RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Fred Biery:

This Report and Recommendation concerns (1) Defendant Secretary of the Air Force's Motion for Summary Judgment, Dkt. No. 60; and (2) Plaintiff Valentia Coleman's Motion for Summary Judgment, Dkt. Nos. 62; see also Dkt. No 64-1 (additional copy filed with motion for leave to excuse late filing). The Court has also considered the corresponding Responses and other briefing pertinent to these motions. See Dkt. Nos. 65 (Response and Motion to Strike Declaration), 66 (Response), Reply (67), Reply (68), 72 (Brief), 73 (Brief). All pretrial matters in this action have been referred for resolution pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 53. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).

For the reasons set forth below, Defendant's Motion, Dkt. No. 60, should be GRANTED and Plaintiff Coleman's Motion, Dkt. No. 62, should be DENIED. Coleman irrevocably elected to pursue her present retaliatory hostile work environment claim through her Union's assisted negotiated grievance procedure. As a result, she cannot pursue that claim here. And even if this case were to include any matters not barred by Coleman's election, Coleman hasn't met her burden to identify evidence suffficient to raise any disputed genuine issues of material fact to forestall a grant of Defendant's Motion for Summary Judgment.

Further, IT IS ORDERED THAT the supplemental evidence filed by Coleman on December 16, 2020, see Dkt. No. 72-1, is STRUCK. Finally, Defendant's request to strike Coleman's declaration, which Defendant lodged in the summary judgment response, Dkt. No. 65, is DENIED.

Factual and Procedural Background

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The background statement in this Report and Recommendation relies on the briefing on the summary judgment evidence submitted by the parties, viewing all evidence and inferences in Coleman's favor. Although Defendant seeks to strike Coleman's declaration (see Dkt. No. 66-1 & 62-1) "because the contents are self-serving and either (1) irrelevant; (2) duplicative of prior testimony from her deposition, or (3) impeach her deposition by providing additional details she did not mention at her deposition," Dkt. No. 65, none of these arguments provides a valid basis to strike a declaration that supplements—rather than contradicts—deposition testimony. Moreover, a request for relief embedded in a response brief is disfavored; relief should be requested in a motion. See Fed. R. Civ. P. 7(b) ("A request for a court order must be made by motion."). The Court, however, has only considered evidence relevant to Coleman's retaliatory hostile work environment claim. Moreover, legal conclusions offered by Coleman in her declaration have been disregarded. See, e.g., Coleman Decl. ¶ 28 (Dkt. No. 62-1).

It also bears mentioning that Exhibit 1 to Defendant's Motion is the June 1, 2018, arbitration decision issued in connection with a grievance filed by Coleman. The Court will address the circumstances surrounding the arbitration and resulting decision later in this Report. But for now, the Court notes that Defendant cites the arbitrator's facts and findings as if they are undisputed here. But there is no briefing before the Court addressing whether and to what extent the Court must accept the arbitrator's version of the facts. At the same time, Coleman doesn't object to Defendant's reliance on the arbitrator's recitation of many of these facts. Nor does Coleman take issue with the arbitration's procedures, the adequacy of the record, or the arbitrator's competence. Accordingly, the Court has relied on undisputed facts as recited in the arbitrator's decision (to the extent they bear on issues presented here) and also facts recited therein that are supported by valid summary judgment evidence. The Court, however, has not independently scoured the hundreds of pages of evidence submitted by Coleman to locate any potential disputed fact issues—or support one way or another for any such issues—that are not properly identified with specificity in the briefing. Nor is the Court under any obligation to do so. The parties should bear this in mind when lodging or responding to objections to this Report and Recommendation, as matters not appropriately raised before the Magistrate Judge should not be the subject of objections.

Finally, a portion of the evidence submitted by both Coleman and Defendant consists of otherwise inadmissible hearsay. Nevertheless, neither party has objected to the Court's consideration of the evidence on this basis. Accordingly, the Court has exercised its discretion to consider such evidence as fairness dictates. See Bellard v. Gautreaux, 675 F.3d 454, 461 (5th Cir. 2012).

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In 2010, the Air Force hired Plaintiff Coleman as a Readiness Specialist in its 502nd Civil Engineer Group Emergency Management Flight ("CEX") unit, stationing her at Randolph Air Force Base. See Coleman Decl. ¶¶ 2-3. Coleman's employment was a career-conditional appointment, subject to a two-year probationary period during which time Coleman could be terminated for unsatisfactory performance. See id. Shortly after her hire, Coleman alleges, her supervisor Willie Monroe began singling her out for attention. See id. ¶ 6. At first Monroe's attention appeared "professional and above board." Id. Eventually, however, Coleman began to feel uncomfortable, and she began making "concerted efforts" to stay away from Monroe. Id. Despite these efforts, Coleman claims, Monroe "got her alone in the building" late one afternoon and demanded sexual favors in return for her continued employment. See id. The next day Coleman reported Monroe to his supervisor Richard Treviño. See id. Although Treviño stated that he would speak to Monroe, Treviño "seemed unmoved," giving Coleman the impression that "this was [her] problem to handle." Id. Treviño's conversation with Monroe—to the extent it occurred—didn't help matters as far as Coleman was concerned. According to Coleman, Monroe subsequently sexually assaulted her. See id.

Coleman tried in various unsuccessful ways to resolve her situation. She went back to Treviño "about Monroe" approximately "seven or eight times." Id. ¶ 7. She also complained that her immediate supervisor, Steven Clark, treated her with "disdain and hostility" because Clark believed that Coleman and Monroe had engaged in a consensual sexual relationship. See id. Finally, in response to Coleman's numerous complaints, Treviño appointed Coleman as the Squadron's Security Manager, which permitted her to work in another building and made her less accessible to Monroe. See id. Treviño also ordered Clark and Coleman to participate in alternative dispute resolution in an "attempt to resolve [their] differences." Id. The alternative dispute resolution didn't resolve matters. If anything, Coleman alleges, Clark became angrier with her. See id. According to Coleman, from October 13, 2011, through February 20, 2013, she endured several attempts by Clark to "denigrate [her] work ethic and job performance through false allegations" regarding her absenteeism, tardiness, and alleged use of "racially disparaging remarks." See id. ¶¶ 9-13. Many of the records in Coleman's personnel file, which were produced in the discovery process, were "likely fabricated," Coleman opines, and therefore are "improperly in [her] record." Id.

On September 24, 2013, Coleman was informed that her probationary period had ceased and her position had been converted to a permanent career tenure in the competitive service. See id. ¶ 8. Having learned that she couldn't be terminated "without appeal rights," Coleman visited the Randolph Air Force Base Equal Employment Opportunity ("EEO") Office to discuss her options for filing a complaint concerning Monroe's sexual assault. See id. But after returning to her work center following her appointment, "everyone was aware of the topics [she] had just discussed with the [EEO] counselor." Id. Coleman then was "verbally attacked" and labeled a "snitch" and "turncoat. See id. Fearing reprisal, Coleman withdrew her EEO complaint. See id.

In February of 2014, Monroe hired Sasha Wilson as his secretary. Shortly after Wilson's hire, Monroe began buying her flowers and taking her to lunch. See id. ¶ 14. According to Coleman, Monroe made no attempt to hide from anyone in the office his interest in Wilson. See id. Nevertheless, Coleman's male coworkers "turned a blind eye to it," as they had when Monroe expressed his interest in Coleman. See id. In return for their silence, Coleman's coworkers "garnered favor" with Monroe and were allowed to take "black leave" without documenting their absences. See id.

In February 2015, Monroe's new secretary Wilson filed a charge of sexual harassment against Monroe with the Lackland Airforce Base EEO Office (by this time the CEX unit had relocated from Randolph to Lackland). See id. ¶ 15. Coleman claims that at this point, "[t]he problems [she] had with Mr. Monroe while [she] was in probationary status had ceased so that, by the time all of CEX was moved to Lackland in 2014, we were able to work together without issues." Id. ¶ 20. But on March 30, 2015, and then again on September 16, 2015, Coleman provided testimony in support of Wilson's charge, and during this testimony, Coleman recounted Monroe's prior assault of her and demand for sexual favors from her. See id. ¶¶ 15-16; see also C. Babb Dep. 42:8-18 (Dkt. No. 62-2). Shortly after providing this testimony, Coleman alleges, she was "once again ostracized and verbally insulted by supervisors and by co-workers who faulted [her] for telling the truth rather than being 'loyal' to Mr. Monroe." Coleman Decl. ¶ 15.

On July 21, 2015, Coleman complained to Group Commander Colonel Alexander Smith regarding the "hostile environment [she] was in since testifying in Sasha Wilson's case." Id. ¶ 17. Smith, in response, directed Coleman to speak with Base Civil Engineer Brenda Roesch. When she did, Roesch transferred Coleman out of CEX—effective July 27, 2015—until a Commander Directed Investigation ("CDI") could be conducted. See id. Coleman explains that this temporary transfer out of CEX was "for [her] safety because of the abuse [she] was experiencing [in CEX.]." Id. ¶ 24. That same day, Coleman was charged with an absence without leave and docked four hours of pay for tardiness that allegedly occurred on July 6 and July 13, 2015. See Babb Dep. (Dkt. No. 66-2) 47:19-48:4.

The CDI into Coleman's allegations against Monroe commenced on or about July 27, 2015. See Dkt. No. 62-4. Ultimately, the investigating officer determined that two of Coleman's allegations were substantiated. The evidence, according to the CDI, supported the conclusion that Monroe had sexually harassed Coleman and engaged in unprofessional adulterous relationships. See id. Coleman's claims that Monroe created a hostile work environment by directing others to issue frivolous disciplinary and administrative paperwork, however, weren't substantiated and were rejected by the CDI. See id. The investigating officer noted that Monroe provided "numerous incidents" of Coleman's tardiness, unaccounted absences, and non-participation in a training class. Further, according to the investigating officer, "[n]umerous other employees in the unit stated Ms. Coleman was often tardy or absent from work, and her behavior when there was often disruptive." Id. On legal review, the Staff Judge Advocate found the CDI "generally legally sufficient" but concluded that "it would not seem appropriate to pursue any disciplinary action against Mr. Monroe for [] misconduct over 4 years later." Dkt. No. 60-3 at 8-9.

On November 3, 2015—four days after the CDI concluded—Coleman received from Deputy Director of the 502nd Civil Engineer Squadron James Graham a Notice of Proposed Suspension for five calendar Days for "conduct unbecoming and absences without approved leave (AWOL)." See Dkt. No. 66-5. According to the Notice, Coleman (1) failed to actively participate in a June 2015 Air Force Management Incident Course and misused Government equipment during the class for personal use and (2) was absent without authority from her required duty station on seven occasions between July 27, 2015, and August 12, 2015. See id. With the assistance of her union representative, Coleman submitted a written response to Roesch in opposition to the Notice. See Stripling Decl. ¶ 3 (Dkt. No. 66-7). Then, on December 4, 2015, Coleman and her union representative spoke with Roesch and submitted evidence and facts in support of Coleman's claim that Monroe and "other staff who sought Mr. Monroe's favor" had subjected her to retaliation and hostility. See id. On or about January 22, 2016, Roesch rescinded the November 3 AWOL charge against Coleman and reduced the proposed suspension to a Letter of Reprimand for the charge of conduct unbecoming. See id. ¶ 5; see also Dkt. No. 60-1 at 21.

On February 1, 2016, Coleman filed a Step One Grievance pursuant to her Union's Negotiated Grievance Procedure. See Dkt. No. 60-6. In it, Coleman grieved: (1) the January 22, 2016, Letter of Reprimand, which she claimed was baseless and "reflect[ed] a conspiratorial plan to frame [her]" for her complaints of sexual harassment against Monroe; and (2) "the attempt to frame [her] and to further harm [her] via a lateral transfer out of [her] position in CEX, at a time when those positions are being reviewed for upgrade to GS-11." Dkt. No. 60-6. In her grievance, Coleman requested the following remedies: (1) rescission of the Letter of Reprimand and removal of the allegations contained therein from her personnel folder or any other location where they may exist; and (2) that, in accordance with 5 U.S.C. § 7121(b)(2)(A)(ii), disciplinary action be taken against all managers and other personnel who abused their positions or made statements against her that were unsubstantiated. See id. Coleman also expressed a desire to return to her "official position" with CEX and noted that she "expect[s] to work in a non-hostile environment and to be evaluated fairly on [her] work." Finally, Coleman noted that she "will tolerate no reprisal, discrimination, or harassment." Id.

The next day, February 2, 2016, Coleman returned to CEX. See Coleman ¶ Decl. 24. According to Coleman, she was subjected to hostility soon after her return. For example, on February 12, 2016, Monroe threatened and physically assaulted Coleman, telling Coleman that she "need[ed] to learn how to shut the f**k up." See id. ¶¶ 25-26. Coleman reported the incident to the police on February 16, 2016. See Stripling Decl. ¶ 8; Dkt. No. 66-7. On February 17, 2016, Felipe Jimenez, the Technical Director for the 502nd Air Base Wing Commander, transferred Coleman from CEX to a position within the Asset Management Flight ("CEA") for her safety while the incident was under investigation. See Stripling Decl. ¶ 9; Dkt. No. 60-1 at 19.

On February 25, 2016, Coleman unsuccessfully mediated her Step One grievance with Roesch. See Stripling Decl. ¶ 10. Accordingly, Coleman subsequently elevated her grievance to Step Two. At Step Two, Coleman reiterated her belief that the reason provided for the Letter of Reprimand—her alleged non-participation in the June 2015 management course—was false and a pretext for the real reason for the Reprimand. That real reason, according to Coleman, was to retaliate against her for providing truthful testimony in support of Wilson's sexual harassment charge. See Dkt. No. 60-1 at 22.

On or about March 23, 2016, Roesch transferred Coleman from CEA to CENME, where Coleman currently remains. See Coleman Decl. ¶ 27; Stirling Decl. ¶ 11; Dkt. No. 60-1 at 30. Although the arbitrator concluded that this transfer occurred at Coleman's request, Coleman denies requesting the transfer. Compare Dkt. No. 60-1 at 30 & Dkt. No. 66-12 with Coleman Decl. ¶ 27 & Stripling Decl. ¶ 11. Instead, according to Coleman, the transfer was the only option offered to ensure her safety from Monroe. See Coleman Decl. ¶ 27 & Stirling Decl. ¶ 11. Further, according to Coleman, she only consented to the transfer based on Roesch's representation that Coleman would be provided the necessary training and mentoring so that she could qualify for a permanent position. See Coleman Decl. ¶ 27; Stirling Decl. ¶ 11; Dkt. No. 66- 13. But management, Coleman alleges, ultimately "reneged" on this plan and has since refused to provide her with either the necessary training to work in the unit or the documentation reflecting her various transfers. See Coleman Decl. ¶ 27. Accordingly, Coleman claims that for the past four years—since the March 2016 transfer—she has "report[ed] to work every day only to sit in a cubicle without work assignments or the training necessary to do the work in that unit." Id. At the time of the transfer Coleman's supervisor was Cynthia Algueseva, who in turn reported to Michael Arzate. Later, in 2017, Arzate became Coleman's direct supervisor. See Dkt. No. 62 at 16 & n.5.

On September 29, 2016—while Coleman's grievance was pending—Coleman filed a formal EEO charge of reprisal. See Dkt. No. 60-5 at 12-15. In it, Coleman raised the following three main allegations: (1) her March 22, 2016 lateral transfer from CEX to CENME constituted an intentional act of reprisal by Monroe for Coleman's assistance with Wilson's charge of sexual harassment and that, as result of the transfer, Coleman wasn't eligible to receive a GS-11 promotion; (2) Roesch's reassignment of Coleman to CENME from CEX without adequate training constituted discrimination on the basis of reprisal, stifling Coleman's advancement and promotional opportunities; and (3) Roesch's failure to ensure Coleman's personnel file contained accurate documentation with respect to her multiple transfers in positions from July 27, 2015, to September 29, 2016, constituted discrimination on the basis of reprisal. Within these three main allegations, Coleman also complained that (1) she is subjected to increased scrutiny by her supervisors in that she must report whenever she leaves her desk, her telephone usage is restricted, she is prohibited from wearing hats and headphones, and she isn't allowed to adjust her schedule for medical appointments without taking leave; (2) she is "segregated" from other people during the work day and her coworkers are told not to speak to her; and (3) Roesch issued the Letter of Reprimand in retaliation for Coleman testifying in support of Wilson's EEO charge and in response to the CDI.

On October 11, 2016, the Air Force sent Coleman a Notice of Acceptance of EEO Complaint on October 11, 2016. See Dkt. No. 23 at 13-14 (citing Dkt. No. 16-3 at 28-29). The notice summarized the issues raised by Coleman's charge as follows:

a. Whether the complainant was discriminated against on the basis of reprisal (prior EEO activity; Docket #8Z0J15015), when on 6 July 2016, the complainant became aware that her Director, Brenda Roesch, 502 CES/CL and the complainant's former first level supervisor, Mr. Willy Monroe, 602 CES/CEX, laterally transferred her from the CEX flight to CENME flight on 22 March 2016, in an effort to exclude her from duties, awards, and subsequent promotions of four Emergency Management Flight GS-0089-9 to GS-0089-11 Emergency Management Specialist positions (Control #009666350J, 003466730J, 009639520J, 009639490J) at JBSA-Lackland, TX.

b. Whether the complainant was discriminated against on the basis of reprisal (prior EEO activity; Docket #8Z0J15015), when on 22 March 2016 to 14 August 2016, when the complainant's director, Brenda Roesch, 502 CES/CL did not ensure she was adequately trained in her current position as an Engineering Technician, stifling her advancement and promotion opportunities with the 502 CES.

Matters in connection with her grievance continued, even after the Air Force denied the grievance based on a conclusion that the evidence supported the Letter of Remand. See Dkt. No. 60-1 at 23; see also Stirling Decl. ¶ 12. Accordingly, Coleman invoked her right to arbitration in accordance with her labor agreement, and the parties jointly selected an arbitrator to preside over an arbitration scheduled for October 17, 2016. See Dkt. No. 60-1 at 1; see also Stirling Decl. ¶ 12.

On October 3, 2016—two weeks before the scheduled arbitration—Roesch rescinded Coleman's January 22, 2016, Letter of Reprimand and expunged it from Coleman's personnel file, reasoning that Coleman had since successfully completed another Air Force training course. See Dkt. No. 60-1 at 1, 23. Thereafter, the Air Force moved to dismiss Coleman's grievance, arguing that (1) it was moot given Roesch's rescission of the Letter of Reprimand; and (2) Coleman's request that management representatives be disciplined for their treatment of Coleman by laterally transferring her out of CEX and allegedly passing her up for an upgrade to a GS-11 position wasn't arbitrable because the matter would be addressed in Coleman's EEO case. See Dkt. No. 66-9. The arbitrator denied the motion. See Dkt. No. 66-11; Dkt. No. 60-1 at 1-2. In doing so, the arbitrator reasoned that Coleman had agreed that the portion of her grievance related to the Letter of Reprimand was moot, and, therefore, the arbitration could be limited to facts relevant to whether Coleman's reassignment out of CEX was a prohibited personnel practice in violation of 5 U.S.C. § 2302(b(8) and/or 5 U.S.C. 2302(b)(9) Dkt. No. 66-11 (incorporating union email at Dkt. No. 66-10). Coleman's EEO charge, the arbitrator reasoned, was "separate and distinct" from her grievance. Id.

Arbitration of Coleman's grievance commenced on October 17, 2016. See Dkt. No. 60-1. The arbitration, however, was stayed shortly after its inception based on Coleman's testimony in which she claimed—allegedly for the first time—that Monroe had sexually assaulted her in 2010. See Dkt. No. 60-1 at 2-3. The arbitrator abated the matter until March 22, 2018, so the Air Force could investigate these allegations. See id.

On August 24, 2017—while the arbitration was still abated—Coleman sued the Secretary of the Air Force. Coleman's live Complaint raises claims for: (1) "Reprisal and Failure to Promote"; (2) "Reprisal and Failure to Train"; and (3) "Reprisal and Hostile Work Environment" i.e., retaliatory hostile work environment. She also brings a Bivens action against Monroe. See Dkt. No. 7.

On June 1, 2018, the arbitrator issued a detailed 44-page opinion, see Dkt. No. 60-1, concluding that the Air Force hadn't committed a prohibited personnel action in violation of 5 U.S.C. § 2302(b) when it transferred Coleman out of CEX on four occasions between July 27, 2015 and March 23, 2016. See id. Accordingly, the arbitrator dismissed Coleman's grievance in its entirety. See id.

Then, on September 28, 2018, the District Court dismissed all of Coleman's claims except her claim for retaliatory hostile work environment. See Dkt. No. 23.

Pending now before the Court are the parties' cross-motions for summary judgment on that remaining claim. See Dkt. Nos. 60 & 61. On December 9, 2020, the Court held a hearing on the motions, at which all parties appeared through counsel of record. Both parties agreed at the hearing that only Coleman's claim for retaliatory hostile work environment remains at issue. At the conclusion of the hearing, the Court invited the parties to each file a short supplemental brief—less than 10 pages in length—addressing any topic raised by the parties' competing motions. The Court, however, warned the parties that anything filed beyond that would be struck. The parties filed their supplemental briefs on December 16, 2020. Included with Coleman's supplemental brief is 100 pages of additional evidence. See Dkt. No. 72. Coleman filed this supplemental evidence months after the summary judgment deadline and without leave of court. Moreover, considering it at this late juncture without permitting Defendant an opportunity to respond or offer competing evidence would unfairly prejudice Defendant. Accordingly, the Court will strike Dkt. No. 72-1.

Applicable Legal Standard

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Catrett, 477 U.S. at 323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). Where, as is the case here, parties file cross-motions for summary judgment, the Court "review[s] each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party." Duval v. N. Assur. Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013).

"After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted." Westphal, 230 F.3d at 174. If, however, the party moving for summary judgment fails to satisfy its initial burden of demonstrating the absence of a genuine issue of material fact, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

Analysis

Coleman hasn't met her burden with respect to fending off Defendant's Motion for Summary Judgment. She likewise hasn't demonstrated entitlement to summary judgment. The undisputed, competent summary judgment evidence establishes that Coleman irrevocably elected to pursue a retaliatory hostile work environment claim through her Union's assisted negotiated grievance procedure. To the extent any matters remain in this case that Coleman didn't elect to grieve, Coleman hasn't shown a prima facie case of retaliatory hostile environment or carried her burden to bring into question Defendant's nonretaliatory explanations for its actions taken with respect to Coleman. Accordingly, judgment should be granted as a matter of law for Defendant.

Coleman's Election of the Negotiated Grievance Procedure. Title VII of the Civil Service Reform Act (also known as the Federal Service Labor- Management Relations Act), 5 U.S.C. §§ 7101-35, governs the methods and manner by which a federal-sector employee with exclusive union representation, such as Coleman, may challenge an adverse personnel decision by the government agency that employs her. See Rosell v. Wood, 357 F. Supp. 2d 123, 128 (D.D.C. 2004). The Act provides in relevant part:

An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first.

There's no dispute that the Act applies to Coleman and that Coleman's collective bargaining agreement permitted her to pursue her current retaliatory hostile work environment claim. Moreover, the undisputed summary judgment evidence reveals that Coleman elected to proceed with her union's grievance process months before she filed her formal charge of reprisal with the EEO. See Dkt. Nos. 60-5 at 12-15, 60-6. Coleman's 2013 consultation with the EEO counselor isn't sufficient to constitute an election of EEO process. See Douglas v. Norton, 167 F. App'x 698, 708 n. 14 (10th Cir. 2006) (citing 29 C.F.R. § 1614.301(a) ("An election to proceed under this part is indicated only by the filing of a written complaint; use of the pre-complaint process as described in § 1614.105 does not constitute an election for purposes of this section.")). Accordingly, at issue here is whether Coleman's present retaliatory hostile work environment claim concerns the same "matter" that Coleman grieved. If it does, it must be dismissed. See 29 C.F.R. § 1614.301(a).

The Fifth Circuit has yet to provide guidance on what constitutes the same "matter" for purposes of § 7121(d), and even district court decisions from this circuit on the issue are sparse. Cases outside this circuit, however, provide some nonbinding guidance. Two leading cases addressing this issue are Bonner v. Merit Systems Protection Board, 781 F.2d 202 (Fed. Cir. 1986), and Facha v. Cisneros, 914 F. Supp. 1142 (E.D. Pa. 1996), aff'd, 106 F.3d 384 (3d Cir. 1996). The Federal Circuit in Bonner held that the term "matter" for purposes of § 7121(d) refers to the "underlying action" challenged in the employee's collective bargaining grievance or the EEO complaint. 781 F.2d at 205. The district court in Facha embraced the Bonner Court's definition of the term "matter" but still encountered difficulty in determining the "matters" the plaintiff placed at issue when she filed her grievance. In resolving this issue, the Court in Facha "relied on practical necessity" and compared the plaintiff's grievance "side-by-side" to her EEO complaint. 914 F. Supp. at 1148-49. If the plaintiff "raised a topic in both documents, or if the arbitrators assigned to handle the grievance would necessarily have needed to inquire into a topic in discharging their duties," the Court reasoned, then "§ 7121(d) bars her from raising that same topic in her subsequent EEO complaint." Id.

Many courts have adopted the Facha/Bonner analysis. Following that approach, the resulting decisions make clear that the term "matter" encompasses more than the precise legal claims or legal theories asserted. In determining the "matter" grieved, these courts have looked to the "topics raised" and whether the grievance and complaint are "rooted in the same factual nucleus." See, e.g., Heimrich v. Dep't of the Army, 947 F.3d 574, 580 (9th Cir. 2020); Rosell v. Wood, 357 F. Supp. 2d 123, 130 (D.D.C. 2004); Guerra v. Cuomo, 176 F.3d 547, 550 (D.C. Cir. 1999). The Court finds these decisions helpful.

A side-by-side comparison of Coleman's grievance and EEO charge reveals a large amount of overlap. Coleman grieved two adverse employment actions: (1) the January 22, 2016 reprimand and (2) her lateral transfer out of CEX. And Coleman complained that these personnel actions were prohibited because they resulted from an overall conspiracy to retaliate against her for complaining of Monroe's sexual harassment and providing truthful testimony in support of Wilson's sexual harassment charge. See Dkt. No. 60-6; Dkt. No. 60-1 at 22. Coleman's EEO charge similarly complains that Defendant laterally transferred her from CEX and issued the Letter of Reprimand because she assisted with Wilson's charge of sexual harassment. See Dkt. No. 60-5 at 12-15.

Coleman's EEO charge adds more details not mentioned in her grievance. See id. For example, Coleman complains in her EEO charge that her transfer out of CEX—without adequate training and proper documentation and at a time when members of CEX were being considered for a GS-11 promotion—has effectively stifled her advancement and promotional opportunities. See id. She also claims that her supervisors were subjecting her to increased scrutiny and isolating her from coworkers. But Coleman never objected to the Air Force's exclusion of these details when it limited its investigation of Coleman's charge to her March 22, 2016 transfer and Roesch's alleged failure to ensure she was adequately trained.

While some of the details regarding Coleman's present retaliatory hostile work environment claim that are referenced in her EEO charge aren't specifically mentioned in her grievance, those details are all—according to Coleman—evidence of the same overall conspiracy. And that is the same conspiracy that Coleman grieved. Coleman also testified concerning the alleged incidents at great length at her arbitration, even if the details of that testimony aren't necessarily included in the grievance itself. Specifically, Coleman explored during the arbitration her allegations that—in retaliation for supporting Wilson's charge of discrimination and separately reporting Monroe—the following occurred: (1) Monroe gave her mean looks and both he and others in CEX refused to talk to her and called her names; (2) supervisors monitored her activities and even watched when she went to the ladies room; (3) she was removed from her computer for three months; (4) she was transferred out of CEX; (5) she was written up on several occasions, including the January 22, 2016, Letter of Reprimand; (6) the Agency refused to train her or provide her with the necessary detail paperwork documenting her transfers, essentially creating a work environment where Coleman can't succeed; (7) Monroe assaulted her in 2016; and (8) Coleman's current supervisors and other employees "are ordered to harass, ostracize, and treat Ms. Coleman unfairly." See Dkt. No. 60-1 at 15-20, 24, 27, 23, 32-34, 39; Dkt. No. 60-9 (Union's closing arbitration brief).

In sum, Coleman argued during arbitration that she "works in a hostile environment and is threatened on a continued basis" because she "ma[de] complaints that expose[d] the revolting working conditions and the hypocrisy of the 'complaint process.'" Dkt. No. 60-9 at 13-14. Although Coleman couched her grievance under a different legal theory—i.e., her belief that the Air Force committed various prohibited personnel practices—to prove this claim, Coleman argued and submitted extensive testimony of an allegedly retaliatory hostile work environment. In doing so, Coleman presented the same topics and underlying "factual nucleus" at arbitration that she now attempts to raise in this litigation. See, e.g., Guerra, 176 F.3d at 550; Heimrich, 947 F.3d at 580; Rosell, 357 F. Supp. at 130. Coleman elected to tell her story to the arbitrator, told her story to the arbitrator, and is now dissatisfied with the arbitrator's detailed ruling. Because Coleman irrevocably elected to pursue her retaliatory hostile work environment claim via her Union's grievance process, her claim in this litigation that attempts to revisit those same allegations must be dismissed. See 29 C.F.R. § 1614.301(a).

Coleman fails to persuade the Court with her contention that the "matter" arbitrated was limited to the narrow issue of whether her lateral reassignment constituted a prohibited personnel practice in violation of 5 U.S.C. § 2302(b)(8) and/or 5 U.S.C § 2302(b)(9) and therefore "is not the same or even related to the current claim before this court." To start, a plaintiff's irrevocable election occurs "at such time as the employee . . . timely files a grievance in writing." 5 U.S.C. § 7121(d). Thus, although Coleman conceded that the portion of her grievance related to her Letter of Reprimand was moot, this later development isn't determinative. Coleman still elected to pursue the matter of her Letter of Reprimand through the grievance process. And a review of the grievance, the arbitrator's opinion, and the union's closing brief reveals that all parties acted under the belief that resolving the grievance required the arbitrator to inquire into the very same facts and events that form the basis of Coleman's present retaliatory hostile work environment claim. See Facha, 914 F. Supp. at 1148-49 (explaining that if an arbitrators assigned to handle the grievance would necessarily have needed to inquire into a topic in discharging their duties, then § 7121(d) bars her from raising that same topic in her subsequent EEO complaint").

Nor does the arbitrator's assertion that Coleman's EEO charge is "separate and distinct from this case" control the Court's inquiry. Reviewing the arbitrator's decision in context reveals that she only formed this belief based on Coleman's representation that the EEO charge was limited to Coleman's claim that she was passed over for a promotion. The District Court dismissed Coleman's failure to promote claim.

Notably, Coleman hasn't cited any cases to support her narrow view of the term "matter," as it applies in this context. And to adopt Coleman's proffered view of the term would "frustrate the election provisions of § 7121(d)" and permit her to relitigate claims she presented at great length in arbitration. Facha, 914 F. Supp. at 1148-49.

Matters Possibly Not Covered by Coleman's Grievance and Resulting Arbitration. Very little—if anything—remains of Coleman's case once the arbitration is considered. As just discussed, the vast majority (if not entirety) of Coleman's complaints involve events that occurred before, or were litigated extensively in, her arbitration proceeding. If anything remains that wasn't already covered in the arbitration, that remainder involves events that somehow fall into an awkward middle ground; these remainders are alleged facts and events that are sufficiently related to pre-arbitration matters that they could reasonably be expected to grow out of those pre-arbitration matters (which is needed for purposes of exhaustion) and yet weren't specifically taken up and addressed by the arbitration. But even the few discrete facts and events that occurred after the arbitration are not sufficiently distinct from the matters addressed at the arbitration to qualify as a different "matter" under § 7121(d). This is primarily the case because the retaliatory animus alleged here began before, and was addressed within, the grievance and arbitration; what remains are further allegations of alleged harm from that same alleged retaliation already addressed in arbitration.

Regardless, the only possible matters not covered by Coleman's grievance and the ensuing arbitration would involve Coleman's assertions that (1) her current unit refuses to provide her with needed training or meaningful work assignments; (2) she isn't permitted to wear hats or headphones, or to adjust her schedule for medical appointments without taking leave; and (3) Roesch refused her requests for a copy of the CDI. These additional matters—even assuming for argument's sake they aren't barred under § 7121—fail to assist Coleman now. Defendant urges—persuasively—that Coleman hasn't pointed to specific evidence related to these allegations that could establish a prima facie case of retaliatory hostile work environment. Defendant also persuasively contends that Coleman hasn't pointed to evidence sufficient to suggest that Defendant's proffered legitimate nonretaliatory explanations for these events are in reality pretextual. Further, Coleman elected to pursue the matter of her headphones and hats via a separate grievance, and the District Court dismissed a claim for failure to train.

1. Lack of Training and Work. Coleman identifies her current supervisor as Mike Arzate, and it is Mr. Arzate along with Roesch who she apparently identifies as the primary culprits in connection with her allegations of insufficient training and lack of work assignments. See Dkt. No. 72 at 3 & n.2. The primary stumbling block here, to be frank, is that time and again events occurring later in this saga are conflated or jumbled together by Coleman with events from much earlier or that otherwise are indisputably intertwined with matters addressed at great length in the arbitration. But it is not the Court's obligation to comb through the record to divine precisely what happened, when it happened, and who did it, when that information is not apparent after a time-consuming, careful review of the briefs and record.

Ultimately, Coleman hasn't sufficiently identified evidence that suggests her supervisor, Mike Arzate, knew about her prior complaints when he allegedly failed to provide her with training or work assignments. To the contrary, the evidence submitted by Coleman reveals that Arzate wasn't aware that Coleman had previously engaged in protected activity. See Arzate Dep. (Dkt. No. 66-14) 96:12-18. Nor is there any evidence suggesting that Roesch directed Arzate not to train Coleman or provide her work. To the contrary, Arzate testified that Roesch told him to "[t]ry to get [Coleman] whatever she needs . . . to where she can be successful." Id. 94:4-17. Absent any such evidence suggesting Arzate's knowledge of the alleged protected activity at the heart of Coleman's claim or even Roesch's intervention in preventing Coleman from training or receiving work, Coleman can't establish the necessary causal link between the alleged harassment and her protected activities.

Nor has Coleman sufficiently identified any evidence suggesting that Defendant's proffered legitimate, nonretaliatory reasons for Coleman's lack of work are a pretext for unlawful retaliation. According to Arzate, workflow for his unit is typically distributed on a volunteer basis. See id. 65:10-14; 104:3-105:16. Employees will complete a work-request form when they see work they want to take up. See id. 33:24-17. Although Coleman appears to claim that she can't request work due to problems with her email access, Arzate testified—and Coleman hasn't introduced any evidence suggesting otherwise—that Coleman is responsible for resolving this issue with the Information Technology ("IT") department. See id. 32:31-34:-17; 105:10-12. Coleman also hasn't identified any evidence suggesting that IT delayed resolving her computer issues because she had previously engaged in protected activity, let alone evidence to suggest that Arzate or some other supervisor could somehow be responsible for any such delay.

Moreover, Arzate testified that he provided Coleman with an assignment soon after she transferred to his unit, several years ago, so he could "figure out where her skillset was at." See id. 23:17-25:17. To date, however, Coleman hasn't turned in this assignment, let alone followed up with Arzate about it. See id. In light of Coleman's failure to complete this initial assignment and Coleman's insistence that she can't do the work, Arzate hasn't sought Coleman out to specifically assign her further work. Id. 50:24:-53:20; 56:3-58:9; 60:20-62:1. In Arzate's opinion, Coleman simply doesn't have the intrinsic drive or interest in doing the work. Id. 53:9-13; 57:3-4. Nevertheless, Arzate testified that he hasn't written Coleman off. He is waiting for Coleman to "step up to the plate" to be part of the team. Id. 773:16-74:21; 76:8-77:14. Further, according to Arzate, there is "enough work" for all members of his unit, including Coleman. Id.

In an attempt to show a triable issue on pretext, Coleman appears to argue that her lack of qualifications prevents her from performing work and that she isn't qualified because the Air Force has refused to train her. But Arzate testified that he sent Coleman to training on at least eight occasions, and she "was afforded the same exact training that everyone else in [the] section . . . has been afforded." Id. 56:23-57:1. Had Coleman successfully completed these training courses, according to Arzate's unchallenged testimony, Coleman would've had the minimal skillsets to complete her assignments. Id. 21:15-19; 26:7-27:24; 45:3-22; 55:23-25. These lack-of-training arguments, moreover, are at odds with the District Court's dismissal of the failure to train claim.

The declaration of Coleman's former co-worker John Dotter doesn't point to a genuine issue of material fact on the training issue either. According to Dotter, "it was obvious to [him] that Ms. Coleman had not been given the training to become a qualified Engineering Technician." Dotter Decl. (Dkt. No. 66-15) ¶ 11. But neither Coleman nor Dotter have directed the Court to any evidence suggesting that Coleman asked for a specific assignment or a specific training opportunity and was denied that request. Dotter's belief that retaliation fueled Coleman's lack of training and work is mere speculation. Moreover, the majority of other alleged hostile actions noted by Dotter, such as Defendant's alleged monitoring of Coleman, isolation of her, and removal of her computer were matters she elected to pursue via her grievance. See supra at 19. In any event, these alleged retaliatory actions aren't sufficiently severe or pervasive to alter the terms and conditions of Coleman's employment.

Essentially, Coleman takes issue with the fact that she was transferred out of CEX into a position in engineering she contends she wasn't qualified to perform and without the training she was promised. That matter, however, was already addressed by Coleman's grievance. See supra at 18-21. And, Coleman's failure to train claim was previously dismissed by the District Court. See Dkt. No. 23 at 20-21.

2. Inability to Wear Hats or Headphones, or Adjust Her Work Schedule, and Refusal to Provide a Copy of the CDI. Coleman's assertion that Defendant refuses to permit her to wear hats or adjust her work schedule and declined to provide her with a copy of the CDI upon her request similarly fails. First, Title VII is not a "'general civility code' that provides for 'the ordinary tribulations of the workplace.'" Montgomery-Smith, 810 Fed. App'x at 259 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Accordingly, conduct such as this isn't sufficiently severe to amount to a change in the terms and conditions of Coleman's employment. See id. Moreover, Coleman has failed to note any evidence rebutting Defendant's legitimate non-discriminatory reason for its refusal to provide Coleman with a copy of the CDI at her request. As Roesch explained to Coleman, the FOIA process was the proper way to secure a copy of the CDI. See Roesch Dep. (Dkt. No. 66-4) 53:11-54:13. Coleman hasn't directed the Court to any evidence suggesting that the reason for Roesch's refusal was pretextual, like evidence that Defendant regularly provides copies of CDIs to other employees upon request under similar circumstances. Cf. Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) ("Disparate treatment of similarly situated employees is one way to demonstrate unlawful discrimination and retaliation.").

Finally, Coleman appears to concede that the matter of the Air Force's alleged "disparate treatment" by refusing to permit her to use headphones and hats was the subject of a separate grievance filed on February 3, 2016. See Stripling Decl. ¶ 16. Accordingly, this claim is also barred by § 7121(d). The fact that Coleman may not have mentioned "retaliation" or "hostile work environment" in her grievance isn't dispositive of the issue. See, e.g., Heimrich, 947 F.3d at 580 (explaining that the term "matter" is "broader than 'legal theory': it refers to the factual basis of the employee's adverse action.").

For all these reasons, Coleman's case should be dismissed.

Conclusion and Recommendation

For the reasons discussed above, it is recommended that Defendant's Motion, Dkt. No. 60, be GRANTED, Plaintiff Coleman's Motion, Dkt. No. 62, be DENIED, and this case be DISMISSED on the merits but without prejudice to Coleman's right to proceed through the negotiated grievance procedure, including the right to appeal to the Commission from a final decision. To the extent the District Court adopts this recommendation, the order dismissing Coleman's case should advise Coleman of her obligation to raise discrimination and retaliation in the grievance process and of the right to appeal the final grievance decision to the Commission. See 29 C.F.R. § 1614.301(a).

IT IS ORDERED THAT the supplemental evidence filed by Coleman on December 16, 2020, see Dkt. No. 72-1, is STRUCK. Finally, Defendant's request to strike Coleman's declaration, Dkt. No. 65, is DENIED.

Having considered and acted upon all matters for which the above-entitled and numbered case was referred, it is ORDERED that the above-entitled and numbered case is RETURNED to the District Court for all purposes.

Instructions for Service and Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "filing user" with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

IT IS SO ORDERED.

SIGNED this 23rd day of February, 2021.

/s/_________

RICHARD B. FARRER

UNITED STATES MAGISTRATE JUDGE