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Pardo-Kronemann v. Jackson

March 31, 2008

JOSE PARDO-KRONEMANN, PLAINTIFF,
v.
ALPHONSO JACKSON, SECRETARY OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Jose Pardo-Kronemann, an employee in the Office of International Affairs at the Department of Housing and Urban Development ("HUD" or "the Department"), brings this action against defendant Alphonso Jackson in his official capacity as the Secretary of HUD. PardoKronemann alleges that the Department retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., based upon his prior Equal Employment Opportunity activity. He alleges that the retaliation was manifested when he was reassigned from the Office of General Counsel to the Office of International Affairs and when he was placed on Absent Without Leave status for January 7 and 8, 2002. Currently before the Court is the Department's motion for summary judgment. Upon careful consideration of the motion and the parties' memoranda, the applicable law, and the entire record, the Court will grant the Department's motion.

BACKGROUND

I. Factual History

Pardo-Kronemann is a Hispanic-American, who was born in Cuba. Pl.'s Statement of Material Facts Omitted by Defendant (Pl.'s Statement) ¶ 18. He first worked at HUD in the Office of International Affairs as a paid intern in 1977. Def.'s Statement of Material Facts as to Which There is No Genuine Dispute ("Def.'s Statement) ¶ 1. Fourteen years later, the Department hired Pardo-Kronemann as a grade 11 Law Clerk (entry level attorney) assigned to the Office of General Counsel in the Public Housing Division/Office of Assisted Housing. Id. ¶ 2. The parties agree that Pardo-Kronemann was unhappy working in this division, and he was therefore reassigned in 1994 to the Finance Division, Government National Mortgage Association, still within the Office of General Counsel. Id. ¶¶ 2-3; Pl.'s Responses to Def.'s Statement of Material Facts ("Pl.'s Responses") ¶¶ 2-3. Due to an alleged shortage of work in the Finance Division, PardoKronemann was reassigned to the Program Compliance Division within the Office of General Counsel in 1998 or 1999, and he was again unhappy with his new assignment. Def.'s Statement ¶ 4; Pl.'s Responses ¶ 4.

The parties agree that Pardo-Kronemann "filed several complaints of discrimination and retaliation prior to this litigation and that he filed the latest of these in April 1999." Pl.'s Responses ¶ 16. In his informal complaint filed in 1999, Pardo-Kronemann alleged that he had been retaliated against due to his prior Equal Employment Opportunity activity. Def.'s Statement ¶ 16. Three months later, he spoke with the Counselor to the Secretary, Howard B. Glasser, about his dissatisfaction with his work situation. Id. ¶ 5. During their discussion, Pardo-Kronemann requested a "one year detail to the US Agency for International Development ("USAID"), with a commitment to renew," "[t]wo within-grade step increases," and "[r]einstatement to HUD at the end of the detail period, preferably to the HUD Office of International Affairs or the GNMA Finance Division." Id. ¶ 6; Def.'s Ex. 2 at 1. After the Counselor worked out the USAID detail, Pardo-Kronemann indicated that he was instead interested in a detail to the Inter-American Development Bank. Def.'s Ex. 2 at 1. The Counselor then worked to make arrangements for a detail to that agency. Although Pardo-Kronemann alleges that his resulting detail was part of an agreement to settle his pending claims of discrimination and retaliation, the Counselor made it very clear that their discussion and the resulting detail were "not a settlement or negotiation of any formal complaints," but were instead an "attempt to help out an employee who is looking for a more challenging and satisfying work assignment." Id. at 2. That same month Pardo-Kronemann withdrew his informal complaint.

Effective on November 29, 1999, Pardo-Kronemann was granted a six-month detail to the Inter-American Development Bank. Def.'s Statement ¶ 7. The Department also later granted his request to extend the detail until November 30, 2000. Id. After this time, Pardo-Kronemann did not seek another extension of his detail at the Inter-American Development Bank, but instead sought a detail to the Inter-American Investment Corporation. Id. ¶ 8. Pardo-Kronemann contends that "he was somewhat depressed because the agency refused to respond to the request" for this next detail, and he therefore requested leave without pay, which was granted from December 2000 through February 2001. Pl.'s Responses ¶ 9.

In March 2001, Pardo-Kronemann returned to the Office of General Counsel and informed "Matthew F. Hunter, former Assistant to the Secretary and White House Liaison, that he was seeking either a political appointment or another detail." Def.'s Statement ¶ 10. Hunter "saw no reason to spend additional HUD money on detailing" him to another office, and accordingly his request was denied. Def.'s Ex. 3 ¶ 7. According to Hunter, "[a]t or about the same time period that Mr. Pardo-Kronemann requested to go on detail again, [the Department] did not permit other HUD employees to go on details they sought, while budget and operational assessments were taking place." Def.'s Ex. 15 ¶ 6.

From March 2001 through December 2001, although Pardo-Kronemann was technically placed within the Office of General Counsel, he "had no job description and it is unclear to whom exactly he was to have been reporting substantively." Def.'s Mot. at 7. Based upon PardoKronemann's previous experience in the Office of International Affairs, Hunter gave him an assignment and asked him to prepare a background paper on the office. Id. ¶ 11. According to Hunter, Pardo-Kronemann took a very long time to complete the project, and when the final version was submitted, Hunter was disappointed with the results. Def.'s Ex. 3 ¶ 6. The parties agree that Pardo-Kronemann's "transition back to [the Office of General Counsel] 'was not working out satisfactorily.'" Pl.'s Responses ¶ 11; Def.'s Statement ¶ 6.

Thereafter, General Counsel Richard Hauser asked Hunter to talk with Shannon Sorzano, Deputy Assistant Secretary for International Affairs, Office of Policy Development and Research, about a possible position for Pardo-Kronemann in her office based upon Pardo-Kronemann's "previous statements regarding his desire to work in the International arena." Def.'s Ex. 11 ¶ 9; Def.'s Statement ¶ 13. In the fall of 2001, Sorzano scheduled an interview for Pardo-Kronemann. On the day of the interview, however, she was running late for the appointment, and PardoKronemann left before she arrived. Def.'s Ex. 3 ¶ 8. Although the interview was never conducted, Deputy General Counsel George Weidenfeller contacted Hunter again about an appropriate placement for Pardo-Kronemann. Id. After Hauser, Weidenfeller, Hunter, and Dan Murphy, former Chief of Staff to the Secretary of HUD, discussed the matter further, PardoKronemann was issued a directed reassignment from an Attorney Advisor position in the Office of General Counsel to an Attorney Advisor position in the Office of International Affairs, effective on December 16, 2001. Def.'s Statement ¶ 14. Pardo-Kronemann retained his same title, grade, pay, and benefits after the reassignment. Id. ¶ 15.

Carole A. Jefferson, General Deputy Assistant Secretary for Administration, and Lawrence L. Thompson, General Deputy Assistant Secretary for Policy Development and Research, instructed Pardo-Kronemann to report to the Office of International Affairs and his new office on January 7, 2002. Def.'s Ex. 5 at 1. When Pardo-Kronemann learned of the reassignment, he instead attempted to file a request for leave and failed to report to the office on the designated date. Def.'s Statement ¶ 16; Pl.'s Responses ¶ 16. The Department asserts that Pardo-Kronemann did not comply with established procedures for requesting approved leave from the Office of International Affairs. Def.'s Statement ¶ 16. Thus, the Department sent a letter by courier explaining that he was being placed on Absent Without Leave ("AWOL") status until he reported to work. Def.'s Ex. 14 at 1; Def.'s Statement ¶ 16. Pardo-Kronemann thereafter reported to his new position on January 9, 2002.

II. Procedural History

Pardo-Kronemann filed the current action on March 25, 2005, alleging that his reassignment to the Office of International Affairs and his AWOL placement were retaliatory based upon his prior Equal Employment Opportunity ("EEO") activity. The Department has now moved for summary judgment on Pardo-Kronemann's claims. The Department contends that Pardo-Kronemann's reassignment was not an adverse action, that Pardo-Kronemann cannot establish a causal connection between the reassignment and his protected activity, and that, in any event, he has failed to rebut the Department's legitimate, non-retaliatory reason for the reassignment. As for Pardo-Kronemann's claim regarding his AWOL status, the Department argues that Pardo-Kronemann cannot establish a causal connection between the AWOL placement and his protected activity and that, again, he has failed to rebut the Department's legitimate, non-retaliatory reason for the placement.

LEGAL STANDARDS

I. Summary Judgment Pursuant to Fed. R. Civ. P. 56(c)

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

II. The McDonnell Douglas Framework

The framework for establishing a prima facie case of retaliation was introduced for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The first step in the analysis requires a plaintiff to carry the burden of establishing a prima facie case by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). In order to make out a prima facie case of retaliation a plaintiff must establish: "(1) that she engaged in statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two." Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985) (quoting McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984)); Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). Under the Supreme Court's decision in Burlington Northern & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006), an adverse employment action in the retaliation context is one that could conceivably dissuade a reasonable worker from making or supporting a charge of discrimination. See also Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C. Cir. 2006); Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006).

Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The employer's burden, however, is merely one of production. Burdine, 450 U.S. at 254-55. The employer "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id.

If the employer is successful, the burden shifts back to the plaintiff to show that the employer's stated reason was a pretext for discrimination or retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). The plaintiff "may attempt to establish that he was the victim of intentional discrimination 'by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Burdine, 450 U.S. at 256). But "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination." Id. at 147. Thus, the trier of fact may also "consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Id. (quoting Burdine, 450 U.S. at 255 n.10). "Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors . . . includ[ing] the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Id. at 148-49. As the D.C. Circuit has explained:

Assuming then that the employer has met its burden of producing a nondiscriminatory reason for its actions, the focus of proceedings at trial (and at summary judgment) will be on whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment).

Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc); see also Waterhouse v. District of Columbia, 298 F.3d 989, 992-993 (D.C. Cir. 2002).

Although the "intermediate evidentiary burdens shift back and forth" under the McDonnell-Douglas framework, "'[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253). Once the defendant has proffered a legitimate non-discriminatory reason for its action, then, the question is whether that proffered reason is a pretext for discrimination or retaliation. At this point, the McDonnell Douglas shifting burdens framework effectively evaporates -- the sole remaining issue is discrimination or retaliation vel non, and "to survive summary judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003); see Reeves, 530 U.S. at 142-43. Examination of that issue in this setting therefore requires consideration of all the relevant circumstances in evidence, including the strength of the prima facie case, any direct evidence of discrimination, any circumstantial evidence that defendant's proffered explanation is false (which may be enough with the prima facie case to infer unlawful discrimination or retaliation), and any properly considered evidence supporting the employer's case. Reeves, 530 U.S. at 147-48; see also Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004); Lathram, 336 F.3d at 1089; Waterhouse, 298 F.3d at 993; Aka, 156 F.3d at 1290.

DISCUSSION

I. Reassignment to the Office of International Affairs

A. Pardo-Kronemann's Prima Facie Case of Retaliation

Because Pardo-Kronemann engaged in statutorily protected activity when he filed his informal complaint of retaliation in April 1999, the parties agree that Pardo-Kronemann has met the first requirement for a prima facie case of retaliation. The parties have differing views, however, as to whether Pardo-Kronemann has satisfied the remaining two requirements. In a Title VII disparate-treatment suit, the D.C. Circuit very recently clarified that "where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not -- and should not -- decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas." Brady v. Office of the Sergeant at Arms, U.S. House of Reps., No. 06-5362, slip op. at 7 (D.C. Cir. Mar. 28, 2008). In a Title VII retaliation suit, the same principle certainly applies, but here the Department contests Pardo-Kronemann's ability to demonstrate that a materially adverse employment action was taken. In light of this argument, and because the strength of the prima facie case is still relevant to the central inquiry of whether Pardo-Kronemann has demonstrated that a reasonable jury could conclude from all of the evidence that his reassignment was retaliatory, the Court will briefly address the parties' arguments in the prima facie context. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003). However, in keeping with the clear message of Brady, the Court will not decide whether Pardo-Kronemann has actually made out a prima facie case of retaliation.

The Department first argues that the reassignment was not an adverse personnel action because it did not have "material consequences such that it would dissuade a reasonable worker from making or supporting a charge of discrimination." Def.'s Mot. at 6 (citing Rochon, 438 F.3d at 1219-1220). When Pardo-Kronemann returned to the Office of General Counsel following the conclusion of his detail and his time off, the parties agree that he had no job description and performed no work for that office. Pardo-Kronemann contends that he was instead working under the direction of Joseph Ventrone, an advisor to the Secretary, but he does not assert that he was performing any legal duties. Def.'s Ex. 1 at 146-47. Indeed, the parties agree that for a substantial period of time he was writing a background paper on the Office of International Affairs. Nevertheless, the heart of Pardo-Kronemann's complaint regarding his reassignment is that it was not a bona fide legal position that would fully utilize his law degree. He argues that the reduction in legal duties constitutes an adverse retaliatory action.

As the Supreme Court has noted, "reassignment of job duties is not automatically actionable. Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Burlington Northern, 126 S.Ct. at 2417 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)) (internal quotation marks omitted). The Department immediately points out that the reassignment adhered to Pardo-Kronemann's previously expressed desire for a "[r]einstatement to HUD at the end of the detail period, preferably to the HUD Office of International Affairs or the GNMA Finance Division." Def.'s Ex. 2 at 1. Hence, the Department argues that this fact should weigh heavily against a finding that the reassignment was a materially adverse personnel action -- i.e., that it did not have consequences that would dissuade a reasonable employee from pursuing EEO rights.

Pardo-Kronemann's response is that his desires had changed at that point in time due to funding and project changes in the Office of ...


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