Petition for Writ of Certiorari — Karin Weng, Petitioner v. Julie A. Su, Acting Secretary of Labor

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APPENDIX

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TABLE OF APPENDICES

Page

APPENDIX A - D.C. Circuit Order,

April 1, 2024.........................................

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APPENDIX B - District Court Opinion,

March 28, 2023.....................................

4a

APPENDIX C - D.C. Circuit Order,

August 12, 2024..................................

27a

APPENDIX D - D.C. Circuit Order,

August 12, 2024..................................

28a

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-5117

Filed On: April 1, 2024

KARIN WENG,

Appellant,

v.

JULIE A. SU,

Acting Secretary of Labor,

Appellee.

BEFORE: Millett, Pillard, and Wilkins, Circuit

Judges BEFORE: Millett, Pillard, and Wilkins,

Circuit Judges

ORDER

Upon consideration of the motion for summary

affirmance, the opposition thereto, and the reply, it is

ORDERED that the motion be granted. The

merits of the parties’ positions are so clear as to

warrant summary action. See Taxpayers Watchdog.

Inc, v. Stanley. 819 F.2d 294, 297 (D.C. Cir. 1987) (per

curiam). First, the district court correctly determined

that appellant failed to administratively exhaust her

claims of discriminatory termination on the basis of

race, sex, or national origin. See Payne v. Salazar. 619

F.3d 56, 65 (D.C. Cir. 2010) (“Title VII complainants

must timely exhaust their administrative remedies

before bringing their claims to court.” (quotation

marks and brackets omitted)). Although appellant

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emphasizes that she pursued claims through a

negotiated grievance process, she fails to demonstrate

that she sufficiently raised in that process her claims

that her termination was motivated by her race, sex,

or national origin.

Next, the district court correctly concluded that

appellee had presented a legitimate, non-retaliatory

reason for appellant’s termination:

namely,

appellant’s poor work performance. See Figueroa v.

Pomneo. 923 F.3d 1078,1086-88 (D.C. Cir. 2019). And

the district court correctly concluded that appellant

had not provided sufficient evidence for a reasonable

jury to find that appellee’s stated reason was pretext

for retaliation. See Hairston v. Vance-Cooks. 773 F.3d

266, 272 (D.C. Cir. 2014). Appellant’s own opinion of

her performance is inadequate to create a genuine

dispute for a factfinder. See Walker v. Johnson. 798

F.3d 1085, 1094 (D.C. Cir. 2015). To the extent

appellant attempts to rely on comparator evidence,

she has not demonstrated “that all of the relevant

aspects of [her] employment situation were nearly

identical to those” of the comparators she proffered.

See Burley v. Nat’l Passenger Rail Corn.. 801 F.3d

290, 301 (D.C. Cir. 2015) (internal quotation marks

omitted). None of appellant’s other arguments

demonstrates that she “produced sufficient evidence

for a reasonable jury to find” that appellee’s “nonretaliatory reason was not the actual reason and that

the employer intentionally . .. retaliated against” her.

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

(internal punctuation omitted).

Finally, appellant has not demonstrated that the

district court abused its discretion by stating in its

March 9, 2023 order that appellant was permitted,

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but not required, to supplement her summary

judgment briefing after this court had reversed a

district court ruling and remanded for further

proceedings.

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

will not be published. The Clerk is directed to

withhold issuance of the mandate herein until seven

days after resolution of any timely petition for

rehearing or petition for rehearing en banc. See Fed.

R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

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APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 15-cv-504-ZMF

Filed On: March 28, 2023

KARIN WENG,

Plaintiff,

v.

THOMAS E. PEREZ,

Former U.S. Secretary of Labor,

Defendant.

MEMORANDUM OPINION

On March 9, 2012, the U.S. Department of Labor

(“DOL” or “Defendant”) terminated Plaintiff Karin

Weng (“Ms. Weng” or “Plaintiff’) for deficient

performance. After an administrative proceeding

before the Merit Systems Protection Board (“MSPB”),

Ms. Weng sued the DOL^ for violations of Title VII of

the Civil Rights Act of 1964 (“Title VII”), alleging

discrimination on the basis of race, national origin,

and sex, as well as retaliation for protected Equal

Employment Opportunity (“EEO”) activity.

Pending before the Court are Plaintiffs Motion for

Ruling on Outstanding Issues in Defendant’s Motion

for Summary Judgment, ECF No. 93, and Defendant’s

Motion for Summary Judgment, ECF No. 72, which

1 When Plaintiff filed this suit, Thomas E. Perez served as the

Secretary of Labor. Now, Acting Secretary of Labor Julie Su is

the proper defendant in this case. See 42 U.S.C. § 2000e-16(c).

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require the resolution of two issues: (1) whether

Plaintiff exhausted the administrative remedies for

her Title VII claims and (2) whether “[Defendant had

a legitimate, non-discriminatory reason for [her]

removal.” For the reasons stated herein, the Court

DENIES AS MOOT Plaintiffs Motion and GRANTS

Defendant judgment as a matter of law.

I. BACKGROUND

A. Factual Background

1. Alleged Discrimination, EEO Activity, and

First Litigation

Ms. Weng is a Taiwanese-American woman who,

from 1995 to 2012, worked for DOL’s Employee

Benefits Security Administration as an Employee

Benefits Law Specialist, GS-13,2 in the Office of

Exemption Determinations (“OED”). See Weng v.

Walsh, 30 F.4th 1132, 1133-34 (D.C. Cir. 2022);

Compl. U 3, ECF No. 1. Plaintiff alleges that,

throughout her employment, members of DOL

management subjected her to “offensive racial, ethnic,

and/or sexually charged slurs, comments, and jokes [.]”

Id. at 1134. Yet, Ms. Weng “never received a negative

performance evaluation, nor any formal counseling or

discipline, from 1995 to 2005.” Id. (cleaned up). In

2004, Eric Raps (a white man) became Ms. Weng’s

first-line supervisor, while Lyssa Hall (a Black

woman) served as Ms. Weng’s second-line supervisor.

2 The DOL largely pays employees on the General Schedule

(“GS”) pay scale, which has fifteen levels. See Salary Table 2023GS,

OPM.GOV,

https://www.opm.gov/policy-dataoversight/payleave/salaries-wages/salarytables/pdf/2023/GS.pdf.

6a

See Order Den. Pl.’s Mot. Leave to File Third Am.

Compl. & Granting Def.’s Mot. Summ. J. (“2020

Summ. J. Order”) 3, ECF No. 83; Second Am. Compl.

16-17, ECF No. 38. In the three years following

Mr. Raps’ transfer, three female employees—

including Ms. Weng—filed EEO complaints against

him alleging discrimination and retaliation. See

Second Am. Compl. f 19. Ms. Weng also served as a

witness in her colleagues’ employment discrimination

proceedings, after which, she alleges, “the harassment

against her escalated[.]” See Weng, 30 F.4th at 1134.

Specifically, Ms. Weng alleges that DOL management

subjected her to “unjustified criticism of her work

product, unreasonable operating procedures, false

charges of misconduct, and false accusations of failing

to make sufficient progress[.]” Second Am. Compl.

41. In 2006, Ms. Weng began filing EEO complaints

regarding her working conditions. See Weng, 30 F.4th

at 1134. “This harassment and retaliation, Plaintiff

claims, caused great stress leading to a diagnosis of

post-traumatic stress disorder, depression, and

anxiety, for which Plaintiff also alleges DOL failed to

accommodate.” 2020 Summ. J. Order at 2.

Between February 2006 and April 2009, Ms. Weng

filed seven EEO complaints regarding her workplace

treatment. See Order Granting Part & Den. Part

Def.’s Mot. J. Pleadings & Den. Pl.’s Cross-Mot.

Partial J. Pleadings (“2019 Order”) 6-7, ECF No. 60.

These complaints formed the basis of her first federal

case, Weng v. Solis (Weng I), 960 F. Supp. 2d 239

(D.D.C. 2013). There, Ms. Weng pointed to Mr. Raps’

and Ms. Hall’s conduct to allege discrimination on the

bases of race, national origin, and sex, as well as

retaliation. See id. That suit was settled in 2013. See

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Stipulation Settlement & Dismissal 1, Weng I, No. 10cv-2051 (D.D.C. Nov. 28, 2013), ECF No. 45.

2. Deterioration of Performance, Performance

Improvement Plan, and Termination

Ms. Weng alleges that, while Weng I was pending,

her treatment at work worsened. See 2019 Order at 7.

She claims that her supervisor subjected her to

“micromanag[ement],” “heightened scrutiny,” and

“unjustifiabl[e] criticism].” Id. Ms. Weng continued to

file complaints regarding the purportedly harassing

conduct: in 2011, she filed sixteen such complaints

against Mr. Raps. See Second Am. Compl. ]f 78.

Around this time, Ms. Weng’s performance reviews

deteriorated. On April 15, 2011, Mr. Raps conducted

Ms. Weng’s mid-year review for FY 2011 and informed

her that “her performance was at an unacceptable

level for four critical elements of her position.” 2020

Summ. J. Order at 3. On July 15, 2011, Mr. Raps

placed Ms. Weng on a Performance Improvement Plan

(“PIP”), set to run from July 18 to October 17, 2011.

See Def.’s Mot. Summ. J., Ex. 1, Mem. Re:

Performance Improvement Plan (“PIP Mem.”) 1,

ECF No. 72-2. The PIP described Ms. Weng’s

“Unsatisfactory” performance in four critical elements

of her role, and stated that her performance “must be

at a ‘Minimally Satisfactory’ (Need to improve) level

to maintain [her] current position,” and that “a rating

of ‘Unsatisfactory’ (Fail to meet) in one or more of the

critical elements at the conclusion of the PIP may

result in reassignment, reduction-in-grade or

removal [.]” Id.

“According to her supervisors, Plaintiff failed to

sufficiently improve during the PIP timeframe.” 2020

Summ. J. Order at 4. On January 6, 2012, Mr. Raps

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issued a Notice of Proposed Removal, which outlined

Ms. Weng’s “unacceptable performance pertaining to

four of the [five] elements” by which she was

evaluated. Def.’s Mot. Summ. J., Ex. 2, Mem. Re:

Proposal to Remove for Unacceptable Performance

(“Notice of Proposed Removal”) 2, ECF No. 72-3.

According to Defendant, Ms. Weng failed to improve

her performance despite weekly meetings with Mr.

Raps during which he provided “continuous feedback.”

Id. at 3. On March 7, 2012, Ms. Hall approved Mr.

Raps’ proposed removal. See Def.’s Mot. Summ. J., Ex.

6, Mem. Re: Decision on Proposed Removal (“Decision

on Proposed Removal”) 2, ECF No. 72-7. Ms. Hall’s

decision was “based on [Ms. Weng’s] inability to

perform at the minimum level of performance in one

or more of the critical elements” of her role. Id. On

March 9, 2012, Ms. Weng resigned on the advice of

union counsel but did not waive her appeal rights. See

Def.’s Mot. Summ. J., Ex. 8, Email Re: Resignation 2,

ECF No. 72-9.

B. Procedural History

On March 13, 2012, Ms. Weng invoked the

negotiated procedure set forth by her union’s

collective bargaining agreement and filed a grievance

regarding her termination. See 2019 Order at 8; Def.’s

Mot. Summ. J., Ex. 9, Agreement Between Local 12,

AFGE, AFL-CIO and U.S. Dep’t of Labor 3-4, ECF

No. 72-10. On March 4, 2013, an arbitrator ruled that

he did not have jurisdiction because Ms. Weng had

resigned voluntarily, rather than being fired. See 2019

Order at 8; Second Am. Compl.

8. Ms. Weng

appealed to the MSPB. See 2019 Order at 8. On

August 28, 2014, an administrative judge dismissed

her grievance for the same reason. See Def.’s Mot.

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Summ. J. or Alternatively, Mot. J. on Pleadings, Ex 2,

MSPB Decision 1, ECF No. 41-2. On April 7, 2015, Ms.

Weng filed the instant action, alleging Title VII claims

of discrimination and retaliation. See Compl.

On May 15, 2020, Defendant moved for summary

judgment. See Def.’s.Mot. Summ. J. On July 8, 2020,

Judge Rothstein granted Defendant’s motion, holding

that Ms. Weng’s settlement agreement from Weng I

barred her termination claims. See Weng u. Scalia,

No. 15-cv-504, 2020 WL 3832950, at *7 (D.D.C. July

8, 2020). On August 24, 2020, Ms. Weng appealed to

the U.S. Court of Appeals for the D.C. Circuit. See

Notice of Appeal, ECF No. 85. On April 8, 2022, the

D.C. Circuit ruled that Ms. Weng’s settlement

agreement did not bar her Title VII claims. See Weng,

30 F.4th at 1137-38. The D.C. Circuit remanded to

this Court to consider whether Ms. Weng’s grievance

“preserved the [Title VII] claims [that Plaintiff]

advances in this litigation.” Id. at 1133. On June 2,

2022, the parties consented to proceed before a

magistrate judge for all purposes. See Notice,

Consent, & Reference of Civil Action to Magistrate

Judge, ECF No. 92.

Ms. Weng is currently appearing pro se. See Letter

Re: Weng v. Secretary of Labor, Civil Action No. 15504, ECF No. 98. However, she has at times had the

assistance of counsel. The union’s contract attorney

Charles B. Taylor represented Ms. Weng during the

initial administrative proceedings. See Pl.’s Opp’n to

Def.’s Mot. Summ. J. (“Pl.’s Opp’n”) 8, ECF No. 76. Mr.

Taylor “had substantial input into her removal

grievance,” the specificity of which is central to Ms.

Weng’s exhaustion arguments. Id. And Ms. Weng is

by no means an unsophisticated plaintiff, holding

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degrees from Yale College and the Georgetown

University Law Center and previously working in a

law-adjacent role as an Employee Benefits Law

Specialist. See PL’s Opp’n at 2, 3.

II. LEGAL STANDARD

To succeed on a motion for summary judgment, the

moving party must show that “there is no genuine

dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A fact is material if it ‘might affect the

outcome of the suit under the governing law,’ and a

dispute ... is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the

nonmoving party.’” Steele v. Schafer, 535 F.3d 689,

692 (D.C. Cir. 2008) (quoting Anderson u. Liberty

Lobby, Inc., All U.S. 242, 248 (1986)). The moving

party bears the initial burden of demonstrating that

there is no genuine dispute of material fact. See

Celotex Corp. u. Catrett, All U.S. 317, 323-24 (1986).

If the moving party meets this burden, the nonmoving

party must identify “specific facts showing that there

is a genuine issue for trial.” Id. at 324 (quoting Fed. R.

Civ. P. 56(e)).

In evaluating motions for summary judgment, the

Court must review all evidence in the light most

favorable to the nonmoving party and draw all

inferences in the nonmoving party’s favor. See Tolan

v. Cotton, 572 U.S. 650, 656-57 (2014) (per curiam).

In doing so, the Court must not assess credibility or

weigh the evidence. See Barnett v. PA Consulting

Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013).

However, the nonmoving party “may not merely point

to unsupported self-serving allegations, but [rather]

must substantiate his allegations with sufficient

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probative evidence[.]” Reed v. City of St. Charles, 561

F.3d 788, 790 (8th Cir. 2009) (quoting Bass v. SBC

Commc’ns, Inc., 418 F.3d 870, 872-73 (8th Cir. 2005)).

A genuine issue for trial must be supported by

affidavits, declarations, or other competent evidence.

See Fed. R. Civ. P. 56(c). If the nonmoving party’s

evidence “is merely colorable or is not significantly

probative, summary judgment may be granted.”

Liberty Lobby, 477 U.S. at 249-50 (cleaned up).

Because Ms. Weng is proceeding pro se, her

pleadings should “be liberally construed, and ... must

be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (cleaned up). But the calculus

changes where a plaintiff is “a sophisticated pro se

litigant[.]” Garlington v. D.C. Water & Sewer Auth.,

303 F.R.D. 417, 419 (D.D.C. 2014) (dismissing pro se

plaintiffs case for failure to follow court order, as

plaintiff was “an attorney .. . having practiced law for

several years”); see also Jeffers v. New York, No. 14cv-5659, 2014 WL 6675676, at *1 (E.D.N.Y. Nov. 25,

2014) (holding a pro se plaintiffs experience and

sophistication is “one factor that courts have

considered in evaluating the conduct of a party”).

Regardless, the “procedural rules in ordinary civil

litigation should [not] be interpreted so as to excuse

mistakes by those who proceed without counsel.”

McNeil v. United States, 508 U.S. 106, 113 (1993).

Courts “should [provide pro se parties] with fair

notice of the requirements of the summary judgment

rule” before entering summary judgment. Hudson v.

Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968) (per

curiam). On March 9, 2023, this Court issued an

Order advising Plaintiff on the summary judgment

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standards and the consequences of “failure to respond

appropriately to Defendant’s Motion[.]” Order, ECF

101. On March 17, 2023, Ms. Weng filed a response to

this order. See Pl.’s Suppl. Briefing in Opp’n Def s Mot.

Summ. J., ECF No. 102. Ms. Weng’s response

“supplement [ed] her briefing on the issue of pretext”

by submitting a revised declaration addressing

Defendant’s statement of undisputed material facts.

Id. at 2. Defendant did not file a response, having

previously indicated that all issues “could be

adequately decided on the previously-submitted

briefing[.]” Def.’s Resp. to Pl.’s Mot. for Order, ECF

No. 97.

III. DISCUSSION

A. Whether Plaintiff Exhausted her

Administrative Remedies

1. Legal Standard for Exhaustion

“Government employees alleging discrimination in

violation of Title VII . . . must exhaust [their]

administrative remedies before bringing their claims

to federal court.” Hamilton u. Geithner, 666 F.3d 1344,

1349 (D.C. Cir. 2012). To satisfy this requirement, a

Title VII lawsuit must be “limited in scope to claims

that are like or reasonably related to the allegations”

in the initial grievance. Park v. Howard Univ., 71 F.3d

904, 907 (D.C. Cir. 1995) (cleaned up). “At a minimum,

the Title VII claims must arise from the

administrative investigation that can reasonably be

expected to follow the [prior] charge,” id. (cleaned up),

such that “the allegations that were specifically put

before the agency” are “factually similar” to the new

allegations, Mount v. Johnson, 36 F. Supp. 3d 74, 8586 (D.D.C. 2014).

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2. Title VII Discrimination Claims

Ms. Weng failed to articulate “factually similar”

allegations of discrimination in her initial grievance

and her subsequent Title VII complaint. Id. at 86. Her

grievance

makes

no

factual

reference

to

discrimination on the basis of race, national origin, or

sex. See Def.’s Mot. Summ. J., Ex. 10, Dep’t of

Labor/AFGE Local 12 Grievance Form (“Grievance”)

2-5, ECF No. 72-11. Rather, the “[u]nderlying facts of

[Plaintiffs] grievance” focus on the deterioration in

her performance evaluations and treatment, which

she attributes to her testimony at a colleague’s EEO

proceeding. See id. at 2. The grievance lacks any

reference to specific discriminatory conduct to underly

her broad assertion that “she was subjected to

harassment, disparate treatment, reprisal, and

retribution,” and that her “supervisors engaged in a

sustained and carefully orchestrated campaign of

intimidation, harassment, and disparate treatment.”

Id. “Because [Plaintiffs] charge contained no claims

or factual allegations that could reasonably be

expected upon investigation to lead to a

[discrimination] claim, . . . she failed to exhaust her

administrative remedies for such a claim [.]” Park, 71

F.3d at 909; see Grievance at 2.

The reference to discrimination in Ms. Weng’s

grievance was “background information” that “the

fact-finder may consider[.]” Uzlyan u. Solis, 706 F.

Supp. 2d 44, 54 (D.D.C. 2010); see Grievance at 4.

However, “[e]ven though [Plaintiff] uses the word

‘discriminatory,’ the substance of the [grievance] does

not allege any discrimination on the basis of race,

color, [sex], or national origin.” Hunter v. District of

Columbia, 905 F. Supp. 2d 364, 379 (D.D.C. 2012),

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affd, No. 13- cv-7003, 2013 WL 5610262, at *1 (D.C.

Cir. Sept. 27, 2013); see Grievance at 6. Without this,

her subsequent Title VII claim was not sufficiently

“factually similar” to the grievance. Mount, 36 F.

Supp. 3d at 86. “Allowing [Ms. Weng’s] complaint to

encompass allegations outside the ambit of the

predicate [grievance]” by expanding the charged

conduct to discrimination “would circumvent the

[MSPB’s] investigatory . . . role[ and] deprive

[Defendant] of notice of the charge[.]” Marshall v. Fed.

Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997)

(cleaned up).

Ms. Weng separately contends that her grievance

sufficiently articulated her Title VII claims by

explicitly invoking the Civil Rights Act of 1964, as well

as 5 U.S.C. § 2302, which incorporates references to

Title VII. See Pl.’s Opp’n at 9-10; Grievance at 1.

However, a mere reference to anti-discrimination

statutes “in the absence of an explanation of whether

[the conduct] constitutes discrimination in violation of

[those statutes]” is “insufficient” to support a claim.

Gibbs v. Wash. Metro. Area Transit Auth., 48 F. Supp.

3d 110, 133 n.8 (D.D.C. 2014) (holding use of the word

“bias” in description of supervisor insufficient to

substantiate Title VII claim).

Ms. Weng’s pro se status does not excuse her

failure to exhaust her administrative remedies. See

Park, 71 F. 3d at 907. The administrative exhaustion

requirement “should not be construed to place a heavy

technical burden on individuals [such as pro se

litigants] untrained in negotiating procedural

labyrinths[.]” Id. (cleaned up). However, the absence

of any discussion of discrimination in Plaintiffs

grievance was neither a technical misstep nor a mere

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“vaguely worded charge[.]” Caldwell v. ServiceMaster

Corp., 966 F. Supp. 33, 49 (D.D.C. 1997). Ms. Weng’s

Title VII discrimination claims cannot be so

“liberal[ly] interpret[ed]” as “to bypass the Title VII

administrative process.” Park, 71 F.3d at 907.

Moreover, Ms. Weng was not appearing pro se when

she drafted her initial grievance. Her union’s contract

attorney “represented [her] at the administrative

level” and “had substantial input into her removal

grievance.” Pl.’s Opp’n at 8. Furthermore, Ms. Weng

“is a sophisticated pro se litigant [with a law degree],

well-versed in litigation and the rules of this [C]ourt;

indeed, she has prosecuted [multiple] cases before this

[C]ourt.” Akers v. Liberty Mut. Grp., 847 F. Supp. 2d

21, 27 (D.D.C. 2012); see Weng I, 960 F. Supp. 2d at

239; Second Am. Compl. ^ 10.

3. Title VII Retaliation Claim

Title VII prohibits an employer from retaliating

against an employee “because [s]he has opposed any

practice made an unlawful employment practice by

[Title VII]” or “made a charge, testified, assisted, or

participated in any manner in an investigation,

proceeding, or hearing under [Title VII].” 42 U.S.C. §

2000e-3(a). “The role of the antiretaliation provision

is to prevent ‘employer interference with unfettered

access to Title VU’s remedial mechanisms.’”

Chambers v. District of Columbia, 35 F.4th 870, 877

(D.C. Cir. 2022) (quoting Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006)).

Ms. Weng’s “allegations . . . before the agency” are

“factually similar” to the Title VII retaliation claim in

her complaint. Mount, 36 F. Supp. 3d at 85—86; see

Grievance at 2; Second Am. Compl. ^ 2. Ms. Weng’s

grievance alleges that DOL management “subjected

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[her] to harassment, disparate treatment, reprisal,

and retribution for [testifying in a proceeding that

concluded] Mr. Raps had committed an unfair labor

practice.” Grievance at 2. DOL management

evaluated Ms. Weng as “highly effective” in 2005. See

id. But roughly forty-five days after her testimony at

the 2006 proceeding, Ms. Weng learned that “she was

allegedly failing to perform at an acceptable level of

competence.” Id. Because her complaint properly drew

upon the allegations of the predicate grievance, Ms.

Weng gave Defendant sufficient notice of the

retaliation charge. See Marshall, 130 F.3d at 1098.

Thus, Ms. Weng exhausted the administrative

remedies for her retaliation claim. See id.

B. Whether Plaintiffs Termination Constituted

Retaliation in Violation of Title VII

1. Legal Standard for Retaliation

If a plaintiff cannot provide direct evidence of

retaliation, the Court will assess the claims under the

framework of McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). First, the employee must make out a

prima facie case of retaliation by showing that she (1)

“engaged in statutorily protected activity,” (2)

“suffered a materially adverse action by [the]

employer,” and (3) that “a causal link connects the

two.” Iyoha v. Architect of Capitol, 927 F.3d 561, 574

(D.C. Cir. 2019). Next, the burden shifts to the

employer to articulate a legitimate, non-retaliatory

justification for its action. See McGrath v. Clinton, 666

F.3d 1337, 1383 (D.C. Cir. 2012). If the employer

makes this showing, then “the burden-shifting

framework disappears.” Carter v. George Washington

Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). The “central

inquiry” becomes “whether the plaintiff produced

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sufficient evidence for a reasonable jury to find that

the employer’s asserted [non-retaliatory] reason was

not the actual reason and the employer intentionally

[retaliated] against the plaintiff on a prohibited

basis.” Iyoha, 927 F.3d at 566 (quoting Adeyemi u.

District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir.

2008)). In other words, the employee must

demonstrate “pretext.” Jones u. Bernanke, 557 F.3d

670, 679 (D.C. Cir. 2009).

2. Defendant’s Legitimate and Non-Retaliatory

Justification

When the employer properly presents a legitimate,

non-retaliatory reason for the challenged action, the

district court “need not—and should not—decide

whether the plaintiff actually made out a prima facie

case.” Brady u. Off. of Sergeant at Arms, 520 F.3d 490,

494 (D.C. Cir. 2008). Because Defendant asserted

legitimate, non-retaliatory reasons for the challenged

actions—as described below—the Brady shortcut

applies. See Barry v. Haaland, No. 19-cv-3380, 2022

WL 4598518, at *6 (D.D.C. Sept. 29, 2022), appeal

filed, No. 19-cv-3380 (D.D.C. Oct. 7, 2022), ECF No.

62; Notice of Proposed Removal at 6—8, 12-14, 17-20.

Thus, the Court will proceed to the second step.

Four factors are “paramount in the analysis” of

whether an employer has met its burden to articulate

a legitimate, non-retaliatory justification for its

action: (1) the employer must produce admissible

evidence; (2) “the factfinder, if it believe[s] the

evidence, must reasonably be able to find that the

employer’s action was motivated by a [nonretaliatory]

reason; (3) the employer’s justification must be

“facially credible in light of the proffered evidence;”

and (4) the employer must provide a “clear and

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reasonably specific explanation” for its action.

Figueroa v. Pompeo, 923 F.3d 1078,1087-88 (D.C. Cir.

2019) (cleaned up).

First, Defendant has “made an adequate

evidentiary proffer . . . that the Court may consider at

summary judgment,”

detailing Ms.

Weng’s

unsatisfactory performance in several critical

elements of her role. Arnoldi v. Bd. of Trs., 557 F.

Supp. 3d 105, 115 (D.D.C. 2021) (cleaned up).

Defendant’s evidentiary proffer included: Ms. Weng’s

PIP and the accompanying memorandum describing

the evaluations that called for it; Ms. Weng’s proposed

and finalized removal, which describe her

shortcomings during her PIP; and rebuttals to Ms.

Weng’s proposed comparators.3 This all is admissible

evidence. See id. (holding “deposition testimony,

supporting emails,

and

[employer]

records”

sufficient), describe her shortcomings during her PIP;

and rebuttals to Ms. Weng’s proposed comparators.3

This all is admissible evidence. See id. (holding

“deposition testimony, supporting emails, and

[employer] records” sufficient).

3 See, e.g., Def.’s Mot. Summ. J. at 27-28 (identifying and

countering potential comparators); Def.’s Statement of

Undisputed Facts 4-7, ECF No. 72-1 (summarizing Plaintiffs

analysis and communications deficiencies on specific

assignments); PIP Mem. at 1-2 (discussing Plaintiffs failure in

critical elements of job, including communication, technical

guidance, and customer service); Notice of Proposed Removal at

6—8, 12-14, 17—20 (overviewing performance failures on specific

assignments that led to unsatisfactory performance on PIP);

Decision on Proposed Removal at 2—5 (noting Plaintiffs alleged

submission of incomplete work product, failure to identify salient

issues, and requests for information she already possessed).

19a

factfinder

reviewing

[the

“[a]

Second,

documentation around Ms. Weng’s PIP and

subsequent removal] could believe the evidence and

reasonably conclude that [Defendant] was motivated

by the nondiscriminatory reasons described in its

[memoranda].” Clinton v. Granholm, No. 18-cv-991,

2021WL 1166737, at *8 (D.D.C. Mar. 26, 2021) (citing

notice of and decision on proposed removal). During

her mid-year review for FY 2011, Ms. Weng’s

“performance was at an unacceptable level... in four

critical elements” of her position. Notice of Proposed

Removal at 1. This led to her placement on a PIP. See

PIP Mem. at 1. The PIP detailed Ms. Weng’s

“Unsatisfactory” performance in these critical

elements and required that her performance rise to “a

‘Minimally Satisfactory’ (Need to improve) level to

maintain [her] current position.” Id. The PIP also

warned that “Unsatisfactory” ratings “in one or more

of the critical elements at the conclusion of the PIP

may result in reassignment, reduction-in-grade or

removal.” Id. Nevertheless, Ms. Weng’s performance

on her PIP, as Defendant tells it, reflected her

“incomplete, haphazard preparation and background

work[,] as well as the failure to follow [] work

expectations^]” Notice of Proposed Removal at 6. The

Notice of Proposed Removal details how Ms. Weng

failed to submit follow-up questions promtly [sic],

sought information that she already possessed, and

was unable “to correctly analyze the relevance” of

certain facts. Id. at 7; see id. 6- 8. The Notice of

Proposed Removal also details how Ms. Weng

generally deviated from the instructions of the PIP.

See id. at 6-8. “Time and again, courts have held that

failure to follow supervisory instructions is a

legitimate reason for adverse employment action,

20a

including termination.” Arnoldi, 557 F. Supp. 3d at

115.

Third, “the substantial evidence of [Ms. Weng’s]

substandard performance during [her] tenure” and

her PIP “render[] [Defendant’s] nondiscriminatory

explanation for [terminating her] facially credible.”

Williams v. Smithsonian Inst., No. 14-cv-1900, 2019

WL 3859155, at *8 (D.D.C. Aug. 16, 2019). Ms. Weng’s

first- and second-line supervisors (Mr. Raps and Ms.

Hall)

both

approved her PIP

based

on

“Unsatisfactory” performances in several critical

elements. See PIP Mem. at 1. And both supervisors

signed off on Ms. Weng’s removal given her failure on

the PIP—during which she exercised subpar

communication abilities and failed to sufficiently

analyze substantive issues in case materials, among

other shortcomings, according to Defendant. See

Notice of Proposed Removal at 6-8, 12-14, 17—20;

Decision on Proposed Removal at 2-5. The catalog of

specific performance issues, along with the

supervisors’ consensus regarding Ms. Weng’s

termination, indicate that “Defendant’s explanation is

therefore legitimate.” Albert u. Perdue, No. 17-cv1572, 2019 WL 4575526, at *4 (D.D.C. Sept. 20, 2019)

(citing Figueroa, 923 F.3d at 1088) (holding the

defendants’ nondiscriminatory explanation “facially

credible” when employer hired top-ranked candidates

and the plaintiff ranked in bottom half)Fourth,

Defendant’s

“explanations

were

sufficiently clear and specific to allow [Ms. Weng]

ample opportunity to bring forward evidence to

‘disprove . . . [Defendant’s reasons.’” Clinton, 2021

WL 1166737, at *9 (quoting Figueroa, 923 F.3d at

1088). Defendant detailed Ms. Weng’s shortcomings

21a

in critical elements of her job, particularly during her

PIP, in Defendant’s memoranda regarding her

performance and removal. See PIP Mem.; Notice of

Proposed Removal; Decision on Proposed Removal.

These statements “gave [Ms. Weng] a clear

opportunity to challenge the asserted justification as

merely a pretext for unlawful [retaliation.]” Williams,

2019 WL 3859155, at *8.

3. Plaintiff’s Evidence of Pretext

“The burden now shifts to [Ms. Weng] to provide

sufficient evidence by which a reasonable jury could

find [Defendant’s] stated reason was pretext for . . .

retaliation.” Albert, 2019 WL 4575526, at *5 (citing

Brady, 520 F.3d at 494). To establish pretext,

plaintiffs typically provide evidence of “variant

treatment

of

similarly

situated

employees,

discriminatory statements by decision makers, [or]

irregularities in the stated reasons for the adverse

employment decision.” Bennett v. Solis, 729 F. Supp.

2d 54, 60 (D.D.C. 2010). Alternatively, they may show

that the employer provided “a phony reason” for its

action. Hogan v. Hayden, 406 F. Supp. 3d 32, 46

(D.D.C. 2019) (quoting Pignato v. Am. Trans Air, Inc.,

14 F.3d 342, 349 (7th Cir. 1994)). However, “[i]t is not

enough for the plaintiff to show that a reason given for

a job action is not just, or fair, or sensible.” Hogan, 406

F. Supp. 3d at 46 (quoting Pignato, 14 F.3d at 349).

a. Veracity of Reason for Termination

Ms. Weng is unable to establish pretext by showing

that her performance deficiencies were “false.”

Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir.

2003). Indeed, Ms. Weng’s allegation that her

managers “failed to tie their criticisms of [her] to her

performance standards and/or explain how she failed

22a

each of [the requisite job elements]” does not hold

water. Pl.’s Opp’n at 27. DOL management detailed in

a

metric-by-metric

assessment Ms.

Weng’s

shortcomings in “critical elements” of her role and

provided specific incidents undergirding these

evaluations. See Decision on Proposed Removal at 2—

5. For example, Defendant indicated that during the

PIP, Ms. Weng

sent questions to [her supervisor] either at the

time of deadlines or after deadlines passed, failed

to analyze information and address substantive

issues contained in case materials, blamed another

employee for [her] failure to perform substantive

analysis on case materials, . . . failed to prepare

adequately for a meeting, . . . failed to address

numerous topics identified by [her supervisor] in a

revised draft of questions to an applicant,

produced poor work product, did not follow up with

[her supervisor] about drafts, input [her

supervisor’s] edits without adding explanation or

context, and exercised poor judgment during a

teleconference with that applicant’s counsel.

Def.’s Mot. Summ. J. at 6.

Ms. Weng’s circumstantial evidence also fails to

establish Defendant’s justification as false. First, Ms.

Weng points to the temporal proximity between her

protected EEO activity and the deterioration in her

performance evaluations as determinative. See Pl.’s

Opp’n at 24. For example, Ms. Weng alleges that

“[w]ithin a week of learning of [Plaintiffs] first suit”

her supervisor “falsely accus[ed] her of missing a work

deadline.” Id. However,

[m]ere temporal proximity is not sufficient to

support [a finding of retaliation], because

23a

otherwise protected activities would effectively

grant employees a period of immunity, during

which no act, however egregious, would support

summary judgment for the employer in a

subsequent retaliation claim. As a result, positive

evidence beyond mere proximity is required to

defeat the presumption that the proffered

explanation [] [for Plaintiffs termination is]

genuine.

Iyoha, 927 F.3d at 574 (cleaned up).

Second, Ms. Weng alleges that her supervisor

“cited Ms. Weng for bringing up her EEO case in work

meetings, . . . thereby directly revealing [his] animus

towards her based on her EEO activities.” Pl.’s Opp’n

at 25. But “merely noting that an employee has

engaged in protected activity does not, without more,

raise an inference of retaliation.” Iyoha, 927 F.3d at

561; see Pl.’s Opp’n at 23.

b. Comparator Analysis

Ms. Weng also cannot establish pretext by showing

that the DOL “treated other employees of a different

[group] . . . more favorably in the same factual

circumstances.” Burley u. Nat’l Passenger Rail Corp.,

801 F.3d 290, 301 (D.C. Cir. 2015) (quoting Brady, 520

F.3d at 495) (rejecting comparator because they had

different roles and responsibilities than plaintiff). Ms.

Weng identifies eight comparators: six working under

Ms. Weng’s supervisor, Ms. Hall, and two working

under then-OED director Mr. Ivan Strasfeld. See Pl.’s

Opp’n, Ex. C, Summary Chart of Comparators

(“Comparator Chart”), ECF No. 76-5. Comparators

are “not similarly situated” when they “performed at

a higher level than [the plaintiff.]” Chambers v. Fla.

Dep’t of Transp., 620 F. App’x 872, 879 (11th Cir.

24a

2015). Ms. Weng received the lowest rating—

“Unsatisfactory”—of the six comparators working for

Ms. Weng’s supervisor. See Comparator Chart.

Additionally, not sharing a common supervisor is a

“factor [] that bear[s] on whether someone is an

appropriate comparator[.]” Burley, 801 F.3d at 301.

Thus, the two employees who worked for Mr. Strasfeld

are not valid comparators, nor are any of the eight

comparators persuasive. See id.

Ms. Weng notes that “of the nine GS-13 Employee

Benefits Law Specialists in OED during FY 2011,

[she] ranked fourth in the number of cases closed,” but

nonetheless “received the lowest rating” of the eight

comparators. Pl.’s Opp’n at 26. However, three of the

comparators under Ms. Weng’s supervisor closed more

cases than Ms. Weng, and two others closed six cases,

comparable to Ms. Weng’s eight. See Comparator

Chart. Moreover, the complexity of the case each

specialist handled was the metric by which DOL

management measured employees, not the number of

cases closed. See Def.’s Reply in Supp. of Mot. Summ.

J. 11, ECF No. 82. Thus, case complexity—and not

case closure rate—is a “[f] actor[] that bear[s] on

whether someone is an appropriate comparator.”

Burley, 901 F.3d at 301.

Furthermore, Ms. Weng cannot prove that she is

“similarly situated” to any of the comparators because

none of them “were charged with offenses of

comparable seriousness.” Burley, 801 F.3d at 301. Ms.

Weng does not identify any comparators who were

enrolled in a PIP. See Def.’s Mot. Summ. J. at 28. Ms.

Weng specifically highlights one comparator

(Employee #2, a Black woman) who was not fired

despite evaluations that dropped from Highly

25a

Effective/Effective to Minimally Satisfactory and a

low rate of closing cases. See Pl.’s Opp’n at 26 n.24.

Yet, Ms. Weng does not indicate that Employee #2

“had been placed on a PIP [or] required the same level

of assistance” in performing her responsibilities.

Chambers, 620 F. App’x at 879 (rejecting comparators

because “none had a history of poor work

performance”).

Ms. Weng retorts that her placement on a PIP was

itself retaliatory and unwarranted. See Pl.’s Opp’n at

25. However, the PIP was rooted in and cited to her

deficient performance on several projects. See supra.

Additionally, Mr. Raps and Ms. Hall separately

approved her PIP. See PIP at 2, 5. The independent

agreement of two supervisors on Ms. Weng’s

performance deficiencies further mitigates the

possibility of pretext in her treatment. See Chambers,

620 F. App’x at 878— 879 (holding one supervisor’s

“poor evaluation” of an employee “does not suggest

pretext” given a previous supervisor’s similar

evaluation); Borges-Silva v. Nishida, No. 21-cv-474,

2023 WL 183669, at *7 (D.D.C. Jan. 13, 2023) (giving

more credence to performance concerns because one

supervisor “independently vetted [other supervisor’s]

recommendation” on termination), appeal filed, No.

23-cv-5030, 2023 WL 183669 (D.C. Cir. Feb. 13, 2023).

Because Ms. Weng “fail[ed] to produce evidence

that the proposed comparators were actually similarly

situated to [her], an inference of falsity [or retaliation]

is not reasonable, and summary judgment is

appropriate.” Walker u. McCarthy, 170 F. Supp. 3d 94,

108 (D.D.C. 2016) (cleaned up).

IV. CONCLUSION

26a

Summary judgment is appropriate. See Clinton,

2021 WL 1166737, at *9-11. Thus, the Court will

DENY AS MOOT Plaintiffs Motion and will GRANT

Defendant’s Motion for Summary Judgment in an

accompanying order. As such, judgment is entered as

a matter of law in favor of Defendant.

Date: March 28, 2023

/s/

ZIA M. FARUQUI

UNITED STATES MAGISTRATE JUDGE

27a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-5117

Filed On: August 13, 2024

KARIN WENG,

Appellant,

v.

JULIE A. SU,

Acting Secretary of Labor,

Appellee.

BEFORE: Millett, Pillard, and Wilkins, Circuit

Judges

ORDER

Upon consideration of the petition for panel

rehearing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

28a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-5117

Filed On: August 12, 2024

KARIN WENG,

Appellant,

v.

JULIE A. SU,

Acting Secretary of Labor,

Appellee.

BEFORE: Srinivasan, Chief Judge, and

Henderson, Millett, Pillard, Wilkins, Katsas, Rao,

Walker, Childs, Pan, and Garcia, Circuit Judges

ORDER

Upon consideration of the petition for rehearing en

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

the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: Is/

Daniel J. Reidy

Deputy Clerk