OPINION AND ORDER The Court now considers a Motion for Summary Judgment by Defendant Federal Emergency Management Agency, together with individual defendants.1. In April 2015, Plaintiff Alison Kohler was terminated from a public relations role at FEMA that she had begun in February 2014. Kohler alleges that during her FEMA tenure she endured a hostile work environment based on her gender, in violation of Title VII; was terminated in retaliation for opposing discrimination against her visually impaired colleague, in violation of Title VII; suffered gender discrimination, in violation of Title VII; was terminated in violation of the Whistleblower Protection Act of 1989; was improperly denied review of her termination by the Merit System Protection Board (“MSPB”) pursuant to the Civil Service Reform Act of 1978 and the Civil Service Due Process Act of 1990 (together, the “CSRA”); and was otherwise denied due process rights in relation to her termination. FEMA counters that Kohler’s termination was based on documented poor performance, rather than gender discrimination or retaliation. FEMA also denies that Kohler engaged in whistleblowing activities at all. It also maintains that her termination is not reviewable by the MSPB and does not give rise to a due process claim. Upon careful consideration, the Court concludes that FEMA is entitled to summary judgment on all of Kohler’s claims. As to the retaliation claim, Kohler fails to demonstrate a prima facie case of retaliation or show that FEMA’s legitimate, non-discriminatory reason for terminating her was pretextual. As to the hostile work environment claim, Kohler has not shown that the environment at FEMA was subjectively or objectively hostile, nor that the incidents allegedly constituting the hostile environment were based on Kohler’s gender. For similar reasons, Kohler’s gender discrimination claim is also not viable. Kohler also fails to show that she engaged in any protected disclosure within the meaning of the Whistleblower Protection Act. The Court further concludes that the MSPB does not have jurisdiction over the appeal of Kohler’s termination because, given her temporary appointment to FEMA, she was not an employee within the meaning of the CSRA. Finally, the Court concludes that Kohler failed to show any basis on which she may have a property interest in her position at FEMA, such that she was entitled to due process. BACKGROUND Defendant FEMA is a federal agency that is responsible for, among other things, administering and coordinating the federal governmental response to Presidentially-declared disasters pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (“Stafford Act”), 42 U.S.C. §§5121 et seq. Plaintiff Alison Kohler worked at FEMA as a Public Relations Specialist in their External Affairs Department from February 2014 to March 2015. The “primary purpose” of Kohler’s position was “to serve as a team lead and senior advisor to the Regional External Affairs Division Director on public information, strategic messaging, congressional relations, and intergovernmental affairs involving the development and delivery of both emergency and non-emergency information programs to state and local government officials, the general public, the news media, Members of Congress and their staffs, the emergency management community, government and business associations and organizations, and other target groups.” 56.1 Reply 17. Accordingly, Kohler coordinated with program specialists and others at FEMA to get appropriate messaging, information, and support to congressional and state government officials and the public. Kohler alleges, and FEMA disputes, that she was subject to a hostile work environment based on her gender and was retaliated against for engaging in formal and informal protected activity by complaining about alleged discrimination against a visually impaired co-worker, James Flemming. It is undisputed that throughout Kohler’s tenure at FEMA her co-workers and external stakeholders, such as Congressional staffers, expressed concern about Kohler’s demeanor; her coordination with other portions of FEMA, such as those with expertise in the execution of FEMA programs; her conveying inaccurate, off-message or extraneous information; and Kohler otherwise overstepping her role. 1. Kohler Joins FEMA On December 9, 2013, Donald Caetano, FEMA Region II2 Director for the External Affairs Division (“EA”), selected Kohler for the position of Lead Public Affairs Specialist. This was a position as a Cadre of On-call Response/Recovery Employee (“CORE”) and was so advertised. 56.1 Reply 4. The Vacancy Announcement “FEMA-13-LN-15731CORE” stated: This position is being announced under FEMA’s CORE Program (Cadre of On-call Response/Recovery employees). These positions are authorized under P.L. 93-288 to perform temporary disaster work and are funded from the Disaster Relief Fund. Appointments are excepted service, temporary appointments. This is a 2-year temporary appointment in the Excepted Service. 56.1 Reply 4 (emphasis added). Unlike permanent, full-time employees, Stafford Act Employees (“SAEs”) do not enter FEMA through a competitive, merit-based hiring process and therefore do not acquire competitive status through their employment. On January 28, 2014, Kohler received an Offer Letter that stated, in part, “[w]e are pleased to confirm your Temporary Appointment to the position of Public Affairs Specialist…” 56.1 Reply 6. On February 9, 2014, FEMA appointed Kohler as “CORE3 Lead Public Affairs Specialist” via a Standard Form 50 (“SF-50″). 56.1 Reply 8. The SF-50 also indicated that the appointment was not to exceed 2 years and would therefore expire on February 8, 2016. 56.1 Reply 9. The “legal authority” listed for Kohler’s Appointment was Public Law 93-288, known as the Stafford Act, 42 U.S.C. §§5121 et seq. 56.1 Reply 10. The SF-50 also specified that the reason for the temporary appointment is because the Lead Public Affairs Specialist is “a 2 YEAR CORE” position. 56.1 Reply 11. On February 10, 2014, Kohler signed her Appointment Affidavit, identifying the position to which she was appointed as “CORE LEAD EA Officer.” 56.1 Reply 12. Kohler started her employment with FEMA in February of 2014. 2. Alleged Hostile Work Environment Based on Gender Kohler alleges that during her tenure at FEMA she was subject to a hostile work environment based on her gender. The occurrence of the acts and statements Kohler contends created a hostile work environment is in dispute. Kohler testified that Caetano told her a former FEMA employee who was on a “Be On The Lookout Poster” had “flashed his dick or something.” 56.1 Reply 200. Kohler testified that Caetano told her another male employee was accused of propositioning a couple to “swing” with that male employee. 56.1 Reply 201. She also testified that Caetano told her he was uncomfortable with an openly gay employee serving as Santa Claus at a holiday party and that a FEMA employee looked like a “child molester.” 56.1 Reply
202, 204. Kohler also testified that while she and Caetano were on a work trip to St. Thomas, Caetano urinated next to an open driver’s side door while Plaintiff was sitting in the passenger’s seat. 56.1 Reply 205. Kohler also alleges that Caetano referred to the region’s headquarters staff as “idiots” in emails with her, ECF No. 45-8 at 49:19-50:3, and said that lazy reporters “piss him off”, ECF No. 45-8 at 51:10-21. She also alleges that he “commented to Plaintiff on the physiques of female employees.” Opp. at 33. As alleged in the complaint, Caetano expressed surprise that one employee was designated health coordinator instead of another “fit” employee. ECF No. 12 51. When asked about the impact of these incidents, Kohler testified that they “solidified” her poor opinion of Caetano and caused her to have less respect for him. ECF No. 45-8 at 50:10-51:9 (idiots comment); 51:21-52:16 (reporter comment); 52:2353:12 (flashing comment); 53:13:54:20 (swinging comment); 54:21-56:18 (Santa Claus and child molester comment). However, she did not testify that they otherwise impacted her work. Kohler testified that the urination incident did not interfere with her work performance. Rather, she “felt like [Caetano] was a former Marine, probably someone who is crass and does inappropriate things thinking they’re not so inappropriate.” ECF No. 45-8 at 39:12-19. In addition, Kohler alleges discrimination in the form of gendered expectations at work. Kohler testified that Caetano asked Plaintiff to “take a softer approach and to try to get in good with co-workers to get favors from them when she needed them.” 56.1 Reply 193. When Kohler asked if he meant that she should be more flirtatious, Caetano replied “I don’t want to say that.” 56.1 Reply 195. Kohler testified that she believed a “softer approach” and “ingratiating” was “depicting [] a female in, sort of, light banter, joking, compliments to someone, so that they will respond how she might want them to.” ECF No. 45-8 at 47:25-48:15. Kohler also testified to allegedly discriminatory statements by Michael Bresnahan, her secondary supervisor who is senior to Caetano, and Linda Baldry, a co-worker. On December 21, 2014, Kohler sought Bresnahan’s advice regarding concerns that Caetano might fire her. Plaintiff testified that during that conversation Bresnahan told her that when women are assertive, they get labeled, but when men are assertive, they do not get the same label. 56.1 Reply 192. Kohler also testified that she asked Baldry to review an email she had sent because the recipient’s reply to her had been cold. Baldry said that if she had been on the receiving end of Kohler’s email, her reaction would have been: “Who the fuck does this girl think she is.” ECF No. 45-8 at 40:15-20. When Kohler asked Baldry why she would have that reaction, Baldry replied that it was “because [Kohler] ha[d] no disaster experience or experience in public assistance” and should “plant” her ideas with someone with “credibility in the agency and then — then it will basically get done.” ECF No. 45-8 at 40:21-41:1-9. When asked if the comment was made because Kohler was a young woman, Baldry said no. ECF No. 45-8 at 41:10-18. Kohler testified that this incident “upset” her, but when asked if it affected her work going forward, Kohler testified that “it didn’t change.” ECF No. 45-8 at 44:20-45:8. 3. Alleged Protected Activity and Kohler’s Performance Kohler also contends that she was retaliated against for engaging in protected activity by making informal and formal complaints that a disabled colleague, James Flemming, was being mistreated by another colleague, Terrence Hoey. Kohler’s alleged protected activity occurred at an October 28, 2014 meeting with Hoey and by way of Equal Employment Opportunity counseling that began as early as December 18, 2014. Before and after that time, Kohler received negative feedback on her job performance inside and outside of FEMA. Because the timing of this criticism is central to whether Kohler indeed states a claim for retaliation, the Court sets forth the chronology of Kohler’s protected activity and performance complaints below. a. February 2014 — Kohler’s Training Period with Sue Carlson Prior to Kohler beginning her position, Sue Carlson, FEMA Region II External Affairs Officer, temporarily filled the role. ECF No. 45-12 at 15:16-16:8. Though Carlson was supposed to train Kohler for “at least a couple of months[, the training] lasted about a day” because, according to Carlson, Kohler “did not accept the fact that she needed training.” 56.1 Reply 19. Carlson testified that she received emails from Kohler characterized by “[d]isrespect, inappropriate communication, negative attitude, resistance, [and a] condescending tone.” ECF No. 45-12 at 26:5-8.Carlson also testified that she was “traumatized” by her time working with Kohler, which ended in approximately May 2014. ECF No. 45-12 at 17:12-14, 23:25-24:13. b. June 25, 2014 — Scheduling Incident with Catherine Belfi Kohler worked with Catherine Belfi, who served as both the Regional Deputy Attorney and the Acting Public Assistance Branch Chief. 56.1 Reply 20. Around June 25, 2014, Kohler scheduled a meeting with the office of Senator Kirsten Gillibrand without confirming the date and time with Belfi. 56.1 Reply 21. Belfi emailed Kohler: The email that I received last week about this call only confirmed that you would arrange participation on our end. You copying me on an email out to external parties trying to coordinate their availability two days before a call is scheduled is not arranging participation — it is painting us into a corner especially given that we have no clear agenda for the call…. [I]n instances like this I ask that you please confirm the intended agenda for calls like this so that we can give you a realistic time frame for getting the information and actually coordinate with the necessary parties internally before you been [sic] coordinating externally. If we don’t do either of those things, we end up in situations like this where we all look bad. 56.1 Reply 23. After that incident, Caetano emailed Kohler: You and I likewise need to have a frank discussion too because there are a few issues that need to be fleshed out. We’ll have a face to face on Friday in my office. I need to be clearer on my expectations because had I been so before, this situation may very well have been avoided. I’ll take that one on the chin as the director. I didn’t clarify what I wanted to happen when I should have. As your mentor, DD and supervisor, I owe you that. I can’t hold you to a standard that I haven’t properly articulated. I promise I will do that on Friday so you understand what I expect of you. 56.1 Reply 21. c. Undated Meetings with Caetano Regarding Complaints Though the record is not clear on exact dates, it is undisputed that Caetano had meetings with Kohler in which he conveyed complaints from inside and outside FEMA about her demeanor prior to the October 28, 2014 meeting with Hoey. Kohler described several such meetings in an undated memorandum. ECF No. 45-5 at 19-25. For example, Kohler recounted: My boss called me into his office once or twice to say that someone had come in to complain about me. He rolled his eyes along with me and said that he had told them, ‘He didn’t want a wallflower in my job’ and he wanted me to do exactly what I was doing. But then he asked me to ‘soften my approach’ and ingratiate myself with them before asking them to do what I needed. I said I didn’t think I should have to manipulate them to do what is already their jobs. I also said that I didn’t think people should be able to pick and choose who they worked with based on whether or not they ‘liked’ you. I saw it that we all had jobs to do, and I was doing mine and their problem was not with me but instead with me uncovering that they might not be doing theirs. ECF No. 45-5 at 20. Kohler described another: Another time he called me in to say that people were complaining that I was showing them up and moving too fast for their liking. He told me to slow down a bit and try not to outshine others. I asked if he was directing me to lower my standards so others would feel better instead of telling others that the bar is high and they should strive to achieve it as well. He said in this culture, yes, he needed me to tone it down and not be so pushy and try to move things toward resolution so fast. ECF No. 45-5 at 20-21. Kohler described still another instance in which Caetano conveyed criticism regarding her demeanor. This time, Kohler perceived Caetano to be not “on her side”: About six or eight months in, my boss began calling me in to tell me that someone complained about ‘my style’ and when I asked who he said he wouldn’t name names. When I asked specifically what was the situation that caused them to complain about me, he said he wasn’t going to give me specifics. I explained that without much to go on, I didn’t see what adjustments I could make, because I had no idea what the problem was. I told him no one ever came to me to say I offended them or that they found me off-putting and that I was genuinely surprised that they came to him. He wasn’t rolling his eyes along with me or telling me that he had sided with me now. He was telling me that I was causing him grief by having ‘lines of people’ outside his office to complain about me. Still, he offered no specifics about who and why — except they didn’t like my style. ECF No. 45-5 at 21. To be sure, some details of these meetings may be in dispute. The important point is that the record is clear that complaints were surfacing about Kohler’s demeanor prior to October 28, 2014, and Caetano’s patience was shortening as these complaints continued to arise. d. October 28, 2014 Meeting with Terrence Hoey — Alleged Protected Activity James Flemming, who is visually impaired, was a colleague of Kohler in the External Affairs department. He worked with another FEMA employee, Terrence Hoey, on a project called the “Blue Campaign”, an anti-human trafficking campaign. ECF No. 45-8 at 62:3-11. Sometime in October, Flemming was directed by Hoey to retract an email sent about the Blue Campaign because it was “non-compliant.” 56.1 Reply 34. Flemming asked Kohler to assist him with re-issuing the email. ECF No. 45-8 at 78:20-80:19. Kohler agreed to assist Flemming, noting that Hoey should “appreciate” Flemming getting the word out and not complain about the content of the email. ECF No. 45-8 at 78:20-80:19. Flemming said that he felt intimidated or browbeaten by Hoey; Kohler agreed he could be a bully. ECF No. 45-8 at 78:20-80:19 Kohler, who was not present at the exchange, admits that she is not aware of Hoey making any comments about Fleming’s disability when ordering the recall of the email. 56.1 Reply 35. However, she testified at her deposition that she understood the non-compliant portion of the email to have been caused by limitations of Flemming’s screen reader. 56.1 Reply 34. Flemming also told Kohler about one occasion on which Hoey made fun of Flemming’s use of a cane, which he relied on due to his visual impairment. 56.1 Reply 215. On October 28, 2014, Kohler had a meeting with co-workers Terrence Hoey and Julie Blanciak. 56.1 Reply 27. The meeting was contentious. Kohler, who recorded and transcribed the meeting, sent a summary email to Flemming. 56.1 Reply
