USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 1 of 26
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-1961
DOROTHY A. SEABROOK,
Plaintiff – Appellant,
v.
DANIEL P. DRISCOLL, Secretary of the Army,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, District Judge. (5:19-cv-00236-D)
Argued: December 5, 2023 Decided: August 4, 2025
Before GREGORY, RICHARDSON, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Rushing wrote the majority opinion, in which Judge Richardson joined. Judge Gregory wrote an opinion concurring in part and dissenting in part.
ARGUED: Dennis L. Friedman, Philadelphia, Pennsylvania, for Appellant. Rudy E. Renfer, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 2 of 26
RUSHING, Circuit Judge:
Dorothy Seabrook sued the Secretary of the Army under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., alleging discrimination based on her race, color,
sex, and protected activities. The district court dismissed the complaint for failure to state
a claim of disparate treatment, hostile work environment, or retaliation. We affirm.
I.
Seabrook, a black woman, formerly was the Family Programs Manager for the U.S.
Army Reserve Command at Fort Bragg, North Carolina. 1 In September 2013, Seabrook’s
first-level supervisor, Sonia Wriglesworth, convened a meeting to evaluate the
performance of an employee named Scott Hamilton. Seabrook attended the meeting along
with an Army labor law attorney, Tim Johnson, and an Army employee relations
representative, Ann Clark. Because Seabrook would soon take over as Hamilton’s
supervisor, Clark advised Seabrook to contact her before pursuing corrective discipline
against Hamilton.
About a month later, Clark recommended performance counseling and then
suspension as a roadmap of progressive disciplinary measures for Hamilton. Clark drafted
a counseling statement which Seabrook gave Hamilton in January 2014. Seabrook
continued to provide Clark with documentation regarding Hamilton’s unsatisfactory
performance, and Clark drafted a notice of proposed suspension. But in March 2014, Clark
placed Hamilton’s notice of proposed suspension on hold. According to Seabrook,
1 The facts are taken from Seabrook’s amended complaint and its attachments. See E.I. duPont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). 2 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 3 of 26
attorney Johnson advised Clark to halt Hamilton’s disciplinary proceedings as part of a
coordinated agenda to intentionally undermine Seabrook’s supervisory authority.
Also in early 2014, the Army began an investigation into complaints from
employees about Seabrook’s conduct and the work environment that existed under her and
Wriglesworth’s leadership at the Family Programs Division. Seabrook says she was not
informed about the allegations. After a five-month investigation, the Army concluded that
Seabrook’s “negative leadership” had “created a toxic work environment” and that she
“made inappropriate or belittling comments . . . and/or made inappropriate physical
contact” with employees, all of which was conduct “unbecoming a federal employee and
supervisor.” J.A. 161–162.
As a result, on July 30, 2014, Seabrook’s second-level supervisor, James Balocki, 2
issued her a notice of proposed two-week suspension and ordered her to leave the building.
Seabrook was escorted out during work hours and in view of other employees. Afterward,
her husband—who worked at Fort Jackson in South Carolina—was called into his
supervisor’s office and asked about Seabrook’s suspension. Other personnel also heard
about Seabrook’s suspension. Seabrook denied the investigative findings and contested
the suspension with her commanding officer, Major General Visot, but he upheld the
decision. Later that year, Seabrook agreed to a reassignment to another division within
Army Reserve Command.
2 Balocki became Seabrook’s second-level supervisor in January 2014. 3 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 4 of 26
On January 6, 2015, Seabrook filed an Equal Employment Opportunity (EEO)
complaint, alleging that the Army discriminated against her on account of her race, color,
and sex by undermining her authority, investigating her, and suspending her. A month
later, Balocki provided Seabrook her performance evaluation for the period from July 2013
through June 2014. Based on the investigation, the evaluation rated Seabrook as “needs
improvement.” Seabrook believed the low rating was retaliation for her EEO complaint
and filed a second EEO complaint alleging as much on May 5, 2015.
The EEOC investigated both of Seabrook’s complaints and an administrative law
judge found no discrimination by the Army. The Commission affirmed that finding on
appeal and denied Seabrook’s motion to reconsider.
Undeterred, Seabrook filed a complaint pro se in federal court, which the district
court liberally construed as alleging the Army discriminated against her in violation of Title
VII by treating her differently than similarly situated employees, creating a hostile work
environment, and retaliating against her. The district court dismissed Seabrook’s
complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and
denied Seabrook’s motion to alter or amend the judgment under Rule 59(e). 3 We have
3 In her counseled opening brief on appeal, Seabrook identifies the standard of review for Rule 59(e) rulings but does not develop any argument that the district court abused its discretion in denying her motion. We therefore consider the argument waived. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by failing to develop [its] argument—even if [its] brief takes a passing shot at the issue.” (internal quotation marks omitted)). 4 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 5 of 26
jurisdiction to consider Seabrook’s appeal from the district court’s final judgment. 4 28
U.S.C. § 1291.
II.
We review de novo a district court’s dismissal of a complaint pursuant to Rule
12(b)(6). Holloway v. Maryland, 32 F.4th 293, 298 (4th Cir. 2022). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (“Factual allegations must be enough to raise a right to relief above the speculative
level.”). “In conducting this review, we take the facts in the light most favorable to
plaintiff, but we need not accept” as true a complaint’s legal conclusions, “unwarranted
inferences, unreasonable conclusions, or arguments.” Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008) (internal quotation marks omitted).
We also construe Seabrook’s pro se pleadings liberally. Erickson v. Pardus, 551
U.S. 89, 94 (2007). But “liberal construction does not mean overlooking the pleading
requirements under the Federal Rules of Civil Procedure.” Bing v. Brivo Sys., LLC, 959
F.3d 605, 618 (4th Cir. 2020); see also Giarratano, 521 F.3d at 304 n.5 (explaining that
pro se pleadings, like counseled ones, must “contain ‘more than labels and conclusions’”
(quoting Twombly, 550 U.S. at 555)).
4 We placed this appeal in abeyance for Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (en banc). Pursuant to that decision, the district court’s order dismissing Seabrook’s complaint without prejudice and without granting leave to further amend was final and appealable. See id. at 798. 5 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 6 of 26
III.
Like the district court, we construe Seabrook’s pro se complaint to allege disparate
treatment, hostile work environment, and retaliation in violation of Title VII. We address
each claim in turn.
A.
Title VII forbids an employer “to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
Seabrook alleges that the Army discriminated against her because of her race, color, and
sex when she was suspended for conduct unbecoming a federal employee and supervisor
and was escorted out of the building.
First, Seabrook does not allege facts to plausibly state a claim that the Army
disciplined her because of her race, color, or sex. The attachments to Seabrook’s amended
complaint reveal she was disciplined because an investigation showed she created a toxic
work environment and made inappropriate or belittling comments and inappropriate
physical contact with staff. Seabrook claims she did “not have a record of poor
performance or conduct as a toxic leader” and so “it could only be” race, color, or sex “that
would motivate management to take this action.” J.A. 164–165. Although Seabrook
disputes the investigative findings, she has alleged no factual basis to support the
conclusion that discriminatory bias, rather than the outcome of the investigation, was the
6 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 7 of 26
Army’s true motivation for disciplining her. 5 See Bing, 959 F.3d at 617; McCleary-Evans
v. Md. Dept. of Transp., 780 F.3d 582, 585–586 (4th Cir. 2015); DeJarnette v. Corning
Inc., 133 F.3d 293, 299 (4th Cir. 1998).
Seabrook asserts that discriminatory motivation is apparent from the “preferential
treatment” shown to her subordinate Hamilton, a white man, who was “involved in
misconduct and performance issues” but “was never investigated.” J.A. 165. She alleges
that Hamilton was among the employees whose complaints about her “mistreatment” led
the Army to investigate her. J.A. 157.
A claim of discrimination in the enforcement of employee disciplinary measures by
reference to a comparator requires that (1) the plaintiff is a member of a protected class,
(2) the plaintiff’s prohibited conduct was comparable in seriousness to misconduct of
employees outside the protected class, and (3) the disciplinary measures enforced against
the plaintiff were more severe than those enforced against the other employees. Cook v.
CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). Seabrook has characterized
Hamilton’s misconduct as “[n]on-performance and failure to meet deadlines.” J.A. 157.
She issued him a counseling statement for that conduct, but alleges he was not
“investigated.” J.A. 165. Allegations that Hamilton was counseled but not investigated
for performance problems and missing deadlines while Seabrook, his supervisor, was
investigated for negative leadership and creating a toxic work environment after multiple
5 Likewise, to the extent Seabrook claims her poor performance review for that time period was motivated by discriminatory bias, she has failed to plead facts sufficient to state a claim. 7 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 8 of 26
subordinates complained do not raise a plausible inference that the Army investigated
Seabrook because of her race, color, or sex.
Second, Seabrook alleges disparate punishment based on the severity of her
discipline relative to two white employees she asserts the Army treated more leniently.
When a plaintiff offers a comparator, the plausibility of her claim depends upon whether
that comparator is similarly situated. Seabrook’s allegations about the two comparators
she proposes—a white man named Chris Hamilton and a white woman named Kim 6—are
insufficient to provide a meaningful point of comparison. Both work for different
departments in the Army: Chris for the Continuous Process Improvement Office and Kim
for the Services and Infrastructure Core Enterprise. Seabrook’s complaint and attachments
are silent regarding their jobs, whether their roles were similar to her leadership position,
and the identity of the supervisors who disciplined them. The most specific allegation
Seabrook offers—that both Chris and Kim threatened their co-workers—cuts against her
disparate treatment claim. While Chris and Kim uttered verbal threats, Seabrook was
suspended in part for improper physical contact with her subordinates, a more severe
offense that could justify the purportedly disparate discipline, including Seabrook’s
physical escort from the building. Seabrook’s comparator allegations do not raise a right
to relief on her disparate punishment claim “above a speculative level.” Twombly, 550
U.S. at 555.
6 Seabrook does not identify Kim’s last name. 8 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 9 of 26
B.
We next consider Seabrook’s hostile work environment claim. She alleges the
Army created a hostile work environment when it undermined her supervisory authority
by halting her desired disciplinary action against Scott Hamilton, investigated her without
first informing her about the complaints against her, suspended her for fourteen days,
escorted her from the building, and disclosed her suspension to others.
“A hostile environment that violates Title VII ‘exists when the workplace is
permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Holloway, 32 F.4th at 300 (quoting Boyer-Liberto v.
Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc)). To state a claim,
Seabrook must allege that (1) she experienced unwelcome harassment, (2) the harassment
was based on her race, color, or sex, (3) the harassment “‘was sufficiently severe or
pervasive to alter the conditions of employment and create an abusive atmosphere,’” and
(4) there is some basis for imposing liability on the employer. Id. (quoting Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)).
Harassment is “based on” race, color, or sex when an employee would not have
experienced the harassment “but for” her protected characteristic. Gilliam v. S.C. Dep’t of
Juv. Just., 474 F.3d 134, 142 (4th Cir. 2007) (internal quotation marks omitted). Seabrook
has failed to allege facts supporting but-for causation. Specifically, Seabrook asserts that,
“[i]n the absence of” any other reason for the Army to halt Hamilton’s discipline,
investigate and suspend her, and disclose her suspension, she “believe[s] it was race[, color,
9 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 10 of 26
or sex] that motivated” the alleged harassment. J.A. 159, 160, 161, 164, 165, 168. That
does not suffice. “Being aware of no alternative explanation and guessing that conduct is
racially motivated does not amount to pleading actual facts to support a claim of racial
discrimination. To the contrary, they constitute only speculation as to [the employer’s]
motivation.” Bing, 959 F.3d at 618.
“Regarding the third element, ‘[w]hether the environment is objectively hostile or
abusive is judged from the perspective of a reasonable person in the plaintiff’s position.’”
Holloway, 32 F.4th at 300 (quoting Boyer-Liberto, 786 F.3d at 277). “That determination
is made by looking at all the circumstances, which may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.” Boyer-Liberto, 786 F.3d at 277 (internal quotation marks omitted).
“‘[R]ude treatment,’ ‘callous behavior,’ or ‘routine difference of opinion and personality
conflict,’ without more, will not suffice.” Holloway, 32 F.4th at 301 (quoting EEOC v.
Sunbelt Rentals, Inc., 521 F.3d 306, 315–316 (4th Cir. 2008)).
Seabrook’s allegations fail to satisfy this element as well. None of the actions she
identifies are objectively abusive, humiliating, or physically threatening. They instead
reflect a difference of opinion about how to discipline Hamilton and the steps taken to
investigate Seabrook’s negative leadership and execute her own discipline. See, e.g.,
Holloway, 32 F.4th at 301 (affirming dismissal of hostile environment claim when
employer surveyed plaintiff’s employees about, and criticized, plaintiff’s leadership);
Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011) (affirming dismissal of hostile
10 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 11 of 26
environment claim when plaintiff alleged her employer investigated her unjustly). The
Army’s alleged behavior does not rise to an objective level of abuse sufficient to sustain a
hostile work environment claim under Title VII.
C.
Lastly, Seabrook claims the Army retaliated against her for instigating and
participating in EEO proceedings. Title VII prohibits an employer from discriminating
against an employee “because he has opposed any practice made an unlawful employment
practice by [Title VII], or because he has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C.
§ 2000e-3(a); see also Holloway, 32 F.4th at 299–300. To plead a retaliation claim,
Seabrook must allege a causal link between her protected activity and the adverse
employment action, such that the latter happened “because” of the former.
Seabrook alleges that her investigation, suspension, and poor performance
evaluation were retaliation for participating as a witness in Wriglesworth’s EEO activity
and for filing her own EEO complaints. 7 According to Seabrook, however, the retaliatory
individuals were not aware of her participation as a witness in Wriglesworth’s EEO
proceeding until after they investigated Seabrook and issued the notice of proposed
suspension. And Seabrook had not filed her own EEO complaints at that point. So the
7 The dissent disagrees that one basis for Seabrook’s retaliation claim is her participation as a witness in Wriglesworth’s EEO activity. See Dissenting Op. 17–20. Instead, the dissent would consider only Seabrook’s January 2015 EEO complaint. See id. at 19. Construing Seabrook’s complaint and attachments more liberally, we assess both Seabrook’s own EEO complaints and her participation in Wriglesworth’s EEO activity as potential bases for her retaliation claim. 11 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 12 of 26
investigation and suspension could not have been retaliatory. See Dowe v. Total Action
Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (“[B]y definition,
an employer cannot take action because of a factor of which it is unaware . . . .”).
Regarding Seabrook’s poor performance review, Balocki issued her review (for the
period July 2013 through June 2014) in February 2015. That was approximately five to
six months after Balocki and others became aware of Seabrook’s participation as a witness
in Wriglesworth’s EEO proceeding. And it was approximately one month after Seabrook
filed her first EEO complaint. 8
“Temporal proximity between an employee’s charge of discrimination and an
adverse employment action can support an inference that the employer acted ‘because’ of
that charge.” Holloway, 32 F.4th at 300 (quoting 42 U.S.C. § 2000e-3(a)). In prior cases
“we have held that ‘a three-month period between the protected activity and the adverse
action,’ without more, ‘does not support a finding that there is a causal link.’” Id. (quoting
Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 127 (4th Cir. 2021)). Seabrook has not
alleged any “intervening events” to bridge the “prohibitively long temporal gap” between
Balocki becoming aware of her participation in Wriglesworth’s EEO proceeding and her
poor performance evaluation. Id.
As for a connection between Seabrook’s February performance review and her
January EEO complaint, Seabrook does not allege facts to support an inference that Balocki
Balocki delivered the performance evaluation before Seabrook filed her second 8
EEO complaint, so her poor review could not have been retaliation for that later complaint. See Dowe, 145 F.3d at 657. 12 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 13 of 26
was aware of her complaint when he issued her review. Seabrook generally asserts that
“Balocki is made aware of all EEO activity within the command” “[b]y virtue of his
position as Command Executive Officer and Director, Services Infrastructure Core
Enterprise.” J.A. 194. We find this insufficient to raise a nonspeculative inference that
Balocki knew about Seabrook’s complaint when he issued her performance review a month
later, much less that he rated her poorly because of it. 9 See Dowe, 145 F.3d at 657 (“[T]he
employer’s knowledge that the plaintiff engaged in a protected activity is absolutely
necessary . . . .”).
The dissent identifies three allegations to support a causal link between Seabrook’s
January EEO complaint and her poor performance review, but none plausibly allege a
causal connection. See Dissenting Op. 20. First, although Balocki was no longer in
Seabrook’s supervisory chain in February 2015, the review was for July 2013 to June 2014,
a period during which he was Seabrook’s second level supervisor. See J.A. 152 (alleging
that Balocki’s “duties and responsibilities did not end” when Seabrook was transferred
because she had not received a performance evaluation). Second, the dissent notes a
statement that Balocki wanted appraisals from first line supervisors for all employees he
was responsible for rating by the end of the review period in June, see J.A. 56, and February
9 The dissent offers an allegation that Seabrook never makes: that Balocki would have been aware of Seabrook’s EEO complaint within a month of its filing because “he is a named party.” Dissenting Op. 21. To be clear, the named parties to the EEO complaint were Seabrook and the Department of the Army. Within the EEO complaint, Seabrook claimed Balocki and others discriminated against her. But she has not alleged that Balocki or the others identified in the EEO complaint would have received notice of it before her poor performance evaluation. 13 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 14 of 26
is eight months after June. Naturally, an evaluation can occur only after the conclusion of
the review period, and Seabrook does not allege that Balocki transgressed any deadline or
agency practice by delivering her review in February. Lastly, the dissent asserts Seabrook
was not “notified that her performance was less than satisfactory” during the evaluation
period. 10 Dissenting Op. 20. Yet Seabrook has pled that, during the review period, the
Army investigated complaints against her and concluded her “negative leadership” had
“created a toxic work environment” and that she “made inappropriate or belittling
comments . . . and/or made inappropriate physical contact” with employees, all of which
was conduct “unbecoming a federal employee and supervisor.” J.A. 161–162. The “more
likely explanation” for Seabrook’s poor review is the Army’s finding that her negative
leadership created a toxic work environment during the review period. Iqbal, 556 U.S. at
681. She has not nudged her claim of retaliation “across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570.
IV.
Having liberally construed Seabrook’s complaint and considered the documents
attached thereto, we agree with the district court that she has failed to state any claim upon
which relief can be granted. The district court correctly dismissed her complaint, and its
judgment is
AFFIRMED.
10 Seabrook does not allege that “counsel[ing]” or an “improvement plan” must occur or ordinarily occurs before a poor performance review is delivered. See Dissenting Op. 20. 14 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 15 of 26
GREGORY, Circuit Judge, concurring in part and dissenting in part:
The majority’s holding that Seabrook’s retaliation and disparate treatment claims
fail at the motion to dismiss stage represents an astonishing departure from circuit
precedent. And its impact on plaintiffs bringing retaliation and disparate treatment claims
in the future will be devastating.
Seabrook, a supervisor with the Army, attempted to obtain information regarding
how to initiate a disciplinary action against a white male employee who had conduct and
performance issues. J.A. 157. Without success, Seabrook was advised not to issue a rating
lower than 3 1 to the white male employee without prior counseling and the issuance of a
performance improvement plan. J.A. 151. Seabrook was further advised to re-contact the
Army before she initiated counseling and the issuance of a performance improvement plan
to this white male employee. J.A. 151. Seabrook, as directed, continued to contact the
Army regarding the white male employee’s continuing cycle of non-performance and
creating a hostile work environment, but the Army declined to suspend or discipline him.
J.A. 151–52, 157–58.
Sometime between June 2013 and early-to-mid 2014, Seabrook served as a
supporting witness for her then first-line level supervisor, Sonia Wriglesworth, a Hispanic
woman, in one of Wriglesworth’s EEO discrimination suits against the Army. J.A. 132–
33, 150, 152. Balocki was aware of Seabrook’s participation in Wriglesworth’s EEO
discrimination suit. J.A. 166. Then, on July 30, 2014, after Wriglesworth and Seabrook
1 On the Army’s performance evaluation scale, 1 is the highest rating an employee can receive while 5 is the lowest. 15 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 16 of 26
were subject to an investigation, Balocki issued Seabrook a proposed 14-day suspension
notice. J.A. 161, 166. As a result of the suspension, and at some point in September 2014,
Seabrook participated in informal mediation, in which she named Balocki as an offending
party. J.A. 194. Mediation yielded no positive results for Seabrook 2 and as such, on
January 6, 2015, Seabrook filed a formal EEO complaint 3 via the Department of the Army,
Operational Support Area, alleging race and gender discrimination, again naming Balocki
as an offending party. Approximately one month after filing her formal EEO complaint,
Balocki issued Seabrook a poor performance review for the July 1, 2013 – June 30, 2014
review period—after he was no longer in her supervisory chain and had never provided her
with prior counseling or the issuance of an improvement plan. J.A. 136, 193, 195, 197.
The same individuals who advised Seabrook not to issue the white male employee a poor
performance review rating without prior counseling or the issuance of a performance
improvement plan advised Balocki that it was acceptable to issue the poor performance
review to Seabrook. J.A. 136, 193, 197.
It is undisputed that Seabrook engaged in perhaps the most quintessential protected
activity—filing a formal EEO complaint in January 2015—and in February 2015, she
suffered an adverse action by way of receiving a poor review by Balocki. As such,
2 Seabrook’s suspension was upheld on October 9, 2014, and she was subsequently reassigned to another position within the Army on November 2, 2014. J.A. 132, 152. 3 Filing a formal EEO complaint is completely different than engaging in informal mediation counseling. See Pre-Complaint Process & EEO Counseling, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/federal-sector/pre- complaint-process-eeo-counseling; https://perma.cc/LX5E-X4SN, (last visited July 31, 2025). 16 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 17 of 26
Seabrook clearly has pled a plausible claim for retaliation that satisfies the pleading
standard of 12(b)(6). Likewise, Seabrook clearly has pled a plausible claim for disparate
treatment based on the stark differences in how she and a white male employee were
assessed during the performance evaluation process. Yet, the majority holds otherwise.
Accordingly, I must dissent.
Starting first with Seabrook’s retaliation claim. To sufficiently state a claim for
retaliation, a plaintiff must show that (1) she engaged in a protected activity; (2) her
employer took adverse action against her; and (3) there was a causal link between the two
events. Laurent-Workman v. Wormuth, 54 F.4th 201, 212 (4th Cir. 2022). “Establishing
a ‘causal relationship’ . . . is not an onerous burden” and a plaintiff can do so by simply
establishing “the adverse action bears sufficient temporal proximity to the protected
activity,” the “existence of facts [] suggest that the adverse action occurred because of the
protected activity,” or a combination of the two. Smith v. CSRA, 12 F.4th 396, 417 (4th
Cir. 2021) (internal quotation marks and brackets omitted) (collecting cases).
1.
The majority holds that “Seabrook has not alleged any ‘intervening events’ to bridge
the ‘prohibitively long temporal gap’ between Balocki becoming aware of her participation
in Wriglesworth’s EEO proceeding and her poor performance evaluation.” Maj. Op. at 12.
When the majority made this calculation, however, they relied on the fact that “Balocki
17 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 18 of 26
issued Seabrook’s poor performance review” approximately “five to six months after
Balocki and others became aware of Seabrook’s participation as a witness in
Wriglesworth’s EEO proceeding.” Id. But this calculation was in error.
It is clear the majority misunderstand Seabrook’s retaliation claim. This may be
somewhat understandable because Seabrook was proceeding pro se. Nevertheless,
Seabrook’s pleadings must be “liberally construed” and her complaint, “however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”
King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Seabrook mentions in her amended
complaint that she supported Wriglesworth, a Hispanic woman, in her discrimination
claims against the Army, and Seabrook mentions Balocki in reference to her participation
in Wriglesworth’s EEO proceeding. J.A. 132–33. Seabrook includes this in her amended
complaint as it provides context and relates to her discrimination claims, but it is not the
basis for her retaliation claim. This is because Seabrook engaged in a separate protected
activity that is not tethered to Wriglesworth, which is the basis for her retaliation claim.
Specifically, Seabrook alleged that on January 6, 2015, she engaged in protected activity
by way of filing a formal EEO complaint in which she named Balocki as an offending party
based on the issuance of a proposed 14-day suspension notice and Balocki disclosing
information regarding her disciplinary action to individuals who did not have a “need to
know.” J.A. 133, 145–46, 166–67. Seabrook further alleged that she suffered an adverse
action on February 18, 2015, in the form of Balocki issuing her a poor performance review.
J.A. 136, 193. This adverse action by Balocki bears sufficient temporal proximity to
18 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 19 of 26
Seabrook’s protected EEO activity as this all occurred within an approximate one-month
time span.
These allegations alone at the motion to dismiss stage are sufficient to state a claim
for retaliation, and, pursuant to this Court’s precedent, Seabrook need not allege anything
more. See Smith v. CSRA, 12 F.4th at 417 (establishing that a plaintiff need only establish
“the adverse action bears sufficient temporal proximity to the protected activity” in order
to have a retaliation claim); see also Finley v. Kraft Heinz Inc., --- F.4th ---, 2025 WL
2089581, at *7 (4th Cir. July 25, 2025) (finding even at the summary judgment stage that
an employee making a complaint as early as January 25, 2020 and being terminated on
March 26, 2020 constituted “extremely close temporal proximity”). 4
Shockingly, the majority holds that they construe Seabrook’s complaint and
attachments “more liberally” to include her participation in Wriglesworth’s EEO activity
as one of the “potential bases for her retaliation claim.” Maj. Op. at 11 fn 7. But this so-
called “liberally construing” directly contradicts Seabrook’s complaint, in which she
explicitly alleged: “[i]t was only after I filed a formal complaint naming Mr. Balocki as a
responsible Management Official in January 2015 that I received the performance rating
that identified ‘needs improvement’ rating of 4.” J.A. 200. In other words, Seabrook
alleged that the adverse action she suffered—the poor performance review—caused the
retaliation. The majority’s attempt to liberally construe Seabrook’s complaint in this
4 Finley, although recent, was continuing to follow this Court’s precedent regarding temporal proximity. Indeed, no case in this circuit or elsewhere has ever held that a one- month time lapse between a protected activity and an adverse action is too long to establish temporal proximity. 19 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 20 of 26
manner is inconsistent with construing Seabrook’s complaint in her favor. Ironically, the
majority’s liberal construction of Seabrook’s complaint has been used to deny her
retaliation claim at the motion to dismiss stage.
2.
The majority, in error, also holds that Seabrook fails to “plausibly allege a causal
connection” between her filing an EEO complaint in January and her receiving a poor
performance review in February. Maj. Op. at 13. But not so. Not only is it undisputed
that the protected activity and the resulting adverse action was only a month apart, but
Seabrook plausibly alleged factual circumstances to support her claim that Balocki issued
the poor performance review in response to her formal January 2015 EEO complaint. First,
at the time he issued the evaluation, Balocki was no longer in Seabrook’s supervisory
chain. J.A. 136, 193. Second, Balocki issued the rating eight months after he had
previously indicated he wanted to complete all evaluations, and the appraisal period had
expired. See J.A. 196, 198. Third, Seabrook was not counseled for poor performance,
placed on an improvement plan, or notified that her performance was less than satisfactory,
despite meeting with Balocki “no less than twenty times” during the relevant evaluation
period. 5 J.A. 197. As such, Seabrook plausibly alleged a causal connection between
5 The majority holds that Seabrook failed to allege that counseling or an improvement plan “must occur or ordinarily occurs before a poor performance review is delivered.” Maj. Op. at 14 fn 10. But as explained in Section I.B, this is not true, and Seabrook has plausibly alleged that counseling and/or improvement plans was required with other employees of the Army before a poor performance review is issued. 20 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 21 of 26
Balocki’s February 2015 issuance of the unsatisfactory rating and her January 2015 EEO
complaint.
In addition to these errors, the majority also finds that Seabrook’s allegations were
speculative and did not “support an inference that Balocki was aware of her complaint
when he issued her review.” Maj. Op. at 12. But Seabrook’s allegations are not
speculative. Balocki participated in Seabrook’s informal mediation process which
occurred before she filed a formal EEO complaint. See J.A. 27. It is certainly more than
plausible, then, that Balocki—who is “made aware of all EEO activity within the
command,” J.A. 156, 194, would be aware of an EEO action that involves himself given
his position with the Army, given the fact he participated in the informal mediation process
with Seabrook, and given the extreme temporal proximity between Seabrook’s protected
activity and the adverse action she suffered by him a month later. In addition, two things
can be true: Balocki can be generally aware of all EEO activity within the command—
including EEO activity that names him as an offending official—by virtue of his position
as Command Executive Officer and Director, as Seabrook alleged. J.A. 156, 194. But
Balocki is very likely to be aware of Seabrook’s formal EEO complaint activity because
he is a named party in the formal EEO complaint. For an astonishing reason, however, the
majority has found otherwise. It is not clear what more Seabrook must allege at the motion
to dismiss stage, to support an inference that Balocki was aware of the formal EEO
complaint filed against him in January 2015, when he took adverse action against her the
next month.
21 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 22 of 26
In error, the majority also surmises that “the more likely explanation” for
Seabrook’s poor review is the Army’s finding “that her negative leadership created a toxic
work environment during the review period.” Maj. Op. at 14. But this is an improper
conclusion that is not permitted at this stage or even by this Court on appeal. In fact, at the
motion to dismiss stage, Seabrook needs only to take care that her allegations are plausible,
and she does not need to address or account for any theories that compete against her own
allegations. In any event, “the existence of evidence in the record to support” Balocki’s
position “does not negate the existence of evidence to support” Seabrook’s position.
Finley, --- F.4th ---, 2025 WL 2089581, at *7. In other words, Seabrook has plausibly
alleged that she faced retaliation in the form of a poor review after she filed an EEO
complaint, and the mere possibility that she received a poor review for another reason does
not invalidate her well-pleaded allegations at this stage. As such, the majority’s conclusion
that Seabrook was terminated for another reason is improper at this stage.
3.
I fear the majority has turned the standard for bringing retaliation claims and the
underlying principles of 12(b)(6) on their head. In the majority’s view, and despite
precedent which cautions against a “bright-line rule” for temporal proximity, Roberts v.
Glenn Indus. Grp., Inc., 998 F.3d 111, 127 (4th Cir. 2021), a one-month lapse between a
protected activity and an adverse action, without more, weakens the inference for
causation. But such a ruling by the majority is inconsistent with controlling precedent and
makes it virtually impossible for a plaintiff to plausibly allege retaliation at the motion to
dismiss stage. What is more, and in a remarkable turn, the majority has also found that
22 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 23 of 26
even when, as here, a plaintiff has alleged “more” than just temporal proximity, this is not
enough for her claim to survive a motion to dismiss. And, as if making these errors were
not enough, the majority has improperly concluded that Seabrook’s allegations that Balocki
was aware of her complaint at the time he issued her review was “speculative,” and there
is a “more likely explanation” for Seabrook’s subpar review. Maj. Op. at 12–13.
Turning now to Seabrook’s disparate treatment claim in which she alleges that a
white male employee received preferential treatment in the performance evaluation
process. Title VII of the Civil Rights Act of 1964, as amended, creates a private cause of
action for employment discrimination based on race, sex, color, religion, sex, or national
origin. 42 U.S.C. § 2000e-2(a). To ultimately succeed on a Title VII claim, a plaintiff
must either produce evidence of discrimination, or satisfy the requirements of the burden-
shifting framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). It is well-settled, however, that “an employment
discrimination plaintiff need not plead a prima facie case of discrimination” under that
standard to withstand a motion to dismiss. Holloway v. Maryland, 32 F.4th 293, 298 (4th
Cir. 2022) (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002). Rather, where
a plaintiff purports to state a claim under Title VII, she is merely “required to allege facts
to satisfy the elements of a cause of action created by that statute.” McCleary-Evans v.
Maryland Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015); see
also Holloway, 32 F.4th at 299 (requiring a plaintiff asserting a discriminatory discharge
claim to “allege facts sufficient to raise a plausible inference” that the discriminatory action
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complained of occurred because of his membership in a protected class). Here, Seabrook
must allege facts sufficient to support the plausible inference that: (1) she is a member of
the class protected by Title VII, (2) the prohibited conduct in which she engaged was
comparable in seriousness to misconduct of employees outside of her protected class, and
(3) the disciplinary measures enforced against her were more severe than those enforced
against those other employees. Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir.
1993). And she has done so.
First, Seabrook is a Black woman—a member of the class protected by Title VII.
J.A. 133. Second, the prohibited conduct which Seabrook allegedly engaged in, i.e., poor
performance and misconduct, was comparable in seriousness to the poor performance and
misconduct of the white male employee, who is outside of her protected class. What’s
more, Seabrook alleged that the white male employee, who she supervised, at all relevant
times, reported to the same supervisor, and shared the same pay grade as Seabrook. J.A.
133, 157, 188. Additionally, in or around July 2013, Seabrook attempted to obtain
information regarding how to initiate a disciplinary action against him for non-performance
and missing deadlines. J.A. 157. During a September 2013 meeting to discuss potential
disciplinary action against the white male employee, Seabrook was advised not to issue a
rating lower than 3 to the white male employee without prior counseling and the issuance
of a performance improvement plan. J.A. 151. Seabrook was further instructed to contact
the Army “prior to conducting initial counseling, performance discussion, or development
of performance standards” regarding this white male employee. Id. Until March 2014
when she was advised that the disciplinary action against the white male employee was no
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longer being processed, Seabrook continued to advise her superiors of the white male
employee’s non-performance, lack of progress, and behaviors which she alleged created a
hostile work environment. J.A. 158. The white male employee was never issued a notice
of proposed suspension 6 nor did he receive a rating under 3 in accordance with the
directions given to Seabrook. J.A. 133, 151–52, 157–58. Third, Seabrook sufficiently
alleged that the disciplinary measure enforced against her was more severe than that which
was enforced against the white male employee. Seabrook alleged “[t]he same individuals”
who advised her not to issue a poor performance review rating “advised Mr. Balocki that
i[t] was acceptable to issue a ‘needs improvement’ rating of 4” to her in February 2015,
despite not having any prior counseling or issuance of a performance improvement plan,
or an employment record that indicated anything other than exceptional performance. J.A.
136, 193, 197. This is a far worse disciplinary measure considering the white male
employee was never disciplined for the same actions. Drawing all reasonable inferences
in Seabrook’s favor, which the Court must do at this stage, she has plausibly alleged a
disparate treatment claim based on preferential treatment.
6 A member of the Labor/Management Employee Relations team with the Army drafted a Notice of Proposed Suspension for the white male employee, but pursuant to instructions from another team member, the finalization of the notice was delayed and ultimately never finalized. J.A. 133, 151–52, 157–58. 25 USCA4 Appeal: 20-1961 Doc: 46 Filed: 08/04/2025 Pg: 26 of 26
I concur in the majority’s ruling in part. 7 I dissent from the majority’s ruling
dismissing Seabrook’s retaliation claim and her discrimination claim based on disparate
treatment between her and a white male employee in the evaluation process. Dismissing
these claims at the motion to dismiss stage erroneously stretches the bounds of both
Supreme Court and Fourth Circuit precedent. Accordingly, I dissent.
7 I concur with the majority’s holding that Seabrook has failed to allege a hostile work environment claim or a disparate treatment claim in connection with being escorted out of the workplace. 26