                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0362n.06

                                         No. 16-6482                                 FILED
                                                                               Jun 23, 2017
                                                                           DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

LORRAINE CARRETHERS,                                   )
                                                       )
       Plaintiff-Appellant,                            )
                                                       )
v.                                                     )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
ROBERT SPEER, Acting Secretary, Department of          )      COURT FOR THE WESTERN
the Army,                                              )      DISTRICT OF KENTUCKY
                                                       )
       Defendant-Appellee.                             )
                                                       )

BEFORE: SILER, McKEAGUE, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.              Lorraine Carrethers, a black female, was

employed by the Department of the Army (the Army) as a civilian information-technology (IT)

specialist. After the Army terminated her employment in 2013, a decision later affirmed by the

Merit Systems Protection Board (MSPB), Carrethers filed this action against the Secretary of the

Army. She alleges that she was discharged in retaliation for (1) engaging in activity protected

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Title VII), and (2) making

disclosures protected under the Whistleblowers Protection Enhancement Act of 2012, 5 U.S.C.

§ 2302 (the WPA). She asserts a third count challenging the MSPB’s decision. The district

court found that Carrethers failed to state a claim and granted the Army’s motion to dismiss.

We REVERSE.
No. 16-6482, Carrethers v. Speer


                                                     I

                                                    A

       Carrethers was hired by the Army in 1998 as a civilian IT specialist. Around February

2013, she informally complained to the Army’s Equal Employment Opportunity (EEO) office

that she had been the target of racially offensive comments and fits of rage from her supervisors,

Theresa McGuire and Dave Cathell, causing her to suffer from panic attacks and to be diagnosed

with post-traumatic stress disorder. She subsequently filed a formal complaint with the Equal

Employment Opportunity Commission (EEOC) alleging a race-based hostile workplace.

       Prior to filing her EEOC complaint, Carrethers also complained internally of sexual

harassment by McGuire. On December 4, 2013, Colonel Roger Basnett began investigating

Carrethers’ internal complaints pursuant to Army Regulation 15-6, Procedures for

Administrative Investigations and Boards of Officers. Colonel Basnett’s investigatory report,

dated December 19, 2013, stated:

               There were no substantiated facts from Ms. Carrethers’ testimony or sworn
               statement. I interviewed all witnesses that Ms. Carrethers provided to me that
               she stated could substantiate the alleged misconduct by Ms. McGuire and Mr.
               Cathell toward her. None of the fourteen witnesses I interviewed either
               confirmed or supported any of the allegations Ms. Carrethers made against Ms.
               McGuire or Mr. Cathell. More importantly, all witnesses stated that both Ms.
               McGuire and Mr. Cathell always acted professionally to all Division employees,
               including Ms. Carrethers.

               It is my conclusion that Ms. Carrethers is abusing the system to cover up her
               inability to perform assigned duties at her current grade (GS-14). It was
               extremely clear to me that Ms. Carrethers make [sic] things up throughout the
               interview and I believe the command should send a strong signal to this
               employee that her continued misuse of the command’s resources with false
               allegations of misconduct against her coworkers will not be tolerated.

R. 21-1, PID 98–99.

       Before reaching this conclusion, Colonel Basnett’s report noted that witnesses suggested

by Carrethers did not recall the incidents of sexual harassment she alleged, that McGuire stated

she was afraid of Carrethers and avoided her unless they were in the presence of others, and that

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throughout the course of his interview with Carrethers “she could not keep any information

straight between any of her formal complaints and her story changed numerous times throughout

the interview.” Id. at PID 96. The Army notified Carrethers on March 28, 2014 that it proposed

to discharge her for “[m]aking unsubstantiated and inappropriate remarks against your first-line

and second-line supervisors,” specifically noting her accusations that McGuire winked and blew

kisses at her, and peeped at her in the office restroom. R. 21-3, PID 126. A month later,

Brigadier General David MacEwen discharged her.

       Carrethers appealed her discharge to the MSPB, Case No. CH-0752-14-0549-I-1, as

being in retaliation for her workplace complaints, and an administrative judge (AJ) held a two-

day evidentiary hearing and issued a reasoned decision, including six pages of factual findings.

The AJ concluded that Carrethers failed to present evidence refuting the Army’s charge that she

made false accusations, and affirmed the Army’s decision.

       The parties settled Carrethers’ racial-hostility EEOC complaint, Case No. 470-2014-

00090X, and expressly agreed that their settlement agreement was “in settlement of EEOC No.

470-2014-00090X, Agency No. ARKNOX13FEB0468 only and does not apply to MSPB Case

No. CH-0752-14-0549-I.1.” Settlement Agreement, R. 13, PID 67.

                                                B

       Carrethers now pursues a “mixed case” action under 5 U.S.C. § 7702(a)(1)(A). In her

district-court complaint, Carrethers alleges that in February 2013 she complained internally of

racial harassment, and that in October 2013 she complained of four instances of what she

reasonably believed constituted sexual harassment: “(1) on or about May 15, 2013, McGuire

peeped into the bathroom stall where Carrethers was urinating; (2) on June 5, 2013, McGuire

stated that Carrethers ‘liked’ her and kept smiling at her; (3) on or about December 17, 2013, her



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first line supervisor, Theresa McGuire winked at her, blew kisses at her and acted provocatively

toward her; and (4) McGuire mocked and belittled Carrethers in the presence of her co-workers

and superiors.” Compl., R. 1, PID 4. Carrethers alleged that her internal complaint resulted in

the termination of her employment: “[o]n October 31, 2013, Defendant issued Carrethers a

Letter of Reprimand for alleged discourtesy and making unsubstantiated statements . . . .,” that

“[o]n or about March 28, 2014, Defendant notified Carrethers of its intent to remove her because

it could not substantiate the allegations of sexual harassment that she made . . . .,” and that

“Defendant discharged Carrethers’ employment on April 9, 2014.”            Id.   Her district-court

complaint also recited the history of her EEOC complaint, but omitted any mention of the EEOC

settlement agreement.

       Carrethers asserted two retaliation counts, on the basis that she complained of racial and

sexual harassment and was discharged as a result. Count 1 asserted that she engaged in protected

activity under Title VII, and Count 2 asserted that she made disclosures protected under the

WPA. A separate Count 3 challenged the MSPB’s decision affirming her discharge as lacking

substantial evidence in the administrative record, and as being arbitrary, capricious, and an abuse

of discretion.

       The Army moved to dismiss the district-court complaint for failure to state a claim. See

Fed. R. Civ. P. 12(b)(6). In its motion to dismiss, the Army argued (1) that Carrethers was

estopped by the parties’ settlement agreement (which was attached to the motion) from asserting

a claim based on the facts underlying her EEOC complaint, (2) that she pleaded no facts tending

to show that she was discharged for engaging in protected activity under Title VII or making

disclosures protected under the WPA, and (3) that she pleaded no facts tending to show that the




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MSPB decision affirming her discharge was unsupported by substantial evidence, or was

arbitrary, capricious, or an abuse of discretion.

       The district court dismissed Carrethers’ suit partly on the basis that she was estopped

from asserting the racial component of her retaliation claims because it was barred by the

settlement agreement. Further, the court held that apart from this estoppel, Carrethers failed to

allege sufficient facts to adequately plead her retaliation and MSPB claims. Specifically, the

court considered the sexual-harassment-related allegations to be insufficiently pleaded because

the district-court complaint does not state whether Carrethers complained to a supervisor, EEO

representative, or other person; how or where she complained of sexual harassment, including

whether in person, by completing a form, making a phone call, or sending an email; and whether

the sexual-harassment complaint was informal or formal.              The district court dismissed

Carrethers’ third count—appeal of the MSPB’s decision—because it found that she pleaded no

facts supporting it and instead merely asserted legal conclusions. In its memorandum opinion,

the district court stated that it was not treating the Army’s motion as a motion for summary

judgment, despite the inclusion of exhibits, and it did not rely on any exhibit other than the

EEOC settlement agreement. Carrethers timely appeals.

                                                    II

                                                    A

       We review de novo the grant of a motion to dismiss for failure to state a claim.

Wilmington Trust Co. v. AEP Generating Co., 854 F.3d 332, 336 (6th Cir. 2017); see also Fed.

R. Civ. P. 12(b)(6).

       In reviewing the district court’s dismissal of Carrethers’ complaint, we must determine

whether she sufficiently pleaded “a claim to relief that is plausible on its face.” Bell Atl. Corp. v.



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Twombly, 550 U.S. 544, 570 (2007); see also Pedreira v. Kentucky Baptist Homes for Children,

Inc., 579 F.3d 722, 728 (6th Cir. 2009). We take well-pleaded facts as true. Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009). A pleading will not “suffice if it tenders ‘naked assertions’ devoid of

‘further factual enhancement.’” Id. at 678 (quoting Bell Atl. Corp., 550 U.S. at 557), and we do

not accept as true “legal conclusion[s] couched as . . . factual allegation[s].” Bell Atl. Corp.,

550 U.S. at 555 (internal citation and quotation marks omitted). Rather, in order to “unlock the doors

of discovery,” a plaintiff must plead “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The liberal

pleading standard applicable to civil complaints does not require that a retaliation complaint set forth

specific facts establishing a prima facie case, but it must allege facts that establish a plausible claim

to relief. See Keys v. Humana, 684 F.3d 605, 609–10 (6th Cir. 2012).

        The inclusion of attachments to a motion to dismiss that serve only to clarify the issues and

that do not rebut, challenge, or contradict allegations in a complaint, does not convert a motion to

dismiss into a motion for summary judgment. Song v. City of Elyria, Oh., 985 F.2d 840, 842 (6th

Cir. 1993).

        Title VII prohibits retaliation against an employee because she opposed a prohibited

employment practice—such as racial or sexual harassment—or “because [s]he has made a

charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing [under Title VII].” See 42 U.S.C. § 2000e-3(a). In order to establish a prima facie case

of retaliation under Title VII, a plaintiff’s complaint must show that (1) she engaged in protected

activity under Title VII, (2) the defendant was aware of this activity, (3) she was subjected to an

adverse employment action by the defendant, and (4) there was a causal connection between the

protected activity and the adverse employment action. Taylor v. Geithner, 703 F.3d 328, 336

(6th Cir. 2013).

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       The WPA prohibits government officials with personnel authority from “tak[ing] or

fail[ing] to take, or threaten[ing] to take or fail to take, a personnel action with respect to any

employee . . . because of . . . any disclosure of information . . . which the employee . . .

reasonably believes evidences . . . any violation of any law, rule, or regulation . . . .” 5 U.S.C.

§ 2302(b)(8). In order to establish a prima facie case of retaliation under the WPA, a plaintiff’s

complaint must show that (1) the acting official had the authority to take, recommend, or

approve the complained-of employment action, (2) the plaintiff made a disclosure protected

under 5 U.S.C. § 2302(b)(8), (3) the acting official took, or failed to take, a personnel action

against the plaintiff, and (4) there was a causal connection between the protected disclosure and

the personnel action. Drake v. Agency for Int’l Dev., 543 F.3d 1377, 1380 (Fed. Cir. 2008)

(citation omitted).

       Judicial review of an MSPB decision is generally in the Federal Circuit on the

administrative record, 5 U.S.C. §§ 7703(b)(1), 7701(c)(1)–(3); where the employee also has

claims under certain anti-discrimination laws, including Title VII, such cases proceed in district

court, id. at § 7703(b)(2) (citing id. at § 7702), where the plaintiff is entitled to trial de novo of

the facts regarding her discrimination claims. Id. at § 7703(c).

                                                  B

       We turn first to Carrethers’ two retaliation counts.

       The district court held that Carrethers is estopped from asserting the racial component of

her retaliation claims due to her EEOC settlement agreement with the Army. As a result, it never

considered her allegations regarding racial harassment and whether they helped establish a

factual predicate to retaliatory discharge. On appeal, the Acting Secretary concedes that this

holding was erroneous and that the parties’ settlement agreement does not cover retaliation



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claims. See Appellee’s Br. at 9–10 (“[T]he Army does not argue that Carrethers’ claims are

barred—simply that her Complaint was factually deficient and thus failed to state a claim upon

which relief could be granted.”). Given this concession, we must examine Carrethers’ complaint

and determine whether her allegations that she was discharged in retaliation for complaining of

racial and sexual harassment establish a plausible claim for relief, mindful that at the pleading

stage Carrethers need not establish a prima facie case of discrimination. See Keys, 684 F.3d at

609–10.

       Carrethers’ district-court complaint asserts factual allegations that make out a plausible claim

for relief. She alleges that she complained (first informally, and then in a formal EEOC complaint)

that her supervisors McGuire and Cathell subjected her to a hostile work environment on the basis of

her race; that she complained of four specific instances of sexual harassment by McGuire; that she

was reprimanded for “discourtesy and making unsubstantiated statements”; and that the Army told

her she was being discharged because “it could not substantiate the allegations of sexual harassment”

she made. Compl., R. 1, PID 3. Although she does not allege specific facts regarding in what

manner she complained of sexual harassment, her allegation that the Army said it could not

substantiate the complaint necessarily implies that Army officials were aware of it. Cf. Johnson v.

Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (“The [EEOC] has identified a number of

examples of ‘opposing’ conduct which is protected by Title VII, including complaining to anyone

(management, unions, other employees, or newspapers) about allegedly unlawful practices . . . .”).

Taken together, these allegations allow one to “draw the reasonable inference” that (1) Carrethers

engaged in protected activity under Title VII or made protected disclosures under the WPA

concerning racial and sexual harassment, (2) an Army official terminated her employment, (3) and

this termination resulted from her protected activity or disclosures. Importantly, Carrethers asserts




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that the Army expressly told her that she was being discharged because it could not substantiate her

sexual-harassment allegation.

       We do not pass on the merits of Carrethers’ retaliation claims or any defenses the Army

might raise; we address only the adequacy of the complaint. See Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 512 (2002) (the “simplified notice pleading standard [of Fed. R. Civ. P. 8(a)(2)]

relies on liberal discovery rules and summary judgment motions to define disputed facts and

issues and to dispose of unmeritorious claims.”); see also Bell Atl. Corp., 550 U.S. at 556 (“[A]

well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those

facts is improbable . . . .”) (citation omitted). Carrethers has established a plausible claim that

she will be able to establish a prima facie case of retaliatory discharge for engaging in activity

protected under Title VII or making disclosures protected under the WPA.

                                                 C

       We turn next to Carrethers’ claim challenging the MSPB’s decision.                 Count 3

incorporates all the factual allegations preceding the MSPB count and asserts that “[t]here was

not substantial evidence in the administrative record for the MSPB to uphold the [Army’s]

decision to remove [Carrethers] from employment” and that “[t]he MSPB’s findings were

arbitrary, capricious and an abuse of discretion.” Compl., R. 1, PID 6.

       Although at first blush the allegations in Count 3 are spare, we “must construe the

complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true,

and determine whether the plaintiff undoubtedly can prove no set of facts in support of [her]

claims that would entitle [her] to relief.” Columbia Nat. Res., Inc. v. Tatum, 58 F.3d 1101, 1109

(6th Cir. 1995). In this light, because Count 3 incorporates all of the complaint’s preceding

factual allegations, it is “plausible” that those facts, taken as true, render the MSPB’s decision



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arbitrary, capricious, an abuse of discretion, or lacking substantial evidence. Bell Atl. Corp.,

550 U.S. at 570.

                                              III

       For the foregoing reasons, we REVERSE the dismissal of the complaint and REMAND

for further proceedings.




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