United States District Court, D. Columbia.
TERRI L. Román, Plaintiff,
JULIAN CASTRO, Secretary of Housing and Urban Development, Defendant
[Copyrighted Material Omitted]
TERRI L ROMAN, Plaintiff: Lauren Marsh Drabic, LEAD ATTORNEY,
Robert C. Seldon, SELDON BOFINGER & ASSOCIATES, P.C.,
R. COOPER, United States District Judge.
embedded with nails served at an office potluck. A fake
transfer order dangled as bait to catch a suspected computer
hacker. A formal investigation launched after an employee
posted her probation notice in the office restrooms. Sexual
harassment allegations levelled against a sight-impaired
reader. Plotlines from a low-budget telenovela? Sadly not.
All in a day's work, it would seem, in the Office of the
General Counsel of the United States Department of Housing
and Urban Development (" HUD" ).
stage in the melodrama is Plaintiff Terri Román, a veteran
HUD lawyer. After complaining of mistreatment at the hands of
a supervisor, Román claims she suffered a series of
discriminatory and retaliatory reprisals ranging from being
subjected to bogus internal investigations to being denied a
promotion and suspended for two days. She seeks redress
through a suit under Title VII of the Civil Rights Act of
1964. HUD casts Román as the disgruntled obstructionist,
hurling wanton allegations of discrimination against
colleagues and superiors in order to thwart the agency's
legitimate efforts to confront her substandard performance.
HUD thus moves for summary judgment on all counts of
Román's Complaint. Although Román has failed to link
HUD's alleged transgressions to her gender, the Court
will not bring the curtain down on her suit entirely. As
explained below, it will grant summary judgment for HUD on
Román's discrimination claims and two of her retaliation
claims, but permit Román to present her other claims of
retaliation to a jury.
Román is a GS-14 level Trial Attorney in the Office of
Litigation of HUD's Office of General Counsel. She began
working at HUD in 1987 and joined the Office of Litigation in
1999 after completing law school. In April 2006, Román was
detailed to the temporary position of Acting Managing
Attorney, a GS-15 position, in the Office of Litigation.
Román claims that until 2007, she had received 20 consecutive
" Outstanding" ratings in her annual performance
evaluations, including for the period during which she served
as Acting Managing Attorney. Compl. ¶ 12. Her positive
reviews notwithstanding, HUD asserts that " [t]he record
clearly demonstrates that [Román's] work as an attorney .
. ., particularly her legal writing, was below an acceptable
level for the agency." Def.'s Mot. Summ. J. 4.
April 2007 Meeting and Immediate Aftermath
April 17, 2007, Román and three of her colleagues met with
HUD's then General Counsel, Robert Couch, and then Deputy
General Counsel, Michael Flynn, to voice objections to
allegedly unlawful employment practices by Román's
second-line supervisor, Nancy Christopher. Couch invited
Christopher to join the meeting while it was in progress.
With Christopher present, Román and her colleagues complained
about Christopher's alleged preferential treatment of
young, male attorneys; her impending suspension of a senior
female attorney in the Office of Litigation; and her requests
of Román to " perform traditional female tasks,"
such as " beautify[ing] the office with plants,"
cooking for private parties thrown by Christopher, and
organizing an office celebration for Christopher's
elevation to the Senior Executive Service. Compl. ¶ 20.
alleges that her relationships with her supervisors
deteriorated further after the meeting with the General
Counsel. Just three days after the meeting, Gerald Alexander,
Assistant General Counsel of the Office of Litigation and
Román's first-line supervisor, began creating a
Memorandum for Record (" MFR" ) documenting email
exchanges with or concerning Román and notes criticizing her
performance. See Pl.'s Opp'n 11; id. Ex. 18. Román
also maintains that her supervisors began to reassign her
cases to junior, male attorneys until, within a year of the
all of her major cases had been given to others. See Compl.
¶ ¶ 23, 26.
April 19, 2007, HUD listed a vacancy for the permanent
position of Managing Attorney, in which Román had been
serving on an interim basis. Román applied but was not
selected for the position. On May 30, 2007, Christopher and
Alexander instead chose Allen Villafuerte, a male attorney
who Román claims was no more qualified than she was. See
Pl.'s Opp'n Def.'s Mot. Summ. J. ("
Pl.'s Opp'n" ) 3. No notes from the interviews
were produced during discovery. The only documentation of the
interview process in the record is a composite scoresheet
showing that Villafuerte was rated ahead of Román by a score
of eleven to ten. See id. at 44. Román maintains that the
" scoring process was entirely subjective" and did
not accurately reflect the interview panelists'
impressions of the applicants. Id. at 12. According
to Román, Villafuerte scored higher only because he had not
complained about Christopher's employment practices, as
she had. See id.
EEO Counseling and Aftermath
sought Equal Employment Opportunity (" EEO" )
counseling in August 2007, identifying Christopher,
Alexander, and General Counsel Couch as having discriminated
and retaliated against her. Approximately two months later,
on October 12, 2007, Alexander contacted Nancy Hogan, a HUD
Human Resources Specialist, to ask about the possibility of
taking disciplinary action against Román for what he viewed
as a series of misrepresentations on her part. The following
month, Christopher and Alexander downgraded Román to a "
Fully Successful" performance rating for 2007, from the
" Outstanding" ratings she had previously received.
Alexander followed up with Hogan the next day to discuss a
proposal to suspend Román from service for exhibiting a
" lack of candor." See Pl.'s Opp'n Ex. 6,
at US00006347. Hogan recommended that Alexander reduce the
proposal to a letter of reprimand because Román had been a
federal employee for twenty years with no prior disciplinary
record. Despite this recommendation, Alexander ultimately
decided to issue a Proposal to Suspend, discussed further
EEO Complaint and Cupcake Incident
within two weeks of her " Fully Successful"
performance rating in November 2007, Román filed a formal EEO
complaint alleging discrimination and retaliation by
Christopher and Alexander. Less than two months following
that complaint, on January 7, 2008, HUD's Office of
Protective Services initiated an investigation of Román based
on Christopher's suspicion that Román had brought treats
with nails baked into them to the Office of Litigation's
potluck holiday party. According to HUD, Mr. Villafuerte
" discovered the nail when he attempted to eat [a]
cupcake." Def.'s Statement Material Facts ¶ 15.
Román insists that she was on extended leave and not present
in the building during the holiday party. While HUD
acknowledges that Román was on leave at the time, it explains
that she was investigated because " she was one of two
disgruntled employees identified to investigators by Ms.
Christopher." Id. The investigation was closed
without determining who was responsible. According to Román,
however, it was " clear from the record that it could
not possibly have been [her]." Pl.'s Opp'n 15.
Performance Improvement Plan
that month, on January 28, 2008, HUD placed Román under a
form of probation, termed a Performance Improvement Plan
(" PIP" ), to address Román's " less than
fully successful" written work. Compl. ¶ 34. HUD
also revoked Román's
teleworking privilege. The PIP required Román to improve her
writing, with Alexander's assistance. Román maintains
that the quality of her work remained strong throughout her
employment with HUD and that no assistance or feedback was
ever provided. While the plan was in place, Christopher
denied Román's request to take four hours of annual leave
even though Román claims she had more than enough leave to
fulfill the request. See id. ¶ 40.
Proposal to Suspend
weeks later, on February 22, 2008, Alexander issued the
above-noted Proposal to Suspend without pay for five days for
exhibiting a " lack of candor" on three separate
occasions. The first incident involved Román's handling
of a briefing schedule in one of her cases. According to
Alexander, he had asked Román to confer with opposing counsel
in a bankruptcy matter to expedite briefing by seven days.
See Pl.'s Opp'n Ex. 9, at 1. After conferring, Román
told Alexander that opposing counsel did not consent to
modifying the briefing schedule. Alexander learned a few days
later, however, that opposing counsel had not
opposed the modification, but had rather said he would agree
so long as the bankruptcy trustee had no objection. Alexander
then spoke to the trustee, who said Román had never contacted
him to discuss the modification. See id. at 1-2. Román
insists that she attempted to contact the bankruptcy trustee
and that--because opposing counsel's consent was
predicated on the trustee's consent--when she was unable
to reach the trustee, she informed Alexander that opposing
counsel did not consent to the change.
second incident mentioned in the proposal focused on
Román's possession of an electronic copy of a memorandum
from Christopher detailing staff awards to be given out at
the end of the year, which had not yet been distributed to
the staff. The proposal noted that after " thorough
factfinding," Alexander " concluded that [Román]
was not candid in [her] description of the circumstances
under which [she] obtained the awards memo," id. at 2,
or as to whether she had shared the memo with other
employees, id. at 3. Román had said that the document was
emailed to her by a fellow employee, but, according to the
proposal, that employee " explicitly denied having
emailed the memo to [Román]." Id. And, though
Román denied having shared the memo's contents with
anyone other than a single colleague, another colleague
referred to the memo's contents in EEO claims that she
separately asserted against the agency, contending that the
memo showed that Christopher and Alexander were rewarding
staff members who supported their discriminatory treatment of
female employees. See id.
the proposal charged Román with a lack of candor in
explaining why she had failed to retain documents pertaining
to a department audit she had overseen as Acting Managing
Attorney. After Villafuerte became the permanent Managing
Attorney, he asked Román for the documents in question. She
responded that she had deleted the files when she was not
selected for the Managing Attorney position and it became
clear that she would not be involved in future audits. She
added that it was her regular practice to delete electronic
files when she knew she would no longer have use for them.
Following a review of her electronic files, Alexander
determined that Román had not been candid because she had in
fact retained " a plethora of personal and [other] HUD
documents that could not possibly be of use to [her] in the
future." Id. at 4.
Proposal to Suspend, along with a reply by Román, was
reviewed by Deputy General Counsel John Herold, who had
been designated the deciding official. While the proposal was
under review, Román's PIP expired on May 2, 2008, and
Alexander issued her an Opportunity to Improve ("
OIP" ) notice, citing her performance as having fallen
to the level of " unacceptable." Pl.'s
Opp'n 22. Under the OIP, Román was given 60 days to
improve her performance, or else risk removal or a reduction
days after Román was placed under the OIP, on May 7, 2008,
she filed a complaint against Alexander with HUD's
Protective Services Division on the ground that " she
was concerned about her safety when alone" with him.
Def.'s Statement Material Facts Ex. 2 pt. B, at
US00004150; see also id. at US00004149-52. She claimed that
Alexander had " paced back and forth" in her
presence, adopting an " aggressive posture" and
making " hostile" comments toward her. Id.
at US00004150. The Division closed the investigation after
speaking with Alexander, concluding that he did not pose a
safety concern. See id. at US00004150-52.
that month, on May 25, 2008, Román was reassigned to report
to Doris Finnerman rather than to Alexander. According to
Román, Finnerman had recently been selected for the position
of Assistant General Counsel of the Office of Litigation over
Román, and the selection had been the subject of one of
Román's amended EEO complaints. See Pl.'s Opp'n
23. Román claims that she was reassigned so that Alexander
could avoid the appearance of retaliation when she was
ultimately removed from service. See id. Agency HR
specialists who were deposed testified that reassigning an
employee while she is under a PIP or OIP is improper and that
the transfer should have triggered a cancelation of
Román's PIP/OIP status. See Pl.'s Opp'n Ex. 44,
at 50 (HR specialist James Keys's testimony that "
[y]ou can't reassign an employee while they're on a
PIP/OIP because it will cancel out the entire process"
); see also id. Ex. 43, at 46-49 (HR specialist, and Mr.
Keys's superior, Sinthea Kelly, testifying to the same).
HUD counters that Román's " complaint to Protective
Services about Mr. Alexander just two weeks earlier
necessitated the change." Def.'s Statement Material
Facts ¶ 20.
Sexual Harassment Charge and Birmingham Transfer
than two weeks later, on June 4, 2008, Román reported that
she had been sexually harassed by Christopher's
assistant, Renita Gleaton. Compl. ¶ 48. Gleaton provides
reading services for Christopher due to her impaired
eyesight. See Def.'s Statement Material Facts ¶ 22.
Investigators were unable to substantiate the accusations.
See id. Later that month, Christopher and Gleaton created a
false email purporting to involuntarily reassign Román from
HUD headquarters in Washington, D.C. to an outpost in
Birmingham, Alabama. See Pl.'s Opp'n 28; id. Ex. 38
(Christopher Dep.), at 105-14. Christopher acknowledged in
her deposition that they did so in an effort to confirm their
suspicion that Román had been secretly accessing
Christopher's computer. See id. Ex. 38, at 114. But
instead of retaining the document in only electronic form,
Román claims that Gleaton sent it to a networked printer in
the office, where Román discovered it. See Pl.'s
Opp'n 28. Despite Román's apparent discovery of the
document in hard-copy form, ...