PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DUANE R. BONDS, M.D.,
Plaintiff-Appellant,
v.
MICHAEL LEAVITT, Secretary
Department of Health and Human
Services; DEPARTMENT OF
HEALTH AND HUMAN SERVICES;
NATIONAL INSTITUTES OF HEALTH;
NATIONAL HEART, LUNG, AND
BLOOD INSTITUTE OF THE NATIONAL
No. 09-2179
INSTITUTES OF HEALTH,
Defendants-Appellees.
PROJECT ON GOVERNMENT
OVERSIGHT; PUBLIC EMPLOYEES FOR
ENVIRONMENTAL RESPONSIBILITY,
Amici Supporting Appellant
.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(8:07-cv-02426-RWT)
Argued: October 26, 2010
Decided: January 3, 2011
Before TRAXLER, Chief Judge, GREGORY, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
2 BONDS v. LEAVITT
Affirmed in part, reversed in part, and remanded by published
opinion. Chief Judge Traxler wrote the opinion, in which
Judge Gregory and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Michael Kohn, KOHN, KOHN & COLAPINTO,
LLP, Washington, D.C., for Appellant. Allen F. Loucks,
OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland, for Appellees. ON BRIEF: Richard R. Ren-
ner, KOHN, KOHN & COLAPINTO, LLP, Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attor-
ney, Baltimore, Maryland, for Appellees. R. Scott Oswald,
Jason Zuckerman, THE EMPLOYMENT LAW GROUP, PC,
Washington, D.C.; Paula Dinerstein, Senior Counsel, PUB-
LIC EMPLOYEES FOR ENVIRONMENTAL RESPONSI-
BILITY, Washington, D.C.; Scott H. Amey, General Counsel,
PROJECT ON GOVERNMENT OVERSIGHT, Washington,
D.C., for Amici Supporting Appellant.
OPINION
TRAXLER, Chief Judge:
Dr. Duane Bonds appeals district court orders dismissing
some of her employment claims and granting summary judg-
ment against her on the others. We affirm in part, reverse in
part, and remand for further proceedings.
I.
Bonds is an African-American female doctor who has
worked during her medical career to fight "sickle cell disease
and other medical disorders that severely impact fetal and
maternal health."1 J.A. 442-43. In 1990, after years in private
1
Sickle cell disease is an inherited blood disorder that affects red blood
cells. See Sickle cell disease, Genetics Home Reference, http://
BONDS v. LEAVITT 3
practice and academia, she became Deputy Chief of the Sickle
Cell Disease Branch of the Division of Blood Diseases and
Resources ("DBDR"), a division of the National Heart, Lung,
and Blood Institute ("NHLBI") of the National Institutes of
Health ("NIH"). In 1998, Dr. Charles Peterson, Director of the
DBDR at NHLBI, became Bonds’s second-line supervisor.
Dr. Blaine Moore, Program Director for the DBDR’s Blood
Diseases Program, became Bonds’s first-line supervisor in
late 2003.2 For much of her NIH career, Bonds received con-
sistently high performance appraisals, promotions, and
awards, and she was recognized as a leading researcher of
Sickle Cell Disease.
ghr.nlm.nih.gov/condition/sickle-cell-disease (last visited Nov. 8, 2010).
In this country, the disease most commonly afflicts African-Americans,
but it also affects many other racial groups. See Genetic Disease Profile:
Sickle Cell Anemia, Human Genome Project Information, http://www.ornl.
gov/sci/techresources/Human_Genome/posters/chromosome/sca.shtml
(last visited Nov. 8, 2010).
People who have sickle cell disease have red blood cells that contain
mostly hemoglobin S. See About Sickle Cell Disease – Sickle Cell Disease
Association of America, http://www.sicklecelldisease.org/about_scd/
index.phtml (last visited Nov. 8, 2010). These cells can sometimes become
sickle or crescent shaped and have difficulty passing through small blood
vessels. See id. Blockages of small blood vessels by these cells can restrict
the amount of blood reaching that part of the body and can eventually
result in damage to the tissue that is not receiving its normal blood flow.
See id. Sickle cells are rapidly destroyed in the bodies of people having
the disease, resulting in anemia, jaundice and the formation of gallstones.
See id. Sickle cells also can cause lung tissue damage, pain episodes,
stroke and priapism. See id. It can also cause damage to most organs,
including the spleen, kidneys, and liver. See id. Spleen damage to those
suffering from the disease can leave them easily overwhelmed by certain
bacterial infections. See id.
2
Moore replaced Dr. Herman Branson, whom Peterson had terminated.
Branson filed an EEO complaint concerning his termination, and in the
context of the complaint, alleged that Peterson "sought to enlist [Bran-
son’s] support to carry out reprisals against" Bonds because of her prior
EEO complaints. J.A. 792. He also submitted an affidavit of Dr. Jean
Henslee-Downey in which she stated that "Bonds was on [Peterson’s] bad
list." J.A. 601.
4 BONDS v. LEAVITT
In October 1999, Bonds filed an administrative Equal
Employment Opportunity ("EEO") complaint against Peter-
son alleging that he sexually harassed her by asking her to
share a hotel room with him during an overnight business trip
and that he began interfering with her professional duties
when she refused him.3 Peterson subsequently removed Bonds
from her position as NHLBI’s Sickle Cell Disease Group
Leader, prompting Bonds to file a second EEO complaint in
March 2003. In settlement of that dispute, the NHLBI in April
2004 created a new position for Bonds: the Division of Blood
Diseases and Resources Sickle Cell Coordinator.
During Bonds’s time at NIH, NHLBI initiated two sickle-
cell clinical drug trials, "Baby Hug" and "SWiTCH," which
Bonds initially led as project officer ("PO"). The two trials
began in the years 2000 and 2005, respectively. Baby Hug
studied whether administering the drug Hydroxyurea to
infants could prevent the onset of end-organ damage, the
major source of morbidity and mortality in sickle cell disease
patients. SWiTCH studied the effect of the same drug on
infants who had suffered a stroke. Baby Hug was a contract-
funded study, which means that while NIH provides the fund-
ing, outside doctors and researchers perform the recruitment,
collection, and analysis. The investigator responsible for pro-
cessing specimens collected for the trial was Dr. Russell
Ware, who was employed by St. Jude Children’s Research
Hospital in Tennessee.
Central to the present appeal is a process known as Epstein-
Barr virus ("EBV") cell line transformation, under which
EBV is mixed with blood cells from study participants, caus-
ing the cells to transform and grow indefinitely. This tech-
nique can be used to create an unlimited DNA supply without
drawing new blood from study participants. According to
Ware, he first discussed utilizing EBV cell line transformation
in 2003, when he attended a conference at the NIH at which
3
The complaint was resolved through the NIH Ombudsman Office.
BONDS v. LEAVITT 5
the process was recommended. Ware asserts that Bonds
approved the use of the process for Baby Hug in late 2003 or
early 2004.
The controversy regarding this process began in early Sep-
tember 2005 at a monthly steering committee meeting when
Ware presented a report that he had established cell lines from
DNA samples that had been collected from study participants
using EBV cell line transformation. Bonds stated in an e-mail
to Ware that she had been "dismayed" to learn that Ware had
been immortalizing cell lines derived from the Baby Hug sub-
jects.4 J.A. 545. The e-mail asserted that "NHLBI did not
authorize this work, it is not in the protocol, and the work is
not specifically mentioned in the consent forms."5 J.A. 545.
Accordingly, the message requested that Ware destroy the cell
lines immediately. When Moore and Peterson refused to sup-
port her decision, Bonds raised her concerns to the Data and
4
Bonds alleges that the participating infants were all African-
Americans.
5
The consent forms obtained from parents of the infant participants in
Baby Hug stated in pertinent part:
We would like to have a small amount of left-over blood samples
stored at the BABY HUG Central laboratory for possible future
research. The blood samples would be kept for a long time or
until the samples are used up. If your child’s blood or DNA sam-
ple is shared with other researchers, your child’s identi[t]y will
be kept confidential. No facts that could identify your child will
be given with the blood sample or its DNA.
You may choose whether or not to allow your child’s sample to
be used for research. No matter what you decide to do about the
use of your child’s samples, your child can still take part in the
BABY HUG study. If you agree to allow your child’s blood to
be kept for research, you are free to change your mind at any
time. If this happens, we ask that you contact Dr. Wang by phone
or in writing and let him know that you are withdrawing your
permission for your child’s blood to be used for research. Any
unused blood will be destroyed.
J.A. 516 (internal quotation marks omitted).
6 BONDS v. LEAVITT
Safety Monitoring Board ("DSMB"), which is tasked with
protecting study participants’ interests. On October 5, 2005,
the DSMB recommended that the cell lines be destroyed
unless the proper consent was obtained.
Not satisfied with that result, and believing that destruction
of the lines was the only appropriate course of action, Bonds
brought her concerns to Dr. Elizabeth Nabel, who was the
Director of NHLBI and the person to whom Peterson
reported. At Bonds’s urging, Nabel initially ordered that the
lines be destroyed. However, Nabel was subsequently con-
tacted by Dr. John Cunningham, the Chair of the Institutional
Review Board ("IRB") at St. Jude. He advised Nabel that the
individual IRBs at the various Baby Hug clinical sites had
jurisdiction over the immortalized cells. Accepting this
assessment, Nabel sent letters to the IRBs urging them to
either destroy the lines or obtain specific consent from the
patients for retention of the lines.
Nabel received varying responses. Some IRBs believed the
consent forms already covered the immortalization, while oth-
ers believed efforts should be made to "re-consent" the study
participants. This latter group reasoned that once the cell lines
were immortalized, the study participants themselves should
be able to express their preference regarding whether the bio-
logical material would be destroyed. Unbeknownst at the time
to Moore and Peterson, Bonds eventually contacted the Office
of Special Counsel ("OSC") regarding the cell lines in late
December 2005, asserting that retention of the lines violated
federal law. See 45 C.F.R. § 46.116 (2010) (providing that
"[e]xcept as provided elsewhere in this policy, no investigator
may involve a human being as a subject in research covered
by this policy unless the investigator has obtained the legally
effective informed consent of the subject or of the subject’s
legally authorized representative"); 45 C.F.R. § 46.122 (2010)
("Federal funds administered by a department or agency may
not be expended for research involving human subjects unless
the requirement of this policy have been satisfied.").
BONDS v. LEAVITT 7
Deciding that Bonds’s cell line concerns warranted investi-
gation, the OSC forwarded them to the Secretary of the
Department of Health and Human Services ("HHS"). As a
result, HHS’s Office of Inspector General ("OIG") initiated an
investigation, interviewing Nabel, Peterson, Moore, and oth-
ers in early 2006. After receiving a report from OIG in June
2006, the OSC issued its final report in December 2007 con-
cluding that NIH officials "participated in the violation of fed-
eral law." J.A. 458.
Besides being the subject of an OSC investigation, the cell
line controversy also marked the final straw for Ware in his
relationship with Bonds. On October 11, 2005, he wrote to
Moore requesting that Bonds be removed as PO for SWiTCH,
for which Ware was the principal investigator. Prior to mak-
ing that request, Ware had conferred with several key consul-
tants in the then-recently funded project who agreed the trial
would be best served if Bonds were replaced. In his affidavit,
Ware explains that while his prior experiences with Bonds
had been "decidedly negative," their relationship had taken a
particularly ugly turn with the cell line controversy in that
Ware viewed Bonds as having unfairly attacked his motives
in an "accusatory, abrasive manner." J.A. 98. Additionally,
Ware and Dr. Winifred Wang, who were chair and deputy
chair of the Baby Hug Steering Committee, both complained
that often the information Bonds provided them concerning
decisions made by the DSMB was incorrect to the point that
they no longer trusted Bonds. Ware further maintained that
Bonds’s "abrasive, controlling style of managing the study"
was a significant problem. J.A. 99. Dr. Susan Shurin,
NHLBI’s deputy director, also "experienced significant diffi-
culties relating to [Bonds’] management of the study," primar-
ily relating to Bonds’ "bypass[ing] the group process" and her
"[i]nformal and misleading communication of DSMB recom-
mendations." J.A. 106-07.
Moore voiced concern over these issues and also expressed
worry that Bonds’s involvement as SWiTCH PO would be
8 BONDS v. LEAVITT
too much for her to effectively handle in light of her numer-
ous other duties, including serving as Baby Hug PO. (These
concerns had been documented in Bonds’ mid-year perfor-
mance review four months earlier in July 2005.) In light of all
of these factors, Moore decided to remove Bonds from her
position as SWiTCH PO. He explained to Bonds in person his
reasons for her removal and also drafted a memorandum doc-
umenting the decision. Bonds subsequently filed an EEO
complaint regarding her removal, alleging discrimination and
retaliation by Peterson and Moore, and by Dr. Liana Harvath,
who was the Deputy Director of the DBDR.
In November 2005, Moore also temporarily replaced Bonds
as PO of the Baby Hug trial. He explained that a formal inves-
tigation was needed to address the concerns that had been
raised regarding Bonds’s performance as Baby Hug PO and
in other areas of her work. Moore maintained that removing
Bonds from that position during the investigation would give
management the best opportunity to fairly evaluate their con-
cerns.
The investigation of Bonds, which included an examination
of her office computer, took an important and surprising turn
when it was discovered that Bonds had improperly sent sensi-
tive NHLBI information, including budget figures related to
upcoming negotiations with potential contractors, to persons
not entitled to that information. The recipients included her
attorney, her priest, her church spiritual counselor, and Dr.
Herman Branson, a former NHLBI employee who was him-
self involved in employment litigation against the agency.
The examination of Bonds’s computer also revealed the
whistle-blower disclosure statement that Bonds had filed with
the OSC. The document, which Moore loaded onto his com-
puter, alleged that Peterson had wanted to terminate Baby
Hug and had engaged in gross waste, fraud, and abuse in an
attempt to do so, and that NHLBI was illegally preserving the
BONDS v. LEAVITT 9
immortalized cell lines created from the blood product of
Baby Hug participants.
On February 21, 2006, as the investigation was proceeding,
Moore directed Bonds to spend the next 15 days primarily
cleaning her office. In a memo to Bonds, Moore stated that
Bonds had left her office in a "continuous state of clutter and
messiness," which had caused significant expense during a
recent move. J.A. 624. Moore further instructed Bonds to use
her computer "only for communications related to the MSH
follow up extension" and to copy Moore on such communica-
tions.6 J.A. 624. Moore also instructed Bonds to keep her
office door open at all times.
Two days after receiving these instructions, Bonds e-mailed
Peterson to alert him that she intended to attend a grant study
section meeting outside of NIH that was scheduled to review
her grants portfolio. Peterson allegedly called Bonds out of
the meeting and "threatened [her] with Absent Without Offi-
cial Leave (AWOL) if [she] did not leave the meeting." J.A.
446.
As a result of the discovery that Bonds had improperly
transmitted the protected agency information, in March 2006
Bonds was placed on paid administrative leave. Events took
another bad turn for Bonds on March 27, 2006, when the
FDA placed a "Full Clinical Hold" on the Baby Hug trial
because of a lack of expiration dates on the bottles of the
drugs being used in the study. J.A. 131. In connection with
Bonds’s submission of the Baby Hug Investigational New
Drug ("IND") application to the FDA, Bonds had attached a
copy of the label that was to be used on study treatment bot-
tles. Importantly, that label included an expiration date for the
drug. Staff members Annette Quinones, Michael Soler, and
6
The MSH follow-up extension was "a five year extension of the
follow-up study of sickle cell adult patients who enrolled in the Multi-
center Study of Hydroxyurea." J.A. 116.
10 BONDS v. LEAVITT
Thomas Shaffer of the Supply Services Center, which was
responsible for printing the labels, maintained that at a Baby
Hug Steering Committee meeting in August 2003 Bonds
ordered removal of the expiration dates since stability tests
regarding the drug were ongoing. Bonds denied that she made
any such order.
The placement of the trial on full clinical hold carried with
it serious consequences, as it required investigators at the
medical centers involved with the trial to "cease further
enrollment" and "remove all patients from existing
drug/placebo." J.A. 140. Moore explained that "[i]t is very
possible that removal of the drug from infants may allow
organ damage to proceed during this hold period and poten-
tially reduce the chances of determining a statistical differ-
ence in the primary outcomes, namely, spleen and kidney
function." J.A. 140.
Primarily based on Bonds’s negligence in bringing about
the clinical hold and on her improper dissemination of the
potentially damaging budget information, Moore proposed on
May 12, 2006, that Bonds be terminated. Moore considered
Bonds’s denial of the claim that she instructed the expiration
dates to be removed, but found it not credible in light of the
contrary statements of the Supply Services Center staff.
Moore also identified several other reasons that he maintained
justified Bonds’s removal from federal service, including
many instances of her failure to follow instructions from her
superiors and her failure to follow NHLBI policy.
On October 18, 2006, Peterson accepted Moore’s termina-
tion proposal (although he rejected some of the reasons
Moore provided), memorializing his analysis in a notice of
termination document. Peterson requested that NHLBI Dep-
uty Executive Officer Timothy Wheeles evaluate the termina-
tion decision in light of the written record, as Wheeles had not
been involved in the events leading up to Bonds’s termina-
tion. Wheeles concluded that each reason Peterson provided
BONDS v. LEAVITT 11
in the termination notice was substantially supported and that
Bonds’s rebuttal failed to counter the supporting documenta-
tion.
Bonds initiated an administrative EEO complaint on Febru-
ary 16, 2007, in which she alleged:
I was fired on October 24, 2006 in retaliation for
having filed 3 prior EEO Complaints and a Whistle-
blower Complaint with the Office of Special Coun-
sel. On October 11, 2005, I was removed as the
program officer for the SWiTCH Trial; and Novem-
ber 15, 2005, I was removed as the project officer for
the BABY HUG Trial after I ordered the destruction
of genetic material that had been obtained by Dr.
Russell Ware of St. Jude Children’s Hospital without
informed consent. My order to have the genetic
material destroyed was overruled by Dr. Peterson,
and when I protested to Dr. Elizabeth Nabel, Direc-
tor of NHLBI, I was removed as the project officer
for the BABY HUG Trial. I then filed a Whistle-
blower Complaint with the Office of Special Coun-
sel, and this complaint was accepted for
investigation on March 17, 2006. When my EEO
Counselor, Michael Chew, notified Dr. Peterson that
I had the right to speak to my attorney, Dr. Peterson
read all of my email to my attorney and placed me
on administrative leave. I was notified that I would
be fired on October 24, 2006 after I was accused of
doing something that I did not do by the BABY
HUG Drug Distribution Center at Perry Point, Md.
This accusation was made in retaliation for my prior
EEO activity and my Whistleblower Complaint as
well as to avoid accepting responsibility by the Perry
Point staff for having removed the expiration date
from the BABY HUG Study Treatment labels with-
out written authorization from me. Blaming me for
this misconduct [permits] the true culprits at Perry
12 BONDS v. LEAVITT
Point to escape responsibility and sanctions from the
Food and Drug Administration and made it possible
for Dr. Peterson to have the excuse to fire me which
he has been attempting to do because of my prior
EEO complaints against him.
In addition, Dr. Peterson did not provide me with
adequate support staff help to assist me with filing
which I needed because of my physical limitations.
I have a partially paralyzed right leg and my knee
joint in that leg was replaced in 2004. Because of
these physical limitations, I was unable to stand for
any length of time to file any paperwork in my
office.
J.A. 363-64.
NIH’s EEO division accepted Bonds’s complaint as a
"mixed-case complaint of discrimination" because it con-
tained discrimination claims and her "allegation (removal
from the Federal Service) stems from an action that may be
appealed to the [Merit System Protection Board]." J.A. 775.
It further stated that the complaint was accepted for investiga-
tion of claims of race, sex, age, and physical disability dis-
crimination and retaliatory termination.
Having received no administrative action on the charge by
September 13, 2007, Bonds filed a complaint in federal dis-
trict court against Michael Leavitt, the then-Secretary of
Health and Human Services, et al., alleging three Title VII
claims: that she was exposed to a hostile work environment,
that she suffered illegal retaliation, and that she was discrimi-
nated against because of her race and gender. See 42 U.S.C.A.
§ 2000e-16 (West 2003 & Supp. 2010). The complaint also
alleged that she was retaliated against in violation of the
Whistleblower Protection Act ("WPA"), see 5 U.S.C.A.
§ 2302(b)(8) (West 2007), and that she was unjustifiably ter-
BONDS v. LEAVITT 13
minated in violation of the Civil Service Reform Act of 1978
("CSRA"), see 5 U.S.C.A. § 7513 (West 2007).
The defense responded with a motion to dismiss or, in the
alternative, for summary judgment. After the district court
heard argument, the defense withdrew the motion as to the
WPA claim, the district court granted the motion as to
Bonds’s hostile-environment and CSRA claims, and the court
ordered additional discovery. Once discovery had concluded,
the defense renewed its motion and Bonds moved for recon-
sideration of the dismissal of her CSRA claim. The court
granted the defense motion and denied Bonds’s. See Bonds v.
Leavitt, 647 F. Supp. 2d 541 (D. Md. 2009). Bonds now
appeals.
II.
In dismissing Bonds’s CSRA claim, the district court deter-
mined that Bonds had failed to exhaust her administrative
remedies. In denying her motion for reconsideration, the court
also expressed serious doubts regarding whether it possessed
subject matter jurisdiction, questioning whether the CSRA
provides for a direct right of action in district court. See id. at
579-81. Bonds argues that the district court erred in dismiss-
ing her claim. We agree.
"The CSRA comprehensively overhauled the civil service
system, creating a framework for evaluating adverse person-
nel actions against federal employees." Hall v. Clinton, 235
F.3d 202, 204 (4th Cir. 2000) (internal quotation marks and
alteration omitted); see also 5 U.S.C.A. § 7513(a) (providing
that "[u]nder regulations prescribed by the Office of Person-
nel Management, an agency may take an action covered by
this subchapter against an employee only for such cause as
will promote the efficiency of the service."). "[I]t established
exacting standards for review of such actions by the" Merit
Systems Protection Board ("MSPB"). Lindahl v. Office of
Pers. Mgmt., 470 U.S. 768, 774 (1985). It also governs the
14 BONDS v. LEAVITT
adjudication of "mixed case complaints," meaning complaints
alleging "employment discrimination filed with a federal
agency based on race, color, religion, sex, national origin,
age, disability, or genetic information related to or stemming
from an action that can be appealed to the" MSPB. 29 C.F.R.
§ 1614.302(a)(1). Actions that can be appealed to the MSPB
include, inter alia, removal from federal service, including
retaliatory termination for protected whistle-blower activity.
See 5 U.S.C.A. § 1214(a)(3) (West 2007); see also 5 U.S.C.
§ 7512 (West 2007).
An employee wishing to pursue a mixed case has several
procedural paths she can take:
At the outset, the aggrieved party can choose
between filing a "mixed case complaint" with her
agency’s EEO office and filing a "mixed case
appeal" directly with the MSPB. See 29 C.F.R.
§ 1614.302(b). By statute, the relevant agency EEO
office and the MSPB can and must address both the
discrimination claim and the appealable personnel
action. See 5 U.S.C. § 7702(a). Should she elect the
agency EEO route, within thirty days of a final deci-
sion she can file an appeal with the MSPB or a civil
discrimination action in federal district court. See 29
C.F.R. §§ 1614.302(d)(1)(ii), 1614.302(d)(3),
1614.310(a). If 120 days pass without a final deci-
sion from the agency’s EEO office, the same ave-
nues of appeal again become available: the
complainant can file either a mixed case appeal with
the MSPB or a civil action in district court. See 5
U.S.C. §§ 7702(e)(1)(A), 7702(e)(2); 29 C.F.R.
§§ 1614.302(d)(1)(i), 1614.310(g); 5 C.F.R.
§ 1201.154(b)(2).
Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999) (footnotes
omitted). Here, Bonds filed a mixed case EEO complaint,
BONDS v. LEAVITT 15
then filed this action in the district court when the requisite
time passed without an administrative decision.
Bonds maintains that the district court possessed jurisdic-
tion over her claim under 5 U.S.C.A. § 7702(e) (West 2007),
which provides that after the required time has passed without
administrative action on an EEO complaint, "an employee
shall be entitled to file a civil action to the same extent and
in the same manner as provided in section 717(c) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of
the Age Discrimination in Employment Act of 1967 (29
U.S.C. 633a(c)), or section 16(b) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(b))."7 The district court ques-
tioned whether it lacked subject matter jurisdiction over
Bonds’s CSRA claim because § 7702(e) should be read to
include district court review of only the discrimination claims
in a mixed-case complaint, not the nondiscrimination claims.
7
5 U.S.C. § 7702(e)(1), states in its entirety as follows:
Notwithstanding any other provision of law, if at any time after—
(A) the 120th day following the filing of any matter described
in subsection (a)(2) of this section with an agency, there is no
judicially reviewable action under this section or an appeal under
paragraph (2) of this subsection;
(B) the 120th day following the filing of an appeal with the
Board under subsection (a)(1) of this section, there is no judi-
cially reviewable action (unless such action is not as the result of
the filing of a petition by the employee under subsection (b)(1)
of this section); or
(C) the 180th day following the filing of a petition with the
Equal Employment Opportunity Commission under subsection
(b)(1) of this section, there is no final agency action under sub-
section (b), (c), or (d) of this section;
an employee shall be entitled to file a civil action to the same
extent and in the same manner as provided in section 717(c) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section
15(c) of the Age Discrimination in Employment Act of 1967 (29
U.S.C. 633a(c)), or section 16(b) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 216(b)).
16 BONDS v. LEAVITT
See Bonds, 647 F. Supp. 2d at 579-81. However, as the dis-
trict court acknowledged, each circuit court of appeals to have
addressed this issue has concluded that district courts possess
jurisdiction over non-discrimination claims in mixed cases
when agencies fail to meet the time limit that § 7702(e)(1)(B)
establishes. See Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1041-
44 (D.C. Cir. 2008); Seay v. TVA, 339 F.3d 454, 471-72 (6th
Cir. 2003); Doyal v. Marsh, 777 F.2d 1526, 1533, 1535-37 &
n.5 (11th Cir. 1985). Finding their reasoning persuasive, we
adopt that position as well.
We therefore turn to the question of whether Bonds
exhausted her administrative remedies for her CSRA claim. In
the context of Title VII, prior to filing a discrimination claim,
a claimant is required to exhaust administrative remedies with
the EEOC or its state equivalent. See Nealon v. Stone, 958
F.2d 584, 590 (4th Cir. 1992). This is because courts possess
jurisdiction over only those claims "like or related to allega-
tions contained in the charge and growing out of such allega-
tions." Id. (citations omitted). Thus, "factual allegations made
in formal litigation must correspond to those set forth in the
administrative charge." Chacko v. Patuxent Inst., 429 F.3d
505, 509 (4th Cir. 2005). "[A] claim in formal litigation will
generally be barred if the EEOC charge alleges discrimination
on one basis, such as race, and the formal litigation claim
alleges discrimination on a separate basis, such as sex." Jones
v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
However, because administrative charges are not typically
completed by lawyers, they must be construed liberally. See
Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d
457, 460 (4th Cir. 1988).
In this case, the district court concluded that these same
rules that apply in the Title VII context also apply to Bonds’s
CSRA claim and that Bonds failed to properly raise a CSRA
claim in her EEO charge. See Bonds, 647 F. Supp. 2d at 581-
87. We conclude, however, that Bonds’s EEO complaint suf-
ficiently raised the claim. Regarding the CSRA claim, the
BONDS v. LEAVITT 17
complaint alleges that Bonds "did not engage in the miscon-
duct alleged as a basis for her termination," and that alterna-
tively, termination was an "overly harsh" penalty. J.A. 24.
The claim, in other words, is that, even aside from any
improper motivations behind her firing, her firing was not
warranted. See Guillot v. Garrett, 970 F.2d 1320, 1323 n.3
(4th Cir. 1992) (noting that "5 U.S.C. 7513 permits an agency
to terminate an employee ‘for such cause as will promote the
efficiency of the service’"). Considering that we must liber-
ally construe EEO charges, we conclude that Bonds’s claim
is firmly grounded in her charge, wherein she explicitly
alleged: "I was notified that I would be fired on October 24,
2006 after I was accused of doing something that I did not
do." J.A. 364. We therefore reverse the dismissal by the dis-
trict court of Bonds’s CSRA claim and remand for further
proceedings regarding that claim.
III.
We now turn to Bonds’s WPA claim. The WPA, codified
at 5 U.S.C. § 2302(b)(8), contains two subsections, one of
which (§ 2302(b)(8)(B)) protects whistle-blowing to "Special
Counsel, or to the Inspector General of an agency or another
employee designated by the head of the agency to receive
such disclosures," and one (§ 2302(b)(8)(A)) that applies to
all other whistle-blowing. Bonds contends on appeal that she
created genuine issues of material fact regarding whether both
subsections were violated and thus argues that the district
court erred in granting summary judgment against her.
We review the district court’s grant of summary judgment
de novo, viewing the facts and the reasonable inferences
therefrom in the light most favorable to the nonmoving party.
See EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th
Cir. 2005). Summary judgment is appropriate when "the
pleadings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
18 BONDS v. LEAVITT
moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P 56(c); see Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Applying this standard, we agree with Bonds
regarding both subsections, and we will address the two seria-
tim.
A.
Bonds’s WPA claim under subsection A alleges, as is rele-
vant here, that she suffered retaliation for reporting the cell
line issue to Nabel. The district court determined that Bonds
failed to create a genuine issue of material fact regarding
whether she engaged in protected activity under subsection A
because (1) she did not report her concerns to an authority
who was in a position to correct the alleged wrongdoing, and
(2) because reporting that wrongdoing was within her routine
job duties and she did not report the wrongdoing outside the
normal channels. See Bonds, 647 F. Supp. 2d at 574-76.
Bonds argues that the district court erred with regard to both
rulings. We agree.
The enactment of the WPA served to broaden the definition
of "prohibited personnel practice" that then existed in the
CSRA. As is relevant here, the WPA provides that:
[a]ny employee who has authority to take, direct oth-
ers to take, recommend, or approve any personnel
action, shall not, with respect to such authority . . .
....
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because of—
(A) any disclosure of information by an
employee or applicant which the employee
BONDS v. LEAVITT 19
or applicant reasonably believes evi-
dences—
(i) a violation of any law, rule, or regu-
lation, 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) (emphasis added). Before enact-
ment of the WPA, the CSRA defined a "prohibited personnel
practice," in relevant part, as "tak[ing] or fail[ing] to take a
personnel action . . . as a reprisal for . . . a disclosure of infor-
mation." Civil Service Reform Act of 1978, Pub. L. No. 95-
454, § 101(a), 92 Stat. 1111, 1114 (1978) (emphasis added).
The Senate Committee on Governmental Affairs explained
the purpose behind the change from "a disclosure" to "any
disclosure":
The Committee intends that disclosures be encour-
aged. The OSC, the Board and the courts should not
erect barriers to disclosures which will limit the nec-
essary flow of information from employees who
have knowledge of government wrongdoing. For
example, it is inappropriate for disclosures to be pro-
tected only if they are made for certain purposes or
to certain employees or only if the employee is the
first to raise the issue. [The Senate bill] emphasizes
this point by changing the phrase "a disclosure" to
"any disclosure" in the statutory definition. This is
simply to stress that any disclosure is protected (if it
meets the requisite reasonable belief test and is not
required to be kept confidential).
S. Rep. No. 100-413, at 13 (1988).
20 BONDS v. LEAVITT
To establish a claim for WPA retaliation, Bonds was
required to show that she made a protected disclosure under
5 U.S.C. § 2302(b)(8) and she suffered an adverse personnel
action based on her disclosure of the cell line issue to Nabel.
See Hooven-Lewis v. Caldera, 249 F.3d 259, 276 (4th Cir.
2001). Despite the statute’s very broad language, the district
court ruled that Hooven-Lewis added a judicial gloss onto the
statute that would prevent protection of a disclosure to a supe-
rior who lacked the actual authority to put an end to the
complained-of conduct. See Bonds, 647 F. Supp. 2d at 574,
576. Because the court determined as a matter of law that
Nabel did not have such authority, it granted summary judg-
ment against Bonds. See id. at 576. We do not believe
Hooven-Lewis dictated that result.
In Hooven-Lewis, we held that complaining to a supervisor
about the supervisor’s own wrongdoing is not protected con-
duct under the WPA. See Hooven-Lewis, 249 F.3d at 276. In
so doing, we noted that an element of a WPA cause of action
is that "the disclosure evidence an intent to raise an issue with
a higher authority who is in a position to correct the alleged
wrongdoing." Id. Applying that rule, we held that the plain-
tiff’s statements to the wrongdoer herself "did not evidence an
intent to disclose [the] wrongdoing to an authority higher than
[the wrongdoer] who could remedy the wrongdoing." Id.
Initially, we note that we do not agree that Hooven-Lewis
requires that, to constitute protected conduct, the report must
be made to a person that the would-be whistle-blower
believes has actual authority to correct the wrongdoing. The
essence of the decision in that case is merely that no disclo-
sure occurs to anyone when a report is made to the wrongdoer
himself because the wrongdoer is already necessarily aware of
his own conduct. See Huffman v. Office of Pers. Mgmt., 263
F.3d 1341, 1349-50 (Fed. Cir. 2001). After all, the statute, ref-
erencing "any disclosure," does not specify to whom the dis-
closure must be made in order to receive protection. We
therefore conclude that the district court erred in ruling that
BONDS v. LEAVITT 21
Nabel’s lack of actual authority to have the cell lines
destroyed doomed Bonds’s subsection A WPA claim.8
Having prevailed on that point, Bonds still must clear
another hurdle to avoid summary judgment under subsection
A. That hurdle is the district court’s ruling, based on Huffman,
that her disclosure to Nabel was not protected because it was
made as a normal part of Nabel’s duties through normal chan-
nels. See Bonds, 647 F. Supp. 2d at 574-76. This exception to
the general disclosure rule was an extension of Willis v.
Department of Agriculture, 141 F.3d 1139 (Fed. Cir. 1998),
wherein the Federal Circuit held that a government employee
whose job it is to investigate the actions of private parties
does not engage in protected activity when he reports viola-
tions of law by those private parties as a normal part of his
duties. See id. at 1143-44. The Willis court emphasized that
"the WPA is intended to protect government employees who
risk their own personal job security for the advancement of
the public good by disclosing abuses by government person-
nel." Id. at 1144.
Even assuming that we would sanction such an exception
in our circuit, we do not believe it would entitle the defen-
dants to summary judgment in this case. The district court
determined that Bonds’s disclosure to Nabel was not pro-
tected because supervising Ware and reporting problems to
senior NHLBI officials were part of her duties and because
8
We note that there is no question in this case that Bonds went to Nabel
in an attempt to remedy the wrongdoing she sought to disclose. Bonds her-
self had ordered destruction of the cell lines before she was undercut by
her superiors. She then persuaded Nabel to issue the same order, only to
have Nabel later reconsider her decision. And, even after reconsidering her
decision, Nabel still wrote to the IRBs, recommending that they obtain
specific consent from the patients for retention of the immortalized cells
or destroy the cell lines. Cf. Huffman, 263 F.3d at 1351 ("Any government
employee, in a supervisory position, other than the wrongdoer himself, is
in a position to ‘correct’ or ‘remedy’ the abuse by bringing the matter to
the attention of a higher authority.").
22 BONDS v. LEAVITT
Nabel, while not Bonds’s supervisor, was in Bonds’s line of
supervision, albeit three levels up.9 See Bonds, 647 F. Supp.
2d at 575. Regardless, however, of whether Nabel was some-
where in Bonds’s line of supervision, there was no evidence
forecasted that Bonds had a responsibility to report any con-
cerns to Nabel as part of Bonds’s normal duties. Bonds’s job
description describes her role as an advisor to the DBDR and
to Moore. And, Moore himself testified that he considered
Bonds’s decision to bring her concerns to Nabel to be "unpro-
fessional," so much so that he testified in his deposition that
he "probably should have" disciplined her for it. J.A. 2089.
Nabel echoed Moore’s view of Bonds’s duties and testified in
her deposition that Bonds’s responsibility was to express any
concerns to her supervisor, not to her. Nabel testified that
even if Bonds believed that Peterson was engaged in unethical
or unlawful conduct, Bonds had no responsibility to bring her
concerns to Nabel’s attention, and she noted that there are
federal offices designed to deal with such allegations. Under
these facts, we hold that the district court erred in granting
summary judgment against Bonds. See Huffman, 263 F.3d at
1354 (concluding that a plaintiff engages in protected activity
when he, "feeling that the normal chain of command is unre-
sponsive, reports wrongdoing outside of normal channels").
B.
We now turn to Bonds’s subsection B claim that she suf-
fered retaliation based on her report to the OSC of the cell line
issue. The district court ruled that Bonds’s claim failed as a
matter of law because she did not create a genuine factual
issue regarding whether Peterson knew that Bonds’s whistle-
blowing was the catalyst for the government’s investigation
regarding the cell lines. See Bonds, 647 F. Supp. 2d at 577-79;
see also Dowe v. Total Action Against Poverty in Roanoke
Valley, 145 F.3d 653, 657 (4th Cir. 1998) (explaining, with
regard to Title VII retaliation claims, that "the employer’s
9
Peterson, who was Moore’s supervisor, reported directly to Nabel.
BONDS v. LEAVITT 23
knowledge that the plaintiff engaged in a protected activity is
absolutely necessary" to establish a causal connection
between the protected activity and the adverse employment
action). Bonds challenges this ruling, emphasizing that Peter-
son knew of the investigation since he was one of the people
interviewed. She adds that she would have been the only per-
son Peterson would have suspected of bringing about the
investigation as she was the only one vigorously opposing the
retention of the cell lines. She further highlights the fact that
Moore learned of Bonds’s report to the OSC on January 18,
2006, when he downloaded a copy of her disclosure statement
onto his computer.10 Bonds argues that a jury could reason-
ably infer that Moore would have told Peterson about Bonds’s
contact with the OSC. We agree with Bonds that she created
a genuine issue of material fact concerning whether Peterson
knew at the time he terminated her that she had "blown the
whistle" to the OSC.
Even ignoring Moore’s knowledge that Bonds’s disclosure
had prompted the OSC’s investigation, the evidence suggests
that Peterson had plenty of reason to conclude that Bonds, as
the only person vehemently resisting the retention of the cell
lines, was the catalyst for the investigation. Bonds’s poor rela-
tionship with Moore and Peterson only gave Peterson further
reason to believe that Bonds would report the alleged malfea-
sance and his role in it. We therefore hold that the issue of
whether Peterson knew when he terminated Bonds that her
report had brought on the investigation was properly one for
a jury to resolve.
10
Bonds notes that when Moore was initially questioned about when he
learned that Bonds had communicated with OSC, he incorrectly denied
knowing about it until after he issued notice of her removal. Only when
presented with documentary evidence that he learned of the communica-
tions on January 18, 2006, did he accept that date.
24 BONDS v. LEAVITT
IV.
Bonds’s complaint alleges three Title VII claims. We will
address them seriatim.
A.
As is relevant here, Bonds’s complaint alleges a Title VII
claim that she was retaliated against for opposing the reten-
tion of the cell lines. In opposing summary judgment in the
district court, Bonds maintained that because the donors of the
genetic material from which the cell lines were created were
primarily African-American, she was opposing racial discrim-
ination by seeking to destroy the lines. On that basis, she
maintained that her conduct was protected under Title VII,
and that Title VII prohibited her employer’s retaliation against
her. In granting summary judgment against her, the district
court rejected her argument and ruled that because Bonds’s
conduct did not constitute opposition to an unlawful employ-
ment practice, it was not protected under Title VII. See Bonds,
647 F. Supp. 2d at 566-70. On appeal, Bonds maintains that
Title VII protected her from retaliation based on her opposi-
tion to the use of the cell lines regardless of whether the con-
duct she opposed constituted employment discrimination. We
disagree.
As is relevant here, Title VII makes it "an unlawful
employment practice for [a private] employer . . . to discrimi-
nate against any individual with respect to [her] compensa-
tion, terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national ori-
gin." 42 U.S.C.A. § 2000e-2(a)(1) (West 2003); see 42
U.S.C.A. § 2000e(b) (West 2003). It also prohibits retaliation
by a private employer against an employee because she "has
opposed any practice made an unlawful employment practice
by" Title VII. 42 U.S.C.A. § 2000e-3(a) (West 2003). Title
VII is not a general bad acts statute, however, and it does not
prohibit private employers from retaliating against an
BONDS v. LEAVITT 25
employee based on her opposition to discriminatory practices
that are outside the scope of Title VII. See Crowley v. Prince
George’s County, Md., 890 F.2d 683, 687 (4th Cir. 1989).
In 1972, Congress expanded Title VII’s coverage to include
employees of federal executive agencies and other particular
categories of federal employees. See Equal Employment
Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103 (1972)
(codified as amended at 42 U.S.C.A. § 2000e-16). Section
2000e-16(a) provides that all personnel actions taken in
regard to these employees "shall be made free from any dis-
crimination based on race, color, religion, sex, or national ori-
gin." Unlike § 2000e-3(a), § 2000e-16(a) does not explicitly
provide protection against retaliation. See Baqir v. Principi,
434 F.3d 733, 747 n.16 (4th Cir. 2006). However, 42 U.S.C.A
§ 2000e-16(d) provides that "[t]he provisions of section
2000e-5(f) through (k) of this title, as applicable, shall govern
civil actions brought hereunder." Section 2000e-5(g), in turn,
provides:
No order of the court shall require the admission
or reinstatement of an individual as a member of a
union, or the hiring, reinstatement, or promotion of
an individual as an employee, or the payment to him
of any back pay, if such individual was refused
admission, suspended, or expelled, or was refused
employment or advancement or was suspended or
discharged for any reason other than discrimination
on account of race, color, religion, sex, or national
origin or in violation of section 2000e-3(a) of this
title.
42 U.S.C.A. § 2000e-5(g)(2)(A) (West 2003) (emphasis
added). Although neither the Supreme Court nor our court has
squarely addressed whether 2000e-16(a) prohibits retaliation,
see Gomez-Perez v. Potter, 553 U.S. 474, 488 n.4 (2008);
Baqir, 434 F.3d at 747 n.16, reading these provisions together
leaves us with little doubt that Congress "incorporated the
26 BONDS v. LEAVITT
protections against retaliation" afforded to private employees
by 2000e-3(a). Ayon v. Sampson, 547 F.2d 446, 450 (9th Cir.
1976); see Gomez-Perez v. Potter, 476 F.3d 54, 60 (1st Cir.
2007) (similar), rev’d on other grounds, 553 U.S. 474 (2008);
Porter v. Adams, 639 F.2d 273, 277-78 (5th Cir. 1981) (simi-
lar); see also Baqir, 434 F.3d at 742 ("Although phrased dif-
ferently, [§ 2000e-3(a)] and [§ 2000e-16(a)] have generally
been treated as comparable."); Hale v. Marsh, 808 F.2d 616,
619 (7th Cir. 1986) (stating that § 2000e-16(a) "has been
interpreted to incorporate" § 2000e-3(a)); cf. Gomez-Perez,
553 U.S. at 487 (holding that ADEA provision "patterned
‘directly after’" § 2000e-16(a) bans retaliation). Nonetheless,
we see no basis for concluding that conduct of the type at
issue here — which would not be protected by § 2000e-3(a)
if undertaken by a private employee — should be protected by
§ 2000e-16(a). The district court was therefore correct to
grant summary judgment against Bonds on this claim.11
11
Bonds also maintains that her opposition was protected under Title
VII based on her professional duty to "ensur[e] that [study] participants
were not subjected to discriminatory treatment." Appellant’s brief, at 33.
In support of her position, Bonds cites Wrighten v. Metropolitan Hospi-
tals, Inc., 726 F.2d 1346 (9th Cir. 1984), but we find Wrighten to be of
little help to Bonds here. In Wrighten, a nurse employed by a private hos-
pital brought a Title VII claim alleging in relevant part "that she was fired
in retaliation for her advocacy of issues relating to black staff and
patients." Id. at 1353. In granting judgment against the nurse, the district
court "assumed without proof that [she] directed her opposition at unlaw-
ful employment practices," but found that the means of her opposition
were unreasonable and that she therefore lost the protection that Title VII
afforded her. Id. at 1355. The court also found that the hospital articulated
a legitimate, nondiscriminatory reason for terminating her—her unreason-
able means of advocacy—and that the nurse did not succeed in showing
that the proffered explanation was pretextual. See id. at 1355-56. The
Ninth Circuit reversed, concluding that both findings were clearly errone-
ous. See id. at 1355-57. The court, however, never addressed the question
of whether the nurse had, in fact, engaged in protected activity. The case
therefore does nothing to help Bonds demonstrate that she engaged in pro-
tected activity here.
BONDS v. LEAVITT 27
B.
Bonds next argues that the district court erred in dismissing
her hostile work environment claim for failure to state a
claim. See Fed. R. Civ. P. 12(b)(6). We disagree.
We review de novo the grant of a motion to dismiss for
failure to state a claim. See US Airline Pilots Ass’n v.
Awappa, LLC, 615 F.3d 312, 317 (4th Cir. 2010). In so doing,
"we must accept as true all of the factual allegations contained
in the complaint." Anderson v. Sara Lee Corp., 508 F.3d 181,
188 (4th Cir. 2007) (internal quotation marks omitted). To
survive dismissal, the complaint must contain "enough facts
to state a claim to relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To proceed on a Title VII hostile work environment claim,
"a plaintiff must show that the offending conduct (1) was
unwelcome, (2) was because of her sex [or race], (3) was suf-
ficiently severe or pervasive to alter the conditions of her
employment and create an abusive work environment, and (4)
was imputable to her employer." Ziskie v. Mineta, 547 F.3d
220, 224 (4th Cir. 2008) (internal quotation marks omitted).
Establishing the third element requires that the plaintiff show
that the work environment was not only subjectively hostile,
but also objectively so. See EEOC v. Sunbelt Rentals, Inc.,
521 F.3d 306, 315 (4th Cir. 2008). Such proof depends upon
the totality of the circumstances, including "the frequency of
the discriminatory conduct; its severity; whether it is physi-
cally threatening or humiliating, or a mere offensive utter-
ance; and whether it unreasonably interferes with an
employee’s work performance." Id. (internal quotation marks
omitted).
Bonds’s allegations, which largely include the actions taken
against her in response to the concerns regarding her perfor-
mance, fall well short of alleging an abusive working environ-
ment. See Burlington N. & Santa Fe Ry. Co. v. White, 548
28 BONDS v. LEAVITT
U.S. 53, 68 (2006) ("[N]ormally petty slights, minor annoy-
ances, and simple lack of good manners will not" give rise to
a hostile environment claim.). Nor do they state a plausible
claim that any harassment that Bonds suffered was due to her
race or gender. Cf. Oncale v. Sundowner Offshore Servs., 523
U.S. 75, 80 (1998) ("Title VII does not prohibit all verbal or
physical harassment in the workplace; it is directed only at
‘discriminat[ion] . . . because of . . . sex.’"). The district court
was therefore correct to dismiss this claim.
C.
Bonds also maintains that the district court erred in grant-
ing summary judgment against her on her Title VII claim
alleging in relevant part that she was terminated because of
her race and gender. We disagree.
Lacking any direct evidence of such discrimination, Bonds
attempts to avoid summary judgment based on the burden-
shifting method of proof established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973). Under this method, the plaintiff has the initial burden
to establish a prima facie case, which she may do by showing
that "(1) she is a member of a protected class; (2) she suffered
adverse employment action; (3) she was performing her job
duties at a level that met her employer’s legitimate expecta-
tions at the time of the adverse employment action; and (4)
the position remained open or was filled by similarly qualified
applicants outside the protected class." Hill v. Lockheed Mar-
tin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004)
(en banc). If a plaintiff meets that burden, the burden then
shifts to the employer "to articulate a legitimate, nondiscrimi-
natory reason for the adverse employment action." Id. If the
employer does so, the plaintiff must then show that "the
employer’s stated reasons were not its true reasons, but were
a pretext for discrimination." Id. (internal quotation marks
omitted).
BONDS v. LEAVITT 29
The district court ruled that even assuming that Bonds
established a prima facie case, the defense articulated legiti-
mate, nondiscriminatory reasons for her removal and Bonds
failed to create a genuine issue of material fact regarding
whether those reasons were a pretext for race or gender dis-
crimination. See Bonds, 647 F. Supp. 2d at 554, 559-66. We
agree. Peterson articulated at length the reasons that he sus-
tained Moore’s recommendation that Bonds be terminated.
Bonds does not seriously argue that Peterson did not believe
his reasons warranted her termination. In fact, her only signif-
icant argument regarding her unauthorized disclosure of
agency information was that the disclosure was uncovered
only as the result of an improper investigation. Similarly, her
primary argument regarding her responsibility for the removal
of the expiration dates from the drugs being used in the trial
was that Peterson did not conduct a proper investigation
before concluding that she was actually responsible. Neither
of these points is of any help to Bonds. Even if these investi-
gations were improper or substandard, that does little to help
her establish that the reasons given for her termination were
not the actual reasons, and it certainly does not give rise to a
reasonable inference that her race or gender was the real rea-
son for her termination. See Hux v. City of Newport News, 451
F.3d 311, 315 (4th Cir. 2006) ("Once an employer has pro-
vided a non-discriminatory explanation for its decision, the
plaintiff cannot seek to expose that rationale as pretextual by
focusing on minor discrepancies that do not cast doubt on the
explanation’s validity, or by raising points that are wholly
irrelevant to it."); see also Tinsley v. First Union Nat’l Bank,
155 F.3d 435, 444 (4th Cir. 1998) ("It is the perception of the
decision maker which is relevant."), overruled on other
grounds by National R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 105 (2002). The district court was therefore correct
to grant summary judgment on this claim.12
12
Bonds also argues that the district court abused its discretion in deny-
ing her second Rule 56(f) request. We conclude that the denial was well
within the district court’s discretion. See Bonds, 647 F. Supp. 2d at 571
n.10 (discussing the reasons for the denial).
30 BONDS v. LEAVITT
V.
For the foregoing reasons, we reverse the dismissal of
Bonds’s CSRA claim and the grant of summary judgment
against her on her WPA claim, and remand to the district
court for further proceedings on these claims. Otherwise, we
affirm.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED