Labor & Employment Law Daily Wrap Up, DISCRIMINATION—D.D.C.: Retired former director of administration at NLRB fails to advance bias claims, (Mar 11, 2026)

By Todd Harrison, J.D.

Once the highest ranking African-American woman at the agency, her final years were rife with discord when an agency official she had complained about became her supervisor.

Granting summary judgment to the NLRB against a retired former director’s claims of discrimination and a hostile work environment, a federal court in the District of Columbia found that the employee had failed to adduce any evidence that the actions taken against her during her final years at the agency were pretextual. Before an agency official assumed the role of acting general counsel and became the employee’s supervisor, the employee had lodged and ultimately settled an administrative complaint of race and gender discrimination against him and several others. Upon his appointment to acting general counsel, he learned of several problems within the Division of Administration, resulting in the employee being stripped of certain responsibilities (Joseph v. Kaplan, No. 22-cv-2881 (CRC) (D.D.C. Mar. 10, 2026)).

The employee in this case, an African-American woman, worked at the NLRB from 1973 until her retirement in 2012. In 1990, she became the agency’s director of administration. Within that role, she supervised seven branches, including its financial management branches and the human resources branch.

EEO complaint. In 2008, the employee filed an EEO complaint related to changes that the then-chairman of the NLRB had made to her performance appraisal. Her complaint alleged that the chairman and other agency officials, including her future supervisor, had engaged in race and sex discrimination. The complaint was settled in 2009. The following year, President Obama appointed one of the agency officials named in the complaint to acting general counsel, making him the employee’s second-line supervisor.

Problems uncovered. Shortly after his appointment, the acting general counsel learned of several problems within the Division of Administration. The chief of the facilities branch left the agency after five months, complaining of the employee’s management style. The employee then hired a new chief without consulting with her supervisor. Other managers and administrators also complained of “hostile working conditions” and “favoritism” within the division. The chief of the human resources branch also resigned after only a few months in her role.

In light of these conditions, the supervisor engaged an outside consultant who had previously worked with the NLRB to speak with the division’s staff and assess the workplace environment. The report, according to the supervisor, identified “disturbing issues within the Division of Administration” that “needed to be addressed.”

Reorganization. Despite the employee’s critique of the report, her supervisor concluded that the human resources branch was not functioning as it should. Accordingly, he appointed a new chief of the branch and asked his executive assistant to oversee the branch’s reorganization. As part of this process, it was decided that the branch would be separated from the Division of Administration.

Around this same time, the supervisor sought to correct issues with the financial management branches, which began after audits of the agency’s financial statements revealed a “significant deficiency” in its internal financial controls. He and the NLRB chairman employed the National Academy of Public Administration (NAPA) to conduct an audit and report.

NAPA’s final report endorsed the creation of a chief financial officer position that would oversee the financial management branches. As such, the financial management branches were moved from the Division of Administration to the CFO’s office.

Other side of EEO complaint. In early 2012, the employee was the subject of an EEO complaint. A former human resources branch supervisor alleged that the employee and other division supervisors discriminated and retaliated against him by, among other things, downgrading his performance appraisal. The EEO drafted a final agency decision (FAD) concluding the agency had engaged in discrimination and retaliation.

Lawsuit. After the employee retired from the agency in August 2012, she filed this lawsuit in September 2022, alleging that the NLRB had discriminated against her based on her race and sex, retaliated against her for engaging in protected activity, and created a hostile work environment in violation of Title VII. After partially granting the NLRB’s motion to dismiss, the court here considered its motion for summary judgment against the employee’s remaining claims.

“Had it out for her.” First, the court considered the employee’s discrimination and retaliation claims, which shared the same premise. Namely, the supervisor purportedly “had it out for her” as an African-American woman, and “leveraged his influence to oust her from various posts” within the Division of Administration. The employee acknowledged that the NLRB put forward non-discriminatory and non-retaliatory reasons for its personnel decisions and FAD finding but contended that these explanations were pretextual.

Human resources branch. According to the employee, the NLRB discriminated and retaliated against her by removing the human resources branch from her supervision. In response, the NLRB contended that the branch was placed under new leadership because of worker complaints regarding the employee’s management style and high levels of attrition. The employee argued, without citation, that this explanation was not credible based on her long record of high performance. “In other words,” said the court, she “contends that any scrutiny of her job performance was unwarranted.”

In this instance, the court found the agency had identified considerable evidence corroborating its explanation for why it removed the human resources branch from the employee’s purview, including complaints about her leadership style and the resignation of the chief of the branch only a few months after accepting the position.

Because of these and other issues, the supervisor brought in an outside consultant to assess the workplace culture and to report her findings. Her report suggested a restructuring of the division as an independent division, leading the NLRB to place it outside of the employee’s control. The employee was unable to refute these non-discriminatory, non-retaliatory reasons for the agency’s decisions, and could not show pretext merely by criticizing the employer’s decisionmaking process, explained the court. Accordingly, the agency was entitled to summary judgment against these claims.

Financial management branches. Next, the employee asserted that the NLRB discriminated and retaliated against her by placing the financial management branches under the control of the new CFO position. The agency contended that the reorganization was “the result of pervasive evidence of mismanagement, along with recommendations from auditors and an independent entity that the [Financial Management] Branches be removed from the supervision of the Division of Administration.” In response, the employee argued that this decision contradicted “standard procedural norms” and thus supported a finding of pretext.

Here too the court found the employee came up short. The NLRB cited ample evidence that it created the CFO position in response to deficiencies in the agency’s internal financial controls. As to the employee’s assertion, she failed to support her claim with citations to the record, and the agency provided evidence that she was consulted during its review. The employee’s personal opinion about the decisionmaking process was insufficient to overcome the motion for summary judgment, explained the court.

FAD finding. The employee’s remaining discrimination and retaliation claim related to the FAD, which concluded that she had discriminated and retaliated against a coworker. The agency explained that the FAD’s factual findings justified its conclusions and there was no evidence the employee’s supervisor was involved in the FAD process. The employee argued that the “unprecedented issuance” of the FAD, which singles her out “while exonerating others with greater culpability,” suggests that the agency acted with a “retaliatory motive.”

On this point, the court found that the EEO issued the FAD pursuant to its general process. The employee’s “unsupported critiques of the FAD process fall well short of establishing pretext,” said the court. As to her claim that she was singled out, the court noted that the conclusions about the agency’s discriminatory and retaliatory practices were almost entirely directed at her deputy.

Because the employee failed to demonstrate why the agency’s explanation for the FAD was disingenuous or should be disbelieved, the court found that it was entitled to summary judgment on the employee’s discrimination and retaliation claim.

Hostile work environment. Finally, the employee alleged that the NLRB violated Title VII by maintaining a hostile work environment. Previously, the court had determined that the employee’s “additional allegations” of offensive behavior in the workplace, in isolation, did not plausibly allege treatment that was sufficient severe or pervasive to maintain such a claim. However, the court also considered the additional allegations alongside the employee’s discrimination and retaliation claims. Since the court assumed for purposes of the motion to dismiss that the employee would prevail on those claims, it could not rule out that, “as a whole,” they established a plausible hostile work environment claim.

At the summary judgment stage, assumptions are not enough, explained the court. The employee had failed to establish a genuine dispute of material fact as to whether the agency’s explanations for its employment actions against her were pretextual. In turn, there was no genuine dispute of material fact as to whether those actions constituted a severe and pervasive pattern of harassment, said the court. Accordingly, the court granted summary judgment against this claim as well.

The case is No. 22-cv-2881 (CRC).

Judge: Cooper, C.

Attorneys: Gloria Joseph, pro se. Fithawi Berhane, U.S. Attorney's Office, for Marvin Kaplan.

Cases: Discrimination RaceDiscrimination SexDiscrimination PublicEmployees Retaliation DistrictofColumbiaNews