United States District Court, District of Columbia
ROSEMARY M. COLLYER, United States District Judge
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)). 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.
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
Background to Litigated Claims
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
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.
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.
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.
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.
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.
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. 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
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.
Claim Two - Reassignment to the Office of Faith Based and
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
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.”).
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.
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.
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.
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).
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.
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. “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.
3/2/17 a.m. Tr. at 27-28. 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.
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.
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.
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).
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.
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 ...