TRAXLER, Chief Judge:
Dr. Duane Bonds appeals district court orders dismissing some of her employment claims and granting summary judgment against her on the others. We affirm in part, reverse in part, and remand for further proceedings.
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."
In October 1999, Bonds filed an administrative Equal Employment Opportunity ("EEO") complaint against Peterson 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.
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 funding, outside doctors and researchers perform the recruitment, collection, and analysis. The investigator responsible for processing 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, causing the cells to transform and grow indefinitely. This technique 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 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 September 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 subjects.
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 contacted 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 others 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 biological 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.").
Deciding that Bonds's cell line concerns warranted investigation, 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 others in early 2006. After receiving a report from OIG in June 2006, the OSC issued its final report in December 2007 concluding that NIH officials "participated in the violation of federal 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 making that request, Ware had conferred with several key consultants 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
Moore voiced concern over these issues and also expressed worry that Bonds's involvement as SWiTCH PO would be too much for her to effectively handle in light of her numerous other duties, including serving as Baby Hug PO. (These concerns had been documented in Bonds' mid-year performance 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 documenting 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 investigation 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 concerns.
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 sensitive 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 himself 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 computer, 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 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 communications.
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 Official 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 bottles. Importantly, that label included an expiration date for the drug. Staff members Annette Quinones, Michael Soler, and 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 potentially reduce the chances of determining a statistical difference 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 termination proposal (although he rejected some of the reasons Moore provided), memorializing his analysis in a notice of termination document. Peterson requested that NHLBI Deputy Executive Officer Timothy Wheeles evaluate the termination decision in light of the written record, as Wheeles had not been involved in the events leading up to Bonds's termination. Wheeles concluded that each reason Peterson provided in the termination notice was substantially supported and that Bonds's rebuttal failed to counter the supporting documentation.
Bonds initiated an administrative EEO complaint on February 16, 2007, in which she alleged:
J.A. 363-64.
NIH's EEO division accepted Bonds's complaint as a "mixed-case complaint of discrimination" because it contained 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 investigation of claims of race, sex, age, and physical disability discrimination and retaliatory termination.
Having received no administrative action on the charge by September 13, 2007, Bonds filed a complaint in federal district 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 discriminated 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 terminated 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
In dismissing Bonds's CSRA claim, the district court determined 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 dismissing her claim. We agree.
"The CSRA comprehensively overhauled the civil service system, creating a framework for evaluating adverse personnel 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 Personnel 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, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985). It also governs the 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:
Butler v. West, 164 F.3d 634, 638 (D.C.Cir. 1999) (footnotes omitted). Here, Bonds filed a mixed case EEO complaint, then filed this action in the district court when the requisite time passed without an administrative decision.
Bonds maintains that the district court possessed jurisdiction 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
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 allegations contained in the charge and growing out of such allegations." 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 sufficiently raised the claim. Regarding the CSRA claim, the complaint alleges that Bonds "did not engage in the misconduct alleged as a basis
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 admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Applying this standard, we agree with Bonds regarding both subsections, and we will address the two seriatim.
Bonds's WPA claim under subsection A alleges, as is relevant 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:
5 U.S.C. § 2302(b)(8)(A) (emphasis added). Before enactment 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 information." 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":
S.Rep. No. 100-413, at 13 (1988).
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 superior 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 judgment 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 conduct 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 plaintiff'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 disclosure 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, referencing "any disclosure," does not specify to whom the disclosure must be made in order to receive protection. We therefore conclude that the district court erred in ruling that Nabel's lack of actual authority to have the
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 channels. 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 violations 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 personnel." Id. at 1144.
Even assuming that we would sanction such an exception in our circuit, we do not believe it would entitle the defendants to summary judgment in this case. The district court determined that Bonds's disclosure to Nabel was not protected because supervising Ware and reporting problems to senior NHLBI officials were part of her duties and because Nabel, while not Bonds's supervisor, was in Bonds's line of supervision, albeit three levels up.
We now turn to Bonds's subsection B claim that she suffered retaliation based
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 relationship with Moore and Peterson only gave Peterson further reason to believe that Bonds would report the alleged malfeasance 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.
Bonds's complaint alleges three Title VII claims. We will address them seriatim.
As is relevant here, Bonds's complaint alleges a Title VII claim that she was retaliated against for opposing the retention 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 discrimination 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 employment 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 opposition to the use of the cell lines regardless of
As is relevant here, Title VII makes it "an unlawful employment practice for [a private] employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 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 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 discrimination based on race, color, religion, sex, or national origin." 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:
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, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008); Baqir, 434 F.3d at 747 n. 16, reading these provisions together leaves us with little doubt that Congress "incorporated the 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, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008); Porter v. Adams, 639 F.2d 273, 277-78 (5th Cir.1981) (similar); see also Baqir, 434 F.3d at 742 ("Although phrased differently, [§ 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, 128 S.Ct. 1931 (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
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 U.S. 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 sufficiently 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 physically threatening or humiliating, or a mere offensive utterance; 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 performance, fall well short of alleging an abusive working environment. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ("[N]ormally petty slights, minor annoyances, 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, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) ("Title VII does not prohibit all verbal or physical
Bonds also maintains that the district court erred in granting 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 expectations 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 Martin 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, nondiscriminatory 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).
The district court ruled that even assuming that Bonds established a prima facie case, the defense articulated legitimate, 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 discrimination. See Bonds, 647 F.Supp.2d at 554, 559-66. We agree. Peterson articulated at length the reasons that he sustained 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 significant 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 investigations 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 reason for her termination. See Hux v. City of Newport News, 451 F.3d 311, 315 (4th Cir.2006) ("Once an employer has provided 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, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The district court was therefore correct to grant summary judgment on this claim.
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
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.
J.A. 516 (internal quotation marks omitted).