UNITED STATES DISTRICT COURT F I L E D
FOR THE DISTRICT OF COLUMBIA MAR 1 5 2017

CC|er{<, :J.S. Distr|ct & Bankruptcy
our s or the District of Columbla
ELISA R. CRUZ,

Plaintiff,

v. Civil Case No. 16-39 (RJL)

JOHN F. KELLY!, Secretary, U.S.
Department of Homeland Security,

\./\./\/\/V`/VV\./VV

Defendant.

MEMORAl\-lDUM OPINION

(March 571 2017) [Dkt. #13]

Plaintiff Elisa R. Cruz (“Cruz” or “plaintiff’) brings this action against John F.
Kelly in his official capacity as Secretary of the United States Department of Homeland
Security, Which agency is plaintiffs employer (“DHS” or “defendant”). Plaintiff
complains that she suffered adverse employment actions at the hands of her supervisors
at DHS from March 2012 to March 2013. She Was disciplined, purportedly for her
“inappropriate conduct,” by being detailed to a component of DHS Where she did not
normally Work, then by having that detail extended, and then by being reassigned to a
position that did not utilize her unique skills in the field of information security.

Plaintiff alleges that the disciplinary action Was motivated by the fact that she is an

 

' Pursuant to Federal Rule of Civil Procedure 25(d), the recently confirmed Secretary of the Department
of Homeland Security, John F. Kelly, “is automatically substituted as a party” for the outgoing Secretary,
Jeh C. Johnson, Whom plaintiff named in her Complaint.

African American and Hispanic Woman. She also alleges that When she initiated an
equal employment opportunity (“EEO”) complaint about this perceived discrimination,
her supervisors retaliated against her by extending her detail and permanently reassigning
her to a field inconsistent With her skills. She brings her discrimination and retaliation
claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e
et seq. Compl. 11 54, 62 [Dkt. #1]. Cruz has satisfied the administrative prerequisite
for bringing this claim in federal court: the Equal Employment Opportunity Commission
(“EEOC”) issued a decision closing her case after a thorough investigation, holding that
there was no factual basis for her claims of discrimination or retaliation. Compl. W 12-
17; see also Ex. A to Def.’s Mot. for Summary Judgment (“MSJ”) [Dkt. #13-34].
Currently before the Court is defendant’s Motion for Summary Judgment [Dkt. #13],
filed on the basis of factual support from the EEOC record, in Which defendant argues
that Cruz’s detail and reassignment Without demotion Was nothing more than a
reasonable resolution to the problems that Cruz vvas having With her colleagues. Upon
consideration of the parties’ pleadings, defendant’s Statement of Undisputed Material
Facts (“Def.’s SOF”) [Dkt. #13-1], the supporting citations to the record, and the relevant
law, the Court GRANTS summary judgment in favor of defendant and DENIES

plaintiff s motion to conduct additional discovery. The record is sufficiently developed

for the Court to determine that the only reasonable conclusion here is that Cruz’s
reassignments were in reaction to her problems with her colleagues and not to her race,
sex, or protected EEO activity.
FACTUAL BACKGROUND

Prior to the events giving rise to this suit, Cruz was employed for five years as the
Chief Information Security Officer in the Operations Division of the F ederal Emergency
Management Agency (“FEMA”), Office of the Chief Information Officer. Def.’s SOF
11 1. ln June 2011 and again in January 2012, an employee of another component of
DHS, with whom Cruz worked, reported to Cruz’s supervisors that she had acted
unprofessionally and in a condescending manner in meetings where he was present. Id.
at 1111 6, 9-10. After the second incident, Cruz’s second-line supervisor directed her first-
1ine supervisor, Maria Roat (“Roat”), to look into the allegations. Id. at 1[ 11. Roat
communicated with the agency’s Labor and Employee Relations Specialist, Kristen
Gunsolus (“Gunsolus”), who recommended a fact-finding investigation Ia’. at 11 12. If
the allegations were corroborated, Gunsolus speculated, then she would recommend
reassigning Cruz as a solution to the problems the office was having with Cruz as a
manager. Ia’.; Ex. 4 to Def.’s MSJ, at 122 [Dkt. #13-5]. Based on Gunsolus’s thorough
investigation, which turned up several reports that Cruz was demeaning to her

subordinates and difficult to work with, Roat issued Cruz a written warning indicating

 

2 This page number refers to the document stamp page numbers that the electronic case filing system
automatically generated when the defendant uploaded this document to the electronic docket.

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that She would be transferred to a position that required less supervisory contact with her
colleagues. Def.’s SOF '1[‘[[ 26, 28. Cruz immediately complained to FEMA’s EEO
office, alleging that She was removed from her position because she is an African
American and Hispanic woman. Ia'. at 11 29.

While her supervisors figured out a new position for her, Cruz was detailed out of
the office to a temporary role at DHS Headquarters, creating a vacancy that her
supervisors could fill with a new hire. Icl. at 1111 27, 31-35; see also Ex. 20 to Def.’s MSJ
[Dkt. #13-21]; Ex. A to Pl.’s Opp’n, at 12 [Dkt. #16-1]. Although Cruz’s detail was
originally planned to last 90 days, it ended up lasting an additional four months, until her
old position was filled by a new employee and until Roat could find her a new position in
a different office. Def.’s SOF 1]1[ 27, 31-35; see also Ex. A to Pl.’s Opp’n, at 12. When
Cruz was notified that the detail would be extended, she amended her EEO complaint to
include a claim that the extension was in retaliation for her prior EEO activity. See Ex.
A to Pl.’s Opp’n 1[ 8. Cruz added this allegation notwithstanding the fact that while she
was detailed, she indicated to a supervisor that she was “not in a rush to return” and that,
if possible, she “would prefer to stay here at the Headquarters.” Def.’s SOF 11 33. As
soon as Roat found Cruz a position in a different branch at FEMA, she transferred Cruz
back from Headquarters and placed her in that position. Ia'. at 11 34; see also Ex. 11 to
Def.’S MSJ [Dkt. #13-12]; Ex. 12 to Def.’S MSJ, at 23 [Dkt. #13-13]. The new position

was as the Supervisory Information Technology Program Manager in the Business

Management Division of FEMA’s Office of the Chief lnformation Officer. Ex. G to
Pl.’s Opp’n [Dkt. #16-7]. Roat selected this reassignment not only because it fit with the
goal of removing Cruz from contact with the employees who had complained of her
conduct, but also because the office needed someone with supervisory experience for this
new position, and Cruz was the only person available who was familiar with the office
and who had supervisory experience. Def.’s MSJ 17-18; Ex. 16 to Def.’s MSJ, at 2
[Dkt. #13-17]. In the final analysis, Cruz suffered no demotion in grade or pay, but she
was no longer using her unique skills in information security. Ex. G to Pl.’s Opp’n; see
also Ex. 29 to Def.’s MSJ, at l [Dkt. #13-30].
STANDARD OF REVIEW

Summary judgment is proper when there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).
The burden is on the movant to show that there is no dispute of fact or that the evidence
is so one-sided that the movant must prevail as a matter of law. Ana'erson v. Liberly
Lol)by, Inc., 477 U.S. 242, 251-52 (1986). To the extent that the non-moving party will
bear the burden of proving facts at trial, however, those facts must be supported by
competent evidence, and the absence of such evidence can form the basis for summary
judgment See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). In evaluating the
record, the court must accept as true the evidence of, and draw “all justifiable inferences”

in favor of, the party opposing summary judgment Anclerson, 477 U.S. at 255. After

doing so, a genuine issue exists only where “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Ana’erson, 477 U.S. at 248.

Pursuant to Local Rule of Civil Procedure 7(h), the party moving for summary
judgment shall file a statement of undisputed material facts, supported with citations to
the record, on which the Court can rely to determine whether the moving party is entitled
to judgment as a matter of law. Where, as here, the non-moving party does not counter-
file a statement of facts in dispute or otherwise challenge the moving party’s assertions,
the Court may consider those assertions admitted and may rely on them as undisputed
facts if they are supported by the record citations. See Jackson v. Finnegan, Hena’erson,
Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996) (discussing the
predecessor local rule).

ANALYSIS
I. Plaintiff’s Discrimination Claim Fails Because No Reasonable Factfinder

Could Conclude that Defendant’s Legitimate Explanation for Detailing
and Reassigning Plaintiff Was Pretextual.

Title VII makes it unlawful for an employer “to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of the individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000€-2(a)(1). Our Circuit has instructed that, at the summary judgment
stage, it is an unnecessary and improper “sideshow” to decide whether a plaintiff in a

discrimination suit has made out a prima facie case where, as here, the employer asserts a

legitimate, non-retaliatory reason for the challenged actions. Braa'y v. O]Yice of the
Sergeant at Arms, U.S. House ofRepresentatz'i/es, 520 F.3d 490, 493-94 (D.C. Cir. 2008).
The only relevant inquiry is whether the employee has put forth sufficient evidence for a
reasonable jury to conclude that the employer’s proffered explanation is a mere pretext
and the employer’s real motivation was discrimination. Ia’. Summary judgment must
be granted for the employer if the employee fails to produce sufficient evidence that
would discredit the employer’s proffered explanation and show that the actions were
discriminatory. Ia’.

Here, plaintiffs discrimination claim fails because no reasonable factfinder could
find that Cruz’s supervisors removed her from her position for any reason other than to
reduce her contact with the employees who complained about her conduct. By failing to
respond to defendant’s statement of undisputed material facts, plaintiff admits that her
supervisors had overwhelming evidence that her subordinates found her to be demeaning
and difficult to work with. Def.’s SOF 1115-24 Plaintiff s argument, then, essentially
boils down to contending that her punishment for such conduct was overzealous, and she
would have been given more lenient treatment if she were a white male. But this
argument is flatly contradicted by the evidence: Gunsolus, who was an independent labor

and employee relations specialist and had never met Cruz3, recommended that

 

3 There is no question Gunsolus did not know Cruz’s race, color, or national origin. To be sure,
Gunsolus may have been able to guess at Cruz’s gender given her name and the pronoun Roat used while
communicating about her; but there is no good reason to speculate that an independent specialist in these
matters, who was herself a woman, could not give good faith, non-discriminatory advice before even

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reassignment would be an appropriate solution if the original complaint about Cruz
turned out to be corroborated Def.’s SOF 11 12. Given that the complaint was indeed
corroborated, the only reasonable conclusion is that Cruz’s reassignment was a
legitimate, non-discriminatory response to her misconduct Moreover, plaintiffs theory
of overzealousness is implausible on its face because there is hardly a less restrictive way
of removing plaintiff from contact with her subordinates than by detailing her and
reassigning her when a position with the same grade level and pay becomes available
Plaintiff next argues that summary judgment is inappropriate at this stage because
she needs to conduct more discovery in order to marshal evidence both that other
employees at DHS were treated more leniently than she was and that other employees
witnessed Cruz being subjected to other “hostile and discriminatory treatment” while
employed in the Office of the Chief Information Officer. See Pl.’s Rule 56(d) Aff. 1111 4-
5, 8-10 [Dkt. #16-8]. The Court should grant such a request for additional discovery
only if the evidence sought is “necessary to resolve the summary judgment motion.”
Moore v. Unitea’ States. 213 F.3d 705, 710 n.3 (D.C. Cir. 2000); see also Convertino v.
U.S. Dep't ofJustice, 684 F.3d 93, 99 (D.C. Cir. 2012) (evidence sought must be
“necessary to the litigation”). That test is not met here. The general observation that
other employees were treated more favorably or that Cruz faced other hostile treatment

could not reasonably tip the scales against the much more specific evidence that, in this

 

meeting Cruz.

instance, an independent specialist with no knowledge of Cruz’s protected characteristics
thought that reassignment would be appropriate in the circumstances that Cruz’s
subordinates had alleged. This strong evidence that the employment action was
reasonable and independent of Cruz’s protected characteristics makes it extremely
unlikely that any additional evidence could raise a material dispute over whether the
action was pretextual. Moreover, the fact that Cruz’s supervisor, Roat, sought out the
recommendation of an independent specialist demonstrates that the only reasonable
conclusion here is that Roat acted on a good faith basis in removing and reassigning
Cruz. The record is therefore sufficiently developed to determine that defendant is
entitled to summary judgment on plaintiffs discrimination claim.

II. Plaintiffs Retaliation Claim Fails Because She Does Not Make Out a

Causal Link Between Her Protected Activity and the Extension of Her
Detail 0r Her Reassignment.

Title VII prohibits an employer from retaliating against an employee because that
employee “has opposed any practice made an unlawful 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). To
prove a prima facie case of retaliation, a plaintiff must show that (1) she engaged in
protected activity, (2) she was subjected to an adverse employment action, and (3) there
is a causal link between the protected activity and the adverse action. McGrath v.

Clim‘on, 666 F.3d 1377, 1380 (D.C. Cir. 2012). Defendant concedes that Cruz engaged

in protected activity when, on June 6, 2012, she initiated an EEO complaint that her
written warning, detail, and reassignment constituted discrimination Defendant also
seems to concede, at least for the purpose of its summary judgment motion, that Cruz
suffered an adverse employment action when her detail to Headquarters was extended on
June 20, 2012 (and again in August 2012) and then when she was reassigned to a
resource management position in October 2012.4 Defendant challenges only the causal
connection, contending that Cruz’s protected activity did not cause her extended detail
and reassignment because those actions had already been put into motion with the
decision to remove Cruz from her position in the first place. Indeed, defendant has
produced convincing evidence that Roat intended in the first instance to reassign Cruz
until she found a new position for her that would not require her to supervise the
employees who had complained about her behavior and that would allow Cruz to “focus
more on [her] job.” Ex. 29 to Def.’s MSJ, at 3 [Dkt. #13-30]. That position_with the
resource management branch_was not identified until October 2012, Def.’s SOF
1|11 34-35; see also Ex. 11 to Def.’s MSJ [Dkt. #13-12]; Ex. 12 to Def.’s MSJ, at 23 [Dkt.
#13-13].

Plaintiffs principal evidence of the causal link is the proximity of the protected

activity and the adverse action1 her EEO complaint came shortly before the extension of

 

4 The Court is unsure what to make of this sentence, never revisited, in the introduction to defendant’s
opening memorandum: “Plaintiff cannot produce sufficient evidence to show that she suffered any
adverse employment action.” Def.’s MSJ 4 [Dkt. #13]. Defendant seems to waive this argument by
declining to offer any support for, or even discussion of, this assertion in the body of the memorandum.

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the detail, which was followed a few months later by the undesirable reassignment
Although plaintiff correctly points out that a close connection in timing can sometimes be
enough for a jury to infer that EEO activity caused adverse employment action, the point
is inapposite to this case because it only holds when protected activity ostensibly alters
the course of events that occur shortly thereafter. See Clark County Sch. Dist. v.
Breeclen, 532 U.S. 268, 272 (2001) (temporal proximity was “immaterial in light of the
fact that petitioner concededly was contemplating the transfer before it learned of’ the
protected activity). Here, the finding of inappropriate behavior set Cruz on a course that
her EEO activity did not change. Plaintiff has adduced no evidence that her supervisors
were ever considering returning her from the Headquarters detail before finding her an
altogether different position, or that they had another, more desirable alternative position
in mind before learning of her EEO activity. What is more, plaintiffs own pleading
seemingly admits that it was the investigation into her conduct as a manager, and not her
EEO activity, that was the sole “basis” for her supervisors “removing” and
“reassign[ing]” her. Pl.’s Opp’n 4 [Dkt. #16]. Therefore, the timing of plaintiffs EEO
activity alone does not fulfill plaintiffs obligation to put forward evidence of a causal
link with the employment action she complains of,

Plaintiff also argues that the mismatch between her skills and the resource
management position create a causal link between her EEO activity and the reassignment

because there could be no other reason to put her in a position that does not make the

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most of her skills. But once again plaintiff ignores that the EEO activity did not change
the course that was already in motion. The reason to reassign her Was to get her out of
the position where her subordinates complained about her behavior, and plaintiff does not
point to anything that would cast doubt on whether that motive alone was enough to
assign her to a less-than-perfect position. For instance, plaintiff points to no evidence
(or the suggestion that there might be evidence) that there was another GS-15 supervisory
position available to which she would have been better matched.

Nor is plaintiff due additional discovery to gather more evidence on the issue of
causation. Her Rule 56(d) affidavit [Dkt. #16-8], setting out her proposed plan for
discovery, seeks information about other similar incidents at the agency that were either
handled by her supervisors or resulted in the type of discipline she experienced Pl.’s
Rule 56(d) Aff. 1111 4-5 [Dkt. #16-8]. The purpose of such discovery would be to adduce
evidence of “disparate treatment” and “comparators.” Ia’. at ‘[[ 10. But this evidence
would do nothing to raise doubts about whether CruZ was already slated for a detail that
would last until a GS-15 supervisory position for which she was qualified became
available. Without some such evidence, plaintiff cannot make out a prima facie claim of
retaliation, and the pursuit of disparate treatment and comparators evidence would be, in

the end, futile.

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CONCLUSION
For the foregoing reasons, the defendant’s Motion for Summary Judgment is
GRANTED. An Order consistent with this decision shall accompany this Memorandum

Opinion.

    

United States Di ' Judge

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