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Roman v. Castro

United States District Court, D. Columbia.

March 1, 2016

TERRI L. Román, Plaintiff,
v.
JULIAN CASTRO, Secretary of Housing and Urban Development, Defendant

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[Copyrighted Material Omitted]

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          For TERRI L ROMAN, Plaintiff: Lauren Marsh Drabic, LEAD ATTORNEY, Robert C. Seldon, SELDON BOFINGER & ASSOCIATES, P.C., Washington, DC.

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         MEMORANDUM OPINION

         CHRISTOPHER R. COOPER, United States District Judge.

         Cupcakes 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 supervisor's female

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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" ).

         Center 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.

         I. Background

         Terri 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.

         A. April 2007 Meeting and Immediate Aftermath

         On 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.

         Román 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 meeting,

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all of her major cases had been given to others. See Compl. ¶ ¶ 23, 26.

         B. Nonselection

         On 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.

         C. EEO Counseling and Aftermath

         Román 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 below.

         D. EEO Complaint and Cupcake Incident

         Meanwhile, 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.

         E. Performance Improvement Plan

         Later 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

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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.

         F. Proposal to Suspend

         A few 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.

         The 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.

         Third, 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.

         The Proposal to Suspend, along with a reply by Román, was reviewed by Deputy General Counsel John Herold, who had

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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 in grade.

         G. Reassignment

         Five 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.

         Later 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.

         H. Sexual Harassment Charge and Birmingham Transfer Order

         Less 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, ...


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