Petition for Writ of Certiorari — Jo Spence, Petitioner v. Department of Veterans Affairs, et al.
Supreme Court briefOct 18, 2024
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APPENDIX TABLE OF CONTENTS
Opinions and Orders
Appendix A.
Opinion, U.S. Court of Appeals for the District
of Columbia Circuit (July 23, 2024).................. la
Judgment, U.S. Court of Appeals for the
District of Columbia Circuit (July 23, 2024)... 19a
Appendix B.
Memorandum Opinion, U.S. District Court for
the District of Columbia (August 12, 2022).... 21a
Appendix C.
Decision, U.S. Merit Systems Protection
Board Washington Regional Office
(Initial Decision April 26, 2019;
Final Decision Effective May 31, 2019)..
51a
Relevant Statutory Provisions
and Judicial Rules
Appendix D.
Relevant Statutory Provisions
and Judicial Rules..................
5U.S.C. § 706.......................
5 U.S.C. § 2302.....................
38 U.S.C. § 714.....................
Fed. R. Civ. P. 8.....................
Fed. R. Civ. P. 12...................
Fed. R. Civ. P. 15..... ..............
Fed. R. Civ. P. 56...................
107a
107a
108a
109a
110a
111a
111a
112a
App.la
APPENDIX A
OPINION, U.S. COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
(JULY 23, 2024)
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
JO SPENCE, Appellant,
v.
UNITED STATES DEPARTMENT OF VETERANS
AFFAIRS AND DENIS MCDONOUGH, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF THE
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS,
Appellees.
No. 22-5273
Argued February 6, 2024 — Decided July 23, 2024
Appeal from the United States District Court
for the District of Columbia
(No. l:19-cv-01947)
Before: MILLETT, KATSAS, and RAO,
Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.
App.2a
RAO, Circuit Judge: Does the pleading leniency
we afford pro se litigants apply when the litigant is a
licensed attorney? We conclude it does not. Trained
lawyers are generally not unsophisticated litigants in
need of special protections, and any leniency afforded
is left to the discretion of the district court.
In this case, Jo Spence was fired after more than
a decade working as an attorney at the Department of
Veterans Affairs (“VA”). She alleged the termination
was in retaliation-for-filing internal discrimination
complaints. But Spence failed to plead sufficient facts
in her complaint to state all but one of her claims. Be
cause of her legal training, the district court was not
required to grant Spence the leniency afforded a
typical pro se litigant, nor did the district court abuse
its discretion in declining to do so. Spence’s surviving
claim fails on summary judgment. Accordingly, we
affirm.
I.
Spence worked as a senior attorney at the VA for
eleven years. In 2017, she filed a complaint with the
VA’s Equal Employment Opportunity (“EEO”) Office
alleging discrimination on the basis of race, sex, and
age. She separately filed whistleblower disclosures
with the Office of Accountability and Whistleblower
Protection (“OAWP”), alleging the VA engaged in illegal
preferential hiring of Army attorneys. The VA
terminated Spence in 2018 for “unacceptable per
formance.”
Claiming the action was retaliatory, Spence
challenged her termination before the Merit Systems
Protection Board (“MSPB”), The MSPB affirmed
Spence’s termination and relied on examples of Spence
App.3a
making errors in cases, protesting work assignments,
and refusing to communicate with clients as substantial
evidence she was terminated for poor performance.
Spence then filed a complaint in district court
alleging discrimination and retaliation by the VA. She
first filed a 98-page complaint asserting five counts:
Count I, discrimination and retaliation based on her
EEO complaint; Count II, retaliation based on her
OAWP complaint; Count III, hostile work environ
ment; Count IV, unlawful hiring practices; and Count
V, termination in violation of statutory process. After
the VA moved for summary judgment, Spence moved
to amend her complaint to add Count VI, a challenge
to the MSPB’s decision, attaching a 234-page com
plaint. The district court denied Spence’s motion and
imposed a 50-page limit on any subsequent amended
complaints.
Spence again moved to amend, proposing a 148page complaint that contained the original 98-page
complaint as well as an additional 50 pages for the
MSPB claim. The district court denied the motion and
clarified that the cap was 50 pages total, not 50 pages
for the additional count. Spence moved to amend a
third time, attaching a 50-page complaint and three
extensive exhibits containing her submissions in the
MSPB proceeding. The district court granted the
motion to amend.
In response, the VA moved to dismiss the
amended complaint for repeated violations of the
court’s filing requirements. It argued Spence’s exhibits
were merely another attempt to skirt the page limit.
For example, Exhibit A of the amended complaint was
a 57-page statement of facts that Spence incorporated
by reference, making her 50-page complaint really
App.4a
107 pages. The VA also argued Spence failed to
satisfy Federal Rule of Civil Procedure 8 because her
MSPB claim was “rambling” and included “wholly
irrelevant or unnecessary’ material. See FED. R. CIV.
P. 8(a)(2) (requiring a complaint to include “a short
and plain statement of the claim showing that the
pleader is entitled to relief’).
The district court reversed course, dismissing
Spence’s amended complaint because it incorporated
the statement of facts and so-violated the page limit.
The court explained it was “troubled by [Spence’s]
flagrant disregard for the limits the Court has imposed”
but dismissed the complaint without prejudice, giving
Spence one last chance to meet the length requirement.
Finally, on her fourth attempt, Spence filed an
amended complaint that complied with the court’s
page limit. The VA again moved to dismiss—for fail
ure to state a claim and for violating Rule 8—and,
alternatively, for summary judgment. Spence filed a
memorandum in opposition to the motion that alleged
additional facts supporting her claims. The district
court construed the allegations in Spence’s complaint
liberally because she was proceeding pro se, but it
declined to consider the additional allegations in her
opposition memorandum because Spence was an attor
ney and so was a “poor candidate for [the] special
treatment” afforded pro se plaintiffs. The district court
dismissed Counts I-IV and VI for failure to state a
claim and granted summary judgment on Count V.
The district court also dismissed Spence’s claims with
prejudice because Spence had disregarded the court’s
repeated warnings about pleading requirements and
was imposing on the “finite resources” of the VA and
the courts. Spence timely appealed.
App.5a
II.
We begin with the threshold issue of whether the
district court was required to consider the facts
Spence alleged in her opposition memorandum. The
district court limited its analysis to the factual allega
tions in Spence’s amended complaint. Spence
contends the district court erred by failing to consider
her other filings because, under our precedent, courts
must “consider a pro se litigant’s complaint in light of
all filings.” Appellant Br. 10 (quoting Brown u. Whole
Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir.
2015) (per curiam) (cleaned up)).
In considering whether leniency is required for
pro se attorneys, we briefly note the evolution of our
pleading standards. Pleadings at common law required
“technical exactness in stating a claim for relief or a
defense,” and courts construed all allegations against
the pleader. 5 CHARLES ALAN WRIGHT, ARTHUR
R. MILLER & A. BENJAMIN SPENCER, FEDERAL
PRACTICE AND PROCEDURE § 1286 (4th ed. 2021).
With the promulgation of the Federal Rules of Civil
Procedure, our system moved away from that harsh
standard. Today, plaintiffs must put forth only “a
short and plain statement of the claim” and “a demand
for the relief sought,” and courts must construe plead
ings “so as to do justice.” FED. R. CIV. P. 8(a), (e);
accord WRIGHT, MILLER & SPENCER, supra,
§ 1286 (explaining district courts must “make a deter
mined effort to understand what the pleader is
attempting to set forth and to construe the pleading
in his or her favor, whenever the interest of justice so
requires”).
App.6a
Courts have extended this liberal pleading stan
dard even further for plaintiffs proceeding pro se.
Beginning in the 1970s, the Supreme Court held that
a pro se plaintiffs complaint must be held “to less
stringent standards than formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972)
(per curiam); accord Estelle v. Gamble, 429 U.S. 97,
106 (1976). Thus, when weighing whether a pro se
plaintiff has stated a claim, courts must treat “technical
deficiencies in the complaint. . . leniently” and
“scrutinize!]’* the “entire pleading... to determine if any
legally cognizable claim can be found.” WRIGHT,
MILLER & SPENCER, supra, § 1286. This court has
explained the liberal standard extends to “consider [ing]
supplemental material filed by a pro se litigant in order
to clarify the precise claims being urged”—including
facts set forth in a plaintiffs opposition to a motion to
dismiss. Greenhill v. Spellings, 482 F.3d 569, 572
(D.C. Cir. 2007); see also Brown, 789 F.3d at 152.
We have never decided whether this liberal
pleading standard applies when a pro se litigant is a
licensed lawyer. See Klayman u. Zuckerberg, 753 F.3d
1354, 1357 (D.C. Cir. 2014) (declining to answer
whether the liberal pleading standard applies to pro
se lawyers). But we have recognized in similar circum
stances that the typical leniency afforded pro se
litigants does not necessarily follow for pro se lawyers.
In Mann v. Castiel, for example, we cited approvingly
a district court’s finding that “the additional latitude
[the court] typically affords pro se litigants to correct
defects in service of process” is “unwarranted” when
the litigants are not “typical, unsophisticated pro se
litigants,” but instead are people with “extensive
litigation experience ... [Or] formal legal training.” 681
App.7a
F.3d 368, 377 (D.C. Cir. 2012) (cleaned up); see also
Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 168
(D.C. Cir. 1990) (explaining, in the context of a failure
to enter an appearance, that “a law-trained individual,
unlike the unsophisticated pro se litigant, can be pre
sumed to have some acquaintance with the rules of
the judicial process and the consequences risked by
their infringement”).
We now hold that the liberal pleading standard
for pro se litigants does not invariably apply when the
litigant is a licensed attorney. In reaching this conclu
sion, we join the unanimous consensus of the other
circuits that have addressed this question. 1 As the
Supreme Court has recognized, pro se pleadings are
different from “formal pleadings drafted by lawyers.”
Haines, 404 U.S. at 520 (emphasis added). The
1 See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (“[A]
lawyer representing himself ordinarily receives no such
solicitude at all.”); Olivares v. Martin, 555 F.2d 1192, 1194 n.l
(5th Cir. 1977) (“We cannot accord [the plaintiff] the advantage
of the liberal construction of his complaint normally given pro se
litigants because he is a licensed attorney.” (cleaned up)); Andrews
v. Columbia Gas Transmission Corp., 544 F.3d 618, 633 (6th Cir.
2008) (concluding it was not an abuse of discretion to deny pro se
practicing attorneys special consideration); Godlove v.
Bamberger, Foreman, Oswald, & Hahn, 903 F.2d 1145,1148 (7th
Cir. 1990) (“Ordinarily, we treat the efforts of pro se applicants
gently, but a pro se lawyer is entitled to no special
consideration.”); Huffman v. Lindgren, 81 F.4th 1016, 1021 (9th
Cir. 2023) (“There is a good reason that we afford leeway to pro
se parties, who appear without counsel and without the benefit
of sophisticated representation .... That logic does not apply to
practicing attorneys, nor should the grace extend to them.”);
Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001) (‘While we
are generally obliged to construe pro se pleadings liberally, we
decline to do so here because [the plaintiff] is a licensed attorney.” "
(cleaned up)).
App.8a
requirement that courts construe pro se pleadings
liberally does not ordinarily apply to pro se lawyers.
Of course, district courts “must” construe complaints
“so as to do justice.” FED. R. CIV. P. 8(e). In discharging
that duty, courts retain discretion to consider supple
mental materials submitted by a pro se attorney, but
they need not.
The district court did not abuse its discretion when
declining to consider Spence’s additional submissions.
Spence is a licensed attorney, not. the-typical pro se
litigant. She has formal legal training and 36 years of
legal work experience, including serving as a senior
attorney at the VA for over a decade. Her division at
the VA handles contract procurement litigation, and
she was specifically given “litigation-related work
assignments and those that required coordination
with the Litigation Team.” In these circumstances,
the district court was not required to consider the
facts introduced in Spence’s opposition memorandum,
nor was it an abuse of discretion to limit review to
Spence’s complaint.2
2 Spence also argues the district court’s failure to take judicial
notice of her opposition memorandum’s exhibits violates Federal
Rule of Evidence 201. District courts may take judicial notice in
ruling on a motion to dismiss. See Abhe & Svoboda, Inc. v. Chao,
508 F.3d 1052, 1059 (D.C. Cir. 2007). But Rule 201 requires a
district court to take judicial notice only of “a fact that is not sub
ject to reasonable dispute.” Fed. R. Evid. 201(b). The facts Spence
alleged in her opposition memorandum’s exhibits are disputed,
so the district court properly declined'to take judicial notice of
them.
App.9a
III.
We review de novo the district court’s dismissal
of Counts I, II, IV, and VI, and grant of summary judg
ment for Count V.3 We consider only the facts in
Spence’s complaint with respect to the dismissed
counts.
“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) (cleaned
up). “[W]e accept the well-pleaded factual allegations
as true and draw all reasonable inferences from those
allegations in the plaintiffs favor.” Air Excursions LLC
v. Yellen, 66 F.4th 272, 277-78 (D.C. Cir. 2023) (cleaned
up).
A.
In Count I, Spence alleged the VA terminated her
employment in retaliation for her EEO complaint,4 in
violation of Title VII of the Civil Rights Act of 1964
and the Age Discrimination in Employment Act
(“ADEA”). To state a claim for retaliation under Title
VII or the ADEA, a plaintiff must plausibly allege that
(1) she “engaged in statutorily protected activity,” (2)
she “suffered a materially adverse action by [her]
employer,” and (3) the two are causally connected.
Howard R.L. Cook & Tommy Shaw Found, ex rel. Black
3 Spence does not appeal the district court’s dismissal of Count
III, her hostile work environment claim.
4 Spence does not challenge the district court’s dismissal of her
Count I discrimination claim, so she has forfeited any challenge
to it on appeal.
App.lOa
Emps. of the Libr. of Cong., Inc. v. Billington, 737 F.3d
767, 772 (D.C. Cir. 2013) (Title VII); seePaquin v. Fed.
Nat’l Mortg. Ass’n, 119 F.3d 23, 31 (D.C. Cir. 1997)
(ADEA). An act is materially adverse if it objectively
“would have dissuaded a reasonable worker from
making or supporting a charge of discrimination.”
Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir.
2008) (cleaned up). To be actionable under Title VII or
the ADEA, in other words, the act must also have
“produce[d] an injury or harm.” Burlington N. &
Santa Fe Ry. v. White, 548 U.S. 53, 67 (2006) (Title
VII); see also Baloch, 550 F.3d at 1198 n.4 (ADEA).
The district court dismissed Count I for failing to
state a claim. It held that Spence did not plead facts
showing any materially adverse actions except her
termination, and that she did not adequately plead a
causal connection between her termination and her
protected activity, filing the EEO complaint.
Spence alleged the VA retaliated against her by
sending letters of counseling and reprimand, reducing
her performance rating to unsatisfactory, and proposing
to suspend her. But, on this record, none of these alle
gations, taken as true, amounts to a materially
adverse action. Letters of counseling or reprimand are
not adverse actions when they “containQ no abusive
language, but rather job-related constructive
criticism,” nor when they fail to affect the plaintiffs
salary, bonus, or other benefits. See Baloch, 550 F.3d
at 1199; see also Weber u. Battista, 494 F.3d 179, 185
(D.C. Cir. 2007). Similarly, “performance reviews
typically constitute adverse actions only when attached
to financial harms” or other identified adverse employ
ment consequences. Baloch, 550 F.3d at 1199. Spence
App.lla
did not allege in her complaint that the letters con
tained abusive language or that the letters or change
in performance rating resulted in any financial or
other adverse employment harm. And Spence never
served her proposed suspension, so that is not a
materially adverse action either. See id. Ordinary
employer evaluations and feedback do not constitute
materially adverse actions.
The only adverse action Spence plausibly pleaded
was her termination. But even then, Spence failed to
plead facts showing the causal link between her
termination and her protected activity. Spence asks
us to infer her termination must have been retaliatory
because she was terminated after she submitted her
EEO complaint. But we do not “accept inferences that
are unsupported by the facts set out in the complaint.”
Islamic Am. Relief Agency v. Gonzales, All F.3d 728,
732 (D.C. Cir. 2007). When “mere temporal proximity”
is the only “evidence of causality,” the Court has held
that “the temporal proximity must be very close.”
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (per curiam) (cleaned up). We sometimes accept
an adverse employment action occurring within three
to four months of the protected activity as sufficient to
allow an inference of causation. See id. at 273- 74
(collecting cases). In Spence’s case, however, ten
months had passed between the filing of her EEO
complaint and her supervisor proposing her
termination. Spence maintains that the continuous
chain of allegedly retaliatory actions bridges the gap
between her complaint and termination. But even the
latest action in this purported chain, Spence’s
proposed suspension, is not an adverse action and was
separated from the proposal of her termination by four
App.l2a
months. We are unable to infer the necessary element
of causation from these facts.
Spence failed to plead facts sufficient to state a
claim for retaliation under Title VII or the ADEA, and
so we affirm the dismissal of Count I.
B.
In Count II, Spence alleged the VA unlawfully
retaliated against her for filing complaints about the
VA’s hiring practices. Under the Whistleblower Pro
tection Act, the employee bears the burden to show
her protected disclosures were a “contributing factor
in the personnel action,” which can be accomplished by
showing the adverse action “occurred within a period of
time” that reasonably shows causation. 5 U.S.C.
§ 1221(e)(1). The district court dismissed this claim
for the same reasons as Count I: Spence failed to
allege an adverse action except termination, and she
failed to show a causal link between her termination
and her OAWP complaint.
Based on the facts in her complaint, Spence failed
to plead a link between her disclosures and any
adverse personnel action. She alleged the VA
retaliated against her because she “made whistleblower
disclosures in complaints in 2017 and 2018.” But
Spence did not plead facts that plausibly suggest her
complaints were a contributing factor in her term
ination. We cannot infer from Spence’s allegations the
type of causation required to state a claim under the
Whistleblower Protection Act, and therefore we affirm
the dismissal of Count II.
App.l3a
C.
In Count IV, Spence alleged the VA violated the
Whistleblower Protection Act’s “prohibited personnel
practices.” 5 U.S.C. § 2302. That provision makes it
unlawful to deceive job applicants as to their “right to
compete for employment,” or to afford unlawful “pre
ference or advantage” to applicants. Id. § 2302(b)(4),
(6). The district court dismissed this claim for failing
to plead facts sufficient to infer a prohibited personnel
practice.
In her complaint, Spence set forth only conclusory
statements about the VA’s hiring practices. Her claim,
in full, is that “she was deceived with respect to her
right to compete for employment when Army attor
neys were hired at the GS-15 level to perform the
same work as [Spence] under [an operating
agreement] intended for VA attorneys which resulted
in the attorneys being granted preferences or
advantages not authorized by law, rule or regulation
to improve their prospect of employment.” Spence’s
statement does not include any necessary factual alle
gations. For example, Spence did not plead facts
showing that Army applicants were given favorable
treatment in the application process or that the job
posting deceived her about her ability to compete.
Further, Spence did not allege she applied for and was
denied a job, as required by the Act. See id.
§ 1221(e)(1). Because Spence failed to state a prohibited
personnel practices claim, we affirm the district court’s
dismissal of Count IV.
App.l4a
D.
In Count V, Spence alleged the VA unlawfully
terminated her employment without first receiving
approval from the Office of Special Counsel. The
district court granted the government summary judg
ment on this claim, so we consider whether there is a
genuine dispute of material fact and whether the VA
is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(a). We “draw all reasonable inferences in
favor of the nonmoving party.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The VA Secretary may use an expedited procedure
to discipline employees for misconduct or substandard
performance. See Department of Veterans Affairs
Accountability and Whistleblower Protection Act of
2017, Pub. L. No. 115-41, 131 Stat. 862 (codified in
scattered sections of 38 U.S.C.). For an employee
seeking corrective action from the Office of Special
Counsel, however, the Act requires “the approval of
the Special Counsel” before the employee may be
removed.5 38 U.S.C. § 714(e)(1).
When Spence’s supervisor first proposed her
termination, an attorney in the VA’s Office of General
Counsel asked a senior advisor in the OAWP whether
Spence had a retaliation claim pending with the Office
of Special Counsel. The senior advisor communicated
that the investigation was complete: “Neither [the
Special Counsel] nor [the] Office of Accountability and
5 The Office of Special Counsel investigates and prosecutes
Whistleblower Protection Act cases across the government. It is
“a remedial mechanism independent of the civil service system
to which [employees can] bring their grievances.” Barnhart v.
Devine, 771 F.2d 1515, 1520 n.9 (D.C. Cir. 1985).
App.l5a
Whistleblower Protection will continue to hold the
action proposed under [38 U.S.C. § 714(e)]. The
proposal [to remove Spence] is clear to proceed.”
Spence was removed the next day.
Spence appealed her termination to the MSPB,
claiming among other things that the VA erred by pro
ceeding without receiving the Special Counsel’s
approval directly. The MSPB concluded the VA
adequately followed its procedures for termination.
See id. § 714(d)(2)(A) (requiring an administrative
judge to uphold the VA Secretary’s decision to terminate
for cause if “supported by substantial evidence”). The
district court affirmed the MSPB decision because the
email exchange between the General Counsel’s office
and the OAWP advisor was substantial evidence that
Spence’s termination was processed with the Special
Counsel’s approval and in accordance with the VA’s
procedures.
Spence does not raise any factual dispute about
the email. She argues only that the email must come
from the Office of Special Counsel directly, not the
OAWP, to serve as evidence of the Special Counsel’s
approval. But while the statute requires the Special
Counsel’s approval, it does not impose a requirement
on how that approval is conveyed.
Like the district court, we consider whether the
MSPB’s decision was supported by substantial evidence,
which “requires such evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Spirit Airlines, Inc. v. U.S. Dep’t ofTransp., 997 F.3d
1247, 1255 (D.C. Cir. 2021) (cleaned up). We conclude
that standard is easily met here. The email came from
the OAWP, an office with frequent interactions with
the Office of Special Counsel, and the OAWP explicitly
App.l6a
stated it received approval from the Special Counsel
to move ahead with Spence’s termination. Accordingly,
we affirm the grant of summary judgment on Count V.
E.
Finally, in Count VI, Spence alleged the MSPB
decision was arbitrary and capricious and unsupported
by substantial evidence. The district court dismissed
this claim for violating Rule 8, which requires that a
complaint include “a short and plain statement of the
claim.” FED. R. CIV. P. 8(a)(2). The district court
held Spence’s MSPB claim was “too unwieldy’ and did
not “give fair notice” to the VA because of its length,
redundancy, and disorganization. On appeal, Spence
argues her approach was necessary to establish her
challenge and that she presented the facts in as
orderly a manner as possible.
Enforcement of Rule 8 “is largely a matter for the
trial court’s discretion.” Ciralsky v. CIA, 355 F.3d 661,
669 (D.C. Cir. 2004); accord WRIGHT, MILLER &
SPENCER, supra, § 1217. The district court did not
abuse that discretion here. Count VI totals 41 of the
complaint’s 50 pages but includes little or no explana
tion of how the material is relevant to Spence’s claims.
Because Spence’s complaint was neither short nor
plain, we affirm the dismissal of Count VI.
IV.
Finally, Spence claims the district court abused
its discretion in dismissing her complaint with preju
dice. When determining whether a district court
abused its discretion, “we may not substitute our judg
ment for that of the trial court.” Standing Rock Sioux
Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032,
App.l7a
1053 (D.C. Cir. 2021) (cleaned up). “Abuse of discre
tion is a particularly high bar where the court is
simply exercising its judgment about whether to
relieve a party from an unexcused (i.e., no good cause)
failure to comply with the Rules.” Morrissey v.
Mayorkas, 17 F.4th 1150, 1157 (D.C. Cir. 2021)
(cleaned up).
Although dismissal with prejudice is an extreme
sanction, it is permissible when a plaintiff has violated
court rules or engaged in egregious conduct. See
Cohen v. Bd. of Trs., 819 F.3d 476, 483 (D.C. Cir.
2016). The district court afforded Spence multiple
opportunities to amend her complaint and specified
the deficiency in her pleadings with each dismissal.
After Spence’s fourth complaint failed to comport with
the Federal Rules and the district court’s requirements,
the court warned it would dismiss her claims with pre
judice if she failed to comply on her next attempt. Not
withstanding this notice, Spence again disregarded
the pleading requirements.
In these circumstances, we hold the district court
did not abuse its discretion in denying Spence another
bite at the apple.
•k ic ic
App.l8a
We hold that the requirement to afford a liberal
construction to a pro se plaintiffs pleadings does not
apply to pro se attorneys. Rather, we leave such ques
tions to the sound discretion of the district court. The
district court here neither erred nor abused its discre
tion by considering only the allegations in Spence’s
complaint and disregarding her lengthy additional
filings. For the reasons above, we affirm the district
court’s dismissal of Counts I, II, IV, and VI, and sum
mary judgment for the VA on Count V.
So ordered.
App.l9a
JUDGMENT, U.S. COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
(JULY 23, 2024)
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
JO SPENCE,
Appellant,
v.
UNITED STATES DEPARTMENT OF VETERANS
AFFAIRS AND DENIS MCDONOUGH, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF THE
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS,
Appellees.
No. 22-5273
September Term, 2023
Filed on: July 23, 2024
Appeal from the United States District Court
for the District of Columbia
(No. l:19-cv-01947)
Before: MILLETT, KATSAS, and RAO,
Circuit Judges.
App.20a
JUDGMENT
This cause came to be heard on the record on
appeal from the United States District Court for the
District of Columbia and was argued by counsel. On
consideration thereof, it is
ORDERED and ADJUDGED that the District
Court's dismissal of Counts I, II, IV, and VI, and sum
mary judgment for the VA on Count V be affirmed, in
accordance with the opinion of the court filed herein
this date.
Per Curiam
FOR THE COURT:
Mark J. Langer
Clerk
By: /s/ Daniel J. Reidv
Deputy Clerk
Date: July 23, 2024
Opinion for the court filed by Circuit Judge Rao.
App.21a
APPENDIX B
MEMORANDUM OPINION, U.S. DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA
(AUGUST 12, 2022)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JO SPENCE,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERANS
AFFAIRS, ETAL.,
Defendants.
Civil Action No. 19-1947 (JEB)
Before: James E. BOASBERG,
United States District Judge.
MEMORANDUM OPINION
Plaintiff Jo Spence, a Black woman over the age
of 40, believes that her former employer, the Department
of Veterans Affairs, discriminated against her based
on her race, sex, and age, and then ultimately fired
her in retaliation for whistleblowing activity. She thus
brought this pro se suit under the Whistleblower Pro
tection Act, Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act, the Civil Service
App.22a
Reform Act, and the Department of Veterans Affairs
Whistleblower Protection Act.
Although she is herself a lawyer, she has constantly
violated this Court’s directives on how to frame her
Complaint; in fact, Spence’s operative Second Amended
Complaint represents her fifth attempt to bring these
claims against the VA. On multiple occasions, this
Court has rejected her proposed Complaints for circum
venting the required page limits, but it has each time
given her another chance to amend, rather than dis
missing the case with prejudice for failure to comply
with the Court’s orders. The last time around, Plain
tiff was warned that this would be her final opportu
nity to abide by these restrictions and to cure her
prolixity and confusing allegations. On her most recent
try, she finally filed a Complaint that complies with
the Court’s page limits.
Defendants VA and Secretary Denis McDonough,
whom the Court will jointly refer to as the VA, none
theless now move for dismissal or summary judgment,
contending that her latest effort fails to state a claim
upon which relief can be granted. Because Plaintiffs
allegations remain facially deficient, the Court will grant
the Motion, putting an end to her efforts.
I.
Background
A. Factual Background
The Court, as it must at this stage, draws the
facts from the Second Amended Complaint, presuming
them to be true. See Sparrow v. United Air Lines, Inc.,
216 F.3d 1111, 1113 (D.C. Cir. 2000). As additional
facts relevant to Spence’s specific claims are discussed
App.23a
later in the Opinion, the Court provides here only an
overview of her employment with the VA.
Plaintiff has been an attorney for over 36 years.
See ECF No. 36 (Sec. Am. Compl.), t 4. Although the
Complaint is unclear on the specifics of her tenure as
an attorney at the VA, Spence most recently worked
as a senior attorney for the Office of the General
Counsel (OGC), Procurement Law Group (PLG) between
2007 and 2018. Id., t 7. She identifies herself as a
Black female over the age of 40. Id., t 11.
According to her, trouble began when, in November
2017, she filed a complaint against the agency alleging
discrimination on the basis of her race, sex, and age.
Id., 10-11. Around the same time, on some unspecified
dates in 2017 and 2018, Spence also filed a series of
whistleblower disclosures with the VA OGC, Inspector /
General, and Office of Special Counsel. Id., ]f 10. Her
grievances covered a broad range of topics, including
accusing the agency of creating a hostile work environ
ment in retaliation for her equal-employment-oppor
tunity complaints, id.,
11, 34, inappropriately hiring
additional personnel for the PLG office at a higher
salary level, id., 1 30, and granting unlawful prefer
ence to those applicants for employment. Id., 1 39.
Spence contends that, as a result of these disclo
sures and because of her membership in protected
classes, she became the subject of a campaign of dis
crimination and retaliation. Id., tlf 10-27. She also
developed an acrimonious relationship with her direct
supervisors. During the year prior to her removal, she
sparred with them via email about her performance
on work assignments, e.g., id.,
34, 49-51, 54, 57, 59,
the office’s decision to hire new attorneys, id., 1 67,
and the belated approval of her leave request. Id.,
App.24a
THI 16, 80. Spence was also issued a series of counseling
and admonishment letters, denied a transfer of office,
and suspended for three days in the summer of 2018.
Id., If If 13-27, 31. Shortly thereafter, her supervisors
proposed her removal. Id., 11 7, 26. The VA ultimately
adopted the proposal and fired Spence in October
2018. Id., 1 27.
B. Procedural History
Plaintiff responded by challenging her termination
before the Merit Systems Protection Board, an indepen
dent agency charged with adjudicating conflicts between
federal workers and their employing agencies, which
denied her appeal in a decision that became final on
May 31, 2019. Id., t 8. She then filed this suit, alleging
in a capacious 98-page Complaint that the VA had
unlawfully discriminated against her based on race,
sex, and age in violation of the WPA, Title VII, the
ADEA, the CSRA, and the VA WPA. See ECF No. 1
(Compl.) at 1-3.
Following a mutually agreed-upon stay of pro
ceedings related to the pandemic, the action resumed in
June 2021 when Defendants moved for summary
judgment. See ECF No. 20 (Def. MSJ); see also Minute
Order of Sept. 29, 2020 (lifting stay). Spence then sought
leave to file an Amended Complaint in July 2021 and
proposed a version spanning 234 pages, which added
a sixth count (itself over 139 pages) challenging the
MSPB’s decision upholding her removal. See ECF No. 22
(Proposed Am. Compl. 1). This Court denied Spence’s
motion without prejudice on the ground that the new
Complaint was far too long, and it allowed her to
refile, provided her pleading did not exceed 50 pages.
See Minute Order of July 30, 2021; see also Fed. R.
App.25a
Civ. P. 8(a)(2). On her second go-round in August 2021,
Plaintiff reduced her proposed Amended Complaint
to a mere 146 pages. See ECF No. 23 (Proposed Am.
Compl. 2). This Court, unsurprisingly, handed Spence
a familiar result: her Motion to Amend was denied,
and she was reminded of the 50-page limit. See Minute
Order of Sept. 2, 2021. One month later, Plaintiff
proposed what appeared at first glance to be a 50-page
Amended Complaint, see ECF No. 24 (Proposed Am.
Compl. 3), which this Court initially accepted.
The VA, however, moved to dismiss, noting that
Plaintiff had still violated this Court’s orders. See ECF
No. 30 (Def. MTD Am. Compl. 1) at 4. As it turned out,
although the Complaint itself was 50 pages, it incor
porated by reference a 57-page “Statement of Facts,”
thus rendering her Third Proposed Amended Complaint
107 pages in length. Id. Recognizing this as no more
than a “creative method of circumventing page limits,”
this Court expressed its frustration with “Plaintiffs
flagrant disregard for the limits the Court ha[d] im
posed” and once again sent her back to square one,
dismissing the First Amended Complaint. See ECF
No. 33 (Order Dismissing Am. Compl. 1) at 2. Again
indulging her pro se status, the Court chose to dismiss
the Complaint without prejudice, giving Plaintiff “one
more opportunity” to amend. Id. at 1. In doing so,
however, the Court warned her that it would “behoove
Pier] to be as concise as possible on her fourth attempt”
and cautioned that this opportunity to amend — her
fourth in eight months — would be “her final one.” Id.
at 2.
Two weeks later, Spence at last proposed a 50page Second Amended Complaint, see ECF No. 34
(Proposed Am. Compl. 4), which contained all the claims
App.26a
from her prior pleadings, but removed references to
the 57-page “Statement of Facts.” The Court accepted
this Second Amended Complaint, which is the operative
one here. See Minute Order of Apr. 14,2022. This plead
ing alleges six counts: discrimination on the basis of
race, sex, and age in violation of Title VII, the ADEA,
and the WPA, and retaliation for protected EEO and
whistleblowing activity in violation of the same (Count
I); reprisal for whistleblowing activity in violation of
the WPA (Count II); hostile work environment on the
basis of race, sex, and age in violation of Title VII, the
ADEA, and the WPA (Count III); harmful procedural
error in Spence’s firing in violation of the VA WPA
(Count V); and an appeal of the MSPB decision up
holding her firing as arbitrary and capricious (Count
VI). The VA now moves to dismiss or, in the alternative,
for summary judgment. See ECF No. 37 (Def. MTD).
II. Legal Standard
Defendants first argue that this Court should
dismiss Plaintiffs WPA claims for lack of jurisdiction
under Federal Rule of Civil Procedure 12(b)(1). A
plaintiff bears the burden of proving that the Court
has subject-matter jurisdiction to hear her claims. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231
F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative
obligation to ensure that it is acting within the scope
of its jurisdictional authority.” Grand Lodge of the
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d
9, 13 (D.D.C. 2001). For this reason, ‘“the [pjlaintiffs
factual allegations in the complaint. .. will bear closer
scrutiny in resolving a 12(b)(1) motion’ than in resolving
a 12(b)(6) motion for failure to state a claim.” Id. at 1314 (quoting 5A Charles A. Wright & Arthur R. Miller,
App.27a
Fed. Practice & Procedure § 1350 (2d ed. 1987)). Addi
tionally, unlike with a motion to dismiss under Rule
12(b)(6), the Court “may consider materials outside
the pleadings in deciding whether to grant a motion
to dismiss for lack of jurisdiction.” Jerome Stevens
Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005); see also Herbert v. Nat’l Acad. ofScis., 974 F.2d
192, 197 (D.C. Cir. 1992).
The VA next asserts that it is entitled to summary
judgment on Plaintiffs claim of harmful-procedural
error in violation of the WPA and its counterpart, the
2017 VA WPA. Summary judgment may be granted if
“the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judg
ment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Anderson v. Liberty Lobby, Inc., All U.S. 242, 247-48
(1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006). A fact is “material” if it is capable of affecting
the substantive outcome of the litigation. See Liberty
Lobby, All U.S. at 248; Holcomb, 433 F.3d at 895. A
dispute is “genuine” if the evidence is such that a rea
sonable jury could return a verdict for the nonmoving
party. See Scott v. Harris, 550 U.S. 372, 380 (2007);
Liberty Lobby, All U.S. at 248; Holcomb, 433 F.3d at
895. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion” by
“citing to particular parts of materials in the record”
or “showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence
to support the fact.” Fed. R. Civ. P. 56(c)(1).
When a motion for summary judgment is under
consideration, “[t]he evidence of the nonmovant [s] is
to be believed, and all justifiable inferences are to be
App.28a
drawn in [their] favor.” Liberty Lobby, All U.S. at 255;
see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir.
2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288
(D.C. Cir. 1998). On a motion for summary judgment,
the Court must “eschew making credibility determi
nations or weighing the evidence.” Czekalski v. Peters,
475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must
consist of more than mere unsupported allegations or
denials and must be supported by affidavits, declara
tions, or other competent evidence, setting forth spe
cific facts showing that there is a genuine issue for
trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett,
All U.S. 317, 324 (1986). The nonmovant is required
to provide evidence that would permit a reasonable
jury to find in its favor. Laningham v. Navy, 813 F.2d
1236,1241 (D.C. Cir. 1987). If the nonmovant’s evidence
is “merely colorable” or “not significantly probative,
summary judgment may be granted.” Liberty Lobby,
All U.S. at 249-50 (citation omitted).
Plaintiffs claim of harmful procedural error, which
was decided by the MSPB, must be analyzed under
the standard for Administrative Procedure Act suits.
The APA “sets forth the full extent of judicial authority
to review executive agency action for procedural cor
rectness.” FCC v. Fox Television Stations, Inc., 556
U.S. 502, 513 (2009). It requires courts to “hold unlaw
ful and Set aside agency action, findings, and conclu
sions” that are “arbitrary, capricious, an abuse of dis
cretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A).
For all the remaining claims, the VA asks this
Court to dismiss for failure “to state a claim upon
which relief can be granted” under Federal Rule of
App.29a
Civil Procedure 12(b)(6). In evaluating Defendants’
Motion to Dismiss, the Court must “treat the complaint’s
factual allegations as true ... and must grant plaintiff
‘the benefit of all inferences that can be derived from
the facts alleged.’” Sparrow, 216 F.3d at 1113 (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.
1979)) (citation omitted).
Although “detailed factual allegations” are not
necessary to withstand a Rule 12(b)(6) motion, “a com
plaint 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must put forth “factual content
that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Id. The court need not accept as true “a legal conclu
sion couched as a factual allegation,” nor an inference
unsupported by the facts set forth in the complaint.
Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193
(D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)). For a plaintiff to survive a 12(b)(6)
motion, the facts alleged in the complaint “must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555.
Given Spence’s pro se status, the Court must
construe her Second Amended Complaint especially
liberally. See Turner v. Corr. Corp. of Am., 56 F. Supp.
3d 32, 35 (D.D.C. 2014). In evaluating the sufficiency
of a plaintiffs complaint under Rule 12(b)(6), a court
may ordinarily consider only “the facts alleged in the
complaint, any documents either attached to or incor
porated in the complaint and matters of which [the
App.30a
court] may take judicial notice.” Equal Emp’t Oppor
tunity Comm’n v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624 (D.C. Cir. 1997). For pro se plain
tiffs, a court may also consider the facts set forth in
the plaintiffs opposition to the motion to dismiss. See
Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146,
152 (D.C. Cir. 2015).
It is important to note, however, that Spence is
no ordinary pro se plaintiff. Rather, she has been an
attorney for 36 years and-has spent over a decade
working as a senior attorney at the VA. See SAC, Iff 4,
7. Given this status, the Court does not believe that
Brown’s ruling should apply to her. Cf. Dozier v. Ford
Motor Co., 702 F.2d 1189, 1194-95 (D.C. Cir. 1983)
(noting that although “a pro se litigant must of course
be given fair and equal treatment,” an attorney who
“has practiced law for some 31 years” is a “particularly
poor candidate for special treatment” as a pro se liti
gant). In addition, despite her experience and repeated
admonishments from this Court, Spence showed a
“flagrant disregard for the limits the Court. . . imposed”
on her pleadings. See Order Dismissing 1st Am.
Compl. at 2. Now, in her latest filings, she once again
attempts to incorporate 129 pages of external docu
ments to supply the factual information necessary to
support her allegations, bringing her Opposition and
its attachments up to a total of 173 pages in length,
which would violate the 45-page limit on briefs. See
ECF No. 39 (PI. Opp.) & Exhs. A-H; LCvR 7(e).
Spence’s repeated attempts to bypass this Court’s
orders and her inability to plead the necessary facts to
support her allegations within the four corners of her
Second Amended Complaint — even on her fifth
attempt — do not merit this Court’s further leniency.
App.31a
As a result, the Court will construe the allegations in
her Second Amended Complaint liberally, as it must,
but it will limit itself to only those allegations, refusing
to consider the external materials she once again
attempts to incorporate in her Opposition.
III. Analysis
As a threshold matter, the VA contends that
Spence’s hostile-work-environment and unlawfulemployment-preference claims under the WPA (Counts
III and IV) should be dismissed for her failure to
exhaust administrative remedies. It next asserts that,
regardless of jurisdiction, all counts should be dismissed
on the merits for failure to state a claim. The Court
initially addresses the jurisdictional question; finding
against Defendants, it proceeds to analyze the merits
of each of the six counts separately.
A. Exhaustion of WPA Claims
“The WPA provides most federal agency employees
with protection against agency reprisals for whistle
blowing activity, such as disclosing illegal conduct.”
Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002)
(citing 5 U.S.C. § 2302(b)(8)). For an employee to avail
herself of those protections, however, she must first
exhaust certain administrative procedures. Specific
ally, an employee who alleges that she was the victim
of a “prohibited personnel action,” including reprisal
for whistleblowing, “must first bring her claim” to the
Office of Special Counsel. Id. (citing 5 U.S.C. § 1214);
see also Weber v. United States, 209 F.3d 756, 758 (D.C.
Cir. 2000) (describing whistleblower-protection proce
dures under Title 5). The OSC will investigate the
App.32a
complaint, and if it finds any such prohibited person
nel action, will report its findings to the MSPB. Stella,
284 F.3d at 141. If the OSC finds no agency wrongdoing,
then the employee herself may bring an action before
the MSPB. Id. (citing 5 U.S.C. §§ 1214(a)(3); 1221; 2302
(b)(8)). If an employee is dissatisfied with the MSPB’s
subsequent ruling, only then may she seek judicial
review. Id. § 7703(a)(1), (b)(1). These steps constitute
the required exhaustion of administrative remedies,
which “is a jurisdictional prerequisite to suit.” Weaver
v. U.S. Info. Agency, 87 F.3d 1429, 1433 (D C. Cir.
1996); see also Gardner v. United States, 213 F.3d 735,
737 n.l (D.C. Cir. 2000) (“The district court lacked
subject matter jurisdiction of [the] claims . . . because
[the plaintiff] failed to allege that he had exhausted
his administrative remedies, as required under the
[CSRA].”).
The VA is correct that Spence failed to plead facts
in her Second Amended Complaint establishing that
she did raise these claims during her MSPB proceedings.
In her Opposition to Defendants’ Motion, however,
Plaintiff points to documents in the administrative
record that prove that she raised these claims in her
administrative appeal. See PI. Opp. at 7-9 & Exh. A
(MSPB Appellant Statement of Affirm. Defs.) at 1-2,
12. Because the Court has an independent obligation
to assure itself of its own jurisdiction, it “may consider
materials outside the pleadings in deciding whether
to grant a motion to dismiss” under Rule 12(b)(1).
Jerome Stevens Pharm., Inc., 402 F.3d at 1253. Having
done so, the Court finds that she properly raised and
exhausted these claims.
App.33a
B. Count I: Discrimination and Retaliation
Based on Race, Sex, and Age
In her first count, Spence mashes together multiple
claims of discrimination based on race, sex, and age in
violation of Title VII, the ADEA, and the WPA, as well
as retaliation for protected EEO and whistleblowing
activity in violation of the same statutes. The VA
argues that this entire cause of action must be dismis
sed because she has pled no facts plausibly suggesting
that she was mistreated because of her membership
in a protected class or for making protected disclo
sures. See Def. MTD at 5-12. Because Spence offers no
more than conclusory allegations to support her
claims, the Court agrees.
Title VII makes it unlawful for an employer to
“discriminate against any individual with respect to
Pier] compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). Similarly, the section of the ADEA governing
federal agencies states that “[a] 11 personnel actions
affecting employees or applicants for employment who
are at least 40 years of age . . . shall be made free from
any discrimination based on age.” 29 U.S.C. § 633a(a).
The WPA, in turn, simply incorporates Title VII and
the ADEA’s prohibitions on discrimination based oh a
protected trait. See 5 U.S.C. § 2302(b)(1)(A), (B). All
three statutes also forbid retaliation against employees
who engage in protected activity, such as filing an
EEO complaint or making a protected disclosure. See
Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir.
2008); Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362,
1367 (Fed. Cir. 2020).
App.34a
Spence contends that the reason for her perceived
mistreatment and ultimate termination was that she
is a Black woman over the age of 40. See SAC, If 11.
Although her Second Amended Complaint does not
clearly specify which of the employment actions she
identifies were discriminatory and which were retal
iatory, the Court follows the same three-part burdenshifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-05 (1973), in weighing
both discrimination and retaliation claims under
either Title VII or the ADEA. See Stoe v. Barr, 960
F.3d 627, 639 (D.C. Cir. 2020) (applying framework to
Title VII claims); Ford v. Mabus, 629 F.3d 198, 201
(D.C. Cir. 2010) (applying framework to ADEA claims).
Under that familiar framework, “an employee must
first make out a prima facie case of retaliation or dis
crimination.” Morris v. McCarthy, 825 F.3d 658, 668
(D.C. Cir. 2016). To clear that hurdle, she need only show
that “(1) she is a member of a protected class” or, in
the retaliation context, that she “engaged in statutorily
protected activity”; “(2) she suffered an adverse em
ployment action; and (3) the unfavorable action gives
rise to an inference of discrimination” or, in the case
of retaliation, “that a causal link connects the [pro
tected activity and the adverse action].” Czekalski, 475
F.3d at 364 (internal quotation marks and citation
omitted); Jones v. Bernanke, 557 F.3d 670, 677 (D.C.
Cir. 2009). At the pleading stage, a plaintiff must
plead “which retaliatory acts were directed at [her]
and when.” Poole v. U.S. Gov’t Publ’g Off., 219 F. Supp.
3d 80, 84 (D.D.C. 2016).
The Court can dispense with Spence’s discrimina
tion claims quickly, as her allegations have an obvious
shortcoming: she provides no facts that could possibly
App.35a
give rise to an inference that any actions that the VA
took against her were due to intentional race, sex, or
age discrimination. In her entire 50-page Complaint,
Plaintiff mentions these characteristics exactly twice
— once on the second page where she establishes
herself as a “Black . . . female . . . over 40” before pro
ceeding to provide a catalog of alleged wrongs she
suffered, and once on page five when she again states
that she is “a Black female over 40.” SAC, Iff 11, 34.
Nowhere in the Complaint, however, does Spence allegein more than conclusory terms any facts that support
an inference that the employment actions she expe
rienced had anything to do with her race, sex, or age.
Such omissions, particularly on her fifth attempt, are
fatal to her discrimination claim. See Ass’n of Flight
Attendants v. U.S. Dep’t ofTransp., 564 F.3d 462, 465
(D.C. Cir. 2009) (plaintiffs claim of discrimination
failed because it contained no more than conclusory
allegations of discrimination); McCaskill v. Gallaudet
Univ., 36 F. Supp. 3d 145, 152-53 (D.D.C. 2014).
Moving along, Spence also alleges retaliation
based on protected activity under Title VII and the
ADEA, and separately alleges retaliation under the
WPA for protected disclosures she claims to have
made between 2017 and 2018. The VA contends that
these claims should be dismissed because: (1) many of
the actions that Plaintiff complains about were not
materially adverse; and (2) in any event, she has not
established a causal connection between those actions
and any protected activity. The Court concurs.
‘“Adverse actions’ in the retaliation context” —
referred to most frequently as materially adverse actions
— “encompass a broader sweep of actions than those
in a pure discrimination claim.” Baloch, 550 F.3d at
App.36a
1198 n.4. A retaliatory act is “materially adverse” if,
objectively speaking, it “would have dissuaded a
reasonable worker from making or supporting a charge
of discrimination.” Id. at 1198 & 1199 n.5 (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006)). At the same time, however, Title VII
and the ADEA’s “antiretaliation provision[s] protectQ
an individual not from all retaliation, but from retali
ation that produces an injury or harm.” Burlington,
548 U.S. at 67 (interpreting Title VU’s antiretaliation
language); seeBaloch, 550 F.3d at 1198 & n.4 (applying
Burlington in context of ADEA retaliation). In that
regard, “[a]n employee’s decision to report discrimina
tory behavior cannot immunize [her] from those petty
slights or minor annoyances that often take place at
work and that all employees experience.” Burlington,
548 U.S. at 68.
There is no dispute that Spence engaged in pro
tected activity under Title VII and the ADEA by filing
an EEO complaint with the VA on November 6, 2017.
The problem, however, is that many of the employ
ment actions that followed are not materially adverse
at all. Plaintiff complains, for example, that her
supervisor required that she email her daily to report
when her workday began and refused to approve a
requested change to shift her working hours. See SAC,
IHf 12, 18. An employer’s “[mjonitoring [of] an employ
ee’s . .. time and attendance,” however, “is a basic
employment practice, and as such could only be an
adverse employment action if [plaintiff] previously had
immunity from general employment policies.” Simms
v. Navy Fed. Credit Union, No. 02-900, 2002 WL
32971969, at *5 (E.D.V.A. Aug. 27, 2002). In other
words, closely monitoring an employee’s attendance
App.37a
does not “produceQ an injury or harm,” Burlington,
548 U.S. at 67, as employers may reasonably require
consistent, complete attendance and take reasonable
steps to ensure an employee is not falling short. See
Wade v. District of Columbia, 780 F. Supp. 2d 1, 16
(D.D.C. 2011) (Plaintiffs claim — “that his supervisors
were overly aggressive in tracking his whereabouts to
ensure that he was not avoiding his duties — involves
a common aspect of the working environment, and
[plaintiff] has not explained how this caused him any
harm.”); cf. Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81 (1998) (courts must take care to avoid
“expanding” the antidiscrimination statutes “into a
general civility code”). In addition, requiring an employ
ee to work hours that accommodate her colleagues’
and clients’ work schedules is not unreasonable. See
McNair v. District of Columbia, 359 F. Supp. 3d 1, 10
(D.D.C. 2019) (“Courts in this Circuit consistently
have held that denial of an alternate work schedule,
by itself, is not an adverse action.”) (citing Hunter v.
District of Columbia, 905 F. Supp. 2d 364, 373 (D.D.C.
2012); and Williams v. Donovan, 219 F. Supp. 3d 167,
175-76 (D.D.C. 2016)).
Similarly, the myriad other employment actions
about which Spence complains — i.e., written counseling
letters, letters of admonishment, proposed suspensions,
negative performance reviews, belated approval of her
leave requests, and her exclusion from meetings, none
of which had any binding effect on her salary, bonus,
or other benefits, see SAC,
13-19, 20-25 — do not
qualify as materially adverse. Baloch, 550 F.3d at 1199
(noting that “performance reviews typically constitute
adverse actions only when attached to financial harms”
and holding review did not qualify as adverse action
App.38a
in retaliation context even when accompanied by
other letters of reprimand and counseling); Weber v.
Battista, 494 F.3d 179, 185 (D.C. Cir. 2007) (holding
performance evaluation to be materially adverse where
it resulted in employee’s not receiving a cash award);
Webster v. Spencer, No. 17-1472, 2020 WL 2104231,
at *9 (D.D.C. May 1, 2020) (noting that “initial denial”
of a request for leave that is later granted is “plainly
not an adverse action either for discrimination pur, poses or retaliation purposes”). The only action that is
plainly adverse is her termination.
Even claims regarding her termination flounder
because Spence has not adequately pled a causal con
nection between that action and her EEO complaint.
She was fired nearly a full year after she filed her
EEO complaint. Id., THJ 10, 27. “To establish a causal
connection between the protected activity and the
termination — in the absence of direct evidence — a
plaintiff may show ‘that the employer had knowledge
of the employee’s protected activity, and that the
adverse personnel action took place shortly after that
activity.’” Keys v. Donovan, 37 F. Supp. 3d 368, 372
(D.D;C. 2014) (quoting Mitchell v. Baldrige, 759 F.2d
80, 86 (D.C. Cir. 1985)). The Supreme Court has cau
tioned, however, that “[t]he cases that accept mere
temporal proximity between an employer’s knowledge
of protected activity and an adverse employment
action as sufficient evidence of causality to establish a
prima facie case uniformly hold that the temporal
proximity must be ‘very close.’” Clark Cnty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273 (2001) (quoting O’Neal
v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.
2001)) (emphasis added); see also Singletary v. District
of Columbia, 351 F.3d 519, 525 (D.C. Cir. 2003) (“[T]his
App.39a
circuit has held that a close temporal relationship
may alone establish the required causal connection.”).
“Although ‘neither the Supreme Court nor the
[D.C. Circuit] has established a bright-line three-month
rule,’ this Circuit has generally found that such a gap
between the protected activity and the adverse em
ployment action negates the temporal proximity needed
to prove causation.” Keys, 37 F. Supp. 3d at 373 (quoting
Hamilton v. Geithner, 666 F.3d 1344, 1357-58 (D.C.
Cir. 2012));-see-also Clark-County Sch. Dist., 532 U.S.
at 273-74 (citing with approval cases rejecting proximity
of three and four months as evidence of causation). Be
cause the nearly one-year interval between Spence’s
last allegedly protected activity (her EEO complaint)
and her termination well exceeds that three-to-fourmonth gap that courts in this Circuit have routinely
found “too great to establish an inference of causa
tion,” dismissal is warranted. See Mokhtar v. Kerry,
83 F. Supp. 3d 49, 81 (D.D.C. 2015), affd, No. 15-5137,
2015 WL 9309960 (D.C. Cir. Dec. 4, 2015); see also
Keys, 37 F. Supp. 3d at 373.
Finally, Spence raises a separate WPA retaliation
claim for disclosures she made between 2017 and 2018
to the VA OGC, IG, and OSC. The disclosures covered
a broad range of grievances, including the alleged
hostile work environment that she experienced, her
view that the PLG had inappropriately hired new
attorneys at a higher salary level, and her allegation
that certain applicants for these new positions were
granted unlawful preference in the application process.
See SAC, 1ft 11, 30, 34, 39. This claim meets the same
fate as her previous retaliation ones. To state a WPAreprisal claim, a plaintiff must allege that (1) she
made a “protected disclosure” and (2) “the disclosure
App.40a
was a contributing factor in the agency’s decision to
take or fail to take a personnel action.” Hessami, 979
F.3d at 1367.
Spence neglects, however, to specify the dates on
which she made these alleged whistleblower disclosures,
offering only that they arose “in complaints in 2017
and 2018.” SAC, If 10. Without knowing the precise
dates of her complaints, and because Spence pleads no
other facts that would provide direct evidence of retal
iation, this Court cannot possibly make “an inference
of causation” necessary to sustain her claim. See
Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 69
(D.C. Cir. 2015).
C. Count II: Retaliation for VA Hiring
Complaint
In a stand-alone count, Plaintiff repeats one of
her above WPA claims, citing again certain disclosures
she made to the VA OGC, IG, and OSC between 2017
and 2018 regarding the hiring of additional attorneys
at the GS-15 level. This count also realleges the same
purportedly adverse employment actions as those
she identified in Count I — namely, “counseling,”
“admonishment,” her performance “rating,” and her
“proposed suspension,” SAC, f 31 — which this Court
already explained were not materially adverse at all.
That leaves her termination. Once again, she never
alleges when she made the relevant disclosures and
offers no other facts that would support a plausible
inference that those disclosures had anything to do
with her termination. As a result, Count II must yield.
App.41a
D. Count III: Hostile Work Environment
The Court next takes up Spence’s claim of a
hostile work environment under Title VII, the ADEA,
and the WPA. “The bar for demonstrating a hostile
work environment is a high one: ‘[A] plaintiff must
show that his employer subjected him to 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.’” Achagzai v. Broad. Bd. of Governors,
170 F. Supp. 3d 164, 183 (D.D.C. 2016) (quoting
Baloch, 550 F.3d at 1191, 1201); see also Ayissi-Etoh
v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013). In
evaluating a hostile-environment claim, the Court
“looks to the totality of the circumstances, including
the frequency of the discriminatory conduct, its severity,
its offensiveness, and whether it interferes with an
employee’s work performance.” Baloch, 550 F.3d at
1201 (citing Faragher v. City of Boca Raton, 524 U.S.
775, 787-88 (1998)) (Title VII and ADEA); see also
Sistek v. Dep’t of Veterans Affairs, 955 F.3d 948, 955
(Fed. Cir. 2020) (hostile-work-environment claims are
actionable as significant changes in working conditions
under WPA). By adhering to these standards, the
Court thereby “ensure [s] that [employment-discrimi
nation law] does not become a general civility code”
that involves courts in policing “the ordinary tribu
lations of the workplace.” Faragher, 524 U.S. at 788
(citations and internal quotation marks omitted).
While a plaintiff need not prove a hostile work environ
ment at this stage, she still must allege “extreme”
conduct that satisfies the “demanding” standard for
such a claim. Id.
App.42a
Even as amended multiple times, Spence’s Com
plaint fails to allege any behavior “so objectively
offensive as to alter the conditions of [her] employment.”
Oncale, 523 U.S. at 81 (internal quotation marks
omitted). Rather than pointing to “discriminatory
intimidation, ridicule, and insult,” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993) (citation omitted), she
lists a series of “work-related actions by supervisors,”
which “courts typically do not find ... to be sufficient
for a hostile work environment claim.” Munro v. LaHood,
839 F. Supp. 2d 354, 366 (D.D.C. 2012) (citation
omitted); see also Bell v. Gonzales, 398 F. Supp. 2d 78,
92 (D.D.C. 2005) (“Occasional instances of less favorable
treatment involving ordinary daily workplace decisions
are not sufficient to establish a hostile work environ
ment.”). For example, she alleges that her supervisors
placed unreasonable demands on her to increase work
pressure, reassigned work from other attorneys to her,
generally undermined her decisionmaking, and issued
negative performance evaluations and disciplinary
actions that caused her stress and interfered with her
work. See SAC, If 34.
The VA is correct that these complaints do not, as
a matter of law, rise to the level of conduct that is “suf
ficiently severe or pervasive to alter the conditions of
[her] employment and create an abusive working
environment.” Harris, 510 U.S. at 21; see, e.g., Nurriddin
v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (dismiss
ing hostile-work-environment claim where “disparaging
remarks, criticisms of [plaintiffs] work, and other
negative comments d[id] not sufficiently demonstrate
a significant level of offensiveness”); id. (“Nor can the
removal of important assignments, lowered performance
evaluations, and close scrutiny of assignments by
App.43a
management be characterized as sufficiently intim
idating or offensive in an ordinary workplace context.”)
(citations omitted).
On top of that, Spence manages to provide only a
conclusory allegation that these actions had anything
to do with her membership in a protected class, her
protected EEO complaint, or her other alleged whistle
blowing activity. Rather, she merely tacks onto her
catalog of workplace slights the allegation that these
actions came “after [Spence], a Black female over 40,
engaged in EEO/whistleblower activity.” SAC, f 34.
As a result, her hostile-environment count falls by the
board.
E. Count IV: Unlawful Employment
Preference
Spence’s next cause of action focuses on the
substance of the grievance that led her to make the
whistleblower disclosures that she alleges gave rise to
the retaliation and hostile work environment addressed
in the previous three counts. She alleges that the VA’s
advertisement of a new attorney position within the
PLG at the GS-15 level constituted a “prohibited per
sonnel practice” under the merit-system principles of
the WPA because it obstructed her ability to compete
for employment and granted an employment prefer
ence not authorized by law. See 5 U.S.C. § 2302(b)(4),
(6). In a single sentence, Spence states that the VA
“deceived [her] with respect to her right to compete for
employment when Army attorneys were hired at the
GS-15 level to perform the same work as appellant
under a [job posting] intended for VA attorneys which
resulted in the attorneys being granted preferences or
advantages not authorized by law, rule or regulation
App.44a
to improve their prospect of employment.” SAC, f 39.
Essentially, her claim appears to be that the VA hired
unqualified Army attorneys for a position that was
meant only for VA attorneys. See PL Opp. at 33. Al
though she never mentions discrimination in this
decision, the Court infers that she may have meant to
argue that these decisions were infected with the
same discriminatory motives she alleges throughout
her Complaint.
But Spence does not plead any facts that support
these conclusory allegations of wrongdoing. She does
not, for example, allege that the VA gave the Army
applicants for these positions favorable treatment in
the process, nor does she substantiate her allegation
that the job posting was deceptive about her ability to
compete. Without more, her “[tjhreadbare recital Q of
the elements of a cause of action, supported by mere
conclusory statements, do[es] not suffice” to state a
claim for relief. Iqbal, 556 U.S. at 678.
F. Count V: Harmful Procedural Error
Spence’s fifth count alleges that the VA violated
the procedures of VA WPA by firing her without first
obtaining the approval of the VA OSC. See SAC, If 4243. Unlike the other counts, the Court evaluates this
one under a summary-judgment standard given that
it considers materials outside of the four corners of
Plaintiffs Complaint.
The VA WPA requires that in cases where an
employee “seek[s] corrective action . . . from the Office
of Special Counsel based on an alleged prohibited
personnel practice” under the Whistleblower Protection
Act, the VA “may not remove, demote, or suspend such
App.45a
covered individual. . . without the approval of the
Special Counsel.” 38 U.S.C. § 714(e)(1).
Spence challenges the MSPB’s conclusion that
the VA Special Counsel signed off on her termination
as unsupported by evidence in the administrative
record. Challenges to MSPB decisions are ordinarily
heard in the Court of Appeals for the Federal Circuit,
see 5 U.S.C. § 7703(b)(1), but “mixed cases” involving
a challenged employment action that is also alleged to
have been discriminatory or retaliatory under Title
VII may instead be appealed to federal district court.
See Williams v. Dept, of the Army, 715 F.2d 1485,
1489-91 (Fed. Cir. 1983); 5 U.S.C. §§ 7702, 7703(b)(2)
& (c). In a “mixed case,” the Court looks only to whether
the MSPB’s decision was “arbitrary or capricious,
obtained without compliance with lawful procedures,
unsupported by substantial evidence [,] or otherwise
not in accordance with law.” Barnes v. Small, 840 F.2d
972, 979 (D.C. Cir. 1988) (citing 5 U.S.C. § 7703(c)).
Having examined that decision, the Court concludes
that it was based on substantial evidence. The admin
istrative record before the MSPB included emails from
the VA Office of Accountability and Whistleblower Pro
tection relaying status updates on OSC’s inquiry into
Spence’s proposed removal. See ECF No. 20-11 (MSPB
Appeal File) at 13-18. In upholding the VA’s removal
of Spence, the MSPB found that the VA OAWP “issued
an email notifying the agency that its inquiry into the
appellant’s proposed removal is complete and neither
they nor the Office of Special Counsel will hold the
proposal from proceeding.” ECF No. 20-25 (MSPB
Decision) at 23-24. This is correct inasmuch as in an
October 24, 2018, email, the OAWP official explained
that the OSC inquiry involving Spence’s proposed
App.46a
removal was complete and that neither OSC nor
OAWP would “continue to hold the action proposed
under [38 U.S.C. § 714(e)(1)].” MSPB Appeal File at
13. Spence was fired the following day. See MSPB
Decision at 24. As substantial evidence supports the
MSPB’s decision that this was done in accordance with
the VA’s procedures, this count goes nowhere, and the
Court will award summary judgment to Defendants
on it.
G. Count VI: MSPB Appeal
Last up is Count VI, which broadly critiques the
entirety of the MSPB decision as arbitrary, capricious,
and unsupported by the administrative record. The
VA’s principal position on dismissal here is that this
cause of action does not comply with Rule 8(a) (2)’s
requirement that a pleading be “a short and plain
statement of the claim showing that the pleader is
entitled to relief.” As the Court has already recounted,
this is not the first time that Defendants have asked
for Spence’s pleadings to be dismissed for their
prolixity and confusion. See Def. MTD Am. Compl. 1
at 8-9. Her original Complaint was hardly barebones,
coming in at 98 pages. See Compl. She then attempted
to amend her Complaint three times, proposing modified
versions that ranged between 107 and 234 pages in
length. Each time, this Court denied her permission
to file such lengthy Complaints and, most recently,
warned that she had just “one more opportunity” to
amend to file an appropriate Complaint. See Order
Dismissing 1st Am. Compl. at 1.
Although Plaintiffs Second Amended Complaint
as a whole no longer boasts hundreds of pages, Count
VI remains far too unwieldy to proceed. Under Rule
App.47a
8(d)(1), “[e]ach allegation must be simple, concise, and
direct.” Yet, Count VI spans a total of 167 numbered
paragraphs, comprising 41 pages of a 48-page Com
plaint. See SAC at 7-48. Courts have often dismissed
complaints that contain bloated and disorganized alle
gations such as this for violations of Rule 8. See
Unfoldment, Inc. v. District of Columbia, No. 07-1717,
2007 WL 3125236, at *1-2 (D.D.C. Oct. 24, 2007) (dis
missing 61-page complaint); Ciralsky u. CIA, 355 F.3d
661, 668-671 (D.C. Cir. 2004) (affirming dismissal
without prejudice of 61-page complaint and striking of
119-page complaint); Nichols v. Holder, 828 F. Supp.
2d 250, 253-54 (D.D.C. 2011) (dismissing 140-page
complaint because it was “prolix, redundant, [and]
bloated with unnecessary detail,” falling far short of
Rule 8(d)’s requirement that each allegation be “simple,
concise, and direct”); Brown v. Califano, 75 F.R.D.
497, 499 (D.D.C. 1977) (collecting cases).
It is not merely the length of this count that
warrants dismissal for violating Rule 8; the disorganized
and convoluted nature of the allegations counsel that
result as well. The purpose of Rule 8 “is to give fair
notice of the claims being asserted so as to permit the
adverse party the opportunity to file a responsive
answer, prepare an adequate defense and determine
whether the doctrine of res judicata is applicable.”
Brown, 75 F.R.D. at 498 (citations omitted); Nichols,
828 F. Supp. 2d at 252 (“‘[U]necessary prolixity in a
pleading places an unjustified burden on the court
and the party who must respond to it because they are
forced to select the relevant material from a mass of
verbiage.”’) (quoting Salahuddin v. Cuomo, 861 F.2d
40,42 (2d Cir. 1988) (citations omitted)). For this reason,
App.48a
the federal pleading rules emphasize clarity and brevity.
See Ciralsky, 355 F.3d at 669.
Here, Count VI requires great perspicacity to
construe. Spence dives into block quotes from the
MSPB decision or administrative record, then comes
up for air to argue that the quoted portions of the
MSPB decision are erroneous. See, e.g., SAC,
4853. The allegations linger on the minutiae of “myriad
seemingly irrelevant descriptions,” Jiggetts v. District
of Columbia, 319 F.R.D. 408, 415 (D.D.C. 2017), of cor
respondence between Spence and her supervisors about
particular work assignments, see, e.g., SAC,
56-64,
rather than providing a coherent chronological retelling
of the events underlying her termination, making it
“nearly impossible to discern the essential facts that
underlie Plaintiffs’ legal claims.” Jiggetts, 319 F.R.D.
at 415 (emphasis omitted).
Although Spence is representing herself, pro se
litigants must still comply with the Federal Rules of
Civil Procedure. Jarrell v. Tisch, 656 F. Supp. 237,239
(D.D.C. 1987). Additionally, her continued inability to
submit a Complaint that abides by Rule 8’s “short and
plain statement” requirement is made worse by the
fact that she is no ordinary pro se litigant; on the con
trary, her Complaint “was crafted and signed by [a]
lawyerO,” Unfoldment, Inc., 2007 WL 3125236, at *2,
who has practiced for 36 years. See SAC, 4. Given
that this is her fifth attempt to articulate a sufficient
claim, the Court is constrained to conclude that she has
exhausted her opportunities, and dismissal is appro
priate.
App.49a
H. Dismissal with Prejudice
The last decision the Court faces is whether to
grant Defendants’ request that dismissal be with pre
judice. As the D.C. Circuit has warned, dismissals
with prejudice under Rule 12(b)(6) are disfavored and
“warranted only when a trial court determines that
the allegation of other facts consistent with the chal
lenged pleading could not possibly cure the deficiency.”
Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir.
1996) (internal quotation marks and citations omitted);
see also Ciralsky, 355 F.3d at 670 (“[I]t will generally
be an abuse of discretion to deny leave to amend when
dismissing a nonfrivolous original complaint on the
sole ground that it does not constitute the short and plain
statement required by Rule 8.”) (quoting Salahuddin,
861 F.2d at 42). As the Court has repeatedly noted in
this Opinion, however, it has given Plaintiff repeated
warnings and myriad opportunities to articulate a
proper claim; indeed, her latest Complaint represents
her fifth attempt. As a licensed attorney for over 30
years, Spence is expected to be capable of following the
Court’s direction and stating a proper cause of action
that “give[s] the defendants fair notice of the claims
against them.” Ciralsky, 355 F.3d at 670; cf. Dozier,
702 F.2d at 1194-95.
At some point, plaintiffs should not be permitted
to impose further on their adversaries and the court
system, both of which have finite resources. The VA
clearly spent an inordinate amount of time attempting
to manage an unsatisfactory employee here, and her
prolonged efforts to sue it have only compounded that
expenditure. The Court believes that the road should
end here, and it will thus dismiss the case with preju
dice.
App.50a
IV. Conclusion
For the foregoing reasons, the Court will grant
Defendants’ Motion to Dismiss with prejudice as to
Counts I, II, III, IV, and VI, and it will grant summary
judgment for Defendants on Count V. A separate
Order so stating will issue this day.
/s/ James E, Boasberg_____
James E. Boasberg
United States District Judge
Date: August 12, 2022
App.51a
APPENDIX C
DECISION, U.S. MERIT SYSTEMS
PROTECTION BOARD WASHINGTON
REGIONAL OFFICE
(INITIAL DECISION APRIL 26, 2019;
FINAL DECISION EFFECTIVE MAY 31, 2019)
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE
JO H DUBOSE SPENCE,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Agency.
Docket No. DC-0714-19-0123-1-1
Before: MONIQUE BINSWANGER,
Administrative Judge.
INITIAL DECISION
On October 25, 2018, the agency removed the
appellant from her position as an Attorney, GS-090514, in the agency’s Office of the General Counsel
(OGC) Procurement Law Group (PLG). See Appeal
File (AF), Tab 4 at 10-12. The appellant timely filed
App.52a
the instant appeal. AF, Tab 1. The Board has jurisdic
tion over this appeal pursuant to 38 U.S.C.
§ 714(c)(4)(A). I held the requested hearing on March
18-19 and 22, 2019. AF, Tabs 32-34 (Hearing CD, Vols.
1-3) (HCD).
For the following reasons, the agency’s action is
AFFIRMED.
ANALYSIS AND FINDINGS
Background
The appellant has served as an Attorney, GS0905-14 for the agency’s Office of the General Counsel
(OGC), Procurement Law Group (PLG) since 2015,
and had worked within the OGC’s Contracting group
since 2007 before then. AF, Tab 20 at 10. At the GS14 grade level, she was considered a senior attorney.
She teleworked full time and rarely came to the office.
Teleworking employees like the appellant often parti
cipated in team-wide meetings via telephone and/or
video conference. However, teleworking employees were
not exempt from appearing in person for client and
team meetings where necessary. AF, Tab 32 (HCD,
Vol. 1).
The PLG handles legal matters related to the fed
eral procurement process and the life cycle of a con
tract. AF, Tab 31 (HCD, Vol. 1). PLG attorneys
directly advise clients (typically management of other
Department offices or divisions) on the procurement
process during the life cycle of the contract and related
matters, and also handle litigation that arises from
those matters. PLG attorneys typically ranged from
GS-11 to GS-14 in grade, with higher-graded attor
neys performing more complex or visible matters with
App.53a
greater autonomy than lower-graded attorneys. PLG
later added three GS-15 litigation attorneys to the
staff, as will be discussed in more detailed below. As a
GS-14 attorney, the appellant and expected to work
more complex cases without necessary intervention
from her supervisors. AF, Tabs 32 and 33 (HCD, Vols.
1 and 2); see also AF, Tab 11 at 234-40.
Attorneys receive assignments both from the
PLG management team and also directly from agency
clients with whom they have an established relation
ship. Work assignments are tracked by the group’s
SharePoint site, “GCLAWS.” Clients are asked to
upload requests for legal work to that site, though not
all clients consistently do so. Individual attorney
workload fluctuates based on the nature and complexity
of their assignments at any given time (i.e., an attor
ney with more complex assignments may have fewer
distinct projects than an attorney with less complex
assignments).
PLG Attorneys work on both transactional and
litigation matters. Transactional matters involve
research and advice for clients, responding to Congres
sional inquiries, and assisting with contract matters
prior to litigation. Typical litigation assignments
include handling bid protests1 related to procurement
contracts before the Government Accountability Office
(GAO) and appeals of those decisions to the Court of
Federal Claims (CoFC). AF, Tab 31 (HCD, Vol. 1).
PLG attorneys are responsible for representing the
1 Bid protests typically involve allegations that the agency’s con
tract solicitation or award was unfair in some way, such as a
mishandled bid evaluation. AF, Tab 32 (HCD, Vol. 1). Where a bid .
protest is successful, the agency’s award may be invalidated. Id.
App.54a
Department at all stages of a bid protest and advising
the client directly throughout the process. Id. Cases
filed in the CoFC are handled by the Department of
Justice (DOJ) U.S. Attorney’s Office, with assistance
and consultation provided by the PLG attorneys. AF,
Tab 32 (HCD, Vol. 1).
PLG attorneys were subject to specific per
formance standards against which they were rated
during the yearly performance cycle. AF, Tab 11 at
234-40. The standards included Critical Elements of
“Quality of Legal Products” and “Stakeholder Service,”
and a Non-Critical Element of “Timeliness.” Id. For
Quality of Legal Products, the standards require all
oral and written advice be clear, succinct, and
persuasively communicated. Id. at 234-35. The attor
ney is charged with identifying pertinent issues and
supporting advice with relevant facts and applicable
law and policy. Id. It further requires:
The attorney’s legal advice and analysis
should be well-developed and presented
with sufficient clarity, detail, and organiza
tion to enable stakeholders to understand
them and apply them effectively. The attor
ney’s legal writing, in addition to being
persuasive and convincing, should include
clear and easily understandable explana
tions for VA’s legal positions. Except in rare
circumstances, it should not be necessary for
the supervisor to spot and resolve legal
issues in the first instance.
Id. For Stakeholder Services, the attorney is charged
with “proactively identifying and providing stakeholders
with timely notice and analyses of important develop
ments, cases, issues, risks or trends” and to provide
App.55a
sound legal advice and judgment to aid stakeholders’
efficient, effective, and timely resolution of issues. Id.
at 237. Furthermore:
The necessity for unplanned supervisory
intervention in matters/cases/communications
with stakeholders is rare. The attorney’s
level of service to the stakeholder will result
in a minimal number of stakeholder com
plaints about quality of legal services or pro
fessionalism and/or stakeholders are consist- .
ently satisfied with the quality and
manner of service provided. The supervisor
will determine whether complaints are valid
and more than trivial in nature.
.
Id. Stakeholders include internal agency clients (i.e.
management officials in agency Divisions and subOffices), as well as the appellant’s OGC colleagues
and management chain. AF, Tabs 32-34 (HCD Vols. 13). Regarding Timeliness, attorneys were expected to
meet the following metrics:
•
The attorney is responsive to stakeholders
within three business days and establishes a
timeframe for response. Subsequently,
appropriately discusses with the stakeholder
the needs regarding timeliness of the advice
or assistance.
•
In cases where a timeframe(s) for response is
coordinated with the stakeholder or estab
lished by OGC, attorney regularly responds
to the stakeholder within the timeframe(s),
absent circumstances outside the attorney’s
control...................
App.56a
•
Attorney regularly complies with applicable
deadlines and the government suffers no
harm as a result of missing a deadline,
unless due to circumstances beyond the
attorney’s control as determined by the
supervisor
AF, Tab 11 at 239. Attorneys are expected to keep
their supervisor apprised of work assignments both
through GCLAWS and also through in-person and
virtual meetings and discussions. AF,-Tab-32-(HCD,
Vol. 1).
In or around late-2016, Candice Cornish became
the acting-PLG Deputy Chief Counsel and the appel
lant’s direct supervisor. Cornish was permanently
appointed to the position in May 2017. Robert Fleck
has served as the PLG Chief Counsel and the appel
lant’s second level supervisor since May 2016. Richard
Hipolit served as the OGC Deputy General Counsel
until his departure in April 2018 and was the appel
lant’s third level supervisor during that time. Hipolit
had high-level supervisory authority over the PLG,
Real Property, District Contracting, Information Law,
and Revenue Law groups, and was not involved in the
day-to-day operations of those groups. Michael Hogan
took over the Deputy General Counsel position after
Hipolit. Prior to this transition, Hogan served as the
OGC Executive Director for Planning and Analysis,
which involved oversight of all administrative
functions within OGC, such as Human Resources and
Information Technology and Management. AF, Tab 33
(HCD, Vol. 2). He was also the agency’s point of
contact for new complaints of discrimination to the
agency’s EEO office in that role. Id.
App.57a
Creation of the PLG Litigation Team
In or around late-2016 and early-2017, the PLG
created and staffed a “Litigation Team” of attorneys
that would focus on larger litigation matters. During
this time period, the VA Secretary had recently
announced 13 major, department-wide initiatives, all
of which required a substantial amount of procurement
work. Accordingly, the agency’s General Counsel at
the time, Lee Bradley, determined the PLG must hire
additional, higher-level personnel that would be
prepared to handle the influx of complex work stem
ming from these initiatives. AF, Tab 33 (HCD, Vol. 2.)
Bradley hired Fleck in May 2016 with the directive
that Fleck carry out this goal. Id. Accordingly, Fleck
sought to hire several GS-15 level, senior attorneys for
the Litigation Team that would handle the largest and
most complex matters, to include “high billion dollar”
contracts and associated litigation. Id.; see also AF,
Tab 21 at 315-16. The attorneys would also be respon
sible for mentoring lower-graded PLG attorneys. Id.
At first, the Litigation Team included only lowergraded attorneys. The “transactional” attorneys not on
the Litigation Team remained responsible for all types
of assignments within their position descriptions,
including litigation matters when assigned. AF, Tab
32 (HCD, Vol. 1). In particular, when Litigation Team
attorneys were overextended, transactional attorneys
were assigned to work on litigation matters. Id. The
agency often assigned matters to both litigation and
transactional attorneys for proper coverage and
training. Id.
The addition of the GS-15 level attorneys took far
longer authorize and staff, due to internal controls and
hiring restrictions. On November 29, 2016, Hogan
App.58a
issued an email to its internal OGC staff seeking
applicants from those interested in serving on the
Litigation Team in a GS-15, non-supervisory role. AF,
Tab 21 at 315-16. The appellant did not apply for the
position. AF, Tabs 32-34 (HCD, Vols. 1-3). In January
2017, the Federal government came under a hiring
freeze that lasted officially until mid-April 2017, and
the agency continued to have restrictions on hiring
thereafter. In or around June 2017, internal
restrictions were loosened and the agency was permit
ted to hire if various justifications and approvals were
granted. AF, Tab 33 (HCD, Vol. 2).
On September 22, 2017, Hogan submitted a
hiring justification form setting forth the need for GS15 positions in the PLG, with concurrences from the
General Counsel and the Assistant Secretary for
Human Resources and Administration. AF, Tab 21 at
316-17. Prior to submitting this justification, Hogan
also obtained the approval of the Supply Fund Board,
which concurred with the need for the attorneys and
had approved additional funding for their salaries. Id.
at 316. On October 17, 2017, the agency’s Chief of
Staff approved the request. Id. at 317. The agency
announced the vacancies on USA Jobs and ultimately
hired three GS-15 Litigation Team attorneys: Richard
Bechtel,
Sarah
McWilliams,
and
Michael
Kraycinovich. Fleck served as the selecting official for
those positions.
The appellant’s work performance
The appellant’s work performance began to decline
in mid-to late-2017. In or around June 2017, the
appellant was working on the “David Jones” bid
protest, which was pending before the GAO. The case
App.59a
involved one of the appellant’s long-time clients, the
agency’s Strategic Acquisition Center in Frederick,
Maryland (SAC-Frederick), and she had been the
principle attorney advising the client on the contract
at issue. SAC-Frederick’s principal management
officials were Director Efrain Fernandez and his
Deputy, Clint Druk. In or around August 2017, Liti
gation Team attorneys Kraycinovich and David Fragoso
recommended the agency take corrective action due to
apparent errors in the award process, a position with
which Fleck also agreed. AF, Tabs 32 and 33 (HCD,
Vols. 1 and 2). The appellant, however, disagreed and re
commended the client continue defending the bid
protest. Id. The client chose to defend the bid protest.
Id. Fleck requested the appellant enter her
appearance in the litigation and take over the agency’s
defense of the matter, but she refused. Id. Shortly
thereafter, the GAO issued a decision invalidating the
agency’s award and granting the award to the peti
tioner. Id. The loss was high-profile for the agency and
it was reported in the “Westlaw Year in Review” that
year. Id. at Tab 32 (HCD, Vol. 1).
Following the David Jones protest, Cornish began
monitoring the appellant’s work more closely, as she
was concerned with errors that came to light in the
GAO’s written decision of the case. AF, Tab 32 (HCD,
Vol. 1). The appellant also began protesting litigationrelated work assignments and those that required
coordination with the Litigation Team. Id. As a result,
Cornish and the appellant were in conflict over a
number of assignments over the following nine
months, the relevant of which are summarized below.
App.60a
A-76 Memo
On October 30, 2017. Cornish assigned the appel
lant to draft a one-page memo stating the require
ments the agency would need to meet in order to
replace medical personal with a contract. AF, Tab 11
at 33. She stated the appellant should include refer
ence to Circular A-76 (which discusses when a govern
ment agency can contract out work) and Title 38 of the
U.S. Code. Id. The appellant refused to complete the
assignment. She stated that although she answered a
similar question for the Health Care Law Group
before, this was not her area of specialty. Id. Cornish
responded that this was not within any particular
individual’s expertise and directed her to perform
research and analysis to complete the assignment. Id.
The appellant responded to Cornish, copying Fleck,
stating that Cornish, as the Deputy Chief Counsel,
should already be knowledgeable about this area. AF,
Tab 11 at 220. The following day, Cornish again
reiterated the assignment to the appellant and direc
ted her to “summarize the prohibitions to VA con
tracting services already provided by VA employees.”
The appellant again refused the assignment, stating
she did not understand the issue and needed more
background information because she “can’t possibly be
expected to provide a memo on a matter you have not
clearly articulated.” Id. at 32. She then emailed Fleck,
copying Cornish and Hipolit, stating she was entitled
to fully understand the issue and have background
information before completing the assignment and
requesting they intervene to clarify the assignment.
Id. at 32.
On November 2, 2017, the appellant provided
Cornish with a three-page memo that referenced
App.61a
Circular A-76 but not U.S. Code Title 38. AF, Tab
221-23. By that time, because of the appellant’s
protests, Cornish had already reassigned the task to a
lower-graded employee and had received a memo in
response. AF, Tab 32 (HCD, Vol. 1),
VECTOR bid protests
The VECTOR contract was a large, multi-awardee
contract within SAC-Frederick that the appellant
advised the client on throughout the solicitation and
evaluation process. In August 2017, the appellant
represented that she could not take on additional
assignments at that time because this matter was her
priority. AF, Tab 11 at 68. In or around Fall 2017,
the agency began receiving numerous bid protests
regarding this contract. On November 14, 2017,
Cornish assigned the appellant two bid protests and
directed her to enter her appearance. AF, Tab 11 at
39. The appellant pushed back against the assign
ment and asked why the Litigation Team attorneys
were not handling the protests. Id. She stated she
could handle the earlier-filed protest (“Pathfinder”)
but stated another attorney would have to handle the
second protest because the agency’s response was due
on December 13, 2017 and she would be on leave most
of that month. Id. However, the appellant did not have
approved leave in the system at that time. AF, Tab 32
and 34 (HCD, Vols. 1 and 3).
The following day, the appellant emailed Cornish
again to state that Litigation Team attorneys
Kraycinovich and Devine had been involved with prior
VECTOR protests already and requested the two new
protests be assigned to them. AF, Tab 11 at 41.
Cornish responded that the appellant had specific
App.62a
knowledge of the VECTOR matter and, based on the
workloads of Litigation Team attorneys, she needed
the appellant to handle the protests. Id. at 41. She di
rected the appellant to enter her appearance that day.
Id.
On December 1, 2017, Deputy Director Druk
emailed Cornish regarding the appellant’s handling of
the VECTOR bid protests responses. He stated:
[The appellant’s] handling of this strikes me
as odd and much different than any protest
situation I’ve been involved with at any
agency. She strikes me as having a posture
of disengagement at this point and essentially
saying, “Don’t agree with me? Good luck,
take care of it yourself. I’m OOO.”
AF, Tab 11 at 45. Druk’s email contained an email
chain over the prior several days wherein the appel
lant disagrees with the client’s decision to defend
against the bid protest and is nonresponsive to their
requests for what materials should be included in the
agency’s response pleading. Id. at 45-48. Eventually,
the appellant provides a general listing of materials to
include in the pleading and directs the client to
Devine for further assistance. Id. at 45-46. Druk’s
email to Cornish concluded:
I’m happy to ask [Devine] but I don’t think
he’d appreciate being blindsided and not
very well positioned to respond not knowing
the specifics.
Id. at 45. Cornish forwarded the complaint to the
appellant and asked her to explain why she directed
the client to work with Devine on the matter. Id. at
79. The appellant provided a lengthy response in
App.63a
which she denied doing so and alleged she was
responsive to the client’s requests. Id. at 77-78.
Cornish asked the appellant to confirm the protest
response would be filed by its due date of December 6,
as she could not approve the appellant’s leave request
prior to having this information. Id. at 77. The appel
lant responded “Affirmative.” Id. On December 7,2017,
the appellant notified Cornish that she had timely
filed the response the prior day. Id. at 81. She also
notified the client that day that another attorney will
have to assist them with any follow up to the
Pathfinder protest because she was going on leave. Id.
at 83. The appellant copied Cornish and Fleck on this
email but did not speak with them about it
beforehand. AF, Tab 32 (HCD, Vol. 1).
During these-events related to the Pathfinder
protest response, on December 4, 2017, the client
notified the appellant of another bid protest (“ARTi”)
filed on the VECTOR contract award. AF, Tab 11 at
74. The appellant responds to the client that she
should forward the information “to the new attorney
assigned to the subject protest” as she would be on
leave through January 2, 2018. Id. Cornish ultimately
approved the appellant to take leave from December
7, 2017 through January 2, 2018. During her absence,
Cornish temporarily assigned newly-hired Litigation
Team attorney Bechtel the pending VECTOR protests
until the appellant returned from leave. AF, Tab 31
(HCD, Vol. 1). Upon her return from leave, the appel
lant continued to protest Cornish’s directive to handle
VECTOR bid protests. Id.
App.64a
Medical Sharing Office training slides
On March 12, 2018, Sandra Hallmark, Director of
the Medical Sharing Affiliate Office (MSO), uploaded
several hundred training slides into GCLAWS for
legal review. AF, Tab 11 at 126. The appellant was
assigned to review the slides. Id. The appellant
requested that Hallmark “highlight the procurement
language you are requesting this office to review.” Id.
She further stated “I am concerned that you are
submitting an excessively large number of documents to
this office for legal review which would not normally
be reviewed by this office” and reiterated “If you have
specific language that requires legal review, please
highlight and provide. Otherwise, I request that you
refrain from submitting documents through
SharePoint which are or may not be appropriate for
legal review.” Id. She also told Hallmark to remove
any documents from GCLAWS that are not appropri
ate for legal review, and to contact either Cornish or
Fleck “or another member” of the PLG if she needed
assistance in determining whether an action was
appropriate for review. Id. at 125.
On March 14, 2018, Hallmark emailed Cornish
and asked for her assistance given the appellant’s
responses. AF, Tab 11 at 124-25. She stated she was
unsure why her request was different from others she
had submitted to PLG in the past. Id. She objected to
providing only portions of the training presentation
for review and referenced working well with other
OGC colleagues for many years. Id. On March 16,
2018, Cornish forwarded Hallmark’s email to the
appellant, referenced her Stakeholder Service per
formance element, and directed her to review the
App.65a
slides within 10 days. AF, Tab 11 at 124. The appel
lant timely completed the review thereafter.
CoFC AMSG bid protest
On March 3, 2018, the agency received notice of a
complaint filed in the CoFC regarding a VECTOR bid
protest referred to as “AMSG.” AF, Tab 11 at 123. On
March 5, 2018, Cornish assigned the appellant to act
as the agency’s representative, coordinating with
DOJ. Id. She directed the appellant to “draft a memo
with background regarding review leading up to the
present (with timeline)” and to schedule weekly follow
up meetings with she and Kraycinovich regarding the
case. Id. On March 7, 2018, the appellant emailed
Cornish and Kraycinovich a timeline of events related
to the AMSG bid under the VECTOR contract, but did
not include any background on the case. Id. at 129-30.
On April 5, 2018, the appellant notified Cornish
of a Motion for Judgment on the Administrative
Record (MJAR) filed in the AMSG matter. AF, Tab 11
at 219. Cornish asked the appellant to request a
written litigation risk assessment from the DOJ
regarding the matter. Id. The appellant responded
“Once all of the facts are gathered, litigation risk will
be assessed.” Id. Cornish again directed the appellant
to request the DOJ’s assessment based on the facts
known at this time. Id. at 218. The appellant again
refused to do so “until we know all of the facts.” She
further stated “the DOJ attorney and I have already
shared our positions,” but did not disclose those
positions to Cornish. Id. at 217-18. Ultimately,
Cornish emailed the DOJ attorney directly and
requested the written litigation risk assessment. Id.
at 217.
App.66a
On April 12, 2018, Cornish asked the appellant
what she recommended to the client with respect to
defending the AMSG complaint or taking corrective
action. AF, Tab 11 at 135. The appellant responded
that the client had decided to move forward with liti
gation after discussing the issues with her and others
during a meeting the prior day. Id. Cornish asked the
appellant to provide a written copy of the advice she
provided the client, clearly stating her “recommenda
tion as to whether litigation is appropriate v. cor
rective action,” by the following day. Id. at 134. The
appellant again refused to provide the information
and stated that, because the client already made the
decision to continue with litigation, “whether I recom
mended litigation or corrective action is a moot issue.”
Id. She stated Cornish could have attended the
meeting the prior day but chose not to, and that a deci
sion was made in her absence. Id.
Ultimately, the CoFC issued a decision finding
the agency was arbitrary and capricious in making
the award at issue and overturning the agency. AF,
Tabs 32 and 33 (HCD Vols. 1 and 2).
VECTOR Business Clearance Memorandum (BCM)
In February 2018, the appellant was assigned to
assist SAC-Frederick with review of a Business Clear
ance Memorandum (BCM) regarding the VECTOR
contract. On March 22, 2018, Bloom provided a
complete draft BCM to the appellant for review. AF,
Tab 11 at 169. The appellant failed to review the doc
ument or provide feedback to the client. Id. On April
3, 2018, the appellant requested Bloom send the draft
to Cornish and Kraycinovich for review. Id. Bloom did,
copying Fernandez and Druk, and informing Cornish
App.67a
that the appellant had not yet reviewed the document.
Id. At that time, Cornish had Litigation Team attor
ney McWilliams prepare comments for the draft
BCM. On April 6, 2018, she sent those comments to
Fernandez and directed him to work with the appel
lant to finalize the document. Id. at 204-09.
On April 10, 2018, Cornish forwarded the email
chain to the appellant, reminded her that she is the
attorney responsible for reviewing the BCM, and
instructed her to work with Bloom to finalize the doc
ument. Id. at 167. She recommended the appellant
review McWilliams’ comments prior to meeting with
the client and reminded her that, as the person with
knowledge of both the client office and the VECTOR
contract, the appellant would be the attorney assigned
to any future protest as well. Id. The appellant refused
to acknowledge that she was the attorney of record for
these or any future matters, and alleged that other
PLG attorneys were responsible for defending their
advice on the draft. Id. The appellant added both
Fernandez and Bloom to her email disputing these
issues with Cornish. Id. Fernandez responded to
Cornish that “[the appellant] has declined to provide
further comments or guidance, presumably based on
internal personnel issues.” Id. at 164. Cornish then
emailed the appellant directly:
You are an attorney with the Procurement
Law Group within VA’s office of General
Counsel. I have assigned you to act as attor
ney of record regarding matters stemming
from VECTOR to include transactional work
and bid protests. As such your requirement
is now to perform in that capacity and provide
counsel and advise to the client accounting
App.68a
for the issues raised. I am directing you to
provide legal review in this matter.
Id. at 163. Ultimately, the appellant refused to discuss
McWilliams’ comments with the client and the client
disregarded the comments. AF, Tab 34 (HCD, Vol. 3).
Cornish forwarded the email chain to Hogan and
Hipolit, copying the appellant, stating the appellant
was refusing to perform work without justification.
AF, Tab 11 at 166. The appellant responded, arguing
Cornish abused her discretion when she directed the
appellant to discuss McWilliams’ legal advice with the
client and to continue working this matter after
McWilliams and other litigation team attorneys were
involved. Id. at 165-66. She stated the AMSG CoFC
complaint required her full attention and demanded
Cornish stop harassing her. Id. at 166.
State Approving Agency (SAA) Agreements
The agency oversees a program paying for veteran
educational costs, which includes working with state
“approving agencies” that are responsible for
determining which schools veterans can attend under
this program. AF, Tab 32 (HCD Vol. 1). In July 2016,
Alyssa Dark of the agency’s Veterans Benefits Admin
istration (VBA) sought the appellant’s advice on how
to structure the agreements between the Department
and the schools approved under the program. AF, Tab
11 at 109. Specifically, Dark asked the appellant
whether the agency’s relationships with SAAs should
be administered through the procurement process or
through a separate contract process. Id. The appellant
did not respond to Dark’s question. Id. at 197. In Jan
uary 2017, Dark again reached out to the appellant
App.69a
regarding this issue, who responded that the client
could email Cornish for assistance. AF, Tab 4 at 369.
In August 2017, OGC’ s Benefits Law Group
asked the appellant to consult on the same question
for the VBA, particularly with respect to the contract
issues related thereto. AF, Tab 4 at 380. The VBA had
sought assistance from the Benefits Law Group after
not receiving a response from PLG. AF, Tab 32 (HCD
Vol. 1). The appellant forwarded the request to
Cornish for reassignment, as she would be out of the
office for 10 days. AF, Tab 4 at 384. Cornish did not
see the email and the matter was not reassigned. AF,
Tab 32 (HCD, Vol. 1). In January 2018, the Benefits
Law Group again contacted PLG to request assistance
with this issue. Id. Cornish assigned attorney
Vanessa Calabrese to the request, who asked the
appellant for any insight or information she had from
the VBA’s previous request to PLG. The appellant had
no information or prior legal analysis to provide to
Calabrese. AF, Tab 11 at 108-09. Calabrese thereafter
provided Cornish with her independent analysis of the
issue. Id. at 192-95.
Point of Use (POU) Claims
In May 2017, the appellant worked with Pattie
Beasley, a Contracting Officer, regarding equitable
adjustment claims on a Point of Use (POU) contract
within the agency’s Veteran’s Health Administration.
AF, Tab 11 at 148 and Tab 4 at 392-93. In September
2017 the appellant again assisted Beasley with review
and clearance of a contract modification related to the
equitable adjustment claim. AF, Tab 11 at 147-48 and
Tab 4 at 440. The appellant completed both of those
App.70a
assignments in a timely fashion. Id.; see also AF, Tab
34 (HCD, Vol. 3).
On April 20, 2018, Beasely’s supervisor, Nancy
Bailey, informed the appellant they have been working
on many additional equitable adjustment claims from
the same contractor since September 2017. Id. at 445.
She stated the contract “is a mess” and they need to
meet in person to discuss her advice on these issues
because “there is probably no way to explain this on
the phone.” Id. On April 23, 2018, the appellant
forwarded this request to Cornish for assignment to
Bridget Grant, who she alleged had been involved
with the [POI] contract in the past. Id. at 146. Cornish,
however, responded to the client, copying the appellant,
stating that the appellant would be the assigned
attorney for their request. Id. at 448. The appellant
responded to Cornish, copying Hipolit, Hogan and
Fleck, and disputed that she should be assigned the
work when Grant had worked on the contract in the
past. Id. She further stated that “As a virtual employ
ee, I am not available to meet with this client.” Id. At
the time, Grant was working on a billion dollar con
tract matter and could not be assigned this matter. AF,
Tab 32 (HCD, Vol. 1).
On April 24, 2019, the appellant emailed Bailey
confirming she has been assigned the task and
ruminated: “My involvement with the contract claims
at issue is highly unusual, given that I was not the
attorney for the contract and did not participate in
any of the meetings.” AF, Tab 4 at 460. The appellant
further stated to Bailey “As a virtual worker, I am not
available to meet with you in person.” Id. On April 25,
2018, Cornish directed the appellant to meet Bailey in
person as requested, and to inform her when the
App.71a
meeting had been set. AF, Tab 11 at 145. The appel
lant refused, asserting “in-person meetings cannot be
accommodated” because she is a full time teleworker.
Id. She again disputed that she should be assigned
this matter and reiterated that Grant should be
reassigned the work. Id.
On April 27, 2018, the appellant again emailed
Bailey regarding her dispute with this assignment.
AF, Tab 4 at 469-70. She stated:
____ _____
Given my lack of history with the POU con
tract and my status as a full-time teleworker
without the ability to accommodate in-person
meetings, I’m not sure that my involvement
with the POU contractor claims and REAs
dating back to 2013 will be the most efficient
approach to addressing and resolving the
outstanding claims and REAs. The process of
review will be slowed considerably by my
need to get up to speed on the contract
- problems and issues that have occurred over
the past five years.
It is a break from the past practice of the
Procurement Law Group and OGC for the
attorneys who previously advised your office
on the POU contract not to be involved with
the claims and REAs associated with the
contract. They have the contract history and
knowledge and don’t need time to get up to
speed. I will do what I can to assist SAO East
in this endeavor, but without knowing what
I am being drawn into, I have reservations
and concerns.
App.72a
Id. The appellant did not copy her supervisors on this
email. Id. Eventually, due to the appellant’s
refusals, Cornish assigned the matter to attorney Pat
Tuner. AF, Tab 32 (HCD, Vol. 1). Turner, though also
a teleworking employee, met with the client in person
and resolved the client’s issues. Id.
Appellant’s performance feedback
On December 21, 2017, Cornish issued the
appellant a fully successful Fiscal Year 2017 (October
1, 2016
September 30, 2017) performance
evaluation. AF, Tab 32 (HCD, Vol. 1). The appellant
had received a higher rating from her prior supervisor
the year before. AF, Tab 34 (HCD, Vol. 3). On April 4,
2018, Cornish issued the appellant a lengthy, written
performance counseling. AF, Tab 11 at 227-33.
Therein, Cornish warned the appellant she was not
meeting the standards for her Critical Elements of
“Professional Responsibility & Accountability,”
“Stakeholder Service,” and “Quality of Legal Products,”
as well as the Non-Critical Element of “Timeliness.”
Id. Cornish presented the appellant with specific
examples from the appellant’s performance that she
found deficient. Id.
On June 11, 2018, Cornish issued the appellant a
mid-year performance evaluation finding the appel
lant “Needs Improvement to be Fully Successful or
better.” AF, Tab 11 at 23. Cornish attached to the
evaluation a Progress Review Feedback document
that detailed several examples of the appellant’s
deficient performance during the first half of the
rating year, including her inappropriate response to
the A-76 memo assignment, her attempts to reassign
App.73a
the VECTOR protest work in November and Decem
ber 2017, her poor response to the client’s request for
advice regarding SAA agreements, her nonresponsive
ness to Cornish’s request for a litigation memo regard
ing the AMSG CoFC matter, her inappropriate commu
nications with the Medical Sharing Office regarding its
request for legal review of training slides, and her fail
ure to respond to a client request for advice regarding
POU claims. Id. at 24-28. Cornish noted that the appel
lant’s deficient performance required hours of
supervisory intervention on her part. Id. at 26.
Appellant’s allegations of harassment and
reprisal
On November 6, 2017, the appellant initiated a
complaint of discrimination with the agency’s Equal
Employment Opportunity (EEO) office. AF, Tab 21 at
69. She notified Cornish, Fleck, and Hipolit that day
of her EEO complaint. Id. On November 14, 2017, she
emailed her management chain alleging harassment
and asking for a transfer out of the PLG AF, Tab 23 at
38. On November 22, 2017, Hogan appointed Winnie
Reaves, NAS Deputy Chief Counsel, to conduct an
internal inquiry into the appellant’s allegations of har
assment. AF, Tab 20 at 29. Reaves’ inquiry included an
extensive review of the parties’ email communications
related to the harassment allegations and interviews
with the appellant, Cornish, Fleck, Hipolit, and
Krishon Gill-Edmond, a peer of the appellant’s within
the PLG. Id. at 9.
On January 23, 2018, Reaves completed her
inquiry and issued to Hogan a Report of Fact Finding
regarding the appellant’s hostile work environment
allegations. AF, Tab 20 at 9-28. Reaves discussed in
App.74a
great detail the email communications between the
appellant and her supervisors, as well as the informa
tion gleaned from witness interviews. Id. She found
no evidence to support the appellant’s hostile work
environment claim or that she was treated in a dis
criminatory manner based on her age, race, sex, or
prior EEO activity. Id. at 22. Reaves found the
“length, tone, and content” of the appellant’s emails to
Cornish evidence the appellant’s frequent challenges
to Cornish’s authority and her refusal to perform work
assignments. Id. at 23. She recommended, however,
that PLG management consider the appellant’s
transfer request because her relationship with
Cornish was dysfunctional. She reasoned the appel
lant “requires greater supervisory involvement and
engagement that other employees” and “would benefit
from a supervisor who has more experience in relating
to an employee who resists instruction.” Id. at 26. In
the alternative, Reaves recommended better commu
nication between Spence and Cornish, and for Fleck
to be more actively involved in mediating their rela
tionship. Id. at 26-27.
Hipolit ultimately decided not to transfer the
appellant because he needed to maintain staffing
levels in the PLG due to the new initiatives and also
because he did not believe the appellant’s concerns
were specific to particular management officials such
that a transfer would resolve the problem. AF, Tab 32
(HCD, Vol. 2). Rather, he spoke with Cornish and
Fleck about ways to improve engaging with the
appellant. Id.
App.75a
Appellant’s complaints about light workload
The appellant made several allegations that she
was not receiving enough work assignments and ques
tioned the need to hire the additional litigation attor
neys. See generally, AF, Tab 15 at 8-12. The first of
these occurred on October 30, 2017, whereon she
emailed Cornish, Hipolit, and Fleck stating she only
received three assignments that month and has had
to contact clients directly seeking work. AF, Tab 21 at
104. She argued she was performing entry level work
not commensurate with her skill level or years of
experience and that she should be receiving a fair
share of the office’s work. Id. The appellant also stated
that other, unidentified, attorneys also did not have
full workloads and were concerned they were being
“shut out and replaced” by new attorneys. Id. at 103.
Cornish responded that she believed the appellant
was receiving work directly from the client but that
she must notify her if she needed more work assigned.
Id. at 104. Cornish also expressed concern about the
appellant’s complaint, given that she had just rejected
a work assignment because she was too busy. Id. at
103. The appellant continued to make email com
plaints to OGC management regarding her workload
throughout late-2017 and 2018 until her removal in
October 2018. AF, Tab 15 at 8-12.
Appellant’s removal
On September 11, 2018, Cornish issued the
appellant a Notice of Proposed Removal based on a
single charge of Unacceptable Performance with three
specifications therein, as follows. AF, Tab 11 at 8-14.
App.76a
Charge 1: Unacceptable Performance
For the 2018 Fiscal Year rating period, you
have failed to meet the performance stan
dards of the Professional Responsibility and
Accountability” and “Stakeholder Services
and Quality of Legal Products”. Further,
dining the aforementioned performance rating
period you failed to meet the performance
standards of the noncritical element of your
position titled “Timeliness”
Specification 1: Failure of a Critical Element
— Stakeholder Services
You are not taking actions needed and
supervisory intervention is more than rare.
Specifically, you refused to work or show
work product in the following instances, re
quiring supervisory intervention:
1. A-76 MDE 10/31/17-
Failure to take needed
actions as relevant and
complete memo was
not provided, document
lacks analysis. (See
Attachment C and D)
App.77a
2. VECTOR protest
11/14/17
GCL 121721 case
reassigned due to
refusal; Management
required to meet with
client to resolve the
issue. The lack of
proper review resulted
in bid protests which
forced the Agency to set
aside awards and re
evaluate proposals and
ultimately delaying the
provision of needed
services to veterans.
(See Attachment E and
Cl
3. Medical Sharing
Office (MSO) 3/12/18
Failure to take needed
actions, requiring
supervisory
intervention. This
client complaint was
more than trivial and
your actions negatively
impacted the
relationship with the
client. (See Attachment
Cl
App.78a
4. CoFC matter with
Department of Justice
4/12/18
5. VECTOR BCM
4/10/18
6. State Approving
Agencies 1/22/18
Failed to follow
instruction to draft a
litigation memo or
show any work
product. As a specific
and most recent
example, VA has had to
reevaluate proposals in
the matter of AMSG
before the court of
Federal Claims after it
was ruled that VA’s
initial evaluations,
which you provided
legal review, were
found arbitrary and
capricious. (See
Attachment C and D)
Failure to take needed
actions, requiring
management to
reassign the matter.
This client complaint
was more than trivial
and your actions
negatively impacted
the relationship with
the client. (See
Attachment C and D)
Failure to take needed
actions and matter
reassigned all
substantive review
performed by
replacement attorney.
App.79a
(See Attachment C and
D)
7. Point of Use Claims
4/12/18
8. Non-Expendable
Equipment out of the
Strategic Acquisition
Center (SAC) 7/30/18
Absence of documents
as no end product was
produced. Reassigned
to another attorney.
(See Attachment C and
mFailure to take actions
needed as no end
product was produced
(See Attachment D)
Id. at 8-9.
Specification 2 — Failure of Critical Element
— Quality of Legal Products
As required by specific performance measures
for a GS-14 attorney, I randomly selected
and reviewed nine of your cases. Of those
nine cases only one meets the standard:
1. A-76 MDE 10/31/17
Failure to provide
relevant and complete
memo was not
provided, document
lacks analysis. (See
Attachment C and D)
App.80a
2. VECTOR protest
11/14/17
GCL 121721 case
reassigned due to
refusal; Management
required to meet with
client to resolve the
issue. The lack of
proper review resulted
in bid protests which
forced the Agency to
set aside awards and
re-evaluate proposals
and ultimately
delaying the provision
of needed services to
veterans. (See
Attachment E and C)
3. Medical Sharing
Office (MSO)3/12/18
Refusal to review
documents; Formality
and tone were not
considered in
communications with
stakeholders. (See
Attachment C)
4. CoFC matter with
Department of Justice
4/12/18
Failed to follow
instruction to draft a
litigation memo or
show any work product
(See Attachment C)
Absence of requested
documents and matter
reassigned; Work did
not demonstrate
expertise in subjectmatter. (See
5. VECTOR BCM
4/10/18
App.81a
Attachment C)
6. State Approving
Agencies 1/22/18
Absence of documents
and matter reassigned
all substantive review
performed by
replacement attorney
(See Attachment C and
D1
7. Point of Use Claims
4/12/18
8. OGC Final Review for
Stabenow-42743-Buy
American Act
Compliance
9. Non-Expendable
Equipment out of the
Strategic Acquisition
Center (SAC) 7/30/18
Absence of documents
as no end product was
produced (See
Attachment C and D)
Appropriate response
provided.
Absence of documents
as no end product
rather attorney copied
and pasted information
created by the client.
(See Attachment D)
Id. at 10-11.
Specification 3: Failure of Non-Critical
Element — Timeliness
You fail to assist client stakeholders in a
timely manner. When you receive assign
ments I often learn months later that you
have provided no legal advice and clients are
then forced to return to me to request that
they receive legal advice from another attor
ney.
App.82a
Id. at 11. The specification provided as examples the
appellant’s failure to assist a client with its question
about “Point of Use” or “POU” claims when it first
requested advice in May 2017 and her failure to
address a client’s question regarding “SAA Agreements”
in July 2016 when it first sought advice. Id.
The proposal notice informed the appellant of her
right to representation, to review the evidence relied
upon for the proposal, and to respond in writing to
the proposal. Id. at 12-13. The appellant timely sub
mitted a written reply to the proposed removal. AF,
Tab 4 at 21-66. Therein, she denied all allegations of
unacceptable work product or failure to perform
assigned tasks. Id. On October 24, 2018, pursuant to
38 U.S.C. § 714(e), the agency’s Office of
Accountability and Whistleblower Protection issued
an email notifying the agency that its inquiry into the
appellant’s proposed removal is complete and neither
they nor the Office of Special Counsel will hold the
proposal from proceeding. AF, Tab 4 at 13.
Fleck served as the Deciding Official for the
proposed removal. AF, Tab 4 at 11-12. On October 25,
2018, he issued a Decision sustaining both the charge
of Unacceptable Performance and the penalty of
removal. Id. After considering the evidence of record
and the appellant’s written reply, Fleck sustained
Specification 1 based on examples 1-7, Specification 2
based on examples 1-8, and Specification 3. Id. at 11.
Accordingly, the appellant was removed, effective that
day. Id.
Burdens of proof
Section 714 modifies the traditional preponderance
of the evidence burden of proof standard applied in
App.83a
adverse action appeals before the Board under 5
U.S.C. § 7701. Pursuant to 714(d)(2)(A), an adminis
trative judge must sustain the agency’s decision to
remove, demote, or suspend an employee for more
than 14 days “if the decision is supported by substan
tial evidence.” See 38 U.S.C. § 714(d)(2)(A). Substan
tial evidence “is a deferential standard of review.” See
Inphi Corp. v. Netlist, Inc., 805 F.3d 1350, 1354 (Fed.
Cir. 2015); Adamsen v. Department of Agriculture, 116
M.S.P.R. 331, f 7 and n.4 (2011). The Board defines
substantial evidence as the degree of relevant evi
dence that a reasonable person, considering the record
as a whole, might accept as adequate to support a con
clusion, even though other reasonable persons might
disagree. See 5 C.F.R. § 1201.4(p). The U.S. Court of
Appeals for the Federal Circuit has explained the
“substantial evidence standard determines whether
the decision could reasonably have been made, not
whether it was correctly made.” Merck & Cie v. Gnosis
SPA, 808 F.3d 829, 840 (Fed. Cir. 2015). To sustain an
action based on substantial evidence, there must be
“more than a mere scintilla of evidence,” but a
quantum “less than the weight of evidence” is all that
is required. See Jones v. Department of Health &
Human Services, 834 F.3d 1361, 1366 (Fed. Cir. 2016).
Under this deferential standard, if the record supports
several reasonable, yet contradictory, conclusions, a
decision should not be overturned simply because one
reasonable conclusion was selected over another. See
In re Jolley, 308 F.3d 1317, 1320 (Fed. Cir. 2002).
Section 714 also modifies the issues presented
before the Board for adjudication in appeals of
removals, demotions, and suspensions greater than 14
days. Under chapter 75, the Board must analyze
App.84a
whether the agency’s action promotes the efficiency of
the service and whether the penalty is reasonable. See
Booker v. Department of Veterans Affairs, 110 M.S.P.R.
72, 1J12 (2008) (citing 5 U.S.C. § 7701(c)(1)(B) and
7513(a)). Pursuant to section 714, however, “if the deci
sion of the Secretary is supported by substantial evi
dence, the administrative judge shall not mitigate the
penalty prescribed by the Secretary. ...” See 38
U.S.C. § 714(d)(2)(B). Section 714(a)(1), moreover,
vests the agency with the authority to take such action
if the “Secretary determines the performance or
misconduct [of the employee] warrants such removal,
demotion, or suspension.” See 38 U.S.C. § 714(a)(1).
Thus, the nexus to the efficiency of the service and the
reasonableness of the agency’s imposed penalty, along
with a consideration of mitigating and aggravating
factors under Douglas v. Veterans Affairs, 5 M.S.P.R.
280, 305-06 (1981), is immaterial.
The agency has proven its charge of Unaccept
able Performance
A charge of unacceptable performance requires
the agency demonstrate that the appellant’s perform
ance failed to meet the applicable performance stan
dard. See McGillivray v. Federal Emergency Manage
ment Agency, 58 M.S.P.R. 398, 404 (1993). The agency
must also prove the standard by which it measured
the employee’s performance was both accurate and
reasonable. See Graham v. Department of the Air
Force, 46 M.S.P.R. 227, 235 (1990).
I find the agency has met its burden of proving
the accuracy and reasonableness of the applicable per
formance standards. Cornish and Fleck credibly testi-
App.85a
fied to the standards by which the appellant’s per
formance was measured with respect to each Specif
ication in the proposed removal. AF, Tab 32 and 33
(HCD Vols. 1 and 2). Their testimony was credible
and consistent with the appellant’s written per
formance standards. AF, Tab 11 at 234-40. Nor does
the appellant appear to challenge the accuracy or rea
sonableness of the standards themselves. I further
find she was on clear notice of the standards, as she
received them in her yearly performance plans during
this time period, as well as in Cornish’s April 4, 2018
performance counseling. AF, Tab 11 at 227-33.
Cornish also explained how the appellant was not
meeting her performance standards in that counseling,
as well as in the June 11, 2018 mid-year evaluation.
Id.; see also Id. at 23.
I find the agency met its burden of proving the
appellant failed to meet the established performance
standard for each Specification in the proposed removal.
I address Specifications 1 and 2 together, as the
sustained examples for each specification refer to the
same work assignments. Regarding Specification 1
(Stakeholder Service), I find the agency proved the
appellant failed to appropriately communicate with
both her clients and supervisors when asked to pro
vide legal work with respect to every sustained exam
ple (1-7) and, with respect to Specification 2 (Quality
of Legal Products), I find the agency proved the appel
lant provided substandard work product or, in some
cases, failed to provide any work product for examples
1 and 4-7, as set forth below. I do not address Example
8 of Specification 2 because, though sustained in the .
removal decision, the agency admits the work product
received was appropriate and, therefore, it does not
App.86a
evidence unacceptable performance. AF, Tab 11 at 10
and Tab 32 (HCD, Vol.l).
The documents and testimony of record, including
the appellant’s hearing testimony, evidence the appel
lant’s generally dismissive and purposefully uncooper
ative posture toward Cornish, which was a repetitive
theme throughout the examples of unacceptable per
formance at issue in the removal. I find the appellant’s
unacceptable performance was direct result of her
affirmative choices to resist and refuse to complete
basic assignments, evidenced by her inappropriate
communications with both her supervisors and, at
times, her clients. For examples, as discussed above,
the appellant actively objected to performing a
relatively simply assignment regarding the A-76
memo, to the point that Cornish had to reassign the
work to a junior attorney, who did timely complete the
assignment. Though the appellant eventually pro
vided a memo to Cornish, Cornish had to provide far
more direction than necessary for the assignment and
the final product was incomplete. The agency therefore
proved the appellant’s performance with respect to
that memo failed to meet the Stakeholder Service and
Quality of Legal Products performance standards.
With respect to the VECTOR bid protests assigned
in November 2017, the agency proved the appellant
was disengaged with the client on these matters and
continually attempted to have Cornish reassign the
matters to other employees in anticipation of taking
leave. It further proved the appellant’s communica
tions with the client led to the client’s complaint
about her nonresponsiveness. The appellant alleged
the client’s email did not truly constitute a “com
plaint” and that the client was ultimately satisfied
App.87a
with her work product. However, that a client reached
out to Cornish about her “odd” behavior and “posture
of disengagement,” clearly supports the agency’s
consideration of this email as a “complaint.” I find,
further, that the complaint required Cornish’s sub
stantial intervention in the matter, and only after
that intervention did the appellant complete the
agency’s response to both protests assigned in Novem
ber. The agency has therefore met its burden of
proving the appellant failed to meet the Stakeholder
Service performance standard. As the appellant did
ultimately complete those assignments by filing the
agency’s response to the protests, and the agency
failed to allege insufficiency of those responses, I find
the agency failed to show she did not meet the per
formance standard for Quality of Legal Products
with respect to this example.
With respect to the MSO slides, Cornish and
Fleck credibly testified to the appellant’s shockingly
inappropriate emails chastising a client for requesting
legal advice. AF, Tabs 32 and 33 (HCD, Vols. 1 and 2).
They credibly explained that it was not up to the client
to spot the legal issues for the appellant by
highlighting the procurement-related language. Id.
Rather, it was incumbent upon the appellant to review
all of the slides and spot any procurement-related
legal issues that may have been present therein. Id.
Fleck, in particular, as the deciding official, credibly
testified that he was “stunned” by the appellant’s
behavior regarding this matter and that her emails to
the client were an embarrassment to the PLG. AF,
Tab 33 (HCD, Vol. 2). I credit Cornish and Fleck’s
testimony on this issue, as it is reasonable and firmly
supported by the emails at issue. Hillen v. Department
App.88a
of the Army, 35 M.S.P.R. 453, 458-62 (1987). Even if
Hallmark was attempting to be diplomatic about the
appellant’s criticisms, given the evidence of record,
the appellant’s allegation that Hallmark was not
“complaining” about her stretches all credulity. Id.
Furthermore, the complaint required Cornish to spe
cifically direct the appellant to perform this basic legal
review, which should have been unnecessary. Accord
ingly, the agency met its burden of proving the appel
lant failed to meet the Stakeholder Services per
formance standard with respect to this example. As
the appellant proved she eventually reviewed the
slides as directed, and the agency does not allege that
review was flawed, I find the agency failed to prove
she did not meet the Quality of Legal Products per
formance standard with respect to this example.
Regarding the AMSG matter, I find Cornish
clearly directed the appellant to produce a litigation
memo to include a risk assessment regarding this liti
gation, and the appellant specifically and repeatedly
refused to complete the assignment. She further
refused to provide Cornish with a related summary of
her advice to the client regarding pros and cons of
going forward with litigation or taking corrective
action on the protest, despite Cornish’s clear directive
to do so. I find no evidence the appellant had any rea
sonable basis for failing to complete these assign
ments. Cornish credibly testified that a litigation
memo and risk assessment were entirely appropriate
even if not all of the facts had yet come to light at that
time. AF, Tab 32 (HCD). I find her testimony reason
able and logical, and weigh this more heavily than the
appellant’s arguments to the contrary. Hillen, 35
M.S.P.R. at 458-62. Though the appellant testified
App.89a
that she did not know what a “litigation memo” was, I
find her testimony not credible given the clarity of
Cornish’s instructions and the appellant’s years of
experience as an attorney with litigation duties. Id.
Her testimony in this instance, and generally, evi
denced feigned ignorance about the assignments clearly
given to her and I find her not credible on this point.
Id. I note, further, that her testimony is inconsistent
with her actions at the time, as the appellant did not
seek clarification about the assignment in an effort to
comply with Cornish’s instructions. Rather, her
emails and her testimony evidence that she had no
intention of performing the assignment. It is also
abundantly clear from the emails between the parties
that the appellant actively refused to provide Cornish
with any of her legal assessments regarding this
matter when directed, despite admitting that she
“provided legal strategy and guidance to the client.”
AF, Tab 4 at 36. As such, I do not give credence to the
appellant’s argument that Cornish and Fleck unfairly
held her accountable for the bad outcome in this liti
gation. Rather, it is clear she was held accountable
for her failure to perform assigned duties. Fleck
credibly testified that the appellant’s refusal to
complete this assignment was “astonishing.” AF, Tab
33 (HCD, Vol. 3). Accordingly, I find the agency has
proved she failed to meet the standard of Stakeholder
Service and Quality of Legal Products with respect to
this example.
Regarding the VECTOR Business Clearance
Memorandum, the communications between the parties
clearly depict the appellant’s refusal to perform the
work assigned to her regarding this project. First, the
appellant failed to provide the client with timely
App.90a
comments to the draft document and instead directed
the client to Cornish, who then had to reassign the
matter to McWilliams. Then, the appellant refused
Cornish’s direction to review McWilliams’ comments
with the client in order to finalize the document. The
appellant’s actions caused the Fernandez, in obvious
frustration, to seek clarification from Cornish as to
who he could expect to assist his office with finalizing
the document. I credit Fleck’s candid testimony regard
ing the appellant’s failure to meet her performance
standards regarding this issue, as his disbelief in the
appellant’s behavior was palpable and entirely rea
sonable. AF, Tab 33 (HCD, Vol. 2); see also, Hillen, 35
M.S.P.R. at 458-62.
The appellant alleges it was Cornish who damaged
the relationship with Fernandez. She references a
separate email communication between Cornish and
Fernandez in which he expressed frustration at
Cornish’s request that he send her any work product
the appellant provides him on this issue. AF, Tab 4 at
41. Fernandez determined that Cornish should review
the appellant’s work internally and not bring him into
that process. He further requested to work with only
one PLG attorney on the matter. Id. I find the appel
lant’s arguments do not rebut the agency’s evidence of
unacceptable performance on her part. Regardless of
Cornish’s unorthodox request, if the appellant had
accepted the assignment and performed the work as
directed, in satisfaction of both the Stakeholder
Service and Quality of Legal Products performance
standards, Fernandez would have been unaware of
and had no reason to get involved with internal PLG
personnel matters in this way. Accordingly, I find the
App.91a
agency has met its burden of proof on both Specif
ications regarding this example.
Regarding the SAA Agreements, I find the appel
lant failed to answer the client’s question regarding
these agreements in July 2016 when the request was
first made. Though the appellant testified that she did
respond to the question, and that the January 2018
question was a “different issue,” I find her testimony
not credible and not supported by any credible evi
dence of record. AF, Tab 34 (HCD, Vol. 4); see also,
Hillen, 35 M.S.P.R. at 458-62. The appellant failed to
testify as to what advice she allegedly provided to the
client in 2016, and did not reference any docu
mentation of record supporting her statement. Id.
None of the appellant’s communications regarding
this issue evidence any substantive advice had been
provided. Rather, contemporaneous emails clearly show
the client still attempting to get guidance on its
options for these agreements in January 2018, which
was the precise question it had asked of the appellant
in July 2016. Furthermore, she failed to provide any
substantive information to Calabrese in 2018 when
asked for background about the issue. Accordingly, I
find the appellant failed to respond to the client’s July
2016 request and the agency has met its burden of
proof with respect to both Specifications 1 and 2
regarding this example.
Regarding the POU contract claims, the agency
proved the appellant failed to meet with the client and
assist them with these matters in April 2018 when di
rected to do so. The emails between the parties estab
lish the appellant repeatedly rejected Cornish’s
direction to work on this matter and argued Cornish
should assign the matter to Grant. The emails also
App.92a
establish the appellant actively worked to convince
the client that she would not be able to provide them
with adequate legal services because she lacked
background on the contract at issue and was unavail
able to meet with them in person. Her communica
tions to both Cornish and the client were so egregious
that Cornish eventually reassigned the matter to
Turner, who met with the client and resolved their
issues.
The appellant argues her assignment to this
matter was inappropriate because Grant worked
with the client before and, therefore, should have been
required to take on the current matter. However, I
give more weight to Cornish’s credible testimony,
which the appellant does not rebut, that Grant was
working on a large contract matter during this time
and could not be assigned the POU matter. AF, Tab
32 (HCD, Vol. 1); see also Hillen, 35 M.S.P.R. at 45862. Fleck also credibly testified that the appellant was
assigned the work and simply should have accepted
the assignment regardless" of who had been involved
with the contract in the past. AF, Tab 33 (HCD, Vol.
2). The appellant failed to establish that she or any
other PLG attorney had the ability to pick and choose
her assignments or demand Cornish reassign work to
another attorney. Nor is it reasonable to infer that
from the credible evidence of record. The appellant’s
argument that she was not required to meet with the
client in person is likewise not credible, as she has
failed to establish that her telework agreement
removed that obligation. Hillen, 35 M.S.P.R. at 45862. I find more credible Cornish’s testimony that the
appellant’s telework agreement did not include any
App.93a
such exception, and that all PLG attorneys were re
quired to meet in person with clients where needed. Id.
Accordingly, I find the agency has met its burden of
proof for Specifications 1 and 2 with respect to this
example.
Finally, regarding Specification 3, I find the
agency met its burden of proving the appellant failed
to meet the Timeliness performance standard with
respect to the SAA Agreement matter. As discussed
above, it is clear the appellant failed to provide the
client with any response to its July 2016 question
regarding the structure of these agreements and, as
such, did not meet performance expectations. How
ever, regarding the POU claims, the agency has failed
to prove that the appellant was untimely in per
forming the legal work requested in May or Septem
ber 2017, or that the issues she worked on during that
time were the same issues that the client sought
advice on in April 2018. Rather, Bailey’s email suggests
the client was dealing with multiple, additional
equitable adjustment claims from the same contractor
and needed a broad approach to handling this
increasing problem. Nevertheless, because the agency
proved the appellant’s untimeliness with respect to
the SAA Agreements, I find the agency has met its
burden of proof regarding Specification 3 overall.
As the agency has met its burden of proof with
respect to all Specifications, I likewise find the agency
has proven the alleged unsuccessful performance is
supported by substantial evidence and the charge is
sustained.
App.94a
Affirmative Defenses
The appellant has the burden of proving by a
preponderance of the evidence that the agency’s action
was the result of age discrimination, EEO reprisal,
whistleblower reprisal, and harmful error.
a. Race, Sex, and Age Discrimination and
EEO Reprisal
To establish her affirmative defense, the appel
lant must show her race, sex, age, and/or her protected
EEO activity was a motivating factor in her removal.
See Gardner v. Department of Veterans Affairs, 123
M.S.P.R. 647, U 28 (2016) (citing Savage v. Department
of the Army, 122 M.S.P.R. 612, Tf 51 (2015). The
appellant may satisfy this burden of proof through
direct and/or circumstantial evidence. Id., Tf 30.
The appellant established that she is an AfricanAmerican female over the age of 40, and that she
engaged in protected EEO activity with respect to her
EEO complaint on November 6, 2017. She further
established that Cornish and Fleck were aware of her
EEO activity on the day she filed the complaint, AF,
Tab 21 at 69, and I assume, arguendo that they were
generally aware of her gender, race, and status as over
40 years old. Nevertheless, the appellant failed to
meet her burden of proving any of her protected
characteristics were a motivating factor in her
removal.
The appellant testified that she believed many of
Cornish’s actions in the workplace evidenced discrim
inatory harassment toward her, such as check in
emails, a new telework agreement, counseling notices,
exclusion from a client meeting, a decreased work
App.95a
load, and a “fully successful” performance rating. AF,
Tab 34 (HCD, Vol. 3). She further argued that this dis
criminatory harassment ultimately led to her
removal. Id. I find, however, no evidence of discrimin
atory harassment or that the incidents alleged
otherwise evidence discrimination or reprisal motivated
the appellant’s removal. Cornish credibly testified that
the email check ins were required of all teleworking
employees, as was the updated telework agreement
and its requirement to use a webcam for office
meetings. AF, Tabs 32 and 33 (HCD, Vols. 1 and 2);
see also Hillen, 35 M.S.P.R. at 458-62. Gill-Edmonds’
testimony corroborates her statements. Id. Likewise,
the appellant was not included in a meeting with
SAC-Frederick because the clients had come to the
office in person and simply wanted to meet the indi
viduals present. Cornish credibly testified that she did
not schedule the meeting or set the agenda, and that
it occurred more casually as the client’s sought to meet
available attorneys in person while they were visiting
the office. AF, Tab 32 (HCD, Vol. 1); see also Hillen, 35
M.S.P.R. at 458-62. The appellant does not dispute
that she was teleworking and not in the office that day.
AF, Tab 34 (HCD, Vol. 3). Regarding the appellant’s
performance evaluation and counselings, Cornish
credibly testified to the basis for those actions with
respect to the appellant’s performance and conduct at
the time. AF, Tab 32 (HCD, Vol. 1); see also Hillen, 35
M.S.P.R. at 458-62. I find her testimony consistent
with the emails of record.
The appellant also generally alleges that younger,
white, male colleagues on the litigation team received
more favorable assignments and had more work to do
in general. However, the appellant fails to present
App.96a
credible evidence supporting her allegation. I give
little weight to her and Gill-Edmonds’ testimony to
this matter, as both testified they came to this conclu
sion by considering their own workloads and reviewing
the GCLAWS database to determine other attorney
workloads. AF, Tabs 33 and 34 (HCD, Vols. 2 and 3).
I find neither had specific knowledge of the assign
ments PLG attorneys were handling beyond the
database, and that the database does not present a
comprehensive picture of the workload of each PLG
attorney. Furthermore, as discussed above, the appel
lant frequently refused to perform assignments, and I
find that any decrease in her workload was a direct
result of her own insubordination during this time
period.
I find no evidence that the alleged actions
comprised a discriminatory hostile work environment
that led to the appellant’s removal or otherwise rebut
the agency’s evidence supporting its unacceptable per
formance charge. The appellant presented no evidence
indicating Cornish or Fleck held animus against her be
cause of her protected characteristics, or that they
treated similarly situated employees differently with
respect to these matters or her ultimate removal. Most
important, the appellant, Cornish, and Fleck all
credibly testified that it was the events surrounding
the David Jones protest that caused the relationship
between the appellant and her supervisors to sour.
AF, Tab 32-34 (HCD, Vols. 13). The documentary evi
dence of record further supports their consistent tes
timony, as the appellant began pushing back against
Cornish and refusing work assignments after these
events occurred. These events occurred prior to her
EEO activity. While the appellant alleges the agency
App.97a
unfairly blamed her for the negative outcome of that
case, there is no indication that her protected char
acteristics motivated the agency in any way. Accord
ingly, I find the appellant failed to establish her
affirmative defense of discrimination and EEO reprisal.
b. Whistleblower Reprisal
To establish an affirmative defense of whistle
blower reprisal, the appellant must prove by pre
ponderant evidence: (1) she made a protected disclo
sure under 5 U.S.C. § 2302(b)(8) or engaged in activity
protected by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or
(D); and (2) it was a contributing factor in the person
nel action being appealed. A “Protected Disclosure” is
defined as any disclosure of information that the
employee “reasonably believes evidences (i) any viola
tion of any law, rule, or regulation, or (ii) gross
mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to
public health or safety.” 5 U.S.C. § 2302(b)(8)(A). The
appellant need not prove that one or more of these
types of wrongdoing actually existed; rather, the
appellant must show that the matter disclosed was
one which a reasonable person in her position would
believe evidenced any of the situations specified in 5
U.S.C. § 2302(b)(8). Garst v. Department of the Army.
60 M.S.P.R. 514, 518 (1994). A protected disclosure
includes disclosures of such information to the Special
Counsel, or to the Inspector General of an agency or
another employee designated by the head of an agency
to receive such disclosures. 5 U.S.C. § 2302(b)(8)(B).
“Protected Activity’ under the Act is defined
as:
App.98a
(A) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or
regulation—
(i)
with regard to remedying a violation of
paragraph (8); or
(B) testifying for or otherwise lawfully assisting
any individual in the exercise of any right
referred to in subparagraph (A)(i) or (ii);
(C) cooperating with or disclosing information to
the Inspector General (or any other
component responsible for internal investi
gation or review) of an agency, or the Special
Counsel, in accordance with applicable
provisions of law; or
(D) for refusing to obey an order that would re
quire the individual to violate a law.
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D).
An appellant may show a protected disclosure
and/or protected activity was a contributing factor in
her removal by establishing the “knowledge/timing
test” — i.e., that the official taking the action knew of
the disclosures and took the action within a period of
time such that a reasonable person could conclude
that the disclosure was a contributing factor in the
personnel action. See, e.g., Strader v. Department of
Agriculture, 475 Fed. Appx. 316, 321 (Fed. Cir. 2012).
The appellant may show that the decisionmaker had
either actual or constructive knowledge of the pro
tected disclosure. See Aquino v. Department of
Homeland Security, 121 M.S.P.R. 35, f 19 (2014),
citing Weed v. Social Security Administration, 113
M.S.P.R. 221, f 22 (2010). Constructive knowledge of
App.99a
a protected disclosure may be established where an
individual with actual knowledge of the disclosure
influenced the official accused of taking the retaliatory
action, known as the “cat’s paw” theory. Id., citing
Staub v. Proctor Hospital, 562 U.S. 411, (2011) (“if a
supervisor performs an act motivated by [prohibited]
animus that is intended by the supervisor to cause an
adverse employment action, and if the act is a proxi
mate cause of the ultimate employment action, then
the employer is liable[.]”).
Where the appellant has met this burden of proof,
the agency must prove by clear and convincing evi
dence that it would have taken the same action even
absent the disclosure or protected activity. See Carr v.
Social Security Administration, 185 F.3d 1318, 1322
(Fed. Cir 1999). The following factors are considered:
(1) The strength of the agency’s evidence in support of
its action; (2) the existence and strength of any motive
to retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the
agency takes similar actions against employees who
are not whistleblowers but who are otherwise
similarly situated. Carr u. Social Security
Administration, 185 F.3d 1318,1323 (Fed. Cir. 1999).
I find the appellant failed to prove she made a
protected disclosure under the WPA. The appellant
has shown that on multiple occasions she notified her
management chain that she questioned the PLG’s
stated need to hire additional attorneys for the litiga
tion team because she was lacking enough work for a
full caseload. See, e.g., AF, Tab 15 at 9-12. She has
failed to show, however, that these allegations rose to
the level of protected disclosures. The appellant has
alluded to no law, rule, or regulation that the agency
App.lOOa
has allegedly violated in allegedly leaving her
underutilized while hiring other attorneys, or hiring
GS-15 attorneys. In an email to Hipolit, Hogan, and
the agency’s General Counsel, the appellant makes
vague reference to Fleck having hired attorneys from
the Department of the Army that he had previously
worked with, at a time when she was alleging there
was not enough work to go around in the PLG. Id. at
11. She does not, however, indicate how she believe
Fleck’s actions may have violated any law, rule, or
regulation. Id.
Nor can she establish she had a reasonable belief
of any such violation. The appellant fails to present
credible evidence that the employees worked for or
with Fleck during their time at the Department of the
Army, or, more importantly, that Fleck improperly
selected them for the GS 15 Litigation Team positions
because of that relationship. Nor has she presented
any credible information that they were not qualified
for selection. Rather, both Cornish and Fleck credibly
and consistently testified that the PLG was incredibly
busy with higher-level legal work for the GS-15 attor
neys and that each of the selectees had significant
experience and qualifications for the position. AF,
Tabs 32 and 33 (HCD, Vols. 1 and 2). Hogan further
credibly testified that he verified with the agency’s
human resources staff that all applicable rules were
followed with respect to the GS-15 hires. AF, Tab 33
(HCD, Vol. 2). I find the appellant has failed to
present anything more than unsupported allegations
to the contrary.
To the extent the appellant alleges her com
plaints regarding the additional hires constitute dis
closures of gross mismanagement or waste of funds,
App.lOla
she has failed to present any credible evidence that
she had a reasonable belief the circumstances evi
denced such violations. First, hiring additional per
sonnel does not meet the standard articulated by the
Board for constituting gross mismanagement or gross
waste of funds. See, e.g., White v. Department of the
Air Force, 63 M.S.P.R. 90, 95 (1994) (gross mismanage
ment is a management action or inaction which
creates a substantial risk of significant adverse impact
upon the agency’s ability to accomplish its mission)
and Van Ee v. Environmental Protection Agency, 64
M.S.P.R. 693, 698 (1994) (gross waste of funds is a
more than debatable expenditure that is significantly
out of proportion to the benefit reasonably expected to
accrue to the government).
Second, the appellant did not have a reasonable
belief that she disclosed such circumstances, as her
allegations are based on her own workload without
any real knowledge of what other employees were
working on during that time period. It is undisputed
that the appellant did not personally come to the office
more than two times during the years at issue in this
appeal. AF, Tabs .32 and 34 (HCD. Vols. 1 and 3). She
and Gill-Edmonds testified they could see work being
assigned to other attorneys by reviewing entries in
GCLAWS. AF, Tabs 32 and 33 (HCD, Vols. 2 and 3).
However, Fleck credibly testified that one could not
ascertain how complex or time consuming particular
matters were. AF, Tab 33 (HCD, Vol. 2). Gill-Edmonds
also credibly testified that the Litigation Team attor
neys’ work assignments were listed on a different
section of the GCLAWS database, which she did not
review. Id. She further testified that the shift in
workload with the creation of the litigation team in
App.l02a
late-2016 and early-2017 had been “temporary.” Id.
This testimony is consistent with Hipolit’s credible
testimony that PLG attorney workloads often ebbed
and flowed, and that he believed the appellant’s
workload complaints were partially a function of that
fluctuation. Id.
More importantly, I find the appellant’s workload
was lighter during this time period because she
continually refused to perform assigned work, or gen
erally made it difficult for her supervisors to assign
her anything. At first, in or around August and Sep
tember 2017, the appellant refused work assignments
because she stated she was very busy working on the
VECTOR contract issues. AF, Tab 33 (HCD, Vol. 3).
Shortly thereafter, on October 31, 2017, the appellant
first complained that she was not being assigned
enough work due to new employee hires. AF, Tab 21
at 95. However, only two weeks later, on November
14, 2017, she repeatedly attempted to refuse the
VECTOR bid protest assignments, as discussed in
detail above. The appellant’s continued complaints
regarding her light caseload throughout 2018 occurred
duringjthe same time period as her adamant refusals
to perform the work assigned to her, as discussed
above. Furthermore, her complaints do not comport
with her statement in April 2018, when protesting her
assignment to the VECTOR BCM review, that the
AMSG litigation matter took up all of her time and
required her to work beyond her regular duty hours.
AF, Tab 11 at 166.1 find the appellant’s testimony on
these matters not credible and afford it little weight.
Hillen, 35 M.S.P.R. at 458-62. Accordingly, I find the
appellant failed to establish she had a reasonable
belief that her complaints evidenced gross
App.l03a
mismanagement, gross waste of funds, a violation of
law, rule, or regulation, or any other protected disclo
sure. At best, her questioning of the agency’s hiring
decisions constitutes a policy disagreement and are
not considered protected disclosures under the WPA.
5 U.S.C. § 2302(a)(2)(D).
The appellant further alleges she engaged in pro
tected activity under 5 U.S.C. § 2302(b)(9)(C) when she
filed a complaint with the Inspector General (IG)
regarding the attorney hires in May 2018 and a
similar complaint with the Office of Special Counsel
(OSC) in September 2018. AF, Tab 15 at 8. Accordingly,
I find she engaged in protected activity with respect to
these complaints. I find, however, the appellant failed
to establish Cornish was aware of either complaint
prior to issuing the proposed removal. Cornish
credibly testified that she had not been contacted
about the IG complaint and had no other knowledge
of the issue. AF, Tab 32 (HCD, Vol. 1). Regarding the
OSC complaint, she credibly testified that she was
aware of the complaint because a decision on her
proposed removal could not be issued until the agency’s
whistleblower office cleared the action. AF, Tab 32
(HCD, Vol. 1). The appellant failed to present evidence,
however, that Cornish was aware of the complaint
prior to issuing the proposal notice. Id. Accordingly,
Cornish could not have been motivated by either com
plaint in issuing the proposed removal.
Regarding Fleck’s removal decision, Fleck credibly
testified that he was aware of an IG complaint
regarding the GS-15 hires but unaware until the
instant appeal (after the appellant’s removal) that it
was the appellant who filed it. AF, Tab 33 (HCD, Vol.
2). The appellant has established Fleck was aware of
App.l04a
the appellant’s OSC complaint prior to issuing his
decision on the removal, as he was copied on email
communications between the agency’s legal counsel
and the agency’s Office of Accountability and Whistle
blower Protection confirming the appellant filed the
complaint. AF, Tab 4 at 13-18. These emails, however,
provide no substantive informat
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