was

eventually rescinded. See ECF No. 1, ¶ 47; ECF No. 41-1 at 13.

On January 17, 2020, Caldera reissued Plaintiff a Notice of Administrative Leave. See

ECF No. 1-5 at 21. The Notice was “reissued to provide clarification about the communication

restrictions with USDA employees that were detailed in the February 27, 2019[,] Letter of Instruc-

tion and [the] April 4, 2019[,] Notice of Placement on Administrative Leave.” Id. The language

of the prohibitions largely tracks that used in the prior Notice of Placement on Administrative

Leave, including the prohibition on “contact[ing] any employees of the Agency or Department

with regard to any work matters unless specifically authorized to do so.” Id. The exception was

worded slightly differently, however. Instead of listing “Exceptions: EEO, EAP, Union Offi-

cials/Reps, or NFC, EPP as appropriate,” id. at 16, it read, “[t]his contact restriction includes an

exception where you may contact Agency employees who have direct involvement with the fol-

lowing matters: EEO (Equal Employment Opportunity), EAP (Employee Assistance Pro-

gram), or NFC (National Finance Center) EPP (Employee Personal Page),” id. at 21 (empha-

sis in original).

A Notice of Proposed Removal was issued on March 18, 2020. See id. at 1–10. It included

two charges: Charge 1 for failure to follow instructions and Charge 2 for conduct unbecoming a

federal employee. See id. at 1, 4. Charge 1 had six specifications, one for each of the emails

described above, which allegedly violated the April 4, 2019, Notice of Placement on Administra-

tive Leave because they were sent to officials outside the “limited exception[s]” for personnel

involved in Equal Employment Opportunity or the Employee Assistance Plan, union officials or

representatives, and the National Finance Center and its Employee Personal Page. Id. at 1–4.

19
The specifications in the second Notice of Proposed Removal issued on March 18, 2020, which is discussed in detail
below, contained the same specifications except for the one related to alcohol on the premises.

20
Charge 2 had two specifications. See id. at 4. One alleged that Plaintiff demonstrated conduct

unbecoming a federal employee when she sent her March 11, 2019, email asserting that “USDA

facilities recommended that [she] be moved to office location 4603-S” because the assertion was

“unsubstantiated” and “unfounded” and sent to employees (such as Isley and Assistant Deputy

Administrator Charles Bertsch) with “no direct involvement in [the] matter,” thus causing unnec-

essary disruption and undermining the Department’s mission. Id. The other specification alleged

that she demonstrated unbecoming conduct when she sent her March 11, 2019, email stating that

Rodney Grimes had recommended she be moved to a desk in Room 4603-S, for the same reasons:

the statement, which was found to be “groundless,” was sent to employees like Isley and Bertsch

who were not involved in assigning work locations and caused unnecessary disruption. Id. at 4–

5.

On June 2, 2020, Laura K. Anderson, Senior Director of the Animal Division in the Office

of Trade Policy and Geographic Affairs of the Foreign Agricultural Service, found a preponder-

ance of the evidence supported all charges and specifications and that Plaintiff should be dismissed

from federal service effective immediately. See Ex. U to Mot. for Summary J. 3, Robb I, 2025

WL 1025084 (No. 20-cv-929), ECF No. 56-23; see also ECF No. 1-14.

B. Procedural History

1. Plaintiff’s EEO Complaint

Plaintiff filed a formal EEO complaint in March 2018 and amended it numerous times. See

Robb I, 2025 WL 1025084, at *8. The allegations accepted by the Department for decision in-

cluded, among other things, whether management subjected Plaintiff to discrimination and retali-

ation when it removed portions of her duties beginning in August 2017, commenced a misconduct

investigation in November 2017, issued the December 2017 Letter of Caution, issued the May

21
2018 Letter of Reprimand, and failed to provide her an ergonomic workstation. See id. The final

agency decision rejecting Plaintiff’s claims was issued in January 2020. See id.

Plaintiff then sued the Department in federal court in Robb I, Case No. 20-cv-929. See id.

Ultimately, she argued that Defendant discriminated against her based on her gender when it re-

duced her job duties, retaliated against her for protected activity when it imposed the five-day

suspension, and failed to reasonably accommodate her disability in connection with her various

complaints about her workstations. See id. at *2. In that case, in April 2025, the undersigned

granted in large part Defendant’s motion for summary judgment, leaving only a failure to accom-

modate claim related to Plaintiff’s March 2019 complaint about her keyboard tray and two retali-

ation and discrimination claims on which Defendant did not move for summary judgment. See id.

2. Plaintiff’s MSPB Complaint in the I-2 Removal Case

As noted, Plaintiff filed the I-2 Removal Case before the MSPB on July 2, 2020, alleging

the removal decision was erroneous, that it was retaliation for whistleblowing, and that it violated

Title VII and the Rehabilitation Act. See ECF No. 1-7 at 4. A hearing was held (regarding both

the I-2 Removal Case and the W-2 Whistleblower Case) on March 2, March 3, and April 7, 2021.

ECF No. 46-5, ¶ 1. The Administrative Judge issued her decision on the I-2 Removal Case on

May 26, 2021, affirming Plaintiff’s termination. Id., ¶ 2. She “note[d] at the outset that [she]

found [Plaintiff] to lack credibility” based on her evasive answers to questions at the hearing and

“inherently improbable” interpretations of “the agency’s instructions regarding her communica-

tions.” Id. at 5–6. The Administrative Judge found that the Department established both charges—

22
failure to follow instructions and conducting unbecoming a federal employee—by a preponder-

ance of the evidence. See id., ¶¶ 5–28.

In connection with the charge of failure to follow instructions, the Administrative Judge

noted that, although admitting that she sent each of the six emails the Department identified as

support for the charge, Plaintiff maintained (1) that the “instructions prohibiting [Plaintiff] from

contacting certain employees was not a valid instruction” because “her communications were pro-

tected by Title VII as well as the agency’s collective bargaining agreement” and (2) that, even if

that instruction was valid, the emails did not violate it because they each “pertained to a complaint

of discrimination under Title VII” and were therefore permitted under the exception for EEO com-

munications. ECF No. 41-3 at 6–7. The Administrative Judge rejected both arguments. First, she

found that the instruction in the first Notice of Placement on Administrative Leave (which was the

one in effect at the time of the communications) was a valid instruction because it allowed Plaintiff

to file “Title VII claims using the proper procedures” and because Plaintiff “identified no [collec-

tive bargaining agreement] provision limiting the agency’s ability to issue the instructions at is-

sue.” Id. at 6. Second, the Administrative Judge determined that Plaintiff’s assertion that each of

the emails at issue concerned discrimination was “an inaccurate statement as all of the emails either

did not address discrimination issues or included other unrelated issues.” Id. at 7. The Adminis-

trative Judge also found that, although the February 27, 2019, Letter of Instruction was “predom-

inantly addressed to the [five-day] suspension,” it also put Plaintiff on notice that she was not

allowed to contact high-level officials like Isley or McKinney “about personnel matters” or “pro-

cesses in which they were not involved” and found Plaintiff’s interpretation that the first Notice of

Placement on Administrative Leave permitted Plaintiff “to contact any and all agency employees,

no matter their position, grade, job duties, or department, regarding any matter concerning a claim

23
of discrimination concerning her or and other employee” to be “patently unreasonable” and insin-

cere. Id. at 8–10. The Administrative Judge sustained all the specifications, finding that each of

the six emails identified above violated the prohibitions in the first Notice of Placement on Ad-

ministrative Leave. See id. at 11–21. Specifically, she found that (1) the September 30, 2019,

email, which charged evidence tampering and alleged “unlawful conduct and retaliation against

three other female employees who had filed EEO complaints” was sent to a number of employ-

ees—including Isley and McKinney—who had no “job duties involving EEO matters” and that

Plaintiff provided no evidence that she was “acting as a representative in the EEO complaints

concerning the three other female employees,” id. at 11–12; (2) the October 1, 2019, email, which,

although it addressed certain important personnel matters (i.e., providing Plaintiff’s contact infor-

mation to her new supervisor and seeking approval of a reimbursement claim), also contained

matters that were neither “urgent personnel matters” nor related to discrimination claims, such as

“a potential lunch with an agency employee” and questions about Plaintiff’s involvement with the

Future Farmers of America, and, as such, “were not covered by any of the exceptions” in the Notice

of Placement on Administrative Leave, id. at 13–14; (3) the September 3, 2019, email, which

concerned the performance standards for another employee was not related to a discrimination

complaint, that Plaintiff was not the other employee’s “representative of record in any matter” and

therefore had “no standing or basis to file complaints addressing matters concerning” that em-

ployee, and was sent to officials—including Isley—who had nothing to do with the performance

standards of that employee, id. at 15–16; (4) the July 11, 2019, email, which made assertions about

discrimination and retaliation on that other employee’s behalf, also included matters not subject to

any of the exceptions in the Notice of Placement on Administrative Leave and was sent to em-

ployees and officials—including Isley and McKinney—with no involvement in the matters

24
asserted, see id. at 16–18; (5) the August 12, 2019, email, in which Plaintiff complained about not

receiving a response to her July 11, 2019, email, and alleged ethical breaches by an agency attor-

ney, was sent to employees and officials—including Isley and McKinney—with no involvement

in the matters asserted, see id. at 18–19; and (6) the April 29, 2019, email, which concerned the

suspension of Plaintiff’s security clearance and was characterized (by Plaintiff) as an “informal

EEO complaint” was sent to Isley and McKinney, who Plaintiff conceded “were not involved in

the processing of EEO matters,” as well as employees of the Personnel and Document Security

Branch, none of whom were covered by the exceptions in the Notice of Placement on Administra-

tive Leave, see id. at 19–20.

The Administrative Judge also sustained the charge of conduct unbecoming a federal em-

ployee, which was based on two emails Plaintiff sent on March 11, 2019, regarding her workstation

that included allegedly “unsubstantiated” assertions. See id. at 23, 28. To repeat, the first email

asserted that “Rodney [Grimes] of Facilities inspected [Plaintiff’s] desk in Room 3846-S and de-

termined that it is his expert opinion that he cannot fix the keyboard tray . . . and that he recom-

mends that [Plaintiff] be moved to the desk in Room 4603-S”; the second, that “USDA facilities”

had recommended relocating Plaintiff’s workstation to Room 4603-S. Id. at 24; see also ECF No.

46-5, ¶¶ 10–11. The Administrative Judge found not credible Plaintiff’s testimony that Grimes

had told Plaintiff that the keyboard tray on the desk in Room 3846-S could not be fixed and that

he would “verbally recommend[]” to Caldera that Plaintiff be moved to Room 4603-S. ECF No.

41-3 at 25. Rather, she credited Grimes’ testimony that he told Plaintiff her keyboard tray was

properly installed; that Plaintiff rejected his offer to move it over “a couple of inches to make it

more accessible” because she appeared to want to move offices; and that he spoke to Caldera not

to recommend relocation—a matter over which he had no authority—but to “‘cover[]’ himself”

25
because Plaintiff seemed dissatisfied with his work—all of which was corroborated by a nearly

contemporaneous email Grimes sent to his supervisor in the Facilities Operations section. Id. at

22–23.

As to Plaintiff’s affirmative defenses, as relevant here, the Administrative Judge found that

Plaintiff had withdrawn her claim of disability discrimination and her claim of retaliation for seek-

ing a reasonable accommodation for her disability. See id. at 43. She further determined that

Plaintiff had not shown that she was terminated in retaliation for protected EEO or for whistle-

blower activity. See id. at 43–50. Although she found that Caldera had notice of Plaintiff’s pro-

tected EEO activity, she further found that there was no evidence that Anderson, the deciding

official, had such notice or any motive to retaliate and no showing that, “but for [Plaintiff’s] activ-

ity, the agency would not have taken the removal action.” Id. at 42. The Administrative Judge

also found that, although Plaintiff had engaged in whistleblowing activity, she had not shown that

it motivated her termination because (1) there was no evidence that Plaintiff’s allegations of mail

tampering between January and October 2018 were a contributing factor in “Caldera’s proposal to

remove her more than a year later” or Anderson’s decision to remove her, id. at 45; (2) there was

no evidence that Caldera or Anderson was aware of Plaintiff’s March 2, 2019, report of mail tam-

pering to the OIG Ombudsman and ethics office for Trade and Foreign Agricultural Affairs, see

id. at 45–46; (3) Plaintiff’s allegation that her five-day suspension violated the collective bargain-

ing agreement was a “clear[] misread[ing]” of that document and therefore would not have moti-

vated retaliation from Caldera or Anderson, id. at 46–47; (4) an internal agency investigation de-

termined that Plaintiff’s accusation that Caldera violated Department policy by bringing alcohol

onto the premises was unfounded and there was no evidence that it contributed to Calder’s proposal

to terminate Plaintiff or Anderson’s decision to terminate plaintiff, although there was some

26
evidence that Plaintiff’s allegation was an attempt to retaliate against Caldera for proposing Plain-

tiff’ five-day suspension, see id. at 48–49; (5) Plaintiff’s belief that her performance standards

violated MSPB case law was not a protected disclosure and even if it was, there was no showing

that it contributed to Caldera’s proposal or Anderson’s decision to terminate Plaintiff, see id. at

49; and (6) there was no evidence that Caldera or Anderson was aware that Plaintiff had filed a

complaint with the Office of Special Counsel in June 2019 and no evidence that such filing con-

tributed to the decisions at issue, see id. at 49–50.

Finally, the Administrative Judge found that the sanction of termination was appropriate

for the “serious charges” that had been established. Id. at 51–55.

3. District Court Proceedings

The Administrative Judge’s decision became final on June 30, 2021, see ECF No. 41-3 at

56, and Plaintiff filed this case on July 29, 2021, see ECF No. 1. As noted, this case concerns

Plaintiff’s termination and alleges gender discrimination (Count I), disability discrimination

(Count II), and retaliation (Count III), and challenges the MSPB’s May 26, 2021, decision (Counts

IV & V). The undersigned has already recommended finding that the Court lacks jurisdiction over

Plaintiff’s challenge to the MSPB’s June 24, 2021, decision (Count VI).

On July 16, 2024, Defendant filed its Motion for Summary Judgment seeking judgment in

its favor on each of Plaintiff’s discrimination and retaliation claims and affirmance of the MSPB’s

decision (or, alternatively in the case of Plaintiff’s claim challenging the W-2 Whistleblower Case,

dismissal for lack of jurisdiction). See ECF No. 41. The undersigned granted numerous requests

27
from both parties for extensions of the briefing schedule, see ECF Nos. 42–45, 48–57, and the

motion was fully briefed on February 14, 2025, see ECF Nos. 46, 58.

III. LEGAL STANDARDS

A. Review of Mixed Cases

In mixed cases appealed to the district court from the MSPB, the court “applies two stand-

ards of review.” Koch v. White, 251 F. Supp. 3d 162, 170 (D.D.C. 2017). Under the CSRA, a

plaintiff is entitled to de novo review of claims of discrimination and retaliation. See id.; see also

5 U.S.C. § 7703(b)(2), (c). The MSPB’s decision on a claim not alleging discrimination, on the

other hand, is reviewed “on the administrative record” and “may [be] set aside . . . only if it is

arbitrary or capricious, obtained without compliance with lawful procedures, unsupported by sub-

stantive evidence or otherwise not in accordance with law.” 20 Rand v. Geithner, 730 F. Supp. 2d

118, 125 (D.D.C. 2010) (quoting Barnes v. Small, 840 F.2d 972, 979 (D.C. Cir. 1988)); see also,

e.g., Robinson v. Duncan, 775 F. Supp. 2d 143, 157 (D.D.C. 2011). “To show that the MSPB’s

decision is not arbitrary and capricious, defendant needs only to show that the decision has ‘a

rational basis in the law.’” Hanna v. Herman, 121 F. Supp. 2d 113, 121 (D.D.C. 2000) (quoting

Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir. 1988)). To assess whether a ruling of the MSPB

is supported by substantial evidence, “a court is limited to determining ‘whether the

agency . . . could fairly and reasonably find the facts that it did,’” keeping in mind that “[a]n

agency conclusion may be supported by substantial evidence even though a plausible alternative

interpretation of the evidence would support a contrary view.” Robinson, 775 F. Supp. 2d at 157

20
Insofar as the review is limited to the administrative record, the use of Rule 56 as the vehicle for decision should
perhaps be considered merely “‘a “pragmatic procedural mechanism”’ for review,” rather than supplying the applica-
ble standards. Edwards M.R. v. District of Columbia, 128 F.4th 290, 295–95 (D.C. Cir. 2025) (Henderson, J., con-
curring) (quoting Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (suggesting
that a more appropriate “tool on [the district court’s] procedural toolbelt” for resolving claims limited to the adminis-
trative record might be “a Rule 52 bench trial limited to the administrative record”).

28
(alterations in original) (quoting Rountree v. Johanns, 382 F. Supp, 2d 19, 32 (D.D.C. 2005)). A

reviewing court must not “substitute [its] judgment for that of the [B]oard as to the weight of the

evidence or the inferences to be drawn therefrom.” Sanders v. Dep’t of Homeland Sec., 625 F.

App’x 549, 552 (Fed. Cir. 2015) (quoting Cross v. Dep’t of Transp., 127 F.3d 1443, 1448 (Fed.

Cir. 1997)). “Where an administrative judge’s findings are predicated on credibility assessments,

such findings ‘are “virtually unreviewable[]” and a plaintiff’s de facto request for the Court to “re-

weigh conflicting evidence” is inconsistent with the reviewing court’s function.’” Robinson, 775

F. Supp. 2d at 157 (alteration in original) (quoting Rountree, 382 F. Supp. 2d at 32).

B. Summary Judgment

Summary judgment is appropriate when the moving party demonstrates that there is no

genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under

the governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the non[-]moving party.’” Steele v. Schafer, 535 F.3d

689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Initially, the moving party has the burden of demonstrating the absence of a genuine dispute as to

any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party has met this burden, the non-moving party must designate “specific

facts showing that there is a genuine issue for trial.” Id. at 324. To establish that a fact is or is not

genuinely disputed, a party must (a) cite specific parts of the record—including deposition testi-

mony, documentary evidence, affidavits or declarations, or other competent evidence—in support

of its position, or (b) demonstrate that the materials relied upon by the opposing party do not ac-

tually establish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). While the

29
court must view the evidence in the light most favorable to the non-moving party and draw all

reasonable inferences in the non-movant’s favor, Grosdidier v. Broad. Bd. of Governors, 709 F.3d

19, 23–24 (D.C. Cir. 2013), the non-moving party must show more than “[t]he mere existence of

a scintilla of evidence in support of” his or her position; instead, “there must be evidence on which

the jury could reasonably find” for the non-moving party. Anderson, 477 U.S. at 252. Moreover,

the non-moving party “‘may not rest upon mere allegation or denials of his pleadings’ but must

present ‘affirmative evidence’ showing a genuine issue for trial.” Laningham v. U.S. Navy, 813

F.2d 1236, 1241 (D.C. Cir. 1987) (quoting Anderson, 477 U.S. at 256–57); Ass’n of Flight Attend-

ants–CWA, AFL–CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465–66 (D.C. Cir. 2009) (conclusory

assertions without support from record evidence cannot create a genuine dispute). Indeed, a mov-

ing party may succeed on summary judgment simply by pointing to the absence of evidence prof-

fered by the non-moving party. Anderson, 477 U.S. at 249–50 (“If the [non-movant’s] evidence

is merely colorable, or is not significantly probative, summary judgment may be granted.” (internal

citations omitted)).

“Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge at summary judgment.” Barnett

v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (quoting Pardo-Kronemann v.

Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010)). A court’s role in deciding a summary judgment

motion is not to “determine the truth of the matter, but instead [to] decide only whether there is a

genuine issue for trial.” Id. (quoting Pardo-Kronemann, 601 F.3d at 604). Moreover, district

courts approach summary judgment motions in employment discrimination or retaliatory action

cases with “special caution” due to the “potential difficulty for a plaintiff . . . to uncover clear proof

of discrimination or retaliatory intent.” Nurriddin v. Bolden, 40 F. Supp. 3d 104, 115 (D.D.C.

30
2014) (quoting Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879–80 (D.C. Cir. 1997), vacated on other

grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc)). Nonetheless, plaintiffs are still obligated to

support their allegations by competent evidence. Id. Accordingly, a plaintiff may not avoid sum-

mary judgment through “conclusory allegations and speculation.” Id.

C. Discrimination and Retaliation Based on Discrete Acts

The federal sector provision of Title VII provides that “[a]ll personnel actions affecting

[federal] employees or applicants for [federal] employment . . . shall be made free from any dis-

crimination based on race, color, religion, sex, or national origin.” 42 U.S.C. §§ 2000e-16(a). The

government is also prohibited from retaliating against an employee or applicant for engaging in

protected activities such as filing an EEO complaint alleging employment discrimination. See

Rochon v. Gonzales, 438 F.3d 1211, 1216 (D.C. Cir. 2006).

When a Title VII plaintiff does not offer direct evidence of discrimination, courts apply the

three-step burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411

U.S. 792 (1973). See Holcomb v. Powell, 433 F.3d 889,895 (D.C. Cir. 2006). Under that frame-

work, the plaintiff must initially establish a prima facie case by a preponderance of the evidence.

McDonnell Douglas Corp., 411 U.S. at 802. The three essential elements of a Title VII disparate

treatment claim are that the plaintiff (1) is a member of a protected class; (2) suffered adverse

employment action; and (3) was treated differently from similarly situated employees outside the

protected class. See, e.g., Nichols v. Billington, 402 F. Supp. 2d 48, 65 (D.D.C. 2005), aff’d, No.

05-5326, 2006 WL 3018044 (D.C. Cir. Mar. 7, 2006); see also Augustus v. Locke, 934 F. Supp.

2d 220, 230 (D.D.C. 2013). Similarly, to establish a prima facie case of retaliation, a plaintiff

must show that (1) she engaged in statutorily protected activity, (2) she suffered materially adverse

employment action, and (3) a causal connection exists between the protected activity and the

31
challenged retaliatory act. Rochon, 438 F.3d at 1219–20. Once the plaintiff succeeds in making

her prima facie showing, the burden of production shifts to the employer, who must articulate a

legitimate, non-discriminatory or non-retaliatory reason for the challenged action. Tex. Dep’t of

Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1981). If the employer successfully does so, the burden

shifts back to the plaintiff to prove that the employer’s proffered reason is a pretext masking dis-

crimination or retaliation. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009).

In employment discrimination and retaliation cases, summary judgment usually focuses on

whether the employer can articulate non-discriminatory or non-retaliatory reasons for its actions.

Where an employer has done so, “the district court need not—and should not—decide whether the

plaintiff actually made out a prima facie case.” Brady v. Off. of Sergeant at Arms, 520 F.3d 490,

494 (D.C. Cir. 2008) (italics in original). Even in Brady, however, the D.C. Circuit implicitly

recognized that the plaintiff must “suffer[] an adverse employment action” before the reasons for

that action, benign or discriminatory, can be evaluated. Id. Both the courts of this District and

subsequent panels of the D.C. Circuit have recognized that proceeding to the Brady analysis may

be premature when the defendant contests whether an adverse employment action occurred at all.

See, e.g., Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008); Beckham v. Nat’l R.R.

Passenger Corp., 736 F. Supp. 2d 130, 146 (D.D.C. 2010); cf. Figueroa v. Pompeo, 923 F.3d 1078,

1087 (D.C. Cir. 2019) (“Brady’s suggested preference for merits resolution on the third prong [of

the McDonnell Douglas framework] is just that—a suggestion, which the District Court should

follow only when feasible.”).

If an adverse employment action occurred, the “central question” on summary judgment

then 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

32
and that the employer intentionally discriminated or retaliated against the employee.” Walker v.

Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015) (quoting Allen v. Johnson, 795 F.3d 34, 39 (D.C.

Cir. 2015)). The Court of Appeals has clarified that, in answering the central inquiry of Brady, a

district court should consider “whether the jury could infer discrimination from the combination

of (1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents to attack the em-

ployer’s proffered explanation for its actions; and (3) any further evidence of discrimination that

may be available to the plaintiff . . . or any contrary evidence that may be available to the em-

ployer.” Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (alteration in original) (quot-

ing Aka, 156 F.3d at 1289); cf. Brady, 520 F.3d at 494 n.2 (noting that the question of whether a

plaintiff was treated differently from a similarly situated employee who was not a member of the

protected class is “relevant to the determination at summary judgment or trial whether intentional

discrimination occurred”).

A plaintiff may carry the rebuttal burden with evidence demonstrating that “the employer

is lying about the underlying facts” that formed the predicate for the employment action, Brady,

520 F.3d at 495, or otherwise by “presenting enough evidence to allow a reasonable trier of fact to

conclude that ‘the employer’s proffered explanation is unworthy of credence,’” Desmond v.

Mukasey, 530 F.3d 944, 962 (D.C. Cir. 2008) (quoting Burdine, 450 U.S. at 256). But “[i]f 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.” Brady, 520

F.3d at 495. A plaintiff may also come forward with comparative evidence that persons who are

similarly situated to the plaintiff but are of a different race, sex, or age have been treated more

favorably by the employer. Id.

33
Showing pretext requires more than simply criticizing the employer’s decision-making

process. “Title VII, it bears repeating, does not authorize a federal court to become ‘a super-

personnel department that reexamines an entity’s business decisions.’” Barbour v. Browner, 181

F.3d 1342, 1346 (D.C. Cir. 1999) (quoting Dale v. Chi. Tribune Co., 797 F.2d 458, 464 (7th Cir.

1986)). Rather, a court “may not ‘second-guess an employer’s personnel decision absent demon-

strably discriminatory [or retaliatory] motive.’” Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180,

1183 (D.C. Cir. 1996) (quoting Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982)).

IV. DISCUSSION

The following analysis addresses each of Plaintiff’s claims other than Count VI, which is

discussed above in Section II. Ultimately, the undersigned finds that the Court lacks jurisdiction

over Plaintiff’s claims under the Rehabilitation Act (which are Count II and part of Count III)

because Plaintiff failed to exhaust them before the MSPB and that, ignoring any jurisdictional

defects, Defendant has established that it is entitled to summary judgment on Counts I through V.

A. Gender and Disability Discrimination

1. Exhaustion

“Government employees alleging discrimination in violation of Title VII or challenging

personnel practices prohibited by the Civil Service Reform Act must exhaust administrative rem-

edies before bringing their claims to federal court.” Hornsby v. Thompson, No. 22-cv-1472, 2023

WL 196185, at *3 (D.D.C. Jan. 17, 2023) (quoting Hamilton, 666 F.3d at 1349 ), reconsideration

denied, 2024 WL 3359505 (D.D.C. July 10, 2024). “An employee who intends to pursue a mixed

case has several paths available to her. At the outset, the aggrieved party can choose between

filing a ‘mixed case complaint’ with her agency’s EEO office and filing a ‘mixed case appeal’

directly with the MSPB.” Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999) (footnotes omitted).

34
A plaintiff who chooses to bring a mixed case before the MSPB must exhaust her claims in that

forum. See, e.g., Jones v. U.S. Dep’t of Just., 111 F. Supp. 3d at 31 (“A plaintiff may file a mixed-

case complaint with his agency’s EEO office or with MSPB, but not both. ‘Whichever is filed

first shall be considered an election to proceed in that forum,’ and a plaintiff must then exhaust his

remedies in that forum.” (internal citations omitted) (quoting 29 C.F.R. § 1614.302(b))). That is,

to exhaust a discrimination claim before the MSPB, an employee must “raise his or her claims of

discrimination and present evidence in support of those claims” to the Board. Coffman v. Glick-

man, 328 F.3d 619, 624 (10th Cir. 2003). And, significantly, exhaustion must be determined on

“a ‘claim-by-claim’ analysis.” Kelly v. Raimondo, No. 20-cv-3203, 2022 WL 14807447, at *7

(D.D.C. Oct. 26, 2022) (quoting Webster v. Del Toro, 49 F.4th 562, 567 (D.C. Cir. 2022)).

Exhaustion requirements can be jurisdictional or non-jurisdictional. See, e.g., Bain v. Off.

of Att’y Gen., 648 F. Supp. 3d 19, 41 (D.D.C. 2022) (“Administrative exhaustion is a doctrine of

many stripes. It can be jurisdictional or non-jurisdictional.”). “The distinction is of considerable

consequence” to litigants because

[t]o the extent the requirement is jurisdictional, the plaintiff bears the burden of
alleging facts sufficient to establish that he or she exhausted administrative rem-
edies and bears the ultimate burden of proof. In contrast, to the extent it is non-
jurisdictional, the failure to exhaust constitutes an affirmative defense, and thus
the defendant must raise the defense and bears the burden of proof.

Kelly, 2022 WL 14807447, at *6 (citations omitted) (quoting Williams v. Brennan, 320 F. Supp.

3d 122, 127 (D.D.C. 2018)). Here, Defendant has not argued that Plaintiff failed to exhaust her

administrative remedies for any of the claims at issue. Accordingly, it has forfeited that affirmative

defense as to any claim for which exhaustion is a non-jurisdictional requirement. See Fleming v.

U.S. Dep’t of Agric., 987 F.3d 1093, 1099 (D.C. Cir. 2021) (“[A] a nonjurisdictional, mandatory

exhaustion requirement functions as an affirmative defense, and thus can be waived or forfeited

35
by the government's failure to raise it.”). But “federal courts . . . have ‘an independent obligation

to determine whether subject-matter jurisdiction exists,’ even when jurisdictional defects are not

specifically identified by the parties.” Flaherty v. Ross, 373 F. Supp. 3d 97, 103 (D.D.C. 2019)

(quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)); see also, e.g., Lamb v. Bureau of

Alcohol, Tobacco, Firearms & Explosives, No. 20-cv-3036, 2022 WL 203433, at *6 & n.2 (D.D.C.

Jan. 24, 2022) (dismissing a claim for failure to exhaust even where the defendants “concede[d]

that [the plaintiff] ‘arguably’ exhausted” his claims).

“[F]or claims arising under most anti-discrimination statutes, . . . exhaustion does not de-

termine the Court’s subject-matter jurisdiction.” Kelly, 2022 WL 14807447, at *6. As relevant

here, exhaustion requirements under Title VII are “not a jurisdictional prescription delineating the

adjudicatory authority of courts.” Fort Bend Cnty. v. Davis, 587 U.S. 541, 551 (2019). Because

by failing to raise it, Defendant has forfeited any argument that Plaintiff’s failure to exhaust her

claims alleging violation of Title VII require dismissal, there is no reason to further analyze that

issue.

“But the Rehabilitation Act is different. In some circumstances, a Rehabilitation Act plain-

tiff’s failure to exhaust is a jurisdictional bar to her civil suit.” Kelly, 2022 WL 14807447, at *6;

see also, e.g., Al’Zaiem v. Mayorkas, No. 22-cv-3804, 2023 WL 4999177, at *5 (D.D.C. Aug. 24,

2023) (“Failure to exhaust Rehabilitation Act claims, however, often deprives the Court of juris-

diction.”). The D.C. Circuit has held that, because that statute “limits judicial review to employees

‘aggrieved by the final disposition’” of their administrative claims, a federal court’s jurisdiction

depends on whether those claims were the subject of a “final disposition” in the administrative

proceedings. Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006) (quoting Taylor v. Small, 350

F.3d 1286, 1292 (D.C. Cir. 2003)); see also Doak v. Johnson, 798 F.3d 1096, 1103–04 (D.C. Cir.

36
2015) (holding that the district court had jurisdiction over a Rehabilitation Act claim that was

finally adjudicated in administrative proceedings even though the claimant failed to comply with

certain agency-imposed procedural requirements during those proceedings). As to her claims un-

der the Rehabilitation Act, then, Plaintiff “bears the burden of showing that [she] has exhausted

[her] administrative remedies in a manner sufficient to establish subject-matter jurisdiction.”

Kelly, 2022 WL 14807447, at *7.

She has not done so. The record here includes her administrative complaint before the

MSPB,21 the Administrative Judge’s summary of the pre-hearing conference, and the Administra-

tive Judge’s decision in the I-2 Whistleblower Case, which together demonstrate that failure. The

administrative complaint alleged that procedural defects infected the agency’s decision to remove

her, that the charges against her were not proved, and that her termination was retaliatory. See

ECF No. 1-7. It also asserted that Plaintiff was “wrongfully terminated” because of “Title VII and

Rehabilitation Act Discrimination.” Id. at 23–24. However, the Administrative Judge’s summary

of the pre-hearing conference asserts that Plaintiff “was withdrawing her claim of disability dis-

crimination.” ECF No. 1-8 at 1. Likewise, the Administrative Judge’s decision notes that Plaintiff

had withdrawn her disability discrimination claim. See ECF No. 1-9 at 42. A claim that is with-

drawn during administrative proceedings is not exhausted. See, e.g., Holland v. Dep’t of Health

& Hum. Servs., 51 F. Supp. 3d 1357, 1368 (N.D. Ga. 2014) (“When Plaintiff withdrew her claims

from the MSPB, she abandoned those claims before the MSPB and failed to exhaust her adminis-

trative remedies there.”); see also, e.g., Tyson v. Brennan, 277 F. Supp. 3d 28, 37 (D.D.C. 2017)

(similar); Houser v. Shulkin, 264 F. Supp. 3d 17, 22 (D.D.C. 2017) (finding that where the plaintiff

21
Calling it an “administrative complaint” is not quite accurate. When an employee brings a case before the MSPB,
it is an appeal of the agency’s decision and a claim of discrimination or retaliation “is made as an affirmative defense.”
Hornsby v. Thompson, No. 22-cv-1472, 2023 WL 196185, at *5 n.3 (D.D.C. Jan. 17, 2023). The undersigned never-
theless uses that term for the sake of simplicity.

37
“did not . . . fully litigate [her claim] before the MSPB, she failed to exhaust her administrative

remedies”); Calabrese v England, No. 05-cv-149, 2006 WL 8452855, at *4–6 (S.D. Cal. Mar. 14,

2006) (finding the plaintiff’s claims of disability discrimination unexhausted where the record

showed that he raised the claims before the MSPB but later represented that he would not pursue

them and thus “support[ed] a finding [he] abandoned his discrimination claims in his MSPB case”).

And so, the record in this case makes clear that Plaintiff failed to exhaust her administrative rem-

edies before the MSPB because she withdrew her claim of disability discrimination under the Re-

habilitation Act prior to the final administrative disposition of her case. Accordingly, the under-

signed recommends dismissing for lack of jurisdiction Count II, which asserts that Plaintiff was

terminated because of her disability in violation of the Rehabilitation Act. 22 See Kelly, 2022 WL

14807447, at *7 (noting that if the plaintiff fails to demonstrate exhaustion of administrative rem-

edies sufficient to establish subject-matter jurisdiction “with respect to a claim [under the Reha-

bilitation Act], the Court must dismiss the claim for lack of subject-matter jurisdiction”).

2. The Merits

Even if the Court had jurisdiction over Plaintiff’s claim for discrimination under the Reha-

bilitation Act (Count II), it would fail on the merits, as does her claim for gender discrimination

22
There can be no argument that the claim was somehow exhausted along with Plaintiff’s EEO claims discussed in
Robb I. As noted, once an employee files a petition with the MSPB, she has elected to proceed in that forum and must
exhaust administrative remedies there. See, e.g., Stoll v. Principi, 449 F.3d 263, 265–66 (1st Cir. 2006) (“The lodging
of either a formal appeal with the Board or a formal complaint with the agency demarcates the point of no return.
From that point forward, the complainant must exhaust her claim in the chosen forum.” (internal citations omitted));
Economou v. Caldera, 286 F.3d 144, 149 (2d Cir. 2002) (similar). And so, because Plaintiff raised a claim before the
MSPB that her termination constituted disability discrimination, she had to fully exhaust the claim before that tribunal.
In any event, the final agency decision in Robb I makes clear that no claim alleging that Plaintiff was removed from
federal service because of her disability was raised with or decided by the agency. See 2025 WL 1025084, at *8
(listing the claims “accepted . . . for decision”). Indeed, no claim related to Plaintiff’s termination could have been
raised or decided there, because the final agency decision was issued on January 20, 2020, see id., and the Notice of
Proposed Removal and ensuing Notice of Decision were not issued until after that date, see Ex. R to Mot. for Summary
J., Robb I, 2025 WL 1025084 (20-cv-929), ECF No. 56-20 (Notice of Proposed Removal issued on March 18, 2020);
Ex. U to Mot. for Summary J., Robb I, 2025 WL 1025084 (20-cv-929), ECF No. 56-23 (Notice of Decision issued on
June 2, 2020).

38
under Title VII (Count I). Defendant maintains that there is no evidence that Plaintiff was termi-

nated because of gender discrimination; instead, the evidence shows she was terminated “because

of her well-documented six instances of failure to follow instructions and due to conduct unbe-

coming, which included being untruthful,” legitimate non-discriminatory reasons that Plaintiff has

failed to show were pretextual. ECF No. 41-1 at 19–22; see also ECF No. 58 at 4–8. Defendant

is correct that Plaintiff has failed to adduce evidence that her termination based on the specifica-

tions in the June 2, 2020, Notice of Decision was a pretext for gender or disability discrimination.

Plaintiff’s opposition argues (1) that her termination was wrongful and should not have

been upheld by the MSPB, see ECF No. 46 at 4–9, which is a claim under the CSRA, 23 see Perry,

582 U.S. at 423 (characterizing an argument “that ‘the agency had insufficient cause for taking

action under the CSRA’” as a “civil-service claim” (quoting Kloeckner, 568 U.S. at 44)); (2) that

her “termination was a result of retaliation,” ECF No. 46 at 9–10 (initial capitalization omitted);

and (3) that the MSPB decision in the W-2 Whistleblower Case was erroneous, see id. at 10–13.

23
To the extent that Plaintiff attempts to attack the specifications in Caldera’s Notice of Proposed Removal or Ander-
son’s decision sustaining them as inadequate non-discriminatory reasons for Plaintiff’s termination, she fails. In
Figueroa, the D.C. Circuit identified four factors that are likely “to be paramount in the analysis [of whether the
employer has sufficiently supported its nondiscriminatory reason for the adverse employment action] in most cases”:
(1) whether the employer has “produce[d] evidence that a factfinder may consider at trial (or a summary judgment
proceeding)”; (2) whether, if the factfinder believed the evidence, he or she would “reasonably be able to find that
‘the employer’s action was motivated by’ a nondiscriminatory reason”; (3) whether that nondiscriminatory explana-
tion is “facially ‘credible’ in light of the proffered evidence”; and (4) whether the evidence “present[s] a ‘clear and
reasonably specific explanation.’” 923 F.3d at 1087–88 (first quoting Teneyck v. Omni Shoreham Hotel, 365 F.3d
1139, 1151 (D.C. Cir. 2004); then quoting Bishopp v. District of Columbia, 788 F.2d 781, 788–89 (D.C. Cir. 1986);
and then quoting Segar v. Smith, 738 F.2d 1249, 1269 n.13 (D.C. Cir. 1984)). Here, Plaintiff has not challenged the
admissibility of any of the evidence supporting Defendant’s explanation. See id. at 1088 (finding the first factor met
where the plaintiff did not challenge the admissibility of the supporting evidence). The evidence is “facially nondis-
criminatory” and supports the reason offered by Defendant for Plaintiff’s termination. Id. Finally, the reasons are
clearly and specifically laid out in the Notice of Proposed Removal and the Notice of Decision—Plaintiff was termi-
nated because Defendant believed that she had violated prohibitions articulated in the February 27, 2019, Letter of
Instruction and the April 4, 2019, Notice of Placement on Administrative Leave and made misrepresentations about
Grimes’ conduct and statements regarding her workstation, which interfered with the efficiency of the Department.
See ECF No. 1-5 at 1–9; Ex. U to Mot. for Summary J., Robb I, 2025 WL 1025084 (No. 20-cv-929), ECF No. 56-23.
In any case, Plaintiff has not even attempted to address the Figueroa factors, and so has forfeited any argument that
Defendant’s legitimate nondiscriminatory reason for Plaintiff’s termination is inadequate under that case and its prog-
eny.

39
Her brief in Robb I addressed her termination claim in a section headed “The Plaintiff’s Wrongful

Termination Claims Should Proceed on Disability Discrimination and Retaliation,” but that section

(1) true to its word, does not address gender discrimination and (2) failing to live up to its promise,

does not suggest that a disability was the reason for Plaintiff’s termination, but rather only that

Defendant retaliated against her for seeking a reasonable accommodation, see Opp. to Mot. for

Summary J. 24–26, Robb I, 2025 WL 1025084 (No. 20-cv-929), ECF No. 59 (likening the alleged

retaliation in this case to that in Egei v. Johnson, 192 F. Supp. 3d 81 (D.D.C. 2016), which is

discussed more thoroughly below). 24 Indeed, Plaintiff’s opposition in this case uses the word

“gender” only once, merely in the context of a hypothetical in which a supervisor calls an employee

“some racially or gender based derogatory term” (which is not the case here 25), see ECF No. 46 at

10; and the word “disability” only when describing her Complaint, see id. at 2; generally introduc-

ing the concept of a mixed case, see id. at 3; stating that “a finding of . . . disability discrimination

is irrelevant” to a court’s review of “MSPB resolutions of nondiscrimination claims,” id. at 4;

asserting that Plaintiff’s “workstation impacted her disability,” id. at 10; and noting that there are

“differences between MSPB whistleblower protection law and the traditional Title VII or [d]isa-

bility discrimination or retaliation law” when addressing the W-2 Whistleblower Case, id. at 12.

That is, Plaintiff makes no attempt to marshal evidence that would tend to show that she was

24
There is a throwaway line in Plaintiff’s Opposition to the Motion for Summary Judgment that she “challenges the
entire [reasonable accommodation] process which is essentially a discrimination complaint.” Opp. to Mot. for Sum-
mary J. 25–26, Robb I, 2025 WL 1025084 (No. 20-cv-929), ECF No. 59. She does not explain that gnomic pro-
nouncement and the undersigned will not attempt to do so for her. “Mentioning an argument ‘in the most skeletal
way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones’ is tanta-
mount to failing to raise it.” Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019) (quoting Schneider v. Kissinger,
412 F.3d 190, 200 n.1 (D.C. Cir. 2005)).
25
In Robb I, Plaintiff asserted that two managers who were not involved in Plaintiff’s termination used a gendered
phrase—“young lady”—as support for her gender discrimination claim related to adverse employment actions other
than her termination. See Robb I, 2025 WL 1025084, at *4 n.8, *15. The undersigned found that the use of the phrase
did not tend to show that Plaintiff suffered from gender discrimination. See id. at *15–16.

40
terminated because of her gender or because of a disability. Defendant’s motion for summary

judgment on Counts I and II (assuming there is jurisdiction over Count II) should be granted.

B. Retaliation

1. Exhaustion

Count III of the Complaint alleges retaliation in violation of Title VII and the Rehabilitation

Act. See ECF No. 1 at 9. Again, Defendant has not argued that Plaintiff failed to exhaust her

retaliation claims, so it has forfeited that defense as to alleged retaliation for conduct protected under

Title VII. See Section IV.A.1, supra. However, as discussed above, “the Rehabilitation Act is

different” and requires Plaintiff to “show[] that [she] has exhausted [her] administrative remedies in

a manner sufficient to establish subject-matter jurisdiction.” Kelly, 2022 WL 14807447, at *6–7.

Again, she has failed to do so.

Recall that the specifications in one of the charges that led to Plaintiff’s removal cited two

emails sent on March 11, 2019, concerning complaints about her workstation and requests to be

moved to a different one. See Ex. U to Mot. for Summary J. 2, Robb I, 2025 WL 1025084 (20-cv-

929), ECF No. 56-23. Plaintiff contends that she was “disciplined for engaging in attempting to

secure [a] reasonable accommodation.” Opp. to Mot. for Summary J. 25, Robb I, 2025 WL 1025084

(20-cv-929), ECF No. 59. The only claim in Plaintiff’s administrative complaint alleging retaliation

related to a disability asserts that she requested a disability accommodation regarding her work-

station and that management “can’t . . . retaliate against an employee for bringing an ADA . . . dis-

closure.” ECF No. 1-7 at 19–20. However, the Administrative Judge’s summary of the prehearing

conference asserts that Plaintiff “was withdrawing . . . her claim of retaliation for requesting reason-

able accommodation.” ECF No. 1-8 at 1. The Administrative Judge’s decision similarly relates

that Plaintiff “asserted that she was subjected to retaliation for requesting reasonable

41
accommodation” but that she had withdrawn “her claims regarding a failure to accommodate.” ECF

No. 41-3 at 43. As such, there is no further discussion in that decision of alleged retaliation based

on Plaintiff’s request for accommodation. Because Plaintiff withdrew her claims alleging retaliation

for requesting a reasonable accommodation from consideration by the MSPB, the undersigned rec-

ommends dismissing Count III to the extent it is based on the Rehabilitation Act for the reasons

discussed above in Section IV.A.1.

The following section nevertheless discusses the merits of that retaliation claim, as well as

the other retaliation claims over which the Court undoubtedly has jurisdiction because they were

ruled on by the MSPB or because Defendant has forfeited any argument as to non-exhaustion.

2. The Merits

Defendant contends that Plaintiff “cannot, in the first instance, make out a prima facie case

[for retaliation], as she cannot show that her removal was in retaliation for any protected conduct.”

ECF No. 41-1 at 22; ECF No. 58 at 10. It reasons that, because Plaintiff was terminated for “re-

peatedly fail[ing] to follow her supervisor’s instructions and [lying] to her superiors about the need

for an office move,” ECF No. 41-1 at 21, she has “fail[ed] to establish that she was removed due to

protected conduct, the core of a retaliation claim,” ECF No. 58 at 8. That appears to confuse whether

Plaintiff has established a prima facie case with whether she has established “the ultimate factual

issue in the case—retaliation vel non.” Breiterman v. U.S. Cap. Police, 15 F.4th 1166, 1173 (D.C.

Cir. 2021) (quoting Solomon v. Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014). In any event, Brady and

its progeny counsel that, where the defendant has offered a nondiscriminatory reason for its adverse

employment action—as Defendant has here—courts generally need not perform the “sideshow” of

“decid[ing] whether the plaintiff actually made out a prima facie case under McDonnell Douglas.”26

Plaintiff does not argue that she has direct evidence of retaliation—which would allow her to “bypass the McDonnell
26

Douglas framework,” Francis v. Perez, 970 F. Supp. 2d 48, 62 (D.D.C. 2013)—and any such argument would fail.

42
Brady, 520 F.3d at 494. Appropriately, Defendant also argues that, assuming Plaintiff made out a

prima facie case, she cannot show that Defendant’s nondiscriminatory reasons for firing her—her

failure to follow instructions and engaging in conduct unbecoming a federal employee—were pre-

textual. See ECF No. 41-1 at 22; ECF No. 58 at 10–11.

Plaintiff’s opposition on this issue cites a single case, Egei v. Johnson, 192 F. Supp. 3d 81

(D.D.C. 2016), but includes no substantive discussion of it or of her retaliation claim. See ECF No.

46 at 9–10. Instead, she refers the reader to her Opposition to Defendant’s Motion for Summary

Judgment in Robb I. See id. at 9. And so, the undersigned begins there.

There, Plaintiff starts by insisting that, under Department policy, she “had a right to send”

the six emails that comprised the specifications in the charge for failing to follow instructions. Opp.

to Mot. for Summary J. 22, Robb I, 2025 WL 1025084 (No. 20-cv-929), ECF No. 59. As support,

she points to a memorandum from Foreign Agricultural Service Administrator Isley outlining the

Service’s anti-harassment policy and procedures providing that complaints of harassment should be

reported “to agency management”—which Plaintiff asserts includes Isley and Under Secretary

McKinney—“the Office of Civil Rights[,] or the agency Compliance, Security and Emergency Plan-

ning division”; her affidavit, which states that she “had a cordial relationship with” McKinney, who

called Plaintiff his “sage advisor”; and the Department’s anti-harassment policy, which encourages

those who have been victims of harassment to “complain directly to the harasser.” 27 Id. at 22–23;

see also Exs. 4 (Plaintiff’s Affidavit), 16 (Isley Anti-Harassment Memorandum), 17 (Department

Courts have found that circumstances like those at issue here—an adverse employment action premised on an em-
ployee’s failure to follow instructions from management to stop sending complaints, including complaints of discrim-
ination, to senior agency officials—do not “constitute[] direct evidence of retaliation.” Mason v. Geithner, 811 F.
Supp. 2d 128, 204 (D.D.C. 2011), aff’d, 492 F. App’x 122 (D.C. Cir. 2012); see also Byrd v. Vilsack, 931 F. Supp. 2d
27, 43 (D.D.C. 2013) (citing Mason, 811 F. Supp. 2d at 204–05).
27
As noted above, Plaintiff claims that her July 11, 2019, email, which was sent to, among others, the head of the
Office of Process, Product, and Trade Regulation Karina Ramos, concerned alleged harassment by Ramos. See ECF
No. 46 at 6; see also ECF No. 41-3 at 17–18.

43
Anti-Harassment Policy) to Opp. to Mot. for Summary J., Robb I, 2025 WL 1025084 (No. 20-cv-

929), ECF No. 59-2 at 151, 650–56. That evidence may support Plaintiff’s assertion that she be-

lieved she was entitled to send the emails, but see Section IV.C, infra; however, “‘[t]he core inquiry’

on summary judgment is . . . ‘whether [Plaintiff] has produced sufficient evidence for a reasonable

jury to find that [the employer] did not “honestly believe in the reasons it offer[ed]”’ for the [adverse

employment action].” Robb I, 2025 WL 1025084, at *17 (second alteration in original) (quoting

Hartzler v. Mayorkas, No. 20-cv-3802, 2022 WL 1549995, at *19 (D.D.C. Oct. 27, 2022), aff’d,

No. 22-5310, 2024 WL 3219489 (D.C. Cir. June 28, 2024) (per curiam)). That is, “[u]ltimately, it

‘is not this Court’s job to decide if defendant’s proffered reasons were wise, fair, or correct, but

rather, whether defendant honestly believed those reasons and acted in good faith upon those be-

liefs.’” Hartzler, 2022 WL 1549995, at *19 (quoting Crockett v. Richardson, 127 F. Supp. 2d 40,

47 (D.D.C. 2001)). Here, Defendant has asserted that those six emails violated the February 27,

2019, Letter of Instruction indicating that Plaintiff must not communicate about personnel issues

“with parties not involved in the process” like Isley and McKinney and that she must “use the proper

channels” and “not bypass procedure” going forward; and violated the April 4, 2019, Notice of

Placement on Administrative Leave prohibiting Plaintiff from, among other things, “contact[ing]

any employees of the Agency or Department with regard to any work matters, unless specifically

authorized to do so,” with exceptions for “EEO, EAP, Union Officials/Reps, or NFC, EPP as ap-

propriate.” ECF No. 1-5 at 16, 97. Importantly, the question here “is not whether [Plaintiff] in fact

contravened the letter of the management directive[s], but rather whether [her] supervisors ‘honestly

and reasonably believed’ that [she] did.” Mason, 811 F. Supp. 2d at 205 (quoting Brady, 520 F.3d

at 496).

44
Plaintiff has not shown that Defendant’s belief that those directives prohibited the conduct

included in the six specifications for failure to follow instructions was unreasonable or dishonest.

The closest she comes is her contention that the Department “correct[ed] the policy as to whom

Plaintiff could contact” when it issued the January 17, 2020, Notice of Administrative Leave, which

included slightly different wording as to the exceptions to the restriction upon Plaintiff “contact[ing]

any employees of the Agency or Department with regard to any work matters”: “This contact re-

striction includes an exception where you may contact Agency employees who have direct involve-

ment with the following matters: EEO (Equal Employment Opportunity), EAP (Employee As-

sistance Program), or NFC (National Finance Center) EPP (Employee Personal Page).” Opp.

to Mot. for Summary J. 24, Robb I, 2025 WL 1025084 (No. 20-cv-929), ECF No. 59; ECF No. 1-5

at 21 (emphasis in original). That, Plaintiff insists, “is tantamount to admitting the Plaintiff had a

right before to contact any management official.” Opp. to Mot. for Summary J. 24, Robb I, 2025

WL 1025084 (No. 20-cv-929), ECF No. 59. On the contrary, the Notice issued on January 17, 2020,

explicitly states that it was issued “to provide clarification about the communication restrictions

with USDA employees that were detailed in the February 29, 2019[,] Letter of Instruction and [i]n

[the] April 4, 2019[,] Notice of Placement on Administrative Leave.” ECF No. 1-5 at 21 (emphasis

added). To “clarify” something means to “make clear or easier to understand” or to “elucidate.”

Clarify, American Heritage Dictionary of the English Language, https://www.ahdiction-

ary.com/word/search.html?q=clarify [https://perma.cc/U7ES-66ZH]. That clarification did not, as

Plaintiff would have it, “change[]” or “correct[]” or “increase[]” any restrictions in the earlier No-

tice; it elucidated them. Opp. to Mot. for Summary J. 23–24, Robb I, 2025 WL 1025084 (No. 20-

cv-929), ECF No. 59. Thus, the January 17, 2020, Notice of Administrative Leave cannot do the

work Plaintiff asks it to do. And “[w]here, as here, ‘the employer’s stated belief about the underlying

45
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.” Mason, 811 F. Supp. 2d at 205

(alteration in original) (quoting Brady, 520 F.3d at 495). In short, Plaintiff has not shown that Cal-

dera (who issued the Notice of Proposed Removal) or Anderson (who approved Plaintiff’s removal)

did not “honestly and reasonably believe[]” that Plaintiff had “contravened . . . the management di-

rective[s]” in the February 29, 2019, Letter of Instruction and the April 4, 2019, Notice of Placement

on Administrative Leave. Id.(quoting Brady, 520 F.3d at 496).

Plaintiff then appears to argue that the restrictions on her communications were themselves

illegal:

There’s no restriction in Title VII or the Rehabilitation Act as to whom the Plaintiff
can only complain about discrimination. Anti-retaliation provisions make it unlaw-
ful to discriminate because an individual has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under Title
VII . . . [or] the Rehabilitation Act . . . . This language, known as the “participation
clause,” and provides protection from retaliation for many actions, including filing
or serving as a witness for any side in an administrative proceeding or lawsuit al-
leging discrimination in violation of an EEO law.

Opp. to Mot. for Summary J. 24, Robb I, 2025 WL 1025084 (No. 20-cv-929), ECF No. 59. Plain-

tiff’s argument alludes to—without explicitly discussing—the distinction between the “participa-

tion clause” and the “opposition clause” of the antiretaliation provisions at issue, so some expla-

nation will be helpful here.

Title VII’s antiretaliation provision makes it unlawful to discriminate against an employee

“because he has opposed any practice made an unlawful employment practice by this subchapter,

or because he has made a charge, testified, assisted, or participated in any manner in an investiga-

tion, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The antiretaliation

provision applicable to the Rehabilitation Act is materially identical. See 42 U.S.C. § 12203(a)

(the Americans with Disabilities Act’s antiretaliation provision); 29 U.S.C. § 791(f) (incorporating

46
standards from the Americans with Disabilities Act into the Rehabilitation Act). Each clause co-

vers different conduct and provides a different level of protection for that conduct. “The ‘opposi-

tion clause’ protects a broad range of informal actions or statements that employees make in re-

sistance to actions they reasonably perceive to be discriminatory. The ‘participation clause,’ on

the other hand, protects an employee’s actions in relation to ‘official’ or ‘legal’” proceedings under

the statutes, such as “legal efforts, through external processes, to combat . . . discrimination.”

Wang v. Wash. Metro. Area Transit Auth., 206 F. Supp. 3d 46, 76–77 (D.D.C. 2016) (internal

citations omitted). More, the participation clause “forbids retaliation against an employee who

‘has made a charge, testified, assisted, or participated in any manner’ in a protected proceeding,”

whereas the opposition clause “prohibits an employer from taking action against an employee be-

cause she has . . . ‘opposed any practice’ prohibited” by the statute and “provide[s] only qualified

protection against retaliation,” Egei, 192 F. Supp. 3d at 86, 89 (emphasis in original) (quoting 42

U.S.C. § 2000e-3(a)), for “reasonable attempts to contest an employer’s discriminatory practices,”

O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996) (emphasis added).

See also, e.g., Jackson v. Genesee Cnty. Rd. Comm’n, 999 F.3d 333, 346 (6th Cir. 2021) (“To bring

a successful claim under the opposition clause, [the plaintiff] must allege facts that she opposed

unlawful [employment] practices in a reasonable manner and with a reasonable and good faith

belief that the practices violated Title VII.”); Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121,

1139 (11th Cir. 2020) (“To qualify for protection under the opposition clause, ‘the manner in

which an employee expresses her opposition to an allegedly discriminatory employment practice

must be reasonable.’” (quoting Rollins v. Fla. Dep’t of Law Enf’t, 868 F.2d 397, 401 (11th Cir.

1989)); Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 n.4 (4th Cir. 1998) (“The

distinction between participation clause protection and opposition clause protection is significant

47
because the scope of protection is different. . . . [T]he scope of protection for activity falling under

the participation clause is broader than for activity falling under the opposition clause.” (internal

citations omitted)).

Plaintiff’s suggestion that the emails at issue are covered by the participation clause is not

well-taken. In them, Plaintiff made informal complaints to her employer, some of which were

about allegedly discriminatory, retaliatory, or harassing conduct—indeed, Plaintiff herself denom-

inated one of the emails at issue an “informal EEO complaint.” See ECF No. 41-3 at 20. Such

informal complaints have been held to be protected by the opposition clause rather than the par-

ticipation clause. See, e.g., Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 48–49 & n.6 (2d Cir.

2012) (holding that conduct preceding a formal EEOC charge, such as participation in an internal

investigation, is not protected under the participation clause); EEOC v. Total Sys. Servs., Inc., 221

F.3d 1171, 1174 (11th Cir. 2000) (“[The participation] clause protects proceedings and activities

which occur in conjunction with or after the filing of a formal charge . . . .”); Perry v. Kappos, 776

F. Supp. 2d 182, 194 (E.D. Va. 2011) (indicating that activity protected by the participation clause

cannot occur before an official investigation or proceeding is pending); Johnson v. Wash. Metro.

Area Transit Auth., 355 F. Supp. 2d 304, 310 (D.D.C. 2005) (“As to the opposition clause, it pro-

tects an employee who complains to her employer about discrimination.”); see also, e.g., Wang,

206 F. Supp. 3d at 77–78 (finding that the opposition clause but not the participation clause pro-

tected the plaintiff’s email to personnel in the employer’s Office of the Inspector General seeking

contact information for the EEO office and her visit to the employer’s Office of Civil Rights to

state that she had a discrimination complaint). Further, Plaintiff has acknowledged that the emails

fall under the protection of the opposition clause. See ECF No. 1-4 at 2–3 (acknowledging, in

response to the Notice of Proposed Removal, that opposition activity must be exercised in a

48
“reasonable manner” and arguing that Plaintiff’s “email communications were [not] so disruptive”

that they exceeded the bounds of reasonable opposition activity); ECF No. 1-7 at 13–14 (adminis-

trative complaint discussing Plaintiff’s “opposition” activity and its reasonableness). Accordingly,

whether the participation clause provides the kind of sweeping immunity Plaintiff implies, the

opposition clause, which is the source of any protection Plaintiff’s communications enjoy, cer-

tainly does not. Instead, it requires an employee’s conduct to be reasonable. 28 See O’Day, 79 F.3d

at 763.

That is borne out by cases in this jurisdiction that have found that restrictions on employ-

ees’ communications like the ones Plaintiff complains of are unproblematic and that remarkably

similar allegations cannot survive a defendant’s motion for summary judgment on a retaliation

claim. For example,in Mason, one of the plaintiffs—an IRS employee—“routinely sent e-mails

to his supervisors and senior IRS officials raising what he claims were ‘workplace concerns,’”

including that the performance appraisal process was unlawful and biased. 811 F. Supp. 2d at 160

(quoting the record). “Eventually, [he] was directed to stop sending e-mails detailing his various

grievances directly to senior IRS officials” but “nonetheless continued to send the e-mails,” con-

tending that “because he was dissatisfied with his supervisors’ responses, he had a right to elevate

his complaints and to have them personally reviewed by the Secretary of the Treasury and even

the President of the United States.” Id. at 160–61. Thereafter, he was informed of the “proper

channels to use in raising workplace grievances” and directed to use “the procedure for invoking

28
There is a “threshold disagreement among the circuits about whether the propriety of the manner of opposition is
best considered at the prima-facie stage, where the Court must ask whether the employee engaged in protected activity
at all, or at the nonretaliatory-justification-stage, where the Court must ask whether the employer acted for a nondis-
criminatory reason.” Savignac v. Jones Day, 745 F. Supp. 3d 135, 201 (D.D.C. 2024). The D.C. Circuit appears to
consider it “at the non-retaliatory justification stage.” See id. That makes some sense given Brady’s lack of enthusi-
asm for the “sideshow” of “decid[ing] whether the plaintiff actually made out a prima facie case under McDonnell
Douglas” once a defendant has proffered a legitimate non-discriminatory reason for the adverse employment action.
Brady, 520 F.3d at 494.

49
the agency grievance system and EEO apparatus” rather than “sending ‘broadcast’ communica-

tions to multiple management officials” and “email[ing] senior IRS officials with complaints.” Id.

at 161–62. When he failed to comply, he was suspended. See id. at 162. Similarly, a different

plaintiff “routinely sent e-mails to his supervisors and senior IRS officials raising workplace con-

cerns and grievances,” claiming that he had a right to “elevate” his concerns up the chain of com-

mand. Id. at 170–71. He, too, was instructed to submit his complaints “through the appropriate

channels,” such as “the EEO Complaint process.” Id. at 171. But he, too, “continued to e-mail

senior IRS officials with complaints” and was, therefore, suspended and, eventually, terminated.

Id. at 172. Both plaintiffs claimed they were retaliated against for activity protected under Title

VII. See id. at 203, 214. The IRS argued that they were disciplined for failing to follow the

instructions of management. See id. at 162, 172–73. Judge Kollar-Kotelly granted summary judg-

ment to the defendant on those retaliation claims. See id. at 206, 214. The court noted that the

plaintiffs were not “discouraged from raising [their] myriad allegations of discrimination or retal-

iation in the workplace” but rather were “merely directed to raise [their] concerns through ‘the

appropriate channels’” and ruled that “there was nothing inappropriate about such an instruction.”

Id. at 205; see also id. at 214 (“Like Mason, Benton has adduced no evidence demonstrating that

he was ever discouraged from raising his myriad allegations of discrimination or retaliation in the

workplace; the Secretary did not run afoul of Title VII merely by directing Benton to raise those

allegations through the appropriate channels and not to senior IRS officials after tolerating Ben-

ton’s communications for months.”). Where it was undisputed that the employees were “directed

to cease sending communications raising [their] concerns to senior IRS management . . . , but

[they] nonetheless continued on [their] prior course of conduct . . . , no reasonable trier of fact

could conclude that the [defendant’s] proffered justification for [the discipline imposed] was

50
pretextual.” Id. at 205–06; see also id. at 214 (finding that the plaintiff “failed to adduce sufficient

evidence to allow a reasonable trier of fact to doubt that his supervisors ‘honestly and reasonably

believed’ that he had serially violated the management directive” to “raise [] allega-

tions . . . through the appropriate channels” and consequently failed to show that his suspension

and termination were retaliatory (quoting Brady, 520 F.3d at 496)).

Similarly, in Byrd v. Vilsack, the plaintiff “repeatedly included senior management officials

in her communications” complaining about her treatment by her supervisor, “despite repeated

warnings” to pursue EEO complaints “through the appropriate channels.” 931 F. Supp. 2d 27, 43–

44 (D.D.C. 2013). After being suspended for failure to follow instructions, she ultimately filed an

action under Title VII for retaliation, among other things. See id. at 43. In response to the defend-

ant’s argument that her “suspension was based on a legitimate, nonretaliatory reason—[her] re-

peated failure to cease copying senior USDA management officials” on emails complaining of

mistreatment, the plaintiff claimed that the suspension was evidence of retaliation because “she

was disciplined ‘for seeking relief from her higher level superiors’ from . . . harassment.” Id.

Then-District Judge Wilkins disagreed. He found that management appropriately “directed [the

plaintiff] to route any such complaints through the appropriate channels—and not to simply car-

bon-copy a myriad of . . . managers on her email responses.” Id. at 44. He further found that the

plaintiff’s violations of the directive not to copy “high-level managers” on her complaints of har-

assment constituted a legitimate nonretaliatory reason for her discipline and that the defendant had

established that “its motivation in suspending [her] . . . was based upon ‘the manner in which [she]

complained of [alleged retaliation], not on the fact that she complained.’” Id. (quoting Rollins,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11064633. Public record. Not legal advice.