Petition for Writ of Certiorari — Yvette B. Beaulieu, Petitioner v. Merrick B. Garland, Attorney General, et al.

App. 1

United States Court of Appeals

For The District of Columbia Circuit

September Term, 2021

No. 21-5183

1:15-cv-00896-TJK

Filed On: February 15, 2022

Yvette B. Beaulieu,

Appellant

v.

Merrick B. Garland, et al.,

Appellees

BEFORE: Henderson, Tatel, and Pillard, Circuit

Judges

ORDER

Upon consideration of the motion to appoint coun­

sel; the motion for summary affirmance, the opposition

thereto, and the reply; and the court’s order to show

cause filed on November 18, 2021, and the response

thereto, it is

ORDERED that the order to show cause be dis­

charged. It is

FURTHER ORDERED that the motion for appoint­

ment of counsel be denied. In civil cases, appellants are

not entitled to appointment of counsel when they have

not demonstrated sufficient likelihood of success on the

App. 2

merits. In addition, to the extent appellant requests

that this court obtain copies of certain documents,

those documents filed in the district court are already

part of the record on appeal. See Fed. R. App. P. 10(a).

It is

FURTHER ORDERED that the motion for sum­

mary affirmance be granted. The merits of the parties’

positions are so clear as to warrant summary action.

See Taxpayers Watchdog. Inc, v. Stanley. 819 F.2d 294,

297 (D.C. Cir. 1987) (per curiam). On appeal, appellant

presses no challenge to the district court’s order grant­

ing in part the government’s motion to dismiss, and she

has therefore forfeited any such challenge. See United

States ex rel. Totten v. Bombardier Corp.. 380 F.3d 488,

497 (D.C. Cir. 2004). The district court correctly granted

summary judgment to the government on appellant’s

retaliation claim. The government asserted a legiti­

mate, non-retaliatory reason for appellant’s termina­

tion: years of documented job performance problems.

Appellant did not offer sufficient evidence for a reason­

able jury to conclude that this reason was pretextual.

See Hairston v. Vance-Cooks. 773 F.3d 266, 272 (D.C.

Cir. 2014) (“Showing pretext . . . requires more than

simply criticizing the employer’s decisionmaking pro­

cess.”). To the extent appellant challenges the district

court’s denial of her request to reopen discovery, she

has neither obtained a transcript of the court’s oral rul­

ing nor provided a reason for failing to seek documents

during the discovery period. See T.V.T. Corp. v. Basiliko.

257 F.2d 185,187 (D.C. Cir. 1958) (“It is the duty of the

appellants to designate and file a record sufficient to

App. 3

enable [the court] to pass on the errors of law they

claim were committed below.”). Nor has appellant

shown that the discovery she seeks - unredacted cop­

ies of classified documents that she prepared on the job

- is relevant to the summary judgment determination.

Pursuant to D.O. Circuit Rule 36, this disposition

will not be published. The Clerk is directed to withhold

issuance of the mandate herein until seven days after

resolution of any timely petition for rehearing or peti­

tion for rehearing en banc. See Fed. R. App. P. 41(b);

D.C. Cir. Rule 41.

Per Curiam

App. 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

YVETTE B. BEAULIEU,

Plaintiff,

v.

MERRICK B. GARLAND,

Civil Action No.

15-896 (TJK)

Defendant.

ORDER

(Filed Aug. 16, 2021)

For the reasons set forth in the Court’s accompa­

nying Memorandum Opinion, it is hereby ORDERED

that Defendant’s Motion for Summary Judgment, ECF

No. 51, is GRANTED, and Plaintiff’s Cross-Motion for

Summary Judgment, ECF No. 53, is DENIED. Judg­

ment is hereby ENTERED for Defendant on Plaintiffs

claim of retaliation. This is a final, appealable Order.

The Clerk of the Court is directed to close the case.

SO ORDERED.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: August 16, 2021

App. 5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

YVETTE B. BEAULIEU,

Plaintiff,

v.

MERRICK B. GARLAND,

Civil Action No.

15-896 (TJK)

Defendant.

MEMORANDUM OPINION

(Filed Aug. 16, 2021)

Plaintiff Yvette B. Beaulieu is a former Federal

Bureau of Investigation (“FBI”) employee who sued

over 60 government officials for various forms of em­

ployment discrimination. The Court dismissed all but

one claim against the sole remaining defendant—the

Attorney General, as head of the Department of Jus­

tice—for retaliation under Title VII. Beaulieu’s theory

is that the FBI fired her in November 2010 because she

had filed an administrative complaint alleging dis­

crimination in March of that year. The parties have

cross-moved for summary judgment on this remaining

count. ECF Nos. 51, 53. For the reasons explained be­

low, the Court will grant Defendant’s motion and deny

Beaulieu’s.

App. 6

I.

Legal Standard

Under Federal Rule of Civil Procedure 56, a court

must grant summary judgment “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). “Summary judgment is ap­

propriately granted when, viewing the evidence in the

light most favorable to the non-movants and drawing

all reasonable inferences accordingly, no reasonable

jury could reach a verdict in their favor.” Lopez v. Courtcil on Am.-lslamic Relations Action Network, Inc., 826

F.3d 492, 496 (D.C. Cir. 2016). To survive summary

judgment, a plaintiff must “go beyond the pleadings

and by her own affidavits, or by the depositions, an­

swers to interrogatories, and admissions on file, desig­

nate specific facts showing that there is a genuine

issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986) (internal quotation omitted). Courts “are

not to make credibility determinations or weigh the ev­

idence.” Lopez, 826 F.3d at 496 (quoting Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)). But the

“mere existence of some alleged factual dispute be­

tween the parties will not defeat an otherwise properly

supported motion for summary judgment; the require­

ment is that there be no genuine issue of material fact.”

Id. (quoting Anderson v. Liberty Lobby, Inc., All U.S.

242, 247-48 (1986)). If the evidence “is merely colora­

ble, or is not significantly probative, summary judg­

ment may be granted.” Anderson, All U.S. at 249-50

(citations omitted).

App. 7

“The movant bears the initial burden of demon­

strating that there is no genuine issue of material

fact "Montgomery u. Risen, 875 F.3d 709, 713 (D.C. Cir.

2017). “In response, the nonmovant must identify spe­

cific facts in the record to demonstrate the existence of

a genuine issue.” Id. And for claims where the non-movant bears the burden of proof at trial, as here, she

must make an evidentiary showing “sufficient to estab­

lish the existence of [each] essential element to [her]

case.” Celotex, 477 U. S. at 322. “[A] complete failure of

proof concerning an essential element of the nonmov­

ing party’s case necessarily renders all other facts im­

material” and therefore entitles the moving party to

“judgment as a matter of law.” Id. at 323. “Importantly,

while summary judgment must be approached with

specific caution in discrimination cases, a plaintiff is

not relieved of his obligation to support his allegations

by affidavits or other competent evidence showing that

there is a genuine issue for trial.” Pollard v. Quest Di­

agnostics, 610 F. Supp. 2d 1, 17 (D.D.C. 2009) (cleaned

up).

II.

Analysis

Title VII bans retaliation against an employee be­

cause that employee “ ‘opposed any practice’ made un­

lawful by Title VII or ‘made a charge, testified, assisted,

or participated in’ a Title VII proceeding or investiga­

tion.” Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 56 (2006) (quoting § 2000e-3(a)). To establish a

prima facie case of retaliation under Title VII, the

plaintiff must show that “[he] engaged in a statutorily

App. 8

protected activity, the employer treated the plaintiff

adversely, and a causal connection existed between the

two.” Winston u. Clough, 712 F. Supp. 2d 1, 11 (D.D.C.

2010) (citing Wiley v. Glassman, 511 F.3d 151,155 (D.C.

Cir. 2007)). If a prima facie case is established, the bur­

den shifts to the employer to provide a legitimate, nonretaliatory reason for its action. Holcomb, 433 F.3d at

901. If the employer provides a legitimate, nonretaliatory reason for its conduct, “the burden-shifting frame­

work disappears” and the question becomes “whether

a reasonable jury could infer . . . retaliation from all

the evidence, which includes not only the prima facie

case but also the evidence the plaintiff offers to attack

the employer’s proffered explanation for its action and

other evidence of retaliation.” Jones v. Bernanke, 557

F.3d 670, 677 (D.C. Cir. 2009) (cleaned up).

Defendant has proffered a legitimate, non-retaliatory reason for firing Beaulieu: her extensive and welldocumented history of poor job performance. Between

2006 and 2010, Beaulieu was referred to a counseling

program and put on a 90-day performance improve­

ment plan three times. ECF No. 51-1 (Def.’s SOF)

n 15, 17-18, 32. She failed all three, and in one in­

stance was demoted. Id.

18-19,36. After the third—

during which she “failed to produce two acceptable

work products and to complete a training assign­

ment”—the FBI fired her for unacceptable perfor­

mance in November 2010. Id. ItH 38,49. Over the years,

the FBI documented significant problems with her per­

formance, such as behavior that was “aggressive, dom­

ineering, and dismissive of others,” id. 15, difficulty

App. 9

communicating respectfully, id. M 21-22, assignments

that did not meet minimum standards, id. M 33, 38,

and a pattern of “poor writing skills, an inability to fol­

low supervisory direction, and improper use of classifi­

cation designations,” id. 46.

On the record here, no reasonable jury could find

that Beaulieu was the victim of retaliation. She has

pointed to no evidence that Defendant’s reason for fir­

ing her was pretextual, or that her termination was

otherwise retaliatory. Beaulieu does not dispute that

the FBI found her performance unacceptable in the

ways that it documented over the years. Rather, she of­

fers only her own opinion—with no citations to the rec­

ord—that her work was in fact satisfactory. See, e.g.,

ECF No. 53 at 14,17-18,20,34. But “a plaintiff cannot

avoid summary judgment by relying solely on her per­

sonal opinion that her job performance was adequate,

particularly when the overwhelming evidence in the

record indicates that the defendant honestly believed

that it was not.” Robinson v. Red Coats, Inc. ,31 F. Supp.

3d 201, 214 (D.D.C. 2014) (citing Vatel v. Alliance of

Auto. Mfrs., 627 F.3d 1245, 1247-48 (D.C. Cir. 2011)).

That is precisely the case here. Moreover, the FBI doc­

umented Beaulieu’s poor performance (and put her on

performance improvement plans) well before she filed

her administrative complaint, Def.’s SOF f 10, and the

person who ultimately approved her termination did

not know about her complaint when he did so, Def.’s

SOF K 48.

App. 10

III. Conclusion

For all the above reasons, the Court will grant De­

fendant’s motion for summary judgment, and deny

Beaulieu’s. A separate order will issue.

/s/ Timothy J. Kelly________

TIMOTHY J. KELLY

United States District Judge

Date: August 16, 2021

App. 11

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

YVETTE B. BEAULIEU,

Plaintiff,

v.

WILLIAM BARR et al.,

Civil Action No.

15-896 (TJK)

Defendants.

MEMORANDUM OPINION AND ORDER

(Filed Oct. 29, 2019)

Yvette Beaulieu, a former employee of the Federal

Bureau of Investigation proceeding pro se, has sued 60

government officials for alleged constitutional viola­

tions, various forms of discrimination, and retaliation

in violation of Title VII and the First Amendment. Her

complaint incorporates over 1,500 pages of exhibits,

including emails, annotated news articles, and employ­

ment records. See ECF Nos. 2 through 2-14. Defend­

ants have moved to dismiss all claims. ECF No. 30. For

the reasons explained below, the Court will grant De­

fendants’ motion in part and deny it in part. Beaulieu’s

Title VII retaliation claim will proceed, her remaining

claims will be dismissed, and all Defendants will be

dismissed except for Attorney General William Barr.1

1 Defendant William Barr, who assumed office as Attorney

General in February 2019, is automatically substituted for Eric

Holder under Federal Rule of Civil Procedure 25(d).

App. 12

I.

Legal Standard

“To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Ad. Corp. v. Twombly, 550 U.S. 544,570 (2007)). “A Rule

12(b)(6) motion to dismiss tests the legal sufficiency of

a plaintiff’s complaint; it does not require a court to

‘assess the truth of what is asserted or determine

whether a plaintiff has any evidence to back up what

is in the complaint.’” Herron v. Fannie Mae, 861 F.3d

160, 173 (D.C. Cir. 2017) (quoting Browning v. Clinton,

292 F.3d 235, 242 (D.C. Cir. 2002)). The plaintiff is en­

titled to the benefit of all reasonable inferences from

the facts alleged, Hettinga v. United States, 677 F.3d

471, 476 (D.C. Cir. 2012), but “[t]hreadbare recitals of

the elements of a cause of action, supported by mere

conclusory statements ... do not suffice.” Iqbal, 556

U.S. at 678.2

While a pro se complaint “must be construed lib­

erally, the complaint must still present a claim on

which the Court can grant relief” Budik v. DartmouthHitchcock Med. Ctr, 937 F. Supp. 2d 5, 11 (D.D.C.

2 Defendants also seek dismissal under Rule 12(b)(1) for lack

of subject matter jurisdiction. While the Court lacks jurisdiction

over claims that are “patently insubstantial” or “essentially fac­

tious,” Beaulieu’s claims do not meet that standard, which applies

to “bizarre conspiracy theories” or claims of “supernatural inter­

vention.” See Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994) (cit­

ing Neitzke v. Williams, 490 U.S. 319, 327 n. 6 (1989); Hagans v.

Lavine, 415 U.S. 528, 536-38 (1973)). The Court therefore has ju­

risdiction over Beaulieu’s federal claims.

App. 13

2013). “A court considering a pro se plaintiff’s com­

plaint should look to all filings, including filings re­

sponsive to a motion to dismiss, to discern whether the

plaintiff has nudged [her] claim [s] across the line from

conceivable to plausible.” Mehrbach v. Citibank, N.A.,

316 F. Supp. 3d 264, 268 (D.D.C. 2018) (internal quota­

tion marks omitted). Still, “the Court need not assume

the role of the pro se plaintiff’s advocate,” id., and “it is

not the Court’s job to canvass the record for documents

supporting a pro se party’s position.” Sun v. D.C. Gov't,

133 F. Supp. 3d 155,168 n.6 (D.D.C. 2015).

II.

Analysis

Liberally construed, Beaulieu’s complaint contains

ten identifiable “grievances” or claims: (1) a violation

of her due process rights; (2) Title VII discrimination;

(3) Equal Pay Act discrimination; (4) age discrimina­

tion; (5) genetic information discrimination; (6) Title

VII retaliation; (7) First Amendment retaliation; (8) a

violation of the No Fear Act; (9) a violation of her

Sixth Amendment right to counsel; and (10) other mis­

cellaneous claims, including what she calls “Uncontrol­

lable Systemic Factors” and a “perceived conflict” of the

“laws pertinent to Executive Privilege, State Secrets,

and Brady v. Maryland” with the Ninth Amendment.

ECF No. 1 (“Compl.”) at 18-19. As explained below, the

only claim she has plausibly alleged is Title VII retali­

ation.

App. 14

A. Due Process

Beaulieu alleges that “there [was] no due process”

concerning the “discrimination, retribution, harass­

ment, and the resulting termination” that she alleg­

edly experienced. Id. at 4. She then alleges that “it is

unknown whether I was or am under investigation for

criminal or national security related matters (and eas­

ily deniable after the fact).” Id. at 4-5. Beaulieu does

not explain whether her claim is a procedural or sub­

stantive due process claim. To bring a procedural due

process claim, she must allege (1) “deprivation of a pro­

tected liberty or property interest,” (2) “by the govern­

ment,” (3) “without the process that is ‘due’ under the

Fifth Amendment.” NB ex rel. Peacock v. District of Co­

lumbia, 794 F.3d 31, 41 (D.C. Cir. 2015). Alternatively,

to make out a substantive due process claim, she must

allege that “egregious government misconduct” de­

prived her of a constitutionally recognizable liberty or

property interest. George Wash. Univ. v. District of Co­

lumbia,, 318 F.3d 203, 206, 209 (D.C. Cir. 2003).

Beaulieu’s due process claim fails under either

theory. Even assuming she had a property interest in

her job from which she was terminated, Thompson v.

District of Columbia, 530 F.3d 914,918 (D.C. Cir. 2008),

the complaint does not explain any alleged deficiencies

with the extensive process she was apparently af­

forded, see, e.g., ECF No. 2-6, at 66, 76 (“numerous 90day [Performance Improvement Plan] periods”); id. at

71 (“weekly ‘counseling’ sessions”); ECF No. 2-9 at 9294 (“letter ... to advise [Beaulieu] of the proposal to

remove [her] from [her] current position,” giving “right

App. 15

to reply to this proposal” and “right to select an attor­

ney or representative to assist”). Because she does not

sufficiently allege that she was “deprived of a mean­

ingful opportunity to be heard, [she] cannot make out

a viable procedural due process claim.” Kelley v. Dis­

trict of Columbia, 893 F. Supp. 2d 115, 124 (D.D.C.

2012); see McManus v. District of Columbia, 530

F. Supp. 2d 46, 73 (D.D.C. 2007) (dismissing plaintiffs’

due process challenge to their terminations because

they did not “identify the specific process that the

District allegedly failed to afford each of them”).

Moreover, she does not plead any facts suggesting that

the government committed “egregious” misconduct.

And although the complaint also refers to “alternative

competing hypothes[e]s,” Compl. at 4, behind the vari­

ous events alleged, that speculation does nothing to

nudge her due process claim “from conceivable to plau­

sible.” Twombly, 550 U.S. at 570. Her due process claim

must therefore be dismissed.

B. Discrimination

Beaulieu alleges that she suffered discrimination

prohibited under four statutes: the Age Discrimination

in Employment Act (ADEA), the Genetic Information

Nondiscrimination Act (GINA), Title VII, and the

Equal Pay Act. Under the first three, “the two elements

of a discrimination claim are that: (i) the plaintiff suf­

fered an adverse employment action (ii) because of the

plaintiff’s race, color, religion, sex, national origin, age,

or [genetic information].” Baloch v. Kempthorne, 550

F.3d 1191, 1196 (D.C. Cir. 2008); see 29 U.S.C. § 621 et

App. 16

seq. (ADEA); 42 U.S.C. § 2000ff-l(a) (GINA); 42 U.S.C.

§ 2000e- 16(a) (Title VII). The Equal Pay Act also pro­

hibits sex discrimination by requiring certain employ­

ers to pay equal wages for equal work, with certain

exceptions and limitations. 29 U.S.C. § 206(d).

1. ADEA and GINA

Beaulieu does not allege that Defendants acted

against her because of her age or genetic information,

which is fatal to her ADEA or GINA claims. As for the

former, she merely alleges, without further explana­

tion or detail, that recent college graduates with less

work experience received her same salary. See Compl.

at 7. And as to the latter, she does not allege what ge­

netic information purportedly subjected her to discrim­

ination. See id. at 4 (alleging that discrimination may

have “potentially” occurred based on her “DNA”). In

fact, she appears to base her GINA claim on her “eth­

nicity,” “national origin,” or “race,” which is a claim

properly brought under Title VII, as opposed to the

GINA. See ECF No. 2-8 at 31,118-19; Robinson v. Dungarvin Nevada, LLC, No. 2:16-CV-902-JAD-PAL, 2018

WL 547225, at *5 (D. Nev. Jan. 24, 2018) (“Race is pro­

tected under Title VII, not under GINA.”), aff’d, 738 F.

App’x 543 (9th Cir. 2018). For these reasons, her claims

under the ADEA and the GINA must be dismissed.

2. Equal Pay Act

Beaulieu has also failed to plausibly allege a viola­

tion of the Equal Pay Act. While that statute “prohibit [s]

App. 17

. . . sex discrimination,” 29 U.S.C. § 206(d), the com­

plaint alleges no facts suggesting that the pay inequity

described was based on sex. See Compl. at 7 (alleging

only that “Newer employees” were subject to “Differen­

tial pay levels”). As such, her Equal Pay Act claim must

also be dismissed.

3. Title VII Discrimination

Finally, Beaulieu purports to allege a Title VII dis­

crimination claim. But she does not plausibly assert

that any adverse employment action she suffered was

the result of Defendants’ unlawful discrimination.

a. Adverse Employment Actions

“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 decision causing a sig­

nificant change in benefits.” Douglas v. Donovan, 559

F.3d 549, 552 (D.C. Cir. 2009) (internal quotation

marks omitted). The action must produce “objectively

tangible harm .” Forkkio v. Powell, 306 F.3d 1127, 1131

(D.C. Cir. 2002). “Further, ‘[a] tangible employment ac­

tion in most cases inflicts direct economic harm.

Douglas, 559 F.3d at 552 (quoting Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 762 (1998)).

Beaulieu’s complaint and the voluminous record

she attaches are difficult to follow, but she appears to

allege that Defendants: (1) applied inconsistent and

App. 18

arbitrary performance standards and employment pol­

icies to her, see Compl. at 8—11; (2) possibly sought to

damage her reputation by releasing “false or mislead­

ing information,” id. at 13-15; (3) used “potentially de­

rogatory credit report information,” id. at 14, against

her in some way; (4) failed to pay her “GEHA medical

claims during employment,” id. at 14; (5) terminated

her, id. at 4; (6) failed to promote her, id. at 7; and

(7) demoted her and decreased her pay, id. at 5.

As for the first three grievances—applying incon­

sistent and arbitrary performance standards and em­

ployment policies to her, releasing false information

to damage her reputation, and using derogatory

credit report information against her—Beaulieu has

not pleaded facts that suggest that these actions con­

stituted a significant change in her employment status

that directly caused her any objectively tangible harm.

And while an adverse employment action may “extend

beyond readily quantifiable losses, not everything that

makes an employee unhappy is an actionable adverse

action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir.

2001); see also Forkkio, 306 F.3d at 1130 (“Purely sub­

jective injuries, such as . . . public humiliation or loss

of reputation” not actionable under Title VII). Accord­

ingly, these grievances are not cognizable as adverse

employment actions under Title VIL

b. Discriminatory Intent

To assert a claim for Title VII discrimination,

Beaulieu must also plead facts that connect an adverse

App. 19

employment action to a discriminatory intent on the

part of Defendants. In other words, she must plead

facts that plausibly suggest that she “was treated . . .

differently than similarly situated employees who

were not of [her] national origin, gender, or religion.”

Massaquoi u. D.C., 81 F. Supp. 3d 44, 49 (D.D.C. 2015);

see also Budik v. Howard Univ. Hosp., 986 F. Supp. 2d

1, 7 (D.D.C. 2013). She does not plausibly allege that

she was treated differently along these lines.

First, regarding the above three grievances that

otherwise fail to constitute adverse employment ac­

tions, she does not allege—in any way—that Defend­

ants acted “because of her national origin or gender.

Baloch, 550 F.3d at 1196. Her allegations that Defend­

ants failed to pay her medical claims and wrongfully

terminated her are similarly deficient. See Compl. at

12; ECF No. 2-1, at 12-13, 63.

Second, regarding Beaulieu’s allegation that De­

fendants failed to promote her, she alleges only that

“[o]ther employees [were] promoted at a faster rate”

than her, Compl. at 7. That allegation alone is insuffi­

cient to plead that Defendants’ failure to promote her

was motivated by unlawful discrimination of some

kind. For example, the complaint makes no mention of

the national origins, genders, or positions of any such

employees who were in fact promoted.

Third, Beaulieu’s allegations that Defendants de­

moted her and reduced her pay present the closest

calls. But ultimately, those allegations are also insuf­

ficient. She alleges that she is “the only Mexican

App. 20

(Hispanic) female over forty assigned to the unit, section,

and possibly the FBI.” ECF No. 2-6 at 82. She further

alleges that, despite providing evidence to supervisors

of her “outstanding” work product, she continued to re­

ceive unfairly critical performance reviews. See Compl.

at 5-6. This, she contends, led to her “demotion and pay

reduction.” Id. at 5; see ECF 2-7 at 116 (notification of

personnel action). The complaint also refers to unspec­

ified “diversity and sexist. . . comments” that her peers

and supervisors made about her that are “touched on

in [her] written statement.” Compl. at 7. However, in

that statement, she merely characterized her supervi­

sors’ comments as describing her work product as “un­

acceptable” and “Rat Poison.” ECF No. 2-6 at 70, 77.

Her statement does not reference any comments by her

peers or supervisors that suggest a discriminatory in­

tent or refer to her national origin or gender. See id. at

71 (“The reasons I filed the initial [Equal Employment

Opportunity] (EEO) complaint directly relate to their

verbal comments questioning my performance.” (em­

phasis added)).

The Court is therefore left with no allegations—

save for the bare assertion that Beaulieu was the only

Hispanic female assigned to her unit—that allow the

Court to infer that Defendants were motivated by dis­

crimination based on Beaulieu’s national origin or gen­

der when demoting her and reducing her pay. She does

not, for example, identify any “comparator” employees

who were treated differently. See Townsend v. United

States, 236 F. Supp. 3d 280,307 (D.D.C. 2017). Nor does

she “identify] specific statements purportedly made”

App. 21

by a supervisor “reflecting an animus against individ­

uals of her protected class. Attakora v. D.C., 943

F. Supp. 2d 152,157 (D.D.C. 2013). “Where a complaint

pleads facts that are merely consistent with a defend­

ant’s liability, it stops short of the line between possi­

bility and plausibility of entitlement to relief.” Iqbal,

556 U.S. at 678 (internal quotation marks omitted).

Beaulieu’s Title VII discrimination claim suffers this

defect, and so it must be dismissed.3

C. Retaliation

Beaulieu brings retaliation claims under both Ti­

tle VII and the First Amendment. See Compl. at 5-6,

16-17. Under either theory, she must allege that “(1)

that [s]he engaged in protected conduct, (2) that the

government ‘took some retaliatory action sufficient to

deter a person of ordinary firmness in plaintiff’s posi­

tion from speaking again;’ and (3) that there exists ‘a

causal link between the exercise of [protected activity]

and the adverse action taken against h[er].’” Doe u.

District of Columbia, 796 F.3d 96,106 (D.C. Cir. 2015)

(quoting Arefv. Holder, 774 F. Supp. 2d 147,169 (D.D.C.

3 By proceeding on a disparate treatment theory of Title VII,

Beaulieu appears to abandon her hostile work environment claim

that she pursued during the EEO process. See ECF No. 2-2 at 76.

Nonetheless, even if the Court construed the complaint as plead­

ing a hostile work environment claim, the claim would fail the

“severe or pervasive” standard for “abusive working environ­

ments.” Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17,21(1993)).

App. 22

2011)); see Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 59 (2006).

Beaulieu’s complaint and accompanying exhibits

are far from a model of clarity about when, how, and

why Defendants retaliated against her. However, at

least one plausible retaliation claim under Title VII is

discemable.4 Beaulieu alleges that Defendants’ actions

against her were motivated by her EEO complaint.

Compl. at 17 (“I believe retaliation and retribution oc­

curred . . . because I [was] in contact with the [Equal

Employment Opportunity Commission].”). And those

actions include her termination. See Compl. at 4. This

satisfies the first two elements of a retaliation claim

because the “filing of an administrative complaint” to

an EEO office is a “protected activitfy],” Forman v.

Small, 271 F.3d 285, 300 (D.C. Cir. 2001), and “firing”

is an adverse employment action, Douglas, 559 F.3d at

557.

4 The remainder of her retaliation allegations appear defi­

cient for a variety of reasons. The complaint characterizes most of

Beaulieu’s poor performance reviews and other negative experi­

ences at the FBI as part of a “consistent pattern of. . . retribu­

tion!] and retaliation.” Compl. at 6. But she has not pleaded facts

that plausibly allege that those grievances were materially ad­

verse actions by which Defendants retaliated against her for

protected activity. She also asserts that Defendants retaliated

against her because she sought legal advice, id. at 15, but she does

not explain how they did so. And insofar as she asserts that De­

fendants retaliated against her by making it hard for her to retain

a lawyer, all she asserts is that it was “extremely complicated to

find adequate counsel because of the barriers, such as finding an

attorney who has appropriate security clearances, or finding an

attorney who does not have potential conflicts of interest.” Id.

App. 23

Only the third requirement, the causal link, re­

mains. Causation “may be inferred—especially at the

pleading stage—when the retaliatory act follows close

on the heels of the protected activity.” Smith v. De Novo

Legal, LLC, 905 F. Supp. 2d 99, 104 (D.D.C. 2012). No

bright-line rule governs temporal proximity between a

protected activity and adverse action. “While the Su­

preme Court has suggested that ‘in some instances a

three-month period . . . may, standing alone, be too

lengthy to raise an inference of causation,’ neither the

Supreme Court nor the D.C. Circuit ‘has established a

bright-line three-month rule.’” BEG Investments, LLC

v. Alberti, 144 F. Supp. 3d 16, 22 (D.D.C. 2015) (quoting

Hamilton v. Geithner, 666 F.3d 1344,1357-58 (D.C. Cir.

2012)). Beaulieu brought her initial EEO complaint of

discrimination in March 2010, ECF No. 2-6 at 46, and

she filed amendments to her complaint with the FBI’s

Office of EEO Affairs from August through November

2010, see ECF No. 2-8 at 35-52. The FBI terminated

her employment on November 15, 2010, just five days

after one of her letters to the EEO Office. See id. at 39,

56. This temporal proximity alone is sufficient to plead

causation. Bryant v. Pepco, 730 F. Supp. 2d 25,31 (D.D.C.

2010). For these reasons, Beaulieu has plausibly al­

leged retaliation under Title VII.

Her First Amendment retaliation claim, by con­

trast, lacks a plausible causal link between her pro­

tected conduct—disclosing “unfavorable work-related

assessments” to supervisors, the FBI Inspector Gen­

eral, and the National Defense Intelligence College—

and her termination, or any other purported adverse

App. 24

action against her. Compl. at 16-17. She pleads no

facts relevant to the timing, content, or other context

of her disclosures for the Court to plausibly infer that

they motivated Defendants to retaliate against her in

some way. Accordingly, this claim must be dismissed.

D. No Fear Act

Beaulieu pleads a violation of the Notification and

Federal Employee Anti-Discrimination and Retalia­

tion (“No Fear”) Act, 5 U.S.C. § 2301 et seq. Compl. at

17. But “[o]f the few courts that have considered claims

made under the No Fear Act, none have found that the

Act provides a private cause of action or creates a sub­

stantive right for which the government must pay

damages.” Williams v. Spencer, 883 F. Supp. 2d 165,

182 (D.D.C. 2012) (quoting Glaude u. United States, 248

F. App’x. 175, 177 (Fed. Cir. 2007) (unpublished)). The

Court agrees. Beaulieu’s No Fear Act “grievance” is not

a cognizable standalone claim. It must be dismissed.

E. Sixth Amendment

Beaulieu alleges that Defendants violated her

Sixth Amendment right to counsel by making it hard

for her to find a lawyer with a security clearance and

without a conflict of interest. See Compl. at 15. But

“there is in a civil case no constitutional right to coun­

sel.” Roller By & Through Roller v. Richardson-Merrell

Inc., 737 F.2d 1038, 1052 (D.C. Cir. 1984), vacated sub

nom. on other grounds by Richardson-Merrell, Inc. v.

App. 25

Roller, 472 U.S. 424 (1985). Therefore, her Sixth Amend­

ment claim must be dismissed.5

F. Miscellaneous Allegations

The complaint concludes with a hodgepodge of

grievances—“[ujncontrollable [s]ystemic . . . issues

related to the work environment, atmospherics, and

performance,” and a “perceived conflict” of the “laws

pertinent to Executive Privilege, State Secrets, and

Brady v. Maryland” with the Ninth Amendment.

Compl. at 18-19. Even affording Beaulieu the liberal

construction due pro se litigants, the Court cannot dis­

cern a plausible claim grounded solely on Beaulieu’s

interpretation of “the spirit and intent of the laws of

the United States.” Id. at 19.

5 Although the complaint does not invoke a due process right

to counsel, some courts have found that the Due Process Clause

provides civil litigants a “qualified right to retain the counsel of

his chtoice],” MK v. Tenet, 99 F. Supp. 2d 12, 26 (D.D.C. 2000).

But that right appears to go “no further than preventing arbitrary

dismissal of a chosen attorney.” Kentucky W. Virginia Gas Co. u.

Pennsylvania Pub. Util. Comm’n, 837 F.2d 600, 618 (3d Cir. 1988)

(internal quotation marks omitted). And Beaulieu failed to plead

such a claim. The complaint does not identify any “chosen attor­

ney” or how Defendants interfered with her right to retain that

attorney. The complaint merely alleges, see supra note 4, that “it

is “extremely complicated to find adequate counsel because of the

barriers, such as finding an attorney who has appropriate secu­

rity clearances, or finding an attorney who does not have potential

conflicts of interest.” Compl. at 15.

App. 26

G. Individual Defendants

For the reasons described above, Beaulieu’s retal­

iation claim under Title VII is the only claim remain­

ing. Under Title VII, “the head of the department,

[executive] agency, or unit,” Attorney General William

Barr, “shall be the defendant.” 42 U.S.C. § 2000e-16(a),

(c); see 5 U.S.C. § 105 (“Executive agency’ means an Ex­

ecutive department, a Government corporation, and an

independent establishment.”); 5 U.S.C. § 101 (Depart­

ment of Justice an Executive department); Mulhall v.

Ashcroft, 287 F.3d 543, 550 (6th Cir. 2002) (“[Plaintiff]

alleges Title VII retaliation by the FBI; the FBI is a

subunit of the Justice Department. Therefore, the

proper defendant is the Attorney General, the head

of the Justice Department.”). All other Defendants

are therefore dismissed. See Lawson v. Sessions, 271

F. Supp. 3d 119, 125 n.l (D.D.C. 2017); Wilson v. Dep’t

ofTransp., 759 F. Supp. 2d 55, 67 (D.D.C. 2011).

III. Conclusion

For all these reasons, Defendants’ motion, ECF

No. 30, is GRANTED IN PART and DENIED IN

PART. Plaintiffs claim for Title VII retaliation will

proceed; the remaining claims are dismissed; and all

Defendants are dismissed except for Attorney General

William Barr.

App. 27

SO ORDERED.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: October 29, 2019

App. 28

United States Court of Appeals

For The District of Columbia Circuit

September Term, 2021

No. 21-5183

1:15-cv-00896-TJK

Filed On: May 19, 2022

Yvette B. Beaulieu,

Appellant

v.

Merrick B. Garland, et al.,

Appellees

BEFORE: Henderson and Pillard, Circuit Judges,

and Tatel, Senior Circuit Judge

ORDER

Upon consideration of the petition for rehearing, it

is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

App. 29

United States Court of Appeals

For The District of Columbia Circuit

September Term, 2021

No. 21-5183

l:15-cv-00896-TJK

Filed On: May 19, 2022

Yvette B. Beaulieu,

Appellant

v.

Merrick B. Garland, et al.,

Appellees

BEFORE: Srinivasan, Chief Judge, and Hender­

son, Rogers, Millett, Pillard, Wilkins,

Katsas, Rao, Walker, and Jackson*,

Circuit Judges, and Tatel, Senior Cir­

cuit Judge

ORDER

Upon consideration of the petition for rehearing

en banc, and the absence of a request by any member

of the court for a vote, it is

* Circuit Judge Jackson did not participate in this matter.

App. 30

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk