UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

REBA B. RANSOM,

Plaintiff,

v. Civil Case No. 14-422 (RJL)

ROBERT A. MCDONALD, Secretary, U.S.
Department of Veterans Affairs,

FILED
sEPsozms

Defendant.

BL C|erk, U.S. District & Bankruptcy
MEMORAN UM OPINION Courts for the District of Co|umbia

(Septembet;o. 2016) [Dkt. #44]

Plaintiff Reba B. Ransom (“Ransom” or “plaintiff’) brings this action against
Robert A. McDonald in his official capacity as Secretary of the United States Department
of Veterans Affairs (“the VA” or “defendant”). Plaintiff Was employed With the VA
from 1995 until July 2011, When she Was terminated. Plaintiff alleges in her Complaint
filed in June 2013 that her termination Was retaliation for her prior Equal Employment
Opportunity (“EEO”) activity, in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 621 et seq. See Compl. 11 11 [Dkt. #l]. In April 2014,
plaintiff moved to expand the scope of her lawsuit to include claims for other adverse
employment actions, see Mot. for Leave to File Am. Compl. [Dkt. #23], but for the
reasons explained in the VA’s opposition to that motion [Dkt. #26], the Court denied
plaintiff’ s request to amend her Complaint. See Min. Order of May 27, 2014.

Currently before the Court is defendant’s Motion for Summary Judgment. See Def.’s

MTD [Dkt. #44]. Despite plaintiffs continued discussion of other adverse employment
actions in her memorandum opposing defendant’s Motion for Summary Judgment, Pl.’s
Opp’n [Dkt #46], the Court must limit its disposition here to the only claim before it_the
claim that Ransom’s July 2011 termination Was the product of illegal retaliation Upon
consideration of the parties’ pleadings, the entire record in this case, and relevant law, the
Court GRANTS summary judgment in favor of defendant.
FACTUAL BACKGROUND

Prior to the events giving rise to this case, Ransom Was an employee at the Kansas
City, Missouri branch of the VA, in the Office of Healthcare Inspections (“OHI”). See
Def.’slStatement of Undisp. Material Facts 11 l (“Def.’s SOF”) [Dkt. #44]; Pl.’s Response
to Def.’s Statement of Material Facts & Pl.’s Statement of Genuine Issues 11 30 (“Pl.’s
SOF, Part I” and “Pl.’s SOF, Part II”) [Dkt. #46-49]. Ransom applied for a promotion to
a GS-14 position in early 2010. Compl. 11 8. In May 2010, after she Was informed she
had not received the position, she filed a formal EEO complaint alleging that the non-
selection Was a product of race discrimination Def.’s SOF 1111 32-34; Pl.’s SOF, Partl
M 33-35. She named Dr. John [David] Daigh (“Dr. Daigh”) as one of the discriminating
officials. Id. Dr. Daigh Was the Director of OHI and the selecting official for the
position. Id.; Compl. 11 8. Several months later, in October 2010, she received a
promotion to the GS-14 level. Def.’s SOF 11 1; Pl.’s SOF, Partl1l l. Dr. Daigh, once

again the selecting official, approved that selection. Def.’s SOF 11 2; Pl.’s SOF, Part l

11 2. ln her new position, Dorothy Duncan (“Duncan”) was the immediate supervisor of
Ransom. Pl.’s SOF, Part ll 11 12. Ransom was also a supervisor herself-she
supervised her former co-workers J ames Seitz (“Seitz”) and Jennifer Kubiak. Def.’s
SOF 11 3; Pl.’s SOF, Part 111 3.

Several months after Ransom’s promotion, on March 8, 2011, Seitz complained to
Ransom’s supervisor, Duncan, that Ransom had struck him on the forehead a week
earlier. Def.’s SOF 11 4; Pl.’s SOF, Part l 11 4. Ransom’s explanation of the events is
that the physical contact was a friendly “tap” or “pop” that was routine in her interactions
with Seitz. Pl.’s SOF, Part l 11 4; Ransom Decl. 11 19 [Dkt. #46-28]. Duncan referred
the matter to her supervisors, including Dr. Daigh, who referred the matter to the Office
of the Inspector General (“OIG”) to do a formal investigation of the incident. Pl.’s SOF,
Part ll 1111 64, 67. OIG conducted an independent investigation of the incident, including
an interview of Ransom in which she explained that Seitz was a “touchy, feely, lovey
kind of person” and that she had no way of knowing that her physical contact was
unwelcome. Pl.’s SOF, PartI1111 8-10. Ransom also told the OIG investigators that she
believed the dispute could be explained by the fact that Seitz was angry that she had been
promoted instead of him. Pl.’s SOF, Part l 1111 12-16. She claimed that SeitZ’s behavior
toward her had changed ever since her promotion in October 2010. Id. She claimed he
was mentally unstable, causing her to fear for her safety. Ia’.

OIG issued a report of its findings a couple of weeks after its interviews, in April

2011. Def.’s SOF 11 19; Pl.’s SOF, Part l 11 19. Citing interview testimony, it found that
Ransom had struck Seitz on the head with an inappropriate amount of force, concluding it
rose to the level of“assault.” Pl.’s SOF, Part l 1111 20-21. lt also concluded that her
attempts to pass the conduct off as “routine” were incredible, that she had falsified SeitZ’s
mental instability, and that there was no basis for her to fear for her safety. Id. 1111 22-24.

On May 10, 2011, Duncan issued a notice of proposed removal, naming the three
grounds contained in the OIG report: (l) assault on an employee, (2) intentional
falsification, misstatement, or concealment of a material fact (l'.e., misrepresenting a
“touchy” relationship with Seitz that would have made her physical contact “routine”),
and (3) making false or unfounded statement which are slanderous or defamatory about
VA personnel or officials (i.e., alleging Seitz was mentally unstable and dangerous). Ia’.
11 26.` Seven days after Duncan issued the notice, on May 17, 201 1, Ransom filed an
EEO complaint against Duncan. Regan Decl., Ex. 18 [Dkt. #44-2]. She also filed a
reply to the notice, contending that Duncan had initiated the removal action as retaliation
for her protected EEO activity and alleging that Duncan was skeptical of Ransom’s
promotion and “made negative references about Ransom for having filed her original
EEO complaint.” Pl.’s SOF, Part ll 11 124; Reply to Proposed Removal 1-2 [Dkt. #46-
21].

The notice and reply were referred to Patricia Christ, the Deputy Assistant

lnspector General for OHl (“Deputy Assistant Christ”), who served under Dr. Daigh.

Def.’s SOF 11 28; Hr’g Tr. 86-105 (Christ Testimony) [Dkt. #46-44]; Christ Decl. [Dkt.
#44-3]. After an independent review of the OlG report, and a determination that the
SeitZ-Ransom incident was sufficiently serious, especially because it involved a
supervisor’s treatment of a direct report, Deputy Assistant Christ decided to terminate
Ransom in July 2011. Def.’s SOF 1111 29-31; Hr’g Tr. 86-105 (Christ Testimony) [Dkt.
#46-44]; Christ Decl. [Dkt. #44-3].

Ransom appealed the termination decision under the Civil Service Reform Act.
ln February 2012, an administrative law judge (“ALJ”) of the Merit Systems Protection
Board held a hearing as to the removal decision wherein she questioned Deputy Assistant
Christ about the reasons for her decision. See Pl.’s Opp’n 22; Ransom v. Dep ’t of
Veterans Affairs, 2012 M.S.P.B. LEXlS 1235 (M.S.P.B. Feb. 28, 2012). Deputy
Assistant Christ opined that the “assault” finding was perhaps the most important to her
decision. Pl.’s Opp’n 22. The ALJ ultimately vacated the removal action and
remanded the matter back to the VA with specific findings, including that the physical
contact at issue did not rise to the level of “assault.” See id. Upon remand, Deputy
Assistant Christ once again terminated Ransom, this time on the sole ground that she
made false or unfounded statements. See ia'. at 23. That decision was upheld by the
Merit Systems Protection Board on appeal. See id.; Ransom v. Dep ’t of Vetercms Ajj‘"airs,
2013 M.S.P.B. LEXlS 2780, at *10-13 (l\/I.S.P.B. May 24, 2013).

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); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Although the burden is on the
movant to show that there is no dispute of fact or that the evidence is so one-sided that it
must prevail as a matter of law, when the movant files a properly supported summary
judgment motion, the burden switches to the non-moving party to produce evidence that
would support ajury verdict. Ana’erson v. Liberly Lobby, Inc., 477 U.S. 242, 251-52,
256 (1986). The non-moving party “may not rest upon mere allegation or denials of his
pleading, but must set forth specific facts showing that there is a genuine issue for trial.”
Id. at 256.

The court must accept as true the evidence of, and draw “all justifiable inferences”
in favor of, the party opposing summary judgment. Ia’. at 255. 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, 477 U.S. at 322~24. 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.

ANALYSIS
Title Vll 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(e)~2(a)(1). Title Vll similarly prohibits employers from retaliating
against an employee because that employee “has opposed any practice made an unlawful
practice by [Title Vll], or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under [Title Vll].”
42 U.S.C. § 2000(e)-3(a). Our Circuit has instructed that, at the summary judgment
stage, it is “an unnecessary and improper ‘sideshow”’ to decide whether a plaintiff in a
retaliation suit has made out a prima facie case. Jones v. Bernanke, 557 F.3d 670, 678
(D.C. Cir. 2009) (quoting Brady v. Ojj‘ice of the Sergeam at Arms, U.S. House of
Representatives, 520 F.3d 490, 493 (D.C. Cir. 2008)). Where, as here, the employer
asserts a legitimate, non-retaliatory reason for the removal action challenged, 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 intentionally retaliated against the employee. Id. Summary judgment
must be granted for the defendant if the plaintiff fails to “produce sufficient evidence that
would discredit [the employer’s proffered explanation] and show that the actions were
retaliatory.” Baloch v. Kemplhorne, 550 F.3d 1191, 1200 (D.C. Cir. 2008). Moreover,
it is not enough for the plaintiff to produce evidence that retaliation was a “motivating
factor” in the removal action; rather, it must put into genuine dispute that “the desire to

retaliate was the but-for cause of the [removal] action.” Unz'v. of T ex. Sw. Mea’. Cir. v.

Nassar, 133 S. Ct. 2517, 2528 (2013).

Here, plaintiffs retaliation claim fails because no reasonable factfinder could infer
from the record that plaintiff s prior EEO activity was the but-for reason for plaintiffs
termination. Defendant has produced ample evidence that plaintiff was terminated by
Deputy Assistant Christ, who relied on her honest and reasonable belief that the OlG
report accurately reflected misconduct that warranted plaintiff s removal, and who had no
reason to retaliate against Ransom.l See Def.’s SOF 1111 29-30; George v. Leavitt, 407
F.3d 405, 415 (D.C. Cir. 2005) (question is whether the decisionmaker “honestly and
reasonably believed in” the reasons given). The record clearly demonstrates that she
made the termination decision in July 2011 for legitimate reasons, namely that she
believed plaintiff made unwanted physical contact with one of her direct reports and then
lied about the her relationship with him and his mental instability in order to attempt to
evade the consequences of his reporting the incident.2 Ia’. 1111 19-24, 29-30; Regan Decl.

Ex. 8, Ex. 15, Ex. 16 at 86-92 [Dkt. #44-2]; Christ Decl. 1111 3-4 [Dkt. #44-3]. Plaintiff

 

' Plaintiffs argument that the report had “holes” or that Duncan failed to read it in its entirety, Pl.’s
Opp’n 43-44, are wholly irrelevant to Deputy Assistant Christ’s good faith reliance on the report.
Additionally, the Court declines to address the various times when plaintiffs opposition includes Deputy
Assistant Christ’s name in its general accusations, but does not include any specific support as to Christ.
2 The Court will not consider the claim that Deputy Assistant Christ’s 2012 decision to reinstitute
Ransom’s termination was the retaliatory decision “truly” at issue here. I’l.`s Opp’n 42-43. The later-in-
time MSPB proceedings shed no light on what Deputy Assistant Christ honestly and reasonably believed
in 201 l. Plaintiff does imply that if Deputy Assistant Christ’s 2012 decision was unsupportable and
motivated instead by retaliatory animus, then a jury could infer backwards that she held the same
inappropriate motive in 201 l. But the record does not support that logic because the MSPB ultimately
held Deputy Assistant Christ’s 2012 decision was supportable Ransom v. Dep’! of Vererans A_Fai`rs,

20 | 3 M.S.P.B. LEXlS 2780, at *10-13 (M.S.P.B. May 24, 2013).

8

makes several arguments in an attempt to undermine this legitimate explanation, none of
which have merit.

Plaintiff tries to change the focus of the Court’s scrutiny by arguing that the VA is
liable not only for Deputy Assistant Christ’s good faith decision based on the OIG report,
but also, under Staub v. Procter Hospital, 562 U.S. 411 (2011), for Duncan’s decision to
refer the dispute up the chain of command and Dr. Daigh’s decision to refer it to OlG.
ln Staub, a plaintiff-employee was terminated after an allegedly biased supervisor made
an allegedly false accusation on which an independent, unbiased third-party at least partly
relied in deciding to terminate the plaintiff Id. at 414-15. The Court held that the third-
party decision could not immunize the employer as a matter of law from the harm caused
by the allegedly discriminatory accusation. Id. at 418-22. Plaintiff argues that Duncan
and Dr. Daigh’s decisions were both, like the false accusation in Staub, “based on
[retaliatory] animus that was intended to cause . . . an adverse employment action.” Pl.’s
Opp’n 41 (quoting Staub, 562 U.S. at 421). Unfortunately, Staub is inapposite for two
reasons.

First, unlike in Staub, plaintiff has not credibly accused either of the relevant
actors of retaliatory animus. Plaintiff here has not produced any reasonably reliable
evidence that Duncan had any retaliatory motive when she referred the dispute to OlG.
At most, plaintiff has demonstrated that Duncan was aware of Ransom’s 2010 EEO

activity and that she was concerned about EEO activity in general. See Hr’ g Tr. 396

(Stones Testimony) [Dkt. #46-45]; Kubiak OlG Tr. 77-81 [Dkt. #46-38]. The only
direct link between Duncan and Ransom in this regard occurred after the OlG report had
already been issued, when Ransom filed an EEO complaint against Duncan. And
although the question may be closer with respect to Dr. Daigh, who had been the subject
of Ransom’s EEO complaint prior to the referral decision, the record as a whole is such
that no reasonable jury could conclude that Dr. Daigh, who had promoted Ransom after
that EEO complaint, was harboring any animus toward her. lndeed, his decision to refer
the SeitZ-Ransom dispute to an independent body would not have been a very effective
way of retaliating against Ransom if Ransom’s behavior did not warrant the
investigation As such, the only conclusion one could reasonably draw regarding the
referral is that Dr. Daigh was acting with an abundance of caution, not animus.3
But even if a reasonable jury could find Duncan’s, or Dr. Daigh’s, referral of the
matter to be somehow retaliatory, Staub liability does not attach for a second reason.

Szuab requires that the retaliating supervisor’s act is the proximate cause, not just the but-

for cause, of the adverse employment action. 562 U.S. at 422. Here, plaintiff advances

 

3 Plaintif`fs evidence of other possible instances ot`()Hl managers retaliating for EEO activity does not
change this conclusion See Pl.’s SOF, Part Il, 1111 137-179. Plaintiffs strongest argument is that these
other cases are relevant under the Supreme Court’s decision in Sprint v. Memr'el'sohn, 552 U.S. 379
(2008), because they involved Dr. Daigh as the named official in the EEO complaint and could therefore
be probative ofa general practice when employees tile EEO complaints against him. See Pl.’s Opp’n 34-
36; E!ion v. .)'c:ckson, 544 F. Supp. 2d 1, 8 (D.D.C. 2008) (court should determine relevance by
considering, inter alia, “whether the same decisionmakers were involved”). But two of the three
instances of alleged retaliation that plaintiff points to have been adjudicated in favor of the VA, see Def.’s
Reply 18, and Dr. Daigh was not the alleged source of the retaliatory conduct in the remaining case.
Walls Decl.1111 10-13 [Dkt. #46-31].

10

a theory of but-for causation, but that chain of causation is broken by an independent OlG
inquiry. See Hampton v. Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012); cf Grl'ffin v.
Washington Conventz'on Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998) (“[E]vidence ofa
subordinate’s bias is relevant where the ultimate decision maker is not insulated from the
subordinate’s influence.”). Unlike in Staub, plaintiff does not allege that the accusation
at the heart of the OIG report was itself falsified for a retaliatory purpose. lndeed,
plaintiff has failed to produce any evidence that the findings of the inquiry were affected
by retaliatory animus. See Burley v. Nal"l Passenger Raz'l Corp., 801 F.3d 290, 297
(D.C. Cir. 2015). Therefore, regardless of the reason for the investigation, the results of
the investigation were an independent review of the facts and, thus, a legitimate basis on
which to take removal action against Ransom.

Having failed to undermine the legitimacy of the OIG report as a basis for the
termination decision, plaintiff must produce evidence that could reasonably suggest
Deputy Assistant Christ relied not on the report but on a retaliatory motive when she
rendered her removal decision in July 2011. But, like Duncan when she referred the
SeitZ-Ransom dispute up the chain of command, Deputy Assistant Christ had no reason
to retaliate against Ransom when she made the termination decision. At most, she knew
that Ransom had made EEO complaints about Dr. Daigh and, by that time, Duncan as

well.

Plaintiff attempts to muddy the waters, however, by alleging that Ransom’s

11

managers, as an indistinguishable group, were exercising retaliatory intentions The
most coherent of these theories seems to be that a jury could first infer that Dr. Daigh had
a retaliatory motive and could then impute that motive to Deputy Assistant Christ. Pl.’s
Opp’n 39-40; Pl.’s SOF Part ll, 11 127 (citing Daigh Dep. 39; Hr’g Tr. 210-11 (Daigh
Testimony); Hr’ g Tr. 105 (Christ Testimony)). That is a bridge too far. Even assuming
Dr. Daigh had a retaliatory motive, plaintiff cannot point to any credible evidence of
influence. None of the testimony that plaintiff refers to even remotely suggests that Dr.
Daigh influenced Deputy Assistant Christ’s decisions. lndeed, it suggests the opposite!
Both Dr. Daigh and Deputy Assistant Christ deny that he had any influence. Hr’ g Tr.
104:9 (Christ stating “l never discussed that with him”) [Dkt. #46-44]; ia’. at 210:11-12
(Daigh stating “l was not involved with that”); see also Daigh Dep. 40:1-4 [Dkt. #46-35].
At most, the evidence supports that he was apprised of the OlG report results, knew that
Deputy Assistant Christ would be deciding what action to take with respect to Ransom,
and spoke to Deputy Assistant Christ prior to the decision, but only in a routine way as he
did “a thousand times a day.” Daigh Dep. 39:10-11; Hr’g Tr. 210:20-22.

Finally, plaintiff tries to cast doubt on Ransom’s managers as an indistinguishable
group by “produc[ing] evidence suggesting that the employer treated other employees . . .
more favorably in the same factual circumstances.” Braaly, 520 F.3d at 495. But
Ransom has failed to produce any truly comparative evidence from which a reasonable

trier of fact could infer pretext. She describes two situations in which similar physical

12

conduct did not result in an OIG investigation or any disciplinary action. Pl.’s Opp’n
29-30; Pl.’s SOF, Part lI, 1111 143-49, 180-183. But, as discussed above, the decision to
refer the SeitZ-Ransom dispute to OlG, even if it can be credibly attributed to a retaliatory
motive, is legally irrelevant. And plaintiff provides no comparative evidence to
demonstrate how employees are usually treated when OIG makes the type of findings
that it did here. Nothing in the record could therefore reasonably suggest that other
employees in similar situations have been treated more favorably.

Because plaintiff has failed to raise any credible doubts that Ransom was
terminated in 2011 for any reasons other than the legitimate ones the VA claimed,
defendant is entitled to summary judgment as to plaintiffs claim of retaliation.

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.

l

RICHARDJ LEO
United States ` rio Judge

 

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