Bloom v. Harvey

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SHEILA A. BLOOM,

Plaintiff,

v. Civil Action 05-1804 (RCL)

JOHN McHUGH, et al.,

Defendants.

MEMORANDUM OPINION

Sheila A. Bloom, a former employee of the United States Army Corps of Engineers

proceeding pro se,1 brings this action against John McHugh, Secretary of the Army, and Robert

L. Van Antwerp, Jr., Commander of the Army Corps of Engineers.2 Bloom alleges harassment

and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq.; the Civil Service Reform Act, Pub. L. No. 95-454, 92 Stat. 1111 (1978) (codified in

scattered sections of 5 U.S.C.); and the Whistleblower Protection Act, Pub. L. No. 101-12, 103

Stat. 16 (1989) (codified in scattered sections of 5 U.S.C.). Before the Court is defendants’

motion to dismiss her complaint in part and for summary judgment [Dkt. # 44].3 Upon

1

At the time she filed her complaint and during the early stages of this litigation,

Bloom was represented by counsel. In September 2007, the Honorable Henry H. Kennedy, Jr.

granted her counsel’s motion to withdraw. See Min. Entry for Sept. 6, 2007. Since that time,

Bloom has represented herself.

2

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the current

Secretary of the Army has been substituted for former Secretary Francis J. Harvey, and the

current Commander of the Army Corps of Engineers has been substituted for former

Commander Carl A. Strock.

3

Although the motion refers to “Defendant” in the singular and omits “et al.” from

the caption, perhaps because the government argues that Commander Antwerp is an improper

party to the Title VII claims, the Court treats the motion as brought on behalf of both the

consideration of the motion, the opposition thereto, and the record of this case, the Court

concludes that defendants’ motion should be granted.4

I. BACKGROUND

Bloom was hired by the Army Corps of Engineers as a civil engineer in 1986. Compl.

¶ 15. In June 1996, she began serving as a program manager in the Corps’s Baltimore District

office, working on, among other things, the “Spring Valley” project. Compl. ¶ 17.5 Bloom

states that between 1996 and 1998 she raised with her supervisors concerns about environmental

and public health dangers at the Spring Valley site. Compl. ¶ 18. In retaliation, Bloom

contends, the Corps replaced her as the program manager at the Spring Valley site. Compl. ¶ 19.

Bloom also alleges that the Corps initially attempted to interfere with her transfer to another

position, which she was later permitted to accept. Compl. ¶ 20.

In 2002, the U.S. Department of Justice allegedly began investigating the Spring Valley

site and interviewed Bloom. Compl. ¶ 21. Bloom contends that before her interview, she

informed individuals in the Army Corps’s Baltimore District office and its Office of the General

Secretary and the Commander.

4

In opposing defendants’ motion, Bloom presents a myriad of documents, all but

one of which merely restate motions that the Court has previously denied, see Order of Nov. 24,

2009 [Dkt. # 41], and none of which provide a basis for the Court to reconsider any of its

previous rulings. Accordingly, this opinion does not address those other documents, and focuses

on Bloom’s 86-page “Motion to Dismiss Defendant’s Motion to Dismiss,” which responds to

defendants’ arguments in support of their motion.

5

This project involved an area in the northwestern part of Washington, D.C. that

the government previously used for research and testing of chemical agents, equipment, and

munitions. See Spring Valley, Washington, D.C., Project Overview, U.S. ARMY CORPS OF

ENGINEERS, http://www.nab.usace.army.mil/Projects/Spring%20Valley/ (last visited Dec. 1,

2011).

2

Counsel about her concerns regarding the Spring Valley site, after which it allegedly “became

known to the command structure” of the Corps that Bloom planned to move forward with raising

her complaints externally. Compl. ¶ 21. Bloom also contends that she spoke with the Corps

Inspector General about the Spring Valley site in November 2002. Compl. ¶ 23.

Earlier that year, Bloom had accepted a position within the Corps’s Command Planning

Group. Compl. ¶¶ 22, 24. In this position, she worked under a team of three managers: Bruce

Elliott, Sean Wachutka, and Toni Trombecky (collectively, the “management team”). Compl. ¶

26. Bloom contends that she experienced “significant retaliation” during this assignment as a

result of her “protected disclosures” regarding the Spring Valley site. Compl. ¶ 22.

Bloom also alleges that the management team subjected her to a “pattern of

discrimination” beginning in September 2002. Compl. ¶ 29. Specifically, Bloom says that

Wachutka “continually presented” her with job announcements. Compl. ¶ 30. Trombecky

allegedly accused Bloom of attempting to undermine her authority, belittled Bloom in front of

her male colleagues, and refused to assign Bloom work in areas where she had experience.

Compl. ¶ 31. The management team also purportedly refused to change Bloom’s title from

“facilitator” to the “more distinguished and prestigious” title of “strategic planner,” which

allegedly resulted in her being designated an “overhire” in the Corps’s January 2004

reorganization. Compl. ¶¶ 34–36.

In July 2002, Bloom attended a Corps work party where, she says, Trombecky’s husband

“made inappropriate sexual advances” toward her. Compl. ¶ 27. She contends that Trombecky’s

husband “grabbed . . . Bloom and pulled her towards him into a hug,” saying “‘take me away

3

from them, they don’t understand me.’” Compl. ¶ 27. Bloom also alleges that, several days

later, Trombecky “trapped” her in her cubicle and “berated her.” Compl. ¶ 28.

In November 2002, Trombecky allegedly told Bloom that her husband was going to

“joke” with Bloom at the Corps’s upcoming holiday party and said, “in a very sexual tone . . .

‘[o]h he really likes you.’” Compl. ¶ 32. At the party, Trombecky’s husband allegedly “grabbed

[Bloom] and tickled her arms near her breasts.” Compl. ¶ 33. Bloom says that he then “stood

against the wall and stared at [her] for a long time.” Compl. ¶ 33.

In January 2003, Trombecky allegedly “subjected . . . Bloom to harassment” at a work

conference, prompting Bloom to report Trombecky’s harassment to Elliott. Compl. ¶¶ 37–38.

After lodging this complaint, Bloom contends that she became “the subject of retaliation by her

supervisors.” Compl. ¶ 91. Specifically, on February 3, 2003, Trombecky allegedly informed

Bloom that her Quality Step Increase would not take effect, even though Bloom had previously

been told that the increase had been approved. Compl. ¶ 39. On February 4, 2003, Trombecky

allegedly “verbally abused” Bloom, prompting Bloom to request that Elliott remove her from the

“hostile work environment.” Compl. ¶¶ 40–41.

On February 11, 2003, Trombecky purportedly had security staff escort Bloom through

the building and then issued her a letter of reprimand, after which Bloom initiated an informal

administrative grievance. Compl. ¶¶ 43–45. Bloom contends that her efforts to seek redress

through the Corps’s chain of command were “continuously denied.” Compl. ¶ 45. On March

13, 2003, Bloom purportedly received notification that she had been charged with being away

without leave (“AWOL”) for 3.75 hours, causing her to lose $157.50 in “pay and benefits.”

Compl. ¶¶ 51, 99.

4

In April 2003, Trombecky allegedly referred Bloom to a mandatory anger management

program. Compl. ¶ 53. Trombecky also allegedly “targeted [Bloom], unlike her male

counterparts,” by requiring her to: (i) provide a fixed arrival and departure schedule; (ii) sign in

and out on a timesheet for her time in, time out, and lunch hours; (iii) sign in and out any time

she was away from her desk for more than thirty minutes; and (iv) alert Trombecky any time she

attended a meeting that went longer than expected. Compl. ¶¶ 53–54. In May 2003, Trombecky

and Elliot purportedly denied Bloom’s request to attend a conference. Compl. ¶ 56. In June

2003, Trombecky allegedly wrote a derogatory e-mail about Bloom and requested information

from Bloom’s physician. Compl. ¶¶ 59–60.

In August 2004, Bloom received a thirty-working-day suspension. Compl. ¶ 70. The

specific bases for the suspension were “communicating a threat, failure to follow instructions,

and lack of candor.” Def.’s Mem. in Supp. of Mot. to Dismiss in Part and for Summ. J. (“Defs.’

Mem.”) at 18. Bloom contends that, as a result, she lost $10,080 in wages and was denied other

benefits, including matching contributions to her retirement account, health benefits, leave

accrual, and insurance benefits. Compl. ¶ 139. Bloom says that she did not engage in the

misconduct used as the basis of her suspension, or in the alternative, that any misconduct was

“provoked.” Compl. ¶¶ 140–141.

Bloom contends that in August 2004, Wachutka refused to allow her to reapply for a

security clearance because “he was not going to require a clearance for her position.” Compl.

¶ 75. She alleges that the lack of a security clearance “limited [her] mobility for placement into

available openings from the overhire position” and “impacted her ability to . . . obtain

promotions or assignments to key projects.” Compl. ¶¶ 75–76.

5

In October 2004, Bloom received a “[f]ailing (5) performance appraisal.” Compl. ¶ 81.

As a result, Bloom was placed on a performance improvement plan and “was ineligible for a

cash award in both 2003 and 2004.” Compl. ¶¶ 106, 108. Bloom argues that the Corps’s failure

to issue her “legitimate performance appraisals” from November 2002 to October 2004 “denied

her the opportunity to transfer into another position and be promoted.” Compl. ¶¶ 82, 107.

Bloom contends that throughout this period, she repeatedly complained about her

working environment to her supervisors and requested to be transferred. See Compl. ¶¶ 29–86.

Specifically, Bloom says that she complained of Trombecky’s “harassment” to Elliott in January

2003 and asked Elliott to remove her “from the hostile work environment” in February 2003.

Compl. ¶¶ 38, 41. Between February 2003 and April 2003, Bloom allegedly filed informal and

formal administrative grievances, to no avail. Compl. ¶¶ 44–45, 49. In March 2003, Bloom’s

request for a transfer was allegedly denied. Compl. ¶ 48. In May 2003, Bloom avers that she

reported to a different Corps division for a permanent transfer, but the transfer was subsequently

reversed. Compl. ¶ 57. Bloom contends that she alerted Lieutenant General Robert Flowers in

May 2003 that she was being discriminated and retaliated against as a result of “her

whistleblower activity” regarding the Spring Valley site and “her prior EEO protected

activities”; Flowers allegedly took no action. Compl. ¶ 58. In October 2003, Bloom’s request to

be removed from her position was again denied. Compl. ¶ 64.

Between May 2003 and February 2005, Bloom filed four complaints with the Army

Equal Employment Opportunity Office. See Compl. ¶¶ 52, 68–69, 86. In September 2005, she

commenced this action. From May 2008 through May 2009, this action was stayed pending the

Court of Appeals’ resolution of the dismissal of a related civil action, Bloom v. Geren, No. 07-

6

0979 (D.D.C. Jan. 18, 2008). The D.C. Circuit resolved that appeal by summary affirmance, see

Bloom v. Geren, 2009 WL 1953632 (D.C. Cir. Feb. 3, 2009), and the defendants then brought

this motion to dismiss and for summary judgment.

II. LEGAL STANDARDS

A. Judgment on the Pleadings Under Rule 12(c)

Defendants move to dismiss some of Bloom’s claims under Federal Rule of Civil

Procedure 12(b)(6), but such a motion is untimely because they have already filed an answer.

See FED. R. CIV. P. 12(b) (“A motion asserting any [Rule 12(b)] defenses must be made before

pleading if a responsive pleading is allowed.”). Because, however, the standards for a Rule

12(b)(6) motion and a Rule 12(c) motion for judgment on the pleadings are identical, courts

routinely construe motions to dismiss that are filed after a responsive pleading as motions for

judgment on the pleadings, and this Court will do likewise. See, e.g., Langley v. Napolitano, 677

F. Supp. 2d 261, 263 (D.D.C. 2010); Lenox Hill Hosp. v. Shalala, 131 F. Supp. 2d 136, 140

(D.D.C. 2000).

Accordingly, defendants’ motion will be granted only if Bloom’s complaint fails to plead

“enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). To state a plausible claim, the complaint need not contain detailed

factual allegations, but it must recite facts sufficient to at least “raise a right to relief above the

speculative level . . . on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Id. at 555. A “pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009) (quoting Twombly, 550 U.S. at 555). At bottom, a complaint must contain

7

sufficient factual matter that, accepted as true, would allow the Court “to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.6

B. Summary Judgment Under Rule 56

Defendants move for summary judgment on another of Bloom’s claims. A motion for

summary judgment should be granted only “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). A material fact is one that “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must support its factual

positions by “citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A); see Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party meets its burden, the non-moving party must then establish that a

genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). To meet its burden, the non-moving party must show

that “the evidence is such that a reasonable jury could return a verdict” in its favor. Anderson,

477 U.S. at 248. Such evidence must consist of more than mere unsupported allegations or

denials and must set forth specific facts showing that there is a genuine dispute for trial. See

FED. R. CIV. P. 56(c)(1), (e); Celotex, 477 U.S. at 322 n.3. If the evidence is “merely colorable”

6

Although the pleadings of pro se plaintiffs are held to less stringent standards than

those of trained attorneys, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), Bloom does not

benefit from that more lenient standard because, although she now proceeds pro se, her

complaint was drafted by an attorney. See supra note 1.

8

or “not significantly probative,” summary judgment may be granted. Anderson, 477 U.S. at

249–50.

III. ANALYSIS

Bloom’s complaint presents five counts. Two allege violations of the Whistleblower

Protection Act and the Civil Service Reform Act. The remaining three allege violations of Title

VII: sex discrimination, retaliation for engaging in protected activity, and the creation of a

hostile work environment. The Court begins by addressing Bloom’s claim under the

Whistleblower Protection Act.7

A. Bloom’s Whistleblower Protection Act Claim is Barred By Res Judicata

Defendants contend that Count IV of Bloom’s complaint, titled “Whistleblower

Discrimination,” is barred by the doctrine of res judicata. Defs.’ Mem. at 5–6. They argue that

Count IV is duplicative of claims that Bloom raised before the Federal Circuit in 2007, see

Bloom v. Dep’t of the Army, 245 F. App’x 953 (Fed. Cir. 2007), as well as those presented to this

Court in Bloom v. Geren. Defs.’ Mem. at 5–6. Bloom does not address the Federal Circuit

appeal, but argues that Count IV is “distinctly different” from the claims she raised in Bloom v.

Geren. Pl.’s Mot. to Dismiss Def.’s Mot. to Dismiss ( “Pl.’s Opp’n”) at 3. Bloom’s argument is

unavailing.8

7

Because the Court concludes that defendants have earned summary judgment on,

or the dismissal of, all of Bloom’s claims, it does not reach the Secretary’s argument that he is

the sole proper defendant for Bloom’s Title VII claims.

8

In resolving Rule 12(c) motions, courts may take judicial notice of records of

prior litigation. Does I Through III v. District of Columbia, 238 F. Supp. 2d 212, 216 (D.D.C.

2002).

9

Res judicata, or claim preclusion, holds that “a subsequent lawsuit will be barred if there

has been prior litigation (1) involving the same claims or cause of action, (2) between the same

parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court

of competent jurisdiction.” Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006) (citing

Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 323–24 (1971)). Two claims

involve the same cause of action if they share a common nucleus of fact. Drake v. FAA, 291

F.3d 59, 66 (D.C. Cir. 2002). In short, the doctrine prevents parties “from relitigating issues that

were or could have been raised” in a prior action. Allen v. McCurry, 449 U.S. 90, 94 (1980)

(emphasis added).

Bloom’s Whistleblower Protection Act claim is clearly barred by her prior litigation.

Bloom here alleges that she “raised significant concerns to her supervisors” regarding a number

of “major flaws” with the Spring Valley project site. Compl. ¶¶ 129–30. As an alleged result of

these disclosures, Bloom experienced several retaliatory actions. Compl. ¶¶ 131–34. Similarly,

Bloom argued before the Federal Circuit (where she was appealing the dismissal of her

complaint by the Merit Systems Protection Board) that “she suffered reprisals in violation of the

Whistleblower Protection Act . . . as a result of protected disclosures she made in connection

with the ‘Spring Valley’ project.” Bloom, 245 F. App’x at 954. Although Bloom describes

some retaliatory actions here that she did not raise before the Federal Circuit, her new allegations

“could have been raised” in that court, Allen, 449 U.S. at 94, and the claims she raised there

plainly share a nucleus of fact with those she asserts here. See Drake, 291 F.3d at 66. The

Federal Circuit’s dismissal of Bloom’s Whistleblower Protection Act claims—essentially

because they were frivolous, see 245 F. App’x at 955–56—constituted “a final, valid judgment

10

on the merits” of those claims. See Smalls, 471 F.3d at 192. Accordingly, Bloom may not now

relitigate those claims, or others that she could have raised in that action. Her Whistleblower

Protection Act claim will therefore be dismissed.9

B. Summary Judgment as to Bloom’s Civil Service Reform Act Claim

The defendants next argue that the Court should grant summary judgment in their favor

on Count V, which alleges that Bloom’s thirty-day suspension in August 2004 violated the Civil

Service Reform Act. Bloom was suspended for lack of candor, issuing threats, and failure to

follow instructions. Def.’s Mem. Ex. 28 at 1–2. The Civil Service Reform Act provides a

grievance process and remedies to federal employees who believe that they have experienced

prohibited personnel practices, which include personnel actions that are arbitrary, discriminatory,

or based on personal favoritism. See 5 U.S.C. §§ 2301–2302. Before addressing the

defendants’ arguments, the Court will briefly clarify the procedural posture of this claim.

The Civil Service Reform Act allows an employee who has experienced a prohibited

personnel practice that was motivated by discrimination in violation of Title VII to file a “mixed

case” alleging violations of both the Civil Service Reform Act and Title VII. A mixed case

complainant may file either a complaint with her agency’s equal employment opportunity office

or a “mixed case appeal” directly with the Merit Systems Protection Board. See Butler v. West,

164 F.3d 634, 638 (D.C. Cir. 1999); 29 C.F.R. § 1614.302(b). If she elects the former route, the

complainant may appeal the agency’s decision to the Merit Systems Protection Board or file a

9

This conclusion is reinforced by the decision in Bloom v. Geren, where Bloom

brought a claim for whistleblower discrimination based on nearly identical allegations. Judge

Kennedy granted defendants’ motion to dismiss that claim, finding that Bloom’s “whistle blower

claim is barred by claim preclusion principles.” Bloom v. Geren, No. 07-0979 (D.D.C. Jan. 18,

2008) (order dismissing case).

11

civil action in federal court. See 29 C.F.R. §§ 1614.302(d)(1)(ii), 1614.302(d)(3), 1614.310(a).

The same options are available if 120 days pass without a final decision by the agency. See 5

U.S.C. § 7702(e); Butler, 164 F.3d at 638.

Here, Bloom first filed a mixed case complaint regarding her thirty-day suspension with

the Army’s equal employment opportunity office. Compl. ¶¶ 7, 69. A month later, she filed a

mixed case appeal with the Merit Systems Protection Board, which was dismissed without

prejudice as premature because her EEO complaint was still pending. See Bloom v. Dep’t of the

Army, 2004 M.S.P.B. LEXIS 3025, at *4–6 (Oct. 20, 2004). The equal employment opportunity

office, however, did not act on Bloom’s complaint within 120 days. Compl. ¶ 7.

Bloom’s Civil Service Reform Act claim thus arrives here in an unusual posture; neither

the EEO office nor the Merit Systems Protection Board has addressed its merits. Nevertheless,

district courts have subject-matter jurisdiction to review the Civil Service Reform Act

component of a mixed case even absent a final agency decision on the merits. Ikossi v. Dep’t of

Navy, 516 F.3d 1037, 1042–44 (D.C. Cir. 2008). In such cases, the Court’s review is de novo.

See id. at 1043–44; accord Seay v. TVA, 339 F.3d 454, 472 (6th Cir. 2003).

To earn summary judgement on Bloom’s Civil Service Reform Act claim, therefore,

defendants must demonstrate that any reasonable jury would find the agency’s reasons for

suspending Bloom to be “supported by a preponderance of the evidence . . . and that the penalty

imposed was reasonable.” Vickers v. Powell, 493 F.3d 186, 191 (D.C. Cir. 2007) (citing 5

U.S.C. § 7701(c)(1)(B); Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981)). Defendants must

also prove that the thirty-day suspension “promote[d] the efficiency of the [civil] service.”

12

5 U.S.C. § 7513(a). The Court will first address the evidence supporting the penalty, and then

the propriety thereof.

1. Evidence Supporting the Lack of Candor Charge

Defendants contends that Bloom’s suspension was partially based on her lack of candor.

Bloom allegedly made a number of untruthful statements to a supervisor in December 2003.

Def.’s Mem. at 19–21. According to memoranda written by both Bloom and her supervisor

Wachutka, on December 19, Bloom announced to Wachutka that she planned to visit the Army’s

equal employment opportunity office. Def.’s Mem. Ex. 28, Attach. 5 at 1–2; Def.’s Mem. Ex. 29

at 2.10 Wachutka asked whether Bloom had an appointment there; Bloom said that she did.

Bloom then admitted that her appointment had actually been two days prior, but she had been

unable to make it. Def.’s Mem. Ex. 28 at 1–2; Def.’s Mem. Ex. 29 at 2. After Wachutka

confirmed that Bloom did not have an appointment with the EEO office for that day, Bloom

allegedly told Wachutka that she had permission to go to there at any time to review her file.

Def.’s Mem. Ex. 28, Attach. 5 at 2. Wachutka again contacted the EEO office, which informed

him that Bloom had not had an appointment on record for December 17 and that there was no

standing invitation for Bloom to visit. Def.’s Mem. Ex. 28, Attach. 5 at 2.

Defendants have offered evidence that Bloom responded untruthfully or evasively to a

number of Wachutka’s questions on December 19, 2003. Bloom has introduced no evidence to

the contrary, nor disputed that these events occurred substantially as described in defendants’

10

In Bloom’s opposition brief, she states that she filed a second EEO complaint on

December 19, 2003, but makes no mention of her interactions with Wachutka on that date. See

Pl.’s Opp’n at 26. Accordingly, in recognition of Bloom’s status as a pro se plaintiff, the Court

incorporates Bloom’s description of those events from Bloom’s email, dated July 7, 2004, that

rebutted the proposed 30-day suspension, attached as Exhibit 29 to defendants’ motion.

13

exhibits. Bloom does state broadly that the parties disagree about the facts of the case, see Pl.’s

Opp’n at 43, but a pro se plaintiff, like any other, cannot defeat summary judgment by making

mere allegations or denials that are unsupported by affidavits or other competent evidence.

Prunte v. Universal Music Grp., Inc., 699 F. Supp. 2d 15, 21–22 (D.D.C. 2010). Further,

Bloom’s own description of the events of December 19 asserts that Bloom first told Wachutka

that she had an appointment that afternoon at the EEO Office, and then later admitted that she

did not. Def.’s Mem. Ex. 29 at 2. Because a lack of candor charge may be proven by showing

that the employee failed “to disclose something that, in the circumstances, should have been

disclosed in order to make the given statement accurate and complete,” Ludlum v. Dep’t of

Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002), the Court finds defendants have met their

evidentiary burden with respect to the lack of candor charge. Cf. Smith v. Dep’t of Interior, 112

M.S.P.R. 173, 180–81 (2009) (finding that the agency had met its evidentiary burden to sustain a

lack of candor charge where the employee had admitted to “c[oming] up with” excuses for her

absences from work); see also Weaver v. U.S. Information Agency, 87 F.3d 1429, 1433 (D.C.

Cir. 1996) (noting that “[t]he [Merit Systems Protection Board’s] interpretation [of the Civil

Service Reform Act] is entitled to deference”) (citing Lovshin v. Dep’t of Navy, 767 F.2d 826,

840 (Fed. Cir. 1985) (en banc) (holding that “deference is appropriately given to the [Merit

Systems Protection Board’s] interpretation” of the Civil Service Reform Act)).11

11

Because the lack of candor charge is supported by a preponderance of the

evidence and no reasonable juror could conclude otherwise, and, as explained below, is

sufficient to support the suspension, the Court will not consider whether defendants have

established a basis for the remaining charges of making a threat and failure to follow

instructions. See Leach v. Dep’t of Veterans Affairs, 107 M.S.P.R. 229, 232 (2007) (noting that

where one charge supports the penalty received, other charges need not be addressed); Alvarado

v. Dep’t of the Air Force, 103 M.S.P.R. 1, 19–20 (2006) (same).

14

2. Nexus Between Adverse Action and the Efficiency of the Service

Under the Civil Service Reform Act, an agency can take action against an employee

“only for such cause as will promote the efficiency of the service.” 5 U.S.C. § 7513(a). The

“efficiency of the service” standard requires that there be a “nexus between the employee’s

misconduct and the work of the agency, i.e., the agency’s performance of its functions.” Doe v.

Dep’t of Justice, 565 F.3d 1375, 1379 (Fed. Cir. 2009). The Merit Systems Protection Board has

held that “an agency has a right to expect its workers to be honest, trustworthy, and candid” and

that a “lack of candor strikes at the very heart of the employer-employee relationship.” Ludlum

v. Dep’t of Justice, 87 M.S.P.R. 56, 68 (2000) (citing Stein v. U.S. Postal Serv., 57 M.S.P.R. 434,

441 (1993)). And the Federal Circuit has suggested that a sufficient nexus is established where

the employee’s misconduct occurred at work. Parker v. U.S. Postal Serv., 819 F.2d 1113, 1116

(Fed. Cir. 1987). Here, defendants have shown that Bloom was dishonest and evasive with her

supervisor, while at work. That showing is sufficient to establish a nexus between the

employee’s misconduct and the efficiency of the service. See Probasco v. Dep’t of the Air

Force, 2009 M.S.P.B. LEXIS 6354, at *24 (Sept. 29, 2009); Ludlum, 87 M.S.P.R. at 68.

3. Appropriateness of the Penalty Imposed

The Court reviews an agency-imposed penalty under the Civil Service Reform Act only

to determine if the agency considered all the relevant factors and exercised management

discretion within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306; see also Dunn

v. Dep’t of the Air Force, 96 M.S.P.R. 166, 170–71 (2004). Accordingly, the Court’s function is

not to decide what penalty it would impose, but rather to ensure that the agency’s judgment has

15

been properly exercised and that the penalty does not exceed the maximum limits of

reasonableness. Kamahele v. Dep’t of Homeland Sec., 108 M.S.P.R. 666, 670–71 (2008);

Douglas, 5 M.S.P.R. at 306.

Bloom’s complaint alleges that the suspension was overly harsh, that the agency failed

to properly consider the required factors, as listed in Douglas, 5 M.S.P.R. 280,12 and that Bloom

was “otherwise subject to disparate treatment.” Compl. ¶¶ 142–144. Defendants respond that

the agency properly considered each of the Douglas factors and that the severity of the

suspension was well within the bounds of reasonableness. Defs.’ Mem. at 28–29. Defendants

have the stronger position.

The evidence offered by defendants establishes that the agency properly considered all of

the relevant factors before issuing Bloom’s thirty-day suspension. In an interview with an EEO

counselor, Wachutka, the proposing official, stated that he had both considered the Douglas

factors and consulted with the Army Corps’s Human Resources department before deciding that

12

The Douglas factors are: (1) the nature and seriousness of the offense, and its relation to

the employee’s duties, position, and responsibilities, including whether the offense was

intentional or technical or inadvertent, or was committed maliciously or for gain, or was

frequently repeated; (2) the employee’s job level and type of employment, including supervisory

or fiduciary role, contacts with the public, and prominence of the position; (3) the employee’s

past disciplinary record; (4) the employee’s past work record, including length of service,

performance on the job, ability to get along with fellow workers, and dependability; (5) the

effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect

upon supervisors’ confidence in the employee’s ability to perform assigned duties; (6)

consistency of the penalty with those imposed upon other employees for the same or similar

offenses; (7) consistency of the penalty with any applicable agency table of penalties; (8) the

notoriety of the offense or its impact upon the reputation of the agency; (9) the clarity with

which the employee was on notice of any rules that were violated in committing the offense, or

had been warned about the conduct in question; (10) potential for the employee’s rehabilitation;

(11) mitigating circumstances surrounding the offense such as unusual job tensions, personality

problems, mental impairment, harassment, or bad faith, malice or provocation on the part of

others involved in the matter; and (12) the adequacy and effectiveness of alternative sanctions to

deter such conduct in the future by the employee or others. 5 M.S.P.R. at 305–06.

16

Bloom’s purported misconduct warranted a thirty-day suspension. Def.’s Mem. Ex. 31 at 4.

Elliott, the deciding official, specifically stated in his “notice of decision” that he had “given full

consideration to all of the Douglas factors.” Def.’s Mem. Ex. 30 ¶ 2. Elliott also completed a

“Supervisor’s Checklist of Douglas Factor Considerations” in which each of the twelve listed

factors is followed by a handwritten notation indicating the application of the factor to the

situation at hand. See Def.’s Mem. Ex. 33.13 In light of this uncontroverted evidence, the Court

concludes that the Corps properly considered all of the requisite factors.

The Court also finds that the severity of the thirty-day suspension was within the limits of

reasonableness. Although the suspension was based on the agency’s conclusion that Bloom had

committed all three of the offenses charged, the penalty cannot be viewed as anything other than

reasonable even if considered solely in relation to the lack of candor charge. In evaluating the

reasonableness of a penalty, the Court considers first and foremost the nature and seriousness of

the misconduct and its relation to the employee’s duties, position, and responsibilities.

Singletary v. Dep’t of the Air Force, 94 M.S.P.R. 553, 559 (2003), aff’d, 104 F. App’x 155 (Fed.

Cir. 2004). A lack of candor charge is a serious offense that “strikes at the heart of the

employer-employee relationship.” Jackson v. Dep’t of the Army, 99 M.S.P.R. 604, 607 (2005).

That fact is reaffirmed by the agency’s “Table of Penalties,” which suggests that a first offense

for “exaggeration, concealment, [or] withholding of a material fact” warrants anything from a

written reprimand to removal. See Def.’s Mem. Ex. 36 at 5–6. Bloom provides no basis for the

13

Bloom contends, apparently because Elliot’s checklist is dated “July 22,” without

a year, that defendants have “provided false documents to support the false statements that Bruce

Elliott had properly considered the Table of Penalties or Douglas Factors when determining”

whether the 30-day suspension was appropriate. Pl.’s Opp’n at 45–46. This assertion is without

support and is contradicted by both a sworn affidavit from Elliott, Def.’s Reply Ex. 1 ¶¶ 3–6, and

the bases for the suspension listed on the form itself.

17

Court to conclude that her suspension for committing this significant offense was unreasonable.

She claims that any misconduct on her part was “provoked” by officials at the agency, Compl.

¶ 141, but offers no evidence to support such a claim.14 The Court therefore finds that the

imposition of a thirty-day suspension was a reasonable penalty and that no reasonable juror

could conclude otherwise on this record.

4. Bloom’s Affirmative Defense of Disparate Treatment

Lastly, the Court turns to Bloom’s contention that her suspension was motivated by

disparate treatment. Compl. ¶ 143. Disparate treatment that would violate Title VII constitutes

an affirmative defense under the Civil Service Reform Act that, if proven, requires a penalty to

be overturned even if otherwise justified. See 5 U.S.C. § 2302(b); 5 C.F.R. § 1201.56(a)(2)(iii),

(b). Defendants argue that Bloom’s accusation of disparate treatment is without support. The

Court agrees.

Under the Civil Service Reform Act, an employee may establish a prima facie case of

discrimination by showing that she was treated less favorably than a similarly situated employee

who is not a member of her protected class. See Buckler v. Fed. Ret. Thrift Inv. Bd., 73 M.S.P.R.

476, 497 (1997). Here, Bloom can make no such showing. Defendants concede that Bloom’s

gender places her in a protected class, but rightly points out that Bloom has not identified any

similarly situated comparators outside of her protected class who were punished less harshly

than she was for similar conduct. Accordingly, Bloom’s affirmative defense fails, and

defendants are entitled to summary judgment on Count V of Bloom’s complaint.15

14

Provocation is a mitigating factor under Douglas. 5 M.S.P.R. at 305.

15

In granting summary judgment on Bloom’s CSRA claim in favor of defendants,

the Court notes that Bloom makes a number of arguments regarding the need for “proper

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C. Bloom’s Sex Discrimination Claim (Count III) Is Dismissed

Count III of Bloom’s complaint alleges that Bloom experienced discrimination based on

sex in violation of Title VII. See 42 U.S.C. § 2000e-16(a) (requiring federal employment

decisions to “be made free from any discrimination based on . . . sex”).16 Defendants argue that

Count III should be dismissed because Bloom has not alleged that she experienced an adverse

employment action. Defs.’ Mem. at 10–11. The Court agrees that Bloom has failed to state a

disparate treatment claim, but for a different reason.17

An adverse employment action is “a significant change in employment status, such as

hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a

discovery” in her opposition. See Pl.’s Opp’n at 53–58. None of Bloom’s arguments, however,

relate to how additional discovery would yield evidence relating to the events of December 19,

2003 that were the basis of the lack of candor charge, nor what effect additional discovery would

have on substantiating her affirmative defense of discrimination by yielding comparator

evidence. Accordingly, even if the Court were to construe Bloom’s arguments as a request for

additional discovery under Federal Rule of Civil Procedure 56(d), Bloom would fail to show

“why discovery [i]s necessary” on this particular claim. See Strang v. U.S. Arms Control &

Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989) (finding that the plaintiff did not

justify delaying summary judgment so she could engage in further discovery where she had not

given the district court any “reason to question the veracity” of the defendants’ evidence and

“her plea [was] too vague to require the district court to defer or deny dispositive action”).

16

Although Count III includes allegations suggesting both that Bloom was

subjected to disparate treatment based on her sex and that she suffered sexual harassment, the

Court treats the allegations of sexual harassment as part of Bloom’s hostile environment claim

(Count I, discussed below).

17

Defendants are correct that Bloom must present allegations suggesting that she

experienced an adverse employment action, but not, as he suggests, because Bloom must plead a

prima facie case. The Supreme Court has explained that “an employment discrimination

plaintiff need not plead a prima facie case of discrimination.” Swierkiewicz v. Sorema N.A., 534

U.S. 506, 515 (2002); see Bryant v. Pepco, 730 F. Supp. 2d 25, 28–29 (D.D.C. 2010) (collecting

cases holding that Swierkiewicz survived Twombly and Iqbal). Rather, Bloom must do so

because an adverse employment action is also an “essential element[]” of a disparate treatment

claim. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).

19

decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 761 (1998); accord Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003). The employee

must “experience[] materially adverse consequences affecting the terms, conditions, or privileges

of employment or future employment opportunities such that a reasonable trier of fact could find

objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). “For

employment actions that do not obviously result in a significant change in employment status . . .

an employee must go the further step of demonstrating how the decision nonetheless caused . . .

objectively tangible harm.” Douglas v. Donovan, 559 F.3d 549, 553 (D.C. Cir. 2009).

Here, Bloom identifies four distinct actions as being “targeted” at her but not her male

counterparts. First, Trombecky “insisted” that Bloom provide a fixed schedule indicating her

arrival and departure times, even though her male colleagues were not required to do so. Compl.

¶ 123. Second, Trombecky instructed Bloom to sign in and out on a timesheet to account for her

arrival, departure, and lunch breaks, and to report to Trombecky anytime a meeting went longer

than expected. Compl. ¶ 124. Third, Trombecky and Elliott denied Bloom’s request to attend a

conference even though two male colleagues were permitted to go. Compl. ¶ 125. Finally, the

management team refused to change Bloom’s job title from “facilitator” to “strategic planner” as

required by a Permanent Change of Station (i.e., an official reassignment) that she received in

2002. Compl. ¶¶ 10, 25, 126.18

18

Bloom also describes inappropriate and harassing behavior on the part of

Trombecky’s husband at a pair of parties in 2002. Compl. ¶¶ 118–122. But Trombecky’s

husband was not a Corps employee, these events did not occur at work, and there is no

suggestion that they had any had any employment-related consequences. Thus, they cannot

constitute adverse employment action; however, as discussed further below, the Court considers

these allegations to be part of Bloom’s separate hostile environment claim.

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Trombecky’s instructions to follow certain scheduling practices do not rise to the level of

adverse employment action. Bloom makes no allegations suggesting that these instructions

“caused . . . objectively tangible harm,” Douglas, 559 F.3d at 552, or otherwise impacted her

employment status. At most, these instructions constituted an inconvenience to Bloom. See

Zelaya v. UNICCO Serv. Co., 733 F. Supp. 2d 121, 129–30 (D.D.C. 2010) (finding that, inter

alia, the removal of the plaintiff’s fifteen-minute break and the assignment of an employee to

monitor her were “minor inconveniences and alteration[s] of job responsibilities [that did] not

rise to the level of adverse action necessary to support a claim.” (quoting Taylor v. Solis, 571

F.3d 1313, 1321 (D.C. Cir. 2009)) (first alteration in original) (internal quotation marks

omitted)). For the same reason, the denial of Bloom’s request to attend a conference is not

adverse. Nurriddin v. Bolden, 674 F. Supp. 2d 64, 89 (D.D.C. 2009) (holding that “denial of

travel to conferences is not an adverse employment action” because it has no material

consequences).

Conversely, Bloom’s final allegation—that managers refused to change Bloom’s job title

to reflect her reassignment—does plausibly suggest that Bloom experienced adverse action.

Although defendants rely on Bloom’s assertion that “strategic planner” is a “more distinguished

and prestigious” title than “facilitator,” Compl. ¶ 36, to argue that Bloom alleges a mere “bruised

ego,” Defs.’ Mem. at 11, the Court disagrees. Construed in her favor, Bloom’s complaint

plausibly alleges that she was denied a title that confers a professional benefit. Indeed, courts in

this district regularly conclude that personnel actions do not constitute adverse action where the

plaintiff has shown “no effect on [her] grade or salary level, job title, duties, benefits or work

hours.” Runkle v. Gonzales, 391 F. Supp. 2d 210, 225 (D.D.C. 2005) (emphasis added); accord

21

McGrath v. Clinton, 674 F. Supp. 2d 131, 147 (D.D.C. 2009); Harris v. Potter, 310 F. Supp. 2d

18, 21 (D.D.C. 2004); see also Keith v. Duffey, 77 F. Supp. 2d 46, 51 (D.D.C. 1999) (“It would

be inconsistent to hold that Title VII did not provide protection against allegedly negative

changes in plaintiff’s position title and duties when it protects against less concrete actions such

as a low performance rating.”). Accordingly, the Court concludes that Bloom has alleged an

adverse employment action.

Nevertheless, Bloom’s complaint fails to state a claim of disparate treatment. Although

Bloom has alleged an adverse action, she presents no facts that would allow the Court to

reasonably infer the presence of the other “essential element” of a disparate treatment claim: that

the adverse action was taken “because of the plaintiff’s . . . sex.” Baloch, 550 F.3d at 1196. The

paragraphs of Bloom’s complaint describing her job title dispute state that none of Bloom’s male

counterparts held the “facilitator” title that she was allegedly forced to keep. Compl. ¶¶ 125–

126. But that assertion alone is insufficient to “nudge[] [Bloom’s] claims across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570. There is no suggestion that any of

Bloom’s male colleagues were ever granted a title change pursuant to a Permanent Change of

Station (or for any other reason). Nor are there any allegations suggesting that Bloom was

denied a title change because of her gender. Although a complaint need not contain detailed

factual allegations, it must recite facts sufficient to at least “raise a right to relief above the

speculative level . . . on the assumption that all the allegations in the complaint are true.”

Twombly, 550 U.S. at 555. As to this claim, Bloom’s complaint fails to do so. See Taylor v.

FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997) (“Dismissal under Rule 12[(c)] is proper when, taking

the material allegations of the complaint as admitted, and construing them in plaintiffs’ favor, the

22

court finds that the plaintiffs have failed to allege all the material elements of their cause of

action.” (internal citations omitted)).

D. Bloom’s Retaliation Claim (Count II) Is Dismissed

Defendants next argue that Bloom’s complaint fails to state a claim of retaliation under

Title VII because the activity that allegedly spurred retaliation against Bloom was not “protected

activity” within the meaning of the statute. Defs.’ Mem. at 12. Title VII prohibits employer

reprisals in response to two types of protected activity: opposition activity, i.e., opposing “any

practice made an unlawful employment practice by” Title VII; and participation activity, i.e.,

making a charge, testifying, assisting, or participating in any manner in an investigation,

proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a); see Crawford v. Metro. Gov’t

of Nashville and Davidson Cnty., 129 S. Ct. 846, 850 (2009). To state a Title VII retaliation

claim, a plaintiff must allege materially adverse action in response to one of these types of

protected activity. See Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002).

Bloom’s complaint alleges that she has experienced retaliation “since lodging her first

complaint between January 21–24, 2003.” Compl. ¶ 91. That first complaint was prompted by

Trombecky’s behavior at a conference, where she “subjected Ms. Bloom to harassment.”

Compl. ¶¶ 37–38. Even when taken as true and construed in her favor, these bare allegations are

insufficient to establish that Bloom complained of conduct that is unlawful under Title VII. A

complaint that “alleges harassment generally and generically . . . [and does] not refer to

harassment . . . based on . . . [a] protected category” is not protected oppositional activity under

Title VII. Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 92 (D.D.C. 2006) (first

omission and first alteration in original) (internal quotations marks omitted); cf. Middlebrooks v.

23

Godwin Corp., 722 F. Supp. 2d 82, 89–90 (D.D.C. 2010) (dismissing a § 1981 retaliation claim

because the plaintiff, who described reporting unsafe or unlawful behavior but not race

discrimination, had not engaged in protected activity). Bloom’s complaint neither alleges that

Trombecky’s harassment was based on a protected characteristic nor that Bloom reported it that

way. See Compl. ¶¶ 37–38. There is thus no basis for the Court to conclude that Bloom’s

complaint constituted protected activity. Accordingly, Bloom has failed to state a claim of

retaliation under Title VII.

E. Bloom’s Hostile Work Environment Claim (Count I) is Dismissed

Finally, defendants seek the dismissal of Bloom’s hostile work environment claim. A

hostile work environment exists “[w]hen the workplace is permeated with ‘discriminatory

intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working environment.’” Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993)) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57,

65, 67 (1986)) (internal quotation marks and citation omitted). To determine if that is the case,

courts consider all relevant circumstances, “including ‘the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work performance.’”

Curry v. District of Columbia, 195 F.3d 654, 662 n.16 (D.C. Cir. 1999) (quoting Harris, 510

U.S. at 23).

Here, Bloom’s complaint describes a welter of incidents that, she alleges, constituted

“ongoing and continual harassment in violation Title VII.” Compl. ¶ 88. There is, however, one

glaring omission: allegations connecting any of the alleged incidents to Bloom’s gender or to any

24

protected activity. A hostile work environment is not a stand-alone cause of action under Title

VII; a plaintiff must either make out “some linkage between the hostile behavior and the

plaintiff’s membership in a protected class,” Na’im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C.

2009); see also Bryant v. Brownlee, 265 F. Supp. 2d 52, 63 (D.D.C. 2003), or establish a

connection between the hostile environment and a protected activity. See Hussain v. Nicholson,

435 F.3d 359, 366 (D.C. Cir. 2006) (“In this circuit, a hostile work environment claim can

amount to retaliation under Title VII.”). Bloom fails to do either.

The only allegations in the complaint that arguably link any specific conduct to Bloom’s

gender are those describing the harassment she experienced at the two holiday parties in 2002.

Bloom asserts that Trombecky’s husband engaged in inappropriate and sexual verbal and

physical contact with Bloom. See Compl. ¶¶ 27, 32–33. But these incidents did not occur at

work and did not involve a coworker. Bloom has thus failed to state a plausible claim that she

experienced gender-based harassment sufficient “to alter the conditions of [her] employment and

create an abusive working environment.” Harris, 510 U.S. at 21 (emphasis added).

Similarly, Bloom fails to connect any of the incidents she describes to any protected

activity so as to state a retaliatory hostile environment claim. Not only does Bloom fail to aver a

direct causal connection between the two, but she also presents no allegations plausibly

suggesting that the harassment of which she complains either commenced, see Nichols v.

Truscott, 424 F. Supp. 2d 124, 141 (D.D.C. 2006), or worsened, see Powell v. Lockhart, 629 F.

Supp. 2d 23, 49 (D.D.C. 2009), after she engaged in any protected activity. Simply put, Bloom

has failed to present any allegations that would allow the Court “to draw the reasonable

inference” that she experienced a hostile environment because she engaged in activity protected

25

by Title VII. See Iqbal, 129 S. Ct. at 1949. Accordingly, she has failed to state a claim of

hostile-environment retaliation.

IV. CONCLUSION

For the foregoing reasons, on this 6th of December 2011 the Court grants defendants’

motion to dismiss in part and for summary judgment. An appropriate order accompanies this

memorandum opinion.

Royce C. Lamberth

Chief Judge

United States District Court

for the District of Columbia

26