Ramos v. ADR Vantage, Inc.

MEMORANDUM OPINION

Amit P. Mehta United States District Court Judge

I. INTRODUCTION

In 2016, Plaintiff Joey Gonzalez Ramos worked for the U.S. Department of Agriculture (“USDA”) in a Miami field office. He alleges that the USDA hired an external contractor- Defendant ADR Vantage, Inc. (“ADR Vantage”)-to smear him in a climate-assessment report in retaliation for his protected activities at the agency. He brought this action against Defendant, asserting claims of defamation, civil conspiracy, invasion of privacy, and intentional infliction of emotional distress, and seeking damages and injunctive relief. Before the court is Defendant's renewed motion for summary judgment. For the reasons that follow, the court grants Defendant's motion in full.

II. BACKGROUND

A. Factual Background

Plaintiff is an employee of the USDA. Pl.'s Resp. in Opp'n to Def.'s Renewed Mot. for Summ. J., ECF No. 90 [hereinafter Pl.'s Opp'n], Decl. of Joey D. Gonzalez Ramos in Supp. of Pl.'s Opp'n, ECF No. 90-2 [hereinafter Gonzalez Ramos Decl.], ¶ 2. At the times relevant to this

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action, he worked as an information technology (“IT”) specialist at the Miami field office of the USDA Agricultural Research Service. Id. While working at the Miami office, he was also the president of the National Federation of Federal Employees, Local 1752. Id. ¶ 5. Plaintiff filed numerous union grievances and administrative complaints of discrimination against USDA employees and supervisors at the Miami field office. Id. ¶ 6.

Plaintiff also had complaints “alleging improper conduct” filed against him by USDA employees. Def.'s Renewed Mot. for Summ. J., ECF No. 88 [hereinafter Def.'s Mot.], Def.'s Stmt. of Material Facts Not in Dispute [hereinafter Def.'s SOF], ¶ 5. For example, one employee filed a complaint “assert[ing] that Plaintiff created a racially hostile work environment by using the ‘N word.'” Id.

In late 2016, the USDA “sought a formal climate assessment after it received complaints from employees alleging a hostile work environment” at the Miami field office. Id. ¶ 2; see also id. ¶ 19 (noting that the office had received “a disproportionate number of complaints”); Def.'s Mot., Exs., ECF No. 88-1, Ex. 11 [hereinafter Tucker Dep.], at 175.^[1]USDA leadership viewed the Miami office as “dysfunctional” and hoped that “a climate assessment report, ” which is generally “undertaken by a third-party neutral . . . to assess and identify themes and patterns in a certain work environment with the goal of improving workplace conditions, ” could “help identify some of the problems.” Def.'s SOF ¶¶ 2, 19 (internal quotation marks omitted); see also Compl., ECF No. 1 [hereinafter Compl.], ¶ 26; Tucker Dep. at 91 (“This was a dysfunctional location ....”); id. (discussing USDA management's recognition that it “need[ed] to bring an . . . independent body in to do an assessment to try to figure out and get to the bottom of what's going

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on, and what [it could] do to try to resolve some of these issues and get this location back on the right track”). The USDA also viewed the climate assessment as “a way for employees to feel comfortable sharing their honest assessments with an independent third party.” Def.'s SOF ¶ 19; see also Pl.'s Opp'n, Pl.'s Resp. to Def.'s Stmt. of Material Facts Not in Dispute, ECF No. 90-1 [hereinafter Pl.'s Resp. to Def.'s SOF], ¶ 19(b) (admitting that Tucker so stated in his deposition); Tucker Dep. at 92-93 (expressing that USDA management viewed the climate assessment as “an opportunity [for employees] to talk to somebody who they got no allegiance to, no ties to, they can be comfortable talking with, and that's why we wanted an independent third-party who had no connection to this area office”).^[2]

Ultimately, the USDA contracted with Defendant, and Defendant sent some of its employees to the Miami office to conduct the assessment in mid-December 2016. Id. ¶¶ 3, 6; Compl. ¶ 25. Plaintiff “did not participate in the assessment” and, indeed, encouraged others not to do so. Def.'s SOF ¶ 6; Pl.'s Resp. to Def.'s SOF ¶ 6. The assessment “culminat[ed] in a formal Climate Assessment Report” (“the Report”) in February 2017 that is the subject of this litigation. Def.'s SOF ¶ 3. Defendant “did not release [the Report] to anyone other than a handful of USDA executives.” Id. ¶ 7; Pl.'s Resp. to Def.'s SOF ¶ 7 (denying that he has knowledge of who qualifies

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as a “USDA executive” but not disputing that Defendant's release was limited and within the USDA). Plaintiff was not among those who received a copy of the Report.

On April 25, 2017, Plaintiff received a large set of documents in response to a complaint he had filed against his employer regarding incidents that predated the climate assessment. See Pl.'s Opp'n, Ex. C, ECF No. 90-5 [hereinafter Pl.'s EEO Compls.], at 1; Def.'s SOF ¶ 20. Those documents included an unredacted copy of the Report. See id. at 1-2. Plaintiff maintains that he did not notice the unredacted Report at that time. Pl.'s Opp'n at 6.

Less than a month later, on May 18, 2017, a USDA executive-Dr. Deborah Brennan- visited the Miami office. Compl. ¶ 31; Def.'s Mot., Exs., ECF No. 88-1, Ex. 3 [hereinafter Gonzalez Ramos Dep.], at 84. While there, she “discussed the climate assessment” and “mentioned that the climate assessment found that the IT specialist was defective in his performance.” Gonzalez Ramos Dep. at 84; see also Compl. ¶ 31 (“At the time, Brennan made disparaging comments about Plaintiff's job performance before the attendees. According to Brennan she based her comments in the findings of the Climate Assessment.”).

“Prompted by Brennan's comments, Plaintiff requested a copy” of the Report through a Freedom of Information Act (“FOIA”) request. Compl. ¶ 32; see also Gonzalez Ramos Dep. at 75. On July 14, 2017, Plaintiff received a “heavily redacted copy” of the Report in response to his FOIA request. Gonzalez Ramos Decl. ¶ 7. He appealed the withholdings and, on October 20, 2017, received a copy of the Report that was “less redacted.” Id. In February 2018, Plaintiff claims, he discovered the unredacted copy of the Report he had received almost a year prior. Id. ¶ 8. The Report contained numerous statements reflecting what other USDA employees had said about “the IT Specialist” and made recommendations that the USDA investigate some of those statements. See Def.'s Mot., Exs., ECF No. 88-1, Ex. 2 [hereinafter Climate Assessment Report],

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at 9-10, 13-16, 19. The “[four] actionable statements about Plaintiff in the Climate Assessment, ” id., that he identifies as defamatory are as follows:

• “The IT Specialist is unreceptive to any kind of suggestion and he's impolite when he's annoyed or frustrated. In a recent incident, he took something he shouldn't have. We talked about it and he ‘flipped out,' and raised his voice. It was very uncomfortable. I don't go to him if I don't have to.”

• “No action by [the Agricultural Research Service] will be effective in improving the atmosphere at [the Miami office] without addressing the issues involving [the IT Specialist and the Administrative Officer].”

• “Questions of Waste, Fraud, and Abuse. ADR Vantage frequently works with agencies as a confidential neutral and in that capacity, we are obligated to report to the agency what we believe to be evidence of waste, fraud or abuse. We do not know what definition USDA would use for these concepts but the conduct we have heard about from [Miami office] employees concerning the IT specialist would raise such a question for us.”

• “Govern actions of the IT Specialist. Move the reporting line of authority for the IT Specialist to the RL to ensure his availability and improve responsiveness and to track satisfaction from Researchers and others. Investigate allegations that he has abused his access to data, emails and telephones as well as his conduct toward other employees and consider appropriate disciplinary measures as appropriate.”

Climate Assessment Report at 10, 15, 16, and 19; Pl.'s Opp'n at 24.

B. Procedural Background

Plaintiff filed this action on July 18, 2018. Compl. Defendant moved to dismiss. Def.'s Mot. to Dismiss, ECF No. 4. This court denied that motion, Gonzalez Ramos v. ADR Vantage, Inc., No. 18-cv-01690 (APM), 2018 WL 6680531 (D.D.C. Dec. 19, 2018), and the parties went on to engage in a protracted and “particularly contentious” discovery process, Gonzalez Ramos v. ADR Vantage, Inc., No. 18-cv-01690 (APM), 2020 WL 7136840, at *1 (D.D.C. Dec. 7, 2020); see also Gonzalez Ramos v. ADR Vantage, Inc., No. 18-cv-01690 (APM), 2020 WL 409283 (D.D.C. Jan. 26, 2020). Defendant filed its first motion for summary judgment in March 2020. Def.'s Mot. for Summ. J., ECF No. 55. The court denied that motion without prejudice to permit

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Plaintiff to take an additional deposition. Gonzalez Ramos, 2020 WL 7136840, at *5. Defendant filed a renewed motion on February 22, which the court now considers.^[3] Def.'s Mot. at 1-2.

III. LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that 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). A “genuine dispute” of a “material fact” exists when the fact “is capable of affecting the substantive outcome of the litigation” and “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Elzeneiny v. District of Columbia, 125 F.Supp.3d 18, 28 (D.D.C. 2015).

In assessing a motion for summary judgment, the court looks at the facts in the light most favorable to the nonmoving party and draws all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477...