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CRUZ v. SNOW

September 6, 2005.

FEDERICO SANTA CRUZ, Plaintiff,
v.
JOHN W. SNOW, Defendant.



The opinion of the court was delivered by: HENRY KENNEDY, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Federico Santa Cruz, brings this action against his employer, the Department of the Treasury ("Treasury"), alleging that Treasury discriminated against him on the basis of race, national origin, and age, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and retaliated against him for complaining about the discriminatory conduct.*fn1 Presently before the court is Treasury's motion for summary judgment [#29]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion must be granted.

I. BACKGROUND

  Santa Cruz, a 67 year-old Filipino man, is employed by the Bureau of Engraving and Printing ("BEP"), a division of the Department of the Treasury, as a GM 13 Supervisory Chemical Engineer.*fn2 Santa Cruz began working for BEP in 1988, "performing chemical engineering functions . . . related to the manufacture of ink[,] printing of currency and other security methods," Santa Cruz Dep. at 15. In 1991, Santa Cruz received a promotion and served as branch head of the Chemical Engineering Branch. BEP apparently eliminated this branch in 1996 and that same year transferred Santa Cruz to the Office of Engineering, Environmental and Energy Management Division ("the Division"). Upon his transfer, Santa Cruz's primary responsibilities became identifying and recommending energy and water conservation projects, tracking annual energy and water consumption at BEP, and preparing an annual report for Treasury. Once at the Division, Santa Cruz came under the direct supervision of Mark Pipkin.

  Antagonism between the two men developed within a few months of Santa Cruz's arrival. Santa Cruz filed a formal Equal Employment Opportunity ("EEO") complaint on March 18, 1997. See Def.'s Mot. for Summ. J., Ex. 5 at 1-4. In his EEO complaint, Santa Cruz detailed some 25 individual discriminatory acts occurring over the course of eight years.*fn3 Among other charges, Santa Cruz accused Pipkin of: reminding him on November 7, 1996, "[r]emember now, there is no more Chemical Engineering Branch," id. at 16; telling Santa Cruz on November 19, 1996 that "we have bad experience [sic] with Chemical Engineers," id.; accelerating the deadline for completion of a project, id. at 15; on November 20, 1996, giving Santa Cruz an assignment "on a note scribbled on a 3" × 5" yellow Post It sheet," which in Santa Cruz's view was "not the proper way to initiate an engineering project," id. at 14; distributing a document to Santa Cruz on the same date, with the comments that "[i]f you cannot understand it verbally, I will read it to you," and "[s]ince you cannot take it verbally, I will have it for you in writing," id.; in December 1996, preparing a 1997 Performance Plan for Santa Cruz that allegedly reduced the scope of his job duties, id. at 9; and, in the course of a December 4, 1996 meeting concerning the 1997 Performance Plan, using a "loud and demeaning voice," banging on Santa Cruz's office door, and generally treating Santa Cruz with a lack of respect, id. at 8.

  The 1997 Performance Plan became a source of ongoing conflict between Santa Cruz and Pipkin. On April 28, 1997, Jeffrey Van Houten, then Santa Cruz's second-line supervisor, wrote to Santa Cruz that "[t]he fact that you disagreed with the standards and refused to sign them does not mean they are not in effect. Performance standards, like assignments of work, are not a negotiable issue." Def.'s Mot. for Summ. J., Ex. 33. Van Houten explained that "it is Bureau policy to conduct both an annual performance evaluation and a mid-year performance review based on your performance in achieving or meeting these standards." Id.

  Two days later, Pipkin conducted a Mid-Year Performance Review with Santa Cruz. Pipkin noted that "Mr. Santa Cruz is not achieving the standards outlined in his performance plan," and criticized Santa Cruz's failure to complete assignments in a timely manner, to work with others in the Division, and to provide updates on his activities. Pl.'s Opp'n, Ex. 19. The next day, on May 1, 1997, Pipkin wrote to Santa Cruz that "[a]s discussed at your mid-year review on 4/30/97, you are not achieving the standards outlined in your performance plan, and your performance is bordering being [sic] unacceptable. As a result of this less than satisfactory performance, you are being officially notified that unless your performance improves, you will be placed on a performance improvement plan." Def.'s Mot. for Summ. J., Ex. 48. Santa Cruz ultimately had his Final Year 1997 Performance Review in November 1997 and received a rating of "achieved standards" in all categories. Pl.'s Opp'n, Ex. 20 at 2. Also in November 1997, Santa Cruz requested that BEP fund a course at George Washington University; Pipkin authorized the course, but Santa Cruz's second-line supervisor at the time, George Shue, did not.

  Friction between Santa Cruz and Pipkin worsened in 1998. On January 14, 1998, Pipkin apparently tasked Santa Cruz to work on BEP standards. See Def.'s Mot. for Summ. J., Ex. 18. Two days later, Santa Cruz wrote a memorandum to Pipkin asking that the supervisor supply "a copy of the procedures and criteria that you will use in reviewing the BEP standards that I am writing," and noting that "[i]t would be a waste of U.S. Taxpayer money if I spend time developing the procedures and criteria for writing BEP standards because you have them already." Id. Santa Cruz also mentioned that "standards are very highly technical documents. The reviewer must have a level of competence in standards development and on the subject of the standard which are at least equal to that of the originator, preferably higher." Id. (emphasis omitted). Santa Cruz sent copies of this memo to Shue and two other BEP managers, Carla Kidwell, the Associate Director of Technology, and Thomas Kidwell, the Deputy Director.

  Pipkin replied to Santa Cruz in a memo dated January 21, 1998 that "it is your responsibility to provide this information as part of your assignment," and that "[t]he level of oversight and direction required by you on assignments of this nature is far too extensive for an employee at the GS-13 level." Id., Ex. 19 at 1. Pipkin noted Santa Cruz's dissatisfaction with his "current work situation" and requested that he not circulate memoranda "to parties outside this office without first receiving my concurrence." Id. at 2.

  Pipkin called Santa Cruz to the former's office the next day, on January 22, 1998, furnishing his memorandum to Santa Cruz and asking to discuss its contents. After an argument over whether the men would have the meeting by themselves or with Shue present, Santa Cruz departed and returned to his own office. Pipkin allegedly followed Santa Cruz back to the latter's desk; according to Santa Cruz, his supervisor "stood very close to me . . . trying to stare me down and intimidate me," and "spoke with hatred," Id., Ex. 20 at 1. Pipkin left Santa Cruz's office, and apparently returned later in the day to notify Santa Cruz that they would meet with Shue on January 29, 1998. During this second encounter, Santa Cruz noted that Pipkin screamed at him.

  On January 26, 1998, Santa Cruz wrote to Shue, Kidwell, Ferguson, and Jean Pitts, the Chief of the Office of EEO/Employee Counseling, requesting a "transfer to another BEP component" due to allegedly discriminatory acts perpetrated by Pipkin. Id., Ex. 21 at 1. Three days later, Santa Cruz wrote another memorandum to Shue, Kidwell, Ferguson, and Pitts, repeating his request for a transfer and his allegations that Pipkin had consistently discriminated against him. As scheduled, Santa Cruz met with Pipkin and Shue on January 29, 1998. Shue testified that "we were in agreement to transfer [Santa Cruz] to some other part of the organization," but that Santa Cruz never followed up on the proposal. Id. at 57. At the meeting, Shue also suggested that to "get over [the] hump," Pipkin list the tasks he had already assigned to Santa Cruz, "and give that list to [Santa Cruz] with the target dates for completion . . . so that it's very clear to [Santa Cruz] what is expected of him." Id. at 68, 66-67.

  On the same day as his meeting with Pipkin and Shue, Santa Cruz wrote to Shue that "[i]n the meeting on January 29, 1998, you gave the direction that I should stop work on the development of standards. In accordance with your directions, I have stopped working on the development of standards immediately." Pl.'s Opp'n, Ex. 28. In response, Shue wrote to Santa Cruz that "obviously you misunderstood my instructions to continue working on the assignments given to you by Mr. Pipkin . . . you are to continue working on the assignments that Mr. Pipkin has given you and outlined in his 2/2/98 memorandum." Id., Ex. 29.

  Meanwhile, Santa Cruz had written to Pipkin on January 30, 1998 that "you will give me a list of tasks and I will comment/work on these tasks. . . . In order to be able to follow this schedule it is necessary that I receive at least one task a day from Feb. 3, 4, 5, 6, 9, 10, and 11 at the beginning of each working day. . . . If the list of tasks is submitted late, the number of tasks evaluated will be reduced accordingly." Def.'s Mot. for Summ. J., Ex. 25. As apparently agreed at the January 29, 1998 meeting, Pipkin then provided Santa Cruz with a list of three tasks and corresponding deadlines: the development of "energy efficient standards or guidance for use in writing engineering specifications," due February 9, 1998; "a comprehensive energy tracking plan with initiatives and milestones for reducing energy costs, improving energy efficiency, and energy consumption," due February 25, 1998; and "a formal reporting format for energy expenditures that can be incorporated into [the] quarterly environmental reports," due March 9, 1998. Id., Ex. 27 at 1. In Pipkin's view, Santa Cruz turned in only an incomplete version of the first assignment; on March 5, 1998, Pipkin wrote that "you are not adhering to the mutually agreed upon terms of our meeting with Mr. Shue." Id., Ex. 28 at 2.

  On March 9, 1998, Pipkin presented Santa Cruz with a Memorandum of Warning, noting "serious deficiencies" in Santa Cruz's conduct and outlining expectations for Santa Cruz's workplace performance and demeanor. Pl.'s Opp'n, Ex. 2. Pipkin wrote a "memorandum for file" indicating that on April 1, 1998, he asked Santa Cruz about the status of his work assignments, stated that he felt Santa Cruz was spending too much time on one particular issue area, and reminded him "about the original focus of his work." Def.'s Mot. for Summ. J., Ex. 29. Santa Cruz, by Pipkin's telling, "became angry when I asked to see draft documents of his work," and "muttered something and abruptly left" Pipkin's office. Id.

  Tensions between Santa Cruz and Pipkin continued to escalate in early 1998. During a staff meeting held on April 23, 1998, conflict between the men flared again. Pipkin stated that Santa Cruz "starting yelling at and verbally attacking" Mohamud Saleh, a co-worker, and "shook [his] fists at [Saleh] while screaming that he is unqualified for his position." Pl.'s Opp'n, Ex. 6 at 1. Santa Cruz, for his part, denied screaming and shaking his fists at Saleh, but testified that Pipkin talked to him "in a very stern and angry and belligerent manner," Santa Cruz Dep. at 70, after Santa Cruz offered a clarification about BEP's recycling program. Prompted by Santa Cruz's alleged misbehavior at the April 23, 1998 staff meeting, Pipkin decided to suspend Santa Cruz without pay for five days. Pipkin indicated that the suspension was also based on Santa Cruz's failure to remedy the problems outlined in the March 9, 1998 Memorandum of Warning, and failure to complete the assigned tasks Pipkin had conveyed to him in the January 29, 1998 meeting and through the February 2, 1998 memorandum. Several months later, on October 2, 1998, Santa Cruz sent Pipkin a memorandum requesting that "a BEP employee other than yourself or George Shue" perform his year-end evaluation, because "you have a college degree but it is not in Engineering. ...


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