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Saunders v. McMahon

United States District Court, District of Columbia

March 7, 2018

KARLA SAUNDERS, Plaintiff,
v.
LINDA McMAHON, Administrator, Small Business Administration, Defendant.

          OPINION

          ROSEMARY M. COLLYER, United States District Judge

         Karla Saunders sued the Small Business Administration (SBA), alleging employment discrimination based on her gender and retaliation for her protected activities. After a four-and-a-half week trial, the jury found that SBA had retaliated against Ms. Saunders when it failed to interview her for her former position and cancelled a related vacancy announcement (Claim Three), and when it terminated her employment in 2014 (Claim Eight(b)).[1] The jury was unable to agree on Claim Two, which alleged retaliation behind the 2009 reassignment of Ms. Saunders to the SBA Office of Faith Based and Community Initiatives. All other claims were found by the jury to be without merit, or were dismissed by the Court for lack of evidence. See 3/22/2017 Minute Entry; Verdict Form [Dkt. 137]. The jury awarded Ms. Saunders $52, 500 in damages. See Verdict Form.

         SBA now moves for Renewed Judgment as a Matter of Law on Claim Two, and Judgment as a Matter of Law on Claim Eight(b). Ms. Saunders has filed a Motion for a New Trial on Claim Two. For the reasons below, the Court will grant SBA's motion for judgment as a matter of law on Claim Two, deny Ms. Saunders's motion, and deny SBA's motion on Claim Eight(b).

         I. FACTUAL BACKGROUND

         A. Background to Litigated Claims

         The Court provides a brief summary of Ms. Saunders's career at SBA to put the contested matters in context. Karla Saunders joined SBA in 2005, coming from the Department of Labor (DOL), where she had most recently been a program specialist at the Occupational Safety and Health Administration. Richard Brechbiel, Chief Human Capital Officer at SBA until November 2, 2007, see 2/22/17 Tr. at Stipulation (Stip.) 12, encouraged her to join SBA as Chief of the Training and Benefits Division in the SBA Office of Human Capital. See Saunders, 2/22/17 Tr. at 37.[2] She performed as “the training officer for the entire agency.” Id. At SBA, Mr. Brechbiel quickly promoted her from a GS-14 to a GS-15 pay grade, which is the top career grade at SBA that is below the Senior Executive Service. See Civil Service Reform Act of 1978, 5 U.S.C. §§ 1101 et seq.

         Ms. Saunders's retaliation claim principally relies upon her involvement in equal employment opportunity (EEO) enforcement in 2007. In 2006, a coworker named Janice Chiverton charged that Mr. Brechbiel had discriminatorily failed to promote her. See Stip. 17. Ms. Saunders provided affidavit testimony supporting Ms. Chiverton's complaint in late 2006 and, on January 3, 2007, Ms. Saunders gave deposition testimony. See Stip. 17-19. Further, “[o]n April 9th, 2007 [Ms. Saunders] and two other SBA employees signed a request for intervention expressing concerns about the conduct and management practices of Richard Brechbiel.” See 2/22/17 Tr. at 92 (unnumbered stipulation). On March 15, 2007, Ms. Saunders contacted an EEO counselor to complain that Mr. Brechbiel had discriminated and retaliated against her due to this protected activity. See Stip. 20; see also Saunders, 3/1/17 a.m. Tr. at 7 (recalling the dates of the EEO complaint and request for intervention in March and April 2007). On May 4, 2007, Ms. Saunders sent an email to Mr. Brechbiel, copying other SBA officers, alleging retaliation due to her testimony in the Chiverton case. On July 6, 2007, Ms. Saunders filed a formal EEO charge against SBA. Ms. Saunders traces the post-Chiverton alleged discrimination to her support of Ms. Chiverton. In the Chiverton case, Ms. Saunders was asked by an EEO investigator “did I know that Dick Brechbiel and Sharon Petrell, Sharon Brown-Petrell if they were in a romantic relationship. I answered honestly yes. . . . Dick Brechbiel got mad because I told the truth and that's when the whole abusive beat down for the last eight years has taken place.” Saunders, 3/1/17 a.m. Tr. at 19. In September 2010, an Administrative Judge of the Equal Employment Opportunity Commission (EEOC) determined, after a hearing, that no discrimination or retaliation against Ms. Saunders had occurred. Stip. 24.

         As Chief of Training and Benefits, Ms. Saunders reported to the Chief Human Capital Officer (CHCO), a position held by Mr. Brechbiel at the time Ms. Saunders was hired, and subsequently held by Napoleon Avery from November 2007 until December 2009, Kevin Mahoney from December 2009 until March 2013, and Bridget Bean for all relevant times after that. See Stip. 9, 12; Bean, 3/8/17 p.m. Tr. at 40.

         Ms. Saunders was not a completely successful supervisor. According to Mr. Mahoney, “Karla was the only [supervisor] who had people who worked for her who eventually came to me and asked to be reassigned. As a matter of fact, all seven of her employees at one time or another came to me and asked to be reassigned.” Mahoney, 3/6/17 a.m. Tr. at 67. In her trial testimony, Ms. Saunders denied that she mistreated any employee, predominately with simple “no” answers to her counsel's questions. See Saunders, 2/23/17 p.m. Tr. at 48-56; Saunders, 2/27/17 a.m. Tr. at 31-37.

         Ms. Saunders was detailed by SBA to DOL from February 11, 2008 to July 30, 2008. See Stip. 13-14. She was then detailed to the Office of Entrepreneurial Development, within SBA, from August 11, 2008 to May 10, 2009, after which she was not returned to her prior position as Chief of Training and Benefits. See Stip. 16. Instead, she was assigned to the Office of Faith Based and Community Initiatives (the Faith Based Office), with the title of Senior Advisor and with the same salary grade, GS-15, and benefits as her prior position. Ms. Saunders claims that this reassignment was a retaliatory act.

         In January 2010, Ms. Saunders amended one of her pending EEO complaints to include new allegations that SBA had retaliated against her by cancelling a vacancy announcement for her former position as SBA's Chief of Training and Benefits, thereby preventing her from applying for the position. See Sixth Am. Compl. ¶ 83 [Dkt. 92]. A few months later, in April 2010, an investigator with the U.S. Office of Special Counsel (OSC) notified Ms. Saunders that SBA had orally agreed to allow Ms. Saunders to return to her former position. See Id. at ¶ 85.[3] Ms. Saunders again became Chief of Training and Benefits in June 2010; by this time then-CHCO Kevin Mahoney had reassigned various human-resources specialists to a different place in the organization so that they no longer reported to Ms. Saunders's position. See Id. at ¶¶ 86-88; see also Mahoney, 3/6/17 a.m. Tr. at 67 (referencing additional employee reassignments when Mahoney reorganized the Office of Human Capital at the end of 2011 and beginning of 2012). Ms. Saunders thereafter complained of a lack of staff support and other discriminatory treatment by SBA.

         In 2014, then-CHCO Bridget Bean recommended Ms. Saunders's discharge, and Chief Operating Officer (COO) Paul Christy sustained the recommendation. Ms. Saunders had planned to retire upon her eligible date in August 2014; however, Mr. Christy decided to discharge her on June 26, 2014, two months shy of her retirement-eligible date. OSC obtained a stay of her discharge from the Merit Systems Protection Board (MSPB) and Ms. Saunders was reinstated. She voluntarily retired after she became eligible.

         B. Claim Two - Reassignment to the Office of Faith Based and Community Initiatives

         As now relevant, Ms. Saunders alleged at trial that SBA had intentionally retaliated against her in 2009 for her participation in protected activity in 2007 by reassigning her from her position as Chief of Training and Benefits to the position of Senior Advisor in the Faith Based Office. See Sixth Am. Compl. ¶ 156(a); Verdict Form, Claim Two. Ms. Saunders amended the focus of this Claim at the end of trial, arguing that SBA retaliated against her by changing its offer of a voluntary placement as Senior Advisor into a mandatory reassignment on pain of discharge if she refused, only after she advised managers of her 2007 EEO activity.

         A little background is helpful. Soon after Barack Obama became President on January 20, 2009, his Administration announced its intention to reinvigorate a faith-based initiative by Executive Branch agencies that had been started under the prior administration of former President George W. Bush but now lay quiescent without staffing. It was thought that SBA could particularly assist in the Administration's efforts to recover from the economic collapse in 2008 by outreach to faith and community leaders. See Pickett, 3/2/17 a.m. Tr. at 48 (“[T]he President felt there was a strong role for SBA [in the Faith Based Office] because one of his four objectives for that office was economic recovery and stability within the country and small business was a huge piece of that. So [the White House] also felt that that was very key to have us involved. There were also several other agencies that were also involved.”).

         While the Obama White House selected its Cabinet Officers and political appointees requiring Senate confirmation, it sent liaisons and appointees not requiring confirmation to the departments and agencies. See, e.g., id. at 43, 54 (discussing hiring appointees and working with those in the White House liaison roles). Penny Pickett was an appointee from the Obama White House, who later became Chief of the SBA Office of Entrepreneurial Development (OED). Ana Ma joined SBA on February 9, 2009 as the Chief of Staff to the incoming Administrator Karen Mills, who awaited Senate confirmation. Career SBA manager Darryl Hairston, who was Associate Administrator for Management and Administration, became Acting Administrator from the date of the Inauguration until Ms. Mills's confirmation on April 6, 2009. See Stip. 8, 12.

         Ms. Pickett “was the first one in the office [from the new administration, on] the first day of President Obama's administration. [Darryl] Hairston was designated as the [acting] administrator.” Pickett, 3/1/17 a.m. Tr. at 59. From meetings at the White House, Ms. Pickett understood that “President Obama said . . . he wanted to get [the Faith Based Office] up and running very quickly because it was important to the President.” Pickett, 3/1/17 p.m. Tr. at 61. “There was some urgency, [the SBA] was being encouraged by the White House to do it very quickly.” Pickett, 3/2/17 a.m. Tr. at 30. During “general discussions” at SBA about re-starting the Faith Based Office, Ms. Pickett “was told that there was an employee who had some very unique qualifications that might be able to fit the position”:

I learned that she had completed an assignment in another department [within SBA], that she had completed all her work in Entrepreneurial Development, she had no outstanding deliverables that were still there, and that she had qualifications that met the job that I was trying to ask her to serve in.

         Pickett, 3/1/17 p.m. Tr. at 61, 64. Ms. Pickett was told that Ms. Saunders “had majored in religious studies in college” and “had the training skills” required for the job. Pickett, 3/2/17 a.m. Tr. at 20. She could not remember who had mentioned Ms. Saunders as a highly qualified candidate for the position. Pickett, 3/1/17 p.m. Tr. at 62. However, Ms. Pickett testified that she “really wanted to recruit [Ms. Saunders] to this position [in the Faith Based Office] because it was a high visibility White House initiative that the President really wanted to follow through on.” Id. At that time, she did not know that Ms. Saunders had previously served as Chief of the Training and Benefits Division. See Pickett, 3/1/17 p.m. Tr. at 62. The reassignment involved no change in Ms. Saunders's pay grade, salary, or benefits. See Saunders, 3/1/17 a.m. Tr. at 28-29.

         In March 2009, Ms. Pickett and Ms. Ma went to Mr. Hairston to talk about a placement for Ms. Saunders at the conclusion of her detail at OED. He “told them that they should go back and do a little bit of research and come back to me with a recommendation about where they thought it would be appropriate to place her.” Hairston, 3/7/17 a.m. Tr. at 43. When Mses. Ma and Pickett returned with a recommendation that Ms. Saunders be placed in the Faith Based Office, Mr. Hairston “authorized the decision for Ms. Saunders to be placed in that office based on the recommendation of the chief of staff [Ms. Ma] and the senior advisor [Ms. Pickett], ” relying “solely on their recommendation.” Id. at 40; see also Jt. Ex. 43 (indicating that Mr. Hairston signed the Standard Form 52, or SF-52, on April 2, 2009, initiating the reassignment of Ms. Saunders to the Faith Based Office).

         Ms. Pickett explained the kinds of duties that she anticipated the Senior Advisor in the Faith Based Office would perform:

As we envisioned this position she would need to work through Faith Based and Community based [sic] organizations to set up training. And in setting up training she would in essence train the people in these organizations to train the trainers is really what we were looking at as a two step thing. . . . .
She was very qualified for what we, how we envisioned this office to be. We also felt that she had done some rotations in the [SBA] so she understood what was available for entrepreneur development and all of those small business development centers, women's business centers, so she had a good road map of what the agency could and couldn't do and that was the kind of information that needed to go through these organizations. . . . The job was [whatever] they wanted to create [in] the position.

         Pickett, 3/2/17 a.m. Tr. at 20-21; see also Id. at 63 (“In this economic situation [after the financial crisis in 2008] it was a wide open-they were free to create this position and to deliver services to any place in the country as their imaginations and their abilities took them. It was an open discussion. . . . [I]t was a very entrepreneurial opportunity to say here is a mission. How can you best fulfill it so that you meet, you help the community.”). Chief of Staff Ana Ma, the top political appointee at SBA at the time, testified, “[m]y understanding of the office [was that] it was a White House driven initiative. They wanted to revamp the Office of Faith Based Initiatives within each of the departments across the federal government.” Ma, 3/2/17 a.m. Tr. at 75. Ms. Ma “understood [that Ms. Saunders had a] background in divinity” and “because of her experience and knowledge of the SBA in[n]erworkings, ” Ms. Saunders would be qualified for the position as Senior Advisor in the Faith Based Office. Id. at 78.[4] “I knew it was important. I knew it was urgent for us to have a point person within the building.” Ma, 3/6/17 a.m. Tr. at 17.

As Ms. Pickett recalled,
it seemed to be widely known through the agency we were looking, that this office had a high visibility with President Obama. . . . I had gone to a meeting at the White House, was getting ready to meet with Karla [and] at least two or three other people did approach me . . . to ask if they could be considered.

         Pickett, 3/2/17 a.m. Tr. at 27-28.[5] However, Ms. Pickett told other employees that she had a candidate and only if that person declined would she be considering others for the job. Id. at 28. With a “very short timeline” in which to find a senior advisor, Ms. Pickett did not engage in a traditionally competitive selection. Id.[6]

         Ms. Pickett first talked informally with Ms. Saunders about the new position. Saunders, 2/22/17 Tr. at 57-58 (Ms. Pickett “said she had a position for me that she would like me to consider in the Office of Faith Based and Community Initiatives. She talked a little bit about the job. . . .”). On April 2, 2009, Mses. Pickett and Ma met with Ms. Saunders to offer her the position of GS-15 Senior Advisor in the Faith Based Office. Ms. Pickett testified that “Ms. Saunders said she would be honored to work in this way.” Pickett, 3/2/17 a.m. Tr. at 19-20. In contrast, Ms. Saunders testified that she “indicated to [Ms. Pickett and Ms. Ma] that [she] felt . . . retaliated against because [she] had filed an EEO complaint.” Saunders, 2/22/17 Tr. at 58. On cross-examination, she said: “The conversation [on April 2, 2009] was I felt that my being reassigned out of my job as the training officer was retaliation for me having filed an EEO complaint against Mr. Brechbiel and giving the letter requesting intervention to the [A]dministrator [in 2007].” Saunders, 3/1/17 a.m. Tr. at 8. Despite any concerns she may have had, Ms. Saunders accepted the offer and, when testifying about the interaction, did not deny that she told Mses. Pickett and Ma that she felt honored by the offer. See id.; see also Id. at 35 (discussing Ms. Saunders's email of April 2, 2009 to Holly Schick at OED, which, according to Ms. Saunders's recollection, stated: “Hi Holly. Met with Penny and Ana today and I was offered the position as we discussed. I accepted, so effective Monday assigned to that office.”). Ms. Saunders testified that she “felt pressured and didn't want to have any trouble, so [she] initially accepted the job.” Id. at 39.

         Also on April 2, 2009, after the meeting with Mses. Pickett and Ma, Ms. Saunders called Ms. Pickett and left a voice message expressing concern about the new position. Ms. Saunders testified that she retracted her acceptance in the voice message, and that she told Ms. Pickett that she felt she was being retaliated against. See Saunders, 2/22/17 Tr. at 60-61. According to Ms. Saunders's trial testimony, she said during the meeting that she had filed an EEO complaint and submitted a request for intervention to the Administrator. See Id. at 105-06 (“When I met with [Mses. Ma and Pickett on April 2, 2009] I said that I, when I told them that I had filed an EEO complaint and I had submitted a letter along with my other co-workers for a request for an intervention.”); see also Stip. 19.[7] She followed up with an email to Ms. Pickett four days later, on April 6, 2009, referencing the voice message and her concerns about the reassignment, and requesting a follow-up meeting “[b]efore[] I formally accept this re- assignment.” See Pl.'s Ex. 29; Saunders, 2/22/17 Tr. at 62. However, because Ms. Saunders had already accepted the position during the April 2, 2009 meeting, on that same day, Mr. “Hairston and [Ms.] Ma signed an SF-52 initiating [Ms. Saunders's] reassignment to the newly created position of senior advisor in [the Faith Based Office] effective May 24, 2009.” Saunders, 3/1/17 a.m. Tr. at 99 (reading interrogatory response 67); see also Jt. Ex. 43 (SF-52 initiating Ms. Saunders's reassignment to the Faith Based Office).

         On April 6, 2009, Ms. Pickett sent an email to Ms. Saunders, titled “Confirmation of Change in Assignment, ” that addressed the concerns about the new job that Ms. Saunders had raised on April 2. See Pl.'s Ex. 198 at 2-4; see also Def.'s Renewed Motion, Ex. 2 [Dkt. 150-3]. Ms. Pickett described the job positively as “an opportunity to work independently, prepare a summary of work previously done [during the Bush Administration] and prepare proposals for re-energizing the faith based initiatives.” Pl.'s Ex. 198. Ms. Saunders responded that she was worried about being reassigned to a non-managerial position because it “has potential negative implications for [her] future career options.” Id. at 2. In Ms. Pickett's reply, she said, in part: “At the conclusion of our discussion [on April 2, 2009], it appeared that you were going to play a key role in developing policy for an important initiative in the administration. If, as your note indicates, you do not wish to go forward at this time, I certainly understand.” Id. Ms. Pickett offered to meet again with Ms. Saunders. Id.

         Before sending her reply to Ms. Saunders, Ms. Pickett sent a draft of the email on April 6, 2009 to Acting Administrator Daryl Hairston and Chief Human Capital Officer Napoleon Avery, requesting: “Please review my response before I reply to this e-mail. Sorry, guys, I tried.” Pl.'s Ex. 29B. She explained at trial that she was sending the draft email to ...


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