Ramos v. Garland

LAURA J. RAMOS, Plaintiff, v. MERRICK B. GARLAND, as U.S. Attorney General, Defendant.

Civil Action No. 13-0328 (ABJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 31, 2021

***SEALED***

MEMORANDUM OPINION

In 2013, plaintiff Laura J. Ramos brought this employment discrimination action against the Attorney General of the United States, arising out of her employment at the Federal Bureau of Investigation ("FBI"). Compl. [Dkt. # 1]. Plaintiff has twice amended her complaint, Am. Compl. [Dkt. # 50] ("First Am. Compl."), Second Am. Compl. & Jury Demand [Dkt. # 77] ("Second Am. Compl."), and the Court has ruled on several motions narrowing the dispute. See Min. Entry (Mar. 21, 2014) (dismissing hostile work environment claim); Mem. Op. & Order of July 7, 2015 [Dkt. # 37] ("July 2015 Mem. Op.") (granting judgment on the pleadings for defendant on disparate treatment claim); Min. Order (Nov. 11, 2015) (ruling on the record denying in part plaintiff's motion to amend her complaint); Mem. Op. of Jan. 31, 2017 [Dkt. # 71] ("January 2017 Mem. Op.") & Order of Jan. 31, 2017 [Dkt. # 72] ("January 2017 Order") (granting summary judgment for defendant regarding plaintiff's 2011 performance rating and constructive demotion claims). In August 2020, the Court denied plaintiff's motion to file a third amended complaint to add retaliation claims regarding alleged acts that occurred after her voluntary transfer to the FBI's Baltimore Division in 2014. Mem. Op. & Order of Aug. 11, 2020 [Dkt. # 141] ("August 2020 Mem. Op."). The sole remaining claim in the second amended complaint alleges retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. §§ 2000e et seq.

Pending before the Court is defendant's motion for summary judgment on the retaliation claim. Def.'s Mot. for Summ. J. & Mem. of P. & A. in Supp. [Dkt. # 133] ("Def.'s Mot."). Upon review of controlling case law and the entire record in the case,¹ the Court will grant the motion, bringing this matter to a close. A separate order will issue.

BACKGROUND

I. Factual Background²

A. Facts underlying the alleged retaliation in 2011.

The following facts are undisputed unless otherwise noted.³ Plaintiff is a Hispanic woman who was employed by the FBI as a Supervisory Special Agent ("SSA"), GS-14, in Unit 1D of the Counterintelligence Division between 2010 and 2014. Def.'s SOF ¶¶ 1-2, 65. During this time,she had responsibility as a program manager for a number of projects, including those she refers to as the [Redacted]

In 2011, plaintiff was supervised by Diana Race, who is described as the Acting Unit Chief ("AUC") of Unit 1D. Def.'s SOF ¶ 4. In May of that year, plaintiff filed an informal Equal Employment Opportunity ("EEO") complaint against Race, and she filed a formal complaint on August 21, 2011. Pl.'s Addt'l SOF ¶ 3; Def.'s Resp. to Addt'l SOF ¶ 3; see also Ex. 1 [Dkt. # 137-1] (SEALED) ("Pl. Produced Docs") at 2-4.⁴ She alleged that AUC Race treated her differently from non-Hispanic employees.⁵

At some point after May 26, 2011, in response to the "tension" with AUC Race, plaintiff requested a transfer away from Unit 1D. Def.'s SOF ¶ 4; Pl.'s Opp. to SOF ¶ 4. Between that time and August 2011, another supervisor, Assistant Section Chief ("ASC") Edward Finnegan,looked for available transfer positions for her.⁶ Def.'s SOF ¶ 7; see also Ex. 2 [Dkt. # 137-2] (SEALED) ("Def. Produced Docs") at 22-38. On August 25, 2011, plaintiff and ASC Finnegan discussed the fact that in order to be eligible to apply for promotion opportunitiesimmediately upon transfer, plaintiff would have to transfer within the division.⁷ Def. Produced Docs at 48-49. He clarified his recollection that it was her preference to stay in the division later a few days later.⁸

Plaintiff expressed a desire to complete her transfer via a process called "temporary duty assignment" ("TDY"), which allows an agent to transfer units within the FBI but prevents the transferor unit from "backfill[ing] the position during that temporary assignment." Def. ProducedDocs at 58, 116-18. Her supervisors advised her that it would not be possible to fulfill both her request that she remain within the division to preserve promotional opportunities, and the request to transfer temporarily via TDY, so any transfer would have to be permanent. Def. Produced Docs at 58-65.

On August 31, 2011, ASC Finnegan offered to transfer plaintiff to Unit 1B within the larger division. Def. Produced Docs at 58. Also on that date, plaintiff formalized her EEO complaint to meet the September 1, 2011 deadline. Pl.'s Addt'l SOF ¶ 31. When Finnegan did not hear back from the plaintiff, he reiterated the offer on September 5, 2011, specifying that the transfer could not be completed via TDY.⁹ Def.'s SOF ¶ 28. The record reflects that plaintiff responded to saythat she accepted the offer "as an interim measure" on September 9, 2011, at 1:07 pm,¹⁰ but at 3:49 pm that day, ASC Finnegan sent an email informing plaintiff that since he had just learned there was now a formal EEO process underway to resolve plaintiff's complaints through mediation, he would defer to that process rather than initiating a transfer himself.¹¹

B. Facts underlying the alleged retaliation in 2013-2014

i. Diminution of duties

The next set of events involved in the complaint took place more than a year later. Beginning in late 2012, plaintiff was out of the office on extended medical leave, Pl.'s Addt'l SOF ¶ 47, and Acting Unit Chief Steven Jett was required to assume plaintiff's duties with respect to the [Redacted] . Id.; Def.'s SOF ¶ 66. Given the work involved,AUC Jett emailed plaintiff on January 3, 2013, to advise her that he was seeking authorization to appoint someone to manage the program on a temporary basis for 90 days.¹² Although AUC Jett and plaintiff discussed the possibility of requesting, in plaintiff's words, "[a TDY-er] who could come in and assist the unit with any matters that needed to get done[,]" AUC Jett did not recall, nor is there evidence in the record, that the suggestion was passed up the chain of command. Pl.'s Jett Deposition Excerpts at 29.¹³

On March 13, 2013, plaintiff filed this lawsuit in federal court, based on the events that occurred in 2011. See Compl.

On March 28, 2013, AUC Jett transferred SSA Anthony Wagoner to serve as the [Redacted] program manager until his upcoming retirement, see Def. Produced Docs at 126, and plaintiff was designated as the "[b]ackup" program manager. Id. at 135-36. Also on March 28, 2013, plaintiff contacted an EEO counselor to initiate an informal complaint of retaliation. See EEO Records [Dkt. # 137-3] (SEALED) at 4. Between March and May 2013, plaintiff remained the program manager of [Redacted] , see Def.'s Ramos Deposition Excerpts [Dkt. # 133-9] at 20, and on May 31, 2013, when Wagoner retired, she resumed her role as program manager of [Redacted] as well. Def.'s SOF ¶ 72; Def. Produced Docs at 147. Plaintiff formalized her second EEO complaint from March 2013 on September 27, 2013. See EEO Records at 4.¹⁴

Another complained of action is that during an unspecified portion of 2013 to 2014,¹⁵ plaintiff was required to have someone else "input and validate her time and attendance" and to "report to Unit Chief Snow any time [she] left [her] desk," and that she "lost access to the main investigative database." Pl.'s Addt'l SOF ¶¶ 58-60, citing Pl.'s Ramos Deposition Excerpts [Dkt. # 137-12] (SEALED) at 16-19.¹⁶

ii. Denial of opportunities to transfer

The retaliation claim in the second amended complaint also raised questions about the denial of a transfer opportunity in October 2013 and two in 2014. Unit Chief ("UC") Jonathan Snow notified the members of Unit 1D on October 21, 2013, that the Internal Operations Division ("IOD") was looking for a Supervisory Special Agent to "swap." Def.'s SOF ¶ 34; Pl.'s Opp. to SOF ¶ 34. Plaintiff volunteered for the transfer, and UC Snow transmitted information related to her and to two others, Benton Larson and Tim Maruska, to Section Chief ("SC") Brian Brooks for consideration.¹⁷ Def.'s SOF ¶ 35; Pl.'s Opp. to SOF ¶ 35. The information included the candidates' bureau entry on duty ("EOD") date and their headquarters entry on duty ("HQ EOD")date. Id. Two other divisions also made recommendations.¹⁸ Def. Produced Docs at 151. SSA Larsen was ultimately selected for the role by Counterintelligence Division Deputy Assistant Director ("DAD") Debra Smith. Def.'s SOF ¶¶ 37, 41. DAD Smith's stated reason for her selection was that she "went by EOD date." Def. Produced Docs at 152.

Another opportunity arose on March 27, 2014, when the Transfer Unit of the FBI announced its need for a "critical needs transfer" to the Boston Field Office ("BFO"), Def.'s SOF ¶ 45; the open position was for a GS-13-ranked Special Agent. Pl.'s Opp. to SOF ¶ 46. On April 11, 2014, plaintiff requested consideration for the position, and she was "fully recommended" by the head of the Counterintelligence Division. Def.'s SOF ¶¶ 47-48. The Transfer Unit denied plaintiff's transfer request to the BFO, though, because her 2013 performance appraisal rating ("PAR") [Redacted] ¹⁹ Def.'s SOF ¶ 56.

Plaintiff applied for another transfer on May 20, 2014, after the Transfer Unit solicited Special Agents for a "Voluntary Rotational Transfer" ("VRT") to the New York Field Office ("NYFO"). Def.'s SOF ¶¶ 49, 52. Again, plaintiff was "fully recommended" by the head of the Counterintelligence Division for the GS-13 Special Agent position. Id. ¶ 53. Candidates for a VRT are required to have at least a "successful" rating on their latest PAR, id. ¶ 51, though, andthe Transfer Unit denied plaintiff's transfer request to the NYFO, citing her [Redacted] .²⁰ Id. ¶ 56.

C. The retaliation count in the Second Amended Complaint

Based on all of these facts, the retaliation count that remains in this case claims that plaintiff was subjected to adverse employment actions beginning in 2011 in...